Pandora’s box of imponderables

THE RECENT Supreme Court decision (Banat vs Comelec, April 21, 2009) increasing the number of partylist congressmen from the current 22 to 55 unleashed a Pandora’s box of new problems, contradictions and unconstitutionalities. Last Sunday, I lumped them up simply as imponderables. Here are some more.

Immediately executory. Under the Rules of Court, Supreme Court decisions may be executed only after they become final, that is, after the lapse of 15 days from their receipt by the litigants. If a motion for reconsideration is filed, the decision cannot be executed until the motion is finally resolved.

However, the Court ordered its Banat decision to be “immediately executory.” This unusual order prodded the Commission on Elections to proclaim hurriedly the new winners who, in turn, gleefully took their oaths and assumed their offices immediately. This abnormal rush shielded the new solons from any immediate challenge or protest.

The Comelec normally decides all electoral contests. However, jurisprudence (including the recent one involving Representative Jocelyn Limkaichong) consistently holds that after the solons have been proclaimed, have taken their oaths of office and assumed their positions, the House and the Senate Electoral Tribunals “shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members.”

The solons graduate from being mere candidates to full-fledged members of Congress. They are catapulted beyond the jurisdiction of the poll body. Thus, the hurriedly proclaimed party-list solons are now beyond the reach of the Comelec and their critics.

True, regular election contests against the solons can be filed in the House of Representatives Electoral Tribunal (HRET). But their term of office will end a year from now, on June 30, 2010. An HRET proceeding could hardly be finished within one year. Note too that HRET decisions could be brought to the Supreme Court, thus constituting further delay.

Are there grounds to assail the election or qualifications of the new partylist solons? In “Ang Bagong Bayani vs Comelec” (June 26, 2001 and June 25, 2003), the Supreme Court ruled that “not only must the candidate party or organization represent marginalized and underrepresented sectors; so must its nominees.”

Stressing the ruling’s importance, the Court explained, “Surely, the interests of the youth cannot be fully represented by a retiree; neither those of the urban poor or the working class, by an industrialist. To allow otherwise is to betray the State policy to give genuine representation to the marginalized and underrepresented.”

Can the new partylist solons, like Jovito Palparan and Ma. Lourdes Arroyo, pass this strict test? Unfortunately, the judicial answer may no longer be known because of the “immediately executory” nature of the Banat ruling.

Erroneous math. The Constitution states that “(t)he party-list representatives shall constitute twenty per centum of the total number of representatives, including those under the partylist.” While the Banat decision ruled this 20 percent allocation to be “merely a ceiling,” it nonetheless mandated the proclamation of 55 candidates “(s)ince the 14th Congress – has 220 district representatives.”

However, there are only 216 incumbent district representatives (DRs). If the 55 partylist solons were added to the 216 incumbent DRs, the total would only be 271. Now, 20 percent of 271 is only 54.2 not 55. The Court itself ruled that a fraction of a percent could not be rounded to one. Clearly, the 55 authorized by the Banat decision exceeds the 20 percent limit of the Charter. Is this not unconstitutional?

Assuming, on the other hand, that the 20-percent limit is to be based on the number of created districts, not on the incumbents, still the total is only 219 districts. The Court forgot that on July 16, 2008, it voided the creation of the Province of Shariff Kabunsuan that has one congressional district, thereby reducing the total districts to 219. Now, 20 percent of 274 (219 plus 55) is only 54.8, not 55.

The eagle eyed Comelec noticed this mathematical disparity and admirably cut down the 55 partylist nominees listed by the Court to only 54. Otherwise, the House would have had an unconstitutional number of partylist representatives mandated by the “immediately executory” decision.

Preposterous scenario. Last Sunday’s column said that under the Banat ruling, a partylist candidate with only 1,000 votes could win. A reader asked me to demonstrate how this “preposterous scenario” can happen.

Okay, to illustrate: Suppose there are 15 million votes cast for 300 candidates in a party-list election. Suppose further that 10 of these candidates corner 14.5 million of the votes cast. This is certainly possible considering the vote-gathering power of parties like Buhay, Bayan Muna, Cibac, Gabriela, and Apec.

Suppose further that the balance of 500,000 votes is distributed disparately among the rest of the 290 participants. Under the three-seat limit of the Banat ruling, the 10 topnotchers would occupy at most 30 seats. The balance of the 25 seats would then be distributed mandatorily by the Banat ruling to the best tailenders regardless of the votes they got.

The figure of 1,000 may have been an exaggeration, but it illustrates a preposterous scenario in which any number can win.

Bottom line: Congress should exercise its constitutional mandate and legislate the policy solutions to these imponderables. ASAP!

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