BAGABUYO VS COMELEC

Before us is the petition for certiorari, prohibition, and mandamus,[1] with a

prayer for the issuance of a temporary restraining order and a writ of preliminary
injunction, filed by Rogelio Bagabuyo (petitioner) to prevent the Commission on
Elections (COMELEC) from implementing Resolution No. 7837 on the ground that
Republic Act No. 9371[2] the law that Resolution No. 7837 implements is
unconstitutional.

BACKGROUND FACTS
On October 10, 2006, Cagayan de Oros then Congressman Constantino G.
Jaraula filed and sponsored House Bill No. 5859: An Act Providing for the
Apportionment of the Lone Legislative District of the City of Cagayan De
Oro.[3] This law eventually became Republic Act (R.A.) No. 9371.[4] It increased
Cagayan de Oros legislative district from one to two. For the election of May 2007,
Cagayan de Oros voters would be classified as belonging to either the first or the
second district, depending on their place of residence. The constituents of each
district would elect their own representative to Congress as well as eight members
of the Sangguniang Panglungsod.
Section 1 of R.A. No. 9371 apportioned the Citys barangays as follows:
Legislative Districts The lone legislative district of the City of Cagayan De Oro is
hereby apportioned to commence in the next national elections after the
effectivity of this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan,
Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan,
Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an,
Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall
comprise the first district while barangays Macabalan, Puntod, Consolacion,
Camaman-an, Nazareth, Macasandig, Indahag, Lapasan, Gusa, Cugman, FS
Catanico, Tablon, Agusan, Puerto, Bugo, and Balubal and all urban barangays
from Barangay 1 to Barangay 40 shall comprise the second district.[5]

On March 13, 2007, the COMELEC en Banc promulgated Resolution No.

7837[6] implementing R.A. No. 9371.
Petitioner Rogelio Bagabuyo filed the present petition against the
COMELEC on March 27, 2007.[7] On 10 April 2008, the petitioner amended the
petition to include the following as respondents: Executive Secretary Eduardo
Ermita; the Secretary of the Department of Budget and Management; the Chairman
of the Commission on Audit; the Mayor and the members of the Sangguniang
Panglungsod of Cagayan de Oro City; and its Board of Canvassers.[8]
In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on
constitutional grounds, the petitioner argued that the COMELEC cannot implement
R.A. No. 9371 without providing for the rules, regulations and guidelines for the
conduct of a plebiscite which is indispensable for the division or conversion of a
local government unit. He prayed for the issuance of an order directing the
respondents to cease and desist from implementing R.A. No. 9371 and COMELEC
Resolution No. 7837, and to revert instead to COMELEC Resolution No. 7801
which provided for a single legislative district for Cagayan de Oro.
Since the Court did not grant the petitioners prayer for a temporary
restraining order or writ of preliminary injunction, the May 14 National and Local
Elections proceeded according to R.A. No. 9371 and Resolution No. 7837.
The respondents Comment on the petition, filed through the Office of the Solicitor
General, argued that: 1) the petitioner did not respect the hierarchy of courts, as the
Regional Trial Court (RTC) is vested with concurrent jurisdiction over cases
assailing the constitutionality of a statute; 2) R.A. No. 9371 merely increased the
representation of Cagayan de Oro City in the House of Representatives
and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987
Constitution; 3) the criteria established under Section 10, Article X of the 1987
Constitution only apply when there is a creation, division, merger, abolition or
substantial alteration of boundaries of a province, city, municipality, or barangay;
in this case, no such creation, division, merger, abolition or alteration of
boundaries of a local government unit took place; and 4) R.A. No. 9371 did not
bring about any change in Cagayan de Oros territory, population and income
classification; hence, no plebiscite is required.
The petitioner argued in his reply that: 1) pursuant to the Courts ruling in Del Mar
v. PAGCOR,[9] the Court may take cognizance of this petition if compelling
reasons, or the nature and importance of the issues raised, warrant the immediate
exercise of its jurisdiction; 2) Cagayan de Oro Citys reapportionment under R.A.
No. 9371 falls within the meaning of creation, division, merger, abolition or
substantial alteration of boundaries of cities under Section 10, Article X of the
Constitution; 3) the creation, division, merger, abolition or substantial alteration of
boundaries of local government units involve a common denominator the material
change in the political and economic rights of the local government units directly
affected, as well as of the people therein; 4) a voters sovereign power to decide on
who should be elected as the entire citys Congressman was arbitrarily reduced by
at least one half because the questioned law and resolution only allowed him to
vote and be voted for in the district designated by the COMELEC; 5) a voter was
also arbitrarily denied his right to elect the Congressman and the members of the
city council for the other legislative district, and 6) government funds were
illegally disbursed without prior approval by the sovereign electorate of Cagayan
De Oro City.[10]
 THE ISSUES

The core issues, based on the petition and the parties memoranda, can be limited to
the following contentious points:

1) Did the petitioner violate the hierarchy of courts rule; if so, should the
instant petition be dismissed on this ground?
2) Does R.A. No. 9371 merely provide for the legislative reapportionment of
Cagayan de Oro City, or does it involve the division and conversion of a
local government unit?
3) Does R.A. No. 9371 violate the equality of representation doctrine?

OUR RULING

Except for the issue of the hierarchy of courts rule, we find the petition totally
without merit.

The hierarchy of courts principle.

The Supreme Court has original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.[11] It was pursuant to
this original jurisdiction that the petitioner filed the present petition.

While this jurisdiction is shared with the Court of Appeals[12] and the
RTCs,[13] a direct invocation of the Supreme Courts jurisdiction is allowed only
when there are special and important reasons therefor, clearly and especially set
out in the petition. Reasons of practicality, dictated by an increasingly
overcrowded docket and the need to prioritize in favor of matters within our
exclusive jurisdiction, justify the existence of this rule otherwise known as
the principle of hierarchy of courts. More generally stated, the principle requires
that recourse must first be made to the lower-ranked court exercising concurrent
jurisdiction with a higher court.[14]

Among the cases we have considered sufficiently special and important to

be exceptions to the rule, are petitions
for certiorari, prohibition, mandamus and quo warrantoagainst our nations
lawmakers when the validity of their enactments is assailed.[15] The present petition
is of this nature; its subject matter and the nature of the issues raised among them,
whether legislative reapportionment involves a division of Cagayan de Oro City as
a local government unit are reasons enough for considering it an exception to the
principle of hierarchy of courts. Additionally, the petition assails as well a
resolution of the COMELEC en banc issued to implement the legislative
apportionment that R.A. No. 9371 decrees. As an action against a COMELEC en
banc resolution, the case falls under Rule 64 of the Rules of Court that in turn
requires a review by this Court via a Rule 65 petition for certiorari.[16] For these
reasons, we do not see the principle of hierarchy of courts to be a stumbling block
in our consideration of the present case.

The Plebiscite Requirement.

The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan
de Oro as a local government unit, and does not merely provide for the Citys
legislative apportionment. This argument essentially proceeds from a
misunderstanding of the constitutional concepts of apportionment of legislative
districts and division of local government units.

Legislative apportionment is defined by Blacks Law Dictionary as the

determination of the number of representatives which a State, county or other
subdivision may send to a legislative body.[17] It is the allocation of seats in a
legislative body in proportion to the population; the drawing of voting district lines
so as to equalize population and voting power among the
districts.[18] Reapportionment, on the other hand, is the realignment or change in
legislative districts brought about by changes in population and mandated by the
constitutional requirement of equality of representation.[19]

Article VI (entitled Legislative Department) of the 1987 Constitution lays

down the rules on legislative apportionment under its Section 5 which provides:
Sec. 5(1). (1) The House of Representatives shall be composed of not
more than two hundred fifty members unless otherwise fixed by law, who shall be
elected from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of registered
national, regional and sectoral parties or organizations.

xxx
 (3) Each legislative district shall comprise, as far as practicable,
continuous, compact, and adjacent territory. Each city with a population of at least
two hundred fifty thousand, or each province, shall have at least one
representative.

(4) 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.

Separately from the legislative districts that legal apportionment or

reapportionment speaks of, are the local government units (historically and
generically referred to as municipal corporations) that the Constitution itself
classified into provinces, cities, municipalities and barangays.[20] In its strict and
proper sense, a municipality has been defined as a body politic and corporate
constituted by the incorporation of the inhabitants of a city or town for the purpose
of local government thereof.[21] The creation, division, merger, abolition or
alteration of boundary of local government units, i.e., of provinces, cities,
municipalities, and barangays, are covered by the Article on Local Government
(Article X). Section 10 of this Article provides:

No province, city, municipality, or barangay may be created, divided, merged,

abolished, or its boundary substantially altered, except in accordance with the
criteria established in the local government code and subject to approval by a
majority of the votes cast in a plebiscite in the political unit directly affected.

Under both Article VI, Section 5, and Article X, Section 10 of the

Constitution, the authority to act has been vested in the Legislature. The
Legislature undertakes the apportionment and reapportionment of legislative
districts,[22] and likewise acts on local government units by setting the standards for
their creation, division, merger, abolition and alteration of boundaries and by
actually creating, dividing, merging, abolishing local government units and altering
their boundaries through legislation. Other than this, not much commonality exists
between the two provisions since they are inherently different although they
interface and relate with one another.
The concern that leaps from the text of Article VI, Section 5 is political
representation and the means to make a legislative district sufficiently represented
so that the people can be effectively heard. As above stated, the aim of legislative
apportionment is to equalize population and voting power among
districts.[23] Hence, emphasis is given to the number of people represented; the
uniform and progressive ratio to be observed among the representative districts;
and accessibility and commonality of interests in terms of each district being, as far
as practicable, continuous, compact and adjacent territory. In terms of the people
represented, every city with at least 250,000 people and every province
(irrespective of population) is entitled to one representative. In this sense,
legislative districts, on the one hand, and provinces and cities, on the other, relate
and interface with each other. To ensure continued adherence to the required
standards of apportionment, Section 5(4) specifically mandates reapportionment as
soon as the given standards are met.

In contrast with the equal representation objective of Article VI, Section 5,

Article X, Section 10 expressly speaks of how local government units may be
created, divided, merged, abolished, or its boundary substantially altered. Its
concern is the commencement, the termination, and the modification of local
government units corporate existence and territorial coverage; and it speaks of two
specific standards that must be observed in implementing this concern, namely, the
criteria established in the local government code and the approval by a majority of
the votes cast in a plebiscite in the political units directly affected. Under the Local
Government Code (R.A. No. 7160) passed in 1991, the criteria of income,
population and land area are specified as verifiable indicators of viability and
capacity to provide services.[24] The division or merger of existing units must
comply with the same requirements (since a new local government unit will come
into being), provided that a division shall not reduce the income, population, or
land area of the unit affected to less than the minimum requirement prescribed in
the Code.[25]

A pronounced distinction between Article VI, Section 5 and, Article X,

Section 10 is on the requirement of a plebiscite. The Constitution and the Local
Government Code expressly require a plebiscite to carry out any creation, division,
merger, abolition or alteration of boundary of a local
[26]
government unit. In contrast, no plebiscite requirement exists under the
apportionment or reapportionment provision. In Tobias v. Abalos,[27] a case that
arose from the division of the congressional district formerly covering San
Juan and Mandaluyong into separate districts, we confirmed this distinction and
the fact that no plebiscite is needed in a legislative reapportionment. The plebiscite
issue came up because one was ordered and held for Mandaluyong in the course of
its conversion into a highly urbanized city, while none was held for San Juan. In
explaining why this happened, the Court ruled that no plebiscite was necessary
for San Juan because the objective of the plebiscite was the conversion of
Mandaluyong into a highly urbanized city as required by Article X, Section 10 the
Local Government Code; the creation of a new legislative district only followed as
a consequence. In other words, the apportionment alone and by itself did not call
for a plebiscite, so that none was needed for San Juan where only a
reapportionment took place.

The need for a plebiscite under Article X, Section 10 and the lack of requirement
for one under Article VI, Section 5 can best be appreciated by a consideration of
the historical roots of these two provisions, the nature of the concepts they embody
as heretofore discussed, and their areas of application.

A Bit of History.

In Macias v. COMELEC,[28] we first jurisprudentially acknowledged the American

roots of our apportionment provision, noting its roots from the
Fourteenth Amendment[29] of the U.S. Constitution and from the constitutions of
some American states. The Philippine Organic Act of 1902 created the Philippine
Assembly,[30] the body that acted as the lower house of the bicameral legislature
under the Americans, with the Philippine Commission acting as the upper
house. While the members of the Philippine Commission were appointed by the
U.S. President with the conformity of the U.S. Senate, the members of the
Philippine Assembly were elected by representative districts previously delineated
under the Philippine Organic Act of 1902 pursuant to the mandate to apportion the
seats of the Philippine Assembly among the provinces as nearly as practicable
according to population. Thus, legislative apportionment first started in our
country.

The Jones Law or the Philippine Autonomy Act of 1916 maintained the
apportionment provision, dividing the country into 12 senate districts and 90
representative districts electing one delegate each to the House of
Representatives. Section 16 of the Act specifically vested the Philippine
Legislature with the authority to redistrict the Philippine Islands.

Under the 1935 Constitution, Article VI, Section 5 retained the concept of
legislative apportionment together with district as the basic unit of apportionment;
the concern was equality of representation . . . as an essential feature of republican
institutions as expressed in the leading case of Macias v. COMELEC.[31] The case
ruled that inequality of representation is a justiciable, not a political issue, which
ruling was reiterated in Montejo v. COMELEC.[32] Notably, no issue regarding the
holding of a plebiscite ever came up in these cases and the others that followed, as
no plebiscite was required.
Article VIII, Section 2 of the 1973 Constitution retained the concept of equal
representation in accordance with the number of their respective inhabitants and on
the basis of a uniform and progressive ratio with each district being, as far as
practicable, contiguous, compact and adjacent territory. This formulation was
essentially carried over to the 1987 Constitution, distinguished only from the
previous one by the presence of party-list representatives. In neither Constitution
was a plebiscite required.

The need for a plebiscite in the creation, division, merger, or abolition of

local government units was not constitutionally enshrined until the 1973
Constitution. However, as early as 1959, R.A. No. 2264[33] required, in the creation
of barrios by Provincial Boards, that the creation and definition of boundaries
be upon petition of a majority of the voters in the areas affected. In 1961, the
Charter of the City of Caloocan (R.A. No. 3278) carried this further by requiring
that the Act shall take effect after a majority of voters of the Municipality of
Caloocan vote in favor of the conversion of their municipality into a city in a
plebiscite. This was followed up to 1972 by other legislative enactments requiring
a plebiscite as a condition for the creation and conversion of local government
units as well as the transfer of sitios from one legislative unit to another.[34] In
1973, the plebiscite requirement was accorded constitutional status.

Under these separate historical tracks, it can be seen that the holding of a
plebiscite was never a requirement in legislative apportionment or
reapportionment. After it became constitutionally entrenched, a plebiscite was also
always identified with the creation, division, merger, abolition and alteration of
boundaries of local government units, never with the concept of legislative
apportionment.

Nature and Areas of Application.

The legislative district that Article VI, Section 5 speaks of may, in a sense,
be called a political unit because it is the basis for the election of a member of the
House of Representatives and members of the local legislative body. It is not,
however, a political subdivision through which functions of government are carried
out. It can more appropriately be described as a representative unit that may or
may not encompass the whole of a city or a province, but unlike the latter, it is not
a corporate unit. Not being a corporate unit, a district does not act for and in behalf
of the people comprising the district; it merely delineates the areas occupied by the
people who will choose a representative in their national affairs. Unlike a province,
which has a governor; a city or a municipality, which has a mayor; and a barangay,
which has a punong barangay, a district does not have its own chief executive. The
role of the congressman that it elects is to ensure that the voice of the people of the
district is heard in Congress, not to oversee the affairs of the legislative district.
Not being a corporate unit also signifies that it has no legal personality that must be
created or dissolved and has no capacity to act. Hence, there is no need for any
plebiscite in the creation, dissolution or any other similar action on a legislative
district.

The local government units, on the other hand, are political

and corporate units. They are the territorial and political subdivisions of the
state.[35] They possess legal personality on the authority of the Constitution and by
action of the Legislature. The Constitution defines them as entities that Congress
can, by law, create, divide, abolish, merge; or whose boundaries can be altered
based on standards again established by both the Constitution and the
Legislature.[36] A local government units corporate existence begins upon the
election and qualification of its chief executive and a majority of the members of
its Sanggunian.[37]

As a political subdivision, a local government unit is an instrumentality of

the state in carrying out the functions of government.[38] As a corporate entity with
a distinct and separate juridical personality from the State, it exercises special
functions for the sole benefit of its constituents. It acts as an agency of the
community in the administration of local affairs[39] and the mediums through which
the people act in their corporate capacity on local concerns.[40] In light of these
roles, the Constitution saw it fit to expressly secure the consent of the people
affected by the creation, division, merger, abolition or alteration of boundaries of
local government units through a plebiscite.

These considerations clearly show the distinctions between a legislative

apportionment or reapportionment and the division of a local government
unit. Historically and by its intrinsic nature, a legislative apportionment does not
mean, and does not even imply, a division of a local government unit where the
apportionment takes place. Thus, the plebiscite requirement that applies to the
division of a province, city, municipality or barangay under the Local Government
Code should not apply to and be a requisite for the validity of a legislative
apportionment or reapportionment.

R.A. No. 9371 and COMELEC Res. No. 7837

 R.A. No. 9371 is, on its face, purely and simply a reapportionment
legislation passed in accordance with the authority granted to Congress under
Article VI, Section 5(4) of the Constitution. Its core provision Section 1 provides:

SECTION 1. Legislative Districts. The lone legislative district of the City

of Cagayan de Oro is hereby apportioned to commence in the next national
elections after the effectivity of this Act. Henceforth, barangays Bonbon,
Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon,
Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao,
Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan
and Bisigan shall comprise the first district while barangays Macabalan, Puntod,
Consolacion, Camaman-an, Nazareth, Macansandig, Indahag, Lapasan, Gusa,
Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all urban
barangays from Barangay 1 to Barangay 40 shall comprise the second district.

Under these wordings, no division of Cagayan de Oro City as a political and

corporate entity takes place or is mandated. Cagayan de Oro City politically
remains a single unit and its administration is not divided along territorial lines. Its
territory remains completely whole and intact; there is only the addition of another
legislative district and the delineation of the city into two districts for purposes of
representation in the House of Representatives. Thus, Article X, Section 10 of the
Constitution does not come into play and no plebiscite is necessary to validly
apportion Cagayan de Oro City into two districts.

Admittedly, the legislative reapportionment carries effects beyond the

creation of another congressional district in the city by providing, as reflected in
COMELEC Resolution No. 7837, for additional Sangguniang Panglunsod seats to
be voted for along the lines of the congressional apportionment made. The effect
on the Sangguniang Panglunsod, however, is not directly traceable to R.A. No.
9371 but to another law R.A. No. 6636[41] whose Section 3 provides:
SECTION 3. Other Cities. The provision of any law to the contrary
notwithstanding the City of Cebu, City of Davao, and any other city with more
than one representative district shall have eight (8) councilors for each
district who shall be residents thereof to be elected by the qualified voters therein,
provided that the cities of Cagayan de Oro, Zamboanga, Bacolod, Iloilo and other
cities comprising a representative district shall have twelve (12) councilors each
and all other cities shall have ten (10) councilors each to be elected at large by the
qualified voters of the said cities: Provided, That in no case shall the present
number of councilors according to their charters be reduced.
However, neither does this law have the effect of dividing the City of Cagayan de
Oro into two political and corporate units and territories. Rather than divide the
city either territorially or as a corporate entity, the effect is merely to enhance voter
representation by giving each city voter more and greater say, both in Congress
and in the Sangguniang Panglunsod.

To illustrate this effect, before the reapportionment, Cagayan de Oro had

only one congressman and 12 city council members citywide for its population of
approximately 500,000.[42] By having two legislative districts, each of them with
one congressman, Cagayan de Oro now effectively has two congressmen, each one
representing 250,000 of the citys population. In terms of services for city residents,
this easily means better access to their congressman since each one now services
only 250,000 constituents as against the 500,000 he used to represent. The same
goes true for the Sangguniang Panglungsod with its ranks increased from 12 to 16
since each legislative district now has 8 councilors. In representation terms, the
fewer constituents represented translate to a greater voice for each individual city
resident in Congress and in the Sanggunian; each congressman and each councilor
represents both a smaller area and fewer constituents whose fewer numbers are
now concentrated in each representative. The City, for its part, now has twice the
number of congressmen speaking for it and voting in the halls of Congress. Since
the total number of congressmen in the country has not increased to the point of
doubling its numbers, the presence of two congressman (instead of one) from the
same city cannot but be a quantitative and proportional improvement in the
representation of Cagayan de Oro City in Congress.

Equality of representation.
The petitioner argues that the distribution of the legislative districts is
unequal. District 1 has only 93,719 registered voters while District 2 has
127,071. District 1 is composed mostly of rural barangays while District 2 is
composed mostly of urban barangays.[43] Thus, R.A. No. 9371 violates the
principle of equality of representation.

A clarification must be made. The law clearly provides that the basis for districting
shall be the number of the inhabitants of a city or a province, not the number of
registered voters therein. We settled this very same question in Herrera v.
COMELEC[44] when we interpreted a provision in R.A. No.
7166 and COMELEC Resolution No. 2313 that applied to
the Province of Guimaras. We categorically ruled
that the basis for districting is the number of inhabitants of the Province of Guimar
as by municipality based on theofficial 1995 Census of Population as certified to b
y Tomas P. Africa, Administrator of the National Statistics Office.

The petitioner, unfortunately, did not provide information about the actual
population of Cagayan de Oro City. However, we take judicial notice of the
August 2007 census of the National Statistics Office which shows
that barangays comprising Cagayan de Oros first district have a total population of
254,644, while the second district has 299,322 residents. Undeniably, these figures
show a disparity in the population sizes of the districts.[45] The Constitution,
however, does not require mathematical exactitude or rigid equality as a standard
in gauging equality of representation.[46] In fact, for cities, all it asks is that each
city with a population of at least two hundred fifty thousand shall have one
representative, while ensuring representation for every province regardless of the
size of its population. To ensure quality representation through commonality of
interests and ease of access by the representative to the constituents, all that the
Constitution requires is that every legislative district should comprise, as far as
practicable, contiguous, compact, and adjacent territory. Thus, the Constitution
leaves the local government units as they are found and does not require their
division, merger or transfer to satisfy the numerical standard it imposes. Its
requirements are satisfied despite some numerical disparity if the units are
contiguous, compact and adjacent as far as practicable.
The petitioners contention that there is a resulting inequality in the division of
Cagayan de Oro City into two districts because the barangays in the first district
are mostly rural barangays while the second district is mostly urban, is largely
unsubstantiated. But even if backed up by proper proof, we cannot question the
division on the basis of the difference in the barangays levels of development or
developmental focus as these are not part of the constitutional standards for
legislative apportionment or reapportionment.What the components of the two
districts of Cagayan de Oro would be is a matter for the lawmakers to determine as
a matter of policy. In the absence of any grave abuse of discretion or violation of
the established legal parameters, this Court cannot intrude into the wisdom of these
policies.[47]

WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs

against the petitioner.

SO ORDERED.