Law, mathematics and the party-list system

MANILA, Philippines–Last Friday, Dean Raul C. Pangalanan, who I believe should have been named to the Supreme Court years ago, wrote on the “party-list conundrum.” Earlier, Fr. Joaquin G. Bernas labeled it an “experiment.” Last week, the Commission on Elections named the 13 party-list winners that are each entitled to one “qualifying” seat in the House of Representatives.

Four inviolable parameters. The Gordian question, however, is: Which of these winners are entitled to more than one seat? Laced with both law and mathematics, the answer was decreed by the Supreme Court in “Veterans Federation Party vs Comelec” (Oct. 6, 2000). In its original form, the decision—excluding the concurring and dissenting opinions—was composed of 53 legal size, double-spaced pages. I think that this case easily comes as one of the most debated during my 11 years in the Court.

In brief, the Court said that entitlement to party-list seats shall be computed pursuant to “four inviolable parameters” required by the Constitution and Republic Act 7941 (The Party-List Law) namely:

“First, the twenty percent allocation—the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list;

“Second, the two percent threshold—only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are “qualified” to have a seat in the House of Representatives;

“Third, the three-seat limit—each qualified party, regardless of the number of votes it obtained, is entitled to a maximum of three seats, that is, one “qualifying” and two additional seats; (and)

“Fourth, proportional representation—the additional seats which a party is entitled to shall be computed ‘in proportion to their total number of votes.’”

Some of the litigants argued that the statutory 2-percent threshold and three-seat limit were arbitrary and unconstitutional. They claimed that the 20-percent allocation, a constitutional provision, is mandatory and not merely a ceiling; thus, it should be filled all the time. To do that, even those parties obtaining less than 2 percent of the total votes should be declared winners, and parties getting huge votes should get more than three seats.

However, the Court unanimously ruled that the 2-percent threshold and the three-seat limit were not unconstitutional. After all, the Constitution itself said that election in the party-list system shall be “provided by law.” Clearly, Congress had been granted wide latitude in shaping the Filipino-style party-list system. What divided the Court was on how to convert the four legal parameters into a mathematical formula that would be used in determining the additional seat(s)?if any?of the qualified parties.

Rejected formulas. Initially, a senior member of the Court proposed that all parties that obtained 2 percent of the votes should each get one seat; those that garnered 4 percent should each get two seats; those that secured 6 percent should each get three seats, and so on. This proposal had the advantage of being easy to understand and to use.

However, problems would arise when candidates get lop-sided votes, as when Party A gets 20 percent; B, 10 percent; and C, 6 percent. Here, A would be entitled to 10 seats, B to five and C to three, thereby violating the three-seat limit. Also, the proposal ignored the proportional representation parameter. Hence, the Court—including the proponent—discarded it.

Next taken up was the “Niemeyer Formula” espoused by Justice Vicente V. Mendoza. This is the formulation used in the German Bundestag where one-half of the total seats are filled by the party lists. Also, there are no seat limits because German law discouraged the proliferation of small parties. In contrast, RA 7931?as already mentioned?imposed a three-seat limit precisely to encourage small parties. These distinctions made the Niemeyer mathematics completely inapplicable here.

Panganiban Formula. Because the foregoing proposals were rejected by the Court, I had to devise a methodology that would “not contravene, circumvent or amen” the four inviolable parameters. Since the majority of the justices accepted my mathematics, I was tasked to write the decision. The original ponente, Justice Mendoza?joined by two others?penned the dissent. Justice (now Chief Justice) Reynato S. Puno wrote a concurring opinion.

Simply stated, the initial step, under this methodology, is to determine the additional seats to be given the party obtaining the highest number of votes. If the topnotcher or “first party” obtains four or more but less than 6 percent of the total votes cast, it gets one more seat. If it garners six or more percent, then it gets the maximum two seats. The additional seats to be given the rest of the qualified parties can be “proportionately” computed by dividing the number of votes of the concerned party by the number of votes the topnotcher garnered, multiplied by the number of seats allocated to the topnotcher.

To be sure, the Panganiban formula has been criticized. Nonetheless, no viable alternative that takes into account all the four parameters has been successfully advanced. Thus, the Court unanimously reiterated it in “Partido ng Manggagawa vs Comelec” (March 15, 2006) and “CIBAC vs Comelec” (April 13, 2007). Next Sunday, I will discuss the criticisms to my formula.

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