Antecedents

Petitioners ANGKLA: Ang Partido Ng Mga Pilipinong Marino, Inc., (ANGKLA) and Serbisyo sa Bayan Party (SBP) move for reconsideration of the Court's Decision dated September 15, 2020 upholding the constitutionality of the proviso in Section 11(b) of Republic Act No. (RA) 7941,^[1] viz.:

ACCORDINGLY, the Amended Petition and Petition-in-Intervention are DENIED for lack of merit. The Court declares as NOT UNCONSTITUTIONAL Section 11 (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 11 (b), pertaining to the seat allocation for the party-list system.

SO ORDERED.^[2]

The challenged proviso reads:

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. (emphasis and underscoring added)

As elucidated in the assailed decision, the first part of Section 11(b), RA 7941 entitles each party-list garnering at least 2% of the votes cast for the party-list system (two-percenters) a guaranteed seat in the House of Representatives. Meanwhile, the challenged proviso allocates additional seats to party-lists "in proportion to their total number of votes." As settled in Barangay Association for National Advancement and Transparency (BANAT) v. Commission on Elections (COMELEC),^[3] Section 11(b) of RA 7941 is to be applied, thus:^[4]

Round 1:

a.	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.
b.	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:

a.	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.[5]
b.	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.
c.	A party-list shall be awarded no more than two (2) additional seats.

Round 2, Part 2:

a.	The party-list party, organization, or coalition next in rank shall be allocated one (1) additional seat each until all available seats are completely distributed.

In the present motion, petitioners insist that the manner of allocating additional seats in the second round violates the "one person, one vote" policy protected under the equal protection clause and our democratic institutions.^[6] They assert that "all votes are equal and should carry the same weight."^[7] Thus, votes counted and considered in the allocation of guaranteed seats in the first round should be deducted before allocating seats in the second round.^[8] To hold otherwise would be a clear instance of double counting of votes where the votes already used to elect a representative via the guaranteed seat are once again used to elect a representative for the additional seat.^[9]

Petitioners do not propose that the two-percenters be treated absolutely in the same way as non-two-percenters and admit that the former should have preference; but such preference should only be observed and limited to the grant of guaranteed seats in first round.^[10] Otherwise, the votes of the two-percenters "would effectively dilute the weight of the votes for the non-two percenters" which is "inconsistent with the voters' constitutional right to an equally weighted vote."^[11]

Petitioners, therefore, pray that the proviso in Section 11(b) of RA 7941 be declared unconstitutional. In lieu thereof, their proposed formula should be applied,^[12] viz.:

1.	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.
2.	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 (1) guaranteed seat each.
3.	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.
4.	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.
5.	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.
6.	Each party, organization, or coalition shall be entitled to not more than three (3) seats.

Applying this formula, petitioners and intervenor Aksyon Magsasaka – Tinig Partido ng Masa (AKMA-PTM) would be entitled to one (1) seat each at the expense of One Patriotic Coalition of Marginalized Nationals (IPACMAN), Marino Samahan ng mga Seaman, Inc. (MARINO), and Probinsyano Ako.^[13]

Petitioners note that Chief Justice Alexander G. Gesmundo adopted their proposed formula in his Dissenting Opinion. Meanwhile, petitioners "humbly assert that while the method proposed by Justice Zalameda stretches the application of the afore-cited provision, Justice Caguioa totally disregards it."^[14]

Accordingly, petitioners seek to nullify the seat allocation for party-lists in the May 13, 2019 elections on ground that respondent COMELEC, sitting as the National Board of Canvassers, acted in grave abuse of discretion when it applied the unconstitutional proviso in Section 11 (b) of RA 7941 in allocating additional seats to the winning party-lists.

In its Comment, respondent COMELEC, through the Office of the Solicitor General (OSG) riposte:

First. The Court simply applied the intent and language of Section 11(b) of RA 7941. It could not have devised a different formula for allocating party-list seats – a matter best left to Congress.^[15]

Second. There is no double counting of votes to speak of. Though there are two (2) rounds of seat allocation, there is only one (1) round of counting of votes which is done at the beginning of the formula for purposes of ranking the party-lists from highest to lowest.^[16]

Finally. The substantial distinction between two-percenters and non-two-percenters justify the preference given to the former. Meanwhile, petitioner's formula which allows for a 2% deduction from the votes of the two percenters would result in an outcome wherein those with lower number of votes will be favored and given seats to the detriment of those that actually obtained higher number of votes.^[17]

Threshold Issue

Does the proviso in Section 11 (b) of RA 7941, as implemented through the BANAT formula, violate the "one person, one vote" policy, as well as the equal protection clause?

Ruling

We deny petitioners' motion for reconsideration.

Notably, the issue raised herein has already been passed upon and deliberated in full in the Court's Decision dated September 15, 2020. Indeed, petitioners do not raise any new arguments against the Court's ruling but merely reiterate those raised in their petition.

But majority of the Court remain unconvinced.

First. Petitioners are misguided in their view on how the "one person, one vote" policy applies to the party-list system.

To reiterate, the principle of one person-one vote was discussed in the Dissenting Opinion of retired Associate Justice Antonio T. Carpio in Aquino III v. COMELEC,^[18] (Aquino) 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.

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.^[19] (emphasis added)

For context, the thrust of Justice Carpio's dissent in Aquino was to have RA 9716^[20] declared unconstitutional. The assailed law reapportioned the legislative districts of Camarines Sur in order to create a new one. According to Justice Carpio, the reapportionment violated the Constitution as it created a legislative district with less than 250,000 inhabitants. Consequently, the law also violated the "one person, one vote" policy as it effectively overvalues the votes of the district with a lower population and undervalues the votes of the district with more inhabitants, viz.:

Based on the 2007 census, the proposed First District under RA 9716 will have a population of only 176,383, which is 29% below the constitutional minimum population of 250,000 per legislative district. In contrast, the remaining four proposed districts have populations way above the minimum with the highest at 439,043 (proposed Third District), lowest at 276,777 (proposed Second District) and an average of 379,359. Indeed, the disparity is so high that three of the proposed districts (Third, Fourth, and Fifth Districts) have populations more than double that of the proposed First District. This results in wide variances among the districts' populations. Still using the 2007 census, the ideal per district population for Camarines Sur is 338,764. The populations of the proposed districts swing from this ideal by a high of positive 29.6% (Third District) to a low of negative 47.9% (First District). This means that the smallest proposed district (First District) is underpopulated by nearly 50% of the ideal and the biggest proposed district (Third District) is overpopulated by nearly 30% of the ideal.

The resulting vote undervaluation (for voters in the disfavored districts) and vote overvaluation (for voters in the First District) fails even the most liberal application of the constitutional standards. Votes in the proposed First District are overvalued by more than 200% compared to votes from the Third, Fourth, and Fifth Districts and by more than 60% compared to votes in the Second District. Conversely, votes from the Third, Fourth, and Fifth Districts are undervalued by more than 200% compared to votes in the First District while those in the Second District suffer more than 60% undervaluation.

Proportional representation in redistricting does not mean exact numbers of population, to the last digit, for every legislative district. However, under the assailed RA 9716, the variances swing from negative 47.9% to positive 29.6%. Under any redistricting yardstick, such variances are grossly anomalous and destructive of the concept of proportional representation. In the United States, the Supreme Court there ruled that a variance of even less than 1% is unconstitutional in the absence of proof of a good faith effort to achieve a mathematically exact apportionment.^[21]

Verily, Justice Carpio's concept of "one person, one vote" is akin to absolute proportionality. Meaning, the higher the population, the more representatives. Thus, he fought tooth and nail against giving a legislative district with low population the same voting rights as legislative districts in the same province with substantially higher ones.

Subscribing to this concept of "one person, one vote" would cause chaos in the political landscape not only insofar as the application of Section 11(b) of RA 7941 to party-list systems is concerned, but also with respect to laws reapportioning legislative districts. For if Justice Carpio was correct after all in his invocation of the "one person, one vote" policy, then the Court would effectively be abandoning the ruling in Aquino and exposing reapportionment laws such as RA 9716 to possible nullity.

At any rate, we have already discussed in the assailed Decision that the Constitution does not prescribe absolute proportionality in distributing seats to party-lists, organizations, or coalitions. 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. Section 5(1), Article VI of the Constitution pertinently 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)

BANAT further elucidates:

x x x 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.^[22] (Emphasis added)

In the exercise of its discretion, Congress enacted RA 7941 which contained mechanisms that prevent the distribution of party-list seats based on absolute proportionality such as the three-seat cap and the two-tiered seat allocation. Notably, these mechanisms are disadvantageous to the two­-percenters and beneficial to non-two-percenters. As illustrated in the assailed Decision:

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. 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. 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.^[23] (Emphases added)

Indeed, these mechanisms essentially offset the advantage given to two-percenters in the first round of seat allocation in the form of a guaranteed seat. This is clear from the fact that ACT-CIS party-list which garnered 2,651,987 is only entitled to three (3) seats or an average of 883,996.67 votes per seat while KABATAAN only needed 195,837 to win a seat in Congress. Indubitably, the votes cast in favor of ACT-CIS were undervalued while those of KABATAAN, overvalued.

Petitioners agreed to this uneven valuation of votes when they concurred in the distribution of party-list seats in two (2) rounds using two (2) different formulae. They agreed to it, too, when they proposed that the three-seat limit under the law should still be observed. But perhaps the most telling sign of petitioners' concurrence was their availment of the benefits of the BANAT formula in previous elections, thus:

x x x 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, 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.

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. x x x

x x x x

15. x x x 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.

x x x x

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. x x x

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 scats 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.

As for AKMA-PTM, way back in 2013, it initiated the petition in G.R. No. 207134 entitled AKMA-PTM v. COMELEC. Far from questioning the constitutionality of the proviso in Section 11 (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.^[24] (Emphases added)

The Court is therefore in quandary on why petitioners are now claiming that the votes of non-two-percenters are being diluted in supposed violation of the "one person, one vote" policy when they should have known based on their prior experience that, on the contrary, it is their votes which are being overvalued when seats are allocated in their favor in the second round.

Second. The BANAT formula is in accordance with the clear language and intent of the law.

As it currently stands, the BANAT formula mirrors the textual progression of Section 11(b) of RA 7941. As keenly noted by Senior Associate Justice Estela M. Perlas-Bernabe, 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.

Petitioners admit that there is a substantial distinction between two­-percenters and non-two-percenters and agrees that the former should be given preference in the form of a guaranteed seat. But they nevertheless claim that such preference should be limited to the first round of seat allocation; when it comes to the allocation of the additional seats, the votes of the two-percenters should first be reduced by 2%.

We do not agree.

The intention behind the proviso is clear – only the two-percenters were supposed to participate in the second round of seat allocation and with full votes at that. This can be deduced from the language of the proviso which originally allocated seats only to those "garnering more than two percent (2%) of the votes."

Thus, in Veterans Federation Party v. COMELEC,^[25] the Court crafted a formula for seat allocation with two (2) notable characteristics: first, only the two-percenters were allowed to participate in the second round of seat allocation; and second, the two-percenters participated in the second round of seat allocation with their full votes intact. Applying this formula, the Court, in Veterans, awarded only 14 seats to the 13 party-lists which surpassed the 2% threshold despite the availability of 51 seats reserved for the party-list system.

This manner of allocation in Veterans was sustained in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections^[26] in relation to the 2001 elections, and in Partido ng Manggagawa v. Commission on Elections^[27] and Citizens' Battle Against Corruption v. Commission on Elections^[28] both in relation to the 2004 elections.

It was not until 2009, through the Court's ruling in BANAT, when the second round of seat allocation was opened up to non-two-percenters by removing the 2% threshold for additional seats. But this was only to fulfil the constitutional mandate that 20% of the total membership of the House of Representatives be reserved for party-list representatives under Article VI, Section 5(2) of the Constitution.^[29]

In other words, only the first characteristic of the Veterans formula was negated by the removal of the 2% threshold; the second characteristic was retained. This is in clear recognition of the original intent behind the law to allow the two-percenters to participate in the second round of seat allocation with their full votes intact.

Third. Allowing the two-percenters to participate in the second round of seat allocation with full votes does not result in double-counting of votes. We have extensively discussed this in the ponencia, thus:

Petitioners foist the idea that only the votes of the two-percenters were counted and considered in the first round. x x x

x x x x

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:

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.

x x x x

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.^[30] (Emphases and underscoring added)

On the other hand, imposing a 2% penalty against two-percenters in the second round would yield an absurd result which, too, had been illustrated in the assailed Decision:

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. 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 scat allocation for the additional seats.^[31] (Emphases added)

Fourth. Even assuming arguendo that the proviso in Section 11(b) is void, this does not automatically result in the application of petitioners' formula. To be sure, the nullity of the assailed proviso would result in the following phraseology of Section 11(b):

(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.

x x x x

Meanwhile, petitioners propose that the second round of seat distribution be accomplished, thus:

x x x x

3.	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.
4.	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.
5.	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.

x x x x

But these proposed steps do not have textual basis. Nowhere is it stated in RA 7941 that a two percent (2%) deduction would first be imposed on the two-percenters before they may be allowed to participate in the second round of seat allocation. Neither does RA 7941 read that the parties will be re-ranked before distributing additional seats.

Clearly, petitioners would have us plant words into RA 7941 which are not there. This 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.

The Court is not in the position though to give its imprimatur on petitioners' construction of Section 11(b) of RA 7941 at the risk of expanding the law as currently couched. We do not "correct" laws by reading into them more than what they contain; we merely apply what is written. And what is currently written in Section 11(b) of RA 7941 does not need correction as it does not offend any constitutional guarantee. Thus, should petitioners insist on the application of their formula, the proper remedy is not to have the law "corrected" through judicial fiat but to have Congress amend and tailor the law based on their proposal.

The dissents likewise offer varying formulae on what they believe is a more equitable and straightforward distribution of seats to party-lists. But whether these formulae are better, which they may very well be, is beside the point. For they, too, were not spelled out in the law. To stress, we are not here to discuss the merits of each formula, only to determine what the applicable formula actually is based on the text of the law and in accordance with Constitutional standards. And as stated, the textual progression of Section 11(b) of RA 7941 is mirrored by the BANAT formula and, contrary to petitioners' claim, does not offend the equal protection clause.

All told, the idea of the petitioners and the dissents on what is fair and equitable is simply not what was legislated. Indeed, there are infinite methods of allocating additional seats which may be considered fair, equitable, and proportional. But 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 confusing and more straightforward. This is definitely a question of wisdom which the legislature alone may determine for itself. Thus, until RA 7941 is amended, Section 11(b) as outlined in BANAT remain to be the applicable law.

ACCORDINGLY, petitioners' motion for reconsideration is DENIED for utter lack of merit. Let entry of judgment issue immediately.

SO ORDERED.

Carandang, Inting, and Rosario, JJ., concur.
Gesmundo, C.J., see separate dissenting opinion.
Perlas-Bernabe, J., I reiterate my separate concurring opinion.
Leonen, J., I reiterate my concurring opinion in the main decision.
Caguioa, J., I reiterate my separate opinion.
Hernando, J., I join the Separate Dissenting Opinion of Chief Justice Gesmundo.
Zalameda, J., I reiterate my dissenting opinion.
M. Lopez, J., I reiterate my concurring and dissenting opinion.
Gaerlan, J., I join the separate opinion of J. Zalameda.
J. Lopez, J., with separate dissenting opinion.
Dimaampao, J., on official leave but left and voted. See separate concurring and dissenting opinion.
Marquez, J., I join the dissent of CJ Gesmundo.

^[1] AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIVES THROUGH THE PARTY-LIST SYSTEM, AND APPROPRIATING FUNDS THEREFOR.

^[2] Rollo, p. 305.

^[3] 609 Phil. 751 (2009).

^[4] Id. at 769.

^[5] In BANAT v. Commission on Elections, 604 Phil. 131 (2009), the Court declared the two percent threshold unconstitutional insofar as the allocation of additional seats is concerned.

^[6] Rollo, p. 419.

^[7] Id. at 420.

^[8] Id. at 421.

^[9] Id. at 423.

^[10] Id. at 422-423.

^[11] Id. at 424-425.

^[12] Id. at 434.

^[13] Id. at 429-433.

^[14] Id. at 429.

^[15] Id. at 460-468.

^[16] Id. at 468-470.

^[17] Id. at 471-477.

^[18] 631 Phil. 595 (2010).

^[19] Id. at 637-638.

^[20] AN ACT REAPPOINTING THE COMPOSITION OF THE FIRST (1st) AND SECOND (2nd) LEGISLATIVE DISTRICTS IN THE PROVINCE OF CAMARINES SUR AND THEREBY CREATING A NEW LEGISLATIVE DISTRICT FROM SUCH REAPPOINTMENT

^[21] Id. at 643-644.

^[22] Supra note 2 at 767-768.

^[23] ANGKLA v. Commission on Elections, G.R. No. 246816, September 15, 2020.

^[24] Id., citing the Comment in G.R. No. 224846 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."

^[25] 396 Phil. 419 (2000).

^[26] 452 Phil. 899 (2003).

^[27] 519 Phil. 644 (2006).

^[28] 549 Phil. 767 (2007).

^[29] (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.

^[30] ANGKLA v. COMELEC, G.R. No. 246816, September 15, 2020.

^[31] Id.

On September 15, 2020, a sharply divided court promulgated its decision in this instant case, the dipositive portion reads:

"ACCORDINGLY, the Amended Petition and Petition-in-Intervention are DENIED for lack of merit. The Court declares as NOT UNCONSTITUTIONAL Section 11(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 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 11(b), pertaining to the seat allocation for the party-list system.

SO ORDERED."^[1]

The majority opinion, written by Madame Justice Amy C. Lazaro-Javier, sustained the validity of the assailed provision, negating the existence of violation of the equal protection clause and the principle of one person-one vote concept and justifying the soundness of the formula provided for in BANAT v. Commission on Elections (BANAT). The majority opinion was joined by Justice Jose C. Reyes (ret.), Justice Rosmari D. Carandang and Justice Henri Jean Paul B. Inting. Senior Associate Justice Estela M. Perlas-Bernabe and Justice Marvic Mario Victor F. Leonen submitted their respective separate concurring opinion while Justice Mario V. Lopez submitted his separate concurring and dissenting opinion. Justice Priscilla Baltazar-Padilla (deceased) was then on leave.

Justice Alfredo Benjamin S. Caguioa submitted his separate opinion where he agreed with the dismissal of the petition but with a call to abandon the BANAT formula for failing to reflect the spirit and intention of the Constitution and Republic Act (R.A.) No. 7941. Instead, he proposed to adopt a straightforward formula to be used in the succeeding elections.

On the other hand, Justice Rodil V. Zalameda, who was joined by Justice Edgardo L. Delos Santos (ret.) and Justice Samuel H. Gaerlan, wrote a separate dissenting opinion where he concluded that the assailed provision indeed violated the equal protection clause because of the double voting that occurs in the BANAT formula where votes used to qualify for a guaranteed seat were again used to qualify for the additional seat. To remedy this obnoxious scenario, Justice Zalameda opined that the first round of allocation should allocate at least 1 but not more than 3 seats depending on the total number of votes cast for the party-list group. The variance in excess of 2% or 4% (which would correspond either to 1 or 2 seats) shall be computed and accordingly ranked with the non-two percenters for purposes of distributing additional seats under the BANAT formula.

Lastly, in my dissenting opinion, joined by then Chief Justice Diosdado M. Peralta (ret.) and Justice Ramon Paul L. Hernando, I concluded that the current BANAT formula violates the equal protection clause and the principle of "one person, one vote" which is the bedrock of every democratic and republic system. Consistent with the constitutional intent and spirit of R.A. No. 7941, I adopted petitioners' formula in the allocation of seats, 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. 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 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 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.

Unperturbed, petitioners filed this instant Motion for Reconsideration,^[2] seeking the reversal of the majority opinion promulgated last September 15, 2020. They claimed that the majority of the Court erred in sustaining the BANAT formula despite the blatant double counting or crediting of votes that occurs in the BANAT formula. They urge the Court to use the formula that they proposed and which I adopted in my dissenting opinion.

In response, respondent prays for the denial of the motion for reconsideration and argues that the majority of the Court did not err in sustaining the validity of Section 11(b) of R.A. No. 7941 as the Court merely applied the meaning and intention of Congress.

After much thought, I maintain my dissent.

I still maintain the position that the BANAT formula is constitutionally obnoxious as it perpetuates the invalid practice of double counting of votes in violation of the equal protection clause and the one person-one vote principle. To recall, I illustrated how the double counting occurs in my September 15, 2020 Dissenting Opinion, thus:

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.

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 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, 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." 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 by 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, the 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.

In recommending the denial of the motion for reconsideration, the ponente insists that the principle of "one person, one vote" is not applicable in party-list elections as it only applies to district elections following Aquino III v. Commission on Elections (Aquino). For the ponente, to extend the application of the one person-one vote principle to party-list and to apportionment laws would effectively overturn Aquino and subject apportionment laws like R.A. No. 9716 to possible constitutional challenges.^[3]

Also, for the ponente, the one person-one vote principle calls for absolute proportionality which the law does not require.

Lastly, the proposal in my dissenting opinion has no basis in the Constitution or in R.A. No. 7941.

Regrettably, I cannot share my colleague's learned disquisition. Contrary to the position of the ponente, the one person-one vote principle is applicable in party-list elections particularly when there is inequality in the crediting of votes coming from similarly situated voters in a constituency. More, as it stands, the one person-one vote principle, as applied in our party-list elections does not result into absolute proportionality as the said elections have inherent mechanisms that prevent the attainment of said absolute proportionality. This is why, in Veterans, Justice Panganiban characterized the party-list elections in this country as "unique," even dubbing it as Party-list Elections: Philippine Style.^[4] Lastly, contrary to the position of the ponente, the resulting proposal is but a result of judicial action of declaration of unconstitutionality and does not amount to judicial legislation.

Allow me to explain.

The ponente insists that the concept of one person-one vote is akin to absolute proportionality and has no application to apportionment or reapportionment laws or to our party-list elections.

I respectfully beg to differ.

As discussed in my September 15, 2020 Dissenting Opinion, the one person-one vote concept is rooted in the democratic and republican nature of the Philippine state, thus:

Article II, Sec. I 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 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 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 IIII v. COMELEC, 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 or 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.

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

While the ponente is correct to state that the one person-one vote concept is a hallmark of proportional representation, it does not mean that the same principle cannot apply to issues of apportionment or malapportionment, gerrymandering and other issues of voting equality.

On the contrary, the one person-one vote concept is particularly applicable to the validity of apportionment when issues of equal protection are raised. Apportionment is defined as the determination of the number of representatives which a State, county or other subdivision may send to a legislative body. It is the allocation of seats in a legislative body in proportion to the population; the drawing of voting district lines so as to equalize population and voting power among the districts. Reapportionment, on the other hand, is the realignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equality of representation.^[5] At its most basic, therefore, apportionment or reapportionment is simply the determination of how many representatives are to be sent to Congress.

In Reynolds v. Sim^[6] (Reynolds), the United States Supreme Court (USSC) noted the unequal populations of different counties that resulted in the disparity in voting powers of counties in Alabama due to years of no reapportionment laws being passed. The USSC then observed:

A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution's Equal Protection Clause. This is an essential part of the concept of a government laws, and not men. This is at the heart of Lincoln's vision of 'government of the people, by the people, [and] for the people.' The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races."

The USSC then concluded:

We hold that, as a basic constitutional standard the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State. Since under neither the existing apportionment provisions nor either of the proposed plans was either of the houses of the Alabama Legislature apportioned on a population basis, the District Court correctly held that all three of these schemes were constitutionally invalid. Furthermore, the existing apportionment, and also, to a lesser extent, the apportionment under the Crawford-Webb Act, presented little more than crazy quilts, completely lacking in rationality, and could be found invalid on that basis alone.

Also, in Wesberry v. Sanders,^[7] the USSC reversed the district court's dismissal of the complaint against the 1931 Georgia apportionment law that created constituencies that have glaring unequal populations. In applying the one person-one vote principle, the Court noted:

We hold that, construed in its historical context, the command of Art. I, 2, that Representatives be chosen "by the People of the several States" means that as [376 U.S. 1, 8] nearly as is practicable one man's vote in a congressional election is to be worth as much as another's. This rule is followed automatically, of course, when Representatives are chosen as a group on a statewide basis, as was a widespread practice in the first 50 years of our Nation's history. It would be extraordinary to suggest that in such statewide elections the votes of inhabitants of some parts of a State, for example, Georgia's thinly populated Ninth District, could be weighted at two or three times the value of the votes of people living in more populous parts of the State, for example, the Fifth District around Atlanta, Cf. Gray v. Sanders, 372 U.S. 368. We do not believe that the Framers of the Constitution intended to permit the same vote-diluting discrimination to be accomplished through the device of districts containing widely varied numbers of inhabitants. To say that a vote is worth more in one district than in another would not only run counter to our fundamental ideas of democratic government, it would cast aside the principle of a House of Representatives elected "by the People," a principle tenaciously fought for and established at the Constitutional Convention. The history of the Constitution, particularly that part of it relating to the adoption of Art. I, 2, reveals that those who framed the Constitution [376 U.S. 1, 9] meant that, no matter what the mechanics of an election, whether statewide or by districts, it was population which was to be the basis of the House of Representatives.

Lastly, the county unit system, the system used during the primary election for the Democratic party in the state of Georgia was challenged in Gray v. Sanders^[8] (Gray). There, petitioner claims that under the system, the value of the vote of a person counts for less and less as the population of the county increases. The Court eventually held that the principle of one person-one vote applies even to the primary elections which was practically an election. Also, it upheld the principle in this case holding that:

The Fifteenth Amendment prohibits a State from denying or abridging a Negro's right to vote. The Nineteenth Amendment does the same for women. If a State in a statewide election weighted the male vote more heavily than the female vote or the white vote more heavily than the Negro vote; none could successfully contend that discrimination was allowable. See Terry v. Adams, 345 U.S. 461. How then can one person be given twice or ten times the voting power of another person in a state-wide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote – whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of [372 U.S, 368, 380] "we the people" under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions.

The Court had consistently recognized that all qualified voters have a constitutionally protected right "to cast their ballots and have them counted at Congressional elections." United States v. Classic, 313 U.S. 299, 315; see Ex parte Yarbrough, 110 U.S. 651;Wiley v. Sinkler, 179 U.S. 58; Swafford v. Templeton, 185 U.S. 487. Every voter's vote is entitled to be counted once. It must be correctly counted and reported, As stated in United States v. Mosely, 238 U.S. 383, 386, "the right to have one's vote counted" has the same dignity as "the right to put a ballot in a box." It can be protected from the diluting effect of illegal ballots. Ex parte Siebold, 100 U.S. 371; United States v. Saylor, 322 U.S. 385. And these rights must be recognized in any preliminary election that in fact determines the true weight a vote will have. See United States v. Classic, supra; Smith v. Allwright, supra. The concept of political equality in the voting booth contained in the Fifteenth Amendment extends to all phases of state elections, see Terry v. Adams, supra; and as previously noted, there is no indication in the Constitution that homesite or occupation affords a permissible basis for distinguishing between qualified voters within the State. (underscoring supplied)

In all these cases, while they show vestiges of proportional representation, they also demonstrate that the principle of one person-one vote is equally applicable in questioning apportionment or reapportionment laws and the effects of malapportionment, even in primary elections, as long as there is unequal treatment of votes. Hence, with due respect, the limitation of the ponente as to the application of the doctrine is unfounded and there is no reason to single out party-list elections as an exemption from the application of the principle. Echoing Gray, party-list elections are practically an election.

Of course, the power of the courts to strike down invalid apportionment laws has been long recognized when it thwarts the equal protection clause. In Baker v. Carr,^[9] again, the USSC ruled that:

Under the Equal Protection Clause, a claim of debasement of the right to vote through malapportionment presents a justiciable controversy, and the Equal Protection Clause provides manageable standards for lower courts to determine the constitutionality of a state legislative appointment scheme.

Here, the issue of distribution of party-list seats is an issue of apportionment because it is a determination of how many representatives qualify for a seat in Congress. The only difference here is that unlike in Reynolds, supra, the constituency is national in character rather than by district or counties. If citizens from a different county are counted and treated differently from citizens from another country, this would result in a violation of the one person-one vote principle; much more with the present BANAT formula, which credits the votes gained by two percenters twice – once for the guaranteed seat and the other for the additional seat – to the detriment of the non-two percenters and giving greater voting power to voters of the two percenters compared to voters of the non-two percenters wholly without basis.

Simply put, in a national constituency, where every voter should have equal voting power, the BANAT formula credits votes twice when others credited only once. This is a blatant violation of the equal protection clause and the one person-one vote dictum.

Similarly, the claim that the one person-one vote principle in the Philippine party-list elections would result into absolute proportionality is clearly erroneous. A strict application of the one person-one vote principle is not achievable here because of the mechanisms in place under R.A. No. 7941, i.e., the two percent threshold and the three-seat cap. As such, these mechanisms prevent the application of absolute proportionality as they prevent party-list organizations who got more votes to be entitled to more seats following the Constitutional dictum of opening up the system to more interests and groups. Thus, claims of applying the doctrine of one person-one vote leading to absolute proportional representation is unfounded.

Lastly, I would like to stress that the inclusion of additional steps in the proposed formula are incidents of judicial power and does not amount to judicial legislation.

In Philippine Judges Association v. Prado,^[10] Sec. 35 of R.A. No. 7354 as implemented by the Philippine Postal Corporation through its Circular No. 92-28, effectively removed from the Judiciary its franking privileges but maintained the same privilege in favor of the other two great departments of Government. The Court therein declared the same as unconstitutional for violating the equal protection clause. Interestingly, as an effect of this judicial action, the Court restored the franking privileges that R.A. No. 7354 withdrew. This is clear in the fallo, thus:

ACCORDINGLY, the petition is partially GRANTED and Section 35 of R.A. No. 7354 is declared UNCONSTITUTIONAL. Circular No. 92-28 is SET ASIDE insofar as it withdraws the franking privilege from the Supreme Court, the Court of Appeals, the Regional Trial Courts, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the National Land Registration Authority and its Register of Deeds to all of which offices the said privilege shall be RESTORED. The temporary restraining order dated June 2, 1992, is made permanent.

SO ORDERED.^[11]

As can be gleaned above, declaration of unconstitutionality of a legislative or executive act would result in the removal of the obnoxious portions of the law. This is the purpose of the additional steps in the proposal. Obviously, the additional step, not in the letter of the law but included as an incident of a court decision, is the removal of the phrase "in proportion to their total number of votes" in Section 11(b), R.A. No. 7941. Thus, the formula proposed in my dissenting opinion preserves the intent of Congress and the Constitution while disregarding the inappropriate provisions that run contrary to the latter.

WHEREFORE, I vote to GRANT the Motion for Reconsideration and DECLARE Section 11(b) of Republic Act No. 7941 as UNCONSTITUTIONAL.

^[2] Rollo, pp. 404-440.

^[3] Synopsis, pp. 6-7.

^[4] Veterans v. Commission on Elections, 396 Phil. 419, 445, 453 (2000).

^[5] Bagabuyo v. Commission on Elections, 593 Phil. 678, 690-691 (2008).

^[6] 377 U.S. 533 (1964).

^[7] 376 U.S. 1 (1964).

^[8] 372 U.S. 368 (1963).

^[9] 369 U.S. 186 (1964).

^[10] 298 Phil. 502, 514-516 (1993).