Saturday, April 17, 2010

Gerrymandering Perpetuated

We will be having a new Congress soon, even if the likelihood of a new Supreme Court is nil. It is perhaps not too early to think aloud about what to do with representative districts. One question needing an answer is: What is the correct way of implementing the constitutional command that “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.”?

We might recall the 1961 case of Macias et al v. Comelec and compare it with the arithmetic of Aquino v. Comelec, the decision which allowed R.A. 9176 to create a representative district each for Dato Arroyo and Rolly Andaya.. The Macias case arose from R.A. 3040 which attempted a nationwide reapportionment. But R.A. 3040 was declared unconstitutional and void for having violated the constitutional command that the districts "shall be apportioned among the several provinces as nearly as may be according to the member of their respective inhabitants.".

What was wrong with R.A. 3040? The Court said that R.A. 3040 violated the Constitution “because (a) it gave Cebu seven members, while Rizal with a bigger number of inhabitants got four only; (b) it gave Manila four members, while Cotabato with a bigger population got three only; (c) Pangasinan with less inhabitants than both Manila and Cotabato got more than both, five members having been assigned to it; (d) Samar (with 871,857) was allotted four members while Davao with 903,224 got three only; (e) Bulacan with 557,691 got two only, while Albay with less inhabitants (515,691) got three, and (f) Misamis Oriental with 387,839 was given one member only, while Cavite with less inhabitants (379,904) got two. These were not the only instances of unequal apportionment. We see that Mountain Province has 3 whereas Isabela, Laguna and Cagayan with more inhabitants have 2 each. And then, Capiz, La Union and Ilocos Norte got 2 each, whereas Sulu that has more inhabitants got 1 only. And Leyte with 967,323 inhabitants got 4 only, whereas Iloilo with less inhabitants (966,145) was given 5.”

The intention of R.A. 3040 was to implement the constitutional command that “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.” It was the first attempt since 1935 to readjust the sizes of representative districts which by then had become grossly disproportionate through the growth and movement of populations. The intention was good but, quite apparently, competing political interests managed to create an unsatisfactory allotment of districts. Too bad for them, they were not as lucky as the authors of R.A. 9176.

R.A. 3040 was probably a more equitable distribution of districts than what the situation had become then since 1935. In fact the Court said, “It is argued in the motion to reconsider, that since Republic Act 3040 improves existing conditions, this Court could perhaps, in the exercise of judicial statesmanship, consider the question involved as purely political and therefore non-justiciable. The overwhelming weight of authority is that district apportionment laws are subject to review by the courts.”

R.A. 9176 was by no means an attempt at nationwide reapportionment. And it completely ignored the equality principle enunciated in Macias. Either the Court was not aware of Macias (which is unlikely) or, if aware, chose to adhere to a different notion of equality. Either that, or the ponente was distracted by the preoccupation with the 250,000 population minimum for cities, a provision not found in earlier constitutions.. Thus the ponencia failed to appreciate the fact that through R.A. 9176 a majority of the citizens Camarines Sur, to borrow the 1961 Court language, were being “deprived of as full and effective an elective franchise as they are entitled to under the Constitution.” As the Court then affirmed, “each citizen has the right to have the State apportioned in accordance with the Constitution and to be governed by a Legislative fairly representing the whole body of electorate and elected as required by the Constitution.” It added: “Needless to say, equality of representation in the Legislature being such an essential feature of republican institutions, and affecting so many lives, the judiciary may not with a clear conscience stand by to give free hand to the discretion of the political departments of the Government. Cases are numerous wherein courts intervened upon proof of violation of the constitutional principle of equality of representation.”

R.A. 9176 is not an attempt to implement the Constitutional command that the distribution of districts should be reviewed periodically. It is not even an attempt to balance the numbers among the different districts within Camarines Sur. It is a simple case of doing political allies a favor. But, alas, the Arroyo Court blessed it.

Finally, from the Macias case and the De Castro case, one clear conclusion that can be drawn is that reapportionment done on a piecemeal basis will not achieve the equality of representation desired by the Constitution. Only an honest nationwide reapportionment can achieve equality of representation. If anything, piecemeal reapportionment will only serve to worsen existing inequality. It serves to perpetuate the gerrymandering sin. Will the Supreme Court continue to allow it?

19 April 2010

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