TIROL, MARK JASON S.

ELECTION LAW

NURHUSSEIN A. UTUTALUM v. COMMISSION ON ELECTIONS and ARDEN S. ANNI

G.R. No. 84843-44 January 22, 1990

FACTS:

1. Petitioner Ututalum and private respondent, Arden S. Anni, were among the candidates in the last 30 May 1987
Congressional elections for the Second District of Sulu. 30 May was the date reset by the COMELEC from the 11 May
1987 elections.

2. The election returns from Siasi showed that Petitioner Ututalum obtained four hundred and eighty-two (482) votes
while respondent Anni received thirty-five thousand five hundred and eighty-one (35,581) votes out of the thirty-nine
thousand eight hundred and one (39,801) registered voters (pp. 13, 187, Rollo). If the returns of Siasi were
excluded, Petitioner Ututalum would have a lead of 5,301 votes.

3. On 4 June 1987, during the canvass of votes, Petitioner Ututalum, without availing of verbal objections, filed
written objections to the returns from Siasi on the ground that they "appear to be tampered with or falsified" owing
to the "great excess of votes" appearing in said returns. He then claimed that multiplying the 42 precincts of Siasi by
300 voters per precinct, there should have been only 12,600 registered voters and not 36,663 voters who cast their
votes, thereby exceeding the actual authorized voters by 23,947 "ghost voters." (In his Petition, however, he admits
that an error was committed since "in the May 30,1987 elections, Siasi had 148 precincts". He then prayed for the
exclusion from the canvass of any election returns from Siasi.

4. On the same day, 4 June, the Provincial Board of Canvassers of Sulu dismissed petitioner's objections because
they had been "filed out of time or only after the Certificate of Canvass had already been canvassed by the Board
and because the grounds for the objection were not one of those enumerated in Section 243 of the Election Code"
(See Order, p. 155, Rollo). Also on the same day, 4 June 1987, petitioner filed with the Board of Canvassers his
Notice of Appeal from said Resolution to the COMELEC.

5. On 5 June 1987, petitioner filed his first Petition with the COMELEC seeking a declaration of failure of elections in
the Municipality of Siasi and other mentioned municipalities; that the COMELEC annul the elections in Siasi and
conduct another election thereat; and order the Provincial Board of Canvassers to desist from proclaiming any
candidate pending a final determination of the Petition.

6. On 8 June 1987, the Provincial Board of Canvassers forwarded Petitioner's appeal as well as its Order dismissing
the written objections to the COMELEC, with the request for authority to proclaim Respondent Anni as the winning
candidate.

7. On 11 June l987, in Case No. SPC 87-180, the COMELEC resolved that there was no failure of elections in the 1st
and 2nd Districts of Sulu except in specified precincts in the 1st District.

8. On 14 June 1987, the Sulu Provincial Board of Canvassers proclaimed respondent Anni as the winner. He
subsequently took his oath of office and entered upon the discharge of its functions in July 1987.

9. On 16 June 1987, petitioner filed a second Petition with the COMELEC praying for the annulment of Respondent
Anni's proclamation and for his own proclamation as Congressman for the Second District of Sulu.

10. While those two petitions were pending, one Lupay Loong, a candidate for Governor of Sulu, filed a verified
Petition with the COMELEC to annul the List of Voters of Siasi, for purposes of the election of local government
officials (docketed as SPC Case No. 87-624, p. 9, Rollo). This Petition was opposed by Respondent Anni. Petitioner
Ututalum was not a party to this proceeding.
On 16 January 1988, the COMELEC issued, in said SPC 87-624, a Resolution annulling the Siasi List of Voters "on the
ground of massive irregularities committed in the preparation thereof and being statistically improbable", and
ordering a new registration of voters for the local elections of 15 February 1988 (p. 41 Rollo).

Said Resolution was affirmed by this Court in Anni vs. COMELEC, G.R. No. 81398, 26 January 1988 (p. 43, Rollo). A
new Registry List was subsequently prepared yielding only 12,555 names (p. 228, Rollo).

11. Immediately after having been notified of the annulment of the previous Siasi List of Voters, Petitioner Ututalum
filed a supplemental pleading with the COMELEC entreating that such annulment be considered and applied by the
Commission in resolving his two Petitions against Respondent Anni (p. 319, Rollo).

12. On 19 April 1988, in a consolidated Per Curiam Resolution, the COMELEC (First Division) denied Petitioner
Ututalum's two Petitions "for lack of merit, with the advise ( sic) that he may file an election contest before the proper
forum, if so desired.

Petitioner Ututalum is assailing the foregoing Resolution.

ISSUES:

a. Whether or not the "obviously manufactured return" is a proper subject matter for a pre-proclamation
controversy and, therefore, cognizable by the COMELEC
b. Whether or not the election returns from Siasi should be excluded from the canvass of the results since its
original List of Voters had already been finally annulled;

c. Whether or not there is no need to re-litigate in an election protest the matter of annulment of the Registry
List, this being already a "fait accompli."

RULING:

The court held that it can not justifiably be contended that the Siasi returns, per se, were "obviously manufactured"
and, thereby, a legitimate issue in a pre-proclamation controversy. It is true that in Lagumbay vs. COMELEC (L-2544,
31 January 1966, 16 SCRA 175), relied upon heavily by Petitioner Ututalum, this Court ruled that the returns are
obviously manufactured where they show a great excess of votes over what could have been legally cast. The Siasi
returns however, do not show prima facie that on the basis of the old List of Voters, there is actually a great excess
of votes over what could have been legally cast considering that only 36,000 persons actually voted out of the
39,801 voters. Moreover, the Lagumbay case dealt with the "manufacture" of returns by those charged with their
preparation as shown prima facie on the questioned returns themselves. Not so in this case which deals with the
preparation of the registry list of voters, a matter that is not reflected on the face of said returns.

Basically, therefore, petitioner's cause of action is the padding of the Siasi List of Voters, which, indeed, is not a listed
ground for a pre- proclamation controversy.

Sec. 243. Issues that may be raised in pre-proclamation controversy .—The following shall be
proper issues that may be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be
tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies
thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are
obviously manufactured or not authentic; and
 (d) When substitute or fraudulent returns in controverted polling places were canvassed, the
results of which materially affected the standing of the aggrieved candidate or candidates.

Petitioner Ututalum's other submission is that the Siasi returns should be excluded since the List of Voters on which it
was based has been conclusively annulled. He thus asks for the application of the rule on res judicata. This is neither
possible. Aside from the fact that the indispensable requisites of res judicata, namely, identity of parties, of subject
matter, and of cause of action are not all present, the ruling desired would, as the COMELEC had opined,
disenfranchise the good and valid votes in the Congressional elections of 30 May 1987.

Finally, this Petition has to fail if only on the basis of the equally important doctrine enunciated in Padilla vs.
COMELEC (L-68351-52, 9 July 1985, 137 SCRA 424), reiterated in Baldo vs. COMELEC (G.R. No. 83205,14 July 1988)
that:

Where the respondent had already been proclaimed as the elected representative of the contested
congressional district, and has long assumed office and has been exercising the powers, functions,
and duties appurtenant to said office, the remedy of the petitioner lies with the House of
Representatives Electoral Tribunal. The pre-proclamation controversy becomes moot and academic.

and in the more recent case of Antonio vs. COMELEC (G.R. No. 84678, 29 March 1989):

Where the winning candidates have been proclaimed, the pre-proclamation controversies cease. A
pre-proclamation controversy is no longer viable at this point in time and should be dismissed. The
proper remedy thereafter is an election protest before the proper forum. Recourse to such remedy
would settle the matter in controversy conclusively and once and for all.

Having arrived at the foregoing conclusions, a discussion of the other peripheral issues raised has been rendered
unnecessary.

WHEREFORE, this Petition for Certiorari is hereby DISMISSED and the assailed Resolutions are AFFIRMED. No costs.
 CIRILO ROY G. MONTEJO v. COMMISSION ON ELECTIONS

SERGIO A.F. APOSTOL, intervenor.

G.R. No. 118702 March 16, 1995

FACTS:

Petitioner Cirilo Roy G. Montejo, representing the First District of Leyte, pleads for the annulment of section 1 of
Resolution No. 2736 of the COMELEC, redistricting certain municipalities in Leyte, on the ground that it violates the
principle of equality of representation. To remedy the alleged inequity, petitioner seeks to transfer the municipality of
Tolosa from his district to the Second District of the province. Intervenor Sergio A.F. Apostol, representing the
Second District, vigorously opposed the inclusion of Tolosa in his district. We gave due course to the petition
considering that, at bottom, it involves the validity of the unprecedented exercise by the COMELEC of the legislative
power of redistricting and reapportionment.

On January 1, 1992, the Local Government Code took effect. Pursuant to its Section 462, the sub-province of Biliran
became a regular province.

The conversion of Biliran into a regular province was approved by a majority of the votes cast in a plebiscite held on
May 11, 1992. As a consequence of the conversion, eight (8) municipalities of the Third District composed the new
province of Biliran, i.e., Almeria, Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi, and Naval. A further
consequence was to reduce the Third District to five (5) municipalities with a total population of 145,067 as per the
1990 census.

To remedy the resulting inequality in the distribution of inhabitants, voters and municipalities in the province of
Leyte, respondent COMELEC held consultation meetings with the incumbent representatives of the province and
other interested parties. On December 29, 1994, it promulgated Resolution No. 2736 where, among others, it
transferred the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth
District to the Third District of Leyte. The composition of the First District which includes the municipality of Tolosa
and the composition of the Fifth District were not disturbed.

Petitioner Montejo filed a motion for reconsideration calling the attention of respondent COMELEC, among others, to
the inequitable distribution of inhabitants and voters between the First and Second Districts. He alleged that the First
District has 178,688 registered voters while the Second District has 156,462 registered voters or a difference of
22,226 registered voters. To diminish the difference, he proposed that the municipality of Tolosa with 7,7000
registered voters be transferred from the First to the Second District. The motion was opposed by intervenor, Sergio
A.F. Apostol. Respondent Commission denied the motion ruling that: (1) its adjustment of municipalities involved the
least disruption of the territorial composition of each district; and (2) said adjustment complied with the constitutional
requirement that each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent
territory.

In this petition, petitioner insists that Section I of Resolution No. 2736 violates the principle of equality of
representation ordained in the Constitution. Citing Wesberry v. Sanders, 8 he argues that respondent COMELEC
violated "the constitutional precept that as much as practicable one man's vote in a congressional election is to be
worth as much as another's." The Solicitor General, in his Comment, concurred with the views of the petitioner. The
intervenor, however, opposed the petition.

ISSUES:

a. Whether or not the COMELEC has no jurisdiction to promulgate Resolution No. 2736;
 b. Assuming it has jurisdiction, said Resolution is in accord with the Constitution.

RULING:

We find section 1 of Resolution No. 2736 void.

While the petition at bench presents a significant issue, our first inquiry will relate to the constitutional power of the
respondent COMELEC 9 to transfer municipalities from one legislative district to another legislative district in the
province of Leyte. The basic powers of respondent COMELEC, as enforcer and administrator of our election laws, are
spelled out in black and white in section 2(c), Article IX of the Constitution. Rightly, respondent COMELEC does not
invoke this provision but relies on the Ordinance appended to the 1987 Constitution as the source of its power of
redistricting which is traditionally regarded as part of the power to make laws . The Ordinance is entitled
"Apportioning the Seats of the House of Representatives of the Congress of the Philippines to the Different
Legislative Districts in Provinces and Cities and the Metropolitan Manila Area."

Consistent with the limits of its power to make minor adjustments, Section 3 of the Ordinance did not also give the
respondent COMELEC any authority to transfer municipalities from one legislative district to another district. The
power granted by Section 3 to the respondent COMELEC is to adjust the number of members (not municipalities)
"apportioned to the province out of which such new province was created. . . ."

Prescinding from these premises, we hold that respondent COMELEC committed grave abuse of discretion amounting
to lack of jurisdiction when it promulgated section 1 of its Resolution No. 2736 transferring the municipality of
Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District of Leyte.

It may well be that the conversion of Biliran from a sub-province to a regular province brought about an imbalance in
the distribution of voters and inhabitants in the five (5) legislative districts of the province of Leyte. This imbalance,
depending on its degree, could devalue a citizen's vote in violation of the equal protection clause of the Constitution.
Be that as it may, it is not proper at this time for petitioner to raise this issue using the case at bench as his legal
vehicle. The issue involves a problem of reapportionment of legislative districts and petitioner's remedy lies with
Congress. Section 5(4), Article VI of the Constitution categorically gives Congress the power to reapportion, thus:
"Within three (3) years following the return of every census, the Congress shall make a reapportionment of legislative
districts based on the standards provided in this section." In Macias v. COMELEC, 18 we ruled that the validity of a
legislative apportionment is a justiciable question. But while this Court can strike down an unconstitutional
reapportionment, it cannot itself make the reapportionment as petitioner would want us to do by directing
respondent COMELEC to transfer the municipality of Tolosa from the First District to the Second District of the
province of Leyte.

IN VIEW WHEREOF, section 1 of Resolution No. 2736 insofar as it transferred the municipality of Capoocan of the
Second District and the municipality of Palompon of the Fourth District to the Third District of the province of Leyte,
is annulled and set aside. We also deny the Petition praying for the transfer of the municipality of Tolosa from the
First District to the Second District of the province of Leyte. No costs.
 JUAN DOMINO v. COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P.
BAYONITO, JR., ROSARIO SAMSON and DIONISIO P. LIM, SR.

LUCILLE CHIONGBIAN-SOLON, intervenor.

G.R. No. 134015 July 19, 1999

FACTS:

On 25 March 1998, DOMINO filed his certificate of candidacy for the position of Representative of the Lone
Legislative District of the Province of Sarangani indicating in item nine (9) of his certificate that he had resided in the
constituency where he seeks to be elected for one (1) year and two (2) months immediately preceding the election. 3

On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P. Bayonito, Jr., Rosario Samson
and Dionisio P. Lim, Sr., fied with the COMELEC a Petition to Deny Due Course to or Cancel Certificate of Candidacy,
which was docketed as SPA No. 98-022 and assigned to the Second Division of the COMELEC. Private respondents
alleged that DOMINO, contrary to his declaration in the certificate of candidacy, is not a resident, much less a
registered voter, of the province of Sarangani where he seeks election.

For his defense, DOMINO maintains that he had complied with the one-year residence requirement and that he has
been residing in Sarangani since January 1997

On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO disqualified as candidate for
the position of representative of the lone district of Sarangani for lack of the one-year residence requirement and
likewise ordered the cancellation of his certificate of candidacy.

On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus Resolution No. 3046, ordering
that the votes cast for DOMINO be counted but to suspend the proclamation if winning, considering that the
Resolution disqualifying him as candidate had not yet become final and executory.

The result of the election, per Statement of Votes certified by the Chairman of the Provincial Board of Canvassers,
shows that DOMINO garnered the highest number of votes over his opponents for the position of Congressman of
the Province of Sarangani.

On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May 1998, which was denied
by the COMELEC en banc in its decision dated 29 May 1998. Hence, the present Petition for Certiorari with prayer for
Preliminary Mandatory Injunction alleging, in the main, that the COMELEC committed grave abuse of discretion
amounting to excess or lack of jurisdiction when it ruled that he did not meet the one-year residence requirement.

On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary Restraining Order, the Court directed the
parties to maintain the status quo prevailing at the time of the filing of the instant petition.

On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the candidate receiving the second
highest number of votes, was allowed by the Court to Intervene. INTERVENOR in her Motion for Leave to Intervene
and in her Comment in Intervention 11 is asking the Court to uphold the disqualification of petitioner Juan Domino
and to proclaim her as the duly elected representative of Sarangani in the 11 May 1998 elections.
ISSUES:

a. Whether or not the judgment of the Metropolitan Trial Court of Quezon City declaring petitioner as resident of
Sarangani and not of Quezon City is final, conclusive and binding upon the whole world, including the Commission on
Elections.

b. Whether or not petitioner herein has resided in the subject congressional district for at least one (1) year
immediately preceding the May 11, 1998 elections; and

c. Whether or not respondent COMELEC has jurisdiction over the petition a quo for the disqualification of petitioner.

The first issue.

The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon City in the exclusion
proceedings declaring him a resident of the Province of Sarangani and not of Quezon City is final and conclusive upon
the COMELEC cannot be sustained.

The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election Code, over a petition to deny
due course to or cancel certificate of candidacy. In the exercise of the said jurisdiction, it is within the competence of
the COMELEC to determine whether false representation as to material facts was made in the certificate of
candidacy, that will include, among others, the residence of the candidate.

The determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings as to the right of
DOMINO to be included or excluded from the list of voters in the precinct within its territorial jurisdicton, does not
preclude the COMELEC, in the determination of DOMINO's qualification as a candidate, to pass upon the issue of
compliance with the residency requirement.

The proceedings for the exclusion or inclusion of voters in the list of voters are summary in character. Thus, the
factual findings of the trial court and its resultant conclusions in the exclusion proceedings on matters other than the
right to vote in the precinct within its territorial jurisdiction are not conclusive upon the COMELEC. Although the court
in inclusion or exclusion proceedings may pass upon any question necessary to decide the issue raised including the
questions of citizenship and residence of the challenged voter, the authority to order the inclusion in or exclusion
from the list of voters necessarily caries with it the power to inquire into and settle all matters essential to the
exercise of said authority. However, except for the right to remain in the list of voters or for being excluded
therefrom for the particular election in relation to which the proceedings had been held, a decision in an exclusion or
inclusion proceeding, even if final and unappealable, does not acquire the nature of res judicata. 13 In this sense, it
does not operate as a bar to any future action that a party may take concerning the subject passed upon in the
proceeding. Thus, a decision in an exclusion proceeding would neither be conclusive on the voter's political status,
nor bar subsequent proceedings on his right to be registered as a voter in any other election.

Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision exceeded its jurisdiction when it
declared DOMINO a resident of the Province of Sarangani, approved and ordered the transfer of his voter's
registration from Precinct No. 4400-A of Barangay Old Balara, Quezon City to precinct 14A1 of Barangay Poblacion,
Alabel, Sarangani. It is not within the competence of the trial court, in an exclusion proceedings, to declare the
challenged voter a resident of another municipality. The jurisdiction of the lower court over exclusion cases is limited
only to determining the right of voter to remain in the list of voters or to declare that the challenged voter is not
qualified to vote in the precint in which he is registered, specifying the ground of the voter's disqualification. The trial
court has no power to order the change or transfer of registration from one place of residence to another for it is the
function of the election Registration Board as provided under Section 12 of R.A. No. 8189. The only effect of the
decision of the lower court excluding the challenged voter from the list of voters, is for the Election Registration
Board, upon receipt of the final decision, to remove the voter's registration record from the corresponding book of
voters, enter the order of exclusion therein, and thereafter place the record in the inactive file.
Finally, the application of the rule on res judicata is unavailing. Identity of parties, subject matter and cause of action
are indispensable requirements for the application of said doctrine. Neither herein Private Respondents nor
INTERVENOR, is a party in the exclusion proceedings. The Petition for Exclusion was filed by DOMINDO himself and
his wife, praying that he and his wife be excluded from the Voter's List on the ground of erroneous registration while
the Petition to Deny Due Course to or Cancel Certificate of Candidacy was filed by private respondents against
DOMINO for alleged false representation in his certificate of candidacy. For the decision to be a basis for the
dismissal by reason of res judicata, it is essential that there must be between the first and the second action identity
of parties, identity of subject matter and identity of causes of action. In the present case, the aforesaid essential
requisites are not present

The Second Issue.

Was DOMINO a resident of the Province of Sarangani for at least one year immediately preceding the 11 May 1998
election as stated in his certificate of candidacy?

We hold in the negative.

It is doctrinally settled that the term "residence," as used in the law prescribing the qualifications for suffrage and for
elective office, means the same thing as "domicile," which imports not only an intention to reside in a fixed place but
also personal presence in that place, coupled with conduct indicative of such intention. 21 "Domicile" denotes a fixed
permanent residence to which, whenever absent for business, pleasure, or some other reasons, one intends to
return. "Domicile" is a question of intention and circumstances. In the consideration of circumstances, three rules
must be borne in mind, namely: (1) that a man must have a residence or domicile somewhere; (2) when once
established it remains until a new one is acquired; and (3) a man can have but one residence or domicile at a time.

Records show that petitioner's domicile of origin was Candon, Ilocos Sur and that sometime in 1991, he acquired a
new domicile of choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown by his certificate of
candidacy for the position of representative of the 3rd District of Quezon City in the May 1995 election. Petitioner is
now claiming that he had effectively abandoned his "residence" in Quezon City and has established a new "domicile"
of choice at the Province of Sarangani.

A person's "domicile" once established is considered to continue and will not be deemed lost until a new one is
established. 25 To successfully effect a change of domicile one must demonstrate an actual removal or an actual
change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one
and definite acts which correspond with thepurpose. In other words, there must basically be animus manendi
coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence.

Further, Domino's lack of intention to abandon his residence in Quezon City is further strengthened by his act of
registering as voter in one of the precincts in Quezon City. While voting is not conclusive of residence, it does give
rise to a strong presumption of residence especially in this case where DOMINO registered in his former barangay.
Exercising the right of election franchise is a deliberate public assertion of the fact of residence, and is said to have
decided preponderance in a doubtful case upon the place the elector claims as, or believes to be, his residence. 31
The fact that a party continously voted in a particular locality is a strong factor in assisting to determine the status of
his domicile.

His claim that his registration in Quezon City was erroneous and was caused by events over which he had no control
cannot be sustained. The general registration of voters for purposes of the May 1998 elections was scheduled for two
(2) consecutive weekends, viz.: June 14, 15, 21, and 22.

While, Domino's intention to establish residence in Sarangani can be gleaned from the fact that be bought the house
he was renting on November 4, 1997, that he sought cancellation of his previous registration in Qezon City on 22
October 1997, and that he applied for transfer of registration from Quezon City to Sarangani by reason of change of
residence on 30 August 1997, DOMINO still falls short of the one year residency requirement under the Constitution.
In showing compliance with the residency requirement, both intent and actual presence in the district one intends to
represent must satisfy the length of time prescribed by the fundamental law. Domino's failure to do so rendered him
ineligible and his election to office null and void.

The Third Issue.

DOMINO's contention that the COMELEC has no jurisdiction in the present petition is bereft of merit.

As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election Code, has jurisdiction over a
petition to deny due course to or cancel certificate of candidacy. Such jurisdiction continues even after election, if for
any reason no final judgment of disqualification is rendered before the election, and the candidate facing
disqualification is voted for and receives the highest number of votes and provided further that the winning candidate
has not been proclaimed or has taken his oath of office.

It has been repeatedly held in a number of cases, that the House of Representatives Electoral Tribunal's sole and
exclusive jurisdiction over all contests relating to the election, returns and qualifications of members of Congress as
provided under Section 17 of Article VI of the Constitution begins only after a candidate has become a member of
the House of Representatives.

The fact of obtaining the highest number of votes in an election does not automatically vest the position in the
winning candidate. A candidate must be proclaimed and must have taken his oath of office before he can be
considered a member of the House of Representatives.

In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone Congressional District of the
Province of Sarangani by reason of a Supplemental Omnibus Resolution issued by the COMELEC on the day of the
election ordering the suspension of DOMINO's proclamation should he obtain the winning number of votes. This
resolution was issued by the COMELEC in view of the non-finality of its 6 May 1998 resolution disqualifying DOMINO
as candidate for the position.

Cosidering that DOMINO has not been proclaimed as Congressman-elect in the Lone Congressional District of the
Province of Sarangani he cannot be deemed a member of the House of Representatives. Hence, it is the COMELEC
and not the Electoral Tribunal which has jurisdiction over the issue of his ineligibility as a candidate.

Issue raised by INTERVENOR.

After finding that DOMINO is disqualified as candidate for the position of representative of the province of Sarangani,
may INTERVENOR, as the candidate who received the next highest number of votes, be proclaimed as the winning
candidate?

It is now settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed
winner in case the winning candidate is disqualified. In every election, the people's choice is the paramount
consideration and their expressed will must, at all times, be given effect. When the majority speaks and elects into
office a candidate by giving the highest number of votes cast in the election for that office, no one can be declared
elected in his place.

It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a
candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which have positively declared through their ballots that they do not
choose him. To simplistically assume that the second placer would have received the other votes would be to
substitute our judgment for the mind of the voters. He could not be considered the first among qualified candidates
because in a field which excludes the qualified candidate, the conditions would have substantially changed.

Sound policy dictates that public elective offices are filled by those who have received the highest number of votes
cast in the election for that office, and it is fundamental idea in all republican forms of government that no one can
be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the
legal votes cast in the election.
The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that the
wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as
now only authorizes a declaration of election in favor of the person who has obtained a plurality of votes and does
not entitle the candidate receiving the next highest number of votes to be declared elected. In such case, the
electors have failed to make a choice and the election is a nullity. To allow the defeated and repudiated candidate to
take over the elective position despite his rejection by the electorate is to disenfranchise the electorate without any
fault on their part and to undermine the importance and meaning of democracy and the people's right to elect
officials of their choice.

INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes cannot be sustained.
INTERVENOR's reliance on the opinion made in the Labo, Jr. case to wit: if the electorate, fully aware in fact and in
law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nevertheless
cast their votes in favor of the ineligible candidate, the electorate may be said to have waived the validity and
efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the
eligible candidate obtaining the next higher number of votes may be deemed elected, is misplaced.

Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an ineligible candidate.
Although the resolution declaring him ineligible as candidate was rendered before the election, however, the same is
not yet final and executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No.
3046 that allowed DOMINO to be voted for the office and ordered that the votes cast for him be counted as the
Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for DOMINO are presumed to
have been cast in the sincere belief that he was a qualified candidate, without any intention to misapply their
franchise. Thus, said votes can not be treated as stray, void, or meaningless.

WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the COMELEC 2nd Division and
the decision dated 29 May 1998 of the COMELEC En Banc, are hereby AFFIRMED.
 MICHAEL O. MASTURA v. COMMISSION ON ELECTIONS (Second Division), THE NEW MUNICIPAL
BOARD OF CANVASSERS OF MATANOG, MAGUINDANAO, THE NEW PROVINCIAL BOARD OF
CANVASSERS OF MAGUINDANAO and DIDAGEN P. DILANGALEN

[G.R. No. 124521. January 29, 1998]

FACTS:

Petitioner Michael O. Mastura and private respondent Didagen P. Dilangalen were congressional candidates for the
first district of Maguindanao during the 8 May 1995 elections. In the canvassing of votes, Dilangalen objected to the
inclusion of the Certificate of Canvass of the Municipality of Matanog on the ground that the same was allegedly
tampered. Acting on the objection, the COMELEC Second Division ordered the production and examination of the
election returns of the Municipality of Matanog. In the course of the examination four (4) ballot boxes were
produced and opened. Ballot Box No. 1 contained the MTC Judge copy of the election returns, Ballot Box No. 2 the
Provincial Board of Canvassers copy of the election returns, Ballot Box No. 3 the COMELEC copy of the election
returns, and Ballot Box No. 4 the Provincial Board of Canvassers copy of the municipal Certificate of Canvass of
Matanog with its supporting Statement of Votes.

Upon examination and comparison of the copies of the election returns of the MTC Judge and the COMELEC, the
COMELEC Second Division found that, indeed, the Certificate of Canvass of the Municipality of Matanog had been
tampered with. Consequently, the COMELEC Second Division issued the herein assailed Order of 29 February 1996
annulling the Certificate of Canvass of Matanog.

The following day, Mastura filed an Urgent Motion to Examine and Verify the Canvassed MBC Copies of the Election
Returns and the COMELEC Copy of the Certificate of Canvass and Accompanying Statement of Votes. The COMELEC
Second Division merely noted the motion in view of the 29 February 1996 Order. [2]

Thereafter Mastura filed an Urgent Motion to Defer Implementation of the 29 February 1996 Order. Mastura argued
that the 29 February 1996 Order was issued precipitately and prematurely considering that some other documents,
particularly the Certificate of Canvass of Matanog which he considered necessary for the resolution of the issue, was
yet to be produced and examined.

Meanwhile, the new Municipal Board of Canvassers convened and recanvassed the votes. During the proceedings
Mastura objected to the inclusion of fifty (50) out of the fifty-seven (57) election returns on the ground that the
COMELEC copy of the election returns was not reflective of the true results unless compared with the copy of the
original Municipal Board of Canvassers. But the new Municipal Board of Canvassers believed otherwise; hence, it
included in the canvass the fifty (50) election returns objected to by Mastura who thereafter walked out while the
new Municipal Board of Canvassers continued with the canvassing.

After the proceedings in the Municipal Board of Canvassers, the Provincial Board of Canvassers convened and
prepared the Certificate of Canvass and Statement of Votes of the Municipality of Matanog. As a result, private
respondent Dilangalen was proclaimed the duly elected member of the House of Representatives, First District of
Maguindanao.

Mastura now comes to us imputing to public respondent COMELEC Second Division grave abuse of discretion
amounting to lack of jurisdiction in issuing its Orders of 29 February 1996, 5 March 1996, 14 March 1996, and 20
March 1996.

ISSUES:

Whether or not COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders
of 29 February 1996, 5 March 1996, 14 March 1996, and 20 March 1996.

RULING:
We find no grave abuse of discretion on the part of respondent COMELEC. It is settled jurisprudence that COMELEC
can suspend the canvass of votes pending its inquiry whether there exists a discrepancy between the various copies
of election returns from the disputed voting centers. Corollarily, once the election returns were found to be falsified
or tampered with, the COMELEC can annul the illegal canvass and order the Board of Canvassers to reconvene and
proclaim the winners on the basis of the genuine returns or, if it should refuse, replace the members of the board or
proclaim the winners itself.[4]

This was exactly what happened in the instant petition. Dilangalen objected to the inclusion of the Certificate of
Canvass of the Municipality of Matanog and, acting on the objection, COMELEC ordered
the production and examination of the MTC Judge copy and the COMELEC copy of the election returns. Based on
the comparison, the COMELEC Second Division found and concluded that indeed the Certificate of Canvass of the
Municipality of Matanog was tampered with. Consequently, it ordered its annulment and created a new set of
Municipal and Provincial Boards of Canvassers to recanvass the votes. After the recanvassing, Dilangalen emerged
as the winner and was thereafter proclaimed the duly elected member of the House of Representatives, First District
of Maguindanao.

That the Certificate of Canvass of the Municipality of Matanog was tampered with is a factual finding of the
COMELEC. Absent any showing of abuse of discretion amounting to lack of jurisdiction, this Court should refrain
from reviewing the same, and must accord it instead the respect it deserves. The rule that factual findings of
administrative bodies will not be disturbed by courts of justice except when there is absolutely no evidence or no
substantial evidence in support of such findings should be applied with greater force when it concerns the
COMELEC, as the framers of the Constitution intended to place the COMELEC - created and explicitly made
independent by the Constitution itself - on a level higher than statutory administrative organs. The COMELEC has
broad powers to ascertain the true results of the election by means available to it. For the attainment of that end, it
is not strictly bound by the rules of evidence.[5]

Pursuant to its administrative functions, the COMELEC exercises direct supervision and control over the proceedings
before the Board of Canvassers.

Pertinent rulings of this Court have since defined Comelec's powers in pursuance of its supervisory or
administrative authority over officials charged with specific duties under the election code. It is within the
legitimate concerns of Comelec to annul a canvass or proclamation based on incomplete returns, or on incorrect
or tampered returns; annul a canvass or proclamation made in an unauthorized meeting of the board of
canvassers either because it lacked a quorum or because the board did not meet at all. Neither Constitution nor
statute has granted Comelec or board of canvassers the power, in the canvass of election returns, to look
beyond the face thereof, once satisfied of their authenticity.

The assailed Orders having been issued pursuant to COMELEC's administrative powers and in the absence of any
finding of grave abuse of discretion, judicial interference is therefore unnecessary and uncalled for. Consequently,
the questioned Orders must perforce be upheld.

Additionally, Secs. 27, 28 and 29 of R.A. No. 7166[9] provide -

Sec. 27. Number of Copies of Election Returns and Their Distribution. - The board of election inspectors shall
prepare in handwriting the election returns in their respective polling places, in the number of copies herein
provided and in the form to be prescribed and provided by the Commission.

The copies of the election returns shall be distributed as follows: (a) In the election of x x x members of the
House of Representatives: 1) The first copy shall be delivered to the city or municipal board of canvassers;
2) The second copy, to the Congress, directed to the President of the Senate; 3) The third copy, to the
Commission; 4) The fourth copy, to the provincial board of canvassers; 5) The fifth copy, to x x x the city or
municipal treasurer; 6) The sixth copy shall be given to the city or municipal trial court judge or in his absence
to any official who may be designated by the Commission. The city or municipal trial court judge or the official
designated by the Commission shall keep his copies of the election returns sealed and unopened. Said copy
may be opened only during the canvass upon order of the board of canvassers for purposes of comparison with
other copies of the returns whose authenticity is in question; and, 7) The seventh copy shall be deposited inside
the compartment of the ballot box for valid ballots x x x x

Sec. 28. Canvassing by Provincial, City, District and Municipal Boards of Canvassers. - (a) The city or municipal
board of canvassers shall canvass the election returns for x x x members of the House of Representatives and/or
elective provincial and city or municipal officials. Upon completion of the canvass, it shall prepare the certificate
of canvass for x x x Members of the House of Representatives x x x x
Sec. 29. Number of Copies of Certificate of Canvass and their Distribution. - (a) The certificate of canvass for x
x x Members of the House of Representatives x x x shall be prepared in seven (7) copies by the city or municipal
board of canvassers and distributed as follows: 1) The first copy shall be delivered to the provincial board of
canvassers x x x x; 2) The second copy shall be sent to the Commission; 3) The third copy shall be
kept by the chairman of the board; 4) The fourth copy shall be given to the citizens arm designated by the
Commission to conduct a media-based unofficial count; and, 5) The fifth, sixth and seventh copies shall be
given to the representatives of any three (3) of the six (6) major political parties in accordance with the
voluntary agreement of the parties x x x x

In the instant petition, petitioner Mastura argues that the COMELEC Second Division should have made use of the
Municipal Board of Canvassers copy of the election returns for the simple reason that it is the original copy. This is a
misconception. All the seven (7) copies of the election returns are all original copies, although the copy for the
Municipal Board of Canvassers is designated as the first copy. This designation is only for the purpose of distribution
and does not in any way accord said copy the status of being the only original copy. Consequently, it was properly
within the exercise of its discretion when COMELEC ordered the production and examination of the MTC Judge copy
and the COMELEC copy of the election returns. COMELEC is not required to retrieve and examine all the seven (7)
copies of the election returns.

Additionally, Sec. 15 of R.A. No. 7166 does not in any way specify that the COMELEC should use the Municipal Board
of Canvassers copy in correcting manifest error. COMELEC is in fact given enough leeway in this regard -

Sec. 15. Pre-Proclamation Cases Not Allowed in Elections for President, Vice-President, Senator and Member of
the House of Representatives . - For purposes of the elections for President, Vice-President, Senator and Member
of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the
preparation, transmission, receipt, custody and appreciation of the election returns or the certificate of canvass,
as the case may be. However, this does not preclude the authority of the appropriate canvassing body motu
proprio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass
or election returns before it x x x x

There is another reason for denying the instant petition. When petitioner's motion for reconsideration of the 29
February 1996 Order was denied for being interlocutory in nature, petitioner should have sought prior recourse from
the COMELEC en banc before coming to this Court, pursuant to Sec. 3, Art. IX-C, of the Constitution.

WHEREFORE, finding no grave abuse of discretion committed by public respondent COMMISSION ON ELECTIONS
Second Division, the instant petition is DISMISSED. The assailed Orders of 29 February 1996, 5 March 1996, 14
March 1996 and 20 March 1996 of the COMELEC Second Division are AFFIRMED.
 BAI SANDRA S. A. SEMA v. COMMISSION ON ELECTIONS and DIDAGEN P. DILANGALEN

G.R. No. 177597 July 16, 2008

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

PERFECTO F. MARQUEZ v.COMMISSION ON ELECTIONS

G.R. No. 178628

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 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). 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 VI of RA 9054, 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.

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 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, 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 that Maguindanao’s first legislative district is composed only of Cotabato City because of the enactment
of MMA Act 201.

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).

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 and Section 3 of the Ordinance
appended to the Constitution.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. Sema further 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.

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.

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.

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. 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."

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 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).

RULING:

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-judicial functions.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.True, the
COMELEC did not issue Resolution No. 7902 in the exercise of its judicial or quasi-judicial functions . 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.

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 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 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 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.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. 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
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

Under the present Constitution, as well as in past 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 (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,we held that the "power of 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:

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.

Indeed, the office of a legislative district representative to Congress is a national office, and its occupant, a Member
of the House of Representatives, is a national official. 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."

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 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 "creati[ng] 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 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.

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 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,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 population of 250,000

Neither the framers of the 1987 Constitution in adopting the provisions in Article X on regional autonomy,nor
Congress in enacting RA 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 14th Congress,
there are 219 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 "[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
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.