Party-list imponderables

MANILA, Philippines — Last April 21, the Supreme Court promulgated “Banat vs Comelec” increasing the seats for partylist representatives from 22 to 55, and inevitably, the total number of congressmen from the current 238 (composed of 216 districts and 22 party-list representatives) to 271.

Two-percent threshold

To do this, the Court upheld the two-percent threshold ushered by the “first clause” of Sec. 11 (b) of the Party-list Law (Republic Act 7941) insofar as it allowed the grant of an initial one seat to a party-list that garnered, to quote the law, “at least two percent of the total votes cast for the partylist system.”

However, it struck down as unconstitutional the “second clause” of the same section that states, “those garnering more than two percent of the votes shall be entitled to additional seats in proportion to their total number of votes” because this clause “makes it mathematically impossible to achieve the maximum number of available partylist seats when the number of available partylist seats exceeds 50.”

To fill up the additional seats, the Court awarded slots to those that secured less than two percent of the total votes cast. Yet, it limited the topnotchers to a maximum of three seats. Thus, Buhay Party which garnered 1,169,243 votes (7.33 percent of the total votes cast) was allowed only three seats while Cocofed which obtained a measly 155,920 votes (or .98 percent of the total votes cast) was given one seat. Under the ruling, a party that gets only 1,000 votes can win. Preposterous, but certainly possible!

Since filling up 55 seats was its passion, the Court should have declared unconstitutional both the three-seat limit and the two-percent threshold (the latter in its entirety, as Justice Eduardo B. Nachura’s Separate Opinion did). In this way, the Court could have freely computed the seat allocations with legal, mathematical, and proportional precision. And thereby avoid preposterous scenarios!

More important, the Court ruled that the 20-percent allocation set by the Constitution was “merely a ceiling.” On this basis, Congress can float a range of party-list seat allocation, provided it does not exceed 20 percent at any time. Why then was the Court fixated on the election of 55 solons to reach the ceiling? In fact, under the Banat formula, reaching the ceiling is mandatory. Isn’t this a doctrinal contradiction?

Veterans formula

The earliest Supreme Court decision on partylist elections is “Veterans Federation Party vs Comelec” (Oct. 6, 2000). This ruling translated into a mathematical formula for parameters stated in the Constitution and the Party-list Law; namely, the 20-percent allocation, the two-percent threshold, the three-seat limitation and proportional representation.

At that time, the Court was not inclined to declare unconstitutional any provision of the Partylist Law. After all, the Charter gave Congress ample discretion to shape the “Pilipino-style” partylist system. The Court had to work with the limited materials at hand.

At that time too, the House had less than 200 district representatives. The fear now is that the piece-meal legislation of additional districts has created 220 districts in total, thereby allegedly necessitating a new formula to give party-lists a total of 55 seats. If so, could it be that what was unconstitutional was the reckless creation of the excessive districts, not the second clause?

Notably, Veterans acknowledged that there would be unavoidable distortions, but only because its formula merely reflected the distortions in the Partylist Law. That is why the ultimate solution suggested by Veterans was for Congress to revise the law to cure the distortions.

Warts and all, the Veterans formula was recently and unanimously reiterated in “Partido ng Manggagawa vs Comelec” (March 15, 2006) and “Cibac vs Comelec” (April 13, 2007) penned respectively by Chief Justice Reynato S. Puno and Justice Presbitero J. Velasco Jr.

The Court may have exhausted its patience waiting for Congress to revise the Partylist Law. That is why it acted boldly. But, with due respect, it impetuously spawned new imponderables. It also quietly overlooked its recent decisions reiterating Veterans. Even the ponentes concurred with Banat with nary a mention, much less defense, of their recent unanimous ponencias. So much for doctrinal stability and depth of conviction!

More problems

Banat hatched other Gordian problems. For example, the Constitution provides that “the House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law…”

By increasing the party-list solons from 22 to 55, the Court has ballooned the total number of representatives beyond the 250 authorized by the Constitution. In so doing, did the Court usurp the law-making function of Congress?

Suppose Congress refuses to pass, or delays passing, a new law increasing the number beyond 250, what would happen to the new solons? Will they be paid their salaries, allowances and pork barrel? Will their votes be counted in determining the three-fourths votes to change the Constitution?

Truly, Congress should take the initiative in correcting the deficiencies of the Party-list Law, as earlier suggested by the Court. Thorough congressional debates and public hearings can find the answers. While the Court can identify defects, only Congress has the constitutional mandate to formulate policy solutions.

It is not too late. Congress can still do it.

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