Saturday, April 10, 2010

A District Each for Dato and Rolly

In upholding the creation of a representative district for Dato Arroyo and Rolly Andaya, (yes, that is what R.A. 9176 succeeds in doing), the Supreme Court cited the juggling of populations by the Constitutional Commission when it first divided the country into representative districts. Of course, the Constitutional Commission could juggle and put almost anything into the draft they were working on. After all, the Commission’s work still had to be submitted to the people for approval. But not everything that the Constitutional Commission could do may be done by Congress. Congress is bound not by what the Constitutional Commission did but by what the Constitution says.

The Constitution says that there are five standards for the creation of representative districts.

First, representative districts shall be “apportioned among the provinces, cities and the Metropolitan Manila in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio.” This requirement or its equivalent formula is found in the 1935, 1973 and 1987 Constitutions.

Second, each province, irrespective of size, is entitled to at least one representative district. This too is found in all three Constitutions.

Third, a city can constitute a representative district only if it has a population of at least 250,000. This requirement appears only in the 1987 Constitution.

Fourth, each representative district shall comprise, as far as practicable, contiguous and compact territory. This too is in all three Constitutions.

Fifth, the 1935 Constitution says: “The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise.” The 1987 version says:Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.”

Of these five standards, the first holds preeminent position. It is the equal protection clause of the Bill of Rights made specific for districts. The others are auxiliary requisites intended to assure observance of the first requisite. It is thus most important that the meaning of the first requisite be understood and that Congress observe it. What does it mean?

The phrase “in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio” is borrowed from American constitutional law and jurisprudence. But it has become necessarily ours because of the American provenance of our basic constitutional law and especially because it is rooted in the equal protection clause. As American jurisprudence clearly teaches, “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.” Or again: “We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the [legislative] seats . . . must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.”

Dilution is exactly what happened in the Camarines Sur case. Camarines Sur had four representative districts each containing roughly 400,000 inhabitants. Of these the largest was the second district with 474,899, followed by the fourth district with 429,070, and next the first district with 417,304. R.A. 9716 decided to divide the smallest of the three into two districts thereby accommodating Dato Arroyo and Rolando Andaya. As a consequence, the smaller original third district would now be represented by two congressmen whereas the two larger districts would be represented by only one each. 474,899 and 429,070 voters voters can elect only one congressman each whereas 417,304 can elect two! Translate that into pork barrel! What could be more blatantly discriminatory?

The ponencia says that population is not the only thing. Yes, but it is the main thing because sovereignty is in the population. The ponencia did not show nor could it show any other factor to outweigh the sovereignty of population.

The ponenca also makes much of the fact that the text of the Constitution expressly provides a population minimum of 250,000 only for cities. True, but an overriding principle is proportionality and equality of population found in the first standard. For cities, 250,000 is the strict mathematical minimum, as upheld in the recent Malolos case. For others, the standard is not a mathematical minimum but proportionality which honors the equal protection clause. The only units exempted from proportionality are provinces.

What we have here is a Supreme Court approved assault on the equal protection clause. It is an assault which inflicts a deep wound on our democratic system.

Finally, what of the command that Congress make a reapportionment within three years after the return of every census? Its purpose is to periodically readjust proportionality. This purpose, however, is defeated by piecemeal reapportionment such as the recent one of Camarines Sur. Piecemeal reapportionment is a direct assault against equal protection. For this reason, reapportionment should only be done nationwide. Unfortunately piecemeal reapportionment continues to have the blessing of the Supreme Court. A deliberate act of Congress creating disproportion and blessed by the Supreme Court is not only unconstitutional but also disgraceful.

12 April 2010

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