SEMA v.

COMELEC
G.R. No. 177597 &
July 16, 2008
J. Carpio
178628
petitioners Bai Sandra A. Sema; Perfecto F. Marquez
responden COMELEC and Didagen P. Dilangalen; COMELEC

Cadorna

ts
summary RA 9054 was passed as an amendment to the Organic Act creating ARMM.

Under RA 9054, the regional legislative assembly of ARMM was given the
power to create provinces, cities, municipalities and barangays. Thus, the
assembly passed an enactment in which it created a new province. Along with
Cotabato City, the constituent municipalities of this new province form part of
the original first district of Maguindanao. However, COMELEC, in a resolution,
did not consider the new province as forming a separate legislative district.
Thus, its resolution merely renamed the first district as that consisting of the
new province with Cotabato City.
This case examines the validity of RA 9054, insofar as it grants the regional
assembly the power to create a province, and consequently, of MMA 201,
which the regional assembly enacted to create a new province pursuant to RA
9054. Also, the COMELEC resolution maintaining the original constitution of the
first district of Maguindanao, and merely renaming it to include the name of
the new province created by MMA 201, is being assailed.
The SC held that RA 9054, insofar as it grants the power to create a province,
and its resulting law, MMA 201, are invalid because the creation of a province
requires the creation of a legislative district, and under the Constitution only
Congress, and not any regional legislative body, can
create/apportion/reapportion a legislative district. Meanwhile, the COMELEC
resolution was upheld as it merely maintains the status quo, which does not
allot any new representative to the invalidly-created new province but merely
maintains the constitution of the original first district.

facts of the case

The Province of Maguindanao originally had two legislative districts, the first of which
consists of Cotabato City and eight municipalities. Said province, by virtue of RA 6734, formed
part of the ARMM. However, Cotabato City, which is within the province of Maguindanao, does
not belong to the ARMM because it voted against inclusion thereto in the plebiscite held in
November 1989.
RA 9054 was passed, giving ARMMs legislature, the ARMM Regional Assembly
(ARA), power to create provinces. Pursuant to this, ARA enacted the Muslim Mindanao
Autonomy Act No. 201 (MMA 201), in which it created the Province of Shariff
Kabunsuan (SK).
The eight constituent municipalities of SK are the same municipalities forming the first district
of Maguindanao, together with Cotabato City1. According to MMA 201, the existing legislative
district, which includes Cotabato as part thereof, shall remain, unless provided otherwise by
national law.

1 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.

Later on, SK had a total of 11 constituent municipalities. Its creation was ratified by the voters
of Maguindanao in a plebiscite.
In preparation for the May 2007 elections, COMELEC issued three resolutions regarding the
above developments:
1. Resolution 07-0407: Maintain status quo with Cotabato City as part of SK in the First
Legislative District of Maguindanao, pending the enactment of the appropriate law by
Congress.
2. Resolution 7845: Because of the creation of SK, the first legislative district of
Maguindanao is now only composed of Cotabato City. Meanwhile, SK constitutes a
separate legislative district.
3. Resolution 7902: JOKE LANG YUNG 7845! Maintain status quo, but lets rename the first
legislative district as SK with Cotabato City.
The two present petitions were initiated after the issuance of the last resolution.
In G.R. No. 177597, Sema, a candidate for representative of SK with Cotabato City district,
wanted to have 7902 nullified, because she subscribed to the tenor of 7845 that upon the
creation of the new province, SK, Cotabato City became the lone constituent of the
first legislative district of Maguindanao. Ergo, she claims that votes for Cotabato City
should be separated from the SK district, because Cotabato City and SK should each
have one representative, pursuant to the ruling in Felwa v. Salas that upon the creation of a
province by statute, the corresponding representative district comes by operation of the
Constitution. Further, Sema argues that 7902 constitutes an act of usurpation by the COMELEC of
the Congress power to apportion/reapportion a legislative district. (A/N: Trivia lang that I found
online, kaya daw ganito yung position ni Sema kasi daw maraming boboto kay Dilangalen from
Cotabato so matatalo si Sema if isali yung Cotabato votes; in fact Dilangalen won)
In G.R. No. 178628, Marquez echoed Sema's contention that the COMELEC acted ultra vires in
issuing Resolution 7902, as it deprived the voters of Cotabato City of a representative in the
House of Representatives (HOR).

issue

1. WON RA 9054, insofar as it delegates to ARA the power to create provinces, is constitutional
NO. Only Congress can create provinces and not ARA, which is a regional legislative
body.
2. WON a province created by ARA under MMA 201, pursuant to RA 9054, is entitled to one
representative without need of a national law creating a legislative district for such province
YES, but that is assuming a province was validly created. In such case, the creation of
a legislative district is by operation of the Constitution, which requires that a province
shall have at least one representative. However, MMA 201 is void because as stated in
#1, only Congress can create a province. Hence, no province was validly created
under MMA 201, and theres no legislative district to speak of.
3. WON COMELEC Resolution 7902 is valid for maintaining the status quo in the first legislative
district of Maguindanao (as SK with Cotabato City), despite the creation of the Province of SK out
of such district (excluding Cotabato City) YES.

ratio

1. WRT the power to create provinces granted by RA 9054 to ARA

The power to create a province or city is linked with the power to create a legislative
district
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 the criteria provided under Art. X, Sec. 10 of the Constitution is followed. However, the
creation of provinces and cities is another matter.
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Under, Art. VI, Sec. 5 (3) of the Constitution, each city with a population of at least 250,000,
or each province, shall have at least one representative. This is echoed by Sec. 3 of the
Ordinance appended to the Constitution, providing that any province that may hereafter be
created, or any city whose population may hereafter increase to more than 250,000 shall be
entitled in the immediately following election to at least one member.
Because of the above provisions, a province, or a city with a population of 250,000 or
more, cannot be created without 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 citys population reaches 250,000, the city automatically becomes entitled to one
representative under the above provisions. Thus, the power to create a province or city
inherently involves the power to create a legislative district. Consequently, WON ARA
has the power to create a province or city would depend on WON it has the power to
create legislative districts.
Congress cannot validly delegate to ARA the power to create legislative districts
As in past Constitutions, the present one provides, under Art. VI, Sec. 5 (1), that the power
to increase the allowable membership in the HOR, and to reapportion legislative
districts, is vested exclusively in Congress. Said provision states that the HOR shall be
composed of not more than 250 members, unless otherwise fixed by law, and that the
Congress shall make a reapportionment of legislative districts based on the standards provided
in the same section. 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. This textual
commitment to Congress of the exclusive power to create or reapportion legislative districts is
because of its status as a national legislature, which logically necessitates that 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. An inferior
legislative body created by a superior legislative body, such as ARA in this case,
cannot change the membership of the superior legislative body.
Neither did the creation of the ARMM nor the grant of legislative powers to ARA
divest Congress of its exclusive authority to create legislative districts. This is clear
from the Constitution and the ARMM Organic Act. Further, Art. X, Sec. 20 of the Constitution,
which lays down the legislative powers of autonomous regions, contains nothing which
authorizes autonomous regions, expressly or impliedly, to create or reapportion legislative
districts for Congress.
RA 9054 itself states that ARA cannot exercise legislative power WRT national
elections
Under Art. IV, Sec. 3 of RA 9054, ARA may exercise legislative powers except on certain
matters, including national elections. Since ARA no legislative power to enact laws
relating to national elections, it cannot create a legislative district whose
representative is elected in national elections.
The office of a legislative district representative to Congress is a national office,
and its occupant, a Member of the HOR, is a national official. It would be incongruous for a
regional legislative body like ARA to create a national office when its legislative
powers extend only to its regional territory. To allow ARA to create a national office is to
allow its legislative powers to operate outside the ARMMs territorial jurisdiction, which violates
Art. X, Sec. 20 of the Constitution.
Bringing together the above principles, the conclusion is inevitable that RA 9054,
insofar as it grants to ARA the power to create provinces (and cities), is void for being
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contrary to Art. VI, Sec. 5 of and Art X, Sec. 20 of the Constitution, as well as Sec. 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 Art. VI, Sec. 5 of the
Constitution and Sec. 3 of the Ordinance appended to the Constitution. As a
consequence of the unconstitutionality of the relevant provision of RA 9054, the
resulting law enacted pursuant to the power given by such unconstitutional provision,
MMA 201, is also void.
2. WRT entitlement of the new province under MMA 201 to one representative without
need of a national law creating a legislative district for such province
Automatic creation of a legislative district provided a province is validly created
It is true that under the doctrine in Felwa, which was cited by Sema to support her case,
when a province is created by statute, the corresponding representative district
comes into existence neither by authority of that statute, nor by apportionment, but
by operation of the Constitution, without a reapportionment. However, Felwa doesnt
apply to this case because the new provinces in that case were created by a national law
enacted by Congress itself. Here, the new province was created merely by a regional law
enacted by ARA.
What Felwa teaches is that 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 HOR. This does not detract from the constitutional principle that
the power to create legislative districts belongs exclusively to Congress.
ARA cannot create a province without a legislative district
ARA itself, in creating SK, recognized the exclusive nature of Congress power to create or
reapportion legislative districts by abstaining from creating a legislative district for SK under Sec.
5 of MMA 201.
This shows the inconsistent nature of MMA 201, which, on the one hand, creates a province,
and on the other, recognizes that it cannot create a legislative district. As already explained, a
legislative district cannot but be created upon the creation of a province due to the
Constitutional mandate that every province shall have a legislative district.
3. WRT to validity of Resolution 7902
This Resolution, 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.
PRELIMINARY MATTERS:
1. While COMELEC did not issue Resolution 7902 in the exercise of its judicial or quasi-judicial functions, and while
there is no law which specifically enjoins the COMELEC to exclude from canvassing the votes cast in Cotabato City for
representative of SK with Cotabato City, these matters do not justify the outright dismissal of the petition on the basis
that it is not properly the subject of certiorari or mandamus. This is because Sema also prayed for the issuance of the
writ of prohibition, and the SC has long recognized this writ as proper for testing the constitutionality of election laws,
rules, and regulations.
2. Respondent Dilangalens proclamation as winner in May 2007 elections for representative of SK with Cotabato City
did not moot this petition. This case does not concern respondent Dilangalens election. Rather, it involves an inquiry
into the validity of COMELEC Resolution 7902, as well as the constitutionality of MMA 201 and Art. VI, Sec. 19 of RA

9054. While the outcome of this petition, one way or another, determines WON the votes cast in Cotabato City for
representative of the district of SK with Cotabato City will be included in the canvassing of ballots, this incidental
consequence is no reason to dismiss the same. The ruling here affects all the other succeeding elections for the office
in question, as well as the power of ARA to create in the future additional provinces.

separate opinion
J. Tingas concurrence and dissent (joined by Js Santiago, Azcuna, Chico-Nazario, Leonardo-De
Castro and Brion
Petitions should be dismissed but on procedural grounds
WRT Sema, she is estopped from bringing forth the present petition because in her Certificate of
Candidacy, she declared her candidacy for HOR representative for SK with Cotabato City. Consequently,
she should be barred from disavowing the very district which she undertook to serve if elected. Also, she
lacks standing because her prior avowal that she was running for SK with Cotabato, and her campaign for
election to that district, belie the existence of injury on her part caused by the COMELEC Resolution 7902.
WRT to Marquez, his petition was belatedly filed, because he did so more than two months after the
elections. Thus, he failed to meet the requisite for judicial review of bringing constitutional questions at the
earliest possible opportunity. Also, he does not have a valid cause of action because he cannot ask for
COMELEC to provide for new congressional elections for Cotabato City, thereby ignoring the fact that Rep.
Dilangalen already won. In any case, only Congress has the power to call elections. Hence, for failing to
implead Congress, his petition is also dismissible on the ground of failure to implead an indispensable
party.
The exception in exercising judicial review if the case is capable of repetition yet evading review
applies only if the case is moot and academic, and not when the petitioners lack the requisite standing,
have no cause of action, and have failed to join a proper party, which is the case here.
A/N: The following are J. Tingas answers to the majoritys discussion on the substantive merits of the case.
He started his opinion by saying that the petitions actually did not put the constitutionality of MMA 201 in
relation to RA 9054 in question, but that as petitioners challenged the fusion of Cotabato City in the same
legislative district as that of SK, the newly-formed province under MMA 201, this necessitated an
examination of the creation of SK, consequently, of MMA 201 and the power of ARA under RA 9054 to
create a province.
Theres only one unconstitutional provision on RA 9054
The provision in Sec. 19 stating that ARA may prescribe standards lower than those mandated by the
LGC in the creation, division, merger, abolition, or alteration of the boundaries of provinces, cities,
municipalities, or barangays is inconsistent with Art. X, Sec. 10 of the Constitution.
Nevertheless, there is no contention presented thus far that the creation of SK was not in accordance
with the criteria established in the LGC.
Emphasis on local autonomy (A/N: J. Tinga cites the case of Disomangcop in discussing these
principles)
Art. X, Sec. 2 of the Constitution guarantees that the territorial and political subdivisions in the
Philippines shall enjoy local autonomy. This is actualized through the LGC. For Muslim Mindanao and the
Cordilleras, the mandate is even stronger because by constitutional design, they are assured of their own
autonomous regions, which underscores the intent to grant political autonomy and not merely
administrative autonomy.
Unfortunately, the majority opinion undermines these considerations of local autonomy, which cannot
be in denigration of the Constitution. With this ruling, the Court has dealt another severe blow to the cause
of local autonomy.
Congress may delegate to regional assemblies like ARA the power to create a province
Nothing in the Constitution, specifically Art. X, Sec. 10, which deals with the creation of provinces, bars
Congress from delegating to regional assemblies the power to create provinces. In fact, considering the
constitutional mandate of local autonomy for Muslim Mindanao, it can be said that such delegation is in
furtherance of the constitutional design.
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The only limitation in said provision is that the creation of political subdivisions must be in accordance
with the criteria established in the LGC.
It would thus be proper to say that the Constitution limits the ability to set forth the standards for the
creation of a province exclusively to Congress. But to say that the Constitution confines to Congress alone
the power to establish the criteria for creating provinces is vastly different from saying that the
Constitution confines to Congress alone the power to create provinces.
Creation of legislative districts still non-delegable
When the Constitution specifically designates a particular function to Congress, only Congress may
exercise such function, as the same is non-delegable. In Art. VI, Sec. 5 (1) the power to increase the
composition of the HOR is restricted by the Constitution to a law passed by Congress, which may not
delegate such law-making power to the regional assemblies like ARA.
Also, the composition of the HOR is one of national interest (along with matters like the definition of a
political dynasty, the extent of the right to information on matters of public interest, and the manner by
which Philippine citizenship may be lost or reacquired). Thus, it is but constitutionally proper that only a
national legislature has the competence to exercise these powers.
RA 9054 does not violate this rule because it does not empower ARA to create legislative districts. In
fact, MMA 201, which created SK, specifically disavows the creation of a new district for that province and
maintains the old legislative district shared with Cotabato City.
Creation of province and creation of legislative districts are SEPARABLE concepts
The constitutional prohibition against the delegation of the power to create, directly or indirectly, any
legislative district to a regional assembly like ARA does not necessarily affect said bodys delegated
authority to create provinces.
The ruling in Felwa, cited by both the petitioners and the majority cannot apply to this case, because
its pronouncement that the creation of a province automatically leads to the creation of a legislative
district by operation of the Constitution can only apply when the province is created by Congress itself,
since there is no other constitutional impediment to the emergence of the legislative district.
In cases where it is a body other than Congress which has created, although validly, the legislative
district, the Constitution itself bars the emergence of an accompanying legislative district, as this will result
in an increase in the composition of the HOR, which can only be accomplished through a law passed by
Congress. Thus, SK, cannot acquire its own legislative district unless Congress itself accedes to the
passage of a law that establishes the same.
A/N: J. Tinga also laments the SolGens position in this case, which, in effect, rejects the Final Peace
Agreement negotiated by the Government and the MNLF. This is because as pointed out by Sema, among
the terms in the Final Peace Agreement between the Philippine Government and the MNLF was that
amendments be introduced to the original Organic Act, including one which authorized ARA create,
divide, merge, abolish or substantially alter boundaries of local government units in the area of autonomy
in accordance with the criteria laid down by law, subject to approval by a majority of the votes cast in a
plebiscite called for the purpose in the political units affected.