EN BANC
[ G.R. No. 246816, September 15, 2020 ]ANGKLA: ANG PARTIDO NG MGA PILIPINONG MARINO v. COMELEC (SITTING AS NATIONAL BOARD OF CANVASSERS) +
ANGKLA: ANG PARTIDO NG MGA PILIPINONG MARINO, INC. (ANGKLA), AND SERBISYO SA BAYAN PARTY (SBP), PETITIONERS, VS. COMMISSION ON ELECTIONS (SITTING AS THE NATIONAL BOARD OF CANVASSERS), CHAIRMAN SHERIFF M. ABAS, COMMISSIONER AL A. PARRENO. COMMISSIONER LUIE TITO F. GUIA, COMMISSIONER MA. ROWENA AMELIA V. GUANZON, COMMISSIONER SOCCORRO B. INTING, COMMISSIONER MARLON S. CASQUEJO, AND COMMISSIONER ANTONIO T. KHO, JR., RESPONDENTS. AKSYON MAGSASAKA - TINIG PARTIDO NG MASA (AKMA-PTM), PETITIONER-IN-INTERVENTION.
D E C I S I O N
ANGKLA: ANG PARTIDO NG MGA PILIPINONG MARINO v. COMELEC (SITTING AS NATIONAL BOARD OF CANVASSERS) +
ANGKLA: ANG PARTIDO NG MGA PILIPINONG MARINO, INC. (ANGKLA), AND SERBISYO SA BAYAN PARTY (SBP), PETITIONERS, VS. COMMISSION ON ELECTIONS (SITTING AS THE NATIONAL BOARD OF CANVASSERS), CHAIRMAN SHERIFF M. ABAS, COMMISSIONER AL A. PARRENO. COMMISSIONER LUIE TITO F. GUIA, COMMISSIONER MA. ROWENA AMELIA V. GUANZON, COMMISSIONER SOCCORRO B. INTING, COMMISSIONER MARLON S. CASQUEJO, AND COMMISSIONER ANTONIO T. KHO, JR., RESPONDENTS. AKSYON MAGSASAKA - TINIG PARTIDO NG MASA (AKMA-PTM), PETITIONER-IN-INTERVENTION.
D E C I S I O N
LAZARO-JAVIER, J.:
These twin Petitions a) for Certiorari and Prohibition, and b) in-Intervention assail the constitutionality of Section 11 (b), Republic Act No. (RA) 7941[1] insofar as it provides that those garnering more than two percent (2%) of the votes cast for the party list system shall be entitled to additional seats in proportion to their total number of votes, thus:
Petitioners ANGKLA: Ang Partido Ng Mga Pilipinong Marino, Inc., (ANGKLA) and Serbisyo sa Bayan Party (SBP) and Petitioner-in-Intervention Aksyon Magsasaka-Partido Tinig ng Masa (AKMA-PTN) essentially assert that the allocation of additional seats in proportion to a party-list's "total number of votes" results in the double-counting of votes in favor of the two-percenters. For the same votes which guarantee the two-percenters a seat in the first round of seat allocation are again considered in the second round. The proviso purportedly violates the equal protection clause, hence, is unconstitutional.[2]
The aforenamed petitioners, therefore, pray that respondent Commission on Elections (COMELEC) be enjoined from double-counting the votes in favor of the two-percenters. Instead, the 2% votes counted in the first round should first be excluded before proceeding to the second round of seat allocation. Their proposed framework is, as follows:
On June 13, 2019, AKMA-PTM filed the petition-in-intervention[8] echoing the arguments raised in the main petition pertaining to the alleged unconstitutionality of the double-counting of votes. It points out that the total votes cast under the party-list system during the May 13, 2019 elections numbered 27,884,790. Thus, a party, organization or coalition taking part in the party-list election must have obtained 2% thereof, or at least 557,695.80 votes, to secure a guaranteed seat. It argues that each time a party, organization, or coalition taking part in the party-list election earns a guaranteed seat, 557,695.80 of its votes should then be deducted from the total number of votes obtained by that party-list, thus:[9]
The Office of the Solicitor General (OSG), through Solicitor General Jose C. Calida, Assistant Solicitor General Thomas M. Laragan and State Solicitor Isar O. Pepito, defends the position of public respondent COMELEC. It ripostes, in the main:
First. There is no double-counting of votes since the system of counting, pertains to two (2) different rounds and for two (2) different purposes: the first round is for purposes of applying the 2% threshold and ensuring that only party-lists with sufficient constituencies shall be represented in Congress, while the second round is for the purpose of ensuring compliance with the constitutional fiat that 20% of the members of the House of Representatives shall be elected via a party-list system.[10]
Second. The challenged provision does not violate .the equal protection clause. The two-percenters have a clearer mandate of the people than the non-two-percenters. This substantial distinction between the two (2) justifies the grant of additional rights and benefits to the former over the latter.[11]
Third. Petitioners mislead the Court in claiming that its Resolution in BANAT dated July 8, 2009 supports their proposed framework, when the latter's proposal in fact is contrary thereto.[12]
Finally. RA 7941 does not defeat the rationale behind the party-list system. It is erroneous for petitioners to hint that the system is reserved for the marginalized and underrepresented. On the contrary, skewed in favor of minimally-representative and unpopular party, organization or coalition taking part in the party-list election, petitioners' proposed formula is repugnant to the aim of the party-list system to ensure the broadest representation possible.[13]
Issue
Is Section 11(b), RA 7941 allocating additional seats to party-lists in proportion to their total number of votes unconstitutional?
Ruling
The petitions are devoid of merit.
Petitioners fail to meet the third requisite for judicial review
The power of judicial review is conferred on the judicial branch of government under Section 1, Article VIII of the Constitution[14] It sets to correct and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch of Government[15] and may therefore be invoked to nullify actions of the legislative branch which have allegedly infringed the Constitution[16]
Although directly conferred by the Constitution, the power of judicial review is not without limitations. It requires compliance with the following requisites: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have legal standing to challenge; he or she or it must have a personal and substantial interest in the case such that he or she or it has sustained, or will sustain, direct injury as a result of the assailed measure's enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[17]
There is no dispute that the first and the second requisites are present in this case:
First. An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.[18] A question is ripe for adjudication when there is an actual act that had been performed or accomplished that directly and adversely affected the party challenging the act.[19]
Here, the COMELEC already applied the assailed Section ll(b), RA 7941 when it promulgated Resolution No. 004-19, proclaimed the winning party-list parties, organizations, or coalitions in the May 13, 2019 party-list election and allocated to each of them seats in the House of Representatives.
Second. Locus standi or legal standing is the personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.[20] Petitioners assert that the nullification of the contested proviso would entitle them to one (1) seat each in Congress under the party-list system.
But the third requisite - - the question of constitutionality must be raised at the earliest possible opportunity - - is absent here.
RA 7941 was enacted in 1995. In 2009, the Court settled the interpretation of Section 11(b) in BANAT. The Court takes judicial notice of the fact that, thereafter, petitioner ANGKLA was proclaimed as a winning party-list organization in the 2013 and 2016 party-list elections. On the other hand, SBP garnered enough votes to secure a congressional seat in 2016.
Petitioners ANGKLA and SBP had therefore benefited from the BANAT doctrine in the previous elections. In fact, SBP itself, being among the winning party-list groups in the 2016 elections impleaded as respondent in An Waray v. COMELEC,[21] even defended the application of the BANAT formula., viz.:
There was no grave abuse of discretion
Indeed, for ANGKLA, SBP, and AKMA-PTM now to question the constitutionality of the assailed proviso in Section 1 l(b) of RA 7941 not only came too late in the day, but also reeks of inconsistent positions and double standard which negate the presence of the third requisite of judicial review.
Justice Mario Victor "Marvic" F. Leonen shared his enlightening thoughts during the deliberation, viz.:
In Schneider v. Jergens,[25] petitioner was faulted, for not raising the constitutional argument at the earliest opportunity in the prior petition for certiorari as he raised it only in the later petition for federal habeas corpus. Schneider identified the earliest opportunity as the earlier petition for certiorari though it was not a continuation of the later petition for federal habeas corpus, or in other words, though the prior petition was not a vertical, opportunity wherein to raise the constitutional argument, but a horizontal case being a mere related case.
There is really no reason to distinguish between the vertical and the horizontal as to when the earliest opportunity to raise the constitutional argument should be made. The threshold is not whether the earliest opportunity was in the pleadings and processes prior in time in the same case, but whether the grounds for the constitutional objection was already apparent when the prior case was being heard, regardless of the vertical or horizontal nature of the case in which it could have been raised.
Failure to pass the horizontal test of "earliest opportunity" certainly calls for the application of estoppel. In Philippine Bank of Communications v. Court of Appeals,[26] the Court enunciated:
Petitioners knew and still know how they had ended up to obtain party-list seats - through the BANAT formula. They knew and still know the BANAT rule, by heart. They knew and still know what this rule entails. Petitioners consist of knowledgeable individuals, not ones who accidentally or luckily became legislators, but ones who through tactics and strategies became party-list representatives in Congress.
In any event, had petitioners believed in good faith that the BANAT formula was and still is inapplicable and invalid, they should have early on refused their seats as a result of this formula and contested its constitutionality, if only to show that this issue is essential to a resolution of their claims.
To repeat, the Court may deny redress despite the litigant establishing a clear right and availing of the proper remedy if it appears that said litigant acted unfairly or recklessly in respect to the matter in which redress is sought, or where the litigant has encouraged, invited, or contributed to the injury sustained.28
But given the transcendental importance of the issues raised in this case, the discussion on the third requisite cannot end here. As we have held' in Padilla v. Congress,[29] "it is an accepted doctrine that the Court may brush aside procedural technicalities and, nonetheless, exercise its power of judicial review in cases of transcendental importance."
The constitutional challenge lodged here has the potential to alter the political landscape in the country and may steer State policy towards attaining the broadest possible party-list representation in the House of Representatives.
Quite anti-climactically, as regards the fourth requisite of judicial review, the Court finds that the question of constitutionality is the very lis mota here. Lis mota is a Latin term meaning the cause or motivation of a legal action or lawsuit. The literal translation is "litigation moved."[30] Under the rubric of lis mota, in the context of judicial review, the Court will not pass upon a question of unconstitutionality, although properly presented, if the case can be disposed of on some other ground, such as the application of the statute or the general law. The petitioner must be able to show that the case cannot be legally resolved unless the constitutional question raised is determined.[31]
Here, the threshold issue raised by petitioners and met head-on by respondents is the constitutionality of Section ll(b) of RA 7941. It is indeed the very lis mota of the case. Resolving the issue of constitutionality is the only way the case can be settled once and for all. Otherwise, every election will become a Lazarus Pit where the perennial question on the allocation of party-list seats gets resurrected without fail. In fact, every three (3) years in the past and every (3) years thereafter, the Court had been and will be confronted with the all too familiar question on the applicability or inapplicability of BANAT vis-a-vis Section 11 (b) of RA 7941.
The present case illustrates much more than a power struggle between would-be members of the House of Representatives. Thus, the Court may properly exercise jurisdiction over the same pursuant to Sections 4(2) and 5 of Article VIII of the Constitution, to the exclusion of the COMELEC and the House of Representatives Electoral Tribunal (HRET).
It bears emphasis that the jurisdiction of the HRET is limited under Section 17, Article VI of the Constitution, viz.:
The Constitution gives Congress the discretion to
formulate the manner of allocating congressional
seats to qualified parties, groups, and coalitions.
The Constitution mandates that the party-list system shall compose twenty percent (20%) of the total membership in the House of Representatives.[32] But the matter on how party-lists could qualify for a seat is left to the wisdom of the legislature.[33] Section 5(1), Article VI of the Constitution ordains:
xxx xxx xxx
Pursuant to this constitutional directive, Congress enacted RA 7941 setting forth the parameters for electing party-lists and the manner of allocating seats to them:
The advantage given to the two-percenters
does not violate the equal protection clause.
Petitioners do not challenge the first round of seat allocation. They maintain, however, that the second round of seat allocation results in the double-counting of votes. According to them, each vote after the 2% threshold (to which has been allotted a guaranteed one seat) should already carry equal weight. They assert violation of the "one person, one vote" principle as well as the equal protection clause.
Petitioners are mistaken in claiming that the retention of the 2% votes in the second round of seat allocation is unconstitutional. All votes, whether cast in favor of two-percenters and non-two-percenters, are counted once. The perceived "double-counting of votes" does not offend the equal protection clause - it is an advantage given to two-percenters based on substantial distinction that the rule of law has long acknowledged and confirmed.
a. One person, one vote
Petitioners' claim, which Justices Alexander G. Gesmundo and Rodil V. Zalameda echo, is hinged on the principle of "one person, one vote". Justice Gesmundo even cites the discussion of retired Senior Associate Justice Antonio T. Qarpio of this principle in his dissenting opinion in Aquino III v. COMELEC,[37] thus:
Indeed, all voters are entitled to one vote. This truism is and remains inviolable. Senior Associate Justice Perlas-Bernabe opined that this great equalizer "is a knock against elitism and advances the egalitarian concept that all persons are equal before the eyes of the law." Contrary to petitioners' claim, this principle is not diminished by the two (2) rounds of seat allocation under the BANAT formula.
Petitioners foist the idea that only the votes of the two-percenters were counted and considered in the first round. Justice Gesmundo seems to agree with them and states:
As correctly argued by the OSG, the system of counting pertains to two (2) different rounds and for two (2) different purposes: the first round is for purposes of applying the 2% threshold and ensuring that only party-lists with sufficient constituencies shall be represented in Congress, while the second round is for the purpose of ensuring compliance with the constitutional fiat that 20% of the members of the House of Representatives shall be elected via a party-list system, thus, seats are computed in proportion to a party-list's total number of votes.
Such is the current state of the party-list system elections. Since the system does not have a defined constituency as in district representation, elections are won by hurdling thresholds, not by sheer plurality of votes. Congress deemed it wise to set two (2) thresholds for the two (2) rounds of seat allocation. Each party-list earns a seat each time they hurdle the threshold in each round. But to clarify, each vote is counted only once for both rounds.
In the first round, party-lists receiving at least 2% of the total votes cast for the party-list system are entitled to one seat. In determining whether a party-list has met the proportional threshold, its percentage number of votes is computed, as follows:
Number of votes obtained by a Party-list
Total number of votes cast under the
party-list system
The "total number of votes cast under the party-list system", the. very divisor of the formula, the very index of proportionality, requires that all votes cast under the party-list system be counted and considered in allocating seats in the first round, be it in favor of a two-percenter or a non-two-percenter. This only goes to show that all votes were counted and considered in the first round. Just because the non-two-percenters were not allocated a guaranteed seat does not mean that their votes were accorded lesser weight, let alone, disregarded. It simply means that they did not reach the proportional threshold in the first round.
Take for example a senatorial race where only twelve (12) seats are vacant. When the 15th placer is not awarded a seat, this does not mean that the votes cast in his or her favor were not counted and his or her constituents, disenfranchised. This simply means that the candidate's total votes were not enough to warrant a seat in the Senate; the candidate simply lost.
Another. In a district election for a representative in the House, a mere plurality winner takes it all. No matter how many votes the first placer has over the second placer, whether just one vote or a million votes, the outcome is the same - the second placer's votes are not equal to the first placer's votes in the sense that the former and his or her votes do not get to be actually represented in the House, though theoretically the first placer represents all his or her constituency including those who did not vote for him or her. Yet, there is no violation of the "one person, one vote" doctrine because the overall effect of the votes is that their representative (whether they voted for said candidate) gets to vote in the House and his or her vote has the same or equal weight as the vote of any other Representative.
Just as how all votes were considered in the first round of seat allocation, all votes would be considered in the first part of the second round of seat allocation, too. Lest it be misunderstood, though, there is no second round of counting at this stage. We do not recompute the number of votes obtained by each party nor the percentage of votes they garnered. We do not tally the votes anew. We do not modify the data used in the first round. Instead, the number of votes cast for each party as determined in the first round is preserved precisely to ensure that all votes are counted only once.
In her scholarly treatise, Senior Associate Justice Perlas-Bernabe elucidated:
The distinction between two-percenters and non-two-percenters has long been settled in Veterans Federation Party v. COMELEC (Veterans)[39] where the Court affirmed the validity of the 2% voting threshold. Veterans, effectively segregates and distinguishes between the two (2) classes, two-percenters and non-two-percenters. It explains the rationale behind the voting threshold and differential treatment, viz.:
Justice Leonen drew us to the comparison of our country's party-list system to German elections, thus:
The Veterans formula which excluded non-two-percenters in the allocation of additional seats was sustained in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections[44] in relation to the 2001 elections, and in Partido Ng Manggagawa v. Commission on Elections[45] and Citizens' Battle Against Corruption v. Commission on Elections[46] both in relation to the 2004 elections.
To stress, the nullification of the 2% threshold for the second round was not meant to remove the distinction between two-percenters and non-two-percenters. The nullification was not for any undue advantage extended to two-percenters. Rather, the rationale for the second round was to fulfill the constitutional mandate that the party-list system constitute 20% percent of the total membership in the House of Representatives, within the context of the rule of proportionality to the total number of votes obtained by the party, organization, or coalition.
Indeed, completing the 20% party-list composition in the bigger house of Congress would have been extremely difficult to achieve, nay, mathematically impossible, if only the 2% threshold and the three-seat cap were the considerations in place for determining a party-list seat in Congress.[47] As a result, in compliance with the 20% constitutional number, the Court in BANAT opened the allocation of additional seats even to non-two-percenters. The Court, nevertheless, recognized that the 2% votes should still form part of the computation for the seats in addition to the guaranteed seat.
For better appreciation, assume that party-list X garnered exactly 2% of the votes cast for the party-list system. Indubitably, it is guaranteed a seat in the first round of allocation. For the second round, its 2% vote will still be intact and will serve as the multiplier to the remaining number of seats after the first round of distribution.
In petitioners' proposal, however, a 2% deduction will be imposed against party-list X before proceeding to the second round. This would result in X falling to the bottom of the ranking with zero percent (0%) vote, dimming its chances, if not disqualifying it altogether, for the second round.[48] This is contrary to the language of the statute which points to proportionality in relation to the TOTAL number of votes received by a party, organization or coalition in the party-list election, and the intention behind the law to acknowledge the two-percenters' right to participate in the second round of seat allocation for the additional seats.
Justice Leonen has a keen analysis of the adverse effect of imposing a two percent (2%) deduction on the two-percenters:
But with petitioners' proposed imposition of a 2% penalty, 1PACMAN, MARINO and PROBINSYANO AKO would drop to ranks 59, 71 and 89:
For perspective though, a total of 134 party-lists participated in the 2019 elections. Only eight (8) of them, however, were able to hurdle the 2% threshold and were consequently awarded a guaranteed seat each. Collectively, these two-percenters were awarded a total of 18 out of the 61 seats reserved for the party-list system. Meanwhile, 43 seats were given to the non-two-percenters.
Under Veterans, only the eight (8) two percenters would have been entitled to participate in the second round of seat allocation. But this is no longer the case since BANAT lent a hand to non-two-percenters, allowing them to earn congressional seats in the second round of allocation. Yet, dissatisfied with just the hand, i.e. the 43 seats ultimately allocated to non-two-percenters, petitioners want more. They seek to impose a 2% deduction against the two-percenters and reduce the latter's chances of getting an additional seat though it was established in Veterans and the cases in affirmance thereof that the second round of seat allocation was intended to be exclusive to two-percenters and the two-percenters were meant to participate therein with their votes intact. Were it not for the Court's ruling in BANAT, the tail-end of seat allocation would not have been opened to non-two-percenters.
The learned Justice Henri Jean Paul B. Inting aptly opined:
Equal weight for each vote can only be achieved
through absolute proportionality which the
Constitution does not require.
Petitioners' own proposal fails to meet their demand of equality. The fact that petitioners have agreed to the distribution of party-list seats in two (2) rounds using two (2) different formulae is a tacit recognition that the votes will not after all be given equal weight.
The only way to achieve equal weight for each vote is if the seats are to be distributed based on absolute proportionality from the beginning, that is:
Consider the three-seat limit. This ensures the entry of various interests into the legislature and bars any single party-list from dominating the party-list representation.[50] Otherwise, the rationale behind party-list representation in Congress would be defeated. But viewed from a different perspective, this safeguard dilutes, if not negates, the number of votes that a party-list party, organization, or coalition obtains.
To illustrate, ACT-CIS garnered 2,651,987 votes or 9.51% of the votes cast under the party-list system in the recently concluded elections which would have yielded it six (6) seats in Congress.[51] Otherwise stated, ACT-CIS had votes in excess of what was necessary for it to be awarded three (3) seats in Congress. Yet instead of considering these votes as wastes or a form of disenfranchisement against its voters, the Court does not consider this as a deviation from the "one person, one vote" principle.
Consider also the two-tiered seat allocation. This serves to maximize representation and fulfil the 20% requirement under Section 5(1), Article VI of the Constitution. Seen in a different light, however, this arithmetical allocation in practice inflates the weight of each of the votes considered in the second round, as far as the non-two percenters are concerned, but deflates the weight of each of the votes considered in the second round, as regards the two-percenters. This is because the two-percent (2%) vote-threshold needed to guarantee a seat in the House of Representatives would definitely be more than the votes it would take to earn an additional seat, whether we apply petitioners' proposal or the doctrine in BANAT.
If only to abide by the 20% requirement, there exist cogent reasons to accord varying weight to the votes each obtained by parties, organizations, or coalitions participating in the party-list election, in the two-round seat allocation. Not only does this method of seat allocation promote the broadest possible representation among the varied interests of party-list parties, organizations or coalitions in the House of Representatives, it also fulfils the constitutional fiat that 20% of the composition of the bigger house of Congress to be allotted for party-list representatives.
As demonstrated, the three-seat cap and the two-tiered seat allocation are disadvantageous to the two-percenters and beneficial to non-two-percenters. These serve to balance the advantage acquired by the two-percenters in the form of a guaranteed seat. Yet, petitioners remain dissatisfied.
Although petitioners' proposed formula may result in a. formal equality between two percenters and non-two percenters, it is actually an equality that violates the equal protection of the laws because the formula disregards the long-held valid distinction between two-percenters and non-two percenters. It would be an equality, unjustified by any rationale, between what the Constitution has actually envisioned to favor, those who possess the constituency threshold, and those who do not possess this threshold.
Summary
The only instance every vote obtained in a party-list election can be given equal weight is when the allocation of party-list seats in the House of Representatives is based on absolute proportionality. But this is not required under, nor the system envisioned in, Section 5(1), Article VI of the Constitution. Instead, the manner of determining the volume and allocation of party-list representation in the House of Representatives is left to the wisdom of Congress.
Heeding the call of duty, Congress enacted RA 7941. Its features preclude the allocation of seats based solely on absolute proportionality (1) to bar any single party-list party, organization or coalition from dominating the party-list system, and (2) to ensure maximization of the allotment of 20% of seats in the House of Representatives to party-list representatives.
Too, RA 7941 ordains a two-tiered seat allocation wherein those who reach the 2% threshold are guaranteed seat in the first round and get to keep their votes intact for the first stage of the second round. To recall, the original application of RA 7941 in Veterans limited the allocation of guaranteed and additional seats to two-percenters alone. Though the Court opened the system to non-two percenters, this was only to abide by the 20% composition decreed by the Constitution. Given the reasonable distinction between two-percenters and non-two-percenters, we see no cogent reason to nullify their advantage.
But this is not to say that there is a double counting of votes in favor of the two-percenters. Ultimately, each vote is counted only once. All votes are tallied at the beginning of the BANAT formula.
Just because a party-list was allocated a guaranteed seat and an additional seat does not mean that its votes were counted twice. It just means that the party-list concerned surpassed the proportional thresholds prescribed under the law in both rounds of seat allocation. Similarly, just because a party-list is not awarded a guaranteed seat or an additional does not mean that its votes were not counted. Failure of a party-list to obtain a seat only means one thing - it lost the elections. It was outvoted or outperformed by other party-lists. It was simply left without a seat in the game of musical chairs. Under these circumstances, their remedy is not to wrest others of their allocated seats by changing the rules of the game, but by doing better in the subsequent elections.
The rules of the game are laid down in RA 7941. As stated, the BANAT formula mirrors the textual progression of Section ll(b) of the law. The BANAT formula withstood the test of time and the Court is offered no cogent reason to depart therefrom.
Notably though, the Members of the Court voted 7-3-3-1. This ponencia, therefore, could hardly be considered a clear victory in favor of respondents. Seven (7) Members of the Court voted to dismiss the petition while seven (7) opined that Section l(b) of RA 7941 vis-a-vis BANAT ought to be partly nullified. Three (3) of these dissenters adopted petitioners' proposed formula, three others adopted a different formula, and one (1) adopted still another formula. In fine, the dissenters are also dissenting among themselves on the "correct" formula to be adopted should the Court grant the petition.
Surely, it is not for the Court to recalibrate the formula for the party-list system to obtain the "broadest representation possible" and make it seemingly less confusirlg and more straightforward. This is definitely a question of wisdom which the legislature alone may determine for itself. Perhaps, after twenty-five (25) years following the enactment of RA 7941, it is high time for Congress to take a second hard look at Section ll(b) for the purpose of addressing once and for all the never-ending issue of seat allocation for the party list system. We do not write policies, simply this is not our task. Our forebears have said it once and several times over, we say it again:
Let copy of this Decision be furnished to the House of Representatives and the Senate of the Philippines as reference for a possible review of RA 7941, specifically Section ll(b), pertaining to the seat allocation for the party-list system.
SO ORDERED.
Peralta, C.J., I join the dissenting opinion of J. Gesmundo.
J. Reyes, Jr., Carandang, and Inting, JJ., concur.
Perlas-Bernabe, J., Please see separate concurring opinion.
Leonen, J., See separate concurring opinion.
Caguioa, J., See separate opinion.
Gesmundo, J., With separate dissenting opinion.
Hernando, J., I join the dissent of Justice Gesmundo.
Zalameda, J., Please see dissenting opinion.
Lopez, J., Please see concurring and dissenting opinion.
De Los Santos, J., I join the dissent of Justice Rodil Zalameda.
Gaerlan, J., I join the dissent of J. Rodil Zalameda.
Baltazar-Padilla, J., On leave.
NOTICE OF JUDGMENT
Sirs/Mesdames:
Please take notice that on September 15, 2020 a Decision, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on December 17, 2020 at 3:43 p.m.
[1] AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIVES THROUGH THE PARTY-LIST SYSTEM, AND APPROPRIATING FUNDS THEREFOR.
[2] Rollo, pp. 12-13.
[3] Id. at 23-24.
[4] 609 Phil. 751,767-768 (2009).
[5] Rollo,p. 143.
[6] Id. at 148.
[7] Id. at 133.
[8] Id. at 159.
[9] Id. at 163.
[10] Id. at 188.
[11] Id. at 192.
[12] Id. at 198.
[13] Id. at 199-202.
[14] SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
[15] Samahan ngmga Progresibong Kabataan v. Quezon City, 815 Phil. 1067, 1087 (2017).
[16] Tañada v. Angara, 338 Phil. 546(1997).
[17] Francisco, Jr. v. House of Representatives, 460 Phil. 830, 892 (2003).
[18] Imbongv. Ochoa, G.R. No. 204819, April 8, 2014, citing Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 91-92 (2007).
[19] Imbong, citing The Province Of North Cotabato v. The Government of the Republic of the Philippines, 589 Phil. 387, 481 (2008).
[20] Francisco, supra note 17, citing IBP v. Zamora, 392 Phil. 618, 632 (2000); Joya v. PCGG, 296-A Phil. 595, 603 (1993); House International Building Tenants Association, Inc. v. Intermediate Appellate Court, 235 Phil. 703(1987).
[21] Entitled "An Waray, Agricultural Sector Alliance of the Philippines (ACAP), and Citizen's Battle Against Corruption (CIBAC) v. COMELEC, Ating Agapay Sentrong Samahan ng mga Obrero, Inc. (AASENSO), Serbisyo sa Bayan Party (SBP), et al.", G.R. No. 224846, February 4, 2020.
[22] Id.,Rollo, pp. 318-321
[23] Aksyon Magsasaka-Partido Tinig Ng Masa (AKMA-PTM) v. Commission on Elections, G.R. No. 207134, June 16, 2015.
[24] In Schneider v. Jergens, 268 F. Supp. 2d 1075 (2003).
[25] Id
[26] 344 Phil. 90, 99 (1997).
[27] 63 Phil. 665, 681-682(1936).
[28] Id.
[29] 814 Phil. 344, 377(2017).
[30] https://definitions.uslegal.com/l/lis-mota/#:~:text=Lis%20mota%20is%20a%20Latin,translation%20is 20%221itigation%20moved%22. Last accessed July 25, 2020, 11:25AM.
[31] Garcia v. Executive Secretary, 602 Phil. 64, 82 (2009).
[32] Section 5(2), Article VI of the 1987 Constitution.
[33] BANATv. COMELEC, 604 Phil. 131,151 (2009).
[34] 723 Phil. 160, 187-193(2013).
[35] Supra note 4.
[36] Id.
[37] 631 Phil. 595,637-638 (2010).
[38] Central Bank Employees Association v. Bangko Sentral ng Pilipinas, 487 Phi!. 531, 559 (2004), citing Victoriano v. Elizalde Rope Workers' Union, No. L-25246, 59 SCRA 54, 77-78 (September 12, 1974): "The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary."
[39] 396 Phil. 419(2000).
[40] Id. at 441.
[41] II Record of the Senate 145, Second Regular Session, Ninth Congress.
[42] II Record of the Constitutional Commission 256.
[43] Supra note 39, at 439.
[44] G.R. Nos. 147589 & 147613 (Resolution), [February 18, 2003]).
[45] 519 Phil. 644(2006).
[46] 549 Phil. 767 (2007).
[47] In Veterans, only fourteen (14) of the fifty-one (51) party-list seats were awarded.
[48] It will not be entitled to a factional seat since any number multiplied by zero is zero.
[49] Supra note 33.
[50] Supra note 39.
[51] One guaranteed seat plus five additional seats [(61 party-list seats available - 8 seats allocated in the first round) x 9.51% = 5.04].
[52] British American Tobacco v. Camacho, 584 Phil. 489, 547-548 (2008).
SEPARATE CONCURRING OPINION
PERLAS-BERNABE, J.:
I concur in the result. Contrary to petitioners' assertions, the allocation of additional seats in favor of those party-lists receiving at least two percent (2%) of the total votes cast for the party-list system ("two percenters") in proportion to their "total number of votes," as provided for under Section 11 (b) of Republic Act No. (RA) 7941,[1] does not offend the equal protection clause and hence, remains constitutional.
At the onset, it is imperative to understand that the party-list system is a peculiar innovation that goes beyond our traditional perceptions when it comes to the electoral process. In a republican, democratic system of government like ours, people traditionally vote for certain personalities to represent their interests as part of a constituency based on geographical division (which, in the case of Congressmen, are called'legislative districts). Whether in a national or a local election, voting and consequently, winning an election under ordinary tradition is based on who the people believe will be able to effectively translate these interests into legislative or executive action. Because the idea of a traditional electoral contest is a matter, of "person-preference" over another, candidates compete in simple plurality voting, or a system of "first-pa st-the-post" (FPTP):
To recount, Section 5 (1) and (2), Article VI of the 1987 Constitution provide that:
In line with the Framers' intent, Congress passed RA 7941, or the "Party-List System Act," and therein declared to promote "proportional representation in the election of representatives to the House of Representatives through a party-list system:"
However, "[p]roportional representation is a generic term, and it does not refer to a precise method of implementing the philosophy it denotes."[12] Thus, in accord with its constitutional prerogative, Congress prescribed the specific parameters to achieve proportional representation insofar as Filipino-style party list elections are concerned. These are contained in Section 11 of RA 7941 as follows:
I disagree.
Case law states that "[t]he equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other."[18]
Indeed, there is a substantial distinction between two-percenters and non-two percenters in that the former enjoy the greater mandate of the people. In Veterans, the Court explained the rationale behind the two-percent threshold in the party-list system:
Because party-list elections are based on proportional representation and not simple pluralities, there is really no double-counting of votes when all the votes are considered in allocating additional seats in favor of two percenters. The electoral system of proportional representation inherently recognizes voting proportions relative to the total number of votes. Petitioners' proposal to exclude the number of votes that have qualified two percenters for their guaranteed seat in the second round of additional seat allocation is tantamount to altering the electoral landscape by reducing the "voter strength" which they have rightfully obtained. This effectively results in the diminution of the party's ability to better advocate for legislation to advance the cause it represents despite being supported by a larger portion of the electorate.
Moreover, as the ponencia aptly demonstrated, petitioner's proposal would result into lessening, if not removing the chances of a two percenter to qualify for an additional seat. In consequence, two percenters and non-two percenters will practically obtain the same number of seats and hence, disregard the substantial distinction between them:
Regardless of social standing, lineage, age, race or gender, a person's vote should not mean more than others.
Insofar as the mechanics under Section 11 of RA 7941 are concerned, there is no instance at all wherein a person will be entitled to more than one vote. Neither is any person's vote considered weightier than others. All persons voting in the party-list system are mandated to vote only once and each vote is also counted as one. Further, it must be highlighted that the allocation of guaranteed and additional seats to two percenters is not a matter of counting votes twice. Rather, this method of distribution is inherent to the electoral system of proportional representation, which is different from counting votes based on simple pluralities. Since these two electoral systems operate on distinct planes, there is no violation of the principle of "one person, one vote" in this case.
Finally, it must be reiterated that Congress was given the constitutional prerogative to devise the mechanics of the party-list system. The sole intent was to allow functional representation by weaker segments of society that goes beyond geographical boundaries of our traditional FPTP system. These mechanics are contained in Section 11 of RA 7941, which prescribes, among others, 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." As the only issue raised by petitioners is on the unconstitutionality of this specific mechanic based on equal protection grounds, the Court should refrain from going beyond the same.
In this regard, I thus maintain my reservations regarding the proposed formula of my esteemed colleague, Associate Justice Alfredo Benjamin S. Caguioa (Justice Caguioa), who disagrees with the BANAT formula insofar as it prescribes for two (2) rounds of seat allocation when the first clause of Section 11 (b) of RA 7941 does not require the same.[21] According to Justice Caguioa:
In any event, the BANAT formula which first allocates guaranteed seats to two percenters and then allocates additional seats also in favor of qualifying two percenters, appears to merely mirror the textual progression of Section 11 of RA 7941 as worded. The first round is based on the first sentence of Section 11 (b), while the second round is based on the first proviso that follows in sequence:
While the more straightforward formulation would mathematically increase the probability of more party-lists qualifying for a seat in Congress, such formulation seems to go against the prerogative of legislature to recognize the advantageous position gained by two percenters. Indeed, Congress intended to attain "the broadest representation possible" but it is currently unclear if this general objective was meant to remove the advantages rightfully gained by two percenters. Thus, recognizing the potential ripple effects of adopting this "unraised" proposed formula in the composition of legislature, the Court should thresh out this matter in the appropriate case. As Justice Caguioa himself recognizes, "the straightforward formula may not be immediately applied in this case because of the requirements of due process. As the adoption of the straightforward formula will not only affect petitioners but also other qualified PLOs which have already been proclaimed by the COMELEC, and whose representatives have already assumed office, due process mandates that all qualified PLOs be heard on the matter."[23]
For all these reasons, I therefore vote to dismiss the petition for failure of the petitioners to properly make out their case. I qualify, however, that the petition ought to be dismissed on the merits rather than on procedural grounds as discussed in the ponencia. On the procedural aspects, I share the views of my other esteemed colleague, Associate Justice Alexander G. Gesmundo, that petitioners have indeed raised the issue at the earliest opportunity, that estoppel would not apply, and that the issue is the very lis mota of the case.[24]
On this score, I deem it apt to point out that petitioners could not have previously questioned the constitutionality of Section 11 of RA 7941 (as they have presently done so) back in 2013 and 2016 since they have both won in the elections they respectively participated in[25] and just recently lost in 2019. Their loss was necessary in order for them to satisfy the requisite of an actual and justiciable controversy, which connotes the existence of a "conflict of legal rights," or "an assertion of opposite legal claims,"[26] as well as to clothe them with locus standi, which is "a personal and substantial interest in the case, such that they have sustained or are in immediate danger of sustaining, some direct injury as a consequence of the enforcement of the challenged governmental act."[27] Upon their loss in 2019, they were therefore prompted to immediately take the matter to Court at the earliest opportunity.
ACCORDINGLY, I vote that the petition be dismissed due to lack of merit in its substantive arguments.
[1] Entitled "AN ACT PROVIDING FOR THE ELECTION OF HARTY-LIST REPRESENTATIVES THROUGH THE PARTY-LIST SYSTEM, AND APPROPRIATING FUNDS THEREFOR " also known as the "PARTY-LIST SYSTEM ACT.'' approved on March 3, 1995
[2] (last vtsited July 23, 2020).
[3] Records of the Constitutional Commission (R.C.C.) No. 39, July 25, 1986.
[4] R.C.C. No. 45, August 1, 1986.
[5] Id.
[6] R.C.C. No. 36, July 22, 1986.
[7] See Alcantara v. Commission on Elections, 709 Phil. 523 (2013).
[8] R.C.C. No. 39, July 25, 1986.
[9] 396 Phil. 419(2000).
[10] Id. at 438; emphasis supplied.
[11] (last visited July 23, 2020); emphases supplied.
[12] (last visited July 23, 2020).
[13] 604 Phil. 131 (2009).
[14] Id. at 162.
[15] See my Separate Concurring Opinion in the Unsigned Resolution in G.R. No. 225198, February 7, 2017.
[16] Id.; citations omitted.
[17] Ponencia, p. 2, citing rollo, pp. 12-13.
[18] Quinto v. COMELEC, G.R. No. 189698, February 22, 2010; emphasis supplied.
[19] Supra note 10.
[20] Ponencia, pp. 27-28; emphases in the original.
[21] See Separate Opinion of Justice Caguioa, p. 7.
[22] Separate Opinion of Justice Caguioa, pp. 14-15.
[23] See id. at 18.
[24] See Separate Opinion of Justice Gesmundo, pp. 7-12.
[25] ANGKLA garnered one seat in the 2013 elections ( [last visited July 23, 2020]) while ANGKLA and SBP won one seat each in the 2016 elections ( [last visited July 23, 2020]).
[26] Samahan ng mga Progresibong Kakataan v. Quezon City, 815 Phil. 1067, 1090 (2017); emphasis supplied.
[27] Id. at 1091; emphasis supplied.
September 15, 2020
CONCURRING OPINION
LEONEN, J.:
I concur with Associate Justice Amy C. Lazaro Javier's (Justice Lazaro-Javier) ponencia denying the Petition for Certiorari and Prohibition filed by petitioners Ang Partido ng Marinong Pilipino. Inc. (ANGKLA) and Serbisyo sa Bayan Party (SBP), and sustaining National Board of Canvassers Resolution No. 004-19, which declared the winning party-list groups in the May 13, 2019 elections.
In addition, I invite attention to prevailing parameters that operationaiize the party-list system. I reiterate a position that I initially articulated in Atong Paglaum, Inc. v. Commission on Elections,[1] that this Court's effort at shaping understanding of how the party-list system should be operationalized to carry out the Constitution's objectives should not be limited to calibrating numerical formulation to identify winners.
I
The party-list system, as provided for in Article VI, Section 5 of the 1987 Constitution,[2] is the domestic iteration of proportional representation, an electoral system that has long existed in other jurisdictions and which currently exists in a multiplicity of jurisdictions.[3]
Our election of party-list representatives stands out in domestic elections dominated by the "first past the post"[4] system. In a first past the post system, candidates win or are elected on the basis of a simple plurality. "The winning candidate is simply the person who wins the most votes; in theory he of she could be elected with two votes, if every other candidate only secured a single vote."[5] This applies to our elections for President, Vice President, provincial governors and vice governors, city or municipal mayors and vice mayors, as well as barangay chairpersons. For these positions, winning candidates are simply candidates who outvote all other candidates. The same is true for the election of members of the House of Representatives representing legislative districts. The first past the post system similarly governs the election of senators and members of the sangguniang panlalawigan, sangguniang panglungsod, sanggnniang bayan, and sangguniang barangay. In these collegial bodies however, multiple vacancies are simultaneously contested. Therefore, several individuals—as many as there are vacancies to be filled are simultaneously elected, i.e., the highest ranking candidates corresponding to the number of vacancies.
Unlike the winning candidates for other elective public positions, members of the House of Representatives under the party-list system are elected through a system of proportional representation. In proportional representation, seats are allocated in accordance with the proportion of the electorate that supports a political party, organization, or coalition. Winning an election, therefore, does not hinge on outranking competing candidates, but on securing proportional thresholds instead.
As the unique, domestic iteration of a conceptual electoral mechanism shared with many jurisdictions, the Philippine party-list system is created by Article VI, Section 5 of the 1987 Constitution. The same provision, as well as Article VI, Section 6, spell out the party-list system's basic and immutable parameters:
It is in keeping with Article Vl, Section 5's injunction that Republic Act No. 7941 or the Party-List System Act, was passed in 1995.
Section 10 of the Party-List System Act provides for the manner of voting party-list representatives. Sections 11 and 12 concern the allocation of party-list seats:
While ranking is involved, winning seats in the party-list system does not ultimately or exclusively depend on an ordinal system as winning seats in first past the post elections does. Rather, it relies on the extent of proportionate shares vis-a-vis a total figure that varies from one election to another, that is, the total number of votes cast for the party-list system in a given election.
II
The party-list system is fundamentally a mechanism of proportional representation where proportions are reckoned in relation to the total number of votes cast for the party-list system in a given election, and where groups that obtain larger proportions of votes are naturally and logically placed at an advantage over those who obtain less. This basic nature is expressed in' Section 12 of the Party-List System Act: "The COMELEC shall tally all the votes... on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained... as against the total nationwide votes cast for the party-list system."
This same basic nature renders absurd and unacceptable petitioners' contention that, after seats are allotted to those groups that hurdled the two-percent-threshold, "[v]otes amounting to two percent (2%)... obtained by each of the participating parties... should then be deducted from the total votes of each of these party-list groups that have been entitled to and given guaranteed seats[,]"[6] and that, "[t]he remaining party-list seats... sh[ould] then be distributed in proportion to the recomputed number of votes[.]"[7]
Ignoring votes in the reckoning of proportions runs afoul of a party- list election as a race contested by the entire roster of candidates and won in consideration of all the votes cast by the electorate. Reckoning on the basis of a "recomputed number of votes"[8] artificially redraws the electoral terrain. It results in the distribution of remaining party-list seats based on an altered field of contestants and diminished number of votes. This undoes the logical advantage properly earned by tnose that hurdled the twb-percent-threshold and enables the election of groups, even if their performance was manifestly worse off than those who have hurdled the basic threshold.
To concede petitioners' plea would be to negate the valid and sensible distinction between those that hurdled the threshold and those that did not. Ultimately, it violates the party-list system's fundamental objective of enabling "meaningful representation [secured through]... the mandate of a sufficient number of people."[9]
Justice Lazaro-Javier's illustration of the sheer absurdity, not to mention, injustice and mockery of the totality of the electoral exercise which shall be induced by favorable action on petitioners' plea is well-taken:
III
To facilitate the objectives of proportional representation as a supplement to the dominant electoral system, the Constitution and the Party-List System Act prescribe parameters that operationalize our unique, domestic mode of proportional representation. .
Jurisprudence has, in turn, interpreted relevant' constitutional and statutory provisions in a manner that will give effect to the party-list system's lofty objectives. Of particular note is Barangay Association for National Advancement and Transparency (BANAT) v. Commission on Elections,[12] where this Court clarified the rules for allocating party-list seats:
Our elections for the House of Representatives is akin to elections for the German Bundestag (federal parliament) where voters similarly cast a first vote or "Erststimme" for district representative (which follows a first past the post system), and a second vote or "Zweitstimme" for a political party.[14] For a party to occupy seats, it must secure a five percent (5%) threshold (n.b., more than doubly higher than our standard). This threshold "excludes very small parties from parliamentary representation[.][15] This exclusionary effect is deliberate and far from an inadvertent consequence: "[tjhis system was put in place to prevent smaller splinter parties - like those that bogged down the Weimar Republic in the 1920s - from entering parliament."[16]
Accordingly, it has long been settled by this Court that the two percent (2%) threshold is a valid standard that furthers the interest of robust democratic representation. From this, it follows that the Party-List System Act validly distinguishes between those groups that meet the two percent (2%) threshold, and those that fail to do so:
IV
As an alternative to the predominant electoral system, the party-list system is principally concerned with advancing democratic representation. It endeavors to make up for the shortcomings of traditional elections through simple plurality. This is a particularly acute concern in the experience of Philippine electoral politics. As I have previously explained in my Separate Opinion in Atong Paglaum, Inc. v. Commission on Elections:[18]
ACCORDINGLY, I vote that the present Petition for Certiorari and Prohibition and Petition-in-Intervention be DISMISSED.
(Sgd.) MARVIC M.V.F. LEONEN
Associate Justice
[1] 707 Phil.,454(2013) [Per J.Carpio, En Banc].
[2] CONST., art. VI, sec. 5 provides:
SECTION 5. (I) The House of Reprevcnta;ives- shall be composed of not inore than two hundred and fifty member 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 inhabitants, 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, regional, 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 communities, women, youth, and such o
(3) Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. Each city with a population of af least two hundred fifty thousand, or each province, shall have at least.one representative.
(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.
[3] See Electoral Systems, THE ELECT ORAL. KNOWLEDGE NETWORK, (last accessed on September 15 2020). '
[4] See Electoral Systems, THE ELECTORAL KNOWLEDGE NETWORK, (last accessed on September 15 2020)
[5] Id.
[6] Ponencia, p, 3.
[7] Id.
[8] Id.
[9] Veterans Federation Parly v. Commission on Elections, 396 Phil. 419, 441 (2000) [Per J. Panganiban, En Banc].
[10] Ponencia, pp. 27-28.
[11] Id. at 10-11.
[12] 604 Phil. 131 (2009). [Per J. Carpio, Er. Banc].
[13] Id. at 162.
[14] See Michael Krennerich, Germany: The Original Mixed Member Proportional System, THE ELECTORAL KNOWLEDGE NETWORK., (last accessed on September 15,2020).
[15] Id.
[16] How does the German general election work?, DW, (last accessed on September 15, 2020).
[17] Veterans Federation Party v. Commission on Elections, 396 Phil. 419, 441 (2000) [Per J. Panganiban, En Banc].
[18] 707 Phil. 454 (2013) [Per J. Carpio, En Banc].
[19] Id. at 738-741.
[20] Id. at 741-744.
[21] Id. at 751-753.
September 15, 2020
SEPARATE OPINION
CAGUIOA, J.:
I concur only insofar as the petitions are dismissed — but with a call that the allocation of party-list seats laid down in Barangay Association for National Advancement and Transparency (BANAT) v. Commission on Elections,[1] (BANAT) should be abandoned as it is inconsistent with, and fails to reflect, the spirit and intent of the Constitution and Republic Act No. (RA) 7941 or the Party-List System Act.[2]
The present Petition and the
BANATformula
The party-list system was an innovation introduced by the drafters of the Constitution to diversify representation in the House of Representatives (HOR). It was meant to "open the system," in recognition of the real need to provide an effective platform to those who belong to marginalized sectors of society, such as labor, peasant, urban poor, indigenous cultural communities, women, and youth,[3] and also to provide an avenue to those who had been unable to gain seats in the legislature because of the dominance of the traditional and well-established political parties. Since the first national elections involving the party-list system in 1998, the election, qualifications, and allocation of seats to party-list organizations (PLO) and their nominees have been the subject of petitions before the Court.
This time, petitioners Ang Partido ng Mga Pilipinong Marino, Inc. (ANGKLA) and Serbisyo sa Bayan Party (SBP) and petitioner-intervenor Aksyon Magsasaka-Partido Tinig ng Masa (AKMA-PTM) (petitioners) propose a new formula in computing the allotted seats for PLOs in the HOR after failing to obtain a congressional seat in the May 2019 National and Local Elections (2019 Elections).
The procedure for allocation of seats in the party-list system is provided in RA 7941, which states:
In interpreting Section 11, the Court in Veterans Federation Party v. Commission on Elections (Veterans),[4] formulated the following parameters:
The above parameters were revised in BANAT, where the Court declared unconstitutional the two percent threshold for the distribution of "additional seats" in the second proviso of Section 11 (b)[6] of RA 7941 as it made it mathematically impossible to achieve the maximum number of available party-list seats (APLS) when the APLS exceeded 50.[7] The Court also abandoned the First Party Rule, devising instead a three-tier approach which allowed more party-list participation in the legislature as party-list seats were to be allocated even to those parties who did not obtain at least two percent of the total party-list votes. The following procedure was thus adopted:
1. The PLOs shall be ranked from highest to lowest according to their respective votes;
2. The votes garnered by each party shall be divided by the total party-list votes to determine the percentage of votes per PLO;
3. Allocation of guaranteed seats for the two percenters - Those PLOs which garnered at least two percent of the total party-list votes shall be entitled to a "guaranteed seat;"
4. The guaranteed seats already distributed to the two percenters shall be deducted from the APLS to determine the remaining available seats;
5. Allocation of additional seats for two percenters - The additional seats for the two percenters shall be determined by multiplying the percentage of votes garnered by the two percenters to the remaining available seats; the whole integer of the product shall determine the additional seat, if any (subject to the three-seat cap);
6. Allocation of the remaining available seats for the non-two percenters - The remaining available seats after distributing the guaranteed seats and additional seats to the two percenters shall be distributed one seat each to the non-two percenters until all remaining available seats have been allocated.
Using the above formula, the Commission on Elections (COMELEC), acting as the National Board of Canvassers (NBC), issued Resolution No. 004-19 declaring the winners in the party-list system for the 2019 Elections. Petitioners failed to obtain any seats. Thus, they present a new formula' which will enable them to obtain seats.
Petitioners propose that in the determination of additional seats for the two percenters in Step 5, the percentage of their votes should be deducted by two percent — since the two percent has "already been counted" in Step 3. According to petitioners, the non-deduction of two percent in the allocation of additional seats for two percenters results in "double counting" of votes. Petitioners also pray that the Court declare unconstitutional the following underscored phrase in the sentence in Section ll(b) of'RA 7941: "[TJhose garnering more than two percent (2%) of the votes shall be entitled to additional seats in the proportion to their total number of votes."[9] Petitioners assert that this results in discrimination against the non-two percenters, depriving them of rightful seats in the HOR.10
Cited by petitioners is the Court's Resolution in BANAT promulgated on July 8, 2009, which resolved the Motion for Clarification of then HOR Speaker Prospero C. Nograles and a separate Motion for Leave for Partial Reconsideration of PLO Citizen's Battle Against Corruption (CIBAC). A revision of the list of winning PLOs was necessary due to the reduction in the number of legislative districts pending resolution of the case (when the Court invalidated the creation of the province of Shariff Kabunsuan) and after the Court received updated data from a more recent Party-List Canvass Report which had not been submitted by the parties earlier.[11] Petitioners bring the Court's attention to the following portion in the July 8, 2009 Resolution:
The formula forwarded by petitioners will result in a smaller multiplier and smaller product: thereby allocating fewer seats to the two percenters, which would then result in an increase in the number of remaining available seats for PLOs that would not have been able to qualify for one seat.
The COMELEC, through the Office of the Solicitor General (OSG), filed its Comment, maintaining that there is no "double counting" of votes as the votes are counted in two separate rounds of seat allocation. The first round is the allocation of the guaranteed seats for two percenters and the second round is the allocation of the additional seats.[13] There would only be double counting if the same votes were counted twice for the same round. The OSG also asserts that there is no violation of the equal protection clause against the non-two percenters because there is substantial distinction between the former and the two percenters, who obtained the "clearer mandate of the people" by receiving more votes.[14]
The ponencia dismisses the petitions. On the procedural issue, the ponencia holds that petitioners failed to satisfy all the requirements of judicial review in failing to raise the issue of constitutionality in the first instance and that the issue on constitutionality is not the very lis mota of the case.[15] On the substantive issue, the ponencia holds that Section 11 (b) of RA 7941 is constitutional and maintains the formula developed by the Court in BANAT.
With the foregoing considerations, and without belaboring the issues on judicial review and constitutionality, I find merit in ANGKLA's position that the BANAT formula results in the "double counting" of votes in the computation of additional seats for the two percenters. Specifically, their first two percent already entitles them to a seat, and yet, in the allocation of the remaining seats, the said votes are still taken into consideration.
As will be shown herein, the BANAT formula suffers from a misinterpretation of the first part of Section 11 (b) of RA 7941 that led it to have two rounds of allocation of seats, even when the law clearly does not require the same. More importantly, the BANAT formula fails to reflect the State policies embodied in RA 7941 and in the Constitution.
That said, I do not agree with petitioners' formula as it is not sanctioned by the plain text of Section ll(b) of RA 7941, which provides that the additional seats shall be computed in proportion to the PLO's total number of votes. Thus, I am submitting instead a different formula that, would better reflect the intent behind the introduction of the party-list system in the Constitution, while remaining consistent with the letter of Section ll(b)ofRA7941.
The spirit and intent behind
the party-list system
As mentioned, the party-list system is an innovation in the 1987 Constitution meant to "open the system" that has long been dominated by the large political parties. Commissioner Christian S. Monsod (Commissioner Monsod), the main proponent of the party-list system, explained the objectives of the party-list system in the following exchange:
While Commissioner Monsod was not opposed to the idea, he had difficulty operationalizing a purely sector-based party-list system:
While the proposal to perpetually limit the party-list system to the marginalized sectors was not adopted, what remains clear is that the objective of the system was to encourage diversity of representation in the HOR by allowing parties who may not be able to garner enough votes in a district, but may be able to get enough votes on a nationwide scale.
Thus, in enacting RA 7941 or the Party-List Act, Congress had in mind the very same objectives of the Constitution. In fact, the Explanatory Note of House Bill No. 3043, the progenitor bill of RA 7941, states:
During the interpellations, Representative Espinosa confirmed that the objectives of the law are "to institutionalize a multiparty system in the Philippines and to equalize political power among the various political sectoral parties and organizations."[27] Similar to what happened in the deliberations of the constitutional provisions regarding the party-list system, the discussion on whether the system ought to be reserved to marginalized sectors once again came up. In clarifying that the system is not reserved to marginalized sectors, Representative Espinosa explained:
A straightforward formula
better reflects the spirit behind
the party-list system
Proceeding from the above discussion, I find that the three-tier formula expressed in BANAT fails to reflect the intent behind the introduction of the party-list system. Section 2 of RA 7941 states that the "State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral 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."[29]
It is my considered view that these objectives will be best achieved by a straightforward formula in which allotted seats are determined by simply multiplying the percentage of votes garnered by the PLO with the APLS.
Based on this formula, the party-list seats are determined as follows:
Step One. Ranking of PLOs. All PLOs that participated in the election shall be ranked from the highest to the lowest based on the number of votes they each received during the election.
Step Two. Determination of percentage of votes per PLO in proportion to Total Votes of all PLOs. After the ranking, the percentage of votes that each PLO garnered shall then be computed as follows:
Step Three. Allocation of seats two percenters. The seats allotted to each of the qualified PLOs (the two percenters) shall then be ascertained using the following formula:
Since the prevailing law and rules do not allow for fractional representation, the product obtained herein shall be rounded down to the nearest whole integer. The three (3) seat limit shall likewise be applied.
This step does away with the three-tier allocation in BANAT. In particular, it does away with the first round of allocation. In BANAT, the Court created two rounds of allocation because of its interpretation that "[t]he first clause of Section ll(b) ofR.A. No. 7941 [which] states that '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 seat each' xxx guarantees a seat to the two-percenters."[30] Thus, it created a first of two rounds of allocation where the two percenters would be given one (1) seat each.
However, this separate round of allocation for the two percenters is not supported nor required by the letter of the law. There is nothing in the text of the law which requires separate rounds of seat allocation. All that the law requires is that those who garner 2% of the votes be guaranteed one (1) seat each. To illustrate, the straightforward formula still satisfies the requirements of Section 1 l(b), even without the "first round of allocation," because the APLS will always be more than fifty (50) seats in light of the current number of congressional districts. Thus, all PLOs who obtained at least two percent (2%) of the total votes cast in the party-list system are, in reality, guaranteed one (1) seat each — even in the absence of a separate round "ensuring" them one (1) seat.
Meanwhile, the second requirement of Section ll(b) — that the "additional seats" for those who obtained more than two percent of the total votes cast in the party-list system shall be in proportion to the total number of votes it obtained - is also complied with because the computation of additional seats for each of the two percenters is in direct proportion to the total number of votes they actually garnered.
Step Four. Allocation of remaining seats. If the APLS have not been fully exhausted after allocating seats to the two percenters (but still enforcing the 3 seat limit) - as is what is expected to happen because, as mentioned the APLS will always be more than fifty seats - the remaining seats shall then be allocated (one (1) seat each) to the parties next in rank {i.e., those who did not get at least two percent of the total number of votes cast), until all the APLS are completely distributed.
During the deliberations, the ponente argued that the adoption of a straightforward formula would render nugatory the first clause of Section ll(b), RA 7941 - which provides that "[t]he 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 seat each" - and would amount to judicial legislation. In her Separate Concurring Opinion, Senior Associate Justice Estela M. Perlas-Bernabe opines that the straightforward formula fuses together the character of the guaranteed seats and additional seats so that the separate provisions on guaranteed and additional seats would be rendered redundant and the advantageous position gained by the two percenters would be removed.
Respectfully, this is a wrong understanding of the straightforward formula. Under the straightforward formula, the two percenters will not be prejudiced or divested of their preferred status as they will still be entitled to a guaranteed seat as provided under the law. The additional seats, which are not guaranteed, will then be determined based on the proportion of their votes. As explained above, the first round of allocation of party-list seats for the two percenters is not supported nor required by the letter of the law. The law merely requires that PLOs which garnered 2% of the votes shall be. entitled to one seat and that additional seats for those which garnered more than 2%, shall be computed in proportion to their number of votes.
It is, in fact, the BANAT formula that constitutes judicial legislation, and not the straightforward formula outlined above which, to repeat, is the more literal and hamionious interpretation of the plain text of Section 11 (b) of RA 7941. As earlier discussed, the straightforward formula complies with the requirement of the first clause in Section ll(b) which guarantees two percenters one seat each while also complying with the, proportionality rule . in the second clause as the computation of additional seats for the two percenters is in direct proportion to the total number of votes they actually garnered.
Most importantly, the straightforward formula is the formula more in accord with the declared policy of Section 2 of RA 7941 for the State to develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and provide the simplest scheme possible.
Allocation of Party-List Seats
in the 2019 Elections based on
the Straightforward Formula
Below is the tabulation of the party-list seats in the 2019 Elections applying the straightforward formula:
Based on the foregoing table, AKMA-PTW, SBP, ANGKLA, AKBAYAN, and WOW PILIPINAS, will now be entitled to one seat each, increasing the number of participating PLOs in the HOR from fifty-one (51) to fifty-six (56). Clearly, in contrast to the formulas in BANAT and Veterans, the straightforward formula is not only simpler (as is mandated by the law), but more importantly, allows the broadest possible representation of interests in the legislature.
Due process issues in adopting
the straightforward formula
I acknowledge that the straightforward formula may not be immediately applied in this case because of the requirements of due process. As the adoption of the straightforward formula will not only affect petitioners but also other qualified PLOs which have already been proclaimed by the COMELEC, and whose representatives have already assumed office, due process mandates that all qualified PLOs be heard on the matter. Indeed, in Cipriano v. Commission on Elections?[31] the Court held:
Thus,.should the straightforward formula be adopted, it would have to be applied by the Court and the COMELEC in succeeding elections, and not the election subject of this case. This aligns with the general rule that when the Court adopts a new view or doctrine in its interpretation of the laws, it has to be applied prospectively so as not to prejudice those who have relied on the abandoned interpretation. In other words, "when a doctrine of this Court is overruled and a different view is adopted, and more so when there is a reversal thereof, the new doctrine should be applied prospectively and should not apply to parties who relied on the old doctrine and acted in good faith."[33] This is the rule because "[t]o hold otherwise would be to deprive the law of its quality of fairness and justice, for, then, there is no recognition of what had transpired prior to such adjudication."[34]
In this connection, considering that the COMELEC simply followed the BANAT formula in issuing NBC Resolution No. 004-19, then the Court cannot declare COMELEC to have gravely abused its discretion. The situation, should the straightforward formula be adopted, would be similar to the Court's ruling in Atong Paglaum, Inc. v. Commission on Elections[35] where the Court laid down a new doctrine and thus stated:
(Sgd.) ALFREDO BENJAMIN S. CAGUIOA
Associate Justice
[1] G.R. Nos. 179271 & 179295, April 21, 2009, 586 SCRA 210.
[2] Approved on March 3, 1995.
[3] 1987 Constitution, Art. VI, Sec. 5 (2).
[4] G.R. Nos. 136781, 136786 & 136795, October 6, 2000, 342 SCRA 244.
[5] Id. at 276-277.
[6] SEC. 11. XXX
xxxx
In determining the allocation of seats for the second vote, the following procedure shall be observed:
xxxx
(b) 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 seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in the proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats.
[7] Barangay Association for National Advancement and Transparency (BANAT) v. Commission on Elections, supra note 1, at 242-243. The Court in BANAT, explained the mathematical impossibility in this wise:
[9] Underscoring supplied.
[10] Amended Petition, rollo, pp. 107-142.
[11] 592 SCRA294.
[12] Id. at 310-311.
[13] Rollo, p. 192.
[14] Id. at 193.
[15] Ponencia, pp. 8-15.
[16] II RECORD, CONSTITUTIONAL COMMISSION 85-86 (July 22, 1986).
[17] See RECORD, CONSTITUTIONAL COMMISSION 551-598 (August 1 1986)
[18] Id.
[19] Id.
[20] II RECORD, CONSTITUTIONAL COMMISSION 258-259 (July 25, 1986).
[21] (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 communities, women, youth, and such other sectors as may be provided by law, except the religious sector.
[22] II RECORD, CONSTITUTIONAL COMMISSION 551 -598 (August 1, 1986).
[23] Id.
[24] Id. at 577.
[25] 9TH Congress 4th Regular Session, 3-4 (September 28, 1992).
[26] House 9TH Congress 65-67 (November 8, 1994).
[27] HOUSE 9TH CONGRESS 126 (November 22, 1994).
[28] Id. at 152-153.
[29] Emphasis and underscoring supplied.
[30] Supra note 1, at 240.
[31] G.R. No. 158830, August 10, 2004, 436 SCRA 45.
[32] Id. at 55.
[33] Columbia Pictures, Inc. v. Court of Appeals, G.R. No. 110318, August 28, 1996, 261 SCRA 144, 168; see also: Denzonan v. Court of Appeals, G.R. Nos. 97973, 97998, January 27, 1992, 205 SCRA 515, 528, Unciano Paramedical College, Inc. v. Court of Appeals, G.R. No. 100335, April 7, 1993, 221 SCRA 285, 292, and Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, November 10, 2015, 774 SCRA 431,552, all citing People v. Jabinal, G.R. No. L-30061, February 27, 1974,55 SCRA 607 612.
[34] De Jesus v. Aquino, G.R. Nos. 164662 & 165787, February 18, 2013, 691 SCRA 71, 89.
[35] G.R. Nos. 203766, 203818-19, 203922, 203936, 203958, 203960, 203976, 203981, 204002, 204094, 204100, 204122, 204125, 204126, 204139, 204141, 204153, 204158, 204174, 204216, 204220, 204236, 204238, 204239, 204240, 204263, 204318, 204321, 204323, 204341, 204356^ 204358^ 204359, 204364, 204367, 204370, 204374, 204379, 204394, 204402, 204408, 204410, 204421^ 204425, 204426, 204428, 204435, 204436, 204455, 204484, 204485, 204486 & 204490 April 2 2013* 694 SCRA 477.
[36] Id. at 570.
September 15, 2020
DISSENTING OPINION
GESMUNDO, J.:
In this amended petition for certiorari and prohibition, petitioners' Angkla: Ang Partido ng mga Marinong Pilipino (Angkla) and Serbisyo sa Bayan Party (SBP) together with petitioner-in-intervention Aksyon Magsasaka - Partido Tinig ng Masa (AKMA-PTM) assail respondent Commission on Elections' (acting as the National Board of Canvassers; COMELEC, for brevity) resolution in NBOC Resolution No. 004-19, alleging that the same was tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.
At the center of these petitions is another attack on the validity of Republic Act (R.A.) No. 7941 or the Party-list System Act, this time on equal protection grounds. The provision in question is highlighted in Section 11 (b) of the law which provides:
The Antecedents
After the dust had settled in the 2019 Congressional and Local Elections, the COMELEC, acting as the National Board of Canvassers, promulgated NBOC Resolution No. 004-19 declaring the winning party list groups in the May 13, 2019 ELECTIONS. Following the formula provided by BANAT v. COMELEC (BANAT)[1] the resolution distributed 61 Congressional seats among the winning parties, organizations, and coalitions, thus:
In the main, petitioners Angkla and SBP raises the following grounds:
I.
Thus, petitioners pray that the Court revisits the pronouncement in BANAT and declares the phrase "in proportion to their total number of votes" in Section ll(b) of R.A. No. 7941 or the Party-List System Act unconstitutional and, in order to maintain the equality of votes amongst voters and thereby prevent double counting of votes, modify the distribution of the party-list seats in this wise:
Justice Javier pointed out that some requisites for the exercise of judicial review were not present. She concludes that petitioners failed to raise the constitutionality issue at the earliest opportunity because both Angkla and SBP benefited from the operation of the BANAT formula in the previous party-list elections. In fact, SBP was impleaded as a party respondent in An Warat v. COMELEC,[5] where it vigilantly defended the application of the BANAT foraiula. The same thing happened to petitioner-in-intervention, AKMA-PTM in AKMA-PTM v. COMELEC[6] She claims that if they truly believed the BANAT formula as unconstitutional for violating the equal protection clause, they would have raised their concern there. Instead, both Angkla and SBP kept silent and, therefore, should be considered estopped from claiming that the BANAT formula is defective.
Also, Justice Javier maintains that the constitutional challenge is not the lis mota of the case since the case can be resolved with the use of existing doctrines and black letter law.
On the substantive aspect, the Opinion of Justice Javier maintains that the BANAT formula is sound and consistent with congressional policy. Further, it maintains that there is no violation of the equal protection clause because there is substantial distinction between the two-percenters and the non-two percenters which justifies the difference in treatment between the two groups. This distinction, which is discussed in Veterans Federation Party v. COMELEC (Veterans),[7] was carried in the BANAT formula.. More, Justice Javier's Opinion claims that petitioners' proposal calls for absolute proportionality which is not what is intended by the Constitution. In any event, she insists that there is no double counting of votes considering that the 2% reduction was made in the second step of the second round and not in* the first step of the second round. Thus, no double counting of votes exists. ,
After considering the arguments of both sides, taken with the intention of the Constitutional framers and Congress, as well as the collective wisdom of the Court in previous cases, I cannot regrettably share the views of my esteemed colleague Justice Javier. To my mind, there are no procedural hindrances that would warrant the automatic sacking of this petition and there are sufficient reasons why the Court should entertain questions on the soundness of our previous decisions, particularly those that relate to difficult interpretations of the law, for to blindly adhere to stare decisis would violate the very oath that every judge takes.
More, as the BANAT formula stands, I am of the view that it violates the equal protection clause particularly the concept of "one person, one vote" which is the bedrock of our democratic and republican society as provided under Article II, Section 1 as the BANAT formula allows double counting of votes, i.e., giving some votes more weight compared to others.
Lastly, I do agree that petitioners' proposal is more in line with the Constitutional policy agreed upon by the Constitutional framers and consistent with the intention of Congress to maintain proportionality in the allocation of additional seats.
Allow me to explain.
The petition satisfies all the
requisites for judicial review
The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the Court unless there is compliance with the legal requisites for judicial inquiry, namely: (a) there must be an actual case or controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing to question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the very lis mota of the case.[8]
Truly, while this Court's power of review may be awesome, it is limited to actual cases and controversies dealing with parties having adversely legal claims, to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented.[9]
Here, Justice Javier would have condemned the petition to the dustbin noting that petitioners failed to raise the constitutional challenge at the earliest opportunity and that petitioners are estopped in questioning the validity of the BANAT formula since they benefited from the said computation during the previous party-list elections.
Further, she is of the opinion that the constitutional issue is not the lis mota of the case considering that the issue can be resolved through existing doctrines and principles especially those espoused in BANAT.
I disagree.
As early as 1937, the Court in People v. Vera,[10] explained the requirement of "earliest opportunity", in constitutional litigation, thus -
It is clear from the foregoing that the rationale behind this requirement is that it prevents a party litigant from changing or altering the theory of his case and catching the other party off-guard, thereby offending all sense of fairness in court litigations. However, this is not the case here. Respondents have been apprised of petitioners' contentions and arguments and were in fact controverted by the Office of the Solicitor General head-on. There is no violation of fair play or due process of law in this scenario.
Neither should we consider this Court as the "lower court" for purposes of the procedural requirement as the rationale behind the requirement is more focused on the protection of the adverse party from surprises and underhanded tactics of the petitioners that offend fairness. Since the reason behind the requirement is not applicable in this case, it would be unfair to still mandate the rule that would serve an empty purpose -cessante ratione legis, cessat ipsa lex, when the reason of the law ceases, the law itself ceases.[13]
Even if we consider the strict application of this rule, I consider the case falling under the recognized exceptions. It has been held that in civil cases, it is the duty of the court to pass on the constitutional question, though raised for the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case.[14]
Here, the argument of double counting raised by petitioners and petitioner-in-intervention was not addressed and resolved by the Court in Veterans and BANAT. Further, this case goes into the legality of the allocation of additional seats in light of the equal protection prism, particularly the issue of double counting of votes. Contrary to the position taken by Justice Javier, the Court's decision in BANAT is insufficient to determine the validity of the arguments based on the equal protection clause. Otherwise stated, the constitutional issue cannot be resolved on the strength of BANAT and previous jurisprudence as this issue is novel and is, in fact, the lis mota of the case.
As regards the issue on estoppel, I cannot accept petitioners being guilty of such, and are thus prevented from raising the double counting of votes issue. Estoppel, an equitable principle rooted upon natural justice, prevents persons from going back on their own acts and representations, to the prejudice of others who have relied on them. For a party to be bound by estoppel, the following requisites must be present: (1) conduct amounting to false representation or concealment of material facts; or at least calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intent, or at least expectation that this conduct shall be acted upon by, or at least influence, the other party; and (3) knowledge, actual or constructive, of the real facts.[15] Obviously, the elements of estoppel are wanting simply because petitioners and petitioner-in-intervention based their conduct on the prevailing law at the time. It cannot be said that they concealed or misrepresented facts when they were merely following the prevailing law. Citizens who relied on the law cannot be expected to follow it blindly if the matter of its constitutionality escapes their immediate attention. A contrary rule would mean that a law, otherwise unconstitutional, would lapse into constitutionality by the mere failure of the proper party to promptly file a case to challenge the same.[16]
Further, it should never escape our attention that the interpretation of the party-list law by the organizations themselves who are allowed to participate in the proper allocation of seats, have been subject to numerous litigations that produced different results from Ang Bagong Bayani-OFW Labor Party v. COMELEC[17] to Atong Paglaum Inc. v. COMELEC[18] and Veterans to BANAT. It can even be conceded that the party-list law has become a difficult point of law considering the changes in interpretation of its provisions. From the foregoing, it is my view that a party cannot be estopped from raising issues that relate to difficult questions of law. Otherwise, the development of jurisprudence would be halted indiscriminately simply because an earlier court interpretation has already been made regardless of its soundness and reasonability. ¦
Lastly, reliance on the strength of stare decisis established by BANAT can be made as long as is passes constitutional muster. In the past, the Court has never been shy in disregarding stare decisis especially when the previous ruling no longer appears to be reasonable or proper.
In De Castro v. Judicial and Bar Council[19] the Court, in ruling that the appointment of the Chief Justice is outside the midnight appointment prohibition under Article VII, Section 15 of the Constitution, refused to, and in fact abandoned, the Court's earlier ruling in In Re Appointments of Hon. Valenzuela and Hon. Vallarta.[20] In doing so, the Court stated -
While stare decisis remains to be the rule in this jurisdiction, there are reasons, as will be discussed below, to forego the application principle especially and re-examine BANAT in light of the issue of double counting of votes.
The distribution of additional seats
in proportion to the total number of
votes under the BANAT formula
offends the equal protection clause
particularly the concept of
"one person, one vote"
A. Equal Protection Clause
Article III, Section 1 of the 1987 Constitution mandates that all persons shall not be denied the equal protection of the laws. The equal protection clause requires that all persons be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The purpose of the equal protection clause is to secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper execution through the state's duly constituted authorities.[24]
In Biraogo v. The Philippine Truth Commission of 2010,[25] the Court' expounded the concept of equal protection in this regard:
Article II, Sec. 1 provides that the Philippines is a democratic and, republican State. Sovereignty resides in the people and all government authority emanates from them. For the Constitutional framers, the concept of republicanism was added to purposely declare that the country adopts a representative democratic system[26] where leaders are chosen by the people to govern and lead them.
As a tool to determine the representatives of the people, elections are held and during such event, the people exercise their' sovereign power to choose their leaders. In this regard, the equal protection clause ensures that a person is entitled to one vote and such vote carries the same weight as others. There are no privileged individuals whose vote is weightier than others simply because of gender, race or station in life.
Retired Senior Associate Justice Antonio T. Carpio succinctly discussed this equality of weight of votes or the "one person, one vote" concept in his Dissenting Opinion in Sen. Aquino III v. COMELEC,[27] thus —
Considering the concepts discussed above, I am convinced that the BANAT formula for distributing additional seats violates this principle.
As correctly pointed out by the petitioners, the 2% votes to justify the allocation of one (1) guaranteed seat were already considered and used during the allocation of the guaranteed seats. To consider them again, this time for purposes of allocating additional seats, would give these votes more weight or more value than others in violation of the equal protection clause as it gives due preference to votes received by party-list organizations who got 2% of the votes from those who did not.
Justice Javier seems to justify the grant of "double counting of votes" by alleging that there is substantial distinction between party-list organizations who received 2% or more of the total votes cast and those party-lists who did not meet the threshold. Thus, justifying the difference in treatment, i.e. allowing the votes already counted for the guaranteed seat to once again be considered for the allocation of additional seat.
Again, I cannot subscribe to this argument.
First, a reading of Veterans, would show that Veterans never discussed the validity of the 2% threshold on equal protection grounds. Veterans upheld the 2% threshold on the basis of the intent of the Constitutional framers and the intent of Congress to ensure proper representation; and for Congress, 2% of the total votes cast would already ensure a mandate. Even if there is an equal protection component in Veterans, its justification is limited only in the first round. The same treatment cannot be extended to the allocation of the additional seat. This is simply not part of Veterans and would be an unacceptable stretch of the Court's argument.
Second, there seems to be a contradiction in the stance of Justice Javier when, in one breath, she claims that the double counting of votes is acceptable, since there is substantial distinction between groups obtaining the needed 2% threshold and those who do not,[29] and at the same time declares that there is no double counting of votes since the deduction of 2% as BANAT instructs "is done in the second step of the second round of the seat allocation not in the first step of the second round."[30] The stance is self-defeating.
Third, the argument that the deduction of the 2% was made is not an accurate claim. While there is indeed a reduction of the percentages garnered by party-list organizations in the distribution of the additional seats following BANAT, the reduction does not amount to the 2% of the total votes cast. This is because in the round that allocates the guaranteed seat, its proportionality is based on the total number of votes cast for the party-list election while in the round for the allocation of additional seats, the proportionality is not dependent on the numbers of votes cast alone but also on the total number of reserved remaining party-list seats in Congress. Thus, the reason for the reduction is not the deduction of the 2% allocated for the guaranteed seats but because of the change in the basis of the proportionality which is now the total number of votes cast AND the total number of seats remaining for party-list organizations after deducting the number of guaranteed seats already allocated. This is why the reduction from the percentage in the guaranteed seats to the percentage in the additional seat can never be 2%. Hence, to claim that there is no double counting of votes because the 2% considered was already deducted is' without basis.
Lastly, even if there is an exact 2% reduction given to the party-list organizations who garnered the 2% threshold, the BANAT formula would still be flawed considering that the reduction in the allocation of the additional seats apply not only to party-list organizations who obtained the 2% threshold but to all parties since all parties will be subjected to the same formula. Thus, any deduction brought about by the formula to the group who obtained the 2% threshold, that same deduction will be applied to the others. Conversely stated, if there are no double counting of votes because the 2% was deducted only from those party-list organizations who already qualified to get a guaranteed seat, then why the reduction on the percentages of votes of party-list organizations who failed to meet the 2% requirement in the allocation of additional seat? Thus, it cannot be said that there is no inequality of votes here.
Clearly, this double counting of votes creates a classification that does not justify the requirements of a valid classification; particularly, the classification not being germane to the purposes of the law. There is no justification why there is a need to re-credit votes already credited. Further, there can be no conceivable explanation why the vote of one person should have more value compared to others. A contrary rule would be obnoxious to the democratic and republican nature of the country and the promise of equal protection under the Bill of Rights.
As such, since there is double counting of votes and the same violates the equal protection clause, particularly the "one person, one vote" mantra of democratic and republican states, the formula as to the allocation of additional seats must be fine-tuned to address this conundrum.
C. Relative Constitutionality
Aside from what was discussed above, the concept of relative constitutionality comes to play in this case which would further show the violation of the equal protection clause.
In Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,[31] the Court explained the concept of relative constitutionality in this regard, thus:
It must be remembered that the allocation of party-list seats was first settled by the Court in Veterans. Simply, party-list groups who got 2% of the votes will get one (1) seat and will get an additional seat for every additional 2% it gets not exceeding three (3) seats. As stated above, the Court sustained the validity of the 2% threshold on the grounds that the percentage ensures a proper mandate from the people it seeks to represent. Now, Congress created two kinds of groupings: those who obtain the 2% and thus get a guaranteed seat, and those who fail to obtain the 2% threshold and fail to get a guaranteed seat. To me, this is a valid classification for purposes of validating the grant of the guaranteed seat. The equal protection challenge, however, would end there, since any additional seat would depend on an additional 2% of the votes aside from the earlier 2% credited for the guaranteed seat.
With the advent of BANAT, however, the allocation of additional seats was changed and it allowed the distribution of additional seats in relation to, the total number of votes received, including those already credited for the guaranteed seat. While the privilege of the organizations which garnered at least 2% of the votes remained as regards the grant of guaranteed seats as there was substantial distinction between them, the same cannot be said for the distribution of additional seats, BANAT allowed the double counting of votes because the same votes used to clinch the guaranteed seats were used to qualify for an additional seat. This violates the equal protection clause because of the inequality of the weight of votes per voter.
Hence, while the advantage given to a party-list organization which obtains at least 2% of the total votes cast remained for purposes of the guaranteed seat, the change in the manner of computation for additional seats results in the obnoxious unequal treatment of votes in favor of groups who failed to secure the 2% threshold that should not endure in our legal system.
Thereby, the phrase "in proportion to their total number of votes" in Section 11 (b) of R.A. No. 7941 should be struck down for it results to the double counting of votes which is repugnant to the equal protection clause; particularly, the concept of "one person, one vote."
What therefore remains would be the mechanism furnished by the petitioners and an examination of the requirements of the Constitution and of R.A. No. 7941. I conclude that the resulting mechanism is consistent with law and the intention of the framers.
The Constitutional Intentions conform
with the petitioners 'formula for
the distribution of additional
seats for the party-list system
With the declaration of invalidity of the phrase "in proportion to their total number of votes" in Section ll(b) of R.A. 7941, it becomes apparent that a modified manner of computation for allocation of additional seat is in order. As will be discussed below, I am of the opinion that petitioners' formula best reflects the intention of the Constitutional Commission and meets the demands of Congress.
First, the framers intended the party-list system to open up the political system to different groups who have been forgotten for decades, thus, in a debate that supports the proposition against reserved seats for some sectors, Commissioner Christian Monsod explains:
Secondly, as reflected by the records of the deliberations of the Constitutional framers, the party-list system should avoid problematic mechanisms that would lead to undesirable results, like multiple voting36 and unequal weight of votes. Commissioner Monsod, the proponent of the party-list proposal, objected to the proposal of reserved party-list seats, since it would provide some voters 2 votes while the others only one. Thus -
B. Statutory Enactment and the BANAT Decision
When Congress enacted R.A. No. 7941, it was guided by the parameters set forth by the framers of the Constitution. Section 2 of the law clearly mirrors the first guideline of the framers:
Lastly, Congress also mandated that the system of seat-allocation be proportional.
Insofar as the second guideline is concerned, Congress thought it best to pattern the party-list system similar to the electoral system in Germany in order to assure the equal distribution of seats through proportionality and defeat the evils of unequal treatment of votes that concerned the framers.38
When the BANAT Decision was promulgated, however, it resulted into an evil that the Constitutional Commission itself sought to avoid: the double counting of votes where the votes used to clinch the guaranteed seats were also used to allocate the additional seat. The adoption of petitioners' method actually adheres to the guidelines of the Constitutional Commission as it prevents the evil that BANAT allows. The only question that remains is whether or not the petitioners' method complies with the Congressional requirement of proportionality.
I believe it does.
When we look at existing proportional systems that use a quota threshold, proportionality requires the subtraction of credited votes already used just like what the petitioners propose.
C. Electoral Systems
To be clear, R.A. No. 7941 is not an election law; rather it creates what is referred to as an electoral system. The two concepts refer to two (2) different things. David Farrell, in his book, Comparing Electoral Systems[39] explains -
The basic form of this German 2-vote system is discussed by Farrell in this regard -
Insofar as the allocation of additional seats, Congress mandates a proportionate distribution. To determine whether the petitioners' proposal meets the required proportionality of the law, we look at different models of proportional representation, generically referred to as the PR List system. PR list systems that closely resemble our system follow the largest remainder system. The central feature of this system (referred to in the USA as the Hamilton method) is an electoral quota. The counting process occurs in two rounds. In the first round, parties with votes exceeding the quota are awarded seats, and the quota is subtracted from their total vote. In the second round, those parties left with the greatest number of votes (the 'largest remainder') are awarded the remaining seats in order of vote size.[42] This is the same system advocated by the petitioners.
In adopting this system, proportionality is achieved while at the same time avoiding the 'double counting' dilemma brought about by the BANAT Decision. Thus, we characterize the Philippine party-list system as a hybrid of the German 2-vote system and the PR list system that follows the largest remainder system. Of course, our system becomes distinct from other systems because: (1) we limit the number of party-list representatives to 20% of the House of Representatives; and (2) we impose the 3-seat cap. These characteristics make the party-list system of the Philippines unique.
D. Petitioners' proposal compared to the BANAT formula
Petitioners' model which would be the necessary result of the Court's, declaration of invalidity of the phrase "in proportion to their total number of votes" is consistent with Constitutional and Statutory directives.
First, it opens up Congress to more groups, thereby ensuring that more interests are properly represented. This includes even those interests that the marginalized sector itself failed to recognize and represent.
Second, it prevents the evil of unequal weight of votes that the BANATDecision perpetuates; and
Lastly, the proposal is still proportionate considering other similar systems around the world.
A comparative table would show how the BANAT formula differs from the petitioners' formula and the constitutional violation that the BANAT formula presents. As settled, the BANAT Decision provides:
In order to remove such an objectionable scenario created by the BANAT ruling, petitioner's formula is warranted as it is consistent with the guidelines provided by the framers of the Constitution and Congress. The petitioners' formula provides:
The re-ranked table applying steps 4, 5 and 6 would show:
I am well aware that, if ever, this will be the third fine-tuning of the formula for the allocation of party-list seats. There is nothing wrong with this. As long as we live in a vibrant democracy, we must continue to perfect our democratic system.
As stated in the main opinion, it is quite unfortunate that the Court was unable to muster enough votes to either affirm or reject the BANAT formula. While a stand-still is a less than desirable result for the Court, it becomes an opportunity for the Honorable members of Congress to fme-tune R.A. No. 7941, now with the benefit of the collective wisdom of the Court from Veterans to BANAT to Angkla.
I vote to GRANT the petition; SET ASIDE COMELEC Resolution dated May 22, 2019 in NBC No. 004-19; and DECLARE the phrase "in proportion to their total number of votes" found in Section 1 l(b) of Republic Act No. 7941 as UNCONSTITUTIONAL. The formula discussed above should take effect PROSPECTIVELY.
Let a copy of this Opinion be furnished the President of the Senate and the Speaker of the House of Representatives for their information and guidance.
(Sgd.) ALEXANDER G. GESMUNDO
Associate Justice
[1] 604 Phil. 131 (2009).
[2] Rollo, pp. 144-150.
[3] Rollo, pp. 118-120.
[4] Id. at 132-133.
[5] G.R. No. 224846, February 4, 2020.
[6] 760 Phil. 562(2015).
[7] 396 Phil. 419(2000).
[8] Samahan ng mgq Progresibong Kabataan v. Quezon City, 815 Phil. 1067, 1089-1090 (2017).
[9] Atty. Lozano v. Speaker Nograles, 607 Phil. 334, 340 (2009).
[10] 65 Phil. 56(1937).
[11] Id. at 88-89.
[12] 476 Phil. 106(2004).
[13] BGen. Comendador v. Gen. de Villa, 277 Phil. 93, 116 (1991).
[14] San Miguel Brewery, Inc., v. Magno, 128 Phil. 328, 334 (1967).
[15] Philippine National Bank v. Palma, 503 Phil. 917, 934 (2005).
[16] La Bugal-B'laan Tribal Association, Inc. v. Ramos, 465 Phil. 860, 893 (2004).
[17] 412 Phil. 308(2001).
[18] 707 Phil. 454(2013).
[19] 629 Phil. 629(2010).
[20] 358 Phil. 896(1998).
[21] Supra note 19 at 693-694.
[22] G.R. No. 206438, July 31, 2018, 875 SCRA 374, 435-436.
[23] 723 Phil. 444(2013).
[24] The Provincial Bus Operators Association of the Philippines v. Department of Labor and Employment, G.R. No. 202275, July 17,2018.
[25] 651 Phil. 374,458-461 (2010).
[26] Records of the Constitutional Commission No. 086, September 18, 1 986.
[27] 631 Phil. 595(2010).
[28] Id. at 637-638.
[29] See draft ponencia as of June 2, 2020, p. 22: "In the exercise of this prerogative, Congress modified the weight of votes cast under the party list system with reason. "
[30] See Opinion of Justice Javier, as of June 2, 2020, p. 21.
[31] 487 Phil. 531 (2004).
[32] Id. at 562-563.
[33] Records of the Constitutional Commission, No. 096, September 30, 1986.
[34] Records of the Constitutional Commission No. 039, July 25, 1986.
[35] Id.
[36] See Records of the Constitutional Commission No. 039, supra note 34.
[37] Records of the Constitutional Commission No. 036, July 22, 1986.
[38] See Veterans Federation Party v. COMELEC, 396 Phil. 419, 440 (2000).
[39] Farrell, David M. Comparing Electoral Systems, MacMillan Press, Ltd., London, 1997, pp. 3-5.
[40] Id. at 86-87.
[41] Id. at 89-93.
[42] Id. at 62.
[43] Petition, p. 27.
[44] 279 Phil. 843, 857-858 (1991).
September 15, 2020
DISSENTING OPINION
ZALAMEDA,.J.:
In this amended Petition for Certiorari and Prohibition, petitioners Angkla: Ang Partido ng mga Marinong Pilipino (Angkla) and Serbisyo sa Bayan Party (SBP), together with petitioner-in-intervention, Aksyon Magsasaka - Tinig Partido ng Masa (AKMA-PTM), assail Resolution No. 004-19 issued by respondent Commission on Elections (COMELEC), acting as the National Board of Canvassers (NBOC). They argue that said Resolution was issued with grave abuse of discretion amounting to lack or excess of jurisdiction for blatantly violating the procedure introduced by the Court in its Resolution in BANAT v. COMELEC (BANAT Resolution),[2] the equal protection clause, and the principle of "one voter, one party-list vote."[3]
Corollary to this, petitioners assail the constitutionality of Section 11 (b) of Republic Act No. (RA) 7941,[4] or the Party-List System Act, providing for the double counting of votes in the allocation of additional seats:
Petitioners insist, that the allocation of additional seats in proportion to a party's total number of votes results in the double counting of votes in favor of the two percenters, which violates the equal protection clause. Petitioners claim that, consistent with the BANAT Resolution, the 2% votes counted in the first round should first be excluded or deducted from the total votes of the two percenters before proceeding to the second round of seat allocation. According to petitioner's interpretation of the BANAT Resolution, the correct formula should be:
In the BANAT Decision,[12] the Court held that the 2% threshold in relation to the distribution of the additional seats as found in the second clause of Section 11 (b) of RA 7941 is unconstitutional. The Court explained:
In the subsequent BANAT Resolution, the Court made some clarifications in view of the reduction of the number of legislative districts,[14] which resulted in a corresponding change in the number of party-list seats from 55 to 54. The Court likewise ruled on the motion for partial reconsideration-in-intervention of Armi Jane Roa-Borje, the third nominee of Citizen's Battle Against Corruption (CIBAC). The Court held:
The statement of the Court in the BANAT Resolution regarding the allocation of additional seats is indeed confusing. In computing CIBAC's fractional seat after receiving two seats, the Court multiplied CIBAC's 2.81% (from the percentage of 4.81% less the 2% for its guaranteed seat) by 37, the additional seats for distribution in the second round, resulting in 1.03 seat, leaving a .03 fractional seat, which is lower than TUCP's .38 fractional seat. It would thus appear that the Court deducted the 2%, representing the guaranteed seat allocation, from the total percentage of votes of the two percenters (specifically CIBAC, in this case) before allocating the additional seats. However, the Court went on to clarify that the fractional seats become material only in the second step of the second round of seat allocation to determine the ranking of parties.
A scrutiny of the BANAT Resolution reveals that the Court still maintained its formula in allocating the party-list seats as enunciated in the BANAT Decision. This is clear from the tabulation made by the Court, modifying the COMELEC's computation in NBC No. 09-001. The formula for allocating seats remained the same except that the multiplier for the allocation of additional seats was reduced to 36 (the difference between 54, the number of available party-list seats, and 18, the number of guaranteed seats). In computing for additional seats, the Court still used the percentage of votes garnered over the total votes for party list without deducting the 2% votes already allotted in the first round for guaranteed seats, contrary to petitioners' interpretation. In short, the allocation of additional seats to party-list organizations is still in proportion to their total number of votes, without deducting the 2% votes already allotted for their guaranteed seats.
In the BANAT Resolution,[17] the Court reiterated that "[t]here are two steps in the second round of seat allocation. First, the percentage is multiplied by the remaining available seats, which is the difference between the maximum seats reserved under the Party-List System and the guaranteed seats of the two-percenters. The whole integer of the product of' the percentage and of the remaining available seats corresponds to a, party's share in the remaining available seats. Second, we assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 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."[18]
Applying the two steps in the second round of seat allocation, the Court, in the first step, multiplied CIBAC's 4.81% by 37 and got 1.73, which corresponds to CIBAC's one (1) additional seat since fractional seats are disregarded. It should be stressed that in this first step of the second round of seat allocation, the Court still used the percentage of votes garnered over the total votes for party list without deducting the 2% votes already allotted in the first round for guaranteed seats, which in CIBAC's case is 4.81%. However, in the second step of the second round, the Court did not consider CIBAC's fractional seat of 0.73 (the fractional remainder from 1.73 after the allocation of 1 additional seat to CIBAC), which would have entitled CIBAC to an additional seat. Instead, in the second step of the second round of seat allocation, wherein the preference in the distribution is in accordance with the higher percentage and higher rank without limiting the distribution of seats to the two percenters, it appears that the Court had a separate equation for the two percenters when it deducted the 2% guaranteed seat from the percentage of votes of the two percenters.
In determining the ranking of parties in the second step of the second round of seat allocation, the Court multiplied CIBAC's 2.81% (from the percentage of 4.81% less the 2% for its guaranteed seat) by 37, the additional seats for distribution in the second round, resulting in 1.03 seat, leaving a 0.03 fractional seat which is lower than TUCP's 0.38 fractional seat. Thus, in this second step of the second round of seat allocation, CIBAC cannot claim a third seat since TUCP, the last ranked party allocated with a seat, has a higher rank than CIBAC.
To clarify, in the first step of the second round of seat allocation, the allocation of additional seats to the two percenters is still in proportion to their total number of votes, without deducting the 2% votes already allotted for their guaranteed seats. It is only in the second step of the second round of seat allocation, wherein the preference in the distribution is in accordance with the higher percentage and higher rank without limiting the distribution of seats to the two percenters, that the 2% guaranteed seat is deducted from the percentage of votes of the two percenters to compute its fractional seat in order to determine its ranking for additional seat allocation.
It is therefore erroneous for petitioners to insist that the BANAT Resolution excluded the 2% votes counted in the first round from the total votes of the two percenters before proceeding to the second round of seat allocation. Nonetheless, I agree with petitioners that the non-exclusion of the 2% guaranteed votes in the allocation of additional seats results to double counting of votes, which violates the equal protection clause.
Petitioners next argue that the last paragraph of Section 11 of RA 7941, which entitles parties to additional seats "in proportion to their total number of votes," is unconstitutional. I agree. This provision violates the equal protection clause for allowing the 2% already allotted for a guaranteed seat to be re-used and re-counted in the allocation of additional seats. I submit that this clause perpetuates the double counting of votes which is anathema to the "one person, one vote" rule rooted in the Equal Protection Clause.
One of the basic tenets of democracy is that each person has one vote. The principle of "one person, one vote" or equality in voting power is the essence of our democracy and is inherent in proportional representation.[19]
All votes are equal and should carry the same weight. In every conduct of elections, the government must ensure that each and every vote cast should have equal voting power. Otherwise, the equal protection of laws, as guaranteed under our Constitution, finds no application.
Indeed, to consider the 2% votes representing the guaranteed seats again would logically grant these votes more weight and influence as compared to other votes in support of those party-list organizations that did not garner at least 2% (the non-two percenters). This assigns undue preference to those party-list organizations who obtained at least 2% of the total number of votes (the two percenters); not only making it easier for the two percenters to get additional seats, but making it more difficult for the non-two percenters to obtain a single seat. The principle of "one person, one vote" ensures that a voter's constitutional right to vote in elections is not wrongfully denied or diluted. The double counting of votes for the two percenters would effectively dilute the weight of the votes for the non-two percenters, and is inconsistent with the voters' constitutional right to an equally weighted vote.
We must fiercely guard against the unconstitutional double counting of votes. To this end, I propose that the COMELEC's formula, as provided in the implementing rules and regulations of RA 7941[20] and explained further in the primer on the party-list system of representation, be utilized-but with some modification.
The COMELEC's formula adheres to the 3-seat cap and emphasizes the preference for the two percenters, which is consistent with RA 7941. However, the COMELEC's formula needs to be modified as regards limiting the allocation of seats only to the two percenters since this would negate the 20% allocation of party-list membership in the House of Representatives provided under Article VI, Section 5 of the Constitution. The Court in BANATv. COMELEC, [21] already held the 2% threshold as void in relation to the distribution of the additional seats as this would frustrate the permissive ceiling of 20% constitution of party-list membership in the House of Representatives. Thus, I present the following procedure in the allocation of seats in the party-list system:
In my suggested formula, after the two percenters are allocated seats, i.e., one seat per 2% of votes obtained, but not to exceed 3 seats, the variance in excess of 2% or 4% (equivalent to 1 or 2 seats that have already been obtained, respectively) shall be computed and accordingly ranked together with the percentage of the non-two percenters. This new ranking based on the percentage not consumed for the two percenters (percentage of votes less the percentage consumed on the allocated seats) and on the percentage of votes for the non-two percenters (since they were not yet allocated any seats for not having reached the 2% threshold) shall be the basis for allocating the remaining seats until all available seats are distributed.
Applying this formula in the distribution of available party-list seats, where the total number of votes under the party-list system is 27,884,790 and the number of seats reserved for the party-list representatives is 61:
Accordingly, I vote to GRANT the present Petitions and to:
(Sgd.) RODIL V. ZALAMEDA
Associate Justice
[1] Associate Justice Antonio T. Carpio's Separate Opinion in Chavez v. Gonzalez, 569 Phil. 155 (2008). Emphasis supplied.
[2] G.R. Nos. 179271 and 179295 (Resolution), 08 July 2009; 609 Phil. 751 (2009).
[3] Amended Petition, pp. 2-3.
[4] An Act Providing for the Election of Party-Lisl Representatives Through the Party-List System, and Appropriating Funds Therefor.
[5] Rollo, pp. 148-150.
[6] G.R. Nos. 179271 & 179295, 21 April 2009; 604 Phil. 131 (2009).
[7] Rollo, p. 133.
[8] Section 3 of RA 7941.
[9] G.R.Nos. 1457589 & 147613, 26 June 2001; 412 Phil. 308(2001).
[10] Section 18. Rules and Regulations. - The COMELEC shall promulgate the necessary rules and regulations as may be necessary to cany out the purposes of this Act.
[11] The COMELEC's "Primer on the Party-List System of Representation in the House of Representatives" provides the following procedure in the allocation of party-list seats:
[12] Supra note 6.
[13] Id.
[14] The number of legislative districts was reduced to 219 following the Court's ruling in Sema v. COMELEC [G.R. Nos. 177597 & 178628, 16 July 2008J, declaring void the creation of the Province of Sharif Kabunsuan.
[15] Supra note 2.
[16] Rollo, p. 108.
[17] The BANAT Resolution summarized the four parameters in a Philippine-style party-list election system as follows:
1 Twenty percent of the total number of the membership of the House of Representatives is the maximum number of seats available to party-list organizations, such that there is automatically one party-list seat for every four existing legislative districts.
2. Garnering two percent of the total votes cast in the party-list elections guarantees a party-list organization one seat. The guaranteed seats shall be distributed in a first round of seat allocation to parties receiving at least two percent of the total party-list votes.
3. The additional seats, that is, the remaining seats after allocation of the guaranteed seats, shall be distributed to the party-list organizations including those that received less than two percent of the total votes. The continued operation of the two percent threshold as it applies to the allocation of the additional seats is now unconstitutional because this threshold mathematically and physically prevents the filling up of the available party-list seats. The additional seats shall be distributed to the parties in a second round of seat allocation according to the two-step procedure laid down in the Decision of 21 April 2009 as clarified in this Resolution.
4. The three-seat cap is constitutional. The three-seat cap is intended by the Legislature to prevent any party from dominating the party-list system. There is no violation of the Constitution because the 1987 Constitution does not require absolute proportionality for the party-list system. The well-settled rule is that courts will not question the wisdom of the Legislature as long as it is not violative of the Constitution. (Emphasis supplied)
[18] See footnotes 6 and 7 of the BANAT Resolution.
[19] Justice Antonio T. Carpio's Separate Opinion in Aquino III v. Commission on Elections [G.R No 189793, 07 April 2010].
[20] COMELEC Resolution No. 2847, prescribing the "Rules and Regulations Governing the Election of Party-List Representatives Through the Party-List System.'1
[21] G.R. Nos. 179271 & 179295, 21 April 2009; 604 Phil. 131 (2009).
[22] Section 2, RA 7941.
September 15, 2020
CONCURRING AND DISSENTING OPINION
LOPEZ, J.:
I concur with the ponencia to maintain the BANAT Formula,[1] which recognizes the prerogative of Congress to formulate the manner of filling-up the party-list system while at the same time ensuring that said prerogative remains within constitutional bounds.
Also, I agree that there is no double-counting of votes because the allocation of seats is determined using different formulas based on substantial distinctions and different levels of proportion. The first round allocating one guaranteed seat requires the determination of proportion of votes obtained by a party in relation to the number of votes cast in the Party-List System (PLS). It refers to the threshold mentioned in Republic Act (RA) No. 7941, Section 11 (b) that parties with at least 2% of the votes will have a guaranteed seat. The second round (first part) refers to the proportion of votes obtained by parties garnering at least 2% of the votes cast in relation to the votes cast for the PLS multiplied by the number of remaining seats. The second round (second part) refers to the proportion of votes obtained by the parties relating to the fractional value of their votes represented by decimal values (e.g. 0.78, 0.79, 0.80 etc.). The purpose of the second round is to completely fill-up the 20% allocation of seats in the PLS.
However, I submit that the allocation of seats to parties receiving fractional seats (second round, second part) as illustrated in BANAT should be modified to conform with the principle of proportionality mandated by the law.
I.
RA No. 7941[2] provides the manner on how seats in the PLS of Representation are allocated:
Interpreting the above-quoted provision, Veterans Federation Party v. Commission on Elections[3] identified four inviolable parameters, which must be observed in the allocation of seats:
COMELEC[5] revisited the determination of proportionality and adopted with modification the Niemeyer Formula earlier proposed by then Justice Mendoza in Veterans. In his Dissenting Opinion in Veterans, Justice Mendoza explained why the Niemeyer Formula may be adopted in the Philippine PLS:
If the formula is reduced into an analogy, it can be likened to a pie to be distributed only to the 2 percenters based on the number of votes they received.[7] The number of seats to be allocated to the party is proportional to the number of votes it received. This is the clear import of the provision worded as follows: "[p]rovided, [t]hat those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes."
Unlike in Veterans wherein the 20% PLS membership was considered merely as a ceiling, BANAT held that the 20% must be filled-up. Thus, BANAT partly modified Section 11 (b) of RA No. 7941 and removed the limitation that only those satisfying the 2% threshold should be allocated with "additional" seats. BANAT observed that the continuous operation of the 2% in the determination of "additional" seats presents a mathematical impossibility to fulfill the 20% membership. This is only true because Section 11 (b) provides that there must be a 3-seat limit. Without the 3-seat limit, the additional seats in the 2019 National and Local Elections (NLE) should have been as follows:
On this score, 1 submit that the equal protection clause is not violated because there is no double-counting of votes. The first and second rounds of allocation of seats serve different purposes and involve1 different formulas involving different levels of proportions. The petitioners' claim of "double counting" presupposes that there is singularity in the formula used in allocating seats.
The first round gives flesh to the threshold requirement and in consonance with Section 11 (b) - "[t]he 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 seat each," which is mathematically determined by dividing the total votes of a party and the total votes received by all of the parties without regard to the available seats. The second round is for fulfilling the constitutional provision of 20% membership determined proportionally and mathematically in the formula described above. Accordingly, petitioners cannot simply claim that there is double-counting of votes without taking into consideration how seats are allocated. The' petitioners' framework presupposes that the seats are allocated using the same formula and level of proportionality. A quick comparison of the number of votes needed to obtain a seat (first round and second round) will readily show that they are not equal. More votes are needed to garner a seat in the first round than in the second round. As discussed in the ponencia, petitioners' framework put the 2 percenters at a serious disadvantage. The difference can be seen by comparing the formulas between the first and second round:
Be that as it may, the proper treatment of fractional seats should be modified.
II.
The ponencia summarized the BANAT Formula as follows:
Round 1:
x x x x[8]
BANAT correctly applied the Niemeyer Formula to determine proportionality in the remaining seats after the first round. However, it is silent on how fractional seats represented by decimal values are to be treated. As held in VETERANS and BANAT, the fractional seats should not be rounded-off in the absence of an enabling law. BANAT recognized that there will be fractional seats and introduced the second round (second part) and assigned one seat each to the parties based on their rankings until the seats are exhausted.
However, as can be implied in the illustration in BANAT, it completely disregarded the 2 percenters' fractional seats in the second round (second part) and failed to address the question why some 2 percenters, which received a large fractional seat but. did not reach the three-seat limit, were not awarded further additional seat. In footnote 31, BANAT merely stated that "[t]he product of the percentage and the remaining available seats of all parties ranked nine and below is less than one."
As can be implied from the illustration in BANAT, the second round is based on two different formulas of proportionality. The second round (first part) used the Niemeyer Formula while the second round (second part) used the formula used in the first round to rank the non-two percenters including parties, which did not receive a seat during the second round (first part). This made it appear that the "fractional seats" of the non-two percenters are automatically larger than those of the 2 percenters, which justify the exclusion of the 2 percenters in the allocation of seats in the second part.
The same concern highlights the motion for reconsideration in BANAT.[9] In dealing with this issue, BANAT (MR) explained:
I submit that the second round, second part of allocation of seats discussed in BANAT should be understood as the distribution of remaining seats to parties receiving seats with fractional value. In order to determine each of the parties' proportional share, the Niemeyer Formula should be uniformly applied to all parties in the second round. After the additional seats represented by whole integers have been distributed in the second round (first part), the parties should then be ranked again in a descending order based on their fractional seats to determine which of them will receive the remaining seats until they are exhausted. This is the more logical approach in treating fractional seats without resorting to rounding-off by recognizing the proportion of votes received by the parties. BANAT already implemented this in the second round (second part) but erred not to consider the fractional seats of the 2 percenters.
This adequately explains why some 2 percenters cannot have the maximum 3 seats because the size of their fractional seats may be lower than some of the non-two percenters.
III.
The 2019 NLE have long been concluded, the winning party-list groups have already been declared, and their respective nominees have already taken an oath of and assumed office before the House of Representatives. No restraining order was issued to prevent the National Board of Canvassers from executing its Resolution No. 004-19. Accordingly, the grant of this petition would necessarily alter the current composition of membership in the House of Representatives, which the Court must carefully consider.
Section 17, Article VI of the Constitution clearly provides that the House of Representatives shall have an electoral tribunal "which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members." The importance of observing the delineation of jurisdiction in election contests is recently highlighted in the case of Reyes v. COMELEC, et al.[11] where the Court had to clarify when the jurisdiction of the House of Representatives Electoral Tribunal (HRET) begins. According to Reyes, a candidate becomes a member of the house if the following requisites are met: (1) proclamation; (2) oath of office; and (3) assumption to office.[12]
The HRET's jurisdiction was recognized in Rivera, et al. v. Commission on Elections, et al.[13] relating to a petition for quo warranto against a Member of the House of Representatives:
However, we must be circumspect in deciding the instant case. While the Court has jurisdiction to pass upon the constitutionality of Section 11 (b) of RA No. 7941, it is the HRET that should pass upon the possible divestment of seats of Members of the House of Representatives. To reiterate, we did not issue a temporary restraining order or a status quo ante order. As a result, the nominees of the winning party-list became Members of the House of Representatives. Accordingly, I submit that any discussion on the alternative formula to allocate the seats should be applied prospectively.
FOR THESE REASONS, I vote to DISMISS the petition for lack of merit. Insofar as my discussion on how fractional seats are allocated, this should be applied prospectively.
(Sgd.) MARIO V. LOPEZ
Associate Justice
[1] Barangay Association for National Advancement and Transparency (BANAT) v. COMELEC, 604 Phil. 131 (2009).
[2] An Act Providing for the Election of Party-List Representatives Through the Party-List System, and Appropriating Funds Therefor, Republic Act No. 7941 (1995).
[3] 396 Phil. 419 (2000).
[4] Id. at 424.
[5] Supra note I.
[6] Id. at 474-495.
[7] Veterans Federation Party v. Commission on Elections, supra note 3.
[8] Ponencia, pp. 18-19.
[9] 604 Phil. 131 (2009) & 609 Phil. 751 (2009).
[10] Ponencia, p. 3 I.
[11] 712 Phil. 192 (2013) & 720 Phil. 174(2013).
[12] Id. at 212.
[13] 785 Phil. 176(2016).
[14] Id. at 193-194.
[15] 661 Phil. 452 (2011).
[16] Supra note 3.
[17] Supra note 1.
[18] Supra note 3 at 434.
Section 11. Number of Party-List Representatives, xxxUnder the provision, party-lists garnering at least 2% of the votes cast for the party-list system (two-percenters) are guaranteed one seat each in the House of Representatives. Meanwhile, the challenged proviso allocates additional congressional seats to party-lists "in proportion to their total number of votes."x x x x x x x x x x
(b) 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 seat each: Provided, 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: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats, (emphasis added)
Petitioners ANGKLA: Ang Partido Ng Mga Pilipinong Marino, Inc., (ANGKLA) and Serbisyo sa Bayan Party (SBP) and Petitioner-in-Intervention Aksyon Magsasaka-Partido Tinig ng Masa (AKMA-PTN) essentially assert that the allocation of additional seats in proportion to a party-list's "total number of votes" results in the double-counting of votes in favor of the two-percenters. For the same votes which guarantee the two-percenters a seat in the first round of seat allocation are again considered in the second round. The proviso purportedly violates the equal protection clause, hence, is unconstitutional.[2]
The aforenamed petitioners, therefore, pray that respondent Commission on Elections (COMELEC) be enjoined from double-counting the votes in favor of the two-percenters. Instead, the 2% votes counted in the first round should first be excluded before proceeding to the second round of seat allocation. Their proposed framework is, as follows:
This position is allegedly consistent with the Court's Resolution in Barangay Association For National Advancement And Transparency (BANAT) v. COMELEC (BANAT)[4] dated July 8, 2009:
- The parties, organizations, and coalitions taking part in the party-list elections shall be ranked from the highest to the lowest based on the total number of votes they each garnered in the party-list elections.
- Each of the parties, organizations, and coalitions taking part in the party-list elections receiving at least two percent (2%) of the total votes cast under the party-list elections shall be entitled to one guaranteed seat each.
- Votes amounting to two percent (2%) of the total votes cast for the party-list elections obtained by each of the participating parties, organizations, and coalitions should then be deducted from the total votes of each of these party- list groups that have been entitled to and given guaranteed seats.
- The parties, organizations, and coalitions shall thereafter be re-ranked from highest to lowest based on the recomputed number of votes, that is, after deducting the two percent (2%) stated in paragraph 3.
- The remaining party-list seats (or the "additional seats") shall then be distributed in proportion to the recomputed number of votes in paragraph 3 until all the additional seats are allocated.
- Each party, organization, or coalition shall be entitled to not more than three (3) seats.[3]
xxx CIBAC's 2.81% (from the percentage of 4.81% less the 2% for its guaranteed seat) has a lower fractional seat value after the allocation of its second seat compared to TUCP's 1.03%. CIBAC's fractional seat after receiving two seats is only 0.03 compared to TUCP's 0.38 fractional seat. Multiplying CIBAC's 2.81% by 37, the additional seats for distribution in the second round, gives 1.03 seat, leaving 0.03 fractional seat. Multiplying TUCP's 1.03% by 37 gives a fractional seat of 0.38, higher than CIBAC's fractional seat of 0.03 xxx (Emphasis added)On May 22, 2019, the National Board of Canvassers (NBOC) promulgated NBOC Resolution No. 004-19[5] declaring the winning party-list groups in the.May 13, 2019 elections. Based on the National Canvass Report No. 8[6] and adhering to the Court's pronouncement in BANAT, respondent COMELEC distributed sixty-one (61) congressional seats among the following parties, organizations, and coalitions taking part in the May 13, 2019 party-list election, viz.:
Additionally, the National Canvass Report No. 8 revealed that the four (4) parties, organizations, and coalitions taking part in the May 13,2019 party-list election with the next highest votes were:
RANK
PARTY-LIST
ACRONYM
VOTES GARNERED
%OF TOTAL VOTES
SEATS
1
ANTI-CRIME AND TERRORISM COMMUNITY INVOLVEMENT AND SUPPORT, INC.
ACT CIS
2,651,987
9.51
3
2
BAYAN MUNA
BAYAN MUNA
1,117,403
4.01
3
3
AKO BICOL POLITICAL PARTY
AKO BICOL
1,049,040
3.76
2
4
CITIZENS BATTLE AGAINST CORRUPTION
CBAC
929,718
3.33
2
5
ALYANSA NG MGA MAMAMAYANG PROBINSIYANO
ANG PROBINSIYANO
770,344
2.76
2
6
ONE PATRIOTIC COALITION OF MARGINALIZED NATIONALS
1PACMAN
713,969
2.56
2
7
MARINO SAMAHAN NG MGA SEAMAN, INC.
MARINO
681,448
2.44
2
8
PROBINSYANO AKO
PROBINSYANO AKO
630, 435
2.26
2
9
COALITION OF ASSOCIATION OF SENIOR CITIZENS IN THE PHILIPPINES, INC.
SENIOR CITIZENS
516, 927
1.85
1
10
MAGKAKASAMA SA SAKAHAN, KAUNLARAN
MAGSASAKA
496,337
1.78
1
11
ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES
APEC
480, 874
1.72
1
12
GABRIELA WOMEN'S PARTY
GABRIELA
449,440
1.61
1
13
AN WARAY
AN WARAY
442,090
1.59
1
14
COOPERATIVE NATCCO NETWORK
COOP-NATTCO
417,285
1.50
1
15
ACT TEACHERS
ACT TEACHERS
395,327
1.42
16
PHILIPPINE RURAL ELECTRIC COOPERATIVES ASSOCIATION, INC.
PHILRECA
394,966
1.42
1
17
AKO BISAYA, INC.
AKO BISAYA
394,304
1.41
1
18
TINGOG SINIRANGAN
TINGOG SINIRANGAN
391,211
1.40
1
19
ABONO
ABONO
378,204
1.36
1
20
BUHAY HAYAAN YUMABONG
BUHAY
361,493
1.30
1
21
DUTY TO ENERGIZE THE REPUBLIC THROUGH THE ENLIGHTENMENT OF THE YOUTH
DUTERTE YOUTH
354,629
1.27
1
22
KALINGA-ADVOCACY FOR SOCIAL EMPOWERMENT AND NATION BUILDING
KALINGA
339,655
1.22
1
23
PWERSA NG BAYANING ATLETA
PBA
326,258
1.17
1
24
ALLIANCE OF ORGANIZATIONS, NETWORKS, AND ASSOCIATIONS OF THE PHIIPPINES
ALONA
320,000
1.15
1
25
RURAL ELECTRIC CONSUMERS AND BENEFICIARIES OF DEVELOPMENT AND ADVANCEMENT, INC.
RECOBODA
318,511
1.14
1
26
BAGONG HENERASYON
BH (BAGONG HENERASYON)
288,752
1.04
1
27
BAHAY PARA SA PAMILYANG PILIPINO, INC.
BAHAY
281,793
1.01
1
28
CONSTRUCTION WORKERS SOLIDARITY
CWS
277,890
1.00
1
29
ABANG LINGKOD, INC.
ABANG LINGKOD
275,199
0.99
1
30
ADVOCACY FOR TEACHER EMPOWERMENT THROUGH ACTION COOPERATION HARMONY TOWARDS EDUCATIONAL REFORM
A TEACHER
274,460
0.98
1
31
BARANGAY HEALTH WELLNESS
BHW
269,518
0.97
1
32
SOCIAL AMELIORATION AND GENUINE INTERVENTION ON POVERTY
SAG IP
257,313
0.92
1
33
TRADE UNION CONGRESS PARTY
TUCP
256,059
0.92
1 .
34
MAGDALO PARA SA PILIPINO
MAGDALO
253,536
0.91
1
35
GALING SA PUSO PARTY
GP
249,484
0.89
1
36
MANILA TEACHERS SAVINGS AND LOAN ASSOCIATION, INC.
MANILA TEACHERS 1
249,416
t
0.89
1
37
REBOLUSYONARONG ALYANSA MAKABANSA
RAM
238,150
0.85
1
38
ALAGAAN NATIN ATING KALUSUGAN
ANAKALUSUGAN
237,629
0.85
1
39
AKO PADAYON PILIPINO
AKO PADAYON
235,112
0.84
1
40
ANG ASOSASYON SANG MANGUNGUMA NGA BISAYA0OWA MANGUNGUMA, INC.
AAMBIS-OWA
234,552
0.84
1
41
KUSUG TAUSUG
KUSUG TAUSUG
228,224
0.82
1
42
DUMPER PHILIPPINES TAXI DRIVERS ASSOCIATION, INC.
DUMPER PTDA
223,199
0.80
1
43
TALINO AT GALING PILIPINO
TGP
217,525
0.78
1
44
PUBLIC SAFETY ALLIANCE FOR TRANSFORMATION AND RULE OF LAW
PATROL
216,653
0.78
1
45
ANAK MINDANAO
AMIN
212,323
0.76
1
46
AGRICULTURAL SECTOR ALLIANCE OF THE PHILIPPINES
AGAP
208,752
0.75
1
47
LPG MARKETERS ASSOCIATION, INC.
LPGMA
208,219
0.75
1
48
OFW FAMILY CLUB, INC.
OFW FAMILY
200,881
0.72
1
49
KABAUKAT NG MAMAMAYAN
KABAYAN
198,571
0.71
1
50
DEMOCRATIC INDEPENDENT WORKERS ASSOCIATION
DIWA
196,385
0.70
1
51
KABATAAN PARTY LIST
KABATAAN
195,837
0.70
1
In view of this development, the aforenamed petitioners amended their petition to additionally seek the annulment of NBOC Resolution No. 004-19 on ground that it supposedly violated the Court's Resolution dated July 8, 2009 in BANAT. They also pray that the COMELEC be directed to proclaim that they are entitled to at least a seat each in the May 13, 2019 party-list election. This claim is based on their proposed framework for seat distribution, whereby AKMA-PTM, SBP, ANGKLA and AKB AY AN would allegedly be entitled to one (1) seat each to be taken from, or at the expense of, the seats' allocated to BAYAN MUNA, 1PACMAN, MARINO, and PROBINSYANO AKO.[7]
RANK
PARTY-LIST
ACRONYM
VOTES GARNERED
% OF TOTAL VOTES
52
AKSYON MAGSASAKA - PARTIDOTINIGNGMASA
AKMA-PTM
191,804
0.69
53
SERBISYO SA BAYAN PARTY
SBP
180,535
0.65
54
ANGKLA: ANG PARTIDO NG MGA MARINONG PILIPINO, INC,
ANGKLA
179,909
0.65
55
AKBAYAN CITIZENS ACTION PARTY
AKBAYAN
173,356
0.62
On June 13, 2019, AKMA-PTM filed the petition-in-intervention[8] echoing the arguments raised in the main petition pertaining to the alleged unconstitutionality of the double-counting of votes. It points out that the total votes cast under the party-list system during the May 13, 2019 elections numbered 27,884,790. Thus, a party, organization or coalition taking part in the party-list election must have obtained 2% thereof, or at least 557,695.80 votes, to secure a guaranteed seat. It argues that each time a party, organization, or coalition taking part in the party-list election earns a guaranteed seat, 557,695.80 of its votes should then be deducted from the total number of votes obtained by that party-list, thus:[9]
Since the remaining votes of 1 PACMAN, MARINO and PROBINSYANO AKO, on the one hand, are fewer than those garnered by petitioners AKMA-PTM (191,804), SBP (180,535) and ANGKLA (179,909), on the other, the latter should be prioritized in the second round of seat distribution. Accordingly, 1 PACMAN, MARINO and PROBINSYANO AKO should not have been allocated a second seat on top of the first guaranteed; their supposed second seats should have been awarded to petitioners. Applying the same formula, the third seat allocated to BAYAN MUNA must also be forfeited, allowing AKBAYAN representation in the House of Representatives.
Party-List
VOTES GARNERED
% OF TOTAL VOTES
Guaranteed Seat
Remaining Votes
1PACMAN
713,969
2.56
1
156,273.20
MARINO
681,448
2.44
1
123,752.20
PROBINSYANO AKO
630,435
2.26
1
72,739.20
The Office of the Solicitor General (OSG), through Solicitor General Jose C. Calida, Assistant Solicitor General Thomas M. Laragan and State Solicitor Isar O. Pepito, defends the position of public respondent COMELEC. It ripostes, in the main:
First. There is no double-counting of votes since the system of counting, pertains to two (2) different rounds and for two (2) different purposes: the first round is for purposes of applying the 2% threshold and ensuring that only party-lists with sufficient constituencies shall be represented in Congress, while the second round is for the purpose of ensuring compliance with the constitutional fiat that 20% of the members of the House of Representatives shall be elected via a party-list system.[10]
Second. The challenged provision does not violate .the equal protection clause. The two-percenters have a clearer mandate of the people than the non-two-percenters. This substantial distinction between the two (2) justifies the grant of additional rights and benefits to the former over the latter.[11]
Third. Petitioners mislead the Court in claiming that its Resolution in BANAT dated July 8, 2009 supports their proposed framework, when the latter's proposal in fact is contrary thereto.[12]
Finally. RA 7941 does not defeat the rationale behind the party-list system. It is erroneous for petitioners to hint that the system is reserved for the marginalized and underrepresented. On the contrary, skewed in favor of minimally-representative and unpopular party, organization or coalition taking part in the party-list election, petitioners' proposed formula is repugnant to the aim of the party-list system to ensure the broadest representation possible.[13]
Is Section 11(b), RA 7941 allocating additional seats to party-lists in proportion to their total number of votes unconstitutional?
The petitions are devoid of merit.
Petitioners fail to meet the third requisite for judicial review
The power of judicial review is conferred on the judicial branch of government under Section 1, Article VIII of the Constitution[14] It sets to correct and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch of Government[15] and may therefore be invoked to nullify actions of the legislative branch which have allegedly infringed the Constitution[16]
Although directly conferred by the Constitution, the power of judicial review is not without limitations. It requires compliance with the following requisites: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have legal standing to challenge; he or she or it must have a personal and substantial interest in the case such that he or she or it has sustained, or will sustain, direct injury as a result of the assailed measure's enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[17]
There is no dispute that the first and the second requisites are present in this case:
First. An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.[18] A question is ripe for adjudication when there is an actual act that had been performed or accomplished that directly and adversely affected the party challenging the act.[19]
Here, the COMELEC already applied the assailed Section ll(b), RA 7941 when it promulgated Resolution No. 004-19, proclaimed the winning party-list parties, organizations, or coalitions in the May 13, 2019 party-list election and allocated to each of them seats in the House of Representatives.
Second. Locus standi or legal standing is the personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.[20] Petitioners assert that the nullification of the contested proviso would entitle them to one (1) seat each in Congress under the party-list system.
But the third requisite - - the question of constitutionality must be raised at the earliest possible opportunity - - is absent here.
RA 7941 was enacted in 1995. In 2009, the Court settled the interpretation of Section 11(b) in BANAT. The Court takes judicial notice of the fact that, thereafter, petitioner ANGKLA was proclaimed as a winning party-list organization in the 2013 and 2016 party-list elections. On the other hand, SBP garnered enough votes to secure a congressional seat in 2016.
Petitioners ANGKLA and SBP had therefore benefited from the BANAT doctrine in the previous elections. In fact, SBP itself, being among the winning party-list groups in the 2016 elections impleaded as respondent in An Waray v. COMELEC,[21] even defended the application of the BANAT formula., viz.:
There was no grave abuse of discretion
13. It is indisputable that the COMELEC was merely performing its duties when it adhered to the formula set forth by the Honorable Court. It is fundamental that judicial decisions applying or interpreting the law become part of the legal system of the Philippines. It becomes law of the land. The COMELEC was therefore not only right, it was duty bound to implement the formula from the Banat Decision.As for AKMA-PTM, way back in 2013, it initiated the petition in G.R. No. 207134 entitled AKMA-PTM v. COMELEC[23] Far from questioning the constitutionality of the proviso in Section ll(b) of RA 7941 therein, AKMA-PTM even vigorously asserted, nay, invoked the application of this law in its favor as among those who purportedly won a party-list congressional seat during the 2013 National and Local Elections. It also invoked the application of BANAT for this same purpose.
14. Contrary to the assertions of the Petitioners, the COMELEC would have instead committed grave abuse of discretion if it had implemented the formula which the Petitioners advanced, for to do so would be in direct contravention of the edict of this Honorable Court, as set forth in the Banat Decision, xxx
x x x x
15. xxx It bears emphasis that the Petitioners have not claimed, for indeed they cannot, that the COMELEC failed to properly apply the formula set forth in the Banat Decision. They only claim that their formula is better. As has been shown, this is not the case. The Petitioners' formula, far from being better, is susceptible to violations of the law.
xxxx
20. The claim of proportionality, upon which the Petitioners premise their claim of grave abuse, and to which the Petitioners so furiously cling, has already been addressed and laid to rest in the Banat Resolution, xxx
21. As has been stated by the Honorable Court, there is no Constitutional requirement for absolute proportional representation in the allocation of party-lists seats. The term "proportional", by its very nature, means that it is relative. It cannot be successfully argued that the current formula for allocating party-list seats is not proportional.
22. What the Petitioners seek, or at least what they are impliedly seeking, is absolute proportionality. Such absolute proportionality is neither mandated by the Constitution nor the law. Much less can it be effected through a flawed formula such as that proposed by the Petitioners.22 (emphases added)
Indeed, for ANGKLA, SBP, and AKMA-PTM now to question the constitutionality of the assailed proviso in Section 1 l(b) of RA 7941 not only came too late in the day, but also reeks of inconsistent positions and double standard which negate the presence of the third requisite of judicial review.
Justice Mario Victor "Marvic" F. Leonen shared his enlightening thoughts during the deliberation, viz.:
It does not help petitioner's position xxx that petitioners asserted an alternative method of allocating party-list seats only in the wake of their defeat in the 2019 elections, and that they never objected to the method currently in place when they benefitted from and, on the basis of it, proclaimed winners in previous elections. An electoral system is meant to be an objective and dispassionate means for determining winners in an election. For it to be upheld at one instance and assailed at another based on how one fares is to undermine an electoral system's requisite neutrality and to subvert meaningful democratic representation.Philippine jurisprudence has traditionally applied the "earliest opportunity" element of judicial review vertically, i.e., the constitutional argument must have been raised very early in any of the pleadings or processes prior in time in the same case. But this does not preclude the Court from adopting the horizontal test of "earliest opportunity" observed in the United States,[24] i.e., constitutional questions must be preserved by raising them at the earliest opportunity after the grounds for objection become apparent. Otherwise stated, the threshold is not only whether the earliest opportunity was in the pleadings and processes prior in time in the same case, but also whether the grounds for the constitutional objection was already apparent when a prior case relating to the same issue and involving the same petitioner was being heard.
In Schneider v. Jergens,[25] petitioner was faulted, for not raising the constitutional argument at the earliest opportunity in the prior petition for certiorari as he raised it only in the later petition for federal habeas corpus. Schneider identified the earliest opportunity as the earlier petition for certiorari though it was not a continuation of the later petition for federal habeas corpus, or in other words, though the prior petition was not a vertical, opportunity wherein to raise the constitutional argument, but a horizontal case being a mere related case.
There is really no reason to distinguish between the vertical and the horizontal as to when the earliest opportunity to raise the constitutional argument should be made. The threshold is not whether the earliest opportunity was in the pleadings and processes prior in time in the same case, but whether the grounds for the constitutional objection was already apparent when the prior case was being heard, regardless of the vertical or horizontal nature of the case in which it could have been raised.
Failure to pass the horizontal test of "earliest opportunity" certainly calls for the application of estoppel. In Philippine Bank of Communications v. Court of Appeals,[26] the Court enunciated:
At the very least, private respondent is now estopped from claiming that property in question belongs to the conjugal partnership. She cannot now take an inconsistent stance after an adverse decision in G.R. No. 92067. In Santiago Syjuco, Inc. v. Castro, we had the occasion to reiterate that:But this is not all. The well-known principle of equity that "he who comes to court must come with clean hands" further bars petitioners from being granted the remedy applied for. As elucidated in North Negros Sugar Co. v. Hidalgo:[27]
The principles of equitable estoppel, sometimes called estoppel in pais, are made part of our law by Art. 1432 of the Civil Code. Coming under this class is estoppel by silence, which obtains here and as to which it has been held that:... an estoppel may arise from silence as well as from words. "Estoppel by silence" arises where a person, who by force of circumstances is under a duty to another to speak, refrains from doing so and thereby leads the other to believe in the existence of a state of facts in reliance on which he acts to his prejudice. Silence may support an estoppel whether the failure to speak is intentional or negligent.
Inaction or silence may under some circumstances amount to a misrepresentation and concealment of facts, so as to raise an equitable estoppel. When the silence is of such a character and under such circumstances that it would become a fraud on the other party to permit the party who has kept silent to deny what his silence has induced the other to believe and act on, it will operate as an estoppel. This doctrine rests on the principle that if one maintains silence, when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent. He who remains silent when he ought to speak cannot be heard to speak when he should be silent, (emphasis added)
xxx [T]he general principle that he who comes into equity must come with clean hands applies only to plaintiffs conduct relation to the very matter in litigation. The want of equity that will bar a right to equitable relief for coming into court with unclean hands must be so directly connected with the matter in litigation that it has affected the equitable relations of the parties arising out of the transaction in question.Another. The judicial process is sacred and is meant to protect only those who are innocent. It would certainly leave an indelible mark in the conscience to allow a party to challenge a doctrine after it has ceased to be beneficial to it. For emphasis, petitioners stayed silent when BANAT was beneficial to them. They concealed in An Waray and AKMA-PTM the fact that the votes of the two-percenters, borrowing their words now, are being "double-counted." They led every two-percenter to expect or believe that they would continue to abide by the BANAT rule. This is the reasonable inference that every reasonable two-percenter would hold.
Petitioners knew and still know how they had ended up to obtain party-list seats - through the BANAT formula. They knew and still know the BANAT rule, by heart. They knew and still know what this rule entails. Petitioners consist of knowledgeable individuals, not ones who accidentally or luckily became legislators, but ones who through tactics and strategies became party-list representatives in Congress.
In any event, had petitioners believed in good faith that the BANAT formula was and still is inapplicable and invalid, they should have early on refused their seats as a result of this formula and contested its constitutionality, if only to show that this issue is essential to a resolution of their claims.
To repeat, the Court may deny redress despite the litigant establishing a clear right and availing of the proper remedy if it appears that said litigant acted unfairly or recklessly in respect to the matter in which redress is sought, or where the litigant has encouraged, invited, or contributed to the injury sustained.28
But given the transcendental importance of the issues raised in this case, the discussion on the third requisite cannot end here. As we have held' in Padilla v. Congress,[29] "it is an accepted doctrine that the Court may brush aside procedural technicalities and, nonetheless, exercise its power of judicial review in cases of transcendental importance."
The constitutional challenge lodged here has the potential to alter the political landscape in the country and may steer State policy towards attaining the broadest possible party-list representation in the House of Representatives.
Quite anti-climactically, as regards the fourth requisite of judicial review, the Court finds that the question of constitutionality is the very lis mota here. Lis mota is a Latin term meaning the cause or motivation of a legal action or lawsuit. The literal translation is "litigation moved."[30] Under the rubric of lis mota, in the context of judicial review, the Court will not pass upon a question of unconstitutionality, although properly presented, if the case can be disposed of on some other ground, such as the application of the statute or the general law. The petitioner must be able to show that the case cannot be legally resolved unless the constitutional question raised is determined.[31]
Here, the threshold issue raised by petitioners and met head-on by respondents is the constitutionality of Section ll(b) of RA 7941. It is indeed the very lis mota of the case. Resolving the issue of constitutionality is the only way the case can be settled once and for all. Otherwise, every election will become a Lazarus Pit where the perennial question on the allocation of party-list seats gets resurrected without fail. In fact, every three (3) years in the past and every (3) years thereafter, the Court had been and will be confronted with the all too familiar question on the applicability or inapplicability of BANAT vis-a-vis Section 11 (b) of RA 7941.
The present case illustrates much more than a power struggle between would-be members of the House of Representatives. Thus, the Court may properly exercise jurisdiction over the same pursuant to Sections 4(2) and 5 of Article VIII of the Constitution, to the exclusion of the COMELEC and the House of Representatives Electoral Tribunal (HRET).
It bears emphasis that the jurisdiction of the HRET is limited under Section 17, Article VI of the Constitution, viz.:
Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal, which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman, (emphasis added)Meanwhile, the powers and functions of the COMELEC are circumscribed under Section 2, Article IX-C of the Constitution, thus:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:Verily, neither the HRET nor the COMELEC has jurisdiction over the present petition which directly assails the constitutionality of the proviso in Section ll(b), RA 7941, albeit the results may affect the current roster of Members in the House of Representatives. Petitioners, therefore, were correct in seeking redress before this Court.
xxxx
2. 3.
x x x x
The Constitution gives Congress the discretion to
formulate the manner of allocating congressional
seats to qualified parties, groups, and coalitions.
The Constitution mandates that the party-list system shall compose twenty percent (20%) of the total membership in the House of Representatives.[32] But the matter on how party-lists could qualify for a seat is left to the wisdom of the legislature.[33] Section 5(1), Article VI of the Constitution ordains:
SECTION 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 inhabitants, 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, regional, and sectoral parties or organizations, (emphasis and underscoring added)
Pursuant to this constitutional directive, Congress enacted RA 7941 setting forth the parameters for electing party-lists and the manner of allocating seats to them:
Section 11. Number of Parly-List Representatives,xxxAlliance for Rural and Agrarian Reconstruction v. Commission on Elections[34] outlines the Court's series of rulings interpreting this provision, thus:
xxxx
(b) 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 seat each: Provided, 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: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats, (emphasis added)
In Veterans Federation Party v. Commission on Elections, we reversed the Commission on Elections' ruling that the respondent parties, coalitions, and organizations were each entitled to a party-list seat despite their failure to reach the 2% threshold in the 1998 party-list election. Veterans also stated that the 20% requirement in the Constitution is merely a ceiling.The Court was not just changing formulas simply to accommodate the political aspirations of some party-list candidates. Its decisions were based on the original intent as well as the textual and contextual dynamics of RA 7941 vis-a-vis Section 5 (2) of Article VI of the Constitution. As finally settled in the landmark case of BANAT, Section ll(b) of RA 7941 is to be applied, thus:[35]
Veterans laid down the "four inviolable parameters" in determining the winners in a Philippine-style party-list election based on a reading of the Constitution and Republic Act No. 7941:
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 actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats.
Fourth, proportional representation — the additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of votes."
In Partido ng Manggagawa (PM) and Butil Farmers Party (Butil) v. COMELEC, the petitioning party-list groups sought the immediate proclamation by the Commission on Elections of their respective second nominee, claiming that they were entitled to one (1) additional seat each in the House of Representatives. We held that the correct formula to be used is the one used in Veterans and reiterated it in Ang Bagong Bayani — OFW Labor Party v. COMELEC. This Court in CIBAC v. COMELEC differentiates the formula used in Ang Bagong Bayani but upholds the validity of the Veterans formula.
In BANAT v. COMELEC, we declared the 2% threshold in relation to the distribution of the additional seats as void. We said in that case that:. . . 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." (Republic Act No. 7941, Section 2)The most recent Atong Paglaum v. COMELEC does not in any way modify the formula set in Veterans. It only corrects the definition of valid party-list groups. We affirmed that party-list groups may be national, regional, and sectoral parties or organizations. We abandoned the requirement introduced in Ang Bagong Bayani that all party-list groups should prove that they represent a "marginalized" or "under-represented" sector.xxx xxx xxx
. . . There are two steps in the second round of seat allocation. First, the percentage is multiplied 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 corresponds to a party's share in the remaining available seats. Second, we assign one party-list seat to each of the parties 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.
Proportional representation is provided in Section 2 of Republic Act No. 7941. BANAT overturned Veterans' interpretation of the phrase in proportion to their total number of votes. We clarified that the interpretation that only those that obtained at least 2% of the votes may get additional seats will not result in proportional representation because it will make it impossible for the parly-list seats to be filled completely. As demonstrated in BANAT, the 20% share may never be filled if the 2% threshold is maintained.
The divisor, thus, helps to determine the correct percentage of representation of party-list groups as intended by the law. This is part of the index of proportionality of the representation of a party-list to the House of Representatives. It measures the relation between the share of the total seats and the share of the total votes of the party-list. In Veterans, where the 20% requirement in the Constitution was treated only as a ceiling, the mandate for proportional representation was not achieved, and thus, was held void by this Court.
x x x x
We qualify that the divisor to be used in interpreting the formula used in BANAT is the total votes cast for the party-list system. This should not include the invalid votes. However, so as not to disenfranchise a substantial portion of the electorate, total votes cast for the party-list system should mean all the votes validly cast for all the candidates listed in the ballot. The voter relies on the ballot when making his or her choices.
To the voter, the listing of candidates in the official ballot represents the extent of his or her choices for an electoral exercise. He or she is entitled to the expectation that these names have properly been vetted by the Commission on Elections. Therefore, he or she is also by right entitled to the expectation that his or her choice based on the listed names in the ballot will be counted, (citations omitted, emphasis added)
Round 1:During the deliberation, Senior Associate Justice Estela M. Perlas-Bernabe keenly noted that the BANAT formula mirrors the'textual progression of Section 1 l(b) of RA 7941, as worded, thus:Rationale: The statute references a two-percent (2%) threshold. The one-seat guarantee based on this arithmetical computation gives substance to this threshold.
- The participating parties, organizations or coalitions shall be ranked from highest to lowest based on the number of votes they each garnered in the party-list election.
- Each of those receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to and guaranteed one seat each.
Round 2, Part 1:Round 2, Part 2:
- The percentage of votes garnered by each of the parties, organizations and coalitions is multiplied by the remaining available seats after Round 1. All party-list participants shall participate in this round regardless of the percentage of votes they garnered[36]
- The party-list participants shall be entitled to additional seats based on the product arrived at in (a). The whole integer of the product corresponds to a party's share in the remaining available seats. Fractional seats shall not be awarded.
Rationale: This formula gives flesh to the proportionality rule in relation to the total number of votes obtained by each of the participating party, organization, or coalition.- A Party-list shall be awarded no more than two (2) additional seats. Rationale: The three-seat cap in the statute is to be observed.
- The party-list party, organization or coalition next in rank shall be allocated one additional seat each until all available seats are completely distributed.
Rationale: This algorithm endeavors to complete the 20% composition for party-list representation in the House of Representatives.
Section 11. Number of Party-List Representatives, x x xThe first round of seat allocation is based on the first sentence of Section ll(b) while the second round is based on the first proviso. To prescribe a method of seat allocation contrary to the unequivocal language of RA 7941 would be nothing short of judicial legislation, if not usurpation of legislative powers, as it would allow us to substitute the wisdom of Congress with ours.
xxxx
(b) 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 seat each: Provided, 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: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. (emphasis added)
The advantage given to the two-percenters
does not violate the equal protection clause.
Petitioners do not challenge the first round of seat allocation. They maintain, however, that the second round of seat allocation results in the double-counting of votes. According to them, each vote after the 2% threshold (to which has been allotted a guaranteed one seat) should already carry equal weight. They assert violation of the "one person, one vote" principle as well as the equal protection clause.
Petitioners are mistaken in claiming that the retention of the 2% votes in the second round of seat allocation is unconstitutional. All votes, whether cast in favor of two-percenters and non-two-percenters, are counted once. The perceived "double-counting of votes" does not offend the equal protection clause - it is an advantage given to two-percenters based on substantial distinction that the rule of law has long acknowledged and confirmed.
a. One person, one vote
Petitioners' claim, which Justices Alexander G. Gesmundo and Rodil V. Zalameda echo, is hinged on the principle of "one person, one vote". Justice Gesmundo even cites the discussion of retired Senior Associate Justice Antonio T. Qarpio of this principle in his dissenting opinion in Aquino III v. COMELEC,[37] thus:
Evidently, the idea of the people, as individuals, electing their representatives under the principle of "one person, one vote," is the cardinal feature of any polity, like ours, claiming to be a "democratic and republican State." A democracy in its pure state is one where the majority of the people, under the principle of "one person, one vote," directly run the government. A republic is one which has no monarch, royalty or nobility, ruled by a representative government elected by the majority of the people under the principle of "one person, one vote," where all citizens are equally subject to the laws. A republic is also known as a representative democracy. The democratic and republican ideals are intertwined, and converge on the common principle of equality — equality in voting power, and equality under the law.Notably though, Justice Carpio was the ponente in BANAT. Surely, Justice Carpio would not have crafted the BANAT formula in 2009 only to deem it a violation of the principle of "one person, one vote" a year later in Aquino. At any rate, there appears to be no inconsistency between Justice Carpio's BANAT Formula, on the one hand, and his edict in Aquino, on the other.
The constitutional standard of proportional representation is rooted in equality in voting power — that each vote is worth the same as any other vote, not more or less. Regardless of race, ethnicity, religion, sex, occupation, poverty, wealth or literacy, voters have an equal vote. Translated in terms of legislative redistricting, this means equal representation for equal numbers of people or equal voting weight per legislative district. In constitutional parlance, this means representation for every legislative district "in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" or proportional representation. Thus, the principle of "one person, one vote" or equality in voting power is inherent in proportional representation.
Indeed, all voters are entitled to one vote. This truism is and remains inviolable. Senior Associate Justice Perlas-Bernabe opined that this great equalizer "is a knock against elitism and advances the egalitarian concept that all persons are equal before the eyes of the law." Contrary to petitioners' claim, this principle is not diminished by the two (2) rounds of seat allocation under the BANAT formula.
Petitioners foist the idea that only the votes of the two-percenters were counted and considered in the first round. Justice Gesmundo seems to agree with them and states:
As correctly pointed out by the petitioners, the 2% votes to justify the allocation of one guaranteed seat were considered and used during the allocation of the guaranteed seats. To consider them again, this time for purposes of allocating additional seats would give these voters more weight or more value than others in violation of the equal protection clause as it gives due preference to votes received by party-list organizations who got 2% of the vote from those who do not.Nothing is farthest from the truth. All votes were counted, considered and used during the first round of seat allocation, not just those of the two-percenters. But in the end, the non-two-percenters simply did not meet the requisite voting threshold to be allocated a guaranteed seat.
As correctly argued by the OSG, the system of counting pertains to two (2) different rounds and for two (2) different purposes: the first round is for purposes of applying the 2% threshold and ensuring that only party-lists with sufficient constituencies shall be represented in Congress, while the second round is for the purpose of ensuring compliance with the constitutional fiat that 20% of the members of the House of Representatives shall be elected via a party-list system, thus, seats are computed in proportion to a party-list's total number of votes.
Such is the current state of the party-list system elections. Since the system does not have a defined constituency as in district representation, elections are won by hurdling thresholds, not by sheer plurality of votes. Congress deemed it wise to set two (2) thresholds for the two (2) rounds of seat allocation. Each party-list earns a seat each time they hurdle the threshold in each round. But to clarify, each vote is counted only once for both rounds.
In the first round, party-lists receiving at least 2% of the total votes cast for the party-list system are entitled to one seat. In determining whether a party-list has met the proportional threshold, its percentage number of votes is computed, as follows:
Total number of votes cast under the
party-list system
The "total number of votes cast under the party-list system", the. very divisor of the formula, the very index of proportionality, requires that all votes cast under the party-list system be counted and considered in allocating seats in the first round, be it in favor of a two-percenter or a non-two-percenter. This only goes to show that all votes were counted and considered in the first round. Just because the non-two-percenters were not allocated a guaranteed seat does not mean that their votes were accorded lesser weight, let alone, disregarded. It simply means that they did not reach the proportional threshold in the first round.
Take for example a senatorial race where only twelve (12) seats are vacant. When the 15th placer is not awarded a seat, this does not mean that the votes cast in his or her favor were not counted and his or her constituents, disenfranchised. This simply means that the candidate's total votes were not enough to warrant a seat in the Senate; the candidate simply lost.
Another. In a district election for a representative in the House, a mere plurality winner takes it all. No matter how many votes the first placer has over the second placer, whether just one vote or a million votes, the outcome is the same - the second placer's votes are not equal to the first placer's votes in the sense that the former and his or her votes do not get to be actually represented in the House, though theoretically the first placer represents all his or her constituency including those who did not vote for him or her. Yet, there is no violation of the "one person, one vote" doctrine because the overall effect of the votes is that their representative (whether they voted for said candidate) gets to vote in the House and his or her vote has the same or equal weight as the vote of any other Representative.
Just as how all votes were considered in the first round of seat allocation, all votes would be considered in the first part of the second round of seat allocation, too. Lest it be misunderstood, though, there is no second round of counting at this stage. We do not recompute the number of votes obtained by each party nor the percentage of votes they garnered. We do not tally the votes anew. We do not modify the data used in the first round. Instead, the number of votes cast for each party as determined in the first round is preserved precisely to ensure that all votes are counted only once.
In her scholarly treatise, Senior Associate Justice Perlas-Bernabe elucidated:
Because party-list elections are based on proportional representation and not simple pluralities, there is really no double-counting of votes when all the votes are considered in allocating additional seats in favor of two percenters. The electoral system of proportional representation inherently recognizes voting proportions relative to the total number of votes. Petitioners' proposal to exclude the number of votes that have qualified two percenters for their guaranteed seat in the second round of additional eat allocation is tantamount to altering the electoral landscape by reducing the "voter strength" which they have rightfully obtained. This effectively results in the diminution of the party's ability to better advocate for legislation to further advance the cause it represents despite being supported by a larger portion of the electorate.It is petitioners' proposal -- the imposition of a deduction against the two-percenters at the start of the second round, which would actually result in a violation of the "one person, one vote" principle. They propose that all votes in favor of non-two-percenters would be counted and considered in both the first and second rounds, albeit whether they would be awarded a seat in Congress is a different matter altogether. Meanwhile, the 2% votes for two-percenters would be counted and considered in the first round, but not in the second round. This clearly puts the two-percenters at a glaring disadvantage even though they fared significantly better in the elections. Surely, this is not what the Legislature, nay, the framers of the Constitution intended. On the contrary, as will be discussed below, it is the two-percenters who have an established right to an advantage in the form of a guaranteed seat.
Section 1, Article III of the Constitution decrees that no person shall be denied equal protection of the laws. Although first among the fundamental guarantees enshrined in the Bill of Rights, the equal protection clause is not absolute. It does not prevent legislature from establishing classes of individuals or objects upon which different rules shall operate so long as the classification is not unreasonable.[38]
b. The rule of law has already acknowledged and confirmed the substantial distinction between two-percenters and non-two- percenters.
The distinction between two-percenters and non-two-percenters has long been settled in Veterans Federation Party v. COMELEC (Veterans)[39] where the Court affirmed the validity of the 2% voting threshold. Veterans, effectively segregates and distinguishes between the two (2) classes, two-percenters and non-two-percenters. It explains the rationale behind the voting threshold and differential treatment, viz.:
The two percent threshold is consistent not only with the intent of the framers of the Constitution and the law, but with the very essence of "representation." Under a republican or representative state, all government authority emanates from the people, but is exercised by representatives chosen by them. But to have meaningful representation, the elected persons must have the mandate of a sufficient number of people. Otherwise, in a legislature that features the party-list system, the result might be the proliferation of small groups which are incapable of contributing significant legislation, and which might even pose a threat to the stability of Congress. Thus, even legislative districts are apportioned according to "the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" to ensure meaningful local representation.[40] (Emphasis added)The differential treatment arising from the recognition of the 2% voting threshold goes all the way to the legislative deliberations cited in Veterans. As borne by the Senate records on RA 7941:
SENATOR GONZALES: For purposes of continuity, I would want to follow up a point that was raised by, I think, Senator Osmena when he said that a political party must have obtained at least a minimum percentage to be provided in this law in order to qualify for a seat under the party-list system.The basis for the differential treatment was not lost even upon the framers of our Constitution who had a minimum-vote requirement in mind. The Constitutional Commission did not envision that every constituency or every valid vote cast for a party-list organization shall be represented in the House. Commissioner Christian Monsod, who Justice Gesmundo extensively quoted, saw the need to impose a threshold on the number of valid votes cast for a party-list organization. Stated differently, Commissioner Monsod wanted a party-list system that qualifies only those party-list organizations that meet some pre-determined constituency. In Commissioner Monsod's example, he pegged a party-list organization's legitimate constituency at 2.5% of the total valid votes cast for the party-list elections. Thus:
They do that in many other countries. A party must obtain at least 2 percent of the votes cast, 5 percent or 10 percent of the votes cast. Otherwise, as I have said, this will actually proliferate 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, Mr. President.[41] (emphasis added)
When such parties register with the COMELEC, we are assuming that 50 of the 250 seats will be for the party list system. So, we have a limit of 30 percent of 50. That means' that the maximum that any party can get out of these 50 seats is 15. When the parties register they then submit a list of 15 names. They have to submit these names because these nominees have to meet the minimum qualifications of a Member of the National Assembly. At the end of the day, when the votes are tabulated, one gets the percentages. Let us say, UNIDO gets 10 percent or 15 percent of the votes; KMU gets 5 percent; a women's party gets 2 1/2 percent and anybody who has at least 2 1/2 percent of the vote qualifies and the 50 seats are apportioned among all of these parties who get at least 2 1/2 percent of the vote.As held in Veterans, the voting threshold ensures that only those parties, organizations, and coalitions having a sufficient number of constituents deserving of representation are actually represented in the House of Representatives.[43] This is the distinction between two-percenters and non-two-percenters. Of course, there are other parameters in determining ultimately party-list representation in the bigger chamber of Congress.
What does that mean? It means that any group or party who has a constituency of, say, 500,000 nationwide gets a seat in the National Assembly. What is the justification for that? When we allocate legislative districts, we are saying that any district that has 200,000 votes gets a seat. There is no reason why a group that has a national constituency, even if it is a sectoral or special interest group, should not have a voice in the National Assembly. It also means that, let us say, there are three or four labor groups, they all register as a party or as a group. If each of them gets only one percent or five of them get one percent, they are not entitled to any representative. So, they will begin to think that if they really have a common interest, they should band together, form a coalition and get five percent of the vote and, therefore, have two seats in the Assembly. Those are the dynamics of a party list system.
We feel that this approach gets around the mechanics of sectoral representation while at the same time making sure that those who really have a national constituency or sectoral constituency will get a chance to have a seat in the National Assembly. These sectors or these groups may not have the constituency to win a seat on a legislative district basis. They may not be able to win a seat on a district basis but surely, they will have votes on a nationwide basis.
The purpose of this is to open the system. In the past elections, we found out that there were certain groups or parties that, if we count their votes nationwide; have about 1,000,000 or 1,500,000 votes. But they were always third place or fourth place in each of the districts. So, they have no voice in the Assembly. But this way, they would have five or six representatives in the Assembly even if they would not win individually in legislative districts. So, that is essentially the mechanics, the purpose and objectives of the party list system.
x x x x
MR. MONSOD. xxx We are amenable to modifications in the minimum percentage of votes. Our proposal is that anybody who has two-and-a-half percent of the votes gets a seat. There are about 20 million who cast their votes in the last elections. Two-and-a-half percent would mean 500,000 votes. Anybody who has a constituency of 500,000 votes nationwide deserves a seat in the Assembly. If we bring that down to two percent, we are talking about 400,000 votes. The average vote per family is three. So, here we are talking about 134,000 families. We believe that there are many sectors who will be able to get seats in the Assembly because many of them have memberships of over 10,000. In effect, that is the operational implication of our proposal. What we are trying to avoid is this selection of sectors, the reserve seat system. We believe that it is our job to open up the system and that we should not have within that system a reserve seat. We think that people should organize, should work hard, and should earn their seats within that system.[42]
Justice Leonen drew us to the comparison of our country's party-list system to German elections, thus:
The Party-List System Act's stipulation of an initial two-percent (2%) threshold serves a vital interest by filtering party-list representation to those groups that have secured the support of a sufficiently significant portion of the electorate.In light of the substantial distinctions held valid by the Court and the framers of the Constitution vis-a-vis RA 7941, the questioned provision, Section 1 l(b), RA 7941, as couched, allows "those garnering more than two percent (2%} of the votes x x x additional seats in proportion to their total number of votes," conveying the intention of Congress to give preference to the party-list seat allocation to two-percenters. Consequently, in Veterans, only the thirteen (13) party-lists which obtained at least 2% of the total votes cast in the party-list system were allowed to participate in the distribution of additional seats.
Our elections for the House of Representatives is akin to elections for the German Bundestag (federal parliament) where voters similarly cast a first vote or "Erststimme" for district representative (which follows a first-past-the-post system), and a second vote or "Zweitstimme" for a political party. For a party to occupy seats, it must secure a five percent (5%) threshold (n.b., more than doubly higher than our standard). This threshold "excludes very small parties from parliamentary participation." This exclusionary effect is deliberate and far from an inadvertent consequence: "[t]his system was put in place to prevent smaller splinter parties - like those that booged down the Weimar Republic in the 1920s - from entering parliament." (citations omitted)
The Veterans formula which excluded non-two-percenters in the allocation of additional seats was sustained in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections[44] in relation to the 2001 elections, and in Partido Ng Manggagawa v. Commission on Elections[45] and Citizens' Battle Against Corruption v. Commission on Elections[46] both in relation to the 2004 elections.
In BANAT, as a result of the other parameters which have to be considered in determining ultimately the composition of party-list representation in the House of Representatives, the Court declared the 2% threshold as unconstitutional but only insofar as it makes the 2% threshold as exclusive basis for computing the grant of additional seats. The Court maintained the 2% threshold for the first round of seat allocation to ensure a guaranteed seat for a qualifying party-list party, organization, or coalition. As the basis for the additional seats is proportionality to the total number votes obtained by each of the participating party, organization, or coalition,' however, it was inevitable that the number of votes included in computing the 2% threshold would have to be still factored in in allocating the party-list seats among all the participating parties, organizations, or coalitions.
c. The ruling in BANAT did not remove the distinction between two-percenters and non-two percenters.
To stress, the nullification of the 2% threshold for the second round was not meant to remove the distinction between two-percenters and non-two-percenters. The nullification was not for any undue advantage extended to two-percenters. Rather, the rationale for the second round was to fulfill the constitutional mandate that the party-list system constitute 20% percent of the total membership in the House of Representatives, within the context of the rule of proportionality to the total number of votes obtained by the party, organization, or coalition.
Indeed, completing the 20% party-list composition in the bigger house of Congress would have been extremely difficult to achieve, nay, mathematically impossible, if only the 2% threshold and the three-seat cap were the considerations in place for determining a party-list seat in Congress.[47] As a result, in compliance with the 20% constitutional number, the Court in BANAT opened the allocation of additional seats even to non-two-percenters. The Court, nevertheless, recognized that the 2% votes should still form part of the computation for the seats in addition to the guaranteed seat.
For better appreciation, assume that party-list X garnered exactly 2% of the votes cast for the party-list system. Indubitably, it is guaranteed a seat in the first round of allocation. For the second round, its 2% vote will still be intact and will serve as the multiplier to the remaining number of seats after the first round of distribution.
In petitioners' proposal, however, a 2% deduction will be imposed against party-list X before proceeding to the second round. This would result in X falling to the bottom of the ranking with zero percent (0%) vote, dimming its chances, if not disqualifying it altogether, for the second round.[48] This is contrary to the language of the statute which points to proportionality in relation to the TOTAL number of votes received by a party, organization or coalition in the party-list election, and the intention behind the law to acknowledge the two-percenters' right to participate in the second round of seat allocation for the additional seats.
Justice Leonen has a keen analysis of the adverse effect of imposing a two percent (2%) deduction on the two-percenters:
Ignoring votes in the reckoning of proportions runs afoul of a party-list election as a race contested by the entire roster of candidates and won in consideration of all the votes cast by the electorate. Reckoning on the basis of a "recomputed number of votes" artificially redraws the electoral terrain. It results in the distribution of remaining party-list seats based on an altered field of contestants and diminished number of votes. This undoes the logical advantage earned by those that hurdled the two-percent-threshold and enables the election of groups even if their performance was manifestly worst off than those who have hurdled the basic threshold. To concede petitioners' plea would be to negate the valid and sensible distinction between those that hurdled the threshold and those that did not. Ultimately, it violates the party-list system's fundamental objective of enabling "meaningful representation [secured through] the mandate of a sufficient number of people." (citations omitted)In concrete terms, 1PACMAN, MARINO and PROBINSYANO AKO were ranked 6th, 7th, and 8th, respectively, based on the number of votes they garnered in the 2019 elections, thus:
Rank
Party-list
Acronym
Votes
% Votes
6
ONE PATRIOTIC COALITION OF MARGINALIZED NATIONALS
1 PACMAN
713,969
2.56
7
MARINO SAMAHAN NG MGA SEAMAN, INC.
MARINO
681,448
2.44
8
PROBINSYANO AKO
PROBINSYANO AKO
630,435
2.26
Meanwhile, petitioners were ranked 52-54, viz.:
52
AKSYON MAGSASAKA - PARTIDO TINIG NG MASA
AKMA-PTM
191,804
0.69
53
SERBISYO SA BAYAN PARTY
SBP
180,535
0.65
ANGKLA: ANG PARTIDO NG MGA MARINONG PILIPINO, INC,
But with petitioners' proposed imposition of a 2% penalty, 1PACMAN, MARINO and PROBINSYANO AKO would drop to ranks 59, 71 and 89:
Otherwise stated, petitioners would have themselves prioritized in the seat distribution at the expense of 1 PACMAN, MARINO and PROBINSYANO AKO though the latter had obtained almost quadruple, the number of votes petitioners acquired.
Rank after penalty
Party-list
Acronym
% Votes after penalty
58
APPEND, INC.
APPEND
0.57
59
ONE PATRIOTIC COALITION OF MARGINALIZED NATIONALS
1 PACMAN
0.56
60
ANAKPAWIS
ANAKPAWIS
0.53
x x x x
70
MURANG KURYENTE PARTYLIST
MURANG KURYENTE
0.46
71
MARINO SAMAHAN NG MGA SEAMAN, INC.
MARINO
0.44
72
UNA ANG EDUKASYON
1-ANG EDUKASYON
0.43
x x x
88
1 ALLIANCE ADVOCATING AUTONOMY PARTY
1AAAP
0.27
89
PROBINSYANO AKO
PROBINSYANO AKO
0.26
90
AGBIAGITIMPUYOG ILOCANO, INC.
AGBIAG!
0.25
x x x x
For perspective though, a total of 134 party-lists participated in the 2019 elections. Only eight (8) of them, however, were able to hurdle the 2% threshold and were consequently awarded a guaranteed seat each. Collectively, these two-percenters were awarded a total of 18 out of the 61 seats reserved for the party-list system. Meanwhile, 43 seats were given to the non-two-percenters.
Under Veterans, only the eight (8) two percenters would have been entitled to participate in the second round of seat allocation. But this is no longer the case since BANAT lent a hand to non-two-percenters, allowing them to earn congressional seats in the second round of allocation. Yet, dissatisfied with just the hand, i.e. the 43 seats ultimately allocated to non-two-percenters, petitioners want more. They seek to impose a 2% deduction against the two-percenters and reduce the latter's chances of getting an additional seat though it was established in Veterans and the cases in affirmance thereof that the second round of seat allocation was intended to be exclusive to two-percenters and the two-percenters were meant to participate therein with their votes intact. Were it not for the Court's ruling in BANAT, the tail-end of seat allocation would not have been opened to non-two-percenters.
The learned Justice Henri Jean Paul B. Inting aptly opined:
The reason why the two-percenters are still entitled to additional seats based on the total number of votes even though the same number of votes were already included in the computation in the first round is not difficult to discern. The treatment accorded to the two-percenters in BANAT formula is a way of expressing the Congress' intent to implement cause/interest or functional representation based on the mandate of greater number of individuals. It should be stressed that the party-list system is a means of granting representation to major political interest groups "in as direct a proportion as possible to the votes they obtained" such that "the composition of the legislature closely reflects or mirrors the actual composition of the larger society". In other words, since more people believe in the cause, advocacy, and platforms of the two-percenters, they are given additional seats in Congress.Petitioners nevertheless propose to the Court a different reading of BANAT to support their theory. But this is not possible. BANAT is clear. A reproduction of the full paragraph from the Resolution dated July 8, 2009 is apropos:
If the proposition of the petitioners to exclude the number of votes that have qualified the two-percenters their guaranteed seat in the second round of seat allocation will be followed, there will be diminution of the party's ability to advance its cause, advocacy, and platforms despite being supported by greater number of people. This will effectively defeat the intent of the legislators for a party-list organization to be meaningfully represented by a sufficient number of people with common cause and advocacy. Petitioner's proposition will likewise result in a proliferation of small political party groups who have not really been given by the people sufficient basis for them to represent their constituents in Congress and in turn, will be able to get to the legislative body through the backdoor under the nam,e of the party-list system.
Consequently, the two-percenters and non-two-percenters will practically obtain the same number of seats, disregarding the substantial distinction between them and defeating the purpose of the party-list system as a means of granting representation to major political interest groups in such a way that the composition of the legislature reflects the actual composition of the larger society. Also, the proposition will diminish the votes garnered by the two-percenters resulting in a weaker voice in Congress despite the fact that they were supported by greater number of people.
In the table above, CIBAC cannot claim a third seat from the seat allocated to TUCP, the last ranked party allocated with a seat. CIBAC's 2.81% (from the percentage of 4.81% less the 2% for its guaranteed seat) has a lower fractional seat value after the allocation of its second seat compared to TUCP's 1.03%. CIBAC's fractional seat after receiving two seats is only 0.03 compared to TUCP's 0.38 fractional seat. Multiplying CIBAC's 2.81% by 37, the additional seats for distribution in the second round, gives 1.03 seat, leaving 0.03 fractional seat. Multiplying TUCP's 1.03% by 37 gives a fractional seat of 0.38, higher than CIBAC's fractional seat of 0.03. The fractional seats become material only in the second step of the second round of seat allocation to determine the ranking of parties. Thus, for purposes of the second step in the second round of seat allocation, TUCP has a higher rank than CIBAC. (emphasis added)Surely, BANAT instructs that 2% shall be deducted from the percentage votes of party-lists that obtained a guaranteed seat. This deduction, however, is done in the second step of the second round of seat allocation, not in the first step of the second round as petitioners would have the Court believe. Hence, the application of BANAT to party-list seat allocation, as earlier outlined in this Decision stands.
Equal weight for each vote can only be achieved
through absolute proportionality which the
Constitution does not require.
Petitioners' own proposal fails to meet their demand of equality. The fact that petitioners have agreed to the distribution of party-list seats in two (2) rounds using two (2) different formulae is a tacit recognition that the votes will not after all be given equal weight.
The only way to achieve equal weight for each vote is if the seats are to be distributed based on absolute proportionality from the beginning, that is:
Section 11, Article VI of the Constitution, however, does not prescribe absolute proportionality in distributing seats to party-list parties, organizations or coalitions. Neither does it mandate the grant of one seat each according to their rank. On the contrary, Congress is given a wide latitude of discretion in setting the parameters for determining the actual volume and allocation of party-list representation in the House of Representatives. BANATelucidaX.es:
xxx The allocation of seats under the party-list system is governed by the last phrase of Section 5(1), which states that the party-list representatives shall be "those who, as provided by law, shall be elected through a party-list system," giving the Legislature wide discretion in formulating the allocation of party-list seats. Clearly, there is no constitutional requirement for absolute proportional representation in the allocation of party-list seats in the House of Representatives.[49] (Emphasis added)In the exercise of this prerogative, Congress modified the weight of votes cast under the party-list system with reason.
Consider the three-seat limit. This ensures the entry of various interests into the legislature and bars any single party-list from dominating the party-list representation.[50] Otherwise, the rationale behind party-list representation in Congress would be defeated. But viewed from a different perspective, this safeguard dilutes, if not negates, the number of votes that a party-list party, organization, or coalition obtains.
To illustrate, ACT-CIS garnered 2,651,987 votes or 9.51% of the votes cast under the party-list system in the recently concluded elections which would have yielded it six (6) seats in Congress.[51] Otherwise stated, ACT-CIS had votes in excess of what was necessary for it to be awarded three (3) seats in Congress. Yet instead of considering these votes as wastes or a form of disenfranchisement against its voters, the Court does not consider this as a deviation from the "one person, one vote" principle.
Consider also the two-tiered seat allocation. This serves to maximize representation and fulfil the 20% requirement under Section 5(1), Article VI of the Constitution. Seen in a different light, however, this arithmetical allocation in practice inflates the weight of each of the votes considered in the second round, as far as the non-two percenters are concerned, but deflates the weight of each of the votes considered in the second round, as regards the two-percenters. This is because the two-percent (2%) vote-threshold needed to guarantee a seat in the House of Representatives would definitely be more than the votes it would take to earn an additional seat, whether we apply petitioners' proposal or the doctrine in BANAT.
If only to abide by the 20% requirement, there exist cogent reasons to accord varying weight to the votes each obtained by parties, organizations, or coalitions participating in the party-list election, in the two-round seat allocation. Not only does this method of seat allocation promote the broadest possible representation among the varied interests of party-list parties, organizations or coalitions in the House of Representatives, it also fulfils the constitutional fiat that 20% of the composition of the bigger house of Congress to be allotted for party-list representatives.
As demonstrated, the three-seat cap and the two-tiered seat allocation are disadvantageous to the two-percenters and beneficial to non-two-percenters. These serve to balance the advantage acquired by the two-percenters in the form of a guaranteed seat. Yet, petitioners remain dissatisfied.
Although petitioners' proposed formula may result in a. formal equality between two percenters and non-two percenters, it is actually an equality that violates the equal protection of the laws because the formula disregards the long-held valid distinction between two-percenters and non-two percenters. It would be an equality, unjustified by any rationale, between what the Constitution has actually envisioned to favor, those who possess the constituency threshold, and those who do not possess this threshold.
The only instance every vote obtained in a party-list election can be given equal weight is when the allocation of party-list seats in the House of Representatives is based on absolute proportionality. But this is not required under, nor the system envisioned in, Section 5(1), Article VI of the Constitution. Instead, the manner of determining the volume and allocation of party-list representation in the House of Representatives is left to the wisdom of Congress.
Heeding the call of duty, Congress enacted RA 7941. Its features preclude the allocation of seats based solely on absolute proportionality (1) to bar any single party-list party, organization or coalition from dominating the party-list system, and (2) to ensure maximization of the allotment of 20% of seats in the House of Representatives to party-list representatives.
Too, RA 7941 ordains a two-tiered seat allocation wherein those who reach the 2% threshold are guaranteed seat in the first round and get to keep their votes intact for the first stage of the second round. To recall, the original application of RA 7941 in Veterans limited the allocation of guaranteed and additional seats to two-percenters alone. Though the Court opened the system to non-two percenters, this was only to abide by the 20% composition decreed by the Constitution. Given the reasonable distinction between two-percenters and non-two-percenters, we see no cogent reason to nullify their advantage.
But this is not to say that there is a double counting of votes in favor of the two-percenters. Ultimately, each vote is counted only once. All votes are tallied at the beginning of the BANAT formula.
Just because a party-list was allocated a guaranteed seat and an additional seat does not mean that its votes were counted twice. It just means that the party-list concerned surpassed the proportional thresholds prescribed under the law in both rounds of seat allocation. Similarly, just because a party-list is not awarded a guaranteed seat or an additional does not mean that its votes were not counted. Failure of a party-list to obtain a seat only means one thing - it lost the elections. It was outvoted or outperformed by other party-lists. It was simply left without a seat in the game of musical chairs. Under these circumstances, their remedy is not to wrest others of their allocated seats by changing the rules of the game, but by doing better in the subsequent elections.
The rules of the game are laid down in RA 7941. As stated, the BANAT formula mirrors the textual progression of Section ll(b) of the law. The BANAT formula withstood the test of time and the Court is offered no cogent reason to depart therefrom.
Notably though, the Members of the Court voted 7-3-3-1. This ponencia, therefore, could hardly be considered a clear victory in favor of respondents. Seven (7) Members of the Court voted to dismiss the petition while seven (7) opined that Section l(b) of RA 7941 vis-a-vis BANAT ought to be partly nullified. Three (3) of these dissenters adopted petitioners' proposed formula, three others adopted a different formula, and one (1) adopted still another formula. In fine, the dissenters are also dissenting among themselves on the "correct" formula to be adopted should the Court grant the petition.
Surely, it is not for the Court to recalibrate the formula for the party-list system to obtain the "broadest representation possible" and make it seemingly less confusirlg and more straightforward. This is definitely a question of wisdom which the legislature alone may determine for itself. Perhaps, after twenty-five (25) years following the enactment of RA 7941, it is high time for Congress to take a second hard look at Section ll(b) for the purpose of addressing once and for all the never-ending issue of seat allocation for the party list system. We do not write policies, simply this is not our task. Our forebears have said it once and several times over, we say it again:
We do not sit in judgment as a supra-legislature to decide, after a law is passed by Congress, which state interest is superior over another, or which method is better suited to achieve one, some or all of the state's interests, or what these interests should be in the first place. This policy-determining power, by constitutional fiat, belongs to Congress as it is its function to determine and balance these interests or choose which ones to pursue. Time and again we have ruled that the judiciary does not settle policy issues. The Court can only declare what the law is and not what the law should be. Under our system of government, policy issues are within the domain of the political branches of government and of the people themselves as the repository of all state power....[52]ACCORDINGLY, the Amended Petition and Petition-in-Intervention are DENIED for lack of merit. The Court declares as NOT UNCONSTITUTIONAL Section ll(b), RA 7941 pertaining to the allocation of additional seats to party-list parties, organizations, or coalitions in proportion to their respective total number of votes. Consequently, National Board of Canvassers Resolution No. 004-19 declaring the winning party-list groups in the May 13, 2019 elections is upheld.
Let copy of this Decision be furnished to the House of Representatives and the Senate of the Philippines as reference for a possible review of RA 7941, specifically Section ll(b), pertaining to the seat allocation for the party-list system.
SO ORDERED.
Peralta, C.J., I join the dissenting opinion of J. Gesmundo.
J. Reyes, Jr., Carandang, and Inting, JJ., concur.
Perlas-Bernabe, J., Please see separate concurring opinion.
Leonen, J., See separate concurring opinion.
Caguioa, J., See separate opinion.
Gesmundo, J., With separate dissenting opinion.
Hernando, J., I join the dissent of Justice Gesmundo.
Zalameda, J., Please see dissenting opinion.
Lopez, J., Please see concurring and dissenting opinion.
De Los Santos, J., I join the dissent of Justice Rodil Zalameda.
Gaerlan, J., I join the dissent of J. Rodil Zalameda.
Baltazar-Padilla, J., On leave.
Sirs/Mesdames:
Please take notice that on September 15, 2020 a Decision, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on December 17, 2020 at 3:43 p.m.
Very truly yours,
(Sgd.) Edgar O. Aricheta
Clerk of Court
(Sgd.) Edgar O. Aricheta
Clerk of Court
[1] AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIVES THROUGH THE PARTY-LIST SYSTEM, AND APPROPRIATING FUNDS THEREFOR.
[2] Rollo, pp. 12-13.
[3] Id. at 23-24.
[4] 609 Phil. 751,767-768 (2009).
[5] Rollo,p. 143.
[6] Id. at 148.
[7] Id. at 133.
[8] Id. at 159.
[9] Id. at 163.
[10] Id. at 188.
[11] Id. at 192.
[12] Id. at 198.
[13] Id. at 199-202.
[14] SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
[15] Samahan ngmga Progresibong Kabataan v. Quezon City, 815 Phil. 1067, 1087 (2017).
[16] Tañada v. Angara, 338 Phil. 546(1997).
[17] Francisco, Jr. v. House of Representatives, 460 Phil. 830, 892 (2003).
[18] Imbongv. Ochoa, G.R. No. 204819, April 8, 2014, citing Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 91-92 (2007).
[19] Imbong, citing The Province Of North Cotabato v. The Government of the Republic of the Philippines, 589 Phil. 387, 481 (2008).
[20] Francisco, supra note 17, citing IBP v. Zamora, 392 Phil. 618, 632 (2000); Joya v. PCGG, 296-A Phil. 595, 603 (1993); House International Building Tenants Association, Inc. v. Intermediate Appellate Court, 235 Phil. 703(1987).
[21] Entitled "An Waray, Agricultural Sector Alliance of the Philippines (ACAP), and Citizen's Battle Against Corruption (CIBAC) v. COMELEC, Ating Agapay Sentrong Samahan ng mga Obrero, Inc. (AASENSO), Serbisyo sa Bayan Party (SBP), et al.", G.R. No. 224846, February 4, 2020.
[22] Id.,Rollo, pp. 318-321
[23] Aksyon Magsasaka-Partido Tinig Ng Masa (AKMA-PTM) v. Commission on Elections, G.R. No. 207134, June 16, 2015.
[24] In Schneider v. Jergens, 268 F. Supp. 2d 1075 (2003).
[25] Id
[26] 344 Phil. 90, 99 (1997).
[27] 63 Phil. 665, 681-682(1936).
[28] Id.
[29] 814 Phil. 344, 377(2017).
[30] https://definitions.uslegal.com/l/lis-mota/#:~:text=Lis%20mota%20is%20a%20Latin,translation%20is 20%221itigation%20moved%22. Last accessed July 25, 2020, 11:25AM.
[31] Garcia v. Executive Secretary, 602 Phil. 64, 82 (2009).
[32] Section 5(2), Article VI of the 1987 Constitution.
[33] BANATv. COMELEC, 604 Phil. 131,151 (2009).
[34] 723 Phil. 160, 187-193(2013).
[35] Supra note 4.
[36] Id.
[37] 631 Phil. 595,637-638 (2010).
[38] Central Bank Employees Association v. Bangko Sentral ng Pilipinas, 487 Phi!. 531, 559 (2004), citing Victoriano v. Elizalde Rope Workers' Union, No. L-25246, 59 SCRA 54, 77-78 (September 12, 1974): "The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary."
[39] 396 Phil. 419(2000).
[40] Id. at 441.
[41] II Record of the Senate 145, Second Regular Session, Ninth Congress.
[42] II Record of the Constitutional Commission 256.
[43] Supra note 39, at 439.
[44] G.R. Nos. 147589 & 147613 (Resolution), [February 18, 2003]).
[45] 519 Phil. 644(2006).
[46] 549 Phil. 767 (2007).
[47] In Veterans, only fourteen (14) of the fifty-one (51) party-list seats were awarded.
[48] It will not be entitled to a factional seat since any number multiplied by zero is zero.
[49] Supra note 33.
[50] Supra note 39.
[51] One guaranteed seat plus five additional seats [(61 party-list seats available - 8 seats allocated in the first round) x 9.51% = 5.04].
[52] British American Tobacco v. Camacho, 584 Phil. 489, 547-548 (2008).
September 15, 2020
PERLAS-BERNABE, J.:
I concur in the result. Contrary to petitioners' assertions, the allocation of additional seats in favor of those party-lists receiving at least two percent (2%) of the total votes cast for the party-list system ("two percenters") in proportion to their "total number of votes," as provided for under Section 11 (b) of Republic Act No. (RA) 7941,[1] does not offend the equal protection clause and hence, remains constitutional.
At the onset, it is imperative to understand that the party-list system is a peculiar innovation that goes beyond our traditional perceptions when it comes to the electoral process. In a republican, democratic system of government like ours, people traditionally vote for certain personalities to represent their interests as part of a constituency based on geographical division (which, in the case of Congressmen, are called'legislative districts). Whether in a national or a local election, voting and consequently, winning an election under ordinary tradition is based on who the people believe will be able to effectively translate these interests into legislative or executive action. Because the idea of a traditional electoral contest is a matter, of "person-preference" over another, candidates compete in simple plurality voting, or a system of "first-pa st-the-post" (FPTP):
In tin FPTP system (sometimes blown as a plurality single-member district system) the winner is the candidate with the most votes but not necessarily an absolute majority oi'the votes, x x xHowever, the Framers of the 1987 Constitution believed that our traditional electoral system did not truly fulfill the purpose of the legislative body,[3] which was "supposed to implement or give flesh to the needs and aspirations of the Filipino people."[4] Thus, the party-list system was introduced to ensure that weaker segments in society, whose constituencies go beyond the geographic lines drawn to define legislative districts, are properly represented in Congress. As explained during the constitutional deliberations:
x x x x
[FPTP], like other plurality/majority electoral systems, is defended primarily on the grounds of simplicity and its tendency to produce winners who are representatives beholden to defined geographic areas and governability.[2]
MR. OPLE: x x x xxxxBeing based on "functional" rather than "territorial" representation, a party-list election is, at its core, "cause-centric" and not "person-centric" as in a traditional election. Although a party, being a juridical entity, can only conduct its business through natural persons (called nominees),[7] in a party-list election, people actually vote for a particular cause, which is then advocated by the party-list through its nominee in Congress. The "cause-centric" nature of a party-list election is amply reflected in the constitutional deliberations as follows:
There are two kinds of representation: the territorial representation, which is based on representative government, and which started taking root at the beginning of the 19th century in many of the Western countries which we now call, the Western democracies. It became evident later on that territorial representation has its limitations, that functional representation might be necessary in order to round off the excellence of a representative system. And that was how the theory of party list representation or the reservation of some seats in a legislature for sectors came about.
I think the whole idea is based on countervailing methods with the aim of perfecting representation in a legislative body combining the territorial as well as the functional modes of representation. The ideal manner of securing functional representation is through a party list system through popular suffrage so that when sectoral representatives get into a legislative body on this basis, rather than direct regional or district representation, they can rise to the same majesty as that of the elected representatives in the legislative body, rather than owing to some degree their seats in the legislative body either to an outright constitutional gift or to an appointment by the President of the Philippines, x x x[5] (Emphases supplied)
MR. MONSOD: x x x
xxxx
x x x It means that any group or party who has a constituency of, say, 500,000 nationwide gets a seat in the National Assembly. What is the justification for that? When we allocate legislative districts, we are saying that any district that has 200,000 votes gets a seat. There is no reason why a group that has a national constituency, even if it is a sectoral or special interest group, should not have a voice in the National Assembly. It also means that, let us say, there are three or four labor groups, they all register as a party or as a group. If each of them gets only one percent or five of them get one percent, they are not entitled to any representative. So, they will begin to' think that if they really have a common interest, they should band together, form a coalition and get five percent of the vote and, therefore, have two seats in the Assembly. Those are the dynamics of a party list system.
We feel that this approach gets around the mechanics of sectoral representation while at the same time making sure that those who really have a national constituency or sectoral constituency will get a chance to have a seat in the National Assembly. These sectors or these groups may not have the constituency to win a seat on a legislative district basis. They may not be able to win a seat on a district basis but surely, they will have votes on a nationwide basis.
The purpose of this is to open the system. In the past elections, we found out that there were certain groups or parties that, if we count their votes nationwide; have about 1,000,000 or 1,500,000 votes. But they were always third place or fourth place in each of the districts. So, they have no voice in the Assembly. But this way, they would have five or six representatives in the Assembly even if they would not win individually in legislative districts. So, that is essentially the mechanics, the purpose and objectives of the party list system.[6] (Emphasis supplied)
MR. MONSOD: What the voters will vote on is the party, whether it is UNIDO, Christian Democrats, BAY AN, KMU or Federation of Free Farmers, not the individuals. When these parties register with the COMELEC, they would simultaneously submit a list of the people who would sit in case they win the required number of votes in the order in which they place them. Let us say that this Commission decides that of those 50 seats allocated under the party list system, the maximum for any party is 10 seats. At the time of registration of the parties or organizations, each of them submits 10 names. Some may submit five, but they can submit up to 10 names who must meet the qualifications of candidates under the Constitution and the Omnibus Election Code. If they win the required number of votes, let us say they win 400,000 votes, then they will have one seat. If they win 2 million votes, then they will have five seats. In the latter case, the party will nominate the first five in its list; and in case there is one seat, the party will nominate the number one on the list.Due to the unique objectives of party-lists, it was then necessary to devise a system to ensure - or at least, strive to ensure - the most meaningful way of translating the people's will in voting for causes, and not personalities. Accordingly, Congress established a party-list system based on the proportional representation concept.
But as far as the voters arc concerned, they would be voting for party list or organizations, not for individuals.
MR. LERUM: Madam President, in view of the explanation, I am objecting to this amendment because it is possible that the labor sector will not be represented considering that those who will vote are all the voters of the Philippines. In other words, the representative of labor will be chosen by all the electors of the Philippines, and that is not correct. My contention is that the sectoral representative must be selected by his own constituents, and for that reason, I am objecting to this amendment.
MR. TADEO: Madam President, this is only for clarification. THE PRESIDENT: Commissioner Tadeo is recognized.
MR. TADEO: Para sa marginalized sector, kung saan kaisa ang magbubukid, ang Sections 5 at 31 ang pinakamahalaga dito. Sinasabi namin na hindi na mahalaga kung ang porma ng pamahalaan ay presidential o parliamentary; ang pinakamahalaga ay ang "substance."
Sinasabi naming nasa amin ang people, pew wala sa amin ang power. At sinasabi nga ni Commissioner Bacani, noong tayo ay nagsisimula pa lamang, 70 porsiyento ang mga dukha at limangporsiyento lamang ang naghaharing uri. Ngunit ang iniwan niyang tanong ay ito: Sino ang may hawak ng political power? Ang limang porsiyento lamang.
Kaya para sa amin, ito ang pinakamahalaga. Sa nakita ko kasi sa party list ay ganito: Sa bawat 200,000 tao ay magkakaroon tayo ng isang legislative district, at ang kabuuang upuan ay 198. Ang ibig sabihin, ito iyong nakareserba sa mga political parties tulad ng UNIDO, NP, PNP; LP, PDP-Laban, at iba pa, ngunit puwede rin itong pumasok sa party list; pinvede ring madominahan ang lehislatura at mawala ang sectoral.
Iyon lamang ang pinupunto ko. Sa panig namin, dapat itong ibigay sa marginalized sector sapagkat ito ang katugunan sa tinatawag naming people's power o kapangyarihang pampulitika. Ang ibig lamang naming sabihin ay ganito: Mula doon sa isang political system na nagpapalawig ng feudal or elite structure nagtungo tayo sa isang grass-roots and participatory democracy. Ibig naming mula doon sa politics of personality ay pumunta tayo sa politics of issue. Ano ang ibig naming sabihin? Kaming marginalized sector pag bumoboto, ang pinagpipilian lang namin sa two-party system ay ang lesser evil. Ngunit pag pumasok na kami dito, ang Section 5 ang pinakamahalaga sa amin. Ang bobotohan namin ay ang katangian ng amins organisasyon. Ang bobotohan namin ay ang issue at ang platform naming dinadala at hindi na iyang lesser evil o ang tinatawag nating "personality." Para sa amin ito ay napakahalaga.[8] (Emphases, italics, and underscoring supplied)
To recount, Section 5 (1) and (2), Article VI of the 1987 Constitution provide that:
Section 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 inhabitants, 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, regional, and sectoral parties or organizations.Aside from providing that twenty percent (20%) of the total House membership be comprised of those coming from the party-list, the 1987 Constitution did not provide for any other specific mechanic regarding the party-list system. Instead, as may be gleaned from the clause "as provided by law," the Framers intended to reserve these mechanics for future legislation. In Veterans Federation Party v. Commission on Elections (Veterans),[9] the Court explained that "Congress was vested with the broad power to define and prescribe the mechanics of the party-list system of representation. The Constitution explicitly sets down only the percentage of the total membership in the House of Representatives reserved for party-list representatives."[10]
(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 communities, women, youth, and such other sectors as may be provided by law, except the religious sector. (Emphases supplied)
In line with the Framers' intent, Congress passed RA 7941, or the "Party-List System Act," and therein declared to promote "proportional representation in the election of representatives to the House of Representatives through a party-list system:"
Section 2. Declaration of policy. 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 marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives, x x x (Emphasis and underscoring supplied)In contrast to the traditional FPTP system, proportional representation "implies an election system, wherein the representation of all classes of people is ensured, as each party gets as many numbers of seats as the proportion of votes the candidate polls in the election. In this system, any political party or interest group obtains its representation in proportion to its voting strength x x x. In this way, parties with the small support base, also get their representation in the legislature."[11]
However, "[p]roportional representation is a generic term, and it does not refer to a precise method of implementing the philosophy it denotes."[12] Thus, in accord with its constitutional prerogative, Congress prescribed the specific parameters to achieve proportional representation insofar as Filipino-style party list elections are concerned. These are contained in Section 11 of RA 7941 as follows:
Section 11. Number of Party-List Representatives. - The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list.In Barangay Association for National Advancement and Transparency v. Commission on Elections (BANAT),[13] the procedure in allocating seats for party-list representatives pursuant to Section 11 of RA 7941 was laid down by the Court:
For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system.
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 receiving 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 proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. (Emphasis and underscoring supplied)
In determining the allocation of seats for party-list representatives under Section 11 of [RA] 7941, the following procedure shall be observed:In BANAT, the procedure for seat allocation was primarily divided into two rounds: the first round involved the allocation of the one guaranteed seat to the two-percenters, while the second round referred to the allocation of additional seats in proportion to the total number of votes. In Gabriela Women's Party v. COMELEC,[15]summarized the complete guidelines for seat allocation as per the prevailing rulings on the matter:
1. 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.
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 additional 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.[14]
The guidelines in allocating the seats available to party-list representatives were laid down in Veterans Federation Party v. COMELEC (Veterans), which were further refined in Barangay Association for National Advancement and Transparency v. COMELEC (BANAT). Based on these guidelines, the process for computation is as follows:
1. The maximum number of available party list seats (APLS), which under Section 5 (2), Article VI of the 1987 Constitution "shall constitute twenty per centum of the total number of representatives including those under the party list" shall be first determined. This is arrived at by using the following formula:The petitioners question the constitutionality of the prevailing formula in determining additional seats in favor of "two percenters." As it stands, Section 11 of RA 7941 prescribes 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." According to petitioners, "the allocation of additional seats in proportion to a party's total number of votes results in the double-counting of votes in favor of the two-percenters x x x ffjor the same votes which guarantee the two-percenters a seat in the first round of seat allocation are again considered in the second round. The provision purportedly violates the equal protection clause, hence, is unconstitutional."[17]
=
2. Once the APLS is determined, the party-list candidates shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections.
3. The percentage of votes that each party-list candidate garnered shall then be ascertained by using the following formula:
Upon this determination, all party-list candidates that garnered at least two percent (2%) of the total votes cast (in other words, "the two percenters") shall each be automatically entitled to one (1) seat. This constitutes the first round of allocation of the available party-list seats. The total number of seats allotted to the "two percenters" (TP) shall then be noted for the next step.
4. Any of the "two percenters" may then qualify for additional seats By using the following formula:
It should be noted, however, that should the foregoing application yield a product constituting fractional values (e.g., 0.66, 1.87, 2.39), said product shall be ROUNDED-DOWN to the nearest whole integer as the prevailing laws and rules do not allow for fractional seats.
Also, it should be noted that no party-list candidate shall be awarded more than two (2) additional seats, since a party may only hold a maximum of three (3) seats.
5. If the APLS has not been fully exhausted by the first allocation of seats to the two percenters, including the allocation of additional seats under Step 4 above, then the remaining seats shall then be allocated (one [11 seat each) to the parties next in rank, i.e., those "two percenters" that did not qualify for an additional seat pursuant to Step 4, and thereafter, those who did not get at least two percent (2%) of the total number of votes cast, until all the available seats are completely distributed.[16]
I disagree.
Case law states that "[t]he equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other."[18]
Indeed, there is a substantial distinction between two-percenters and non-two percenters in that the former enjoy the greater mandate of the people. In Veterans, the Court explained the rationale behind the two-percent threshold in the party-list system:
The two percent threshold is consistent not only with the intent of the framers of the Constitution and the law, but with the very essence of "representation." Under a republican or representative state, all government authority emanates from the people, but is exercised by representatives chosen by them. But to have meaningful representation, the elected persons must have the mandate of a sufficient number of people. Otherwise, in a legislature that features the party-list system, the result might be the proliferation of small groups which are incapable of contributing significant legislation, and which might even pose a threat to the stability of Congress. Thus, even legislative districts are apportioned according to "the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" to ensure meaningful local representation.[19]The distinct position of two percenters garnering the support of a greater number of people entitles them to additional seats based on the total number of votes, even though these same votes have been factored in when they have qualified for one guaranteed seat in meeting the two percent threshold. These advantages bestowed to two percenters constitute Congress' way of implementing the concept of "cause" representation "in proportion to voting strength." Since the greater number of votes means that more people believe in a two percenter's cause and policy platform more than others, the party is therefore given an additional seat in Congress. In turn, this additional seat would theoretically give the party a "stronger voice" in Congress and hence, a better opportunity to advocate for legislation to advance the cause it represents.
Because party-list elections are based on proportional representation and not simple pluralities, there is really no double-counting of votes when all the votes are considered in allocating additional seats in favor of two percenters. The electoral system of proportional representation inherently recognizes voting proportions relative to the total number of votes. Petitioners' proposal to exclude the number of votes that have qualified two percenters for their guaranteed seat in the second round of additional seat allocation is tantamount to altering the electoral landscape by reducing the "voter strength" which they have rightfully obtained. This effectively results in the diminution of the party's ability to better advocate for legislation to advance the cause it represents despite being supported by a larger portion of the electorate.
Moreover, as the ponencia aptly demonstrated, petitioner's proposal would result into lessening, if not removing the chances of a two percenter to qualify for an additional seat. In consequence, two percenters and non-two percenters will practically obtain the same number of seats and hence, disregard the substantial distinction between them:
In petitioners' proposal, however, a 2% deduction will be imposed against party-list X before proceeding to the second round. This would result in X falling to the bottom of the ranking with zero percent (0%) vote, dimming its chances, if not disqualifying it altogether, for the second round. This is contrary to the language of the statute which points to proportionality in relation to the TOTAL number of votes received by a party, organization or coalition in the party-list election, and the intention behind the law to acknowledge the two-percenters' right to participate in the second round of seat allocation for the additional seats.[20]At this juncture, it is opportune to clarify that the allocation of additional seats in proportion to the total number of votes in favor of the two percenters does not defy the principle of "one person, one vote." In its proper sense, the principle of "one person, one vote" hearkens to voter equality - that is, that all voters are entitled to one vote, and that each vote has equal weight with that of others. This principle is a knock against elitism and advances the egalitarian concept that all persons are equal before the eyes of the law.
Regardless of social standing, lineage, age, race or gender, a person's vote should not mean more than others.
Insofar as the mechanics under Section 11 of RA 7941 are concerned, there is no instance at all wherein a person will be entitled to more than one vote. Neither is any person's vote considered weightier than others. All persons voting in the party-list system are mandated to vote only once and each vote is also counted as one. Further, it must be highlighted that the allocation of guaranteed and additional seats to two percenters is not a matter of counting votes twice. Rather, this method of distribution is inherent to the electoral system of proportional representation, which is different from counting votes based on simple pluralities. Since these two electoral systems operate on distinct planes, there is no violation of the principle of "one person, one vote" in this case.
Finally, it must be reiterated that Congress was given the constitutional prerogative to devise the mechanics of the party-list system. The sole intent was to allow functional representation by weaker segments of society that goes beyond geographical boundaries of our traditional FPTP system. These mechanics are contained in Section 11 of RA 7941, which prescribes, among others, 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." As the only issue raised by petitioners is on the unconstitutionality of this specific mechanic based on equal protection grounds, the Court should refrain from going beyond the same.
In this regard, I thus maintain my reservations regarding the proposed formula of my esteemed colleague, Associate Justice Alfredo Benjamin S. Caguioa (Justice Caguioa), who disagrees with the BANAT formula insofar as it prescribes for two (2) rounds of seat allocation when the first clause of Section 11 (b) of RA 7941 does not require the same.[21] According to Justice Caguioa:
A straightforward formulaHowever, since this particular formula has not been raised by any of the petitioners or any affected party-list for that matter, nor has the Office of the Solicitor General been given an opportunity to comment on the same, I submit that this is not the appropriate case to tackle the formula's merit.
better reflects the spirit
behind the party-list system
Proceeding from the above discussion, I find that the three-tier formula expressed in BANAT fails to reflect the intent behind the introduction of the party- list system. Section 2 of RA 7941 states that the "State shall develop and guarantee a full, free and open-party system in order to attain the broadest possible representation of party, sectoral 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."
It is my considered view that these objectives will be best achieved by a straightforward formula in which allotted seats are determined by simply multiplying the percentage of votes garnered by the [party-list Organization (PLO)] with the [available party-list seats (APLS)].
Based on this formula, the party-list seats are determined as follows:
Step One. Ranking of PLOs. All PLOs that participated in the election shall be ranked from the highest to the lowest based on the number of votes they each received during the election.
Step Two. Determination of percentage of votes per PLO in proportion to Total Votes of all PLOs. After the ranking, the percentage of votes that each PLO garnered shall then be computed as follows:
Step Three. Allocation of seats Wo percenters. The seats allotted to each of the qualified PLOs (the two percenters) shall then be ascertained using the following formula:
Since the prevailing law and rules do not allow for fractional representation, the product obtained herein shall be rounded down to the nearest whole integer. The three (3) seat limit shall likewise be applied.
This step does away with the three-tier allocation in BANAT. In particular, it does away with the first round of allocation. In BANAT, the Court created two rounds of allocation because of its interpretation that "[t]he first clause of Section 11 (b) of R.A. No. 7941 [which] states that "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 seat each"... guarantees a seat to the two percenters." Thus, it created a first of two rounds of allocation where the two percenters would be given one (1) seat each.
However, this separate round of allocation for the two percenters is not supported nor required by the letter of the law. There is nothing in the text of the law which requires separate rounds of seat allocation. All that the law requires is that those who garner 2% of the votes be guaranteed one (1) seat each. To illustrate, the straightforward formula still satisfies the requirements of Section 11 (b), even without the "first round of allocation," because the APLS will always be more than fifty (50) seats in light of the current number of congressional districts. Thus, all PLOs who obtained at least two percent (2%) of the total votes cast in the party-list system are, in reality, guaranteed one (1) seat each — even in the absence of a separate round "ensuring" them one (1) seat.
Meanwhile, the second requirement of Section ll(b) - that the "additional seats" for those who obtained more than two percent of the total votes cast in the party-list system shall be in proportion to the total number of votes it obtained - is also complied with because the computation of additional seats for each of the two percenters is in direct proportion to the total number of votes they actually garnered.
Step Four. Allocation of remaining seats. If the APLS has not been fully exhausted after allocating seats to the two percenters (but still enforcing the 3 seat limit) - as is what is expected to happen because, as mentioned, APLS will always be more than fifty seats - the remaining seats shall then be allocated (one (1) seat each) to the parties next in rank {i.e. those who did not get at least two percent of the total number of votes cast), until all the APLS are completely distributed.[22]
In any event, the BANAT formula which first allocates guaranteed seats to two percenters and then allocates additional seats also in favor of qualifying two percenters, appears to merely mirror the textual progression of Section 11 of RA 7941 as worded. The first round is based on the first sentence of Section 11 (b), while the second round is based on the first proviso that follows in sequence:
Section 11. Number of Party-List Representatives. -Further, should the Court adopt Justice Caguioa's formula, then it would be practically fusing together the character of guaranteed seats and additional seats. In effect, the voter strength garnered by two percenters would be diminished, resulting in weaker voice in Congress; in addition, the separate provisions on guaranteed and additional seating would also be rendered redundant.
x x x x
(b)
While the more straightforward formulation would mathematically increase the probability of more party-lists qualifying for a seat in Congress, such formulation seems to go against the prerogative of legislature to recognize the advantageous position gained by two percenters. Indeed, Congress intended to attain "the broadest representation possible" but it is currently unclear if this general objective was meant to remove the advantages rightfully gained by two percenters. Thus, recognizing the potential ripple effects of adopting this "unraised" proposed formula in the composition of legislature, the Court should thresh out this matter in the appropriate case. As Justice Caguioa himself recognizes, "the straightforward formula may not be immediately applied in this case because of the requirements of due process. As the adoption of the straightforward formula will not only affect petitioners but also other qualified PLOs which have already been proclaimed by the COMELEC, and whose representatives have already assumed office, due process mandates that all qualified PLOs be heard on the matter."[23]
For all these reasons, I therefore vote to dismiss the petition for failure of the petitioners to properly make out their case. I qualify, however, that the petition ought to be dismissed on the merits rather than on procedural grounds as discussed in the ponencia. On the procedural aspects, I share the views of my other esteemed colleague, Associate Justice Alexander G. Gesmundo, that petitioners have indeed raised the issue at the earliest opportunity, that estoppel would not apply, and that the issue is the very lis mota of the case.[24]
On this score, I deem it apt to point out that petitioners could not have previously questioned the constitutionality of Section 11 of RA 7941 (as they have presently done so) back in 2013 and 2016 since they have both won in the elections they respectively participated in[25] and just recently lost in 2019. Their loss was necessary in order for them to satisfy the requisite of an actual and justiciable controversy, which connotes the existence of a "conflict of legal rights," or "an assertion of opposite legal claims,"[26] as well as to clothe them with locus standi, which is "a personal and substantial interest in the case, such that they have sustained or are in immediate danger of sustaining, some direct injury as a consequence of the enforcement of the challenged governmental act."[27] Upon their loss in 2019, they were therefore prompted to immediately take the matter to Court at the earliest opportunity.
ACCORDINGLY, I vote that the petition be dismissed due to lack of merit in its substantive arguments.
(Sgd.) ESTELA M. PERLAS-BERNABE
Senior Associate Justice
Senior Associate Justice
[1] Entitled "AN ACT PROVIDING FOR THE ELECTION OF HARTY-LIST REPRESENTATIVES THROUGH THE PARTY-LIST SYSTEM, AND APPROPRIATING FUNDS THEREFOR " also known as the "PARTY-LIST SYSTEM ACT.'' approved on March 3, 1995
[2]
[3] Records of the Constitutional Commission (R.C.C.) No. 39, July 25, 1986.
[4] R.C.C. No. 45, August 1, 1986.
[5] Id.
[6] R.C.C. No. 36, July 22, 1986.
[7] See Alcantara v. Commission on Elections, 709 Phil. 523 (2013).
[8] R.C.C. No. 39, July 25, 1986.
[9] 396 Phil. 419(2000).
[10] Id. at 438; emphasis supplied.
[11]
[12]
[13] 604 Phil. 131 (2009).
[14] Id. at 162.
[15] See my Separate Concurring Opinion in the Unsigned Resolution in G.R. No. 225198, February 7, 2017.
[16] Id.; citations omitted.
[17] Ponencia, p. 2, citing rollo, pp. 12-13.
[18] Quinto v. COMELEC, G.R. No. 189698, February 22, 2010; emphasis supplied.
[19] Supra note 10.
[20] Ponencia, pp. 27-28; emphases in the original.
[21] See Separate Opinion of Justice Caguioa, p. 7.
[22] Separate Opinion of Justice Caguioa, pp. 14-15.
[23] See id. at 18.
[24] See Separate Opinion of Justice Gesmundo, pp. 7-12.
[25] ANGKLA garnered one seat in the 2013 elections (
[26] Samahan ng mga Progresibong Kakataan v. Quezon City, 815 Phil. 1067, 1090 (2017); emphasis supplied.
[27] Id. at 1091; emphasis supplied.
LEONEN, J.:
I concur with Associate Justice Amy C. Lazaro Javier's (Justice Lazaro-Javier) ponencia denying the Petition for Certiorari and Prohibition filed by petitioners Ang Partido ng Marinong Pilipino. Inc. (ANGKLA) and Serbisyo sa Bayan Party (SBP), and sustaining National Board of Canvassers Resolution No. 004-19, which declared the winning party-list groups in the May 13, 2019 elections.
In addition, I invite attention to prevailing parameters that operationaiize the party-list system. I reiterate a position that I initially articulated in Atong Paglaum, Inc. v. Commission on Elections,[1] that this Court's effort at shaping understanding of how the party-list system should be operationalized to carry out the Constitution's objectives should not be limited to calibrating numerical formulation to identify winners.
The party-list system, as provided for in Article VI, Section 5 of the 1987 Constitution,[2] is the domestic iteration of proportional representation, an electoral system that has long existed in other jurisdictions and which currently exists in a multiplicity of jurisdictions.[3]
Our election of party-list representatives stands out in domestic elections dominated by the "first past the post"[4] system. In a first past the post system, candidates win or are elected on the basis of a simple plurality. "The winning candidate is simply the person who wins the most votes; in theory he of she could be elected with two votes, if every other candidate only secured a single vote."[5] This applies to our elections for President, Vice President, provincial governors and vice governors, city or municipal mayors and vice mayors, as well as barangay chairpersons. For these positions, winning candidates are simply candidates who outvote all other candidates. The same is true for the election of members of the House of Representatives representing legislative districts. The first past the post system similarly governs the election of senators and members of the sangguniang panlalawigan, sangguniang panglungsod, sanggnniang bayan, and sangguniang barangay. In these collegial bodies however, multiple vacancies are simultaneously contested. Therefore, several individuals—as many as there are vacancies to be filled are simultaneously elected, i.e., the highest ranking candidates corresponding to the number of vacancies.
Unlike the winning candidates for other elective public positions, members of the House of Representatives under the party-list system are elected through a system of proportional representation. In proportional representation, seats are allocated in accordance with the proportion of the electorate that supports a political party, organization, or coalition. Winning an election, therefore, does not hinge on outranking competing candidates, but on securing proportional thresholds instead.
As the unique, domestic iteration of a conceptual electoral mechanism shared with many jurisdictions, the Philippine party-list system is created by Article VI, Section 5 of the 1987 Constitution. The same provision, as well as Article VI, Section 6, spell out the party-list system's basic and immutable parameters:
SECTION 5. (1) The House jof 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 inhabitants, 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, regional, and sectoral parties or organizations.Thus, the party-list system is open to "registered national, regional, and sectoral parties or organizations." Further, party-list representatives shall "constitute twenty per centum of the total number of representatives including those under the paity iist." A transitory manner of filling party-list' seats "[f]or three, consecutive terms after the ratification of th[e] Constitution" is also provided. Likewise, a party-list representative must be "a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, [and] able to read and write." Apart from these, Article VI, Section 5 stipulates that election to the party-list system shall be "provided by law."
(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 communities, women, youth, and such other sectors as may be provided by law, except the religious sector.
(3) Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.
(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.
SECTION 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. (Emphasis supplied)
It is in keeping with Article Vl, Section 5's injunction that Republic Act No. 7941 or the Party-List System Act, was passed in 1995.
Section 10 of the Party-List System Act provides for the manner of voting party-list representatives. Sections 11 and 12 concern the allocation of party-list seats:
SECTION 10. Manner of Voting. — Every voter shall be entitled to two (2) votes: the first is a vote for candidate for member of the House of Representatives in his legislative district, and the second, a vote for the party, organization, or coalition he wants represented in the house of Representatives: Provided, That a vote cast for a party, sectoral organization, or coalition not entitled to be voted for shall not be counted: Provided, finally. That the first election under the party-list system shall be held in May 1998.Thus, according to Section 11, the initial threshold is two percent (2%) of the total votes cast for the system. Every party, organization, or coalition obtaining two percent (2%) of the total votes cast for the party-list system shall be entitled to one (1) seat each. Thereafter, "those garnering more than two percent (2%) of the votes shall be entitled to additional seats in the [sic] proportion to their total number of votes[.]" Regardless of potentially much larger proportions obtained by parties, organizations or coalitions, however, "each party, organization, or coalition shall be entitled to not more than three (3) seats."
The COMELEC shall undertake the necessary information campaign for purposes of educating the electorate on the matter of the party-list system.
SECTION 11. Number of Party-List Representatives. — The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list.
For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system.
In determining the allocation of seats for the second vote, the following procedure shall be observed:
(a) (b)
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 nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the rotal nationwide votes cast for the party-list system.
While ranking is involved, winning seats in the party-list system does not ultimately or exclusively depend on an ordinal system as winning seats in first past the post elections does. Rather, it relies on the extent of proportionate shares vis-a-vis a total figure that varies from one election to another, that is, the total number of votes cast for the party-list system in a given election.
The party-list system is fundamentally a mechanism of proportional representation where proportions are reckoned in relation to the total number of votes cast for the party-list system in a given election, and where groups that obtain larger proportions of votes are naturally and logically placed at an advantage over those who obtain less. This basic nature is expressed in' Section 12 of the Party-List System Act: "The COMELEC shall tally all the votes... on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained... as against the total nationwide votes cast for the party-list system."
This same basic nature renders absurd and unacceptable petitioners' contention that, after seats are allotted to those groups that hurdled the two-percent-threshold, "[v]otes amounting to two percent (2%)... obtained by each of the participating parties... should then be deducted from the total votes of each of these party-list groups that have been entitled to and given guaranteed seats[,]"[6] and that, "[t]he remaining party-list seats... sh[ould] then be distributed in proportion to the recomputed number of votes[.]"[7]
Ignoring votes in the reckoning of proportions runs afoul of a party- list election as a race contested by the entire roster of candidates and won in consideration of all the votes cast by the electorate. Reckoning on the basis of a "recomputed number of votes"[8] artificially redraws the electoral terrain. It results in the distribution of remaining party-list seats based on an altered field of contestants and diminished number of votes. This undoes the logical advantage properly earned by tnose that hurdled the twb-percent-threshold and enables the election of groups, even if their performance was manifestly worse off than those who have hurdled the basic threshold.
To concede petitioners' plea would be to negate the valid and sensible distinction between those that hurdled the threshold and those that did not. Ultimately, it violates the party-list system's fundamental objective of enabling "meaningful representation [secured through]... the mandate of a sufficient number of people."[9]
Justice Lazaro-Javier's illustration of the sheer absurdity, not to mention, injustice and mockery of the totality of the electoral exercise which shall be induced by favorable action on petitioners' plea is well-taken:
For better appreciation, assume that party-list X garnered exactly 2% of the votes cast for the party-list system. Indubitably, it is guaranteed a seat in the first round of allocation. For the second round, its 2% vote will still be intact and will serve as the multiplier to the remaining number of seats after the first round of distribution.It does not help petitioners' position, as the ponencia points out,[11] that petitioners asserted an alternative method of allocating party-iist seats only in the wake of their defeat in the 2019 elections. They found nothing wrong with the method that is currently in place when they were benefitting from and, on the basis of it, proclaimed winners in previous elections. An electoral system is meant to be an objective and dispassionate means for determining winners in an election. For it to be upheld at one instance and assailed at another based on how one fares is to undermine an electoral system's requisite neutrality and to subvert meaningful democratic representation.
In petitioners' proposal, however, a 2% deduction will be imposed against party-list X's before proceeding to the second round. This would result in X falling to the bottom of the ranking with zero percent (0%) vote, dimming its chances, if not disqualifying it altogether, for the second round. This is contrary to the language of the statute which points to proportionality in relation to the TOTAL number of votes received by a party, organization or coalition in the party-list election, and the intention behind the law to acknowledge the two-percenters' right to participate in the second round of seat allocation for the additional seats.[10]
To facilitate the objectives of proportional representation as a supplement to the dominant electoral system, the Constitution and the Party-List System Act prescribe parameters that operationalize our unique, domestic mode of proportional representation. .
Jurisprudence has, in turn, interpreted relevant' constitutional and statutory provisions in a manner that will give effect to the party-list system's lofty objectives. Of particular note is Barangay Association for National Advancement and Transparency (BANAT) v. Commission on Elections,[12] where this Court clarified the rules for allocating party-list seats:
In determining the allocation of seats for party-list representatives under Section 11 of [Republic Act] No. 7941, the following procedure shall be observed:The Party-List System Act's stipulation of an initial two-percent (2%) threshold serves a vital interest by filtering party-list representation to those groups that have secured the support of a sufficiently significant portion of the electorate.
- 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.
- 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.
- Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated.
- Each party, organization, or coalition shall be entitled to not more than three (3) seats.[13]
Our elections for the House of Representatives is akin to elections for the German Bundestag (federal parliament) where voters similarly cast a first vote or "Erststimme" for district representative (which follows a first past the post system), and a second vote or "Zweitstimme" for a political party.[14] For a party to occupy seats, it must secure a five percent (5%) threshold (n.b., more than doubly higher than our standard). This threshold "excludes very small parties from parliamentary representation[.][15] This exclusionary effect is deliberate and far from an inadvertent consequence: "[tjhis system was put in place to prevent smaller splinter parties - like those that bogged down the Weimar Republic in the 1920s - from entering parliament."[16]
Accordingly, it has long been settled by this Court that the two percent (2%) threshold is a valid standard that furthers the interest of robust democratic representation. From this, it follows that the Party-List System Act validly distinguishes between those groups that meet the two percent (2%) threshold, and those that fail to do so:
The two percent threshold is consistent not only with the intent of the framers of the Constitution and the law, but with the very essence of "representation." Under a republican or representative state, all government authority emanates from the people, but is exercised by representatives chosen by them. But to have meaningful representation, the elected persons must have the mandate of a sufficient number of people. Otherwise, in a legislature features the party-list system, the result might be the proliferation of small groups which are incapable of contributing significant legislation, and which might even pose a threat to the stability of Congress. Thus, even legislative districts are apportioned according to "the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" to ensure meaningful local representation.[17]
As an alternative to the predominant electoral system, the party-list system is principally concerned with advancing democratic representation. It endeavors to make up for the shortcomings of traditional elections through simple plurality. This is a particularly acute concern in the experience of Philippine electoral politics. As I have previously explained in my Separate Opinion in Atong Paglaum, Inc. v. Commission on Elections:[18]
The core principle that defines the relationship between our government and those that it governs is captured in the constitutional phrase that ours is a "democratic and republican state". A democratic and republican state is founded on effective representation. It is also founded on the idea that it is the electorate's choices that must be given full consideration.Even as it aims to challenge dominant ways in politics, the party-list system remains, at its core, an alternative electoral system, It is not a mechanism for affirmative action per se where predetermined underrepresented or marginalized groups are given exclusive access to seats in Congress. Thus, though enabling sectoral representation, the party-list system is also open to national and regional parties or organizations. It facilitates representation by drawing the focus away from personalities, popularity, and patronage; to programs, principles, and policies. It does not do so by extending extraordinary benefits to select sectors. It challenges voters to see beyond what the dominant electoral system sustains, as well as candidates and political parties to consolidate on considerations other than what may suffice in personality-affirming races won by simple plurality. It allows the forging of organizations and coalitions, and facilitates representation on the basis of ideologies, causes, and ideals that go beyond strict sectoral lines:
. . . .
The party list system is an attempt to introduce a new system of politics in our country, one where voters choose platforms and principles ¦ primarily and candidate-nominees secondarily. As provided in the i Constitution, the party list system's intentions are broader than simply to "ensure that those who are marginalized and represented become lawmakers themselves".
Historically, our electoral exercises privileged the popular and, perhaps, pedigreed individual candidate over platforms and political programs. Political parties were convenient amalgamation^] of electoral candidates from the national to the local level that gravitated towards a few of its leaders who could marshall the resources to supplement the electoral campaigns of their members. Most elections were choices between competing personalities often with very little discernible differences in their interpretation and solutions for contemporary issues. The electorate chose on the bases of personality and popularity; only after the candidates were elected to public offices will they later find out the concrete political programs that the candidate will execute. Our history is replete with instances where the programs that were executed lacked cohesion on the basis of principle. In a sense, our electoral politics alienated and marginalized large parts of our population.
The party list system was introduced to challenge the status quo. It could not have been intended to enhance and further entrench the same system. It is the party or the organization that is elected. It is the party list group that authorizes, hopefully through a democratic process, a priority list of its nominees. It is also the party list group that can delist or remove their nominees, and hence replace him or her, should' he or she act inconsistently with the avowed principles and platforms of governance of their organization. In short, the party list system assists genuine political parties to evolve. Genuine political parties enable true representation, and hence, provide the potential for us to realize a "democratic and republican state".[19] (Citations omitted)
In a sense, challenging the politics of personality by constitutionally entrenching the ability of political parties and organizations to instill party discipline can redound to the benefit of those who have been marginalized and underrepresented in. the past. It makes it possible for nominees to be chosen or. the basis of their loyalty to principle and platform rather than their family, affiliation. It encourages more collective action by the membership of the party and hence will reduce the possibility that the party be controlled only by a select few.In keeping with these, I have articulated, and continue to maintain, that participation in the party-list system should be in keeping with the following benchmarks:
Thus, it is not only "for the marginalized and underrepresented in our midst . . . who wallow in poverty, destitution and infirmity" that the party list system was enacted. Rather, it was for everyone in so far as attempting a reform in our politics.
But, based on our recent experiences, requiring "national, regional and sectoral parties and organizations" that participate in the party list system to be representatives of the "marginalized and underrepresented sector" and be "marginalized and underrepresented themselves" is to engage in an ambiguous and dangerous fiction that undermines the possibility for vibrant party politics in our country. This requirement, in fact, was the very requirement that "gut the substance of the party list system".
Worse, contrary to the text of the constitution, it fails to appreciate the true context of the party list system.
. . . .
It is inconceivable that the party list system framed in our Constitution make it impossible to accommodate green or ecological parties of various political persuasions.
Environmental causes do not have as their constituency only those who are marginalized or underrepresented. Neither do they only have for their constituency those "who wallow in poverty, destitution and infirmity". In truth, all of us, regardless of economic class, are constituents of ecological advocacies.
Also, political parties organized along ideological lines — the socialist or even right wing political parties — are groups motivated by a their own narratives of pur history, a vision of what society can be and how it can get there. There is no limit to the economic class that can be gripped by the cogency of their philosophies and the resulting political platforms. Allowing them space in the House of Representatives if they have the constituency that can win them a seat will eniich the deliberations in that legislative chamber. Having them voice out opinions — whether true or false — should make the choices of our representatives richer. It will make the choices of our representatives more democratic.
Ideologically oriented parties work for the benefit of those who are marginalized and underrepresented, but they do not necessarily come mainly from that economic class. Just a glance at the history of strong political parties in different jurisdictions will show that it will be the public intellectuals within these parties who will provide their rationale and continually guide their membership in the interpretation of events and, thus, inform their movement forward.
Political ideologies have people with kindred ideas as their constituents. They may care for the marginalized and underrepresented, but they are not themselves — nor for their effectivity in the House of Representatives should we require that they can only come from that class.[20] (Citations omitted)
First, the party list system includes national, regional and sectoral parties and organizations;Without these considerations, the party-list system will become a farce, an avenue that will be dominated by the moneyed elite; further marginalizing truly ideological, as opposed to merely personal, politics.
Second, there is no need to show that they represent the "marginalized and underrepresented". However, they will have to clearly show how their plans will impact on the "marginalized and underrepresented". Should the party list group prefer to represent a sector, then our rulings in Ang Bagong Bayani and BANAT will apply to them;
Third, the parties or organizations that participate in the party list system must not also be a participant in the election of representatives for the legislative districts. In other words, political parties that field candidates for legislative districts cannot also participate in the party list system;
Fourth, the parties or organizations must have political platforms guided by a vision of society, an understanding of history, a statement of their philosophies and how this translates into realistic political platforms;
Fifth, the parties or organizations — not only the nominees — must have concrete and verifiable track record of political participation showing their translation of their political platforms into action;
Sixth, the parties or organizations that apply for registration must be organized solely for the purpose of participating in electoral exercises;
Seventh, they must have existed for a considerable period, such as three (3) years, prior to their registration. Within that period they should be able to show concrete activities that are in line with their political platforms;
Eighth, they must have such numbers in their actual active membership roster so as to be able to mount a credible campaign for purpose of enticing their audience (national, regional or sectoral) for their election;
Ninth, a substantial number of these members must have participated in the political activities of the organization;
Tenth, the party list group must have a governing structure that is not only democratically elected but also one which is not dominated by the nominees themselves;
Eleventh, the nominees of the political party' must be selected through a transparent and democratic process:
Twelfth, the source of the funding and other resources used by the party or organization must be clear and should not point to a few dominant contributors specifically of individuals with families that are or have participated in the elections for representatives of legislative districts;
Thirteenth, the political party or party list organization must be able to win within the two elections subsequent to their registration;
Fourteenth, they must not espouse violence; and
Fifteenth, the party list group is not a religious organization.[21] (Citations omitted)
ACCORDINGLY, I vote that the present Petition for Certiorari and Prohibition and Petition-in-Intervention be DISMISSED.
[1] 707 Phil.,454(2013) [Per J.Carpio, En Banc].
[2] CONST., art. VI, sec. 5 provides:
SECTION 5. (I) The House of Reprevcnta;ives- shall be composed of not inore than two hundred and fifty member 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 inhabitants, 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, regional, 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 communities, women, youth, and such o
(3) Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. Each city with a population of af least two hundred fifty thousand, or each province, shall have at least.one representative.
(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.
[3] See Electoral Systems, THE ELECT ORAL. KNOWLEDGE NETWORK,
[4] See Electoral Systems, THE ELECTORAL KNOWLEDGE NETWORK,
[5] Id.
[6] Ponencia, p, 3.
[7] Id.
[8] Id.
[9] Veterans Federation Parly v. Commission on Elections, 396 Phil. 419, 441 (2000) [Per J. Panganiban, En Banc].
[10] Ponencia, pp. 27-28.
[11] Id. at 10-11.
[12] 604 Phil. 131 (2009). [Per J. Carpio, Er. Banc].
[13] Id. at 162.
[14] See Michael Krennerich, Germany: The Original Mixed Member Proportional System, THE ELECTORAL KNOWLEDGE NETWORK.,
[15] Id.
[16] How does the German general election work?, DW,
[17] Veterans Federation Party v. Commission on Elections, 396 Phil. 419, 441 (2000) [Per J. Panganiban, En Banc].
[18] 707 Phil. 454 (2013) [Per J. Carpio, En Banc].
[19] Id. at 738-741.
[20] Id. at 741-744.
[21] Id. at 751-753.
CAGUIOA, J.:
I concur only insofar as the petitions are dismissed — but with a call that the allocation of party-list seats laid down in Barangay Association for National Advancement and Transparency (BANAT) v. Commission on Elections,[1] (BANAT) should be abandoned as it is inconsistent with, and fails to reflect, the spirit and intent of the Constitution and Republic Act No. (RA) 7941 or the Party-List System Act.[2]
The present Petition and the
BANATformula
The party-list system was an innovation introduced by the drafters of the Constitution to diversify representation in the House of Representatives (HOR). It was meant to "open the system," in recognition of the real need to provide an effective platform to those who belong to marginalized sectors of society, such as labor, peasant, urban poor, indigenous cultural communities, women, and youth,[3] and also to provide an avenue to those who had been unable to gain seats in the legislature because of the dominance of the traditional and well-established political parties. Since the first national elections involving the party-list system in 1998, the election, qualifications, and allocation of seats to party-list organizations (PLO) and their nominees have been the subject of petitions before the Court.
This time, petitioners Ang Partido ng Mga Pilipinong Marino, Inc. (ANGKLA) and Serbisyo sa Bayan Party (SBP) and petitioner-intervenor Aksyon Magsasaka-Partido Tinig ng Masa (AKMA-PTM) (petitioners) propose a new formula in computing the allotted seats for PLOs in the HOR after failing to obtain a congressional seat in the May 2019 National and Local Elections (2019 Elections).
The procedure for allocation of seats in the party-list system is provided in RA 7941, which states:
SEC. 11. Number of Party-List Representatives. — The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list.
for purposes of the May 1988 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system.
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 receiving 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 proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats.
SEC. 12. Procedure in Allocating Seats for Parly-List Representatives. — The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system.
In interpreting Section 11, the Court in Veterans Federation Party v. Commission on Elections (Veterans),[4] formulated the following parameters:
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.Veterans also produced the "First Party Rule," which gave preference to the PLO that obtained the highest number of votes and used the number of votes garnered by the party obtaining the highest number of votes as a benchmark in determining the seats to be allocated to the rest of the PLOs.
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 actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats.
Fourth, proportional representation—the additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of votes."[5]
The above parameters were revised in BANAT, where the Court declared unconstitutional the two percent threshold for the distribution of "additional seats" in the second proviso of Section 11 (b)[6] of RA 7941 as it made it mathematically impossible to achieve the maximum number of available party-list seats (APLS) when the APLS exceeded 50.[7] The Court also abandoned the First Party Rule, devising instead a three-tier approach which allowed more party-list participation in the legislature as party-list seats were to be allocated even to those parties who did not obtain at least two percent of the total party-list votes. The following procedure was thus adopted:
Simplified, the above formula for distribution is as follows: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.
- 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.
- 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.
- Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated.
- Each party, organization, or coalition shall be entitled to not more than three (3) seats.
In declaring the two percent threshold unconstitutional, 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 multiplied 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 corresponds to a party's share in the remaining available seats. Second, we assign one party-list seat to each of the parties 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, x x x8
1. The PLOs shall be ranked from highest to lowest according to their respective votes;
2. The votes garnered by each party shall be divided by the total party-list votes to determine the percentage of votes per PLO;
3. Allocation of guaranteed seats for the two percenters - Those PLOs which garnered at least two percent of the total party-list votes shall be entitled to a "guaranteed seat;"
4. The guaranteed seats already distributed to the two percenters shall be deducted from the APLS to determine the remaining available seats;
5. Allocation of additional seats for two percenters - The additional seats for the two percenters shall be determined by multiplying the percentage of votes garnered by the two percenters to the remaining available seats; the whole integer of the product shall determine the additional seat, if any (subject to the three-seat cap);
6. Allocation of the remaining available seats for the non-two percenters - The remaining available seats after distributing the guaranteed seats and additional seats to the two percenters shall be distributed one seat each to the non-two percenters until all remaining available seats have been allocated.
Using the above formula, the Commission on Elections (COMELEC), acting as the National Board of Canvassers (NBC), issued Resolution No. 004-19 declaring the winners in the party-list system for the 2019 Elections. Petitioners failed to obtain any seats. Thus, they present a new formula' which will enable them to obtain seats.
Petitioners propose that in the determination of additional seats for the two percenters in Step 5, the percentage of their votes should be deducted by two percent — since the two percent has "already been counted" in Step 3. According to petitioners, the non-deduction of two percent in the allocation of additional seats for two percenters results in "double counting" of votes. Petitioners also pray that the Court declare unconstitutional the following underscored phrase in the sentence in Section ll(b) of'RA 7941: "[TJhose garnering more than two percent (2%) of the votes shall be entitled to additional seats in the proportion to their total number of votes."[9] Petitioners assert that this results in discrimination against the non-two percenters, depriving them of rightful seats in the HOR.10
Cited by petitioners is the Court's Resolution in BANAT promulgated on July 8, 2009, which resolved the Motion for Clarification of then HOR Speaker Prospero C. Nograles and a separate Motion for Leave for Partial Reconsideration of PLO Citizen's Battle Against Corruption (CIBAC). A revision of the list of winning PLOs was necessary due to the reduction in the number of legislative districts pending resolution of the case (when the Court invalidated the creation of the province of Shariff Kabunsuan) and after the Court received updated data from a more recent Party-List Canvass Report which had not been submitted by the parties earlier.[11] Petitioners bring the Court's attention to the following portion in the July 8, 2009 Resolution:
In the table above, CIBAC cannot claim a third seat from the seat allocated to TUCP, the last ranked party allocated with a seat. CIBAC's 2.81% (from the percentage of 4.81% less the 2% for its guaranteed seat) has a lower fractional seat value after the allocation of its second seat compared to TUCP's 1.03%. CIBAC's fractional seat after receiving two seats is only 0.03 compared to TUCP's 0.38 fractional seat. Multiplying CIBAC's 2.81% by 37, the additional seats for distribution in the second round, gives 1.03 seat, leaving 0.03 fractional seat. Multiplying TUCP's 1.03% by 37 gives a fractional seat of 0.38, higher than CIBAC's fractional seat of 0.03. The fractional seats become material only in the second step of the second round of seat allocation to determine the ranking of parties. Thus, for purposes of the second step in the second round of seat allocation, TUCP has a higher rank than CIBAC.[12] (Emphasis supplied)Petitioners invoke the above disquisition to support their position which appears to mandate that two percent be deducted from a two percenter's total votes in determining their additional seat.
The formula forwarded by petitioners will result in a smaller multiplier and smaller product: thereby allocating fewer seats to the two percenters, which would then result in an increase in the number of remaining available seats for PLOs that would not have been able to qualify for one seat.
The COMELEC, through the Office of the Solicitor General (OSG), filed its Comment, maintaining that there is no "double counting" of votes as the votes are counted in two separate rounds of seat allocation. The first round is the allocation of the guaranteed seats for two percenters and the second round is the allocation of the additional seats.[13] There would only be double counting if the same votes were counted twice for the same round. The OSG also asserts that there is no violation of the equal protection clause against the non-two percenters because there is substantial distinction between the former and the two percenters, who obtained the "clearer mandate of the people" by receiving more votes.[14]
The ponencia dismisses the petitions. On the procedural issue, the ponencia holds that petitioners failed to satisfy all the requirements of judicial review in failing to raise the issue of constitutionality in the first instance and that the issue on constitutionality is not the very lis mota of the case.[15] On the substantive issue, the ponencia holds that Section 11 (b) of RA 7941 is constitutional and maintains the formula developed by the Court in BANAT.
With the foregoing considerations, and without belaboring the issues on judicial review and constitutionality, I find merit in ANGKLA's position that the BANAT formula results in the "double counting" of votes in the computation of additional seats for the two percenters. Specifically, their first two percent already entitles them to a seat, and yet, in the allocation of the remaining seats, the said votes are still taken into consideration.
As will be shown herein, the BANAT formula suffers from a misinterpretation of the first part of Section 11 (b) of RA 7941 that led it to have two rounds of allocation of seats, even when the law clearly does not require the same. More importantly, the BANAT formula fails to reflect the State policies embodied in RA 7941 and in the Constitution.
That said, I do not agree with petitioners' formula as it is not sanctioned by the plain text of Section ll(b) of RA 7941, which provides that the additional seats shall be computed in proportion to the PLO's total number of votes. Thus, I am submitting instead a different formula that, would better reflect the intent behind the introduction of the party-list system in the Constitution, while remaining consistent with the letter of Section ll(b)ofRA7941.
The spirit and intent behind
the party-list system
As mentioned, the party-list system is an innovation in the 1987 Constitution meant to "open the system" that has long been dominated by the large political parties. Commissioner Christian S. Monsod (Commissioner Monsod), the main proponent of the party-list system, explained the objectives of the party-list system in the following exchange:
BISHOP BACANI. I thank the Honorable Villacorta for the very beautiful defense of the idea of a sectoral representation, but I am already in basic sympathy with that. I want that myself. Only, I want to ask what sectors will be included. Will it be the farmers, teachers, et cetera? What will be the criteria or the bases for the creation of recognition of the sectors that will be represented in the Assembly?The party-list system envisioned by Commissioner Monsod - one where even major political parties may participate as long as they organize along sectoral lines - was met with opposition. Some of the framers of the Constitution, namely Commissioners Joaquin G. Bernas and Jaime S.L. Tadeo, advocated for a party-list system that is reserved for the marginalized sectors of society.[17] To the opposition, the party-list system should complement the constitutional provisions on social justice, in that it would equalize political power by distributing power from those who traditionally have it to the underprivileged.[18] It was even argued that half of the seats in the party-list system should be permanently reserved to certain sectors to achieve the objective.[19]
MR. DA VIDE. Madam President, on the matter of the sectoral representation and the mechanics for the implementation thereof, the Committee had left it to a law to implement the same. 'That is why the provision here reads: "and those who, as provided by law, shall be elected from the sectors and party list." The law itself implementing this will provide which sectors to be represented.
BISHOP BACANI. How will we determine these sectors?
MR. DAVIDE. Madam President, since this is also on the matter of the party list, may we seek the recognition of Commissioner Monsod for the question of Commissioner Bacani.
THE PRESIDENT. Commissioner Monsod is recognized. MR. MONSOD. Thank you, Madam President.
I would like to make a distinction from the beginning that the proposal for the party list system is not synonymous with that of the sectoral representation. Precisely, the party list system seeks to avoid the dilemma of choice of sectors and who constitute the members of the sectors. In making the proposal on the party list system, we were made aware of the problems precisely cited by Commissioner Bacani of which sectors will have reserved seats. In effect, a sectoral representation in the Assembly would mean that certain sectors would have reserved seats; that they will choose among themselves who would sit in those reserved seats. And then, we have the problem of which sector because as we will notice in Proclamation No. 9, the sectors cited were the farmers, fishermen, workers, students, professionals, business, military, academic, ethnic and other similar groups. So these are the nine sectors that were identified here as "sectoral representatives" to be represented in this Commission. The problem we had in trying to approach sectoral representation in the Assembly was whether to stop at these nine sectors or include other sectors. And we went through the exercise in a caucus of which sector should be included which went up to 14 sectors. And as we all know, the longer we make our enumeration, the more limiting the law becomes because when we make an enumeration we exclude those who are not in the enumeration. Second, we had the problem of who comprise the farmers. Let us just say the farmers and the laborers. These days, there are many citizens who are called "hyphenated citizens." A doctor may be a farmer; a lawyer may also be a farmer. And so, it is up to the discretion of the person to say "I am a farmer" so he would be included in that sector.
The third problem is that when we go into a reserved seat system of sectoral representation in the Assembly, we are, in effect, giving some people two votes and other people one vote. We sought to avoid these problems by presenting a party list system. Under the party list system, there are no reserved seats for sectors. Let us say, laborers and farmers can form a sectoral party or a sectoral organization that will then register and present candidates of their party. How do the mechanics go? Essentially, under the party list system, every voter has two votes, so there is no discrimination. First, he will vote for the representative of his legislative district. That is one vote. In that same ballot, he will be asked: What party or organization or coalition do you wish to be represented in the Assembly? And here will be attached a list of the parties, organizations or coalitions that have been registered with the COMELEC and are entitled to be put in that list. This can be a regional party, a sectoral party, a national party, UNIDO, Magsasaka or a regional party in Mindanao. One need not be a farmer to say that he wants the farmers' party to be represented in the Assembly. Any citizen can vote for any party. At the end of the day, the COMELEC will then tabulate the votes that had been garnered by each party or each organization — one does not have to be a political party and register in order to participate as a party — and count the votes and from there derive the percentage of the votes that had been cast in favor of a party, organization or coalition.
When such parties register with the COMELEC, we are assuming that 50 of the 250 seats will be for the party list system. So, we have a limit of 30 percent of 50. That means that the maximum that any party can get out of these 50 seats is 15. When the parties register they then submit a list of 15 names. They have to submit these names because these nominees have to meet the minimum qualifications of a Member of the National Assembly. At the end of the day, when the votes are tabulated, one gets the percentages. Let us say, UNIDO gets 10 percent or 15 percent of the votes; KMU gets 5 percent; a women's party gets 2 1/2 percent and anybody who has at least 2 1/2 percent of the vote qualifies and the 50 seats are apportioned among all of these parties who get at least 2 1/2 percent of the vote.
What does that mean? It means that any group or party who has a constituency of, say, 500,000 nationwide gets a seat in the National Assembly. What is the justification for that? When we allocate legislative districts, we are saying that any district that has 200,000 votes gets a seat. There is no reason why a group that has a national constituency, even if it is a sectoral or special interest group, should not have a voice in the National Assembly. It also means that, let us say, there are three or four labor groups, they all register as a party or as a group. If each of them gets only one percent or five of them get one percent, they are not entitled to any representative. So, they will begin to think that if they really have a common interest, they should band together, form a coalition and get five percent of the vote and, therefore, have two seats in the Assembly. Those are the dynamics of a party list system.
We feel that this approach gets around the mechanics of sectoral representation while at the same time making sure that those who really have a national constituency or sectoral constituency will get a chance to have a seat in the National Assembly. These sectors or these groups may not have the constituency to win a seat on a legislative district basis. They may not be able to win a seat on a district basis but surely, they will have votes on a nationwide basis.
The purpose of this is to open the system. In the past elections, we found out that there were certain groups or parties that, if we count their votes nationwide, have about 1,000,000 or 1,500,000 votes. But they were always third place or fourth place in each of the districts. So, they have no voice in the Assembly. But this way, they would have five or six representatives in the Assembly even if they would not win individually in legislative districts. So, that is essentially the mechanics, the purpose and objectives of the party list system.
BISHOP BACANI. Madam President, am I right in interpreting that when we speak now of party list system though we refer to sectors, we would be referring to sectoral party list rather than sectors and party list?
MR. MONSOD. As a matter of fact, if this body accepts the party list system, we do not even have to mention sectors because the sectors would be included in the party list system. They can be sectoral parties within the party list system.
BISHOP BACANI. Thank you very much.[16] (Emphasis and underscoring supplied)
While Commissioner Monsod was not opposed to the idea, he had difficulty operationalizing a purely sector-based party-list system:
MR. OPLE: It appears that the Commission, for historical reasons, suffers from a lack of knowledge about the party list system. I suppose that we are not really reinventing the wheel here when we incorporate a party list system as among the modes of selecting representatives of the people. Since Commissioner Monsod, for the reason that he has taken a keen interest in electoral science, if we might call it that way, seems to be the sole authority on the party list system as far as we can see this in the Commission, can he share with the Members of the Commission his knowledge of how the party list system works in its country of origin like Germany and Switzerland? As a general principle, does it contemplate making up through a party list for the general weakness of what Commissioner Villacorta calls the "marginalized" sectors, so that the preponderance of traditional parties is overcome and that the less-privileged sectors in society could have their own access to Congress?After much deliberation, however, a compromise was reached which was reflected in the wording of Section 5(2), Article VI of the Constitution.[21] The compromise was that half of the seats in the party-list system would be reserved for the marginalized sectors, but the "reserved system" persisted only for three consecutive terms after the ratification of the Constitution. In the wisdom of the framers, permanently reserving seats for the representatives of the marginalized sector would make it seem that the seats are being handed to the sectors on a silver platter.[22] Thus, to place the representatives of the marginalized sectors on equal footing with district representatives, the framers thought it would be best to not permanently reserve seats for them, and require them to participate in the elections side by side with other parties.[23] In recognition, however, of their relative disadvantage in terms of political power, the Constitution reserved seats for them for three consecutive terms to allow them, in the interregnum, "to become more self-reliant, to be able to forge horizontal links and coalitions with other sectors who are in search of new political values and a new political culture x x x that will provide countervailing force against elite party politics1."[24]
In the case of Germany, I understand that the Greens, who otherwise would understand their chance at the beginning, had gotten there through a party list system.
Will Commissioner Monsod oblige by answering this question?
MR. MONSOD. Madam President, I do not presume to be an expert on the party list system. We are using the party list system in a generic sense. However, I believe Commissioner Ople himself is an expert on this. It is true that the party list system can specify those who may sit in it. In fact, if I remember right, in the case of Belgium, it was quite detailed. But if we take a look at that list, it seems that almost 90 or over 90 percent of the country's population would be qualified to be in the party list system because one of the general qualifications is that the member must be a holder of a secondary degree. So, what I am saving is that the party list system can be designed in order to allow for an opening up of the system. My reservation with respect to what I would call a reserve seat system where we automatically exclude some sectors is the difficulty to make it operational. At this point in time in our country, this is already a novel idea as it is. I believe that all of us really are not yet experts on this and we are still learning through the process. Thus, for us to introduce complications at this time might bring difficulty in implementation.
We can put a cap on the number of seats that a party or organization can have in the system consistent with pur objective of opening it up. But to put the complication by saying, for instance, that UNIDO can register provided that 10 or 15 of its candidates must be farmers, laborers, urban poor and so on, I think would be very difficult to implement.
MR. OPLE. So, Commissioner Monsod grants that the basic principle for a party list system is that it is a countervailing means for the weaker segments of our society, if they want to seek seats in the legislature, to overcome the preponderant advantages of the more entrenched and well-established political parties, but he is concerned that the mechanics might be inadequate at this time.
MR. MONSOD. Not only that; talking about labor, for example — I think Commissioner Tadeo said there are 10 to 12 million laborers and I understand that organized labor is about 4.8 million or 4.5 million — if the laborers get together, they can have seats. With 4 million votes, they would have 10 seats under the party list system.
MR. OPLE. So, the Commissioner would favor a party list system that is open to all and would not agree to a party list system which seeks to accommodate, in particular, the so-called sectoral groups that are predominantly workers and peasants?
MR. MONSOD. If one puts a ceiling on the number that each party can put within the 50, and I am assuming that maybe there are just two major parties or three at the most, then it is already a form of opening it up for other groups to come in. All we are asking is that they produce 400,000 votes nationwide. The whole purpose of the system is precisely to give room for those who have a national constituency who may never be able to win a seat on a legislative district basis. But they must have a constituency of at least 400,000 in order to claim a voice in the National Assembly.[20] (Emphasis and underscoring supplied)
While the proposal to perpetually limit the party-list system to the marginalized sectors was not adopted, what remains clear is that the objective of the system was to encourage diversity of representation in the HOR by allowing parties who may not be able to garner enough votes in a district, but may be able to get enough votes on a nationwide scale.
Thus, in enacting RA 7941 or the Party-List Act, Congress had in mind the very same objectives of the Constitution. In fact, the Explanatory Note of House Bill No. 3043, the progenitor bill of RA 7941, states:
The above-quoted provision of the constitution [referring to Article VI, Section 5(1) and (2) of the Constitution] defines .the basic aim of a ; representative government - to attain the broadest possible representation of all interests in the country's law-making body. The introduction of the party-list system under the 1987 Constitution is geared towards the achievement of this goal.As well, Representative Tito R. Espinosa (Representative Espinosa),' in his Sponsorship Speech for House Bill No. 3043, stated:
Under the party-list system, each voter has two separate votes. The first vote which is cast for one of the candidates of a legislative district. The second vote is for one of the party-lists put up by the duly accredited parties by the Commission on Elections. The distribution of party-list seats is computed according to the Niemeyer method to determine the number of seats established for each accredited party.
The party-list system is intended to democratize representation in the House of Representatives by enabling parties, organizations or coalitions which are not strong enough to get a seat under the legislative district system to acquire proportional representation depending on the number of votes garnered. The under- or over-representation of certain sectors is minimized because unlike the plurality system which tend to be dominated by major political parties on account of its majority-votes-rule, the party-list system, through its proportional method of allocating seats, makes it possible for seats to be granted to a party even if it fails to achieve a majority of votes. Ample representation of basic sectors in the legislature with the end in view of enacting laws reflective of their needs and aspirations would indeed be a significant move towards a true democracy.
Approval of this bill is, therefore, earnestly urged.[25] (Emphasis and underscoring supplied)
In keeping with the policy of the State to evolve a full and open party system in order to attain the x x x broadest possible representation of group interest in the government's lawmaking body, the Committee on Suffrage and Electoral Reforms submits before you today House Bill No. 3043 which provides for the election of party-list representatives through the party-list system.Thank you, Mr. Speaker.[26] (Emphasis and underscoring supplied)
House Bill No. 3043 if enacted, will broaden the horizons for the institutionalization of democracy in the Philippine politics. For one, this vital legislative measure strengthens democratic pluralism that gives premium on true grassroots representation. It encourages the free battle and market of ideas regardless of creed, race or ideology which in the process would pave the way to the transformation of our electoral and party system into one that is based on issues and platforms and programs of actions not of personalities and platitudes.
Eventually, the integration of the party-list system or the active participation of political parties, coalitions and sectoral organization in the mainstream of Philippine political arena will significantly aid the political maturity of the Filipino people. Once fully realized, the adoption of the system coupled with the people's unswerving commitment and determination to the cause of democracy will signal the end or the withering away of culture of cult, the politics of patronage, of guns, goons and gold and enter the era of political culture that is liberating and humanizing.
Mr. Speaker, distinguished colleagues, I sincerely believe that the adoption of a party-list system among other electoral reform measures is a radical step that transcends beyond reform in the electoral processes. If enacted, this vital piece of legislation will serve as an effective tool in empowering our people who have been historically made powerless by a flawed and iterant electoral system and therefore unable to intervene on policies that often intrude on rather than improve their lives.
With the institutionalization of the party-list, there is a great hone that the broad masses of our people will no longer be marginalized from the mainstream of decision making and governance.
In view of the foregoing, Mr. Speaker, distinguished colleagues, I therefore call upon this august Chamber to take a bold step in the name of democracy and in the name of the Filipino people whom we have vowed to serve by way of approving on second reading and eventually into law House Bill No. 3043.
During the interpellations, Representative Espinosa confirmed that the objectives of the law are "to institutionalize a multiparty system in the Philippines and to equalize political power among the various political sectoral parties and organizations."[27] Similar to what happened in the deliberations of the constitutional provisions regarding the party-list system, the discussion on whether the system ought to be reserved to marginalized sectors once again came up. In clarifying that the system is not reserved to marginalized sectors, Representative Espinosa explained:
MR. JABAR. There is a phrase here under Section 2, Declaration of Principles, line 7, the phrase "all parties", may we be clarified as to what are the parties envisioned or contemplated under this particular section, Mr. Speaker?Clear from all the foregoing, therefore, is that the spirit that animates the party-list system is the hope that the widest range of ideas, beliefs, backgrounds, ideologies, and interests are represented in the HOR as much as possible.
MR. ESPINOSA. Yes, Mr. Speaker, Your Honor. All parties would refer to existing political parties and all organizations, group of persons or coalition groups.
MR. JABAR. In other words, all existing registered political parties, like the Lakas-NUCD-UMDP, the LDP, the NP, LP, PDP-Laban ¦ and so many other registered political parties can also participate in the party-list election. Am I correct, Mr. Speaker, Your Honor?
MR. ESPINOSA. That is right, Mr. Speaker, Your Honor.
MR. JABAR. Do you agree with me that in the 1987 Constitution, this particular provision on party-list system is being encouraged in order for the sectoral groupings or sectoral organizations to have equal representation or proportional representation in the House of Representatives?
MR. ESPINOSA. Not only equal, but the intention was to... MR. JABAR. Proportional representation.
MR. ESPINOSA. Not only proportional, but added to that is to attain the broadest possible representation, not just proportional, but the broadest possible representation.[28] (Emphasis and underscoring supplied)
A straightforward formula
better reflects the spirit behind
the party-list system
Proceeding from the above discussion, I find that the three-tier formula expressed in BANAT fails to reflect the intent behind the introduction of the party-list system. Section 2 of RA 7941 states that the "State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral 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."[29]
It is my considered view that these objectives will be best achieved by a straightforward formula in which allotted seats are determined by simply multiplying the percentage of votes garnered by the PLO with the APLS.
Based on this formula, the party-list seats are determined as follows:
Step One. Ranking of PLOs. All PLOs that participated in the election shall be ranked from the highest to the lowest based on the number of votes they each received during the election.
Step Two. Determination of percentage of votes per PLO in proportion to Total Votes of all PLOs. After the ranking, the percentage of votes that each PLO garnered shall then be computed as follows:
Step Three. Allocation of seats two percenters. The seats allotted to each of the qualified PLOs (the two percenters) shall then be ascertained using the following formula:
Total votes garnered by PLO | ||
------------------------------------------- | = | Percentage of votes |
Total votes cast for the party-list system | garnered |
Percentage of votes | Seat/s for the concerned | |
garnered x APLS | = | qualified PLO |
Since the prevailing law and rules do not allow for fractional representation, the product obtained herein shall be rounded down to the nearest whole integer. The three (3) seat limit shall likewise be applied.
This step does away with the three-tier allocation in BANAT. In particular, it does away with the first round of allocation. In BANAT, the Court created two rounds of allocation because of its interpretation that "[t]he first clause of Section ll(b) ofR.A. No. 7941 [which] states that '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 seat each' xxx guarantees a seat to the two-percenters."[30] Thus, it created a first of two rounds of allocation where the two percenters would be given one (1) seat each.
However, this separate round of allocation for the two percenters is not supported nor required by the letter of the law. There is nothing in the text of the law which requires separate rounds of seat allocation. All that the law requires is that those who garner 2% of the votes be guaranteed one (1) seat each. To illustrate, the straightforward formula still satisfies the requirements of Section 1 l(b), even without the "first round of allocation," because the APLS will always be more than fifty (50) seats in light of the current number of congressional districts. Thus, all PLOs who obtained at least two percent (2%) of the total votes cast in the party-list system are, in reality, guaranteed one (1) seat each — even in the absence of a separate round "ensuring" them one (1) seat.
Meanwhile, the second requirement of Section ll(b) — that the "additional seats" for those who obtained more than two percent of the total votes cast in the party-list system shall be in proportion to the total number of votes it obtained - is also complied with because the computation of additional seats for each of the two percenters is in direct proportion to the total number of votes they actually garnered.
Step Four. Allocation of remaining seats. If the APLS have not been fully exhausted after allocating seats to the two percenters (but still enforcing the 3 seat limit) - as is what is expected to happen because, as mentioned the APLS will always be more than fifty seats - the remaining seats shall then be allocated (one (1) seat each) to the parties next in rank {i.e., those who did not get at least two percent of the total number of votes cast), until all the APLS are completely distributed.
During the deliberations, the ponente argued that the adoption of a straightforward formula would render nugatory the first clause of Section ll(b), RA 7941 - which provides that "[t]he 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 seat each" - and would amount to judicial legislation. In her Separate Concurring Opinion, Senior Associate Justice Estela M. Perlas-Bernabe opines that the straightforward formula fuses together the character of the guaranteed seats and additional seats so that the separate provisions on guaranteed and additional seats would be rendered redundant and the advantageous position gained by the two percenters would be removed.
Respectfully, this is a wrong understanding of the straightforward formula. Under the straightforward formula, the two percenters will not be prejudiced or divested of their preferred status as they will still be entitled to a guaranteed seat as provided under the law. The additional seats, which are not guaranteed, will then be determined based on the proportion of their votes. As explained above, the first round of allocation of party-list seats for the two percenters is not supported nor required by the letter of the law. The law merely requires that PLOs which garnered 2% of the votes shall be. entitled to one seat and that additional seats for those which garnered more than 2%, shall be computed in proportion to their number of votes.
It is, in fact, the BANAT formula that constitutes judicial legislation, and not the straightforward formula outlined above which, to repeat, is the more literal and hamionious interpretation of the plain text of Section 11 (b) of RA 7941. As earlier discussed, the straightforward formula complies with the requirement of the first clause in Section ll(b) which guarantees two percenters one seat each while also complying with the, proportionality rule . in the second clause as the computation of additional seats for the two percenters is in direct proportion to the total number of votes they actually garnered.
Most importantly, the straightforward formula is the formula more in accord with the declared policy of Section 2 of RA 7941 for the State to develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and provide the simplest scheme possible.
Allocation of Party-List Seats
in the 2019 Elections based on
the Straightforward Formula
Below is the tabulation of the party-list seats in the 2019 Elections applying the straightforward formula:
1 ACT-CIS 2,651,987 9.5105 5.8014 3 2 BAYAN MUNA 1,117,403 4.0072 2.4444 2 3 AKO BICOL 1,049,040 3.7621 2.2949 2 4 CIBAC 929,718 3.3341 2.0338 2 5 ANG PROBINSYANO 770,344 2.7626 1.6852 1 6 IPACMAN 713,969 2.5604 1.5619 1 7 MARINO 681,448 2.4438 1.4907 1 8 PROBINSYANO AKO 630,435 2.2609 1.3791 1 9 SENIOR CITIZENS 516,927 1.8538 1 10 MAGSASAKA 496,337 1.7800 1 11 APEC 480,874 1.7245 1 12 GABRIELA 449,440 1.6118 1 13 AN WARAY 442,090 1.5854 1 14 COOP NATCCO 417,285 1.4965 1 15 ACT TEACHERS 395,327 1.4117 1 16 PHILRECA 394,966 1.4164 1 17 AKO BISAYA 394,304 1.4140 1 18 TINGOG SINIRANGAN 391,221 1.4030 1 19 ABONO 378,204 1.3563 1 20 BUHAY 361,493 1.2964 1 21 DUTERTE YOUTH 354,629 1.2718 1 22 KALINGA 339,665 1.2181 1 23 PBA 326,258 1.1700 1 24 ALONA 320,000 1.1476 1 25 RECOBODA 318,511 1.1422 1 26 BH 288,752 1.0355 1 27 BAHAY 281,793 1.0106 1 28 CWS 277,940 0.9967 1 29 ABANG LINGKOD 275,199 0.9869 1 30 A TEACHER 274,460 0.9843 1 31 BHW 269,518 0.9665 1 32 SAGIP 257,313 0.9228 1 33 TUCP 256,057 0.9183 1 34 MAGDALO 253,536 0.9092 1 35 GP 249,4884 0.8947 1 36 MANILA TEACHERS 249,416 0.8945 1 37 RAM 238,150 0.8540 1 38 ANAKALUSUGAN 237,629 0.8522 1 39 AKO PADAYON 235,112 0.8432 1 40 AAMBIS OOWA 234,552 0.8411 1 41 KUSUG 228,224 0.8185 1 TAUSUG 42 DUMPER PTDA 223,199 0.8004 1 43 TGP 217,525 0.7801 1 44 PATROL 216,653 0.7770 1 45 AMIN 212,323 0.7614 1 46 AGAP 208,752 0.7486 1 47 LPGMA 208,219 0.7467 1 48 OFW FAMILY 200,881 0.7204 1 49 KABAYAN 198,571 0.7121 1 50 DIWA 196,385 0.7043 1 51 KABATAAN 195,837 0.7023 1 52 AKMA-PTW 191,804 0.6878 1 53 SBP 180,535 0.6474 1 54 ANGKLA 179,909 0.6452 1 55 AKBAYAN 173,356 0.6217 1 56 WOW PILIPINAS 172,080 0.6171 1 TOTAL VOTES CAST FOR PARTY-LIST SYSTEM IN THE 2016 ELECTIONS 27,884,790 ALLOCATED PARTY-LIST SEATS (APLS) 61
Based on the foregoing table, AKMA-PTW, SBP, ANGKLA, AKBAYAN, and WOW PILIPINAS, will now be entitled to one seat each, increasing the number of participating PLOs in the HOR from fifty-one (51) to fifty-six (56). Clearly, in contrast to the formulas in BANAT and Veterans, the straightforward formula is not only simpler (as is mandated by the law), but more importantly, allows the broadest possible representation of interests in the legislature.
Due process issues in adopting
the straightforward formula
I acknowledge that the straightforward formula may not be immediately applied in this case because of the requirements of due process. As the adoption of the straightforward formula will not only affect petitioners but also other qualified PLOs which have already been proclaimed by the COMELEC, and whose representatives have already assumed office, due process mandates that all qualified PLOs be heard on the matter. Indeed, in Cipriano v. Commission on Elections?[31] the Court held:
It is therefore clear that the law mandates that the candidate must be notified of the petition against him and he should be given the opportunity to present evidence in his behalf. This is the essence of due process. Due process demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal shows substantial evidence to support its ruling. In other words, due process requires that a party be given an opportunity to adduce his evidence to support his side of the case and that the evidence should be considered in the adjudication of the case. In a petition to deny due course to or cancel a certificate of candidacy, since the proceedings are required to be summary, the parties may, after due notice, be required to submit their position papers together with affidavits, counter-affidavits, and other documentary evidence in lieu of oral testimony. When there is a need for clarification of certain matters, at the discretion of the Commission en banc or Division, the parties may be allowed to cross-examine the affiants.[32] (Emphasis supplied)Here, if the straightforward formula is adopted, there will be party-lists, namely Bayan Muna, Ang Probinsiyano, 1PACMAN, MARINO, and Probinsiyano Ako, which will be divested of one of their seats even though they were not impleaded nor given the opportunity to be heard on the matter. It will therefore be offensive to their right to due process that one of their representatives of their current seat in the HOR be divested through this case.
Thus,.should the straightforward formula be adopted, it would have to be applied by the Court and the COMELEC in succeeding elections, and not the election subject of this case. This aligns with the general rule that when the Court adopts a new view or doctrine in its interpretation of the laws, it has to be applied prospectively so as not to prejudice those who have relied on the abandoned interpretation. In other words, "when a doctrine of this Court is overruled and a different view is adopted, and more so when there is a reversal thereof, the new doctrine should be applied prospectively and should not apply to parties who relied on the old doctrine and acted in good faith."[33] This is the rule because "[t]o hold otherwise would be to deprive the law of its quality of fairness and justice, for, then, there is no recognition of what had transpired prior to such adjudication."[34]
In this connection, considering that the COMELEC simply followed the BANAT formula in issuing NBC Resolution No. 004-19, then the Court cannot declare COMELEC to have gravely abused its discretion. The situation, should the straightforward formula be adopted, would be similar to the Court's ruling in Atong Paglaum, Inc. v. Commission on Elections[35] where the Court laid down a new doctrine and thus stated:
We cannot, however, fault the COMELEC for following prevailing jurisprudence in disqualifying petitioners. In following prevailing jurisprudence, the COMELEC could not have committed grave abuse of discretion. However, for the coming 13 May 2013 party-list elections, we must now impose and mandate the party-list system actually envisioned and authorized under the 1987 Constitution and R.A. No. 7941. In BANAT, this Court devised a new formula in the allocation of party-list seats, reversing the COMELEC's allocation which followed the then prevailing formula in Ang Bagong Bayani. In BANAT, however, the Court did not declare that the COMELEC committed grave abuse of discretion. Similarly, even as we acknowledge here that the COMELEC did not commit grave abuse of discretion, we declare that it would not be in accord with the 1987 Constitution and R.A. No. 7941 to apply the criteria in Ang Bagong Bayani and BANAT in determining who are qualified to participate in the coming 13 May 2013 party-list elections. For this purpose, we suspend our rule that a party may appeal to this Court from decisions or orders of the COMELEC only if the COMELEC committed grave abuse of discretion.[36] (Emphasis and underscoring supplied)In light of the foregoing considerations, I concur with the ponencia only insofar as it dismisses the petitions, but with the caveat that the allocation of party-list seats laid down in BANAT should be abandoned as it fails to reflect the spirit and intent of the law. Instead, the Court should adopt a straightforward formula as discussed above, which is more in accord with the objective of the party-list system.
[1] G.R. Nos. 179271 & 179295, April 21, 2009, 586 SCRA 210.
[2] Approved on March 3, 1995.
[3] 1987 Constitution, Art. VI, Sec. 5 (2).
[4] G.R. Nos. 136781, 136786 & 136795, October 6, 2000, 342 SCRA 244.
[5] Id. at 276-277.
[6] SEC. 11. XXX
xxxx
In determining the allocation of seats for the second vote, the following procedure shall be observed:
xxxx
(b) 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 seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in the proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats.
[7] Barangay Association for National Advancement and Transparency (BANAT) v. Commission on Elections, supra note 1, at 242-243. The Court in BANAT, explained the mathematical impossibility in this wise:
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.[8] Id. at 243-244.
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 parties get two percent of the votes for every party, it is always impossible for the number of occupied party-list seats to exceed 50 seats as long as the two percent threshold is present.
[9] Underscoring supplied.
[10] Amended Petition, rollo, pp. 107-142.
[11] 592 SCRA294.
[12] Id. at 310-311.
[13] Rollo, p. 192.
[14] Id. at 193.
[15] Ponencia, pp. 8-15.
[16] II RECORD, CONSTITUTIONAL COMMISSION 85-86 (July 22, 1986).
[17] See RECORD, CONSTITUTIONAL COMMISSION 551-598 (August 1 1986)
[18] Id.
[19] Id.
[20] II RECORD, CONSTITUTIONAL COMMISSION 258-259 (July 25, 1986).
[21] (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 communities, women, youth, and such other sectors as may be provided by law, except the religious sector.
[22] II RECORD, CONSTITUTIONAL COMMISSION 551 -598 (August 1, 1986).
[23] Id.
[24] Id. at 577.
[25] 9TH Congress 4th Regular Session, 3-4 (September 28, 1992).
[26] House 9TH Congress 65-67 (November 8, 1994).
[27] HOUSE 9TH CONGRESS 126 (November 22, 1994).
[28] Id. at 152-153.
[29] Emphasis and underscoring supplied.
[30] Supra note 1, at 240.
[31] G.R. No. 158830, August 10, 2004, 436 SCRA 45.
[32] Id. at 55.
[33] Columbia Pictures, Inc. v. Court of Appeals, G.R. No. 110318, August 28, 1996, 261 SCRA 144, 168; see also: Denzonan v. Court of Appeals, G.R. Nos. 97973, 97998, January 27, 1992, 205 SCRA 515, 528, Unciano Paramedical College, Inc. v. Court of Appeals, G.R. No. 100335, April 7, 1993, 221 SCRA 285, 292, and Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, November 10, 2015, 774 SCRA 431,552, all citing People v. Jabinal, G.R. No. L-30061, February 27, 1974,55 SCRA 607 612.
[34] De Jesus v. Aquino, G.R. Nos. 164662 & 165787, February 18, 2013, 691 SCRA 71, 89.
[35] G.R. Nos. 203766, 203818-19, 203922, 203936, 203958, 203960, 203976, 203981, 204002, 204094, 204100, 204122, 204125, 204126, 204139, 204141, 204153, 204158, 204174, 204216, 204220, 204236, 204238, 204239, 204240, 204263, 204318, 204321, 204323, 204341, 204356^ 204358^ 204359, 204364, 204367, 204370, 204374, 204379, 204394, 204402, 204408, 204410, 204421^ 204425, 204426, 204428, 204435, 204436, 204455, 204484, 204485, 204486 & 204490 April 2 2013* 694 SCRA 477.
[36] Id. at 570.
GESMUNDO, J.:
In this amended petition for certiorari and prohibition, petitioners' Angkla: Ang Partido ng mga Marinong Pilipino (Angkla) and Serbisyo sa Bayan Party (SBP) together with petitioner-in-intervention Aksyon Magsasaka - Partido Tinig ng Masa (AKMA-PTM) assail respondent Commission on Elections' (acting as the National Board of Canvassers; COMELEC, for brevity) resolution in NBOC Resolution No. 004-19, alleging that the same was tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.
At the center of these petitions is another attack on the validity of Republic Act (R.A.) No. 7941 or the Party-list System Act, this time on equal protection grounds. The provision in question is highlighted in Section 11 (b) of the law which provides:
Section 11. Number of Party-List Representatives, x x x
x x x x
(b) 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 seat each: Provided, 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: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats.
After the dust had settled in the 2019 Congressional and Local Elections, the COMELEC, acting as the National Board of Canvassers, promulgated NBOC Resolution No. 004-19 declaring the winning party list groups in the May 13, 2019 ELECTIONS. Following the formula provided by BANAT v. COMELEC (BANAT)[1] the resolution distributed 61 Congressional seats among the winning parties, organizations, and coalitions, thus:
Believing that they are entitled to seats, Angkla and SBP filed this instant petition for certiorari and prohibition calling for the adjustment in the formula of allocating additional seats following BANAT. They claim that BANAT prohibited the double counting of votes but at the same time allowed it during the distribution of the additional seats. Crying foul over potential equal protection violations, they wanted the two percent (2%) of the votes already considered allocating a guaranteed seat to organizations who were able to reach the 2% threshold to be deducted from their total votes, for purposes of equal treatment. Petitioner-in-intervention echoes this claim as it will benefit from this change as well.
Rank
Party-List
Acronym
Votes Garnered
%of Total Votes
Seats
1
Anti-Crime and Terrorism Community Involvement and Support, Inc.
ACT CIS
2,651,987
9.51
3
2
Bayan Muna
BAYAN MUNA
1,117,403
4.01
3
3
Ako Bicol Political Party
AKO BICOL
1,049,040
3.76
2
4
Citizens Battle Against Corruption
CIBAC
929,718
3.33
2
5
Alyansa ng mga Mamamayang Probinsyano
ANG PROBINSYANO
770,344
2.76
2
6
One Patriotic Coalition of Marginalized Nationals
I PACMAN
713,969
2.56
2
7
Marino Samahan ng mga Seaman, Inc.
MARINO
681,448
2.44
2
8
Probinsyano Ako
PROBIN SYANO AKO
630,435
2.26
2
9
Coalition of Association of Senior Citizens in the Philippines, Inc.
SENIOR CITIZENS
516,927
1.85
1
10
Magkakasama sa Sakahan, Kaunlaran
MAGSASAKA
496,337
1.78
1
11
Association of Philippines Electric Cooperatives
APEC
480,874
1.72
1
12
Gabriela Women's Party
GABRIELA
449,440
1.61
1
13
An Waray
AN WARAY
442,090
1.59
1
14
Cooperative NATCCO Network
COOP-NATCCO
417,285
1.50
1
15
Act Teachers
ACT TEACHERS
395,327
1.42
1
16
Philippine Rural Electric Cooperatives Association, Inc.
PHILRECA
394,966
1.42
1
17
Ako Bisaya, Inc.
AKO BISAYA
394,304
1.41
1
18
Tingog Sinirangan
TINGOG SINIRANGAN
391,211
1.40
1
19
Abono
ABONO
378,204
1.36
1
20
Buhay Hayaan Yumabong
BUHAY
361,493
1.30
1
21
Duty to Energize the Republic Through the Enlightenment of the Youth
DUTERTE YOUTH
354,629
1.27
1
22
Kalinga-Advocacy for Social Empowerment and Nation Building
KALINGA
339,665
1.22
1
23
Puwersa ng Bayaning Atleta
PBA
326,258
1.17
1
24
Alliance of Organizations, Networks, and Associations of the Philippines
ALONA
320,000
1.15
1
25
Rural Electric Consumers and Beneficiaries of Development and Advancement, Inc.
RECOBODA
318,511
1.14
1
26
Bagong Henerasyon
BH (BAGONG HENERASYON)
288,752
1.04
1
27
Bahay para sa Pamilyang Pilipino, Inc.
BAHAY
281,793
1.01
1
28
Construction Workers Solidarity
CWS
277,940
1.00
1
29
Abang Lingkod, Inc.
ABANG LINGKOD
275,199
0.99
1
30
Advocacy for Teacher Empowerment through Action Cooperation and Harmony Towards Educational Reform
A TEACHER
274,460
0.98
1
31
Barangay Health Wellness
BHW
269,518
0.97
32
Social Amelioration and Genuine Intervention on Poverty
SAGIP
257,313
0.92
33
Trade Union Congress Party
TUCP
256,059
0.92
34
Magdalo Para Sa Pilipino
MAGDALO
253,536
0.91
35
Galing sa Puso Party
GP
249,484
0.89
36
Manila Teachers Savings and Loan Association, Inc.
MANILA TEACHERS'
249,416
0.89
1
37
Rebulosyonaryong Alyansa Makabansa
RAM
238,150
0.85
1
38
Alagaan Natin Ating Kalusugan
ANAKALUSUGAN
237,629
0.85
1
39
Ako Padayon Pilipino
AKO PADAYON
235,112
0.84
1
40
Ang Asosayon Sang Mangunguma nga Bisaya-OWA Mangunguma, Inc.
AAMBIS-OWA
234,552
0.84
1
41
Kusug Tausug
KUSUG TAUSUG
228,224
0.82
1
42
Dumper Philippines Taxi Drivers Association, Inc.
DUMPER PTDA
223,199
0.80
1
43
Talino at Galing Pilipino
TGP
217,525
0.78
1
44
Public Safety Alliance for Transformation and Rule of Law, Inc.
PATROL
216,653
0.78
1
45
Anak Mindanao
AMIN
212,323
0.76
1
46
Agricultural Sector Alliance of the Philippines
AGAP
208,752
0.75
1
47
LPG Marketers Association, Inc.
LPGMA
208,219
0.75
1
48
OFW Family Club, Inc.
OFW Family
200,881
0.72
1
49
Kabalikat ng Mamamayan
KABAYAN
198,571
0.71
1
50
Democratic Independent Workers Association
DIWA
196,385
0.70
1
51
Kabataan Party List
KABATAAN
195,837
0.70
1 .
52
Aksyon Magsasaka - Partido Tinig ng Masa (AKMA-PTM)
AKMA-PTM
191,804
0.69
0
53
Serbisyo sa Bayan Party
SBP
180,535
0.65
0
54
ANGKLA: Ang Partido ng mga Pilipinong Marino, Inc.
ANGKLA
179,909
0.65
0
55
Akbayan Citizens Action Party
AKBAYAN
173,356
0.62
0
In the main, petitioners Angkla and SBP raises the following grounds:
THE DOUBLE COUNTING OF VOTES IN THE LAST PARAGRAPH OF SECTION 11 OF THE PARTY-LIST SYSTEM ACT AND ITS IMPLEMENTATION IN NBOC RESOLUTION NO. 004-19 PROCLAIMING THE WINNERS OF THE 2019 PARTY-LIST ELECTION VIOLATES THE EQUAL PROTECTION CLAUSE AND IS A GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION.Put simply, petitioners claim that NBOC Resolution No. 004-19 violates the equal protection clause since it gives undue preference to party-list organizations who garnered 2% or more of the total number of votes cast for the party-list system by allowing these party list organizations to be credited the same votes for the distribution of the guaranteed seats and distribution of the additional seat. Accordingly, petitioners claim that there is double counting of votes made in favor of the 2% party-list earners as opposed to party list organizations who got less than 2%, thereby violating' the democratic precept of "one person, one vote'' or the principle of political' equality of votes, i.e., every vote has equal weight.
- THERE IS NO SUBSTANTIAL DISTINCTION BETWEEN THE VOTES CAST FOR EACH PARTY- LIST. EVERY VOTE CARRIES EQUAL WEIGHT UNDER THE LAW.
- THE DOUBLE COUNTING OF VOTES IS NOT GERMANE TO, AND DEFEATS THE PURPOSES OF THE LAW WHICH ARE TO PROMOTE PROPORTIONAL REPRESENTATION, ENABLE MARGINALIZED AND UNDERREPRESENTED FILIPINO CITIZENS TO CONTRIBUTE TO THE FORMULATION AND ENACTMENT OF APPROPRIATE LEGISLATION THAT WILL BENEFIT THE NATION AS A WHOLE, AND ATTAIN THE BROADEST POSSIBLE REPRESENTATION.
II.
TEN YEARS AGO, THIS HONORABLE COURT ALREADY REJECTED THE DOUBLE COUNTING OF VOTES IN ITS RESOLUTION DATED 8 JULY 2009 IN BANAT V. COMELEC. BY ISSUING NBOC RESOLUTION NO. 004-19 PROCLAIMING THE WINNERS OF THE 2019 PARTY-LIST ELECTION, COMELEC HAS ADAMANTLY REFUSED TO COMPLY WITH THIS HONORABLE COURT'S RESOLUTION.III.
FURTHER, THE DOUBLE COUNTING OF VOTES, AS PROVIDED FOR IN THE LAST PARAGRAPH OF SECTION 11 AND IMPLEMENTED IN NBOC RESOLUTION NO. 004-19 PROCLAIMING THE WINNERS OF THE 2019 PARTY-LIST ELECTION, IS A GRAVE ABUSE OF DISCRETION AS IT DISENFRANCHISES PARTY-LIST VOTERS, AND DEPRIVES THEM OF MUCH NEEDED CONGRESSIONAL REPRESENTATION.IV.
LASTLY, THE DOUBLE COUNTING OF VOTES IN THE LAST PARAGRAPH OF SECTION 11 AND ITS SUBSEQUENT IMPLEMENTATION IN NBOC RESOLUTION NO. 004-19 PROCLAIMING THE WINNERS OF THE 2019 PARTY-LIST ELECTION IS A GRAVE ABUSE OF DISCRETION AS IT VIOLATES THE PRINCIPLE THAT VOTERS ARE ONLY ENTITLED TO ONE PARTY-LIST VOTE.V.
CONSEQUENTLY, THE WORDS "THEIR TOTAL NUMBER OF VOTES" IN THE LAST PARAGRAPH OF SECTION 11 OF THE PARTY-LIST SYSTEM ACT, AS WELL AS NBOC RESOLUTION NO. 004-19 PROCLAIMING THE WINNERS OF THE 2019 PARTY-LIST ELECTION, SHOULD BOTH BE DECLARED UNCONSTITUTIONAL, AND THE COMELEC SHOULD BE DIRECTED TO MODIFY NBOC RESOLUTION NO. 004-19 SO THAT VOTES COUNTED IN THE ALLOCATION OF GUARANTEED SEATS WILL NOT BE REUSED OR RECOUNTED IN THE ALLOCATION OF ADDITIONAL SEATS.[3]
Thus, petitioners pray that the Court revisits the pronouncement in BANAT and declares the phrase "in proportion to their total number of votes" in Section ll(b) of R.A. No. 7941 or the Party-List System Act unconstitutional and, in order to maintain the equality of votes amongst voters and thereby prevent double counting of votes, modify the distribution of the party-list seats in this wise:
1. 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;In her Opinion, Madame Justice Amy C. Lazaro-Javier (Justice Javier) recommended the dismissal of the petition and sustaining the constitutionality of Section 1 l(b) of R. A. No. 7941 or the Party-List System Law. In sustaining the validity of the law, she cited procedural and substantive defects in the petition.
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 (1) guaranteed seat each;
3. Subtract the two percent (2%) of votes from the percentage of the total votes garnered of the party-list groups which were already allocated a guaranteed seat in the first round, then re- rank the groups accordingly;
4. Multiply the percentage of total votes garnered by each party, as adjusted, with the total number of remaining available seats;
5. The whole integer product shall be the party's share in the remaining available seats;
6. Assign one (1) party-list seat to each of the parties next in rank until all available seats are completely distributed;
7. Each party, organization, or coalition shall be entitled to not more than three (3) seats.[4]
Justice Javier pointed out that some requisites for the exercise of judicial review were not present. She concludes that petitioners failed to raise the constitutionality issue at the earliest opportunity because both Angkla and SBP benefited from the operation of the BANAT formula in the previous party-list elections. In fact, SBP was impleaded as a party respondent in An Warat v. COMELEC,[5] where it vigilantly defended the application of the BANAT foraiula. The same thing happened to petitioner-in-intervention, AKMA-PTM in AKMA-PTM v. COMELEC[6] She claims that if they truly believed the BANAT formula as unconstitutional for violating the equal protection clause, they would have raised their concern there. Instead, both Angkla and SBP kept silent and, therefore, should be considered estopped from claiming that the BANAT formula is defective.
Also, Justice Javier maintains that the constitutional challenge is not the lis mota of the case since the case can be resolved with the use of existing doctrines and black letter law.
On the substantive aspect, the Opinion of Justice Javier maintains that the BANAT formula is sound and consistent with congressional policy. Further, it maintains that there is no violation of the equal protection clause because there is substantial distinction between the two-percenters and the non-two percenters which justifies the difference in treatment between the two groups. This distinction, which is discussed in Veterans Federation Party v. COMELEC (Veterans),[7] was carried in the BANAT formula.. More, Justice Javier's Opinion claims that petitioners' proposal calls for absolute proportionality which is not what is intended by the Constitution. In any event, she insists that there is no double counting of votes considering that the 2% reduction was made in the second step of the second round and not in* the first step of the second round. Thus, no double counting of votes exists. ,
After considering the arguments of both sides, taken with the intention of the Constitutional framers and Congress, as well as the collective wisdom of the Court in previous cases, I cannot regrettably share the views of my esteemed colleague Justice Javier. To my mind, there are no procedural hindrances that would warrant the automatic sacking of this petition and there are sufficient reasons why the Court should entertain questions on the soundness of our previous decisions, particularly those that relate to difficult interpretations of the law, for to blindly adhere to stare decisis would violate the very oath that every judge takes.
More, as the BANAT formula stands, I am of the view that it violates the equal protection clause particularly the concept of "one person, one vote" which is the bedrock of our democratic and republican society as provided under Article II, Section 1 as the BANAT formula allows double counting of votes, i.e., giving some votes more weight compared to others.
Lastly, I do agree that petitioners' proposal is more in line with the Constitutional policy agreed upon by the Constitutional framers and consistent with the intention of Congress to maintain proportionality in the allocation of additional seats.
Allow me to explain.
The petition satisfies all the
requisites for judicial review
The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the Court unless there is compliance with the legal requisites for judicial inquiry, namely: (a) there must be an actual case or controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing to question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the very lis mota of the case.[8]
Truly, while this Court's power of review may be awesome, it is limited to actual cases and controversies dealing with parties having adversely legal claims, to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented.[9]
Here, Justice Javier would have condemned the petition to the dustbin noting that petitioners failed to raise the constitutional challenge at the earliest opportunity and that petitioners are estopped in questioning the validity of the BANAT formula since they benefited from the said computation during the previous party-list elections.
Further, she is of the opinion that the constitutional issue is not the lis mota of the case considering that the issue can be resolved through existing doctrines and principles especially those espoused in BANAT.
I disagree.
As early as 1937, the Court in People v. Vera,[10] explained the requirement of "earliest opportunity", in constitutional litigation, thus -
x x x. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not be considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x. vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) xxx.[11]Also, in Arceta v. Judge Mangrobang,[12] the Court held that seeking judicial review at the earliest opportunity does not mean immediately elevating the matter to this Court. Earliest opportunity means that the question of unconstitutionality of the act in question should have been immediately raised during proceedings in the court below.
It is clear from the foregoing that the rationale behind this requirement is that it prevents a party litigant from changing or altering the theory of his case and catching the other party off-guard, thereby offending all sense of fairness in court litigations. However, this is not the case here. Respondents have been apprised of petitioners' contentions and arguments and were in fact controverted by the Office of the Solicitor General head-on. There is no violation of fair play or due process of law in this scenario.
Neither should we consider this Court as the "lower court" for purposes of the procedural requirement as the rationale behind the requirement is more focused on the protection of the adverse party from surprises and underhanded tactics of the petitioners that offend fairness. Since the reason behind the requirement is not applicable in this case, it would be unfair to still mandate the rule that would serve an empty purpose -cessante ratione legis, cessat ipsa lex, when the reason of the law ceases, the law itself ceases.[13]
Even if we consider the strict application of this rule, I consider the case falling under the recognized exceptions. It has been held that in civil cases, it is the duty of the court to pass on the constitutional question, though raised for the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case.[14]
Here, the argument of double counting raised by petitioners and petitioner-in-intervention was not addressed and resolved by the Court in Veterans and BANAT. Further, this case goes into the legality of the allocation of additional seats in light of the equal protection prism, particularly the issue of double counting of votes. Contrary to the position taken by Justice Javier, the Court's decision in BANAT is insufficient to determine the validity of the arguments based on the equal protection clause. Otherwise stated, the constitutional issue cannot be resolved on the strength of BANAT and previous jurisprudence as this issue is novel and is, in fact, the lis mota of the case.
As regards the issue on estoppel, I cannot accept petitioners being guilty of such, and are thus prevented from raising the double counting of votes issue. Estoppel, an equitable principle rooted upon natural justice, prevents persons from going back on their own acts and representations, to the prejudice of others who have relied on them. For a party to be bound by estoppel, the following requisites must be present: (1) conduct amounting to false representation or concealment of material facts; or at least calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intent, or at least expectation that this conduct shall be acted upon by, or at least influence, the other party; and (3) knowledge, actual or constructive, of the real facts.[15] Obviously, the elements of estoppel are wanting simply because petitioners and petitioner-in-intervention based their conduct on the prevailing law at the time. It cannot be said that they concealed or misrepresented facts when they were merely following the prevailing law. Citizens who relied on the law cannot be expected to follow it blindly if the matter of its constitutionality escapes their immediate attention. A contrary rule would mean that a law, otherwise unconstitutional, would lapse into constitutionality by the mere failure of the proper party to promptly file a case to challenge the same.[16]
Further, it should never escape our attention that the interpretation of the party-list law by the organizations themselves who are allowed to participate in the proper allocation of seats, have been subject to numerous litigations that produced different results from Ang Bagong Bayani-OFW Labor Party v. COMELEC[17] to Atong Paglaum Inc. v. COMELEC[18] and Veterans to BANAT. It can even be conceded that the party-list law has become a difficult point of law considering the changes in interpretation of its provisions. From the foregoing, it is my view that a party cannot be estopped from raising issues that relate to difficult questions of law. Otherwise, the development of jurisprudence would be halted indiscriminately simply because an earlier court interpretation has already been made regardless of its soundness and reasonability. ¦
Lastly, reliance on the strength of stare decisis established by BANAT can be made as long as is passes constitutional muster. In the past, the Court has never been shy in disregarding stare decisis especially when the previous ruling no longer appears to be reasonable or proper.
In De Castro v. Judicial and Bar Council[19] the Court, in ruling that the appointment of the Chief Justice is outside the midnight appointment prohibition under Article VII, Section 15 of the Constitution, refused to, and in fact abandoned, the Court's earlier ruling in In Re Appointments of Hon. Valenzuela and Hon. Vallarta.[20] In doing so, the Court stated -
In this connection, PHILCONSA's urging of a revisit and a review of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional Commission to have Section 4(1), Article VIII stand independently of any other provision, least of all one found in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret, and should not accept an interpretation that defeats the intent of the framers.Again, and quite recently, in Cagang v. Sandiganbayan,[22] the Court expressly abandoned People v. Sandiganbayan, First Division,[23] and excluded the period of time dedicated for fact-finding for purposes of determining whether or not there is a violation of the right to speedy disposition of cases under Section 16, Article III of the Constitution. In deciding to abandon precedent, the Court ruled -
Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15, Article VII extends to appointments in the Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be allowed to last after its false premises have been exposed. It will not do to merely distinguish Valenzuela from these cases, for the result to be reached herein is entirely incompatible with what Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and forgettable.
We reverse Valenzuela.[21] (citations omitted, emphasis supplied)
When an anonymous complaint is filed or the Office of the Ombudsman conducts a motu proprio fact-finding investigation, the proceedings are not yet adversarial. Even if the accused is invited to attend these investigations, this period cannot be counted since these are merely preparatory to the filing of a formal complaint. At this point, the Office of the Ombudsman will not yet determine if there is probable cause to charge the accused.Truly, the evolution of judicial philosophy and the entry of new justices of the Court bring new perspectives and paradigms that question issues thought to be long-settled. For sure, stare decisis cannot shackle the solemn duty of jurists to interpret the law on the basis of their own lenses.
This period for case build-up cannot likewise be used by the Office of the Ombudsman as unbridled license to delay proceedings. If its investigation takes too long, it can result in the extinction of criminal liability through the prescription of the offense.
Considering that fact-finding investigations are not yet adversarial proceedings against the accused, the period of investigation will not be counted in the determination of whether the right to speedy disposition of cases was violated. Thus, this Court now holds that for the purpose of determining whether inordinate delay exists, a case is deemed to have commenced from the filing of the formal complaint and the subsequent conduct of the preliminary investigation. In People v. Sandiganbayan, Fifth Division, the ruling that fact-finding investigations are included in the period for determination of inordinate delay is abandoned, (citation omitted, emphasis supplied)
While stare decisis remains to be the rule in this jurisdiction, there are reasons, as will be discussed below, to forego the application principle especially and re-examine BANAT in light of the issue of double counting of votes.
The distribution of additional seats
in proportion to the total number of
votes under the BANAT formula
offends the equal protection clause
particularly the concept of
"one person, one vote"
A. Equal Protection Clause
Article III, Section 1 of the 1987 Constitution mandates that all persons shall not be denied the equal protection of the laws. The equal protection clause requires that all persons be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The purpose of the equal protection clause is to secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper execution through the state's duly constituted authorities.[24]
In Biraogo v. The Philippine Truth Commission of 2010,[25] the Court' expounded the concept of equal protection in this regard:
"According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed." It "requires public bodies and institutions to treat similarly situated individuals in a similar manner." "The purpose of the equal protection clause is to secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper execution through the state's duly constituted authorities." "In other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective."B. "One Person, One Vote" Concept
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover all the departments of the government including the political and executive departments, and extend to all actions of a state denying equal protection of the laws, through whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or things without distinction. What it simply requires is equality among equals as determined according to a valid classification. Indeed, the equal protection clause permits classification. Such classification, however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class. "Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the class. "The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the classification be made with absolute symmetry, in the sense that the members of the class should possess the same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to be treated equally. The mere fact that an individual belonging to a class differs from the other members, as long as that class is substantially distinguishable from all others, does not justify the non-application of the law to him."
The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the number included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions. It must not leave out or "underinclude" those that should otherwise fall into a certain classification. As elucidated in Victoriano v. Elizalde Rope Workers' Union and reiterated in a long line of cases, [t]he guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real, differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary, (citations omitted)
Article II, Sec. 1 provides that the Philippines is a democratic and, republican State. Sovereignty resides in the people and all government authority emanates from them. For the Constitutional framers, the concept of republicanism was added to purposely declare that the country adopts a representative democratic system[26] where leaders are chosen by the people to govern and lead them.
As a tool to determine the representatives of the people, elections are held and during such event, the people exercise their' sovereign power to choose their leaders. In this regard, the equal protection clause ensures that a person is entitled to one vote and such vote carries the same weight as others. There are no privileged individuals whose vote is weightier than others simply because of gender, race or station in life.
Retired Senior Associate Justice Antonio T. Carpio succinctly discussed this equality of weight of votes or the "one person, one vote" concept in his Dissenting Opinion in Sen. Aquino III v. COMELEC,[27] thus —
Evidently, the idea of the people, as individuals, electing their representatives under the principle of "one person, one vote," is the cardinal feature of any polity, like ours, claiming to be a "democratic and republican State." A democracy in its pure state is one where the majority of the people, under the principle of "one person, one vote," directly run the government. A republic is one which has no monarch, royalty or nobility, ruled by a representative government elected by the majority of the people under the principle of "one person, one vote," where all citizens are equally subject to the laws. A republic is also known as a representative democracy. The democratic and republican ideals are intertwined, and converge on the common principle of equality — equality in voting power, and equality under the law.From the foregoing, two (2) things are clear. First, the concept of "one person, one vote" is inherent in our system and need not be expressly stated because it is a necessary consequence of the republican and democratic nature of the Philippines state. Second, the concept of "one person, one vote" is protected under the mantle of equal protection since the weight of the vote of a person is the same as others and there is no substantial distinction per voter whether on the basis of race, gender, age, lineage, social standing or education.
The constitutional standard of proportional representation is rooted in equality in voting power — that each vote is worth the same as any other vote, not more or less. Regardless of race, ethnicity, religion, sex, occupation, poverty, wealth or literacy, voters have an equal vote.x x x[28]
Considering the concepts discussed above, I am convinced that the BANAT formula for distributing additional seats violates this principle.
As correctly pointed out by the petitioners, the 2% votes to justify the allocation of one (1) guaranteed seat were already considered and used during the allocation of the guaranteed seats. To consider them again, this time for purposes of allocating additional seats, would give these votes more weight or more value than others in violation of the equal protection clause as it gives due preference to votes received by party-list organizations who got 2% of the votes from those who did not.
Justice Javier seems to justify the grant of "double counting of votes" by alleging that there is substantial distinction between party-list organizations who received 2% or more of the total votes cast and those party-lists who did not meet the threshold. Thus, justifying the difference in treatment, i.e. allowing the votes already counted for the guaranteed seat to once again be considered for the allocation of additional seat.
Again, I cannot subscribe to this argument.
First, a reading of Veterans, would show that Veterans never discussed the validity of the 2% threshold on equal protection grounds. Veterans upheld the 2% threshold on the basis of the intent of the Constitutional framers and the intent of Congress to ensure proper representation; and for Congress, 2% of the total votes cast would already ensure a mandate. Even if there is an equal protection component in Veterans, its justification is limited only in the first round. The same treatment cannot be extended to the allocation of the additional seat. This is simply not part of Veterans and would be an unacceptable stretch of the Court's argument.
Second, there seems to be a contradiction in the stance of Justice Javier when, in one breath, she claims that the double counting of votes is acceptable, since there is substantial distinction between groups obtaining the needed 2% threshold and those who do not,[29] and at the same time declares that there is no double counting of votes since the deduction of 2% as BANAT instructs "is done in the second step of the second round of the seat allocation not in the first step of the second round."[30] The stance is self-defeating.
Third, the argument that the deduction of the 2% was made is not an accurate claim. While there is indeed a reduction of the percentages garnered by party-list organizations in the distribution of the additional seats following BANAT, the reduction does not amount to the 2% of the total votes cast. This is because in the round that allocates the guaranteed seat, its proportionality is based on the total number of votes cast for the party-list election while in the round for the allocation of additional seats, the proportionality is not dependent on the numbers of votes cast alone but also on the total number of reserved remaining party-list seats in Congress. Thus, the reason for the reduction is not the deduction of the 2% allocated for the guaranteed seats but because of the change in the basis of the proportionality which is now the total number of votes cast AND the total number of seats remaining for party-list organizations after deducting the number of guaranteed seats already allocated. This is why the reduction from the percentage in the guaranteed seats to the percentage in the additional seat can never be 2%. Hence, to claim that there is no double counting of votes because the 2% considered was already deducted is' without basis.
Lastly, even if there is an exact 2% reduction given to the party-list organizations who garnered the 2% threshold, the BANAT formula would still be flawed considering that the reduction in the allocation of the additional seats apply not only to party-list organizations who obtained the 2% threshold but to all parties since all parties will be subjected to the same formula. Thus, any deduction brought about by the formula to the group who obtained the 2% threshold, that same deduction will be applied to the others. Conversely stated, if there are no double counting of votes because the 2% was deducted only from those party-list organizations who already qualified to get a guaranteed seat, then why the reduction on the percentages of votes of party-list organizations who failed to meet the 2% requirement in the allocation of additional seat? Thus, it cannot be said that there is no inequality of votes here.
Clearly, this double counting of votes creates a classification that does not justify the requirements of a valid classification; particularly, the classification not being germane to the purposes of the law. There is no justification why there is a need to re-credit votes already credited. Further, there can be no conceivable explanation why the vote of one person should have more value compared to others. A contrary rule would be obnoxious to the democratic and republican nature of the country and the promise of equal protection under the Bill of Rights.
As such, since there is double counting of votes and the same violates the equal protection clause, particularly the "one person, one vote" mantra of democratic and republican states, the formula as to the allocation of additional seats must be fine-tuned to address this conundrum.
C. Relative Constitutionality
Aside from what was discussed above, the concept of relative constitutionality comes to play in this case which would further show the violation of the equal protection clause.
In Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,[31] the Court explained the concept of relative constitutionality in this regard, thus:
The constitutionality of a statute cannot, in every instance, be determined by a mere comparison of its. provisions with applicable provisions of the Constitution, since the statute may be constitutionally valid as applied to one set of facts and invalid in its application to another.Here, because of the change brought about by BANAT to the allocation of additional seats, the double counting of votes, which was absent in the previous computation under Veterans is now allowed.
A statute valid at one time may become void at another time because of altered circumstances. Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions[32] (citations omitted)
It must be remembered that the allocation of party-list seats was first settled by the Court in Veterans. Simply, party-list groups who got 2% of the votes will get one (1) seat and will get an additional seat for every additional 2% it gets not exceeding three (3) seats. As stated above, the Court sustained the validity of the 2% threshold on the grounds that the percentage ensures a proper mandate from the people it seeks to represent. Now, Congress created two kinds of groupings: those who obtain the 2% and thus get a guaranteed seat, and those who fail to obtain the 2% threshold and fail to get a guaranteed seat. To me, this is a valid classification for purposes of validating the grant of the guaranteed seat. The equal protection challenge, however, would end there, since any additional seat would depend on an additional 2% of the votes aside from the earlier 2% credited for the guaranteed seat.
With the advent of BANAT, however, the allocation of additional seats was changed and it allowed the distribution of additional seats in relation to, the total number of votes received, including those already credited for the guaranteed seat. While the privilege of the organizations which garnered at least 2% of the votes remained as regards the grant of guaranteed seats as there was substantial distinction between them, the same cannot be said for the distribution of additional seats, BANAT allowed the double counting of votes because the same votes used to clinch the guaranteed seats were used to qualify for an additional seat. This violates the equal protection clause because of the inequality of the weight of votes per voter.
Hence, while the advantage given to a party-list organization which obtains at least 2% of the total votes cast remained for purposes of the guaranteed seat, the change in the manner of computation for additional seats results in the obnoxious unequal treatment of votes in favor of groups who failed to secure the 2% threshold that should not endure in our legal system.
Thereby, the phrase "in proportion to their total number of votes" in Section 11 (b) of R.A. No. 7941 should be struck down for it results to the double counting of votes which is repugnant to the equal protection clause; particularly, the concept of "one person, one vote."
What therefore remains would be the mechanism furnished by the petitioners and an examination of the requirements of the Constitution and of R.A. No. 7941. I conclude that the resulting mechanism is consistent with law and the intention of the framers.
The Constitutional Intentions conform
with the petitioners 'formula for
the distribution of additional
seats for the party-list system
With the declaration of invalidity of the phrase "in proportion to their total number of votes" in Section ll(b) of R.A. 7941, it becomes apparent that a modified manner of computation for allocation of additional seat is in order. As will be discussed below, I am of the opinion that petitioners' formula best reflects the intention of the Constitutional Commission and meets the demands of Congress.
A. Constitutional GuidelinesJustice Javier was correct in stating that the Constitutional Commission left it to the discretion of Congress on how to formulate and implement the party-list system. This, however, does not mean that the framers completely abrogated its authority to provide guidance to Congress on how it should be done, at least on broad strokes. This was the sentiment of the Constitutional framers, thus -
Article VI, Section 5(2) provides:
Section 5. xxx
(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 communities, women, youth, and such other sectors as may be provided by law, except the religious sector, (emphasis supplied)
MR. OPLE: Madam President, there is nothing to prevent this Commission from sending constitutional guidelines to Congress in the form of this proposal so that it says, "as may be provided by law." It is completely consistent and synchronous with the earlier provision on sectoral representation in the Article on the Legislative. At any rate, I believe that this has been approved by the committee. It has been exhaustively debated on and I see no reason why the Chair should not put this to a vote now.[33] (emphasis supplied)In support of the presence of these guidelines prescribed by the Constitutional framers, the records of the deliberations of the 1986 Constitutional Commission are replete with discussions and debate on the party-list system and the principles that underlie the system to be proposed. If the commissioners intended to completely pass the duty to Congress, it should have stopped the debates and discussions or limited the same. But this is not the case. The framers of the Constitution discussed and agreed on at least 2 basic guidelines for Congress to follow in crafting the party-list system.
First, the framers intended the party-list system to open up the political system to different groups who have been forgotten for decades, thus, in a debate that supports the proposition against reserved seats for some sectors, Commissioner Christian Monsod explains:
MR. TADEO: Ang mechanics po ay isinumite namin kay Commissioner Villacorta. Nandoon na po kung ano ang mga dapat na gawin.The discourse between Commissioner Bias Ople and Commissioner Christian Monsod, also reveals the same intention, thus -
MR. MONSOD: Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. But we also wanted to avoid the problems of mechanics and operation in the implementation of a concept that has very serious shortcomings of classification and of double or triple votes. We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives from any single party that can sit within the 50 allocated under the party list system. This way, we will open it up and enable sectoral groups, or maybe regional groups, to earn their seats among the fifty. When we talk about limiting it, if there are two parties, then we are opening it up to the extent of 30 seats. We are amenable to modifications in the minimum percentage of votes. Our proposal is that anybody who has two-and-a-half percent of the votes gets a seat. There are about 20 million who cast their votes in the last elections. Two-and-a-half percent would mean 500,000 votes. Anybody who has a constituency of 500,000 votes, nationwide, deserves a seat in the Assembly. If we bring that down to two percent [2%], we are talking about 400,000 votes. The average vote per family is three. So, here we are talking about 134,000 families. We believe that there are many sectors who will be able to get seats in the Assembly because many of them have memberships of over 10,000. In effect, that is the operational implication of our proposal. What we are trying to avoid is this selection of sectors, the reserve seat system. We believe that it is our job to open up the system and that we should not have within that system a reserve seat. We think that people should organize, should work hard, and should earn their seats within that system.34 (emphases supplied)
MR. OPLE: It appears that the Commission, for historical reasons, suffers from a lack of knowledge about the party list system. I suppose that we. are not really reinventing the wheel here when we incorporate a party list system as among the modes of selecting representatives of the people. Since Commissioner Monsod, for the reason that he has taken a keen interest in electoral science, if we might call it that way, seems to be the sole authority on the party list system as far as we can see this in the Commission, can he share with the Members of the Commission his knowledge of how the party list system works in its country of origin like Germany and Switzerland? As a general principle, does it contemplate making up through a party list for the general weakness of what Commissioner Villacorta calls the "marginalized" sectors, so that the preponderance of traditional parties is overcome and that the less-privileged sectors in society could have their own access to Congress?Thus, from what can be discerned from the deliberations quoted above, the framers intended that the party-list system serve as a tool to accommodate weaker parties and make them part of the legislative system. This is the reason why there is a three (3)-seat cap limit per party in the party- list system. This is an acknowledgement that in the same marginalized sectors of society, there are minorities that are more disenfranchised or marginalized. These parties, per the intentions of the framers, must be protected and accommodated.
In the case of Germany, I understand that the Greens, who otherwise would understand their chance at the beginning, had gotten there through a party list system.
Will Commissioner Monsod oblige by answering this question?
MR. MONSOD: Madam President, I do not presume to be an expert on the party list system. We are using the party list system in a generic sense. However, I believe Commissioner Ople himself is an expert on this. It is true that the party list system can specify those who may sit in it. In fact, if I remember right, in the case of Belgium, it was quite detailed. But if we take a look at that list, it seems that almost 90 or over 90 percent of the country's population would be qualified to be in the party list system because one of the general qualifications is that the member must be a holder of a secondary degree. So, what I am saying is that the party list system can be designed in order to allow for an opening up of the system. My reservation with respect to what I would call a reserve seat system where we automatically exclude some sectors is the difficulty to make it operational. At this point in time in our country, this is already a novel idea as it is. I believe that all of us really are not yet experts on this and we are still learning through the process. Thus, for us to introduce complications at this time might bring difficulty in implementation.
We can put a cap on the number of seats that-a party or organization can have in the system consistent with our objective of opening it up. But to put the complication by saying, for instance, that UNIDO can register provided that 10 or 15 of its candidates must be farmers, laborers, urban poor and so on, I think would be very difficult to implement.
MR. OPLE: So, Commissioner Monsod grants that the basic principle for a party list system is that it is a countervailing means for the weaker segments of our society, if they want to seek seats in the legislature, to overcome the preponderant advantages of the more entrenched and well-established political parties, but he is concerned that the mechanics might be inadequate at this time.[35] (emphases supplied)
Secondly, as reflected by the records of the deliberations of the Constitutional framers, the party-list system should avoid problematic mechanisms that would lead to undesirable results, like multiple voting36 and unequal weight of votes. Commissioner Monsod, the proponent of the party-list proposal, objected to the proposal of reserved party-list seats, since it would provide some voters 2 votes while the others only one. Thus -
MR. MONSOD: Thank you, Madam President.From the foregoing, it is clear that the system should avoid the, problems that the framers foresaw, including the problem of unequal treatment of votes. Clearly, the framers intended to prohibit double counting or even triple counting, of votes as they cited it as a problem Congress should be wary about and should prevent.
I would like to make a distinction from the beginning that the proposal for the party list system is not synonymous with that of the sectoral representation. Precisely, the party list system seeks to avoid the dilemma of choice of sectors and who constitute the members of the sectors. In making the proposal on the party list system, we were made aware of the problems precisely cited by Commissioner Bacani of which sectors will have reserved seats. In effect, a sectoral representation in the Assembly would mean that certain sectors would have reserved seats; that they will choose among themselves who would sit in those reserved seats. And then, we have the problem of which sector because as we will notice in Proclamation No. 9, the sectors cited were the farmers, fishermen, workers, students, professionals, business, military, academic, ethnic and other similar groups. So these are the nine sectors that were identified here as "sectoral representatives" to be represented in this Commission. The problem we had in trying to approach sectoral representation in the Assembly was whether to stop at these nine sectors or include other sectors. And we went through the exercise in a caucus of which sector should be included which went up to 14 sectors. And as we all know, the longer we make our enumeration, the more limiting the law become because when we make an enumeration we exclude those who are not in the enumeration. Second, we had the problem of who comprise the farmers. Let us just say the farmers and the laborers. These days, there are many citizens who are called "hyphenated citizens." A doctor may be a farmer; a lawyer may also be a farmer. And so, it is up to the discretion of the person to say "I am a farmer" so he would be included in that sector.
The third problem is that when we go into a reserved seat system of sectoral representation in the Assembly, we are, in effect, giving some people two votes and other people one vote. We sought to avoid these problems by presenting a party list system. Under the party list system, there are no reserved seats for sectors. Let us say, laborers and farmers can form a sectoral party or a sectoral organization that will then register and present candidates of their party. How do the mechanics go? Essentially, under the party list system, every voter has two votes, so there is no discrimination. First, he will vote for the representative of his legislative district. That is one vote. In that same ballot, he will be asked: What party or organization or coalition do you wish to be represented in the Assembly? And here will be attached a list of the parties, organizations or coalitions that have been registered with the COMELEC and are entitled to be put in that list. This can be a regional party, a sectoral party, a national party, UNIDO, Magsasaka or a regional party in Mindanao. One need not be a farmer to say that he wants the farmers' party to be represented in the Assembly. Any citizen can vote for any party. At the end of the day, the COMELEC will then tabulate the votes that had been garnered by each party or each organization — one does not have to be a political party and register in order to participate as a party — and count the votes and from there derive the percentage of the votes that had been cast in favor of a party, organization or coalition.
When such parties register with the COMELEC, we are assuming that 50 of the 250 seats will be for the party list system. So, we have a limit of 30 percent of 50. That means' that the maximum that any party can get out of these 50 seats is 15. When the parties register they then submit a list of 15 names. They have to submit these names because these nominees have to meet the minimum qualifications of a Member of the National Assembly. At the end of the day, when the votes are tabulated, one gets the percentages. Let us say, UNIDO gets 10 percent or 15 percent of the votes; KMU gets 5 percent; a women's party gets 2 1/2 percent and anybody who has at least 2 1/2 percent of the vote qualifies and the 50 seats are apportioned among all of these parties who get at least 2 1/2 percent of the vote.
What does that mean? It means that any group or party who has a constituency of, say, 500,000 nationwide gets a seat in the National Assembly. What is the justification for that? When we allocate legislative districts, we are saying that any district that has 200,000 votes gets a seat. There is no reason why a group that has a national constituency, even if it is a sectoral or special interest group, should not have a voice in the National Assembly. It also means that, let us say, there are three or four labor groups, they all register as a party or as a group. If each of them gets only one percent or five of them get one percent, they are not entitled to any representative. So, they will begin to think that if they really have a common interest, they should band together, form a coalition and get five percent of the vote and, therefore, have two seats in the Assembly. Those are the dynamics of a party list system.
We feel that this approach gets around the mechanics of sectoral representation while at the same time making sure that those who really have a national constituency or sectoral constituency will get a chance to have a seat in the National Assembly. These sectors or these groups may not have the constituency to win a seat on a legislative district basis. They may not be able to win a seat on a district basis but surely, they will have votes on a nationwide basis.
The purpose of this is to open the system. In the past elections, we found out that there were certain groups or parties that, if we count their votes nationwide; have about 1,000,000 or 1,500,000 votes. But they were always third place or fourth place in each of the districts. So, they have no voice in the Assembly. But this way, they would have five or six representatives in the Assembly even if they would not win individually in legislative districts. So, that is essentially the mechanics, the purpose and objectives of the party list system.[37] (emphases supplied)
B. Statutory Enactment and the BANAT Decision
When Congress enacted R.A. No. 7941, it was guided by the parameters set forth by the framers of the Constitution. Section 2 of the law clearly mirrors the first guideline of the framers:
Section 2. Declaration of policy. 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 the marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation 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, sectoral 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, (emphases supplied)Also, .to ensure that a more diverse group of organizations would qualify and more interests are articulated, the 3-cap rule was established to control the well-off party-list groups as opposed to those less known, less organized party-list organizations.
Lastly, Congress also mandated that the system of seat-allocation be proportional.
Insofar as the second guideline is concerned, Congress thought it best to pattern the party-list system similar to the electoral system in Germany in order to assure the equal distribution of seats through proportionality and defeat the evils of unequal treatment of votes that concerned the framers.38
When the BANAT Decision was promulgated, however, it resulted into an evil that the Constitutional Commission itself sought to avoid: the double counting of votes where the votes used to clinch the guaranteed seats were also used to allocate the additional seat. The adoption of petitioners' method actually adheres to the guidelines of the Constitutional Commission as it prevents the evil that BANAT allows. The only question that remains is whether or not the petitioners' method complies with the Congressional requirement of proportionality.
I believe it does.
When we look at existing proportional systems that use a quota threshold, proportionality requires the subtraction of credited votes already used just like what the petitioners propose.
C. Electoral Systems
To be clear, R.A. No. 7941 is not an election law; rather it creates what is referred to as an electoral system. The two concepts refer to two (2) different things. David Farrell, in his book, Comparing Electoral Systems[39] explains -
x x x. Electoral laws are the family of rules governing the process of elections: from the calling of the election, through the stages of candidate nomination, party campaigning and voting, and right up to the stage of counting votes and determining the actual election result. There can be any number of rules governing how to run an election. For instance, there are laws on who can vote (citizens, residents, people over seventeen years of age, the financially solvent, etc.); there can even be laws, such as in Australia or Belgium, obliging citizens to turn out to vote. Then there are usually a set of rules setting down the procedures for candidate nomination (e.g. a minimum number of signatures, a deposit). The campaign process can also be subject to a number of rules: whether polling, television advertising or the use of campaign cars is permitted; the size of billboards; the location of posters; balance in broadcasting coverage, and so on.While the Bundestag of Germany uses the Niemeyer Formula, Germany actually patterns its electoral system after a generic system referred to as the German two (2)-vote system. This basic system has adopted with modification by different countries including Hungary, Italy, Japan, New Zealand and Russia.[40]
Among this panoply of electoral laws there is one set of rules which deal with the process of election itself: how citizens vote, the style of the ballot paper, the method of counting, and the final determination of who is elected. It is this aspect of electoral laws with which this book is concerned. This is the electoral system, the mechanism of determining victors and losers, which clicks into action once the campaign has ended. This is the stage where the political pundits take over from the politicians; where the television companies dust off their 'pendulums' and 'swingometers' and wheel out their latest computer graphic wizardry. Campaign slogans and electoral recriminations have ended. All attention is focused on thousands of people shuffling ballot papers in 'counting centres' throughout the country. (At least, this is the situation in Britain. In other countries, the counting and even the voting are done by computer.) Politicians, journalists and (some) voters wait with baited breath for the returning officer to announce 'the result'. TV presenters work long into the night, probing with their panelists the meaning of the results and assessing the voters' 'verdict'.
This scenario of 'election night coverage' is common to most political systems. There may be some variation in detail, but the basic theme is similar: we the voters have voted, and now we are waiting to see the result of our votes, in terms of who wins or loses and in terms of the number of seats won by each of the parties. It is the function of the electoral system to work this transformation of votes into seats. To put this in the form of a definition: electoral systems determine the means by which votes are translated into seats in the process of electing politicians into office.
Exactly how this translation occurs varies from one system to the next. In some systems great effort is made to ensure that the number of seats each party wins reflects as closely as possible the number of votes it has received. In other systems greater importance is attached to ensuring that one party has a clear majority of seats over its competitors, thereby (hopefully) increasing the prospect of strong and stable government. The first of these systems is said to be 'proportional', in contrast to the others which are 'non-proportional' electoral systems.
The basic form of this German 2-vote system is discussed by Farrell in this regard -
The German voter has two votes for the two types of MP. In the most recent 1994 election, for instance, the Bundestag had 656 MPs: 328 (50 per cent) of these were elected to represent individual constituencies, and 328 (50 per cent) were elected from the regional lists (allocated at the Land level). It is important to note that the allocation of the list seats is computed on the basis of the full Bundestag membership, i.e. as if the PR list election were the whole election. In the polling station, each voter receives a ballot paper much like the one shown in Figure 5.1, and is asked to tick two boxes: first, on the left hand side of the ballot paper for a constituency candidate, and second, on the right hand side for a regional list. The first vote is for a candidate, while the second vote is for a party.It does not come as a surprise that our party-list system resembles the basic principles of the German 2-vote system considering that Congress adopted, not the Niemeyer Formula, but the basic principles of the German-2-vote system in this jurisdiction. It is also worth noting that the first step of this electoral system is the election of two (2) representatives, one by district or land, and one by list or party-list organizations. It is also similar in the second step which requires a minimum threshold to garner seats. The third step is also similar as we deduct the obtained seat (guaranteed seat) from the total allowable seat (which is three).
x x x x
The election count proceeds in three stages. First, there are counts in each constituency to determine which candidate is elected and to work out the total number of constituency seats for each of the parties in each of the federal Lander. Just like in British elections, the candidates with most votes in each constituency are elected, regardless of whether or not they have an overall majority of the votes in the constituency, x x x
The crucial factor which separates the two-vote system from FPTP is the second vote where smaller parties have a much greater chance of winning seats, x x x
The first two stages in the counting process (i.e. the counting of first and second votes) are common to all existing two-vote systems. It is in the third and final stage that a very important distinction arises. The nature of this distinction is elaborated in section 5.3 below, for now we will examine how it works in the German case. The basic point of the German system is that it should produce a proportional result. In order to achieve this, it is important that the larger parties should not be overly advantaged by the greater ease with which they win constituency seats. Therefore the operating principle of this third stage in the German count is that the total number of constituency seats won by the parties should be subtracted from the total number of lists seats they have been allocated (and remember that the list seats are allocated at the Land level). It is for this reason that the two-vote system is generally referred to as the 'additional member' system, because the result of this subtraction determines the number of additional members to which each party is entitled[41] (emphasis supplied)
Insofar as the allocation of additional seats, Congress mandates a proportionate distribution. To determine whether the petitioners' proposal meets the required proportionality of the law, we look at different models of proportional representation, generically referred to as the PR List system. PR list systems that closely resemble our system follow the largest remainder system. The central feature of this system (referred to in the USA as the Hamilton method) is an electoral quota. The counting process occurs in two rounds. In the first round, parties with votes exceeding the quota are awarded seats, and the quota is subtracted from their total vote. In the second round, those parties left with the greatest number of votes (the 'largest remainder') are awarded the remaining seats in order of vote size.[42] This is the same system advocated by the petitioners.
In adopting this system, proportionality is achieved while at the same time avoiding the 'double counting' dilemma brought about by the BANAT Decision. Thus, we characterize the Philippine party-list system as a hybrid of the German 2-vote system and the PR list system that follows the largest remainder system. Of course, our system becomes distinct from other systems because: (1) we limit the number of party-list representatives to 20% of the House of Representatives; and (2) we impose the 3-seat cap. These characteristics make the party-list system of the Philippines unique.
D. Petitioners' proposal compared to the BANAT formula
Petitioners' model which would be the necessary result of the Court's, declaration of invalidity of the phrase "in proportion to their total number of votes" is consistent with Constitutional and Statutory directives.
First, it opens up Congress to more groups, thereby ensuring that more interests are properly represented. This includes even those interests that the marginalized sector itself failed to recognize and represent.
Second, it prevents the evil of unequal weight of votes that the BANATDecision perpetuates; and
Lastly, the proposal is still proportionate considering other similar systems around the world.
A comparative table would show how the BANAT formula differs from the petitioners' formula and the constitutional violation that the BANAT formula presents. As settled, the BANAT Decision provides:
In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed:As applied in this case, steps 1 and 2 would reveal eight (8) party-list organizations obtained one guaranteed seat each for clinching at least 2% of the votes cast or at least 557,695 votes, thus:
1. 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.
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 additional 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.
From the table above, it is clear that these 8 party-list organizations were able to qualify for a seat in Congress by obtaining more than 557,695 votes or at least 2% of the votes cast for the party-list elections. Applying steps 3 and 4 of BANAT, however, would show that the same 557,695 votes are again used to qualify the 8 party-list organizations who obtain additional seats, thus —
Rank
Party-List
Acronym
Votes Garnered
% of Total Votes
1st seat
1
Anti-Crime and Terrorism Community Involvement and Support, Inc.
ACT CIS
2,651,987
9.51
1
2
Bayan Muna
BAYAN MUNA
1,117,403
4.01
1
3
Ako Bicol Political Party
AKO BICOL
1,049,040
3.76
1
4
Citizens Battle Against Corruption
CIBAC
929,718
3.33
1
5
Alyansa ng inga Mamamayang Probinsyano
ANG PROBINSYANO
770,344
2.76
1
6
One Patriotic Coalition of Marginalized Nationals
1 PACMAN
713,969
2.56
1
7
Marino Samahan ng mga Seaman, Inc.
MARINO
681,448
2.44
1
8
Probinsyano Ako
PROBINSYANO AKO
630,435
2.26
1
Coalition of Association of Senior Citizens in the Philippines, Inc.
This is a clear instance of double counting of votes where votes already used to elect a representative via the guaranteed seat are once again, and without justifiable reason, used to elect a representative for the additional seat. A total of 557,695 votes were unjustifiably and indiscriminately credited twice to the detriment of other votes cast in favor of other party-list organizations. This violates not only the equal protection clause, but also the principle of "one person, one vote" which is a bedrock of the republican and democratic nature of the Philippine State.
Rank
Party-List
Acronym
Votes Garnered
% vis-a- viz remaining seats
Add'l Seats
1
Anti-Crime and Terrorism Community Involvement and Support, Inc.
ACT CIS
2,651,987
5.04
2
2
Bayan Muna
BAYAN MUNA
1,117,403
2.12
2
3
Ako Bicol Political Party
AKO BICOL
1,049,040
1.99
1
4
Citizens Battle Against Corruption
CIBAC
929,718
1.76
1
5
Alyansa ng mga Mamaniayang Probinsyano
ANG PROBINSYANO
770,344
1.46
1
6
One Patriotic Coalition of Marginalized Nationals
1PACMAN
713, 969
1.35
1
7
Marino Samahan ng mga Seaman, Inc.
MARINO
681,448
1.29
1
8
Probinsyano Ako
PROBINSYANO AKO
630,435
1.19
1
9
Coalition of Association of Senior Citizens in the Philippines, Inc.
SENIOR CITIZENS
516,927
0.98
1
10
Magkakasama sa Sakahan, Kaunlaran
MAGSASAKA
496,337
0.94
1
11
Association of Philippine Electric Cooperatives
APEC
480,874
0.91
1
12
Gabriela Women's Party
GABRIELA
449,440
0.85
1
13
An Waray
AN WARAY
442,090
0.84
1
14
Cooperative NATCCO Network
COOP-NATCCO
417,285
0.79
1
15
Act Teachers
ACT TEACHERS
395,327
0.75
1
16
Philippine Rural Electric Cooperatives Association, Inc.
PHILRECA
394,966
0.75
1
17
Ako Bisaya, Inc.
AKO BISAYA
394,304
0.74
1
18
Tingog Sinirangan
TINGOG SINIRANGAN
391,211
0.74
1
19
Abono
ABONO
378,204
0.71
1
20
Buhay Hayaan Yumabong
BUHAY
361,493
0.68
1
21
Duty to Energize the Republic Through the Enlightenment of the Youth
DUTERTE YOUTH
354,629
0.67
1
22
Kalinga-Advocacy for Social Empowerment and Nation Building
KALINGA
339,665
0.64
1
23
Puwersa ng Bayan ing Atleta
PBA
326,258
0.62
1
24
Alliance of Organizations, Networks, and Associations of the Philippines
ALONA
320,000
0.60
1
25
Rural Electric Consumers and Beneficiaries of Development and Advancement, Inc.
RECOBODA
318,511
0.60
26
Bagong Henerasyon
BH (BAGONG HENERASYON)
288,752
0.54
1
27
Bahay para sa Pamilyang Pilipino, Inc.
BAHAY
281,793
0.53
1
28
Construction Workers Solidarity
CWS
277, 940
0.52
1
29
Abang Lingkod, Inc.
ABANG LINGKOD
275,199
0.52
1
30
Advocacy for Teacher Empowerment through Action Cooperation and Harmony Towards Educational Reform
A TEACHER
274,460
0.52
1
31
Barangay Health Wellness
BHW
269,518
0.51
1
32
Social Amelioration and Genuine Intervention on Poverty
SAGIP
257,313
0.48
1
33
Trade Union Congress Party
TUCP
256,059
0.48
1
34
Magdalo Para Sa Pilipino
MAGDALO
253,536
0.48
1
35
Galing sa Puso Party
GP
249,484
0.47
1
36
Manila Teachers Savings and Loan Association, Inc.
MANILA TEACHERS'
249,416
0.47
1
37
Rebulosyonaryong Alyansa Makabansa
RAM
238,150J
0.45
1
38
Alagaan Natin Ating Kalusugan
ANAKALUSU GAN
237,629
0.45
1
39
Ako Padayon Pilipino
AKO PADAYON
235,112
0.44
1
40
Ang Asosayon Sang Mangunguma nga Bisaya-OWA Mangunguma, Inc.
AAMBIS- OWA
234,552
0.44
1
41
Kusug Tausug
KUSUG TAUSUG
228,224
0.43
1
42
Dumper Philippines Taxi Drivers Association, Inc.
DUMPER PTDA
223,199
0.42
1
43
Talino at Galing Pilipino
TGP
217,525
0.41
1
44
Public Safety Alliance for Transformation and Rule of Law, Inc.
PATROL
216,653
0.41
1
45
Anak Mindanao
AMIN
212,323
0.40
1
46
Agricultural Sector Alliance of the Philippines
AGAP
208,752
0.39
1
47
LPG Marketers Association, Inc.
LPGMA
208,219
0.39
1
48
OFW Family Club, Inc.
OFW Family
200,881
0.38
1
49
Kabalikat ng Mamamayan
KABAYAN
198,571
0.37
1
50
Democratic Independent Workers Association
DIWA
196,385
0.37
1
51
Kabataari Party List
KABATAAN
195,837
0.37
1
52
Aksyon Magsasaka - Partido Tinig ng Masa (AKMA-PTM)
AKMA-PTM
191,804
0.36
0
53
Serbisyo sa Bayan Party
SBP
180,535
0.34
0
54
ANGKLA: Ang Partido ng mga Pilipinong Marino, Inc.
ANGKLA
179,909
0.34
0
55
Akbayan Citizens Action Party
AKBAYAN
173,356
0.32
0
x x
x x x
x x x
x x x
x x x
x x x
27,884,790 53
In order to remove such an objectionable scenario created by the BANAT ruling, petitioner's formula is warranted as it is consistent with the guidelines provided by the framers of the Constitution and Congress. The petitioners' formula provides:
1. 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;Steps 1 and 2 of petitioners' formula are the same as BANAT. It is petitioners' step 3 where the divergence starts. Instead of proceeding to the distribution of the additional seats, step 3 requires the removal of the 2% of. the votes already considered to award the guaranteed seats from the 8 party-list organizations. The remaining difference will be re-ranked accordingly. This step removes the objectionable part of BANAT that allows double crediting of votes. Thus —
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. Subtract the two percent 2% of the votes from the percentage of the total votes garnered of the party list groups which were already allocated a guaranteed in the first round, then re-rank the groups accordingly;
4. Multiply the percentage of total votes garnered of each party, as adjusted, with the total number of remaining available seats;
5. The whole integer product shall be the party's share in the remaining available seats;
6. Assign on party-list seat to each of the parties next in rank until all available seats are completely distributed;
7. Each party, organization, or coalition shall be entitled to not more than three (3) seats.[43]
x x x x
Rank
Party-List
Acronym
Votes Garnered
%of Total Votes
1 st seat
1
Anti-Crime and Terrorism Community Involvement and Support, Inc.
ACT CIS
2,651,987
9.51
1
2
Bay an Muna
BAY AN MUNA
1,117,403
4.01
1
3
Ako Bicol Political Party
AKO BICOL
1,049,040
3.76
1
4
Citizens Battle Against Corruption
CIBAC
929,718
3.33
1
5
Alyansa ng mga Mamamayang Probinsyano
ANG PROBINSYANO
770,344
2.76
1
Party-List
Acronym
Votes Garnered
The Difference
Anti-Crime and Terrorism Community Involvement and Support, Inc.
ACT CIS
2,651,987
2,094,292
Bayan Muna
BAYAN MUNA
1,117,403
559,708
Ako Bicol Political Party
AKO BICOL
1,049,040
491,345
Citizens Battle Against Corruption
CIBAC
929,718
372,023
Alyansa ng mga Mamamayang Probinsyano
ANG PROBINSYANO
770,344
212,649
One Patriotic Coalition of Marginalized Nationals
1PACMAN
713,969
156,274
Marino Samahan ng mga Seaman, Inc.
MARINO
681,448
123,753
Probinsyano Ako
PROBINSYANO AKO
630,435
72,740
The re-ranked table applying steps 4, 5 and 6 would show:
Lastly, applying the last step, it shows that petitioners Angkla and SBP and petitioner-in-intervention AKMA-PTM, together with Akbayan, would each gain a seat while Bayan Muna, 1 PACMAN, Marino and Probinsyano Ako will lose their seats. The final tally looks -
Rank
Party-List
Acronym
Votes Garnered
%of Total Votes
Seats
1
Anti-Crime and Terrorism Community Involvement and Support, Inc.
ACT CIS
2,094,292
3.98
2
2
Bayan Muna
BAYAN MUNA
559,708
1.06
1
3
Coalition of Association of Senior Citizens in the Philippines, Inc.
SENIOR CITIZENS
516,927
0.98
1
4
Magkakasama sa Sakahan, Kaunlaran
MAGSASAKA
496,337
0.94
1
5
Ako Bicol Political Party
AKO BICOL
491,345
0.93
1
6
Association of Philippine Electric Cooperatives
APEC
480,874
0.91
1
7
Gabriela Women's Party
GABRIELA
449,440
0.85
1
8
An Waray
AN WARAY
442,090
0.84
1
9
Cooperative NATCCO Network
COOP-NATCCO
417,285
0.79
1
10
Act Teachers
ACT TEACHERS
395,327
0.75
1
11
Philippine Rural Electric Cooperatives Association, Inc.
PHILRECA
394,966
0.75
1
12
Ako Bisaya, Inc.
AKO BISAYA
394,304
0.74
1
13
Tingog Sinirangan
TINGOG SINIRANGAN
391,211
0.74
1
14
Abono
ABONO
378,204
0.71
1
15
Citizens Battle Against Corruption
CIBAC
372,023
0.70
1
16
Buhay Hayaan Yumabong
BUHAY
361,493
0.68
1
17
Duty to Energize the Republic Through the Enlightenment of the Youth
DUTERTE YOUTH
354,629
0.67
1
18
Kalinga-Advocacy for Social Empowerment and Nation Building
KALINGA
339,665
0.64
1
19
Puwersa ng Bayaning Atleta
PBA
326,258
0.62
1
20
Alliance of Organizations, Networks, and Associations of the Philippines
ALONA
320,000
0.60
1
21
Rural Electric Consumers and Beneficiaries of Development and Advancement, Inc.
RECOBODA
318,511
0.60
1
22
Bagong Henerasyon
BH (BAGONG HENERASYON)
288,752
0.54
1
23
Bahay para sa Pamilyang Pilipino, Inc.
BAHAY
281,793
0.53
1
24
Construction Workers Solidarity
CWS
277,940
0.52
1
25
Abang Lingkod, Inc.
ABANG LINGKOD
275,199
0.52
1
26
Advocacy for Teacher Empowerment through Action Cooperation and Harmony Towards Educational Reform
A TEACHER
274,460
0.52
1
27
Barangay Health Wellness
BHW
269,518
0.51
1
28
Social Amelioration and Genuine Intervention on Poverty
SAGIP
257,313
0.48
1
29
Trade Union Congress Party
TUCP
256,059
0.48
1
30
Magdalo Para Sa Pilipino
MAGDALO
253,536
0.48
1
31
Galing sa Puso Party
GP
249,484
0.47
1
32
Manila Teachers Savings and Loan Association, Inc.
MANILA TEACHERS
249,416
0.47
1
33
Rebulosyonaryong Alyansa Makabansa
RAM
238,150
0.45
1
34
Alagaan Natin Ating Kalusugan
ANAKALUSUGAN
237,629
0.45
1
35
Ako Padayon Pilipino
AKO PADAYON
235,112
0.44
1
36
Ang Asosayon Sang Mangunguma nga Bisaya-OWA Mangunguma, Inc.
AAMBIS-OWA
234,552
0.44
1
37
Kusug Tausug
KUSUG TAUSUG
228,224
0.43
1
38
Dumper Philippines Taxi Drivers Association, Inc.
DUMPER PTDA
223,199
0.42
1
39
Talino at Galing Pilipino
TGP
217,525
0.41
1
40
Public Safety Alliance for Transformation and Rule of Law
PATROL
216,653
0.41
1
41
Alyansa ng mga Mamamayang Probinsyano
ANG PROBINSYANO
212,649
0.40
1
42
Anak Mindanao
AMIN
212,323
0.40
1
43
Agricultural Sector Alliance of the Philippines
AGAP
208,752
0.39
1
44
LPG Marketers Association, Inc.
LPGMA
208,219
0.39
1
45
OFW Family Club, Inc.
OFW Family
200,881
0.38
1
46
Kabalikat ng Mamamayan
KABAYAN
198,571
0.37
1
47
Democratic Independent Workers Association
DIWA
196,385
0.37
1
48
Kabataan Party List
KABATAAN
195,837
0.37
1
49
Aksyon Magsasaka-Partido Tinig ng Masa [AKMA-PTM]
AKMA-PTM
191,804
0.36
1
50
Serbisyo sa Bayan Party
SBP
180,535
0.34
1
51
ANGKLA: Ang Partido ng mga Pilipinong Marino, Inc.
ANGKLA
179,909
0.34
1
52
Akbayan Citizens Action Party
AKBAYAN
173,356
0.32
1
x
xxx
xxx
xxx
xx
x
One Patriotic Coalition of Marginalized Nationals
1 PACMAN
156,001
0.29
0
Marino Samahan ng mga Seaman, Inc.
MARINO
123,753
0.23
0
Probinsyano Ako
PROBINSYANO AKO
72,740
0.13
0
It does not escape my attention that petitioners' formula and the Court's approval of the same would result in the ouster of incumbent members of the House of Representatives without due proceedings conducted by the House of Representatives Electoral Tribunal. However, removal of incumbent members through procedures other than through the HRET have been recognized in the past. In Dimaporo v. Hon. Mitra[44] the Court recognized several ways on how incumbent members of the Congress may be removed from their seat or their term considerably shortened, thus:
Party-List
Acronym
Seats
Anti-Crime and Terrorism Community Involvement and Support, Inc.
ACT CIS
Bayan Muna
BAYAN MUNA
Ako Bicol Political Party
AKO BICOL
Citizens Battle Against Corruption
CIBAC
Alyansa ng mga Mamamayang Probinsyano
ANG PROBINSYANO
One Patriotic Coalition of Marginalized Nationals
1 PACMAN
Marino Samahan ng mga Seaman, Inc.
MARINO
Probinsyano Ako
PROBINSYANO AKO
Coalition of Association of Senior Citizens in the Philippines, Inc.
SENIOR CITIZENS
Magkakasama sa Sakahan, Kaunlaran
MAGSASAKA
Association of Philippines Electric Cooperatives
APEC
Gabriela Women's Party
GABRIELA
An Waray
AN WARAY
Cooperative NATCCO Network
COOP-NATCCO
Act Teachers
ACT TEACHERS
Philippine Rural Electric Cooperatives Association, Inc.
PHILRECA
Ako Bisaya, Inc.
AKO BISAYA
Tingog Sinirangan
TINGOG SINIRANGAN
Abono
ABONO
Buhay Hayaan Yumabong
BUHAY
Duty to Energize the Republic Through the Enlightenment of the Youth
DUTERTE YOUTH
Kalinga-Advocacy for Social Empowerment and Nation Building
KALINGA
Puwersa ng Bayaning Atleta
PBA
Alliance of Organizations, Networks, and Associations of the Philippines
ALONA
Rural Electric Consumers and Beneficiaries of Development and Advancement, Inc.
RECOBODA
Bagong Henerasyon
BH (BAGONG HENERASYON)
Bahay para sa Pamilyang Pilipino, Inc.
BAHAY
Construction Workers Solidarity
CWS
Abang Lingkod, Inc.
ABANG LINGKOD
Advocacy for Teacher Empowerment through Action Cooperation and Harmony Towards Educational Reform
A TEACHER
Barangay Health Wellness
BHW
Social Amelioration and Genuine Intervention on Poverty
SAGIP
Trade Union Congress Party
TUCP
Magdalo Para Sa Pilipino
MAGDALO
Galing sa Puso Party
GP
Manila Teachers Savings and Loan Association, Inc.
MANILA TEACHERS'
Rebulosyonaryong Alyansa Makabansa
RAM
Alagaan Natin Ating Kalusugan
ANAKALUSUGAN
Ako Padayon Pilipino
AKO PADAYON
Ang Asosasyon Sang Mangunguma nga Bisaya-OWA Mangunguma, Inc.
AAMBIS-OWA
Kusug Tausug
KUSUG TAUSUG
Dumper Philippines Taxi Drivers Association, Inc.
DUMPER PTDA
Talino at Galing ng Pinoy
TGP
Public Safety Alliance for Transformation and Rule of Law, Inc.
PATROL
Anak Mindanao
AMIN
Agricultural Sector Alliance of the Philippines
AGAP
LPG Marketers Association, Inc.
LPGMA
OFW Family Club, Inc.
OFW Family
Kabalikat ng Mamamayan Democratic Independent Workers Association Kabataan Party List Aksyon Magsasaka-Partido Tinig ng Masa [AKMA- PTM] Serbisyo sa Bayan Party ANGKLA: Ang Partido ng mga Pilipinong Marino, Inc. Akbayan Citizens Action Party
That the ground cited in Section 67, Article IX of B.P. Big. 881 is not mentioned in the Constitution itself as a mode of shortening the tenure of office of members of Congress, does not preclude its application to present members of Congress. Section 2 of Article XI provides that "(t)he President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.,["] Such constitutional expression clearly recognizes that the four (4) grounds found in Article VI of the Constitution by which the tenure of a Congressman may be shortened are not exclusive. As held in the case of Stale ex rel. Berge vs. Lansing, the expression in the constitution of the circumstances which shall bring about a vacancy does not necessarily exclude all others. Neither does it preclude the legislature from prescribing other grounds. Events so enumerated in the constitution or statutes are merely conditions the occurrence of any one of which the office shall become vacant not as a penalty but simply as the legal effect of any one of the events. And would it not be preposterous to say that a congressman cannot die and cut his tenure because death is not one of the grounds provided for in the Constitution? The framers of our fundamental law never intended such absurdity, (citations omitted)Be that as it may, as petitioners' formula would drastically change the membership of Congress and might derail Congressional agenda at the time of a global health pandemic, I am of the opinion that the application of this formula be made prospectively.
I am well aware that, if ever, this will be the third fine-tuning of the formula for the allocation of party-list seats. There is nothing wrong with this. As long as we live in a vibrant democracy, we must continue to perfect our democratic system.
As stated in the main opinion, it is quite unfortunate that the Court was unable to muster enough votes to either affirm or reject the BANAT formula. While a stand-still is a less than desirable result for the Court, it becomes an opportunity for the Honorable members of Congress to fme-tune R.A. No. 7941, now with the benefit of the collective wisdom of the Court from Veterans to BANAT to Angkla.
I vote to GRANT the petition; SET ASIDE COMELEC Resolution dated May 22, 2019 in NBC No. 004-19; and DECLARE the phrase "in proportion to their total number of votes" found in Section 1 l(b) of Republic Act No. 7941 as UNCONSTITUTIONAL. The formula discussed above should take effect PROSPECTIVELY.
Let a copy of this Opinion be furnished the President of the Senate and the Speaker of the House of Representatives for their information and guidance.
[1] 604 Phil. 131 (2009).
[2] Rollo, pp. 144-150.
[3] Rollo, pp. 118-120.
[4] Id. at 132-133.
[5] G.R. No. 224846, February 4, 2020.
[6] 760 Phil. 562(2015).
[7] 396 Phil. 419(2000).
[8] Samahan ng mgq Progresibong Kabataan v. Quezon City, 815 Phil. 1067, 1089-1090 (2017).
[9] Atty. Lozano v. Speaker Nograles, 607 Phil. 334, 340 (2009).
[10] 65 Phil. 56(1937).
[11] Id. at 88-89.
[12] 476 Phil. 106(2004).
[13] BGen. Comendador v. Gen. de Villa, 277 Phil. 93, 116 (1991).
[14] San Miguel Brewery, Inc., v. Magno, 128 Phil. 328, 334 (1967).
[15] Philippine National Bank v. Palma, 503 Phil. 917, 934 (2005).
[16] La Bugal-B'laan Tribal Association, Inc. v. Ramos, 465 Phil. 860, 893 (2004).
[17] 412 Phil. 308(2001).
[18] 707 Phil. 454(2013).
[19] 629 Phil. 629(2010).
[20] 358 Phil. 896(1998).
[21] Supra note 19 at 693-694.
[22] G.R. No. 206438, July 31, 2018, 875 SCRA 374, 435-436.
[23] 723 Phil. 444(2013).
[24] The Provincial Bus Operators Association of the Philippines v. Department of Labor and Employment, G.R. No. 202275, July 17,2018.
[25] 651 Phil. 374,458-461 (2010).
[26] Records of the Constitutional Commission No. 086, September 18, 1 986.
[27] 631 Phil. 595(2010).
[28] Id. at 637-638.
[29] See draft ponencia as of June 2, 2020, p. 22: "In the exercise of this prerogative, Congress modified the weight of votes cast under the party list system with reason. "
[30] See Opinion of Justice Javier, as of June 2, 2020, p. 21.
[31] 487 Phil. 531 (2004).
[32] Id. at 562-563.
[33] Records of the Constitutional Commission, No. 096, September 30, 1986.
[34] Records of the Constitutional Commission No. 039, July 25, 1986.
[35] Id.
[36] See Records of the Constitutional Commission No. 039, supra note 34.
[37] Records of the Constitutional Commission No. 036, July 22, 1986.
[38] See Veterans Federation Party v. COMELEC, 396 Phil. 419, 440 (2000).
[39] Farrell, David M. Comparing Electoral Systems, MacMillan Press, Ltd., London, 1997, pp. 3-5.
[40] Id. at 86-87.
[41] Id. at 89-93.
[42] Id. at 62.
[43] Petition, p. 27.
[44] 279 Phil. 843, 857-858 (1991).
ZALAMEDA,.J.:
If ever there is a hierarchy of protected expressions, political expression would occupy the highest rank, and among different kinds of political expression, the subject of fair and honest elections would be at the top.[1]
- Senior Associate Justice Antonio T. Carpio
In this amended Petition for Certiorari and Prohibition, petitioners Angkla: Ang Partido ng mga Marinong Pilipino (Angkla) and Serbisyo sa Bayan Party (SBP), together with petitioner-in-intervention, Aksyon Magsasaka - Tinig Partido ng Masa (AKMA-PTM), assail Resolution No. 004-19 issued by respondent Commission on Elections (COMELEC), acting as the National Board of Canvassers (NBOC). They argue that said Resolution was issued with grave abuse of discretion amounting to lack or excess of jurisdiction for blatantly violating the procedure introduced by the Court in its Resolution in BANAT v. COMELEC (BANAT Resolution),[2] the equal protection clause, and the principle of "one voter, one party-list vote."[3]
Corollary to this, petitioners assail the constitutionality of Section 11 (b) of Republic Act No. (RA) 7941,[4] or the Party-List System Act, providing for the double counting of votes in the allocation of additional seats:
Section 11. Number of Party-List Representatives. - x x xNBOC Resolution No. 004-19, issued on 22 May 2019, proclaimed the party-list groups who won in the 13 May 2019 elections. On the basis of the tabulated Party List Canvass Report No. 8,[5] the COMELEC, sitting en bane as NBOC, applied the formula adopted in BANAT v. COMELEC[6] (BANAT Decision) in the allocation of the 61 party-list seats. As a result, only 51 party-list groups were allocated seats leaving petitioners, being among those ranked lower, without a party-list seat.
(b) 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 seat each: Provided, 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: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats.
Petitioners insist, that the allocation of additional seats in proportion to a party's total number of votes results in the double counting of votes in favor of the two percenters, which violates the equal protection clause. Petitioners claim that, consistent with the BANAT Resolution, the 2% votes counted in the first round should first be excluded or deducted from the total votes of the two percenters before proceeding to the second round of seat allocation. According to petitioner's interpretation of the BANAT Resolution, the correct formula should be:
1. 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.The party-list system is enshrined in the 1987 Constitution, which mandates that 20% of the total membership of the House of Representatives is reserved for party-list representatives. Paragraphs 1 and 2 of Article VI, Section 5, of the Constitution read:
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. Votes amounting to two percent (2%) of the total votes cast for the party-list system should be deducted from the total votes of the party-list entitled to guaranteed seats.
4. The parties, organizations, and coalitions, shall then be re-ranked from highest to the lowest based on the recomputed number of votes after deducting the two percent (2%) stated in paragraph 3.
5. The remaining party-list seats ("additional seats") shall then be distributed in proportion to the recomputed number of votes in paragraph 3 until all the additional seats are allocated.
6. Each party, organization, or coalition shall be entitled to not more than three (3) seats.[7]
SECTION 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 inhabitants, 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, regional, and sectoral parties or organizations.Although the party-list system is provided in the Constitution, an enabling law had to be passed to implement this provision. Congress was vested with the duty to define and prescribe the mechanics for the party-list system. Thus, in 1995, Congress enacted RA 7941. Sections 11 and 12 thereof provide:
(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 communities, women, youth, and such other sectors as may be provided by law, except the religious sector. (Emphasis supplied)
Section 11. Number of Party-List Representatives. — The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list.The party-list system is a mechanism for proportional representation in the election of representatives in the House of Representatives from national, regional, and sectoral parties or organizations of coalitions thereof registered with the COMELEC.[8] In Ang Bagong Bayani-OFW v. COMELEC,[9] the Court explained the nature of the Philippine party-list system:
For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system.
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 receiving 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 proportion to 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 nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system. (Emphasis supplied.)
The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends to make the marginalized and the underrepresented not merely passive recipients of the State's benevolence, but active participants in the mainstream of representative democracy. Thus, allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in party-list, elections would desecrate this lofty objective and niongrelize the social justice mechanism into an atrocious veneer for traditional politics.Under Section 18 of RA-7941,[10] the COMELEC is mandated to promulgate the necessary rules and regulations to carry out the purposes of the Act. On 25 June 1996, the COMELEC en banc promulgated Resolution No. 2847, prescribing the "Rules and Regulations Governing the Election of Party-List Representatives Through the Party-List System." Under these rules and regulations, the seats are allocated at the rate of one seat per 2% of votes obtained, provided that each party shall be entitled to not more than three seats. Further, only those who have mustered at least 2% of the total votes cast for the party-list are allocated seats for party-list representative.[11] This formula is illustrated in Annex "A'"1 of Resolution No. 2847.
In the BANAT Decision,[12] the Court held that the 2% threshold in relation to the distribution of the additional seats as found in the second clause of Section 11 (b) of RA 7941 is unconstitutional. The Court explained:
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.Further, the Court adopted the following procedure in determining the allocation of seats for party-list representatives under Section 11 of RA 7941:
x x x x
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." (Emphasis supplied)
1.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.The Court ruled in the BANAT Decision that the 2% threshold is only void in relation to the distribution of the additional seats as this would frustrate the permissive ceiling of 20% constitution of party-list membership in the House of Representatives. The Court averred that the allocation of additional seats to party-list organizations is still in proportion to their total number of votes.
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 additional 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.
xxx There are two steps in the second round of seat allocation. First, the percentage is multiplied 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 corresponds to a parry's share in the remaining available seats. Second, we assign one party-list seat to each of the parties 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.[13] (Emphasis supplied)
In the subsequent BANAT Resolution, the Court made some clarifications in view of the reduction of the number of legislative districts,[14] which resulted in a corresponding change in the number of party-list seats from 55 to 54. The Court likewise ruled on the motion for partial reconsideration-in-intervention of Armi Jane Roa-Borje, the third nominee of Citizen's Battle Against Corruption (CIBAC). The Court held:
To address Roa-Borje's motion for partial reconsideration-in-intervention and for purposes of computing the results in future party-list elections, we reiterate that in the second step of the second round of seat allocation, the preference in the distribution of seats should be in accordance with the higher percentage and higher rank, without limiting the distribution to parties receiving two-percent of the votes. To limit the distribution of seats to the two-percenters would mathematically prevent the filling up of all the available party-list seats.Petitioners claim that this subsequent ruling of the Court in BANAT prohibited the "reusage or double counting of votes in the allocation of additional party-list seats."[16] In line with this ruling, petitioners maintain that the 2% votes counted in the first round should first be excluded or deducted from the total votes of the two percenters before proceeding to the second round of seat allocation.
In the table above, CIBAC cannot claim a third seat from the seat allocated to TUCR, the last ranked party allocated with a scat. CIBAC's 2.81% (from the percentage of 4.81% less the 2% for its guaranteed seat) has a lower fractional seat value after the allocation of its second seat compared to TUCP's 1.03%. CIBAC's fractional seat after receiving two seats is only 0.03 compared to TUCP's 0.38 fractional seat. Multiplying CIBAC's 2.81% by 37, the additional seats for distribution in the second round, gives 1.03 seat, ieaving 0.03 fractional scat. Multiplying TUCP's 1.03% by 37 gives a fractional seat of 0.38, higher than CIBAC's fractional seat of 0.03. The fractional scats become material only in the second step of the second round of seat allocation to determine the ranking of parties. Thus, for purposes of the second step in the second round of seal allocation, TUCP has a higher rank than CIBAC.[15] (Emphasis supplied)
The statement of the Court in the BANAT Resolution regarding the allocation of additional seats is indeed confusing. In computing CIBAC's fractional seat after receiving two seats, the Court multiplied CIBAC's 2.81% (from the percentage of 4.81% less the 2% for its guaranteed seat) by 37, the additional seats for distribution in the second round, resulting in 1.03 seat, leaving a .03 fractional seat, which is lower than TUCP's .38 fractional seat. It would thus appear that the Court deducted the 2%, representing the guaranteed seat allocation, from the total percentage of votes of the two percenters (specifically CIBAC, in this case) before allocating the additional seats. However, the Court went on to clarify that the fractional seats become material only in the second step of the second round of seat allocation to determine the ranking of parties.
A scrutiny of the BANAT Resolution reveals that the Court still maintained its formula in allocating the party-list seats as enunciated in the BANAT Decision. This is clear from the tabulation made by the Court, modifying the COMELEC's computation in NBC No. 09-001. The formula for allocating seats remained the same except that the multiplier for the allocation of additional seats was reduced to 36 (the difference between 54, the number of available party-list seats, and 18, the number of guaranteed seats). In computing for additional seats, the Court still used the percentage of votes garnered over the total votes for party list without deducting the 2% votes already allotted in the first round for guaranteed seats, contrary to petitioners' interpretation. In short, the allocation of additional seats to party-list organizations is still in proportion to their total number of votes, without deducting the 2% votes already allotted for their guaranteed seats.
In the BANAT Resolution,[17] the Court reiterated that "[t]here are two steps in the second round of seat allocation. First, the percentage is multiplied by the remaining available seats, which is the difference between the maximum seats reserved under the Party-List System and the guaranteed seats of the two-percenters. The whole integer of the product of' the percentage and of the remaining available seats corresponds to a, party's share in the remaining available seats. Second, we assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 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."[18]
Applying the two steps in the second round of seat allocation, the Court, in the first step, multiplied CIBAC's 4.81% by 37 and got 1.73, which corresponds to CIBAC's one (1) additional seat since fractional seats are disregarded. It should be stressed that in this first step of the second round of seat allocation, the Court still used the percentage of votes garnered over the total votes for party list without deducting the 2% votes already allotted in the first round for guaranteed seats, which in CIBAC's case is 4.81%. However, in the second step of the second round, the Court did not consider CIBAC's fractional seat of 0.73 (the fractional remainder from 1.73 after the allocation of 1 additional seat to CIBAC), which would have entitled CIBAC to an additional seat. Instead, in the second step of the second round of seat allocation, wherein the preference in the distribution is in accordance with the higher percentage and higher rank without limiting the distribution of seats to the two percenters, it appears that the Court had a separate equation for the two percenters when it deducted the 2% guaranteed seat from the percentage of votes of the two percenters.
In determining the ranking of parties in the second step of the second round of seat allocation, the Court multiplied CIBAC's 2.81% (from the percentage of 4.81% less the 2% for its guaranteed seat) by 37, the additional seats for distribution in the second round, resulting in 1.03 seat, leaving a 0.03 fractional seat which is lower than TUCP's 0.38 fractional seat. Thus, in this second step of the second round of seat allocation, CIBAC cannot claim a third seat since TUCP, the last ranked party allocated with a seat, has a higher rank than CIBAC.
To clarify, in the first step of the second round of seat allocation, the allocation of additional seats to the two percenters is still in proportion to their total number of votes, without deducting the 2% votes already allotted for their guaranteed seats. It is only in the second step of the second round of seat allocation, wherein the preference in the distribution is in accordance with the higher percentage and higher rank without limiting the distribution of seats to the two percenters, that the 2% guaranteed seat is deducted from the percentage of votes of the two percenters to compute its fractional seat in order to determine its ranking for additional seat allocation.
It is therefore erroneous for petitioners to insist that the BANAT Resolution excluded the 2% votes counted in the first round from the total votes of the two percenters before proceeding to the second round of seat allocation. Nonetheless, I agree with petitioners that the non-exclusion of the 2% guaranteed votes in the allocation of additional seats results to double counting of votes, which violates the equal protection clause.
Petitioners next argue that the last paragraph of Section 11 of RA 7941, which entitles parties to additional seats "in proportion to their total number of votes," is unconstitutional. I agree. This provision violates the equal protection clause for allowing the 2% already allotted for a guaranteed seat to be re-used and re-counted in the allocation of additional seats. I submit that this clause perpetuates the double counting of votes which is anathema to the "one person, one vote" rule rooted in the Equal Protection Clause.
One of the basic tenets of democracy is that each person has one vote. The principle of "one person, one vote" or equality in voting power is the essence of our democracy and is inherent in proportional representation.[19]
All votes are equal and should carry the same weight. In every conduct of elections, the government must ensure that each and every vote cast should have equal voting power. Otherwise, the equal protection of laws, as guaranteed under our Constitution, finds no application.
Indeed, to consider the 2% votes representing the guaranteed seats again would logically grant these votes more weight and influence as compared to other votes in support of those party-list organizations that did not garner at least 2% (the non-two percenters). This assigns undue preference to those party-list organizations who obtained at least 2% of the total number of votes (the two percenters); not only making it easier for the two percenters to get additional seats, but making it more difficult for the non-two percenters to obtain a single seat. The principle of "one person, one vote" ensures that a voter's constitutional right to vote in elections is not wrongfully denied or diluted. The double counting of votes for the two percenters would effectively dilute the weight of the votes for the non-two percenters, and is inconsistent with the voters' constitutional right to an equally weighted vote.
We must fiercely guard against the unconstitutional double counting of votes. To this end, I propose that the COMELEC's formula, as provided in the implementing rules and regulations of RA 7941[20] and explained further in the primer on the party-list system of representation, be utilized-but with some modification.
The COMELEC's formula adheres to the 3-seat cap and emphasizes the preference for the two percenters, which is consistent with RA 7941. However, the COMELEC's formula needs to be modified as regards limiting the allocation of seats only to the two percenters since this would negate the 20% allocation of party-list membership in the House of Representatives provided under Article VI, Section 5 of the Constitution. The Court in BANATv. COMELEC, [21] already held the 2% threshold as void in relation to the distribution of the additional seats as this would frustrate the permissive ceiling of 20% constitution of party-list membership in the House of Representatives. Thus, I present the following procedure in the allocation of seats in the party-list system:
1. Rank the parties, organizations, and coalitions from the highest to the lowest based on the number of votes they garnered during the elections.This suggested procedure is similar to the COMELEC's formula as provided in the implementing rules and regulations and the primer on RA 7941. However, under the COMELEC's formula, only those parties which have received at least 2% of the total votes cast for the party-list system were entitled to party-list seats.
2. Compute the percentage of votes garnered by the parties, organizations, and coalitions over the total votes cast for the party-list system to distinguish the two percenters and the non- two percenters.
Example:Two Percenters:3. Determine the number of seats allocated for the two percenters. That is, one seat shall be allotted for every 2% garnered, provided that the total seats allocated per parties, organizations, and coalitions should not exceed 3 seats.
Party A = 9%
Party B = 5.8%
Party C = 3.2%
Party D = 2.1%
Non- Two Percenters:
Party E = 1.9%
arty F= 1.85%
arty G= 1.7%
Party H = 1.5%
Party I = 1.1%
Party J = 0.9%
Party K= 0.6%
In the example, the two percenters shall have one (1) seat per 2% of votes obtained:Party A (9%) = 3 seats* [2% x 3 = 6%]*not 4 seats because of the 3-seat cap
Party B (5.8%) = 2 seats [2% x 2 =4%]
Party C (3.2%) = 1 seat [2% x 1 = 2%]
Party D (2.1%) = 1 seat [2% x 1 = 2%]
4. Compute the percentage not consumed (variance) in the allocation of seats for the two percenters by subtracting the percentage consumed in allocating the seats (Step #3) from the percentage of votes (Step #2). Disregard those that have already obtained the maximum 3-seat allocation.
Computing the percentage not consumed (or variance) by
the two percenters in the example:Party A = exempted since already obtained the maximum 3 seats allowed.
Party B - 5.8% - 4% - 1.8%
Party C = 3.1%-2% = 1.2%
Party D = 2.1 % - 2% = 0.1 %
5. Re-rank the parties, organizations, and coalitions from highest to lowest based on the percentage not consumed for the two percenters and on the percentage of votes for the non-two percenters. Again, disregard the two percenters that have already obtained the maximum 3-seat allocation.
In the example, the new ranking for allocating the remaining seats will be:
(Non-Two Percenters: Party E = 1.9%; Party F = 1.85%; Party G = 1.7%; Party H - 1.5%; Party 1=1.1%; Party J = 0.9%; ' Party K = 0.6%)
1-Party E (1.9%)
2- Party F (1.85%)
3 - Party B (1.8%)
4-Party G (1.7%)
5- Party H (1.5%)
6 - Party C (1.2%)
7-Party I (1.1%)
8 - Party J (0.9%)
9 - Party K (0.6%)
10-Party D (0.1%)
In this new ranking for the allocation of the remaining seats, the two percenters that have not attained the maximum 3 seats are still included. However, only the percentage not consumed is considered (see Step #4). The percentage representing the seats already allocated (2% for 1 seat and 4% for 2 seats) is deducted from the original percentage of the two percenters so that there will be no double counting of votes.
6. the remaining party-list seats shall be distributed by assigning one party-list seat to the re-ranked, parties, organizations, and coalitions, starting from the highest ranked until all available seats are completely distributed.
In my suggested formula, after the two percenters are allocated seats, i.e., one seat per 2% of votes obtained, but not to exceed 3 seats, the variance in excess of 2% or 4% (equivalent to 1 or 2 seats that have already been obtained, respectively) shall be computed and accordingly ranked together with the percentage of the non-two percenters. This new ranking based on the percentage not consumed for the two percenters (percentage of votes less the percentage consumed on the allocated seats) and on the percentage of votes for the non-two percenters (since they were not yet allocated any seats for not having reached the 2% threshold) shall be the basis for allocating the remaining seats until all available seats are distributed.
Applying this formula in the distribution of available party-list seats, where the total number of votes under the party-list system is 27,884,790 and the number of seats reserved for the party-list representatives is 61:
In adopting the above procedure, I truly believe that proportionality is achieved without the unconstitutional "double votes," thus allowing the broadest possible representation of interests in the party-list system by enhancing their chances to compete for and win seats in the House of Representatives.[22]
A
B
C
D
E
F
G
I-I
1
J
R
Party/
Number
Percentage
Number of
Percentage
Variance
New
Addit
Total
a
Organization/
of Votes
(%) of
Seats
Consumed
Rank
ional
Seats
n
Coalition
Garnered
Votes
Allocated
For
Seats
k
for the
Additional
Two
Seats
Percenters
|Ex2%l
[D-F|
[17+11
[C/Total
[Based on
Number of
[1 seat for
the
Votes
every 2%;
Variance
Under
Maximum
(G) for the
Party-List]
of 3 seats]
Two
Percenters
and
Percentage
of Votes
(D) for the
non-Two
Percenters]
1
ACT-CIS
2,651,987
9.5105
3
3
BAYAN
2
MUNA
1,117,403
4.0072
2
4
0.0072
2
3
AKO B1COL
1,049,040
3.7621
1
2
1.7621
3
1
2
4
CIBAC
929,718
3.3341
1
2
1.3341
13
1
2
ANG
PROBIN-
5
SYANO
770,344
2.7626
1
2
0.7626
39
1
2
6
1PACMAN
713,969
2.5604
1
2
0.5604
1
7
MARINO
681,448
2.4438
1
2
0.4438
1
8
PROBIN- SIYANO AKO
630,435
2.2609
1
2
0.2609
1
9
SENIOR CITIZENS
516,927
1.8538
1
1
1
10
MAGSA- SAKA
496,337
1.7800
2
1
1
11
APEC
480,874
1.7245
4
1
1
12
GABRIELA
449,440
1.6118
5
1
1
13
AN WARAY
442,090
1.5854
6
1
1
14
COOP NATCCO
417,285
1.4965
7
1
1
15
ACT TEACHERS
395,327
1.4177
8
1
1
16
PHILRECA
394,966
1.4164
9
1
1
17
AKO BISAYA
394,304
1.4140
10
1
1
18
TINGOG SINIRA-
NGAN
391,211
1.4030
11
1
1
19
ABONO
378,204
1.3563
12
1
1
20
BUHAY
361,493
1.2964
14
1
1
21
DUTERTE YOUTH
354,639
1.2718
15
1
1
22
KALINGA
339,665
1.2181
16
1
1
23
PBA
326,258
1.1700
17
1
1
24
ALONA
320,000
1.1476
18
1
t
25
RECO- BODA
318,511
1.1422
19
1
1
26
BH
288,752
1.0355
20
1
1
27
BAHAY
281,793
1.0106
21
1
1
28
CWS
277,940
0.9967
22
1
1
29
ABANG LINGKOD
275,199
0.9869
23
1
1
30
A TEACHER
274,460
0.9843
24
1
1
31
BHW
269,518
0.9665
25
1
1
32
SAGIP
257,313
0.9228
26
1
1
33
TUCP
256,059
0.9183
27
1
1
34
MAGDALO
253,536
0.9092
28
1
1
35
GP
249,484
0.8947
29
1
1
36
MANILA TEACHERS
249,416
0.8945
30
1
1
37
RAM
238.150
0.8540
31
1
1
38
ANAK- RALU- SUGAN
237,629
0.8522
32
1
1
39
AKO PADAYON
235.112
0.8432
33
1
1
40
AAMBIS OOWA
234,552
0.8411
34
1
1
41
KUSUG TAUSUG
228,224
0.8185
35
1
1
42
DUMPER PTDA
223,199
0.8004
36
43
TGP
217,525
0.7801
37
44
PATROL
216,653
0.7770
38
45
AM IN
212,323
0.7614
40
46
AGAP
208,752
0.7486
41
47
LPGMA
208,219
0.7467
42
48
OFW FAMILY
200,881
0.7204
43
49
KABAYAN
198,571
0.7121
44
50
DIWA
196,385
0.7043
45
51
KABA- TAAN
195,837
0.7023
46
1
1
52
AKMA-PTM
191,804
0.6878
47
1
1
53
SBP
180,535
0.6474
48
1
1
54
ANGKLA
179,909
0.6452
49
1
1
55
AKBAYaN
173,356
0.6217
50
1
1
56
WOW PILIPINAS
172,080
0.6171
51
TOTAL
11
50
61
Accordingly, I vote to GRANT the present Petitions and to:
- DECLARE the phrase "in proportion to their total number of votes" in Section 11(b) of RA 7941 as UNCONSTITUTIONAL;
- DECLARE the COMELEC Resolution NBOC No. 004-19 dated 22 May 2019 as INVALID insofar as the party-list seats erroneously proclaimed, in accordance with the revised procedure set herein; and
- ORDER the COMELEC to reconvene and hear all the relevant parties, properly allocate the seats under the party-list system, and after which, issue a new NBOC resolution proclaiming the winning party-list organizations based on the revised procedure.
[1] Associate Justice Antonio T. Carpio's Separate Opinion in Chavez v. Gonzalez, 569 Phil. 155 (2008). Emphasis supplied.
[2] G.R. Nos. 179271 and 179295 (Resolution), 08 July 2009; 609 Phil. 751 (2009).
[3] Amended Petition, pp. 2-3.
[4] An Act Providing for the Election of Party-Lisl Representatives Through the Party-List System, and Appropriating Funds Therefor.
[5] Rollo, pp. 148-150.
[6] G.R. Nos. 179271 & 179295, 21 April 2009; 604 Phil. 131 (2009).
[7] Rollo, p. 133.
[8] Section 3 of RA 7941.
[9] G.R.Nos. 1457589 & 147613, 26 June 2001; 412 Phil. 308(2001).
[10] Section 18. Rules and Regulations. - The COMELEC shall promulgate the necessary rules and regulations as may be necessary to cany out the purposes of this Act.
[11] The COMELEC's "Primer on the Party-List System of Representation in the House of Representatives" provides the following procedure in the allocation of party-list seats:
The variance of percentage m excess of 2% or 4% (equivalent to 1 or 2 seats that have already been obtained, respectively) shall be ranked ami be the basis for allocating the remaining seats.
- The parlies shall be ranked from highest to lowest based on the number and percentage of votes garnered during the elections;
- Only a maximum of three seats may be allowed per party. Seats are allocated ai the rate of one seat per 2% of votes obtained; and
- Unallocated seats shyil be distributed among the parties which have not yel obtained the maximum 3 seats, provided Lhey have mustered at least 2% of votes.
[12] Supra note 6.
[13] Id.
[14] The number of legislative districts was reduced to 219 following the Court's ruling in Sema v. COMELEC [G.R. Nos. 177597 & 178628, 16 July 2008J, declaring void the creation of the Province of Sharif Kabunsuan.
[15] Supra note 2.
[16] Rollo, p. 108.
[17] The BANAT Resolution summarized the four parameters in a Philippine-style party-list election system as follows:
1 Twenty percent of the total number of the membership of the House of Representatives is the maximum number of seats available to party-list organizations, such that there is automatically one party-list seat for every four existing legislative districts.
2. Garnering two percent of the total votes cast in the party-list elections guarantees a party-list organization one seat. The guaranteed seats shall be distributed in a first round of seat allocation to parties receiving at least two percent of the total party-list votes.
3. The additional seats, that is, the remaining seats after allocation of the guaranteed seats, shall be distributed to the party-list organizations including those that received less than two percent of the total votes. The continued operation of the two percent threshold as it applies to the allocation of the additional seats is now unconstitutional because this threshold mathematically and physically prevents the filling up of the available party-list seats. The additional seats shall be distributed to the parties in a second round of seat allocation according to the two-step procedure laid down in the Decision of 21 April 2009 as clarified in this Resolution.
4. The three-seat cap is constitutional. The three-seat cap is intended by the Legislature to prevent any party from dominating the party-list system. There is no violation of the Constitution because the 1987 Constitution does not require absolute proportionality for the party-list system. The well-settled rule is that courts will not question the wisdom of the Legislature as long as it is not violative of the Constitution. (Emphasis supplied)
[18] See footnotes 6 and 7 of the BANAT Resolution.
[19] Justice Antonio T. Carpio's Separate Opinion in Aquino III v. Commission on Elections [G.R No 189793, 07 April 2010].
[20] COMELEC Resolution No. 2847, prescribing the "Rules and Regulations Governing the Election of Party-List Representatives Through the Party-List System.'1
[21] G.R. Nos. 179271 & 179295, 21 April 2009; 604 Phil. 131 (2009).
[22] Section 2, RA 7941.
LOPEZ, J.:
I concur with the ponencia to maintain the BANAT Formula,[1] which recognizes the prerogative of Congress to formulate the manner of filling-up the party-list system while at the same time ensuring that said prerogative remains within constitutional bounds.
Also, I agree that there is no double-counting of votes because the allocation of seats is determined using different formulas based on substantial distinctions and different levels of proportion. The first round allocating one guaranteed seat requires the determination of proportion of votes obtained by a party in relation to the number of votes cast in the Party-List System (PLS). It refers to the threshold mentioned in Republic Act (RA) No. 7941, Section 11 (b) that parties with at least 2% of the votes will have a guaranteed seat. The second round (first part) refers to the proportion of votes obtained by parties garnering at least 2% of the votes cast in relation to the votes cast for the PLS multiplied by the number of remaining seats. The second round (second part) refers to the proportion of votes obtained by the parties relating to the fractional value of their votes represented by decimal values (e.g. 0.78, 0.79, 0.80 etc.). The purpose of the second round is to completely fill-up the 20% allocation of seats in the PLS.
However, I submit that the allocation of seats to parties receiving fractional seats (second round, second part) as illustrated in BANAT should be modified to conform with the principle of proportionality mandated by the law.
RA No. 7941[2] provides the manner on how seats in the PLS of Representation are allocated:
Section 11. Number of Party-List Representatives. The party-list representatives shall constitute twenty per centum (20%) of the total number of the membersi of the House of Representatives including those under the party-list.x x x x
(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 receiving 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 proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. (Emphasis supplied.)
Interpreting the above-quoted provision, Veterans Federation Party v. Commission on Elections[3] identified four inviolable parameters, which must be observed in the allocation of seats:
To determine the winners in a Philippine-style party-list election, the Constitution and Republic Act (RA) No. 7941 mandate at least four inviolable parameters. These are:In determining proportionality for additional seats, Veterans introduced the First Party Rule or a form of proportionality in relation to the number of votes obtained by the party garnering the highest number of votes. Later, BANAT v.
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 actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats.
Fourth, proportional representation — the additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of votes."[4] (Emphasis supplied.)
COMELEC[5] revisited the determination of proportionality and adopted with modification the Niemeyer Formula earlier proposed by then Justice Mendoza in Veterans. In his Dissenting Opinion in Veterans, Justice Mendoza explained why the Niemeyer Formula may be adopted in the Philippine PLS:
Rep. Tito R. Espinosa, co-sponsor of the bill which became R.A. No. 7941, explained that the system embodied in the law was largely patterned after the mixed party-list system in Germany. Indeed, the decision to use the German model is clear from the exchanges in the Constitutional Commission between Commissioners Bias F. Ople and Christian S. Monsod. The difference between our system and that of Germany is that whereas in Germany half (328) of the seats in the Bundestag are filled by direct vote and the other half (328) are filled through the party-list system, in our case the membership of the House of Representatives is composed of 80 percent district and 20 percent party-list representatives.Applying the Niemeyer Formula in Section 11 (b) of RA No. 7941 as worded relating to the additional seats should have been mathematically reduced as follows:
The party-list system of proportional representation is based on the Niemeyer formula, embodied in Art. 6(2) of the German Federal Electoral Law, which provides that, in determining the number of seats a party is entitled to have in the Bundestag, scats should be multiplied by the number of votes obtained by each party and then the product should be divided by the sum total of the second votes obtained by all the parties that have polled at least 5 percent of the votes. First, each party receives one seat for each whole number resulting from the calculation. The remaining seats are then allocated in the descending sequence of the decimal fractions. The Niemeyer formula was adopted in R.A. No. 7941, §11. As Representative Espinosa said:
MR. ESPINOSA: [T]his mathematical computation or formula was patterned after that of Niemeyer formula which is being practiced in Germany as formerly stated. As this is the formula or mathematical computation which they have seen most fit to be applied in a party-list system. This is not just a formula arrived at because of suggestions of individual Members of the Committee but rather a pattern which was already used, as I have said, in the assembly of Germany.[6] (Emphasis supplied.)
If the formula is reduced into an analogy, it can be likened to a pie to be distributed only to the 2 percenters based on the number of votes they received.[7] The number of seats to be allocated to the party is proportional to the number of votes it received. This is the clear import of the provision worded as follows: "[p]rovided, [t]hat those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes."
Unlike in Veterans wherein the 20% PLS membership was considered merely as a ceiling, BANAT held that the 20% must be filled-up. Thus, BANAT partly modified Section 11 (b) of RA No. 7941 and removed the limitation that only those satisfying the 2% threshold should be allocated with "additional" seats. BANAT observed that the continuous operation of the 2% in the determination of "additional" seats presents a mathematical impossibility to fulfill the 20% membership. This is only true because Section 11 (b) provides that there must be a 3-seat limit. Without the 3-seat limit, the additional seats in the 2019 National and Local Elections (NLE) should have been as follows:
Either the removal of the 2% threshold or the 3 seat-limit could have served the purpose of filling-up the 20% membership. Instead, BANAT held that Section' 11 (b) should include the non-two percenters in the equation of allocating "additional" seats otherwise it is mathematically impossible to fill-up the 20% membership. Mathematically, the modification is reflected as follows:
RANK
PARTY-LIST
VOTES GARNERED
% OF TOTAL VOTES IN RELATION TO THE TOTAL VOTES CAST FOR THE PLS
FIRST ROUND OF ALLOCATION
(Parlies garnering al least 2% is given 1 guaranteed seat)
% OF TOTAL VOTES X
53 REMAINI NG
SEATS
(The divisor should be the total number of votes received by those garnering at least 2%)
SECOND ROUND
(Integer less the decimal value)
FRAC TIONA L SEATS
(Remai ning decimal value)
1
ANTI-CRIME AND TERRORISM
COMMUNITY 1NVOLVEME NT AND SUPPORT. INC.
2,651,987
9.51
1
16.45
16
0.45
2
BAY AN MUNA
1,11 7,403
4.01
1
6.93
6
0.93
j
AKO BICOL POLITICAL PARTY
1,049,040
3.76
1
6.50
6
0.50
4
CITIZENS BATTLE AGAINST CORRUPTIO
N
929,718
3.33
1
5.76
5
0.76
5
ALYANSA NG MGA , MAMAMAYA NG PROB1NSIYA NO
770,344
2.76
1
4.77
4
0.77
6
ONE PATRIOTIC COALITION OF MARGINALI ZED NATIONALS
713,969
2.56
1
4.42
4
0.42
7
MARINO SAMAIIAN NG MGA SEAMAN. INC.
681.448
2.44
1
4.22
4
0.22
Going back to the analogy of a pie and the illustration above, all parties may now share the remaining number of seats after the first round by adjusting the divisor. Applying this adjustment and going back to the previous illustration, the divisor is no longer 8,544,344 but is now 27,884,890 (total votes cast for the PLS) because all parties will now share the pie of additional seats subject only to the number of remaining seats. The inclusion of the non-two percenters is not to put them on equal footing with the 2 percenters and not to remove the distinction that RA No. 7941 accorded to it but simply a way to fulfill the constitutional provision that the 20% membership should be filled-up.
On this score, 1 submit that the equal protection clause is not violated because there is no double-counting of votes. The first and second rounds of allocation of seats serve different purposes and involve1 different formulas involving different levels of proportions. The petitioners' claim of "double counting" presupposes that there is singularity in the formula used in allocating seats.
The first round gives flesh to the threshold requirement and in consonance with Section 11 (b) - "[t]he 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 seat each," which is mathematically determined by dividing the total votes of a party and the total votes received by all of the parties without regard to the available seats. The second round is for fulfilling the constitutional provision of 20% membership determined proportionally and mathematically in the formula described above. Accordingly, petitioners cannot simply claim that there is double-counting of votes without taking into consideration how seats are allocated. The' petitioners' framework presupposes that the seats are allocated using the same formula and level of proportionality. A quick comparison of the number of votes needed to obtain a seat (first round and second round) will readily show that they are not equal. More votes are needed to garner a seat in the first round than in the second round. As discussed in the ponencia, petitioners' framework put the 2 percenters at a serious disadvantage. The difference can be seen by comparing the formulas between the first and second round:
Total votes of the Party
Total Votes of all Parties
Total Votes of all Parties * remaining seats
Be that as it may, the proper treatment of fractional seats should be modified.
The ponencia summarized the BANAT Formula as follows:
Round 1:
- The participating parties, organizations or coalitions shall be ranked from highest to lowest based on the number of votes they each garnered in the party-list election.
- Each of those receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to and guaranteed one seat each.
x x x x
Round 2, Part 1:
- The percentage of votes garnered by each of the parties, organizations and coalitions is multiplied by the remaining available seats after Round 1. All party-list' participants shall participate in this round regardless of the percentage of votes they garnered.
- The party-list participants shall be entitled to additional seats based on the product arrived at in (a). The whole integer of the product corresponds to a party's share in the remaining available seats. Fractional seats shall not be awarded.
x x x x
- A Party-list shall be awarded no more than two (2) additional seats.
x x x x
Round 2, Part 2:
- The party-list party, organization or coalition next in rank shall be allocated one additional seat each until all available seats are completely distributed.
BANAT correctly applied the Niemeyer Formula to determine proportionality in the remaining seats after the first round. However, it is silent on how fractional seats represented by decimal values are to be treated. As held in VETERANS and BANAT, the fractional seats should not be rounded-off in the absence of an enabling law. BANAT recognized that there will be fractional seats and introduced the second round (second part) and assigned one seat each to the parties based on their rankings until the seats are exhausted.
However, as can be implied in the illustration in BANAT, it completely disregarded the 2 percenters' fractional seats in the second round (second part) and failed to address the question why some 2 percenters, which received a large fractional seat but. did not reach the three-seat limit, were not awarded further additional seat. In footnote 31, BANAT merely stated that "[t]he product of the percentage and the remaining available seats of all parties ranked nine and below is less than one."
As can be implied from the illustration in BANAT, the second round is based on two different formulas of proportionality. The second round (first part) used the Niemeyer Formula while the second round (second part) used the formula used in the first round to rank the non-two percenters including parties, which did not receive a seat during the second round (first part). This made it appear that the "fractional seats" of the non-two percenters are automatically larger than those of the 2 percenters, which justify the exclusion of the 2 percenters in the allocation of seats in the second part.
The same concern highlights the motion for reconsideration in BANAT.[9] In dealing with this issue, BANAT (MR) explained:
In the table above, C1BAC cannot claim a third seat from the seat allocated to TUCP, the last ranked party allocated with a seat. ClBAC's 2.81% (from the percentage of 4.81% less the 2% for its guaranteed seat) has a lower fractional seat value after the allocation of its second seat compared to TUCP's 1.03%. ClBAC's fractional seat after receiving two seats is only 0.03 compared to TUCP's 0.38 fractional seat. Multiplying ClBAC's 2.81% by 37, the additional seats for distribution in the second round, gives 1.03 seat, leaving 0.03 fractional seat. Multiplying TUCP's 1.03% by 37 gives a fractional seat of 0.38, higher than ClBAC's fractional seat of 0.03. The fractional seats become material only in the second step of the second round of seat allocation to determine the ranking of parties. Thus, for purposes of the second step in the second round of seat allocation, TUCP has a higher rank than C1BAC.BANAT (MR) explained this by stating that 2% is deducted from parties qualified to garner a "guaranteed" seat in determining whether they are still qualified to obtain a seat in the second round (second part). The ponencia adopted this explanation:
Surely, BANAT instructs that 2% shall be deducted from the percentage votes of party-lists that obtained a guaranteed seat. This deduction, however, is done in the second step of the second round of seat allocation, not in the first step of the second round as petitioners would have the Court believe. Hence, the application of BANAT, as earlier outlined in this Decision, stands.[10]I disagree on this point The second round (second part) should still consider the fractional value of seats obtained by the 2 percenters by simply removing the integer representing the credited seats. The absurdity of disregarding the fractional seats of the 2 percenters is adequately illustrated by simply looking at parties ranked 3 and 51:
It would be clear that AKO B1COL still has 0.9928 fractional seat, which is higher than the 0.371 of KABATAAN. However, it was no longer considered in the second round, second part. This amply demonstrates why AKO BICOL was not awarded a seat even if it has not yet reached the three-seat limit. The seat was instead given to a party receiving a lower number of votes because the fractional seat of 0.9928 was no longer considered. This is contrary to the principle of proportionality. This could have been avoided if the Niemeyer Formula was applied to all parties to determine the proportion of their votes in relation to the votes cast for the PLS in allocating the "additional" seats.
RA
PARTY
. VOIES
% OF
FIRST
% OF VOTES
SECOND
SECOND
TOTAL
NK
GARNERED
TOTAL
ROUND
X53
ROUND
ROUND
NUMBER
VOIES
REMAINING
(FIRST
(SECOND
OF
SEATS
PART)
PART)
SEATS
3 AKO B1COL POLITICAL PARTY
1.049.040
3.76
1
1.9928
(Note: 0.9928 fractional seat should still be considered in the second round. second part)
1
0
2
51
KABATAAN PARTY LIST
195,837
0.70
0
Not specified but using the Niemeyer Formula (0.371)
0
1
1
I submit that the second round, second part of allocation of seats discussed in BANAT should be understood as the distribution of remaining seats to parties receiving seats with fractional value. In order to determine each of the parties' proportional share, the Niemeyer Formula should be uniformly applied to all parties in the second round. After the additional seats represented by whole integers have been distributed in the second round (first part), the parties should then be ranked again in a descending order based on their fractional seats to determine which of them will receive the remaining seats until they are exhausted. This is the more logical approach in treating fractional seats without resorting to rounding-off by recognizing the proportion of votes received by the parties. BANAT already implemented this in the second round (second part) but erred not to consider the fractional seats of the 2 percenters.
This adequately explains why some 2 percenters cannot have the maximum 3 seats because the size of their fractional seats may be lower than some of the non-two percenters.
The 2019 NLE have long been concluded, the winning party-list groups have already been declared, and their respective nominees have already taken an oath of and assumed office before the House of Representatives. No restraining order was issued to prevent the National Board of Canvassers from executing its Resolution No. 004-19. Accordingly, the grant of this petition would necessarily alter the current composition of membership in the House of Representatives, which the Court must carefully consider.
Section 17, Article VI of the Constitution clearly provides that the House of Representatives shall have an electoral tribunal "which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members." The importance of observing the delineation of jurisdiction in election contests is recently highlighted in the case of Reyes v. COMELEC, et al.[11] where the Court had to clarify when the jurisdiction of the House of Representatives Electoral Tribunal (HRET) begins. According to Reyes, a candidate becomes a member of the house if the following requisites are met: (1) proclamation; (2) oath of office; and (3) assumption to office.[12]
The HRET's jurisdiction was recognized in Rivera, et al. v. Commission on Elections, et al.[13] relating to a petition for quo warranto against a Member of the House of Representatives:
Concerning now the quo warranto petition, G.R. No. 213069, of CIBAC Foundation, the Court reminds the petitioners that under Section 17 of Article IV of the 1987 Constitution, the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives is the House of Representatives Electoral Tribunal (HRET). Section 17 reads:Here, the adoption of petitioners' framework and the grant of their prayer would mean that the proclamation of some party-list nominees will be voided. In ABC (Alliancefor Barangay Concerns) Party List v. COMELEC, etal.,[15] the Court reiterated that party-list nominees are the "elected members" of the House of Representatives, and thus covered by HRET's jurisdiction. Curiously, the issue of jurisdiction was not encountered in the cases of Veterans v. COMELEC[16] and BANAT v. COMELEC[17] In Veterans, the Court issued a Status Quo Ante Order to restrain the Commission on Elections in executing its Resolution of proclaiming the remaining party-list groups, to wit:
Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members, x x x
Because the nominees of CIBAC National Council, Tugna and Gonzales, assumed their seats in Congress on June 26, 2013 and July 22, 2013, respectively, G.R. No. 213069 should be dismissed for lack of jurisdiction. It should be noted that since they had been already proclaimed, the jurisdiction to resolve all election contests lies with the HRET as it is the sole judge of all contests relating to the election, returns, and qualifications of its Members.
In a long line of cases and more recently in Reyes v. COMELEC, et al., the Court has held that once a winning candidate has been proclaimed, taken his oath, and assumed office as Member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins. Since the nominees of CIBAC National Council have already assumed their seats in Congress, the quo warranto petition should be dismissed for lack of jurisdiction.[14] (Emphasis supplied; citations omitted.)
On January 12, 1999, this Court issued a Status Quo Order directing the Comelec "to CEASE and DESIST from constituting itself as a National Board of Canvassers on 13 January 1999 or on any other date and proclaiming as winners the nominees of the parties, organizations and coalitions enumerated in the dispositive portions at its 15 October 1998 Resolution or its 7 January 1999 Resolution, until further orders from this Court."[18]In BANAT, the seats reserved for party-list members were not completely filled-up because Veterans held that the 20% membership was merely a ceiling and because the Veterans Formula inherently prevented the completion of the 20% membership. Thus, HRET's jurisdiction was again not an essential issue.
However, we must be circumspect in deciding the instant case. While the Court has jurisdiction to pass upon the constitutionality of Section 11 (b) of RA No. 7941, it is the HRET that should pass upon the possible divestment of seats of Members of the House of Representatives. To reiterate, we did not issue a temporary restraining order or a status quo ante order. As a result, the nominees of the winning party-list became Members of the House of Representatives. Accordingly, I submit that any discussion on the alternative formula to allocate the seats should be applied prospectively.
FOR THESE REASONS, I vote to DISMISS the petition for lack of merit. Insofar as my discussion on how fractional seats are allocated, this should be applied prospectively.
[1] Barangay Association for National Advancement and Transparency (BANAT) v. COMELEC, 604 Phil. 131 (2009).
[2] An Act Providing for the Election of Party-List Representatives Through the Party-List System, and Appropriating Funds Therefor, Republic Act No. 7941 (1995).
[3] 396 Phil. 419 (2000).
[4] Id. at 424.
[5] Supra note I.
[6] Id. at 474-495.
[7] Veterans Federation Party v. Commission on Elections, supra note 3.
[8] Ponencia, pp. 18-19.
[9] 604 Phil. 131 (2009) & 609 Phil. 751 (2009).
[10] Ponencia, p. 3 I.
[11] 712 Phil. 192 (2013) & 720 Phil. 174(2013).
[12] Id. at 212.
[13] 785 Phil. 176(2016).
[14] Id. at 193-194.
[15] 661 Phil. 452 (2011).
[16] Supra note 3.
[17] Supra note 1.
[18] Supra note 3 at 434.