EN BANC

BAI SANDRA S. A. SEMA, G.R. No. 177597

Petitioner,
- versus -

COMMISSION ON ELECTIONS
and DIDAGEN P. DILANGALEN,
Respondents.
x------------------------x

PERFECTO F. MARQUEZ, G.R. No. 178628

Petitioner,
Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent. ________July 16, 2008______

x--------------------------------------------------x

DECISION

CARPIO, J.:
Decision 2 G.R. Nos. 177597 & 178628

The Case

These consolidated petitions1 seek to annul Resolution No. 7902,

dated 10 May 2007, of the Commission on Elections (COMELEC) treating
Cotabato City as part of the legislative district of the Province of Shariff
Kabunsuan.2

The Facts

The Ordinance appended to the 1987 Constitution apportioned two

legislative districts for the Province of Maguindanao. The first legislative
district consists of Cotabato City and eight municipalities. 3 Maguindanao
forms part of the Autonomous Region in Muslim Mindanao (ARMM),
created under its Organic Act, Republic Act No. 6734 (RA 6734), as
amended by Republic Act No. 9054 (RA 9054).4 Although under the
Ordinance, Cotabato City forms part of Maguindanao’s first legislative
district, it is not part of the ARMM but of Region XII, having voted against
its inclusion in the ARMM in the plebiscite held in November 1989.

On 28 August 2006, the ARMM’s legislature, the ARMM Regional

Assembly, exercising its power to create provinces under Section 19, Article
1
In G.R. No. 177597, for the writs of certiorari, prohibition and mandamus; in G.R. No. 178628, for
“declaratory relief” and for the writs of prohibition and mandamus.
2
The petitioner in G.R. No. 177597, Bai Sandra S. A. Sema (Sema), further seeks to compel the
COMELEC to exclude from the canvassing the votes cast in Cotabato City for representative of
the legislative district in question in the 14 May 2007 elections. On the other hand, the petitioner
in G.R. No. 178628, Perfecto Marquez, prays that the Court order the COMELEC to conduct a
special election for representative of the “First District of Maguindanao with Cotabato City.”
3
Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat, and Upi. The
second legislative district is composed of 19 municipalities (Talitay, Talayan, Guindulungan, Datu
Saudi Ampatuan, Datu Piang, Shariff Aguak, Datu Unsay, Mamasapano, South Upi, Ampatuan,
Datu Abdullah Sangki, Buluan, Datu Paglas, Gen, S.K. Pendatun, Sultan Sa Barongis, Rajah
Buayan, Pagalungan, Pagagawan and Paglat).
4
The enactment of the organic acts for the autonomous regions of the Cordilleras and Muslim
Mindanao is mandated under Sections 18 and 19, Article X of the 1987 Constitution.
Decision 3 G.R. Nos. 177597 & 178628

VI of RA 9054,5 enacted Muslim Mindanao Autonomy Act No. 201 (MMA

Act 201) creating the Province of Shariff Kabunsuan composed of the eight
municipalities in the first district of Maguindanao. MMA Act 201 provides:

Section 1. The Municipalities of Barira, Buldon, Datu Odin

Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat, Sultan Mastura,
and Upi are hereby separated from the Province of Maguindanao and
constituted into a distinct and independent province, which is hereby
created, to be known as the Province of Shariff Kabunsuan.

xxxx

Sec. 5. The corporate existence of this province shall commence

upon the appointment by the Regional Governor or election of the
governor and majority of the regular members of the Sangguniang
Panlalawigan.

5
The provision reads:

SECTION 19. Creation, Division or Abolition of Provinces,

Cities, Municipalities or Barangay. — The Regional Assembly may
create, divide, merge, abolish, or substantially alter boundaries of
provinces, cities, municipalities, or barangay in accordance with the
criteria laid down by Republic Act No. 7160, the Local Government Code
of 1991, subject to the approval by a majority of the votes cast in a
plebiscite in the political units directly affected. The Regional Assembly
may prescribe standards lower than those mandated by Republic Act
No. 7160, the Local Government Code of 1991, in the creation,
division, merger, abolition, or alteration of the boundaries of provinces,
cities, municipalities, or barangay. Provinces, cities, municipalities, or
barangay created, divided, merged, or whose boundaries are altered
without observing the standards prescribed by Republic Act No. 7160, the
Local Government Code of 1991, shall not be entitled to any share of the
taxes that are allotted to the local governments units under the provisions
of the Code.
The financial requirements of the provinces, cities, municipalities,
or barangay so created, divided, or merged shall be provided by the
Regional Assembly out of the general funds of the Regional Government.
The holding of a plebiscite to determine the will of the majority of
the voters of the areas affected by the creation, division, merger, or whose
boundaries are being altered as required by Republic Act No. 7160, the
Local Government Code of 1991, shall, however, be observed.
The Regional Assembly may also change the names of local
government units, public places and institutions, and declare regional
holidays. (Emphasis supplied)

Before the enactment of RA 9054, the power to create provinces, cities, municipalities,
and barangays was vested in Congress (for provinces, cities and municipalities) and in the
sangguniang panlalawigan and sangguniang panlungsod (for barangays). (See Sections 384, 448,
and 460 of Republic Act No. 7160 or the Local Government Code of 1991.)
Decision 4 G.R. Nos. 177597 & 178628

The incumbent elective provincial officials of the Province of

Maguindanao shall continue to serve their unexpired terms in the province
that they will choose or where they are residents: Provided, that where an
elective position in both provinces becomes vacant as a consequence of
the creation of the Province of Shariff Kabunsuan, all incumbent elective
provincial officials shall have preference for appointment to a higher
elective vacant position and for the time being be appointed by the
Regional Governor, and shall hold office until their successors shall have
been elected and qualified in the next local elections; Provided, further,
that they shall continue to receive the salaries they are receiving at the
time of the approval of this Act until the new readjustment of salaries in
accordance with law. Provided, furthermore, that there shall be no
diminution in the number of the members of the Sangguniang
Panlalawigan of the mother province.

Except as may be provided by national law, the existing legislative

district, which includes Cotabato as a part thereof, shall remain.

Later, three new municipalities6 were carved out of the original nine
municipalities constituting Shariff Kabunsuan, bringing its total number of
municipalities to 11. Thus, what was left of Maguindanao were the
municipalities constituting its second legislative district. Cotabato City,
although part of Maguindanao’s first legislative district, is not part of the
Province of Maguindanao.

The voters of Maguindanao ratified Shariff Kabunsuan’s creation in a

plebiscite held on 29 October 2006.

On 6 February 2007, the Sangguniang Panlungsod of Cotabato City

passed Resolution No. 3999 requesting the COMELEC to “clarify the status
of Cotabato City in view of the conversion of the First District of
Maguindanao into a regular province” under MMA Act 201.

In answer to Cotabato City’s query, the COMELEC issued Resolution

No. 07-0407 on 6 March 2007 "maintaining the status quo with Cotabato
6
Sultan Mastura (created from Sultan Kudarat), Northern Kabuntulan (created from Kabuntulan)
and Datu Blah Sinsuat (created from Upi).
Decision 5 G.R. Nos. 177597 & 178628

City as part of Shariff Kabunsuan in the First Legislative District of

Maguindanao.” Resolution No. 07-0407, which adopted the
recommendation of the COMELEC’s Law Department under a
Memorandum dated 27 February 2007,7 provides in pertinent parts:

Considering the foregoing, the Commission RESOLVED, as it

hereby resolves, to adopt the recommendation of the Law Department that
pending the enactment of the appropriate law by Congress, to maintain
the status quo with Cotabato City as part of Shariff Kabunsuan in the First
Legislative District of Maguindanao. (Emphasis supplied)

However, in preparation for the 14 May 2007 elections, the

COMELEC promulgated on 29 March 2007 Resolution No. 7845 stating

7
The Memorandum reads in pertinent parts:

The record shows the former province of Maguindanao was divided into two
new provinces (Shariff Kabunsuan and Maguindanao), in view of Muslim Mindanao
Autonomy Act (MMAA) No. 201, which authority was conferred to under Section 17,
Article VI of Republic Act No. 9054 giving the ARMM, thru its Regional Legislative
Assembly, the power to legislate laws including the enactment of the Local Government
Code of ARMM.

The newly created province of Shariff Kabunsuan comprises the municipalities

of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat,
Sultan Mastura, Upi and Datu Blah, including Cotabato City [which] belongs to the first
district of Maguindanao province.

It must be emphasized that Cotabato City is not included as part of ARMM

although geographically located within the first district of the former Maguindanao
province. Cotabato City is not voting for provincial officials. This is the reason why
Cotabato City was not specifically mentioned as part of the newly created province of
Shariff Kabunsuan.

Geographically speaking since [sic] Cotabato City is located within the newly
created province of Shariff Kabunsuan having been bounded by municipalities of Sultan
Kudarat, Datu Odin Sinsuat and Kabuntalan as its nearest neighbors. Following the rule
in establishing legislative district, it shall comprise, as far as practicable, contiguous,
compact and adjacent territory.

However, legally speaking, it may arise question of legality [sic] if Cotabato

City will be appended as part of the newly created Shariff Kabunsuan province. Under
our Constitution [it is] only Congress that shall make a reapportionment of legislative
districts based on the standards provided for under Section 5(1) of Article VI.

xxxx

In order to avoid controversy on the matter, pending the enactment of

appropriate law by Congress, it would be prudent and logically feasible to maintain status
quo with Cotabato City as part of Shariff Kabunsuan in the first district of Maguindanao.
Decision 6 G.R. Nos. 177597 & 178628

that Maguindanao’s first legislative district is composed only of Cotabato

City because of the enactment of MMA Act 201.8

On 10 May 2007, the COMELEC issued Resolution No. 7902, subject

of these petitions, amending Resolution No. 07-0407 by renaming the
legislative district in question as “Shariff Kabunsuan Province with Cotabato
City (formerly First District of Maguindanao with Cotabato City).”9
8
Resolution No. 7845 pertinently provides:

WHEREAS, the Province of Maguindanao consists of two legislative

districts, with Cotabato City as part of the first legislative district.

WHEREAS, Muslim Mindanao Autonomy Act No. 201 provided for

the creation of the new Province of Shariff Kabunsuan comprising the
municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog,
Parang, Sultan Kudarat, Sultan Mastura and Upi, all of the first legislative
district of the mother Province of Maguindanao, except Cotabato City which is
not part of the Autonomous Region in Muslim Mindanao; while the remaining
municipalities of Talisay, Talayan, Guindulungan, Datu Saudi Ampatuan, Datu
Piang, Shariff Aguak, Datu Unsay, Mamasapano, South Upi, Ampatuan, Datu
Abdullah Sangki, Buluan, Datu Paglas, Gen. S. K. Pendatun, Sultan Sa
Barongis, Rajah Buayan, Pagalungan, Pagagawan, and Paglat, all of the second
legislative district of the mother Province of Maguindanao, shall remain with
said province;

WHEREAS, the last paragraph of Section 5 of Muslim Mindanao

Autonomy (MMA) Act No. 201 provides that “(e)xcept as may be provided by
national law, the existing legislative district, which includes Cotabato City as a
part thereof, shall remain.”;

WHEREAS, by reason of said provision of MMA Act No. 201, the

first legislative district of the Province of Maguindanao is now made up of
Cotabato City only, and its second legislative district, the municipalities of
Talisay, Talayan, Guindulungan, Datu Saudi Ampatuan, Datu Piang,
Shariff Aguak, Datu Unsay, Mamasapano, South Upi, Ampatuan, Datu
Abdullah Sangki, Buluan, Datu Paglas, Gen. S. K. Pendatun, Sultan Sa
Barongis, Rajah Buayan, Pagalungan, Pagagawan, and Paglat[.] (Emphasis
supplied)

In the earlier Resolution No. 7801, dated 11 January 2007, the COMELEC allocated one
legislative seat each for the provinces of Maguindanao and Shariff Kabunsuan for the 14 May
2007 elections.
9
Resolution No. 7902 reads in full:

This pertains to the amendment of Minute Resolution No. 07-0407 dated

March 6, 2007, entitled, “IN THE MATTER OF THE MEMORANDUM OF ATTY.
WYNNE B. ASDALA, ACTING DIRECTOR III, LAW DEPARTMENT, RELATIVE
TO THE STUDY/RECOMMENDATION OF SAID DEPARTMENT RE:
CONVERSION OF THE FIRST DISTRICT OF MAGUINDANAO INTO A REGULAR
PROVINCE PER MINUTE RESOLUTION NO. 07-0297 DATED FEBRUARY 20,
2007”. The dispositive portion of which reads:
Decision 7 G.R. Nos. 177597 & 178628

In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007
elections for Representative of “Shariff Kabunsuan with Cotabato City,”
prayed for the nullification of COMELEC Resolution No. 7902 and the
exclusion from canvassing of the votes cast in Cotabato City for that office.
Sema contended that Shariff Kabunsuan is entitled to one representative in
Congress under Section 5 (3), Article VI of the Constitution 10 and Section 3
of the Ordinance appended to the Constitution. 11 Thus, Sema asserted that
the COMELEC acted without or in excess of its jurisdiction in issuing
Resolution No. 7902 which maintained the status quo in Maguindanao’s first
legislative district despite the COMELEC’s earlier directive in Resolution
No. 7845 designating Cotabato City as the lone component of
Maguindanao’s reapportioned first legislative district.12 Sema further

“Considering the foregoing, the Commission RESOLVED, as

it hereby RESOLVES, to adopt the recommendation of the Law
Department that pending the enactment of the appropriate law by
Congress, to maintain status quo with Cotabato City as part of Shariff
Kabunsuan in the First District of Maguindanao.”

The Commission RESOLVED, as it hereby RESOLVES, to amend the pertinent

portion of Minute Resolution No. 07-0407 to now read, as follows[:]

[“]Considering the foregoing, the Commission RESOLVED, as it

hereby RESOLVES, that the district shall be known as Shariff
Kabunsuan Province with Cotabato City (formerly First District of
Maguindanao with Cotabato City).”

Let the Executive Director advise the Sangguniang Panlalawigan of Cotabato

City accordingly. (Emphasis in the original)
10
“Each legislative district shall comprise, as far as practicable, contiguous, 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.”
11
“Any province that may hereafter be created, or any city whose population may hereafter increase
to more than two hundred fifty thousand shall be entitled in the immediately following election to
at least one Member or such number of Members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of
Article VI of the Constitution. The number of Members apportioned to the province out of which
such new province was created or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission on Elections but
such adjustment shall not be made within one hundred and twenty days before the election.”
12
Consistent with her claim that Cotabato City is not part of Shariff Kabunsuan’s legislative district,
petitioner filed with the COMELEC a petition for the disqualification of respondent Dilangalen as
candidate for representative of that province (docketed as SPA No. A07-0).
Decision 8 G.R. Nos. 177597 & 178628

claimed that in issuing Resolution No. 7902, the COMELEC usurped

Congress’ power to create or reapportion legislative districts.

In its Comment, the COMELEC, through the Office of the Solicitor

General (OSG), chose not to reach the merits of the case and merely
contended that (1) Sema wrongly availed of the writ of certiorari to nullify
COMELEC Resolution No. 7902 because the COMELEC issued the same in
the exercise of its administrative, not quasi-judicial, power and (2) Sema’s
prayer for the writ of prohibition in G.R. No. 177597 became moot with the
proclamation of respondent Didagen P. Dilangalen (respondent Dilangalen)
on 1 June 2007 as representative of the legislative district of Shariff
Kabunsuan Province with Cotabato City.

In his Comment, respondent Dilangalen countered that Sema is

estopped from questioning COMELEC Resolution No. 7902 because in her
certificate of candidacy filed on 29 March 2007, Sema indicated that she was
seeking election as representative of “Shariff Kabunsuan including Cotabato
City.” Respondent Dilangalen added that COMELEC Resolution No. 7902
is constitutional because it did not apportion a legislative district for Shariff
Kabunsuan or reapportion the legislative districts in Maguindanao but
merely renamed Maguindanao’s first legislative district. Respondent
Dilangalen further claimed that the COMELEC could not reapportion
Maguindanao’s first legislative district to make Cotabato City its sole
component unit as the power to reapportion legislative districts lies
exclusively with Congress, not to mention that Cotabato City does not meet
the minimum population requirement under Section 5 (3), Article VI of the
Constitution for the creation of a legislative district within a city.13
13
Respondent Dilangalen asserts, and petitioner does not dispute, that as of 2000, Cotabato City had
a population of 163,849, falling short of the minimum population requirement in Section 5 (3),
Article VI of the Constitution which provides: “Each legislative district shall comprise, as far as
practicable, contiguous, compact, and adjacent territory. Each city with a population of at least
 Decision 9 G.R. Nos. 177597 & 178628

Sema filed a Consolidated Reply controverting the matters raised in

respondents’ Comments and reiterating her claim that the COMELEC acted
ultra vires in issuing Resolution No. 7902.

In the Resolution of 4 September 2007, the Court required the parties

in G.R. No. 177597 to comment on the issue of whether a province created
by the ARMM Regional Assembly under Section 19, Article VI of RA 9054
is entitled to one representative in the House of Representatives without
need of a national law creating a legislative district for such new province.
The parties submitted their compliance as follows:

(1) Sema answered the issue in the affirmative on the following

grounds: (a) the Court in Felwa v. Salas14 stated that “when a province is
created by statute, the corresponding representative district comes into
existence neither by authority of that statute — which cannot provide
otherwise — nor by apportionment, but by operation of the Constitution,
without a reapportionment”; (b) Section 462 of Republic Act No. 7160 (RA
7160) “affirms” the apportionment of a legislative district incident to the
creation of a province; and (c) Section 5 (3), Article VI of the Constitution
and Section 3 of the Ordinance appended to the Constitution mandate the
apportionment of a legislative district in newly created provinces.

(2) The COMELEC, again represented by the OSG, apparently

abandoned its earlier stance on the propriety of issuing Resolution Nos. 07-
0407 and 7902 and joined causes with Sema, contending that Section 5 (3),
Article VI of the Constitution is “self-executing.” Thus, every new province
created by the ARMM Regional Assembly is ipso facto entitled to one
two hundred fifty thousand, or each province, shall have at least one representative.”
(Emphasis supplied)
14
124 Phil. 1226 (1966).
Decision 10 G.R. Nos. 177597 & 178628

representative in the House of Representatives even in the absence of a

national law; and

(3) Respondent Dilangalen answered the issue in the negative on the

following grounds: (a) the “province” contemplated in Section 5 (3), Article
VI of the Constitution is one that is created by an act of Congress taking into
account the provisions in RA 7160 on the creation of provinces; (b) Section
3, Article IV of RA 9054 withheld from the ARMM Regional Assembly the
power to enact measures relating to national elections, which encompasses
the apportionment of legislative districts for members of the House of
Representatives; (c) recognizing a legislative district in every province the
ARMM Regional Assembly creates will lead to the disproportionate
representation of the ARMM in the House of Representatives as the
Regional Assembly can create provinces without regard to the requirements
in Section 461 of RA 7160; and (d) Cotabato City, which has a population of
less than 250,000, is not entitled to a representative in the House of
Representatives.

On 27 November 2007, the Court heard the parties in G.R.

No. 177597 in oral arguments on the following issues: (1) whether Section
19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the
power to create provinces, is constitutional; and (2) if in the affirmative,
whether a province created under Section 19, Article VI of RA 9054 is
entitled to one representative in the House of Representatives without need
of a national law creating a legislative district for such new province.15

In compliance with the Resolution dated 27 November 2007, the

parties in G.R. No. 177597 filed their respective Memoranda on the issues
15
As provided in the Resolution of 16 October 2007.
Decision 11 G.R. Nos. 177597 & 178628

raised in the oral arguments.16 On the question of the constitutionality of

Section 19, Article VI of RA 9054, the parties in G.R. No. 177597 adopted
the following positions:

(1) Sema contended that Section 19, Article VI of RA 9054 is

constitutional (a) as a valid delegation by Congress to the ARMM of the
power to create provinces under Section 20 (9), Article X of the Constitution
granting to the autonomous regions, through their organic acts, legislative
powers over “other matters as may be authorized by law for the promotion
of the general welfare of the people of the region” and (b) as an amendment
to Section 6 of RA 7160.17 However, Sema concedes that, if taken literally,
the grant in Section 19, Article VI of RA 9054 to the ARMM Regional
Assembly of the power to “prescribe standards lower than those mandated”
in RA 7160 in the creation of provinces contravenes Section 10, Article X of
the Constitution.18 Thus, Sema proposed that Section 19 “should be
construed as prohibiting the Regional Assembly from prescribing standards
x x x that do not comply with the minimum criteria” under RA 7160.19

(2) Respondent Dilangalen contended that Section 19, Article VI of

RA 9054 is unconstitutional on the following grounds: (a) the power to
create provinces was not among those granted to the autonomous regions
16
The Court also required Sema to submit with her Memorandum the certifications from the
Department of Finance, the Lands Management Bureau, the National Statistics Office, and the
Department of Interior and Local Government that at the time of the creation of Shariff
Kabunsuan on 28 August 2006 it met the requisites for the creation of a province under Section
461 of RA 7160.
17
“SEC. 6. Authority to Create Local Government Units. - A local government unit may be created,
divided, merged, abolished, or its boundaries substantially altered either by law enacted by
Congress in the case of a province, city or municipality, or any other political subdivision, or by
ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the
case of a barangay located within its territorial jurisdiction, subject to such limitations and
requirements prescribed in this Code.”
18
“SECTION 10. 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 units directly affected.”
19
Rollo, p. 229.
Decision 12 G.R. Nos. 177597 & 178628

under Section 20, Article X of the Constitution and (b) the grant under
Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the
power to prescribe standards lower than those mandated in Section 461 of
RA 7160 on the creation of provinces contravenes Section 10, Article X of
the Constitution and the Equal Protection Clause; and

(3) The COMELEC, through the OSG, joined causes with respondent
Dilangalen (thus effectively abandoning the position the COMELEC
adopted in its Compliance with the Resolution of 4 September 2007) and
contended that Section 19, Article VI of RA 9054 is unconstitutional because
(a) it contravenes Section 10 and Section 6,20 Article X of the Constitution
and (b) the power to create provinces was withheld from the autonomous
regions under Section 20, Article X of the Constitution.

On the question of whether a province created under Section 19,

Article VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative district
for such new province, Sema and respondent Dilangalen reiterated in their
Memoranda the positions they adopted in their Compliance with the
Resolution of 4 September 2007. The COMELEC deemed it unnecessary to
submit its position on this issue considering its stance that Section 19,
Article VI of RA 9054 is unconstitutional.

The pendency of the petition in G.R. No. 178628 was disclosed

during the oral arguments on 27 November 2007. Thus, in the Resolution of
19 February 2008, the Court ordered G.R. No. 178628 consolidated with
G.R. No. 177597. The petition in G.R. No. 178628 echoed Sema's
contention that the COMELEC acted ultra vires in issuing Resolution No.
20
“SECTION 6. Local government units shall have a just share, as determined by law, in the national
taxes which shall be automatically released to them.”
Decision 13 G.R. Nos. 177597 & 178628

7902 depriving the voters of Cotabato City of a representative in the House

of Representatives. In its Comment to the petition in G.R. No.
178628, the COMELEC, through the OSG, maintained the validity of
COMELEC Resolution No. 7902 as a temporary measure pending the
enactment by Congress of the “appropriate law.”

The Issues

The petitions raise the following issues:

I. In G.R. No. 177597:

(A) Preliminarily –
(1) whether the writs of Certiorari, Prohibition, and Mandamus are
proper to test the constitutionality of COMELEC Resolution No. 7902; and
(2) whether the proclamation of respondent Dilangalen as
representative of Shariff Kabunsuan Province with Cotabato City mooted the
petition in G.R. No. 177597.

(B) On the merits –

(1) whether Section 19, Article VI of RA 9054, delegating to the
ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays, is constitutional; and
(2) if in the affirmative, whether a province created by the ARMM
Regional Assembly under MMA Act 201 pursuant to Section 19, Article VI
of RA 9054 is entitled to one representative in the House of Representatives
Decision 14 G.R. Nos. 177597 & 178628

without need of a national law creating a legislative district for such

province.

II. In G.R No. 177597 and G.R No. 178628, whether COMELEC
Resolution No. 7902 is valid for maintaining the status quo in the first
legislative district of Maguindanao (as “Shariff Kabunsuan Province with
Cotabato City [formerly First District of Maguindanao with Cotabato
City]”), despite the creation of the Province of Shariff Kabunsuan out of
such district (excluding Cotabato City).

The Ruling of the Court

The petitions have no merit. We rule that (1) Section 19, Article VI of
RA 9054 is unconstitutional insofar as it grants to the ARMM Regional
Assembly the power to create provinces and cities; (2) MMA Act 201
creating the Province of Shariff Kabunsuan is void; and (3) COMELEC
Resolution No. 7902 is valid.

On the Preliminary Matters

The Writ of Prohibition is Appropriate

to Test the Constitutionality of
Election Laws, Rules and Regulations

The purpose of the writ of Certiorari is to correct grave abuse of

discretion by “any tribunal, board, or officer exercising judicial or quasi-
Decision 15 G.R. Nos. 177597 & 178628

judicial functions.”21 On the other hand, the writ of Mandamus will issue to
compel a tribunal, corporation, board, officer, or person to perform an act
“which the law specifically enjoins as a duty.” 22 True, the COMELEC did
not issue Resolution No. 7902 in the exercise of its judicial or quasi-judicial
functions.23 Nor is there a law which specifically enjoins the COMELEC to
exclude from canvassing the votes cast in Cotabato City for representative of
“Shariff Kabunsuan Province with Cotabato City.” These, however, do not
justify the outright dismissal of the petition in G.R. No. 177597 because
Sema also prayed for the issuance of the writ of Prohibition and we have
long recognized this writ as proper for testing the constitutionality of
election laws, rules, and regulations.24

Respondent Dilangalen’s Proclamation

Does Not Moot the Petition

There is also no merit in the claim that respondent Dilangalen’s

proclamation as winner in the 14 May 2007 elections for representative of
“Shariff Kabunsuan Province with Cotabato City” mooted this petition. This
case does not concern respondent Dilangalen’s election. Rather, it involves
an inquiry into the validity of COMELEC Resolution No. 7902, as well as
the constitutionality of MMA Act 201 and Section 19, Article VI of RA
9054. Admittedly, the outcome of this petition, one way or another,
determines whether the votes cast in Cotabato City for representative of the
district of “Shariff Kabunsuan Province with Cotabato City” will be
included in the canvassing of ballots. However, this incidental consequence
21
Section 1, Rule 65 of the 1997 Rules of Civil Procedure.
22
Section 3, Rule 65 of the 1997 Rules of Civil Procedure.
23
See, however, Macabago v. Commission on Elections (440 Phil. 683 [2002]) where the Court held
that a petition for certiorari under Rule 65 will lie to question the constitutionality of an election
regulation if the COMELEC has acted capriciously or whimsically, with grave abuse of discretion
amounting to lack or excess of jurisdiction.
24
Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571 (2001); Mutuc v. Commission on
Elections, G.R. No. L-32717, 26 November 1970, 36 SCRA 228.
Decision 16 G.R. Nos. 177597 & 178628

is no reason for us not to proceed with the resolution of the novel issues
raised here. The Court’s ruling in these petitions affects not only the
recently concluded elections but also all the other succeeding elections for
the office in question, as well as the power of the ARMM Regional
Assembly to create in the future additional provinces.

On the Main Issues

Whether the ARMM Regional Assembly

Can Create the Province of Shariff Kabunsuan

The creation of local government units is governed by Section 10,

Article X of the Constitution, which provides:

Sec. 10. 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 units directly affected.

Thus, the creation of any of the four local government units – province, city,
municipality or barangay – must comply with three conditions. First, the
creation of a local government unit must follow the criteria fixed in the
Local Government Code. Second, such creation must not conflict with any
provision of the Constitution. Third, there must be a plebiscite in the
political units affected.

There is neither an express prohibition nor an express grant of

authority in the Constitution for Congress to delegate to regional or local
legislative bodies the power to create local government units. However,
under its plenary legislative powers, Congress can delegate to local
Decision 17 G.R. Nos. 177597 & 178628

legislative bodies the power to create local government units, subject to

reasonable standards and provided no conflict arises with any provision of
the Constitution. In fact, Congress has delegated to provincial boards, and
city and municipal councils, the power to create barangays within their
jurisdiction,25 subject to compliance with the criteria established in the Local
Government Code, and the plebiscite requirement in Section 10, Article X of
the Constitution. However, under the Local Government Code, “only x x x
an Act of Congress” can create provinces, cities or municipalities.26

Under Section 19, Article VI of RA 9054, Congress delegated to the

ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays within the ARMM. Congress made the
delegation under its plenary legislative powers because the power to create
local government units is not one of the express legislative powers granted
by the Constitution to regional legislative bodies. 27 In the present case, the
question arises whether the delegation to the ARMM Regional Assembly of
the power to create provinces, cities, municipalities and barangays conflicts
with any provision of the Constitution.

There is no provision in the Constitution that conflicts with the

delegation to regional legislative bodies of the power to create municipalities
and barangays, provided Section 10, Article X of the Constitution is
followed. However, the creation of provinces and cities is another matter.
Section 5 (3), Article VI of the Constitution provides, “Each city with a
population of at least two hundred fifty thousand, or each province, shall
have at least one representative” in the House of Representatives. Similarly,
Section 3 of the Ordinance appended to the Constitution provides, “Any

25
Sections 385 and 386, RA 7160.
26
Sections 441, 449 and 460, RA 7160.
27
Section 20, Article X, Constitution.
Decision 18 G.R. Nos. 177597 & 178628

province that may hereafter be created, or any city whose population may
hereafter increase to more than two hundred fifty thousand shall be entitled
in the immediately following election to at least one Member x x x.”

Clearly, a province cannot be created without a legislative district

because it will violate Section 5 (3), Article VI of the Constitution as well as
Section 3 of the Ordinance appended to the Constitution. For the same
reason, a city with a population of 250,000 or more cannot also be created
without a legislative district. Thus, the power to create a province, or a city
with a population of 250,000 or more, requires also the power to create a
legislative district. Even the creation of a city with a population of less than
250,000 involves the power to create a legislative district because once the
city’s population reaches 250,000, the city automatically becomes entitled to
one representative under Section 5 (3), Article VI of the Constitution and
Section 3 of the Ordinance appended to the Constitution. Thus, the power
to create a province or city inherently involves the power to create a
legislative district.

For Congress to delegate validly the power to create a province or

city, it must also validly delegate at the same time the power to create a
legislative district. The threshold issue then is, can Congress validly
delegate to the ARMM Regional Assembly the power to create legislative
districts for the House of Representatives? The answer is in the negative.

Legislative Districts are Created or Reapportioned

Only by an Act of Congress
Decision 19 G.R. Nos. 177597 & 178628

Under the present Constitution, as well as in past28 Constitutions, the

power to increase the allowable membership in the House of
Representatives, and to reapportion legislative districts, is vested exclusively
in Congress. Section 5, Article VI of the Constitution provides:

SECTION 5. (1) The House of Representatives shall be composed

of not more than two hundred and 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.

xxxx

(3) Each legislative district shall comprise, as far as practicable,

contiguous, 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. (Emphasis supplied)

Section 5 (1), Article VI of the Constitution vests in Congress the

power to increase, through a law, the allowable membership in the House of
Representatives. Section 5 (4) empowers Congress to reapportion legislative
districts. The power to reapportion legislative districts necessarily includes
the power to create legislative districts out of existing ones. Congress
exercises these powers through a law that Congress itself enacts, and not
through a law that regional or local legislative bodies enact. The allowable
membership of the House of Representatives can be increased, and new
legislative districts of Congress can be created, only through a national law
passed by Congress. In Montejo v. COMELEC,29 we held that the “power of
28
See Section 2, Article VIII of the 1973 Constitution and Section 5, Article VI of the 1935
Constitution.
29
312 Phil. 492, 501 (1995).
Decision 20 G.R. Nos. 177597 & 178628

redistricting x x x is traditionally regarded as part of the power (of Congress)

to make laws,” and thus is vested exclusively in Congress.

This textual commitment to Congress of the exclusive power to create

or reapportion legislative districts is logical. Congress is a national
legislature and any increase in its allowable membership or in its incumbent
membership through the creation of legislative districts must be embodied in
a national law. Only Congress can enact such a law. It would be anomalous
for regional or local legislative bodies to create or reapportion legislative
districts for a national legislature like Congress. An inferior legislative body,
created by a superior legislative body, cannot change the membership of the
superior legislative body.

The creation of the ARMM, and the grant of legislative powers to its
Regional Assembly under its organic act, did not divest Congress of its
exclusive authority to create legislative districts. This is clear from the
Constitution and the ARMM Organic Act, as amended. Thus, Section 20,
Article X of the Constitution provides:

SECTION 20. Within its territorial jurisdiction and subject to the

provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
Decision 21 G.R. Nos. 177597 & 178628

Nothing in Section 20, Article X of the Constitution authorizes

autonomous regions, expressly or impliedly, to create or reapportion
legislative districts for Congress.

On the other hand, Section 3, Article IV of RA 9054 amending the

ARMM Organic Act, provides, “The Regional Assembly may exercise
legislative power x x x except on the following matters: x x x (k)
National elections. x x x.” Since the ARMM Regional Assembly has no
legislative power to enact laws relating to national elections, it cannot create
a legislative district whose representative is elected in national elections.
Whenever Congress enacts a law creating a legislative district, the first
representative is always elected in the “next national elections” from the
effectivity of the law.30
Indeed, the office of a legislative district representative to Congress is
a national office, and its occupant, a Member of the House of

30
Section 48 of Republic Act No. 8507 (Charter of Parañaque City) provides:

Section 48. Legislative District. — As a highly-urbanized city, the City

of Parañaque shall have its own legislative district with the first representative to
be elected in the next national election after the passage of this Act. (Emphasis
supplied)

Section 50 of Republic Act No. 7839 (Charter of City of Pasig) provides:

Section 50. Legislative District. — As highly urbanized, the City of

Pasig shall have its own legislative district with the first representative to be
elected in the next national elections after the passage of this Act. (Emphasis
supplied)

Section 58 of Republic Act No. RA 9230 provides:

Section 58. Representative District. — The City of San Jose del Monte
shall have its own representative district to commence in the next national
election after the effectivity of this Act. (Emphasis supplied)

Section 7 of Republic Act No. 9355 provides:

Section 7. Legislative District. — The Province of Dinagat Islands shall

constitute one, separate legislative district to commence in the next national
election after the effectivity of this Act. (Emphasis supplied)
Decision 22 G.R. Nos. 177597 & 178628

Representatives, is a national official.31 It would be incongruous for a

regional legislative body like the ARMM Regional Assembly to create a
national office when its legislative powers extend only to its regional
territory. The office of a district representative is maintained by national
funds and the salary of its occupant is paid out of national funds. It is a self-
evident inherent limitation on the legislative powers of every local or
regional legislative body that it can only create local or regional offices,
respectively, and it can never create a national office.

To allow the ARMM Regional Assembly to create a national office is

to allow its legislative powers to operate outside the ARMM’s territorial
jurisdiction. This violates Section 20, Article X of the Constitution
which expressly limits the coverage of the Regional Assembly’s
legislative powers “[w]ithin its territorial jurisdiction x x x.”

31
In his Concurring Opinion in Paras v. Commission on Elections (332 Phil. 56, 66 [1996]), then
Associate Justice (later Chief Justice) Hilario G. Davide, Jr. stated:

The term “regular local election” must be confined to the regular election of
elective local officials, as distinguished from the regular election of national
officials. The elective national officials are the President, Vice-President,
Senators and Congressmen. The elective local officials are Provincial
Governors, Vice-Governors of provinces, Mayors and Vice-Mayors of cities and
municipalities, Members of the Sanggunians of provinces, cities and
municipalities, punong barangays and members of the sangguniang barangays,
and the elective regional officials of the Autonomous Region of Muslim
Mindanao. These are the only local elective officials deemed recognized by
Section 2(2) of Article IX-C of the Constitution, which provides:

SEC. 2. The Commission on Elections shall exercise the following powers and
functions:
xxxx
(2) Exercise exclusive original jurisdiction over all
contests relating to the elections, returns, and qualifications of
all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general
jurisdiction, or involving elective barangay officials decided
by trial courts of limited jurisdiction. (Emphasis supplied)
Decision 23 G.R. Nos. 177597 & 178628

The ARMM Regional Assembly itself, in creating Shariff Kabunsuan,

recognized the exclusive nature of Congress’ power to create or reapportion
legislative districts by abstaining from creating a legislative district for
Shariff Kabunsuan. Section 5 of MMA Act 201 provides that:

Except as may be provided by national law, the existing

legislative district, which includes Cotabato City as a part thereof, shall
remain. (Emphasis supplied)

However, a province cannot legally be created without a legislative district

because the Constitution mandates that “each province shall have at least
one representative.” Thus, the creation of the Province of Shariff
Kabunsuan without a legislative district is unconstitutional.

Sema, petitioner in G.R. No. 177597, contends that Section 5 (3),

Article VI of the Constitution, which provides:

Each legislative district shall comprise, as far as practicable,

contiguous, 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. (Emphasis supplied)

and Section 3 of the Ordinance appended to the Constitution, which states:

Any province that may hereafter be created, or any city whose

population may hereafter increase to more than two hundred fifty
thousand shall be entitled in the immediately following election to at
least one Member or such number of Members as it may be entitled to
on the basis of the number of its inhabitants and according to the
standards set forth in paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to the province out of
which such new province was created or where the city, whose population
has so increased, is geographically located shall be correspondingly
adjusted by the Commission on Elections but such adjustment shall not be
made within one hundred and twenty days before the election. (Emphasis
supplied)

serve as bases for the conclusion that the Province of Shariff Kabunsuan,
created on 29 October 2006, is automatically entitled to one member in the
Decision 24 G.R. Nos. 177597 & 178628

House of Representatives in the 14 May 2007 elections. As further support

for her stance, petitioner invokes the statement in Felwa that “when a
province is created by statute, the corresponding representative district
comes into existence neither by authority of that statute — which cannot
provide otherwise — nor by apportionment, but by operation of the
Constitution, without a reapportionment.”

The contention has no merit.

First. The issue in Felwa, among others, was whether Republic Act
No. 4695 (RA 4695), creating the provinces of Benguet, Mountain Province,
Ifugao, and Kalinga-Apayao and providing for congressional representation
in the old and new provinces, was unconstitutional for “creating
congressional districts without the apportionment provided in the
Constitution.” The Court answered in the negative, thus:

The Constitution ordains:

“The House of Representatives shall be composed of not

more than one hundred and twenty Members who shall be
apportioned among the several provinces as nearly as may
be according to the number of their respective inhabitants,
but each province shall have at least one Member. The
Congress shall by law make an apportionment within three
years after the return of every enumeration, and not
otherwise. Until such apportionment shall have been made,
the House of Representatives shall have the same number
of Members as that fixed by law for the National Assembly,
who shall be elected by the qualified electors from the
present Assembly districts. Each representative district
shall comprise as far as practicable, contiguous and
compact territory.”
Pursuant to this Section, a representative district may come
into existence: (a) indirectly, through the creation of a province — for
“each province shall have at least one member” in the House of
Representatives; or (b) by direct creation of several representative
districts within a province. The requirements concerning the
apportionment of representative districts and the territory thereof refer
only to the second method of creation of representative districts, and do
not apply to those incidental to the creation of provinces, under the first
Decision 25 G.R. Nos. 177597 & 178628

method. This is deducible, not only from the general tenor of the provision
above quoted, but, also, from the fact that the apportionment therein
alluded to refers to that which is made by an Act of Congress. Indeed,
when a province is created by statute, the corresponding
representative district, comes into existence neither by authority of
that statute — which cannot provide otherwise — nor by
apportionment, but by operation of the Constitution, without a
reapportionment.

There is no constitutional limitation as to the time when, territory

of, or other conditions under which a province may be created, except,
perhaps, if the consequence thereof were to exceed the maximum of 120
representative districts prescribed in the Constitution, which is not the
effect of the legislation under consideration. As a matter of fact, provinces
have been created or subdivided into other provinces, with the consequent
creation of additional representative districts, without complying with the
aforementioned requirements.32 (Emphasis supplied)

Thus, the Court sustained the constitutionality of RA 4695 because

(1) it validly created legislative districts “indirectly” through a special law
enacted by Congress creating a province and (2) the creation of the
legislative districts will not result in breaching the maximum number of
legislative districts provided under the 1935 Constitution. Felwa does not
apply to the present case because in Felwa the new provinces were created
by a national law enacted by Congress itself. Here, the new province was
created merely by a regional law enacted by the ARMM Regional
Assembly.

What Felwa teaches is that the creation of a legislative district by

Congress does not emanate alone from Congress’ power to reapportion
legislative districts, but also from Congress’ power to create provinces which
cannot be created without a legislative district. Thus, when a province is
created, a legislative district is created by operation of the Constitution
because the Constitution provides that “each province shall have at least
one representative” in the House of Representatives. This does not detract
32
Supra note 13 at 1235-1236.
Decision 26 G.R. Nos. 177597 & 178628

from the constitutional principle that the power to create legislative districts
belongs exclusively to Congress. It merely prevents any other legislative
body, except Congress, from creating provinces because for a legislative
body to create a province such legislative body must have the power to
create legislative districts. In short, only an act of Congress can trigger the
creation of a legislative district by operation of the Constitution. Thus, only
Congress has the power to create, or trigger the creation of, a legislative
district.

Moreover, if as Sema claims MMA Act 201 apportioned a legislative

district to Shariff Kabunsuan upon its creation, this will leave Cotabato City
as the lone component of the first legislative district of Maguindanao.
However, Cotabato City cannot constitute a legislative district by itself
because as of the census taken in 2000, it had a population of only 163,849.
To constitute Cotabato City alone as the surviving first legislative district of
Maguindanao will violate Section 5 (3), Article VI of the Constitution which
requires that “[E]ach city with a population of at least two hundred fifty
thousand x x x, shall have at least one representative.”

Second. Sema’s theory also undermines the composition and

independence of the House of Representatives. Under Section 19,33 Article
VI of RA 9054, the ARMM Regional Assembly can create provinces and
cities within the ARMM with or without regard to the criteria fixed in
Section 461 of RA 7160, namely: minimum annual income of P20,000,000,
and minimum contiguous territory of 2,000 square kilometers or minimum

33
See note 3.
Decision 27 G.R. Nos. 177597 & 178628

population of 250,000.34 The following scenarios thus become distinct

possibilities:

(1) An inferior legislative body like the ARMM Regional

Assembly can create 100 or more provinces and thus increase
the membership of a superior legislative body, the House of
Representatives, beyond the maximum limit of 250 fixed in the
Constitution (unless a national law provides otherwise);

(2) The proportional representation in the House of

Representatives based on one representative for at least every
250,000 residents will be negated because the ARMM Regional
Assembly need not comply with the requirement in Section
461(a)(ii) of RA 7160 that every province created must have a
population of at least 250,000; and

(3) Representatives from the ARMM provinces can

become the majority in the House of Representatives through
the ARMM Regional Assembly’s continuous creation of
provinces or cities within the ARMM.

The following exchange during the oral arguments of the petition in

G.R. No. 177597 highlights the absurdity of Sema’s position that the ARMM
Regional Assembly can create provinces:

Justice Carpio:
So, you mean to say [a] Local Government can create legislative
district[s] and pack Congress with their own representatives [?]

34
Section 461 provides: “Requisites for Creation. — (a) A province may be created if it has an
average annual income, as certified by the Department of Finance, of not less than Twenty million
pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers, as
certified by the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office: Provided, That, the creation
thereof shall not reduce the land area, population, and income of the original unit or units
at the time of said creation to less than the minimum requirements prescribed herein.
(b) The territory need not be contiguous if it comprise two (2) or more islands or
is separated by a chartered city or cities which do not contribute to the income of the
province.
(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, trust funds, transfers and non-recurring income.”
Decision 28 G.R. Nos. 177597 & 178628

Atty. Vistan II:35

Yes, Your Honor, because the Constitution allows that.
Justice Carpio:
So, [the] Regional Assembly of [the] ARMM can create and create
x x x provinces x x x and, therefore, they can have thirty-five (35)
new representatives in the House of Representatives without
Congress agreeing to it, is that what you are saying? That can be
done, under your theory[?]

Atty. Vistan II:

Yes, Your Honor, under the correct factual circumstances.

Justice Carpio:
Under your theory, the ARMM legislature can create thirty-five
(35) new provinces, there may be x x x [only] one hundred
thousand (100,000) [population], x x x, and they will each have
one representative x x x to Congress without any national law, is
that what you are saying?

Atty. Vistan II:

Without law passed by Congress, yes, Your Honor, that is what we

are saying.

xxxx
Justice Carpio:
So, they can also create one thousand (1000) new provinces,
sen[d] one thousand (1000) representatives to the House of
Representatives without a national law[,] that is legally
possible, correct?

Atty. Vistan II:

Yes, Your Honor.36 (Emphasis supplied)

Neither the framers of the 1987 Constitution in adopting the

provisions in Article X on regional autonomy, 37 nor Congress in enacting RA
35
Atty. Edgardo Carlos B. Vistan II, counsel for petitioner in G.R. No. 177597.
36
TSN (27 November 2007), pp. 64-69.
37
Unlike the 1935 and the 1973 Constitutions, the 1987 Constitution mandates, in Section 15,
Article X, the creation of autonomous regions in the Cordilleras and Muslim Mindanao to foster
political autonomy. See Cordillera Broad Coalition v. Commission on Audit, G.R. No. 79956, 29
January 1990, 181 SCRA 495.
Decision 29 G.R. Nos. 177597 & 178628

9054, envisioned or intended these disastrous consequences that certainly

would wreck the tri-branch system of government under our Constitution.
Clearly, the power to create or reapportion legislative districts cannot be
delegated by Congress but must be exercised by Congress itself. Even the
ARMM Regional Assembly recognizes this.

The Constitution empowered Congress to create or reapportion

legislative districts, not the regional assemblies. Section 3 of the Ordinance
to the Constitution which states, “[A]ny province that may hereafter be
created x x x shall be entitled in the immediately following election to at
least one Member,” refers to a province created by Congress itself through a
national law. The reason is that the creation of a province increases the
actual membership of the House of Representatives, an increase that only
Congress can decide. Incidentally, in the present 14 th Congress, there are
21938 district representatives out of the maximum 250 seats in the House of
Representatives. Since party-list members shall constitute 20 percent of
total membership of the House, there should at least be 50 party-list seats
available in every election in case 50 party-list candidates are proclaimed
winners. This leaves only 200 seats for district representatives, much less
than the 219 incumbent district representatives. Thus, there is a need now
for Congress to increase by law the allowable membership of the House,
even before Congress can create new provinces.

It is axiomatic that organic acts of autonomous regions cannot prevail

over the Constitution. Section 20, Article X of the Constitution expressly
provides that the legislative powers of regional assemblies are limited
38
Website of House of Representatives as of 12 May 2008.
Decision 30 G.R. Nos. 177597 & 178628

“[w]ithin its territorial jurisdiction and subject to the provisions of the

Constitution and national laws, x x x.” The Preamble of the ARMM
Organic Act (RA 9054) itself states that the ARMM Government is
established “within the framework of the Constitution.” This follows
Section 15, Article X of the Constitution which mandates that the ARMM
“shall be created x x x within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the
Philippines.”

The present case involves the creation of a local government unit that
necessarily involves also the creation of a legislative district. The Court will
not pass upon the constitutionality of the creation of municipalities and
barangays that does not comply with the criteria established in Section 461
of RA 7160, as mandated in Section 10, Article X of the Constitution,
because the creation of such municipalities and barangays does not involve
the creation of legislative districts. We leave the resolution of this issue to
an appropriate case.

In summary, we rule that Section 19, Article VI of RA 9054, insofar as

it grants to the ARMM Regional Assembly the power to create provinces
and cities, is void for being contrary to Section 5 of Article VI and Section
20 of Article X of the Constitution, as well as Section 3 of the Ordinance
appended to the Constitution. Only Congress can create provinces and
cities because the creation of provinces and cities necessarily includes the
creation of legislative districts, a power only Congress can exercise under
Section 5, Article VI of the Constitution and Section 3 of the Ordinance
appended to the Constitution. The ARMM Regional Assembly cannot create
a province without a legislative district because the Constitution mandates
that every province shall have a legislative district. Moreover, the ARMM
Decision 31 G.R. Nos. 177597 & 178628

Regional Assembly cannot enact a law creating a national office like the
office of a district representative of Congress because the legislative powers
of the ARMM Regional Assembly operate only within its territorial
jurisdiction as provided in Section 20, Article X of the Constitution. Thus,
we rule that MMA Act 201, enacted by the ARMM Regional Assembly and
creating the Province of Shariff Kabunsuan, is void.

Resolution No. 7902 Complies with the Constitution

Consequently, we hold that COMELEC Resolution No. 7902,

preserving the geographic and legislative district of the First District of
Maguindanao with Cotabato City, is valid as it merely complies with Section
5 of Article VI and Section 20 of Article X of the Constitution, as well as
Section 1 of the Ordinance appended to the Constitution.

WHEREFORE, we declare Section 19, Article VI of Republic Act

No. 9054 UNCONSTITUTIONAL insofar as it grants to the Regional
Assembly of the Autonomous Region in Muslim Mindanao the power to
create provinces and cities. Thus, we declare VOID Muslim Mindanao
Autonomy Act No. 201 creating the Province of Shariff Kabunsuan.
Consequently, we rule that COMELEC Resolution No. 7902 is VALID.

Let a copy of this ruling be served on the President of the Senate and
the Speaker of the House of Representatives.

SO ORDERED.
 Decision 32 G.R. Nos. 177597 & 178628

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice
 Decision 33 G.R. Nos. 177597 & 178628

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that

the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice