Lecture delivered by retired Chief Justice ARTEMIO V. PANGANIBAN during the Justice Cecilia Munoz-Palma Lecture Series on November 19, 2010 at Ateneo Law School, Rockwell, Makati City
The party-list system, Philippine style, was conceived with a noble purpose: to democratize politics and governance by opening up the legisla-ture to increased participation by the marginalized sectors of our society.
The earliest jurisprudence on the subject sought to interpret and apply the Party-List Law in light of the laudable intentions of the framers of our Constitution, and of the legislators who crafted the law and gave substance to the party-list concept.
But recent decisions of the Supreme Court and of the Commission on Elections have given ground for serious concern that the party-list system is being mis-used and abused to serve the interests of a select few.
How has the party-list system been subjected to forces of distortion and abuse? More important, what dangerous consequences are we facing? Let me attempt some answers.
Brief backgrounder
Our Filipino-style party-list system is anchored on Section 5 of Article VI of the 1987 Constitution. Though usually associated with parliamentary governments in other parts of the world, the party-list system was incorpo-rated in the Constitution as an innovative element into our presidential sys-tem of government.
Under this party-list mode of representation, any national, regional or sectoral party or organization registered with the Commission on Elections may participate in the election of party-list representatives who, upon their election and proclamation, shall sit in the House of Representatives as regu-lar members. Thus, a voter has effectively two (2) votes for the House of Representatives – one for a district congressman, and another for a party-list representative. We see this in the following constitutional provisions:
“Art. VI, Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabi-tants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, re-gional, and sectoral parties or organizations.
“(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural com-munities, women, youth, and such other sectors as may be provided by law, except the religious sector.”
Pursuant to its constitutional mandate, Congress enacted Republic Act No. 7941, the “Party-List System Act.” Per the statute’s Declaration of Pol-icy, the State shall “promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginal-ized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formu-lation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sec-toral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible.” The statute provides inter alia:
Section 11. Number of Party-List Representatives. — xxx
In determining the allocation of seats for the second vote, the following procedure shall be observed:
(a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections.
(b) The parties, organizations, and coalitions receiv-ing at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in the proportion of their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats.
“Section 12. Procedure in Allocating Seats for Party-List Representatives.— The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a na-tionwide basis, rank them according to the number of votes received and allocate party-list representatives pro-portionately according to the percentage of votes ob-tained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system.”
The aforequoted constitutional and statutory provisions delineate the two major areas of concern involving the party-list system; namely, (1) how to determine which party-list organizations have qualified, and the number of seats won by each; and (2) how to ascertain that the nominees of such party-list organizations are qualified to serve as such in the House of Repre-sentatives.
Veterans vs. Comelec
The very first case to interpret the party-list law – and to tackle defini-tively the first area of concern by setting out the method of computing the number of seats won by a party – arose in the course of the May 11, 1998 elections. In Veterans Federation Party v. Comelec, certain parties and or-ganizations that garnered at least two percent of the total party-list votes cast in the May 1998 party-list elections filed petitions for certiorari, prohibition and mandamus, with prayers for temporary restraining orders or writs of pre-liminary injunction, against Comelec and 38 other parties, organizations and coalitions which had been declared by Comelec as entitled to party-list seats in the House of Representatives. The petitioners raised the following issues: 1) whether the constitutional allocation of twenty percent of seats in the House is mandatory or merely directory; 2) whether the two percent thresh-old requirement and the three-seat limit under Section 11(b) of R.A. No. 7941 are constitutional; and 3) what is the correct method of determining the number of additional seats of a qualified party.
In sum, the questions to be answered were: how to determine which party-list organizations won in the elections (and were therefore entitled to one qualifying seat each in the House), and how to compute the number of additional seats (if any) to which each such organization was entitled.
In Veterans, the High Court decreed that entitlement to party-list seats shall be determined pursuant to “four inviolable parameters” set by the Con-stitution and the Party-List Law (RA 7941), 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, re-gardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one “quali-fying” and two additional seats.
Fourth, proportional representation — the additional seats which a qualified party is entitled to shall be com-puted “in proportion to their total number of votes.”
In seeking to translate “proportional representation” into a mathemati-cal formula that will not contravene, circumvent or amend said four parame-ters, the High Court devised the following formula and procedure for allo-cating House seats to the party-list winners:
“Step One. There is no dispute among the petitioners, the public and the private respondents, as well as the members of this Court, that the initial step is to rank all the participating parties, organizations and coalitions from the highest to the lowest based on the number of votes they each received. Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in the system. All parties with at least two percent of the total votes are guar-anteed one seat each. Only these parties shall be considered in the computation of additional seats. The party receiving the highest number of votes shall thenceforth be referred to as the “first” party.
“Step Two. The next step is to determine the number of seats the first party is entitled to, in order to be able to compute that for the other parties. Since the distribution is based on proportional representation, the number of seats to be allotted to the other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the most number of votes.
x x x
“Now, how do we determine the number of seats the first party is entitled to? x x x The formula x x x is as follows:
Number of votes
of first party Proportion of votes of ————————— = first party relative to
Total votes for total votes for party-list system
Party-list system
“If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the to-tal valid votes cast for all the party list groups, then the first party shall be entitled to two additional seats or a total of three seats overall. If the proportion of votes without a rounding off is equal to or greater than four percent, but less than six per-cent, then the first party shall have one additional or a total of two seats. And if the proportion is less than four percent, then the first party shall not be entitled to any additional seat.
x x x
“Step Three. The next step is to solve for the number of additional seats that the other qualified parties are entitled to, based on proportional representation. The formula is encom-passed by the following complex fraction:
No. of votes of concerned party ——————————— Total no. of votes Additional seats for party-list system No. of additional for concerned = ————————————— x seats allocated party No. of votes of to the first party first party ——————————— Total No. of votes for party-list system
In simplified form, it is written as follows:
No. of votes of
Additional seats concerned party No. of additional
for concerned = —————————- x seats allocated
party No. of votes of to the first party first party
Since I was the ponente of the decision in Veterans, the foregoing equation was informally christened by textwriters and lawyers as the Pan-ganiban formula.
Ang Bagong Bayani vs. Comelec
On the other hand, it was in Ang Bagong Bayani vs. Comelec that the Supreme Court first tackled the second major area of concern, i.e., determin-ing the qualifications of the nominees of party-list organizations.
Ang Bagong Bayani arose in the course of the May 14, 2001 party-list elections. Two petitions for certiorari were filed by several party-list candi-dates: (a) to challenge a resolution of the Comelec approving the participa-tion of some 154 organizations and parties in the May 14, 2001 party-list elections; and (b) to disqualify certain parties classified as “political parties” and “organizations/coalitions” by Comelec.
In its Decision dated June 26, 2001 – which, like Veterans, I had the honor of writing – the Court held that, although both the Constitution and the party-list law provide that political parties (even the major ones) may be registered under the party-list system and participate in party-list elections, it does not mean, however, that just any political party, organization or group may do so. Rather, the character of these parties and organizations must be consistent with the purpose of the party-list system, as explicitly set out in Section 5, Article VI of the Constitution, and Section 2 (Declaration of Pol-icy) of RA 7941. In short, the Filipino-style party-list system is meant to promote and facilitate the election to Congress of Filipino citizens who belong to marginalized and underrepresented sectors, organizations and par-ties, and who lack well-defined constituencies, but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.”
The Decision continued: “However, it is not enough for the candidate to claim representation of the marginalized and underrepresented, because representation is easy to claim and to feign. The party-list organization or party must factually and truly represent the marginalized and underrepre-sented constituencies mentioned in Section 5. Concurrently, the persons nominated by the party-list candidate-organization must be ‘Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties’.”
To drive home the point, the Court emphasized that “the role of the Comelec is to see to it that only those Filipinos who are ‘marginalized and underrepresented’ become members of Congress under the party-list system, Filipino-style.” And, so as to avoid any missteps, the Court added, “The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in Section 5 of RA 7941;” the said provision in relevant part recites: “the sector shall include labor, peasant, fisher-folk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.”
Summing up, the Court noted that while the enumeration of marginal-ized and underrepresented sectors is not exclusive, it demonstrates the clear intent of the law that “not all sectors can be represented under the party-list system.”
The case was then remanded to the Comelec for the immediate con-duct of summary evidentiary hearings to ascertain whether the 154 parties and organizations allowed to participate in the party-list elections had com-plied with the requirements of the law. To assist Comelec, the Court laid down the following eight-point guidelines for the screening of party-list par-ticipants:
First, the political party, sector, organization or coalition must repre-sent the marginalized and underrepresented groups identified in Section 5 of RA 7941.
Second, major political parties, even though expressly permitted by RA 7941 and the Constitution to participate in the party-list system, must comply with the declared statutory policy of enabling “Filipino citizens be-longing to marginalized and underrepresented sectors x x x to be elected to the House of Representatives.”
Third, as expressly proscribed by the Constitution, the religious sector may not be represented in the party-list system.
Fourth, such participating party or organization must not be disquali-fied under Section 6 of RA 7941, which enumerates the grounds for dis-qualification.
Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government.
Sixth, not only must the party itself comply with the requirements of the law, so must its nominees.
Seventh, not only must the candidate party or organization represent marginalized and underrepresented sectors, so must its nominees. And,
Eighth, while lacking a well-defined political constituency, the nomi-nee must be able to contribute to the formulation and enactment of appropri-ate legislation that will benefit the nation as a whole.
Before we leave this case, may I explain that there were two other no-table things about Ang Bagong Bayani.
First, in its subsequent Resolution dated June 25, 2003 issued in the same Ang Bagong Bayani case, the Court also applied the Veterans formula in determining the number of seats the winning parties were entitled to.
Second, in the course of resolving motions for proclamation filed by party-list participants, the Court had to consider, among others, the effect of the disqualification (after the elections) of many party-list participants on the total number of votes cast during the May 2001 party-list elections. In its Resolution dated June 25, 2003, the Court held that the Labo doctrine can-not be applied to the party-list system in view of Section 10 of R.A. No. 7941 which expressly provides that the votes cast for a party, a sectoral organization or a coalition “not entitled to be voted for shall not be counted.” The net effect of this ruling is that whenever a party-list organization is dis-qualified or declared not entitled to be voted for, after an election has been conducted, the mathematics for the remaining qualified parties will necessarily change and improve.
Criticisms of Veterans and the Panganiban formula, prior to the Banat case
After a quick review of the two leading cases on the party-list system, let us briefly survey the criticisms hurled at the Court’s rulings, before taking in the latest jurisprudence on the matter.
As we go through the gamut of criticisms, it is useful to remember that, in the process of arriving at its ruling in Veterans, the Court was unanimous in maintaining that the 2-percent threshold and the 3-seat limit were not unconstitutional, for the Constitution itself had given Congress much latitude in determining the features of the Filipino-style party-list sys-tem. The Court was more concerned with how to go about converting the four parameters into a workable mathematical formula for determining the additional seats (if any) of the qualified parties. Moreover, it is important to note that, prior to adopting the Panganiban formula, the Court had taken time to consider different proposals.
One proposal taken up by the Court called for allocating one seat each to the parties that obtained two percent of the votes cast; two seats for those that won four percent of the votes; and three for those that secured six per-cent, and so on. Simple to understand and apply, this approach was nevertheless rejected because in cases where the voting was lop-sided, this approach would result in breaching the three-seat limit; on the other hand, if the three-seat limit were observed, the resulting seat distribution would contravene the proportional representation parameter.
Another proposal scrutinized by the Court was the “Niemeyer Formula used in the German Bundestag. However, in the Bundestag, half of the seats is filled by their party-list organizations, plus there are no seat limits since German law discourages the proliferation of small parties. In contrast, RA 7931 has a three-seat limit to prevent domination of the system by a few large parties, precisely because the law aims to encourage the formation of more parties. Clearly the Niemeyer method would not find application in the local version of the party-list system.
A solution had to be invented that would “not contravene, circumvent or amend” the four inviolable parameters. At the end of the day, the Panganiban formula was accepted by a majority of the justices.
The Panganiban formula had had its fair share of criticism. Yet no other proposal had been put forward that factored in and operationalized all four parameters. Thus, the Court unanimously upheld and reiterated it in the 2006 case of Partido ng Manggagawa vs Comelec and in 2007 in “CIBAC vs Comelec” the last, after I had already retired from the Court.
Summary of criticisms of the Panganiban formula
The Court’s decision in Veterans did not meet with universal approval or acceptance. Some litigants were understandably less than thrilled with the four inviolable parameters. Many protested that the two-percent thresh-old and three-seat limit were too restrictive, arbitrary and unconstitutional; that the constitutional allocation of 20-percent of all seats in the House is mandatory, not merely a ceiling, and hence must be filled up at all times; that to achieve this, even parties obtaining less than two percent of total votes must be declared winners; and that parties garnering huge votes should be entitled to more than three seats.
Criticisms ranged from the baseless and ridiculous to the fairly well-considered. At one end of the spectrum was the charge that the formula was allegedly intended to “marginalize, if not eliminate, progressive party-list groups in Congress.” Needless to state, this criticism was unwarranted, wholly baseless and completely unfair; no partisan or ideological bias had ever tainted the Court’s deliberations. Besides, said critic never even at-tempted to show how the formula targets progressives.
Another pundit alleged that the Court’s formula failed to justify the “two percent per seat ratio” given to the first party, and to observe proportional representation, such that the formula did not result “in a rough straight line when graphed.” He then suggested a formula to fill up the 20 percent allocation, in the process of which he discarded the two-percent threshold for being “mathematically absurd.” He also urged the grant of seats even to parties that obtained only one percent of the total votes.
A third critic branded the second one’s formula unacceptable because it violated proportional representation. He opined that a mathematically-perfect proportionality can be achieved only if the three-seat limit is also discarded, and so he in turn proposed eliminating both the two-percent threshold and the three-seat limit.
A fourth expert claimed that the second and the third’s proposals were unacceptable since they disregarded two of the four inviolable parameters declared by the High Court to be constitutional. Accordingly, he recommended a mathematical rounding off.
Comments on the various criticisms.
Some of the criticisms deserve serious comment. With respect to the alleged failure of the Panganiban formula to produce a “rough straight line when graphed,” admittedly the formula will produce some distortions and lack of proportionality, but these may be unavoidable because the formula simply reflects the distortions in the law. After all, the formula sought to strictly implement the four legal parameters. If the distortions are the result of the legal parameters and provisions, then it follows that the answer is not to change the formula but rather, to amend the legal parameters.
On the other hand, rounding-off may make good sense in abstract math, but not when applied to flesh-and-blood law. It may run afoul of Section 11 (b) of the Party-list Law, which permits only those parties that garnered at least two percent of the total votes cast for the party-list system to have one qualifying seat each. If, for example, 200,000 votes constituted two percent of the total votes cast, then 151,000 votes (or even 199,000) cannot satisfy the exacting legal requirement of “at least two percent,” no matter how we try to “round it off.” Worse, rounding off may ultimately result in awarding more seats than what the law has provided.
Third, given that the law had fixed the two-percent threshold as a necessary hurdle, then obviously, proportionality was possible only when speaking of the additional seat(s) that may be won by the qualified parties. But, even then, as Veterans explained:
“The above formula does not give an exact mathematical representation of the number of additional seats to be awarded since, in order to be entitled to one additional seat, an exact whole number is necessary. In fact, most of the actual mathematical proportions are not whole numbers and are not rounded off for the reasons explained earlier. To repeat, rounding off may result in the awarding of a number of seats in ex-cess of that provided by the law. Furthermore, obtaining absolute proportional representation is restricted by the three-seat-per-party limit to a maximum of two additional slots. An increase in the maximum number of additional representatives a party may be entitled to would result in a more accurate proportional representation. But the law itself has set the limit: only two additional seats. Hence, we need to work within such extant parameter.”
Fourth, the critics seemed obsessed at completely filling up the 20-percent allocation [computed at 53 by one critic and at 55 by another, since there were 212 district representatives at the time]. They appeared unmind-ful of the direct conflict with the Constitution’s prescription that “the House of Representatives shall be composed of not more than two hundred fifty members, unless otherwise fixed by law.” To date Congress has not in-creased that number. Hence, making the 20 percent allocation mandatory and obligatory would mean increasing the total number of congressmen to 265 (or 267), which is way above the constitutional limit of 250. Apart from the matter of violating the constitutional prescription, there is also the problem of absence of legislation to support the disbursement of public funds for the salaries, allowances and pork barrel of so many more solons.
The Solution
Unarguably, if the math was found unsatisfactory, the solution was amendatory legislation, i.e., amendment not only of the party-list law but also other affected laws as well, that is, once Congress made up its mind on whether the 20-percent allocation should be filled up at all times; whether the thresholds and limitations should be eliminated; whether rounding-off ought to be allowed; and whether there should be an automatic increase in the total House membership to allow a proportional increase in the party-lists.
Amendments on any of these points would likely change the Panganiban formula. But these points are policy matters addressed to the discretion of Congress.
Since 2000, many had discerned the difficulties associated with the Veterans ruling and the Panganiban formula. But despite the passage of the years and the active presence of party lists, Congress had not acted to amend the law and remedy its supposed “mathematical absurdities.”
Hence the Supreme Court could not be faulted for upholding Veterans and reiterating the Panganiban formula in subsequent cases, in the belief that Congress agreed with the Court’s math, or at least did not find it objectionable.
The audience may be wondering why I have dwelt at length upon the aforementioned criticisms and responses thereto, when much has already changed with the promulgation of the Supreme Court’s decision in Banat vs. Comelec, but I merely wanted to demonstrate that the perceived difficulties and criticisms prior to Banat were far less worrisome and problematic than the resulting situation after the promulgation of Banat.
Recent Jurisprudence:
Banat vs. Comelec : unleashing a host of imponderables
In April 2009, the Supreme Court promulgated Banat vs Comelec, and in one fell swoop revised the party-list system without warning.
Banat increased the number of party-list representatives from 22 to 55, and inevitably, the total number of congressmen from the then current 238 (composed of 216 districts and 22 party-list representatives) to 271. But that’s not even the objectionable part yet.
Banat upheld the constitutionality of the two-percent threshold established by the “first clause” of Sec. 11 (b) of the Party-list Law which al-lowed the grant of an initial one seat to an organization that garnered at least two percent of the total votes cast for the party-list system.
But it declared unconstitutional the “second clause” of the same section stating that “those garnering more than two percent of the votes shall be entitled to additional seats in proportion to their total number of votes” because, according to the High Court, this clause “makes it mathematically impossible to achieve the maximum number of available party-list seats when the number of available party-list seats exceeds 50.”
Instead, the additional seats were awarded by the Court to the parties that secured less than two percent of the total votes cast. In other words, there was no longer any cut-off or minimum hurdle – any party, regardless of how few its votes were, would now be entitled to one seat in Congress. This radically changed the rules of the game, because whereas before, only those who made the two percent cut-off would be entitled to any seat at all, now, regardless of the number of votes obtained, all the parties could get a seat each. However, the Court still limited the topnotchers to a maximum of three seats.
This further inflicted grave violence to the precept of proportional rep-resentation. Thus, Buhay Party which as topnotcher had 1,169,243 votes (7.33 percent of the total votes cast) was allowed only three seats while the tail-ender Cocofed which came in last in the lineup of 36 parties, and which obtained a measly 155,920 votes (or 0.98 percent of the total votes cast) was given one seat. Just slightly ahead of Cocofed were organizations like 1-Utak with 164,980 votes, and TUCP, with 162,647 votes, and Ang Kasangga, with 170,531, which were granted one seat each. With this kind of a ruling, it is not far-fetched for a party to garner only a thousand votes but still win a seat in Congress. If a measly thousand votes is enough, then any Tom, Dick or Harry can set up his faux party and wake up the next morning a genuine congressman complete with pork barrel. Hmmm.
May I quote some pertinent parts of the Banat decision:
Xxx xxx xxx
“From Table 2 above, we see that only 17 party-list candidates received at least 2% from the total number of votes cast for party-list candidates. The 17 qualified party-list candidates, or the two-percenters, are the party-list candidates that are ‘entitled to one seat each,’ or the guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed seats.
“The second clause of Section 11(b) of R.A. No. 7941 provides that ‘those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes. This is where petitioners’ and intervenors’ problem with the formula in Veterans lies. Veterans interprets the clause “in proportion to their total number of votes” to be in proportion to the votes of the first party. This interpretation is contrary to the express language of R.A. No. 7941.
“We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives.
“To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party list elections. A party that has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the two percent threshold, this situation will repeat itself even if we increase the available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the maximum number of par-ties get two percent of the votes for every party, it is al-ways impossible for the number of occupied party-list seats to exceed 50 seats as long as the two percent threshold is present.
“We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of ‘the broadest possible representation of party, sectoral or group interests in the House of Representatives.’
“In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed:
1. The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the num-ber of votes they garnered during the elections.
2. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one guaranteed seat each.
3. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to addi-tional seats in proportion to their total number of votes until all the additional seats are allocated.
4. Each party, organization, or coalition shall be entitled to not more than three (3) seats.
“In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as ‘additional seats’ are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats.
“In declaring the two percent threshold unconstitu-tional, we do not limit our allocation of additional seats in Table 3 below to the two-percenters. The percentage of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for party-list candidates. There are two steps in the second round of seat allocation. First, the percentage is multi-plied by the remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the remaining available seats corre-sponds to a party’s share in the remaining available seats. Second, we assign one party-list seat to each of the par-ties next in rank until all available seats are completely distributed. We distributed all of the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each qualified party-list candidate is entitled.
Table 3. Distribution of Available Party-List Seats
Rank Party Votes Garnered Votes Garnered over
Total Votes for Party List, in %
(A) Guaranteed Seat
(First Round)
(B) Additional Seats
(Second Round)
(C) (B) plus (C), in whole integers
(D) Applying the three seat cap
(E)
1 BUHAY 1,169,234 7.33% 1 2.79 3 N.A.
2 BAYAN MUNA 979,039 6.14% 1 2.33 3 N.A.
3 CIBAC 755,686 4.74% 1 1.80 2 N.A.
4 GABRIELA 621,171 3.89% 1 1.48 2 N.A.
5 APEC 619,657 3.88% 1 1.48 2 N.A.
6 A Teacher 490,379 3.07% 1 1.17 2 N.A.
7 AKBAYAN 466,112 2.92% 1 1.11 2 N.A.
8 ALAGAD 423,149 2.65% 1 1.01 2 N.A.
9 COOP-NATCCO 409,883 2.57% 1 1 2 N.A.
10 BUTIL 409,160 2.57% 1 1 2 N.A.
11 BATAS 385,810 2.42% 1 1 2 N.A.
12 ARC 374,288 2.35% 1 1 2 N.A.
13 ANAKPAWIS 370,261 2.32% 1 1 2 N.A.
14 ABONO 339,990 2.13% 1 1 2 N.A.
15 AMIN 338,185 2.12% 1 1 2 N.A.
16 AGAP 328,724 2.06% 1 1 2 N.A.
17 AN WARAY 321,503 2.02% 1 1 2 N.A.
18 YACAP 310,889 1.95% 0 1 1 N.A.
19 FPJPM 300,923 1.89% 0 1 1 N.A.
20 UNI-MAD 245,382 1.54% 0 1 1 N.A.
21 ABS 235,086 1.47% 0 1 1 N.A.
22 KAKUSA 228,999 1.44% 0 1 1 N.A.
23 KABATAAN 228,637 1.43% 0 1 1 N.A.
24 ABA-AKO 218,818 1.37% 0 1 1 N.A.
25 ALIF 217,822 1.37% 0 1 1 N.A.
26 SENIOR CITIZENS 213,058 1.34% 0 1 1 N.A.
27 AT 197,872 1.24% 0 1 1 N.A.
28 VFP 196,266 1.23% 0 1 1 N.A.
29 ANAD 188,521 1.18% 0 1 1 N.A.
30 BANAT 177,028 1.11% 0 1 1 N.A.
31 ANG KASANGGA 170,531 1.07% 0 1 1 N.A.
32 BANTAY 169,801 1.06% 0 1 1 N.A.
33 ABAKADA 166,747 1.05% 0 1 1 N.A.
34 1-UTAK 164,980 1.03% 0 1 1 N.A.
35 TUCP 162,647 1.02% 0 1 1 N.A.
36 COCOFED 155,920 0.98% 0 1 1 N.A.
Total 17 55
“Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 party-list representatives from the 36 winning party-list organizations. All 55 available party-list seats are filled. The additional seats allocated to the parties with sufficient number of votes for one whole seat, in no case to exceed a total of three seats for each party, are shown in column (D).”
It seems that the High Court in Banat simply leaned way over back-wards and rendered a decision tending to favor the “lesser parties,” at the expense of the topnotchers. What is worse is the unseemly spectacle of the last seven parties in terms of ranking – namely, Cocofed, TUCP, 1-Utak, Abakada, Bantay, Ang Kasangga, and Banat – whose aggregate votes sum up to only 1,167,654 votes, getting one seat each, or a total of seven seats in all, as compared to the topnotcher Buhay Party, which netted 1,169,243 votes but was entitled to only three seats. Those seven tail-enders as a group won slightly fewer votes than Buhay, but now they jointly wield more than twice the clout of the “pack leader.” There goes proportional representation, right out the window. Looks like the Court decided to open the back door and let in everyone and his/her uncles. Nineteen (19) party-list organiza-tions which previously would have been locked out for having failed to win at least two percent of total votes cast now suddenly found themselves being warmly welcomed by the Supreme Court into the hallowed halls of the House of Representatives. Did somebody whisper “judicial legislation?”
In Justice Nachura’s separate opinion in Banat, while he deemed the fixed two percent minimum vote requirement for the qualifying seat inconsistent with the Constitution, he however did not advocate doing away completely with a threshold vote requirement, and in fact he expressed full concurrence in Chief Justice Puno’s separate concurring opinion in Veterans, where the latter gave several reasons and justifications for the imposition and retention of a minimum vote or threshold vote requirement (whether it be two percent of total party-list votes, or otherwise), among them, “to ensure that only those with a more or less substantial following can be represented,” and to prevent the undue proliferation of numerous “political party groups and those who have not really been given by the people sufficient basis for them to represent their constituents, and in turn they will be able to get to the Parliament through the backdoor under the name of the party-list system xxx.”
Unfortunately, with the SC Decision in Banat, we see precisely the very thing sought to be prevented — the proliferation of parties and groups that have not garnered sufficient basis to justify their places in Congress. Witness the fact that, in Table 3 of Banat, the 3 tailenders, namely, 34th placer 1-Utak with 164,980 votes, 35th placer TUCPwith 162,647 votes, and 36th placer Cocofed with 155,920 votes, together register an aggregate of only 483,547 votes, or only 41.4% (i.e., less than half) of the votes garnered by the First Party (Buhay), and yet, by virtue of Banat, said three tailenders have been given one seat each, so the three of them together have the same number of seats as the First Party, even though the First Party’s 3 seats rep-resent 1,169,234 voters, or 2.4 times the number of voters represented by the 3 tailenders. It’s the same story of undue proliferation and disproportional representation as we go up through the rest of Table 3, for the data involving the 31st, 32nd, and 33rd placers tell essentially the same tale, as with the 28th, 29th and 30th placers, and so on and so forth.
I realize that any system of representation can never hope to be absolutely and exactly “proportional,” and the best that can be expected is some sort of approximation of proportionality, yet the results produced by Banat are so exceedingly disproportional as to border on the farcical. Let us keep in mind that the fundamental law does not only espouse the broadest possible representation of the people in Congress, but also insists that such representation be proportional in nature. It is anathema to the charter’s basic aims to seek to broaden representation at the expense of proportionality.
The situation begot by Banat becomes clearer as we examine the process of distribution. Since Banat declared unconstitutional the two per-cent threshold requirement insofar as it applied to the distribution of the additional seats, even those groups that failed to reach the two percent thresh-old requirement were given seats. It will be noted from Table 3 of Banat that, after the Court had parceled out 19 additional seats to the 17 two-percenters who had earlier been given their guaranteed seats, the Court then proceeded to hand out the remaining 19 additional seats to the rest of the party-list groups – i.e., those who did not meet the two percent threshold requirement – in the order of their ranking, based on the number of votes they garnered.
Thus, Yacap which was ranked no. 18 with 310,889 votes, got one seat; Cocofed which was ranked no. 36 with just 155,920 votes, or about half the votes of Yacap, also got one seat. It can be observed that, apart from the very obvious disproportion between the votes tallied by Yacap and those of Cocofed, there is a more disturbing element: the distribution of additional seats was done based on ranking, and without regard to the number of votes garnered. The Court stopped with Cocofed simply because it ran out of seats; all 55 seats had been distributed by then. Had there been any more seats left, the Court would have proceeded to hand them out to Agham, Anak, Abanse!Pinay and so forth and so on. Hence, for all that anyone cared, the bottom dwellers like 1-Utak, TUCP and Cocofed could have gar-nered only 5,000, or 3,000 or just 1,000 votes – it would not have mattered; for as long as there remained additional seats to be distributed, they would be handed out to whoever was next in line, regardless of how many (or how few) votes they tallied.
But, you ask, is this not a gross exaggeration and a far-fetched notion? No, not really. Table 1 of Banat shows the ranking of the 93 party-list groups that participated in the May 2007 elections, based on the number of votes they obtained. Bringing up the rear were organizations like UMDJ with 9,445 votes, Buklod Filipina with 8,915 votes, Lypad with 8,471 votes, AA-Kasosyo with 8,406 votes, and Kasapi with just 6,221. Under the Banat formula, for as long as there are seats available to be distributed, each party-list group would be given a seat no matter how few votes were obtained. The Banat system thus not only tramples upon the principle of proportional representation, but also lends itself to serious abuse.
With all due respect for the High Court, inasmuch as the Court was so keen on filling up the 55 seats, the better thing to do would have been to simply declare as unconstitutional both the three-seat limit and the two-percent threshold, and do away with them entirely. In this way, the Court could have freely computed the seat allocations with legal, mathematical, and proportional precision. And thereby avoided preposterous scenarios like those unlikely tail-enders strutting about in Congress, etc.!
More important, the Court ruled that the 20-percent allocation set by the Constitution was “merely a ceiling.” If so, on this basis, Congress could have and can float a range of party-list seat allocations, provided it does not exceed 20 percent at any time. Why then was the Court so utterly fixated on the election of 55 solons in order to reach the ceiling? In fact, under the Banat approach, reaching the ceiling is considered mandatory and obligatory. That’s clearly a doctrinal contradiction.
Again with all due respect for the Court, the seeming lack of logic in the Court’s approach, combined with the timing of the move (just ahead of / or in preparation for the May 2010 elections) serve to fuel speculation that the move was intended to enable the entry into Congress of as many new small parties as possible, whose nominees could be recruited as allies of certain vested interests. The Court’s lack of serious study of the implications of such an approach is evident in the unusual contradictions in its position.
When it decided the Veterans case back in 2000, the Court was not inclined to declare unconstitutional any provision of the party-list law. After all, the Charter gave Congress ample discretion to shape the “Pilipino-style” party-list system. The Court opted to work within the limits prevailing at the time. Back then, too, the House had fewer than 200 district representatives. The concern 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 an excessive number of additional districts, and not the “second clause”?
Warts and all, the Veterans formula was unanimously reiterated not too long ago in Partido ng Manggagawa vs Comelec (March 15, 2006) and Cibac vs Comelec (April 13, 2007) penned respectively by Chief Justice Reynato S. Puno (now retired) and Justice Presbitero J. Velasco Jr.
Notwithstanding such reiterations, the Court, with due respect, may have acted impetuously when it revisited Veterans and boldly “revised” the party-list law in 2009, in the process spawning new imponderables. It had also passed sub silencio its aforesaid recent 2006 and 2007 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 begat several 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 ballooned the total number of representatives beyond the 250 authorized by the Constitution. In so doing, has not the Court usurped the law-making function of Congress to increase the number of representatives beyond the constitutional limit of 250?
Now, in the event Congress refuses to pass, or delays passing, a new law increasing the number of representatives beyond 250, what would hap-pen 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? (But isn’t that what they’re there for?)
Interestingly, the Court ordered its Banat decision to be “immediately executory.” Under the Rules of Court, Supreme Court decisions may be executed only after they have become final, that is, after the lapse of 15 days from their receipt by the litigants. And in case a motion for reconsideration is filed, the decision cannot be executed until the motion is finally resolved. Such an immediately executory decision is simply outside the Rules of Court.
But the Court’s unusual “immediately executory” order meant that the Comelec had to hurriedly proclaim the new winners who, in turn, gleefully took their oaths and assumed their offices immediately. This unusual rush to assume office meant that the new lawmakers were effectively shielded from any immediate challenge or protest in our courts.
The Comelec normally decides all electoral contests. However, juris-prudence (including the recent one involving Representative Jocelyn Lim-kaichong) has consistently held that, after the candidates have been pro-claimed, have taken their oaths of office and assumed their positions, they are no longer subject to the jurisdiction of the poll body, for 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 Comelec loses jurisdiction over any pending electoral contests involving the newly proclaimed solons, as the latter have effectively “graduated” from being mere candidates to full-fledged members of Congress. They are thus catapulted beyond the jurisdiction of the poll body. Hence, the hurried proclamation of the party-list solons. And whether one likes to admit it or not, the odious role of the Supreme Court in having made that happen is far too obvious to be denied.
Regular election contests can be brought against the newly minted solons before the House of Representatives Electoral Tribunal (HRET). But their term of office will have already ended even before the proceedings can get underway. An HRET proceeding, costly and cumbersome as it is, can hardly be finished in the span of one year. Moreover, HRET decisions may still be reviewed by the Supreme Court, thus resulting in further delay.
While there may have been grounds to assail the election or qualifications of the new partylist solons (like Jovito Palparan and Ma. Lourdes Arroyo at that time), keeping in mind the High Court’s pronouncements in Ang Bagong Bayani, to the effect that “not only must the candidate party or organization represent marginalized and underrepresented sectors; so must its nominees, nevertheless, we may never find out the judicial answer, because of the immediately executory nature of the Banat ruling.
And then there’s the matter of the erroneous math. The Constitution provides that “(t)he party-list representatives shall constitute twenty per centum of the total number of representatives, including those under the party-list.” 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 were actually only 216 incumbent district representa-tives (DRs). If the 55 party-list solons were added to the 216 incumbent DRs, the total would only be 271. And 20 percent of 271 is only 54.2 not 55. The Court itself has ruled against rounding-off; a fraction of a percent could not be rounded off to one. Clearly, the 55 seats authorized by the Banat de-cision exceeded the 20 percent limit embedded in the Charter. Thus the query: Is the order to proclaim 55 candidates 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 number of 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 — still short of 55.
Fortunately, the Comelec noticed this mathematical disparity and promptly cut down the 55 party-list nominees ordered by the Court to only 54. Otherwise, the House would have had an unconstitutional number of party-list representatives mandated by the “immediately executor” but mathematically defective decision.
Bottom-line: Congress should step up to the plate and take the lead in correcting the deficiencies of the party-list law, as previously suggested by the Court in Veterans. For one thing, Congress has the means to do a thorough job of revising the law. The Court can identify statutory defects and when needed offer ad hoc palliatives, but they are no substitute for congressional debates, public hearings and careful deliberations to seek out and formulate policy solutions.
Only for the marginalized and under-represented.
This year, the Comelec has been applying inconsistent standards in accrediting party-list candidates and their nominees. In April this year, the Supreme Court reversed Comelec’s flimsy decision disqualifying Ang Lad-lad. But then Comelec insisted on disqualifying the Disabled Pinoy Party, while allowing Rep. Mikey Arroyo to be the first nominee of a party-list of security guards and former Secretary Angelo Reyes to represent a party-list of bus and jeepney drivers. (More on these Comelec edicts later.)
Comelec’s job is simply to follow existing jurisprudence. In Ang Bagong Bayani vs Comelec, the High Court clearly ruled that the party-list system was reserved only for those “(1) who belong to the marginalized and underrepresented sectors, organizations and parties; and (2) who lack well-defined constituencies but (3) who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.” Thus, the party-list candidate must show – through its constitution, articles of incorporation, bylaws, history, platform of government and track record – that it represents and seeks to uplift marginalized and underrepresented sec-tors.
Ang Bagong Bayani likewise plainly held that “not only the candidate party or organization must represent marginalized and underrepresented sectors so must its nominees- who (must also) belong to marginalized and underrepresented sectors.” To stress that both the party-list candidate and the nominees must be “marginalized,” the Court cited examples, “Surely the interest of the youth cannot be fully represented by a retiree; neither can those of the urban poor or working class, by an industrialist. To allow otherwise is to betray the State policy to give genuine representation to the marginalized and underrepresented.”
Considering the clear and uncomplicated jurisprudence prevailing throughout the past nine years, it is startling to find Comelec taking varying and conflicting positions, sometimes outrightly contrary to jurisprudence. Let’s take a longer look at some recent Comelec decisions.
Maza vs Mikey Arroyo
Juan Miguel “Mikey” Arroyo, son of the former President, and first nominee of the Ang Galing Pinoy party-list group, was the subject of two petitions seeking to declare him not qualified to be such nominee since he did not belong to any marginalized sector and/or was not a bona fide member of the party he sought to represent, but instead was himself an incumbent congressman/district representative. In a Joint Resolution, the Second Division of Comelec dismissed both petitions for lack of merit, ratiocinating that diversity in membership was permissible and that only a majority of the members need belong to the marginalized sector being represented by the party, and that any bona fide member of the party-list group, whether be-longing to the majority or not, was entitled to be nominated by the party. The Second Division also found that Arroyo was a member in good standing who had immersed himself in the hopes and aspirations of the party and sec-tor, and thus had as much right to become nominee as any other member. Subsequently, the Commission en banc, by a vote of 4-2-1, held that the motions for reconsideration filed by petitioners were pro forma and did not toll the period for appeal.
Despite having already trashed said motions for being pro-forma, in-credibly the Commission en banc, in the very next breath, proceeded to re-solve said motions insofar as these alleged that Arroyo was not qualified to be nominee since he was not a member of the marginalized sector he sought to represent, as required in Section 6 of Comelec Resolution No. 8807. The Commission en banc then declared that the effect of item no. 7 of Section 6 was to unwarrantedly modify, amplify or interpret the party-list law, which spells out the qualifications of a nominee. According to the Commission en banc, all that the party-list law itself requires was that the nominee be a bona fide member of the party or organization he sought to represent, and that the nominee himself need not be marginalized. Since item no. 7 was not found in the party-list law, adding said qualification was tantamount to legislating, which was beyond the powers and authority of the Commission.
The Resolution went on to excoriate the petitioners for failing to include in their petitions the mandatory certificate of non-forum shopping, for failing to present evidence to prove that Arroyo was not a member of the Ang Galing Pinoy party, and for forgetting to append a notice of hearing to their motions for reconsideration. Surprisingly, the Commission en banc went out of its way to unnecessarily resolve what it claimed were two non-existent motions for reconsideration!
Given the standards set in Ang Bagong Bayani, as reinforced in Banat, it cannot be plausibly argued that Mikey Arroyo, not being a security guard by occupation, was nevertheless qualified to represent the security guard sector. Comelec then should have simply refused to accredit him. However, he has since taken his oath of office as representative, and has thus been re-moved from the jurisdiction of Comelec. His eventual fate now rests in the hands of the HRET. But until that day comes, he will continue to enjoy the perks and privileges of a member of the House of Representatives.
The renowned constitutionalist Fr. Joaquin G. Bernas, S.J. in his re-cent column titled “Mikey as party-list rep?” scolded the poll body thus: “The divided decision of the Comelec on whether Mikey Arroyo qualifies as a party-list representative is indication that some commissioners have cho-sen to ignore the law on the subject. The Supreme Court will have to send them back to school.”
After quoting extensively from Ang Bagong Bayani, Fr. Bernas con-cluded: “Finally, to quote the 2001 Court decision once more: ‘In the end, the role of the Comelec is to see to it that only those Filipinos who are marginalized and underrepresented become members of Congress under the party-list system, Filipino-style.’ How could some Comelec commissioners miss this if not deliberately? And what should an enlightened Comelec do with a party-list organization which by its choice of nominees seeks to pros-titute the system?”
Dayao vs LPG Marketers Association
On January 5, 2010, Comelec’s First Division resolved to grant the petition of LPG Marketers Association, Inc. for registration as a sectoral or-ganization under the party-list system. In April 2010, a complaint was filed for cancellation of registration, alleging that LPGMA incorporators and offi-cers are part of big business and do not belong to and cannot represent the marginalized sectors.
The Comelec’s First Division dismissed the complaint, reasoning that Section 6 of RA 7941 gives the grounds for cancellation of registration of a party-list group, and the grounds enumerated therein are exclusive; since the complaint failed to cite any of said grounds as basis for seeking cancellation of registration, it is unmeritorious. Moreover, the complainants did not try to oppose or intervene in the registration despite constructive notice via publication, but waited four months before filing the complaint. The First Division regarded the belated complaint as an attempt to circumvent the final and executory nature of the Resolution dated Jan. 5, 2010.
Reconsideration was denied by the Commission en banc in its Resolution dated Sept. 6, 2010, holding that in resolving to grant the petition for registration of LPGMA, Comelec’s First Division had already made findings in its Resolution of Jan. 5, 2010 supporting its conclusion that LPGMA truly represented a marginalized and underrepresented sector, and absent any circumstance subsequent to promulgation of said Resolution that may call for the cancellation of registration, said conclusion could no longer be disturbed. The Commission en banc also declared it did not find a single allegation in the complaint that showed a change in the general profile of LPGMA, particularly the composition of its membership, since the time of its registration as party-list group. Hence, there was no reason for the Commission en banc to undertake a determination of whether a majority of members of LPGMAactually belonged to a marginalized and underrepresented sector, this issue having been already addressed by the First Division.
The Commission en banc also agreed that the allegations in the com-plaint should have been raised early on in an opposition to the petition for registration, or at the very least in a timely motion for reconsideration of the Resolution of Jan. 5, 2010, thereby implying and suggesting that a complaint for cancellation of registration is unavailing and may be construed as a mere attempt to circumvent a final and executory resolution in which a party-lister had already been determined to be qualified as such.
Despite not having polled enough votes, Comm. Sarmiento’s Dissenting Opinion is worth studying on account of the cogency of the arguments therein. The dissent scores the majority holding that, after a determination that the sector which a party-list group represents is a marginalized and underrepresented sector, the Comelec can no longer revisit its own determination; it rejected the view that the fact of a party-list group not representing a marginalized and under-represented sector may not be raised as an issue in a petition to cancel registration, but only in an opposition to a petition for registration/accreditation.
The dissent maintains that Comelec may, if grounds exist and the evidence warrants, either motu proprio or upon verified complaint, cancel the registration of a registered national, regional or sectoral party, organization or coalition, and such cancellation may be done at any time. May I quote Comm. Sarmiento: “(R)egistration is not a pronouncement ‘ex cathedra’ from Comelec stamped with permanence that binds the Commission and the public for all eternity. The registration is contingent on the possession or non-possession of all the qualifications or disqualifications.
“All the condition sine quibus non for registration under the party-list system must be possessed at the time of and during the entire duration of registration. Xxx xxx the registration may be cancelled the moment the party-list ceases to comply with all the conditions for registration or at the moment it is established that it does not possess the required qualification/s xxx.The cancellation, therefore, can be done at any time after registration so long as there is due notice and hearing and the removal is based on reason-able ground/s that took place or are present after the fact of registration and even those that may already be present before the fact of registration but may have been overlooked or did not surface during the screening process.”
Among the grounds that may be the basis for cancellation of registra-tion is the fact that the sector, to which a party-list belongs or seeks to repre-sent is not marginalized or under-represented. The dissent then underscored LPGMA’s failure or refusal to disclose the names and addresses of its thou-sands-strong membership (supposedly micro-entrepreneurs, retailers, store-owners and consumers) in the NCR and the sectors to which they belong. The dissent also established, by marshalling the available data, that the party-lister’s president, vice-presidents, treasurer, and other trustees and incorporators all had significant ownership interests in various LPG refilling plants, and were not themselves marginalized; this was not refuted by the group.
Inasmuch as trustees and officers decide key issues affecting the entire organization and chart its course, the dissent maintains that the actions of the marketers, as businessmen and owners of LPG refilling companies, are primarily profit-driven, and are oriented towards making bigger gains. This can only mean that the interests and actions of these businessmen will always be at odds with those of the consumers they profess to represent. No one can be expected to swallow the argument that in the legislature, these LPG businessmen will work against their own interests and promote those of consumers; if ever LPGMA happens to pursue “advocating the promotion of fair trade practices and prevention of re-entry of cartels and monopolies, by pur-suing the initial gains of oil deregulation,” etc. in the House of Representatives, it will be because the primary beneficiaries will be the marketers themselves.
In re: Haresco and Lacson
A petition for disqualification was filed against Teodorico Haresco and Eugenio Lacson, first and second nominees respectively, of the Ang Kasangga Party-List, which claims to represent small or micro-entrepreneurs, for the reason that said respondents did not belong to any marginalized sec-tor, since Haresco is a big businessman engaged in various ventures, and a government appointee to boot, while Lacson is a three-term mayor of San Carlos City, Negros Occidental and a top stockholder of certain finance companies. Respondents aver that as bona fide members of Ang Kasangga, they satisfy the requirements for nominees; they admitted their business interests but claimed active participation in implementation of various projects for the improvement of the lot of micro-enterprises and their micro-entrepreneur members.
The Comelec’s First Division did not buy respondents’ arguments and unanimously ruled to disqualify them as nominees. On reconsideration, however, the Commission en banc in its Resolution of Sept. 20, 2010 re-versed the First Division. Remarkably, though, after the Commission en banc identified the two issues to be resolved, viz., (1) whether respondents were disqualified as nominees, and (2) whether the Commission had lost its jurisdiction over the instant case, instead of determining the jurisdiction is-sue first so that, in the proper case, it might avoid unnecessarily resolving the other issue, the Comelec en banc drove right into the disqualification dispute.
The banc criticized the First Division for relying heavily on the eight-point guidelines found in Ang Bagong Bayani and on Item no. 7 of Section 6 of Comelec Resolution No. 8807; it deemed the First Division to have erred in thinking that a nominee must himself be marginalized just like the party-list organization he is to represent. According to the banc, RA 7941 in its Section 9 only requires the nominee to be a bona fide member of the party or organization – it does not require the nominee to be also marginalized; moreover, claimed the banc, the High Court’s eight-point guidelines in Ang Bagong Bayani constituted mere obiter dictum, because that case allegedly involved the sole issue of the qualification of party-list applicants, not the qualification of party-list nominees. As to the second issue of loss of juris-diction over the case, the banc castigated the First Division for failing to touch upon said issue at all despite the same having been repeatedly raised in three motions, filed with the First Division prior to the promulgation of its assailed resolution, which notified the body that Haresco had already taken his oath of office as the elected representative of Ang Kasangga Party-List.
It appears from the records that at the time the assailed resolution of the First Division was promulgated on July 7, 2010, respondent Haresco had already been proclaimed as party-list representative, had taken his oath of office, assumed said position and commenced performing his official func-tions. The banc thus ruled that since the present case was akin to Lim-kaichong vs. Comelec, therefore the First Division no longer had jurisdic-tion to render the assailed resolution. The en banc Resolution proceeded to grant the respondents’ motion for reconsideration, reverse the First Division’s resolution promulgated on July 7, 2010, and dismiss the petition for disqualification – all the while turning a blind eye to the doctrine reiterated in Limkaichong! How could they possibly have missed their own point?
San Mateo vs Reyes
Petitioners in this case sought respondent’s disqualification as nomi-nee of 1-Utak, an organization representing jeepney, bus and other public utility vehicle drivers, operators and commuters. Respondent Angelo Reyes, a retired high-ranking military official and former cabinet secretary at the helm of several different departments of government, was deemed never a member of any marginalized and under-represented sector. In July 2010, the Comelec’s Second Division rendered a consolidated resolution finding Reyes qualified to be nominee of the said group and dismissing the petitions. In August 2010, the party-list withdrew its nomination of Reyes.
On reconsideration, the Comelec en banc, by a close 4-3 vote, re-versed the Second Division’s resolution and declared Reyes disqualified to be nominee of said group. The banc noted that, while there is no express or implied prohibition against former government officials becoming party-list nominees, and while Reyes may have done many things that help to advance the advocacy of 1-Utak, still the Commission believed that Reyes did not be-long to the marginalized sectors that the party-list group sought to represent. The Commission noted that the activities Reyes claimed were in furtherance of the advocacies of 1-Utak were all performed by him not in his personal capacity, but in his official capacity as member of the cabinet. For instance, his actions against kotong cops were in the performance of his duties as Secretary of the DILG; the policies he enunciated for the conversion of old engines to newer ones were part and parcel of his duties as Secretary of the DENR to protect the environment and implement the Clean Air Act; and the various activities he undertook in connection with the Energy Summit of 2008 were on account of his work as Secretary of the DOE.
In short, he was just doing his job and not serving as an advocate of the marginalized sector represented by 1-Utak. After all, members of the cabinet are absolutely prohibited from engaging in partisan political activi-ties. Moreover, the constitution and by-laws of 1-Utak provide that to be a member of that organization, one must be a transport worker, a transport leader/member of a transport group, or a recognized transport group; Reyes definitely did not fit the membership requirement. At bottom, the Commission held that Reyes was not qualified to be nominee of the 1-Utak party-list as he did not belong to the marginalized sector represented by said group.
Recapping, of the abovementioned four cases recently decided by the poll body, only the last one may be said to have been resolved and disposed of in line with prevailing jurisprudence.
Significance of Banat
In connection with the foregoing discussion on the Comelec’s recent rulings, we can say that the Banat decision is important twice over, in that, firstly, on a very positive note, it clearly and unmistakably reaffirmed Ang Bagong Bayani where the latter case declared that the party-list nominees must themselves be from the marginalized and under-represented sectors:
“Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organization’s nominee ‘wallow in poverty, destitution and infirmity’ as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors, that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen.”
and, secondly, it trumpeted a shrill warning, calling attention to the fact that only by the slimmest of margins did the Court vote to continue disallowing major political parties from participating in the party-list elections, directly or indirectly:
“However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from participating in the party-list elections, directly or indirectly. Those who voted to continue disallowing major political parties from the party-list elections joined Chief Justice Reynato S. Puno in his separate opinion. On the formula to allocate party-list seats, the Court is unanimous in concurring with this ponencia.”
The 8-7 vote means that the ban on major political parties against di-rectly or indirectly participating in party-list elections is an utterly fragile thing that can disappear at any time. Note that “(t)hose who voted to con-tinue disallowing major political parties from the party-list elections joined Chief Justice Reynato S. Puno in his separate opinion.” And with Chief Justice Puno’s recent retirement, the 8-7 ratio may have suddenly become a thing of the past. In short, if an appropriate case were to reach the Court to-day, and the members of the Tribunal voted thereon at this time, the so-called ban on political parties may just evaporate into thin air, thus throwing wide-open the floodgates and allowing all manner of political parties to in-vade and take over the exclusive preserve of the party-listers, to the detriment and possible demise of the latter.
Clearly, the most urgent need of the hour is for legislation to be passed to revise the party-list act and install permanent safeguards to prevent abuses and misuses of the system.
Epilogue
The party-list system is clearly vulnerable to manipulation and misuse. Instead of effectively aiding the upliftment of the marginalized sectors, the party-list system may be readily co-opted and utilized inter alia to maintain certain personages in political power. All it takes is a few willing souls in the poll body, the judiciary and of course, the legislature. The clarion call of the hour is for ceaseless public vigilance and amendatory legislation to effectively deter and fight off such attempts to manipulate the party-list sys-tem. We can only hope that such remedial legislation will be initiated soonest by the legitimate party-listers – the very ones who in all likelihood will first to be ousted from Congress should the party-list system succumb to wholesale manipulation and abuse. What we have witnessed thus far has given ground for serious concern that the party-list system may sooner than later be manipulated and dominated by a miniscule minority who will have a very big say in and take effective control of the legislative branch of government, where they can freely advance their own interests, at the expense of the long-suffering public.
Maraming salamat po.
The Personal Website of Retired Chief Justice Panganiban 