Criticisms of the Panganiban formula

MANILA, Philippines–Last Sunday, I outlined the four inviolable legal parameters that qualified party-list winners must observe to obtain additional seats, and discussed how the Supreme Court, in “Veterans Federation Party vs Comelec,” converted these parameters into a mathematical formula.

Summary of criticisms. Rep. Satur Ocampo alleged that the formula was intended to “marginalize, if not eliminate, progressive party-list groups in Congress.” (Inquirer, 7/11/07) This criticism is unfair, uncalled for and totally baseless. No partisan or ideological bias ever crept into the Court’s deliberations when the formula was crafted.

In the Inquirer’s June 24 “Talk of the Town,” Oscar Franklin Tan alleged, in the main, that the Court-decreed formula failed (1) to justify the “two percent per seat ratio” given to the first party, and (2) to observe proportional representation, such that it (the formula) did not result “in a rough straight line when graphed.” Then, he proposed a methodology that would fill up that 20 percent allocation. To do this, he discarded the 2-percent threshold, which he belittled as ?mathematically absurd.? Tan urged the grant of seats even to parties that obtained only 1 percent of the votes.

In the July 1 “Talk of the Town,” Felix P. Muga II termed the Tan formula “unacceptable” because, ironically, it violated proportional representation. He added that a mathematically-prefect proportionality is possible only if the three-seat limit is also junked. So, his proposal discarded both the 2-percent threshold and the three-seat limit.

In an e-mail, Luis R. Baltazar claimed that both the Tan and Muga schemes were out of bounds, because they wrongly disregarded two of the four inviolable parameters that the Court has repeatedly and unanimously declared to be constitutional. Thus, he proposed—complete with data and tables—a mathematical rounding off. For example, any figure above 1.5 should be rounded off to 2 percent. Applying the “rounding off” method to the current election data, Baltazar was able to increase the party-list seats to 53, which—according to him—constitute exactly 20 percent of the current House composition.

Comments on criticisms. Let me now briefly comment on these objections. First, on the alleged failure of the Panganiban formula to produce a “rough straight line when graphed,” there may indeed be some unavoidable distortions, but only because the formula reflects the distortions in the law. Note that the Court merely converted legal provisions into a mathematical formula.

Second, rounding off may make sense in abstract math, but when applied to flesh-and-blood law, it may not. Sec. 11 (b) of the Party-list Law is clear: only those “receiving at least two percent of the total votes cast for the party-list system shall be entitled to one seat each.” If, in a given election, 200,000 votes constitute 2 percent of the total votes cast, then 151,000 or even 199,000 cannot satisfy the precise “at least two percent” legal requirement.

Third, my formula granted the first party (the topnotcher) one seat for every multiple of 2 percent it garnered. This idea was derived from the law’s mandate that a minimum of 2 percent entitles a party to one seat. With the 2-percent threshold in place, proportionality is applicable only to the additional seat(s) of the qualified parties.

Fourth, the obsession of the critics to fill up the 20-percent allocation—which one critic computed at 53 (and another at 55) seats, given that there are now 212 district representatives—may collide with the Constitution’s injunction that “the House of Representatives shall be composed of not more than two hundred fifty members, unless otherwise fixed by law.” Congress has not increased that number. Making the 20 percent allocation mandatory would mean a total of 265 (or 267) lawmakers, way above the constitutional limit of 250. More solons mean more salaries, more allowances and more pork barrel, all of which also require a law.

Solution to criticisms. Obviously then, the solution for the mathematically-obsessed critics is an amendment of the law, particularly on whether the 20-percent allocation should be filled up all the time; whether the thresholds and limitations should be eliminated; whether rounding offs should be allowed; and whether there should be an automatic increase in the total House membership to allow a proportional increase in the party lists.

Any amendment on these points may change the Panganiban formula. Perfect proportionality can be attained if there were no thresholds and limits, or if rounding offs were allowed. But these are policy matters addressed to the discretion of Congress, not of the Court.

In 2000, the Veterans decision already recognized the difficulties in converting the parameters into a flawless equation. However, despite the lapse of seven years and despite the active presence of party lists, Congress has not amended the law to cure its alleged “mathematical absurdities.”

Hence, the Supreme Court cannot be faulted for unanimously reiterating the Panganiban formula in subsequent cases, confident that Congress—by its inaction—agrees with the Court’s math. Indeed, some provisions of the law may be unwise or mathematically imprecise but, certainly, they are not unconstitutional. As “Veterans” aptly declared, “the Supreme Court does not make the law, it merely applies it to a given set of facts.”

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