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by Fritzie Palma Tangkia* and Ma. Araceli
Basco Habaradas**
Published by Ateneo School of Government and
Friedrich Ebert Stiftung (FES), Philippine Office
April 2001
"I think that it is now the time to return
the power to the people; let us have faith in them. And by faith,
I mean real and abiding faith, not just looking at the people
as some kind of a mystical entity in whose name the eternal political
in some of us have done themselves proud. In other words, let
the Filipinos chart their own histories."
- Commissioner Felicitas S. Aquino
1986 Constitutional Commission
I. Introduction
The intent is clear. The party-list system, an innovative mechanism
enshrined in the 1987 Constitution, aims to assure the various sectors
of the Philippine society, particularly the disadvantaged groups,
of representation in the highest lawmaking body of the Republic.
1
This is the essence of a representative government.
It cannot be gainsaid that the party-list system embodies the promise
of further democratization by giving an opportunity to various sectors,
especially the marginalized ones, to have their voices heard.2
However, despite the fact that a new avenue for political change
is at hand, this innovation in our democratic process was met by
grassroots organizations with a mixture of skepticism and excitement.3
While the party-list system is constitutionally-enshrined, Congress
was vested with the broad power to define and prescribe the mechanics
of this system of representation.4 In compliance with
this constitutional duty, Congress enacted Republic Act No. 7941,
otherwise known as the "The Party-List System Act".5
Unfortunately, what should have been a better-defined embodiment
of the party-list system appeared to be the further source of controversies
and ambiguities which necessitated judicial adjudication and interpretation.
This paper, by way of review of related literature, presents the
intentions, as well as the apprehensions of those who drafted the
legal framework of the party-list system, the difficulties met by
the party-list contenders, and the legal issues that arose from
the 1998 experience. With these, it is hoped that changes in the
law and in the attitude of the electorate that will transform a
well-intended mechanism into something that will truly work for
the Filipino people, shall be realized sooner than expected.
II. Concept, Intent And Expectations
A. The Party-List System
The party-list system is a mechanism of proportional representation
in the election of representatives in the House of Representatives
from national, regional and sectoral parties or organizations or
coalitions registered with the Commission on Elections ("COMELEC").6
The concept of party-list elections was drawn from the proportional
representation ("PR") electoral system "developed
in order to remedy a basic flaw or disadvantage of the majoritarian
or plurality system."7 This system is "based
on the proportion of votes obtained by a candidate with respect
to the totality of votes cast."8
More specifically, the scheme is closely patterned after a List
PR system where "proportionality is determined on the number
of votes cast in favor of parties (or organizations) where lists
of representatives or candidates on a national or regional basis
are presented to the electorate."9 It 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."10
B. Broadest Possible and Meaningful Representation
The party-list scheme is intended to "broaden representation
in the House of Representatives to include sectors and those organizations
that do not have well-defined political constituencies" and
"facilitate access to representation of minority or
small parties." 11 Sufficient representation
in the government of the disadvantaged groups — this is the
primary reason for the adoption of the party-list system in the
1987 Constitution.
"The basic aim of representative government is to attain
the broadest possible representation of all interests in its lawmaking
and policy-making body. It becomes necessary to give an opportunity
to the various social, economic, cultural, geographical and other
sectors of our society, particularly the disadvantaged groups,
to have their voices heard. And because they are usually without
sufficient funding or political machinery, it becomes incumbent
upon the government to extend such opportunity without the need
to go through an expensive electoral contest. For this reason,
the party-list system has been adopted in the new Constitution
to assure them of representation in the highest lawmaking body
of the Republic."12
The "heart of proportional representation is inclusion:
it seeks to facilitate and ensure the entry and participation of
all major interest groups, or at least of as many such groups as
possible, in the crucial endeavor of national legislation."
13 Thus, being a system of proportional representation,
the party-list system is "intended to give to marginalized
parties or groups access to the House of Representatives" 14and
"to prevent [these] small groups from actually being left out
in the democratic process."15
The party-list system's potential to bring some changes in the
political system was recognized during the deliberations on what
is now Article VI, Section 5(2) of the Constitution. More specifically
expressed was the expectation that the system shall give political
power to the marginalized sectors:16
"MR. TADEO: Our experience, however, has shown that legislation
has tended to benefit more the propertied class who constitutes
a small minority in our society than the impoverished majority,
70 percent of whom live below the poverty line. This has come
about because the rich have managed to dominate and control the
legislature, while the basic sectors have been left out of it.
So, the critical question is, how do we ensure ample representation
of basic sectors in the legislature so that laws reflect their
needs and aspirations?"17
Thus, when the enabling law for this system was drafted, the premise
was that the said system of voting "should be reserved for
marginalized political groups who are too weak to get their own
congressmen elected on the basis of districts as constituencies."18
Being conceived in the hope "that the system will democratize
political power by encouraging the growth of a multi-party system"19,
the prospects of increased political participation for parties and
organizations became a necessary consequence:
"By its very nature, the [party-list system] opens the doors
of government to many political parties. It is an arrangement
that tends to favor small and new parties, to the extent that
it accords them far greater chances of gaining seats than majority
or even plurality systems allow them."20
As a result, the promise of democratization may be realized as
the party-list system "encourages the formation of genuine
political parties representing organizations and groups long-excluded
from political process, armed with definitive sets of principles
and accountable to their members."21
This intent was translated into a Policy Statement as provided
in the Party-List System Act, to wit:
"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 of organizations or coalitions thereof,
which will enable Filipino citizens belonging to 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." (Emphasis
supplied)
This policy of enabling the marginalized and underrepresented
sectors to have not only the "broadest possible representation"
but also a "meaningful representation" in the House of
Representatives has been reiterated in the case of Osmeņa
vs. Commission on Elections22 where
the Supreme Court enunciated:
"The party-list system, an innovation introduced by the
1987 Constitution in order to encourage the growth of a multi-party
system is designed to give a chance to marginalized sectors of
society to elect their representatives to the Congress. A scheme
aimed at giving meaningful representation to the interests
of sectors which are not adequately attended to in normal deliberations,
it is envisioned that system will encourage interest in political
affairs on the part of a large number of citizens who feel
that they are deprived of the opportunity to elect spokesmen of
their own choosing under the present system. It is expected to
forestall resort to extra-parliamentary means by minority
groups which would wish to express their interests and influence
governmental policies, since every citizen is given a substantial
representation."23
And considering the expense a nationwide political campaign entails,
the party-list system is a welcome development. As aptly couched:
"I think the party-list system was installed in our Constitution
in order to expand the democratic basis of our Government. In
other words, politics is expensive. In this country, one has to
belong to the landed economic or political elite to be elected
into Congress."24
C. Non-Personality Oriented Politics
In addition to its promise of broader representation and "inclusion",
the party-list system25 also serves as "a break
from personality-oriented politics towards a more program-based
political system." Termed as a "long-awaited breakthrough"26,
the party-list system is meant to introduce a new concept to the
Filipinos since they have "to vote for parties instead of for
persons or distinct personalities."27
"The party-list system institutionalizes for the first time,
sectoral representation by providing for the election of candidates
over and above those who win in their respective districts. .
. . [I]t is intended to fortify the party system and democratize
representation in the House of Representatives." 28
This "novel experiment"29gives a new face
to the kind of politics with which the country is familiar considering
that this List PR system hopes to:
(i) Contribute to the institutionalization of political justice
and electoral reform by providing opportunities to sectoral
parties and organizations to gain representation in Congress;
(ii) Give legal premium to membership in political parties
and sectoral organizations where changes in political affiliation
shall cause the forfeiture of position as party-list representative;30
and
(iii) Advance program-based and issue-based politics through
a system of electing parties and organizations rather than individuals
and personalities.31
III. Apprehensions And Contentions
After a thorough deliberation on the provision regarding the party-list
system of representation, the 1986 Constitutional Commission adopted
the following:
"(1) The House of Representatives shall be composed of not
more than two hundred and fifty members, unless otherwise provided
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 other
sectors as may be provided by law, except the religious sector…"
32
Varied apprehensions, as well as suggestions, on the constitutional
and legal framework of the party-list system were expressed during
the deliberations of both the 1986 Constitutional Commission, and
Congress. While outvoted, the value of these suggestions in gauging
the effectiveness of the system cannot be overemphasized.
A. Participation of Political Parties
The apprehension in allowing the participation of traditional political
parties in the party-list system, one of the most fervently discussed
concerns, was captured best in Dr. Wilfredo Villacorta’s statements
during the 1986 Constitutional Commission deliberations:
"MR. VILLACORTA: We already have an Upper House which will
likely be dominated by charismatic nationally known political
figures. We have allocated 80 percent of the Lower House for district
representatives who will most likely win on the bases of economic
and political power. We are purportedly allowing 20 percent of
the Lower House seats to be allocated to representatives of parties
and organizations who are not traditional politicians. And yet,
because we subject the sectoral candidates to the rough-and-tumble
of party politics and pit them against veteran politicians, the
framers of the Constitution are actually predetermining their
political massacre.
Madam President, the party list system in the form that it
is being proposed [allowing participation of political parties]
will only exacerbate the frustrations of the marginalized sectors.
. . ." 33
Though met with opposition, the attempt to totally exclude the
major political parties was pursued in order to close the door to
traditional politicians who may desire party-list seats:
"MR. VILLACORTA: First of all, I question the assumption
that sectoral candidates will have an equal chance of winning
a party list election when they compete with the politicians who
belong to the traditional political parties. I question this assumption
because even if the sectoral groups were forced to organize, their
machineries would not be as well-oiled or as well-funded as those
of the traditional political parties. Chances are, in such
a party list election, that does not give priority to these sectors;
the traditional politicians will prevail over the sectoral candidates.
…
For one, I can think of the party list as an instrument for electing
sectoral representatives. I would be in favor of the party list
system on condition that this system be only for the sectoral
candidates. If we allow the politicians to run under this system,
then we are giving much more to those who already have power and
resources…" 34
The attempt to exclude the major political parties from vying party-list
seats was also noted during the congressional deliberations on what
is now the Party-List System Act:
". . . But the justification given for excluding them in
the party-list system is that the idea of party-list system would
be defeated, or the very purpose of giving access to small groups
that cannot elect candidates on the district basis will be defeated,
if the parties that are already big and can elect congressmen
by district would still be given a chance for additional representatives
through the party-list system."35
As further relevantly stated:
"If the large parties would still be allowed to participate
in the scheme, they invariably would have the advantage and this
might just perpetuate the dominance of these large parties."36
As a result of the inclusion of the political parties, coupled
with the fact that only twenty percent (20%) of the seats in the
House of Representatives are granted to the party-list representatives,
the sentiment that the party-list system is a mere "token concession"
arose:
"Throughout the history of Philippine politics, the economic
and political elite has always held on tightly to the helms of
power. Thus many could not help but remain sceptical about the
20% seat allocation granted to party-list groups under the new
law. Can this unbalanced system of representation, tainted by
traditional politics, be remedied by merely reserving one fifth
of the seats in the Lower House for the representatives of the
marginalized? Given the deeply rooted power of traditional
politicians, the party-list system seems to be more like a token
concession to those advocating broad based political participation."37
Despite this valid concern, the political parties were not disqualified
from joining the party-list scene for as long as the "political
party is really organized along a specific sectoral line. If such
is verified or confirmed, the political party may submit a list
of individuals who are actually members of such sectors."38
It was even observed that the inclusion of political parties in
the party-list system had an advantage:
"[T]his party-list system is exciting to us in the sense
that we have always complained that -- and I am experiencing it
now; that is why pardon me if I have to refer to my position as
party President -- a lot of good people whom we are trying to
convince or draft to be candidates under a political party usually
beg off. The principal reason really is that politics is dirty
or they cannot afford it. In some cases, they cannot see themselves
conducting a national campaign or a barangay-to-barangay campaign.
The idea that is crossing my mind is that the party-list
system is an ideal vehicle for the political parties to be able
to improve the quality of the House of Representatives by including
in their party list very distinguished and qualified people who
otherwise would not run for election."39
B. Perpetual Reservation of Seats for Basic Sectors
As the political parties are not prevented from invading the party-list
system arena, the age-old problem on the concentration of socioeconomic
and political power to an elite few remains a concern. Thus, as
an alternative, attempts were made to give preferential treatment
to certain identified sectors by proposing a feature on permanently
reserved seats:
"MS. AQUINO: … My personal position is: (1) we should
provide for perpetual reservation of institutional seats for
the basic sectors – and by that, we refer to the peasants,
the labor, the youth and the urban poor…
The problem with Philippine politics now is that the concentration
of socioeconomic and political power is in the hands of the few,
while the majority of the people are destitute and powerless.
Now is the time and the unedited opportunity for us to transfer
the center of gravity of socioeconomic power from the people on
top to the people below. The proposal for sectoral representation
is hardly iconoclastic; it is not a leftist aberration as some
of us are inclined to think. Why do we have to look askance at
it as a dynamic and powerful sectoral representation? Now, more
than ever, is the time for us to realize the lessons of history.
History is liberating, otherwise, we might as well consign it
to the dung heap of oblivion. History has told us to be either
nationalistic or wary of the forces that invade self-determination
or it could also be just a kinetic over-reaction. But history
is the best teacher in the sense that a people’s history
is liberating history. We know that traditional politics has denied
the people the right to make their own mistakes. Elite politics
has been sure-fire formula for depriving us of the luxury of making
our own mistakes. I think that it is now the time to return the
power to the people; let us have faith in them. And by faith,
I mean real and abiding faith, not just looking at the people
as some kind of a mystical entity in whose name the eternal politician
in some of us have done themselves proud. In other words, let
the Filipinos chart their own histories."40
This desire to give reserved seats to identified disadvantaged
sectors is also a recognition of the inability of these sectors
to compete in the political process.41 Fr. Joaquin Bernas,
1986 Constitutional Commissioner, gave a persuasive attempt to pursue
the "permanentizing" of reserved seats in Congress:
"FR. BERNAS: Madam President, I would like to say a few
words in support of the amendment proposed by Commissioner Tadeo
for the ‘permanentizing’ of reserved seats for the sectors.
The basic premise for this is that by these sectors, we mean the
underprivileged masses. That is clearly what is in our mind. The
sectors mentioned are understood as the underprivileged masses.
In the 1935 and 1973 Constitutions and again in our new Constitution,
we have enshrined the concept of social justice not so much as
a philosophical concept but as a practical concept, meaning, that
those who have less in life should have more in law. Now we are
placing sectoral representation side by side with the party list
system, and I think it is important to look at it in that context.
The effort to introduce the party list system has for its objective
the equalization of political power. In other words, in order
that political power will not be concentrated in two parties,
we are attempting to introduce a party list system in order to
distribute political power among various parties. But the distribution
of political power is very much dependent, we might even say essentially
dependent, on the distribution of economic power and the effective
distribution of economic power would take quite a while.
…
Therefore, by ‘permanentizing’ these twenty-five
seats reserved for the underprivileged, I think that we will be
permanently injecting into the legislative process direct contact,
as it were, with the large masses of people whose economic position
in life need to be elevated…" 42
However, this attempt to permanently reserve seats was vigorously
opposed:
"MR. OPLE: … There is an outright constitutional
gift for the first two terms of the sectoral representatives but,
after that, they will have to earn the seats through participation
in a party list system or, even beyond that, to be direct competitors
with established and more orthodox parties in the general political
arena. I see no reason why after having occupied seats in the
House of Representatives for two terms, the representatives of
sectors may not be able to combine their forces in order to form
their own political parties or become powerful adjuncts to existing
political parties so that they will enjoy not only the benefits
of a party list system but also the benefits of being able to
compete directly in the wider political arena."43
In the end, however, the proposal to give permanent reservation
of seats to certain sectors was outvoted. Instead, the reservation
of seats to sectoral representatives was only permitted for three
terms.44
"This compromise recognizes the handicap under which disadvantaged
sectors operate but at the same time it is meant to motivate them
to strengthen their organizations so that they will eventually
be able to compete in the regular party-list system three consecutive
terms after the operation of the party-list system commences."45
IV. The 1998 Experience
A. Low Voter Turnout
In the 1998 party-list elections, the first in Philippine history,
only 33.1% or only 9,046,931 voted46 for a party-list
candidate out of the estimated 27,330,772 total voter turnout.47
This was not a surprise. There are several reasons for this, some
of which are the following:
1. Novelty of the Party-List Concept
The most obvious reason behind the low voter turnout lies in the
"novelty of the party-list concept."48 Confusion
arose because the electorate which traditionally votes for individual
candidates as their district representatives in the House of Representatives
also had to vote for a party, organization or coalition as their
party-list representative in the same House.
"The general public has been used to voting for single
member district representative for too long that the call to cast
an additional vote for a party-list representative did not register
with many voters. Others were simply too confused and did
not understand the procedure involved in this innovative feature.
Still others were simply indifferent.49
This confusion was, in fact, foreseen during the interpellations
on the Party-List System Act:
"Senator Tolentino: I think this should be something
very new to our people, to our electorate and there may be some
confusion. It is possible that the number of votes that
will be cast under this system will not be as big as we might
expect because the only experiment we had in voting by parties
was under the block-voting system. But that was different. That
was the only time we had a party vote.
I do not know how the people will actually vote here. They may
even be confused, and some ballots may be invalidated if we put
the party vote and the individual vote by district in the same
ballot. That is why I suggested to the Comelec that, perhaps,
there should be two ballots, one ballot for the regular elections,
and another ballot just for the party-list system. Many ballots
may be invalidated because of some errors in the party-list system.
I would think that our people are so new to this system that
they may not really like it because the culture among our people
is that they want to put the individual candidates who will be
the ones they are going to vote for. But in the case of the party
vote, they just vote for the party and the party itself picks
the individual who will represent it in Congress."50
2. COMELEC Inefficiency
With the potential public confusion in mind, the Senate noted the
very important role that the COMELEC shall play both in voters’
education and in the careful implementation of the party-list system.
51 Unfortunately, the COMELEC fell short on this expectation.
As early as 1996, COMELEC has already been tasked to start preparing
for the party-list elections. On the same year, education and information
dissemination on the new system should have begun. 52
However, as the events during the 1998 elections have shown, COMELEC
failed in its task to educate and inform the public:
"COMELEC's inefficiency and lack of interest in the party
list elections were even more obvious during the campaign period.
I only saw one primer and maybe two television advertisements,
which aired about two weeks before election day. . . . [M]edia
was not active enough in disseminating information about the party
list either." 53
The consequence was disastrous. It meant that party-list groups
were saddled with a "double burden: they had to explain the
party list system to the people first, before they could explain
why their party was the right party-list choice."54
In other words, "parties and organizations running
for seats found themselves doing campaign work and voters’
education at the same time. Before the campaigners could extol the
virtues of their group, they had to explain the concept and the
mechanics of the party-list system to the people."55
3. Lack of Awareness Among Boards of Election Canvassers
Another factor which resulted in the low voter turnout in the 1998
party-list elections was the "indifference and lack of awareness
among Board[s] of Election Canvassers"56 . The explanation
behind this is worth quoting, to wit:
"Indifference and lack of awareness among Board[s] of
Election Canvassers also resulted in the non-counting of votes
in some areas. Some canvassers simply decided to ignore the
party-list voters, since this would have made the proceedings
more complicated. Votes for 123 parties needed to be canvassed,
which required teachers to shift through numerous pages to record
the votes. The party-list count was, thus, completely abandoned
in some areas.
Mistakes were also committed when a sector was written on the
ballot and listed for a party-list group with a name sounding
closest to that sector. Canvassers were not very careful about
the counting of the votes because only a few were aware of the
importance and necessity of the party-list system."57
4. Confusing Instructions
Ironically, what should have helped the general public in understanding
the party-list system was also one of the reasons behind the disappointing
voter turnout in the 1998 elections.
"The instructions for the casting of votes for the party-list
representative has confused many voters, because its wording gives
the impression that one votes for a sector and not a group or
party from the sector. Clearer instructions could have prevented
lost votes due to mistakes made in filling out the ballots.
Confusion also resulted from the layout of the ballot itself. The
slot for party-list representatives should have been placed immediately
before or after the district representatives."58
B. Dismal Results
Of the 123 COMELEC-accredited groups, only thirteen were able to
garner at least 2% of the total votes cast for party-list candidates.
This lackluster performance, which was also a result of the low
voter turnout for the party-list representatives, was aggravated
by the following factors:
1. The Two Percent Threshold
Under the Party-List System Act, only those parties, organizations
and coalitions garnering a minimum of 2% of the total valid votes
cast for the party-list system are qualified to have a seat in the
House of Representatives.59
The 2% threshold has been incorporated in the Party-List System
Act for the following reasons:
- To avoid a situation where the candidate will just use the party-list
system as fallback position;
- To discourage nuisance candidates or parties, who are not ready
and whose chances are very low, from participating in the elections;
- To avoid the reserve seat system by opening up the system;
- To encourage the marginalized sectors to organize, work hard,
and earn their seats within the system;
- To enable sectoral representatives to 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;
- If no threshold is imposed, 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
- To ensure that only those with a more or less substantial following
can be represented.60
While the foregoing reasons are all laudable, the 2% threshold
was one of the most notable reasons behind the failure to achieve
"broadened representation":
"[S]everal sectors will apparently remain ‘unrepresented’
in the Eleventh Congress. Among these are OCWs, labor, fishers,
elderly, youth, disabled, indigenous peoples, and professionals.
This is so because the parties that sought to represent them failed
to meet the 2% threshold. This sad failure is but one more
indication of the inadequacy of RA 7941 as a tool for proportional
representation."61
Only fourteen out of the fifty-two allocated party-seats were filled.
The only sectoral groups which earned party-list seats were those
from the labor, peasant and women sectors. The rest of the sectors
remained unrepresented.62 The following observations
63 on this outcome are worthy of attention:
- One striking reality is that had more groups united, more seats
would have been filled. What happened was that a lot of votes
were wasted due to the fragmentation of groups.
- The progressive movement did not prove much to the traditional
politicians. On the contrary, the division which became obvious
could even be used against them.
- But there is also hope. Since only thirteen parties made it,
the possibility of consolidating in Congress is greater, especially
among the six parties with progressive elements.
2. The Three-Seat Limitation
Section 11(b) of the Party-List System Act provides:
"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)
This three-seat limitation has its downside. It encouraged "separate
petitions for COMELEC accreditation by groups that could otherwise
have banded together and, by so doing, could have become a greater
electoral force."64 One striking reality is that
had more groups united, more seats would have been filled. What
happened was that a lot of votes were wasted due to the fragmentation
of groups. The fragmentation among sectors was attributed to the
three-seat ceiling:
"There was no imperative to unite, but more of an imperative
to 'separate'. The meager number of seats to be won was hardly
an incentive for groups to form coalitions. The temptation for
larger organizations (which claimed huge memberships) to go [through]
it alone -- and possibly win all three seats for themselves --
was too much. The goal was to capture as many seats as possible,
at the expense of unity."65
C. The Legal Controversy
1. The Conflict
In the case of Veterans Federation Party, et. al. vs. Commission
on Elections, et. al.,66 a consolidation of several
cases, the Supreme Court ruled upon legal issues arising from the
interpretation and implementation of the Constitutional provision
on, and the enabling law of, the party-list system.
The legal controversy arose when only thirteen parties67
were able to hurdle the 2% threshold during the first party-list
elections in 1998. This resulted in the proclamation of only 14
party-list representatives,68 far below the 52 party-seats,
the equivalent of the 20% allocation provided in the Constitution.
In these consolidated cases, three issues were raised:
- Is the twenty percent (20%) allocation for party-list representatives
mentioned in Section 5(2), Article VI of the Constitution, mandatory
or is it merely a ceiling? In other words, should the twenty percent
allocation for party-list solons be filled up completely and all
the time?
- Are the two percent (2%) threshold requirement and the three
(3)-seat limit provided in Section 11(b) of the Party List System
Act unconstitutional?
- How should the additional seats of a qualified party be determined?
2. The Resolution
In resolving the issues raised in the said case, the Supreme Court
was guided by four inviolable parameters:
- The Twenty Percent Allocation. The combined number of
all party-list congressmen shall not exceed twenty percent
(20%) of the total membership of the House of Representatives,
including those under the party-list.
- The Two Percent Threshold. Only those parties garnering
a minimum of 2% of the total valid votes cast for the party-list
system are qualified to have a seat in the House of Representatives.
- 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.
- Proportional Representation. The additional seats which
a qualified party is entitled to shall be computed "in proportion
to their total number of votes".
Guided by these inviolable parameters, the Supreme Court ruled
on the above-mentioned legal issues as follows:
i. The 20% allocation is a mere ceiling.
The 20% allocation provided in the Constitution is not mandatory,
i.e., all seats allocated for party-list representatives
need not be filled completely and at all times, but a mere ceiling.
To quote the Supreme Court:
"Clearly, the Constitution makes the number of district
representatives the determinant in arriving at the number of seats
allocated for party-list lawmakers, who shall comprise "twenty
per centum of the total number of representatives including those
under the party-list." We thus translate this legal provision
into a mathematical formula, as follows:
(Number of district representatives) = (Number of party-list)
---------------------------------------------------
20
…
We rule that a simple reading of Section 5, Article VI of
the Constitution, easily conveys the equally simple message 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 of the House of Representatives reserved for
party-list representatives.
In the exercise of its constitutional prerogative, Congress enacted
the [Party-List System Act]. As said earlier, Congress declared
therein a policy to promote ‘proportional representation’
in order to enable Filipinos belonging to the marginalized and
underrepresented sectors to contribute legislation that would
benefit them. It, however, deemed it necessary to require parties,
organizations and coalitions participating in the system to obtain
at least 2% of the total votes cast for the party-list system
in order to be entitled to a party-list seat. Those garnering
more than this percentage could have ‘additional seats in
proportion to their total number of votes.’ Furthermore,
no winning party, organization or coalition can have more than
3 seats in the House of Representatives.
…
Considering the foregoing statutory requirements, the 20%
allocation is not mandatory. It merely provides a ceiling for
the party-list seats."69
ii. The 2% threshold and the three-seat limit are not unconstitutional.
The 2% threshold imposed by the Party-List System Act is in accordance
with the "very essence of representation", while the three-seat
limit "ensures the entry of various interest-representations
in the legislature". In the words of the Supreme Court:
"In imposing a 2% threshold, Congress wanted to ensure that
only those parties, organizations and coalitions having sufficient
number of constituents deserving of representation are actually
represented in Congress.
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.
…
[Anent the three-seat limit], an important consideration in adopting
the party-list system is to promote and encourage a multiparty
system of representation... Such three-seat limit ensures the
entry of various interest-representations into the legislature;
thus, no single group, no matter how large its membership, would
dominate the party-list seats, if not the entire House."70
iii. The Formula for Determining Additional Seats
a. The initial step, according to the Supreme Court, is to rank
all the participating parties, organizations and coalitions from
highest to the lowest based on the number of votes they each received.
Then the ratio for each is computed by dividing each party's votes
by the total votes for all the parties participating in the system.
All parties with at least 2% of the total votes are guaranteed one
seat each. Only these parties shall be considered in the computation
of additional seats. The party receiving the highest number
of votes shall be referred to as the "first party".
b. The next step is to determine the number of seats the first
party is entitled to, in order to be able to compute that for the
other parties. Note, however, that:
"[s]ince the distribution is based on proportional representation,
the other qualified parties will always be allotted less additional
seats than the first party for two reasons: (1) the ratio between
said parties and the first party will always be less than 1:1,
and (2) the formula does not admit of mathematical rounding off."71
The formula for computing the number of seats to which the first
party is entitled, as laid down by the Supreme Court, is as follows,:
(Number of votes of first party) / (Total votes for party-list
system) = (Proportion of votes of first party relative to total
votes for party-list system )
Moreover, "[i]f the proportion of votes received by the first
party without rounding it off is equal to at least 6% of the total
valid votes cast for all the party-list groups, then the first party
shall be entitled to two additional seats. But the 6% benchmark
is applicable only in determining the number of additional seats
the first party is entitled to. It cannot be used to determine the
number of additional seats of the other qualified parties because
this would violate the principle of proportional representation."
72
c. The third step is to solve the number of additional seats to
which the other qualified parties is entitled based on proportional
representation. According to the Supreme Court, the simplified formula
for this is as follows:
(Additional seats for concerned party) = [ (Number.
of votes of concerned party)/ (Number of votes of first
party)] x (Number of additional seats allocated
to the first party)
Conclusion
The party-list system of representation, while laudable in its
intent, faces tough challenges ahead to make it truly effective
and to achieve the "broadest possible representation"
of the marginalized sectors.
The novelty of the concept, coupled with a less than efficient
COMELEC, resulted in a low voter turnout and lackluster party performance
in the first ever party-list elections.
The strict interpretation and application of its enabling law imposed
additional burdens with which party-list representatives have to
contend in order to make their voices heard in the halls of Congress.
As aptly pointed out by Justice Vicente Mendoza in his Dissenting
Opinion in the Veterans case:
"Already, the proportion of party-list representatives to
district representatives is small compared to the mixed system
in Germany where half of the seats (328) of the Bundestag are
district representatives and the other half (328) are reserved
for party-list representatives. The ruling announced today
would ensure that the proportion of party-list representatives
to the district representatives who constitute 80 percent of the
total membership in the House of Representatives is even less
than 20 percent. The constitutional intent to afford marginalized
groups in our society to be represented in the House is thus frustrated
if not subverted."73
With these things to consider, a challenge is posed:
"[T]he dismal result of the first election for party-list
representatives should serve as a challenge to our sectoral parties
and organizations. It should stir them to be more active and vigilant
in their campaign for representation in the State’s lawmaking
body. It should also serve as a clarion call for innovation and
creativity in adopting this novel system of popular democracy."74
May history prove that the Filipino people have valiantly met this
challenge.
Endnotes
* LL.B. 1999, University of the Philippines, Dean's
Medalist; Member, Philippine Bar - Ninth Place, 1999 Bar Exams;
A.B. 1995, Colegio de San Juan de Letran, Summa Cum Laude; Associate,
Camacho and Associates.
**J.D. 1999, Ateneo de Manila University, School of
Law, With Honors; Member, Philippine Bar; A.B.-B.S.C. 1994, De La
Salle University, Manila; Associate Editor (1998-99), Ateneo
Law Journal; Junior Associate, Carpio Villaraza & Cruz Law
Offices.
1Edward G. Libunao and Tet N. Abelardo, Only in the
Philippines: The Quirks of Our Party-List System, Political
Brief - Special Issue, Vol. 5, No. 9, September 1998, Institute
of Political Democracy, page 16.
2 Hector S. De Leon, Philippine Constitutional Law Principles
and Cases, Volume 2 (1999) , page 55.
3Agustin Martin G. Rodriguez and Djorina Velasco, "Democracy
Rising? The Trials and Triumph of the 1998 Party-List Elections",
1998, Institute of Political Governance, page 7.
4 1987 Philippine Constitution, Article VI, Section
5(2), as interpreted in the case of Veterans Federation Party
vs. COMELEC, G.R. Nos. 136781, 136786 and 136795 (October
6, 2000).
5"An Act Providing for the Election of Party-List
Representatives through the Party-List System and Appropriating
Funds Therefor"; Enacted by the Ninth Congress and signed into
law on 03 March 1995.
6Section 3, The Party-List System Act.
7Libunao and Abelardo, supra note 1.
8Atty. Alberto C. Agra, The Philippine Party-List System:
A Legal Critique, October 1, 1997, page 2. In this critique prepared
through the Dr. Manuel Lim Endowment Fund, Atty. Agra also
discussed among others, the different kinds of PR schemes and the
purpose and features of the party-list system.
9Id. (Citing Handbook of Electoral System Design,
International Institute for Democracy and Electoral Assistance,
August 1997, page 19).
10Libunao and Abelardo, supra note 1.
11Libunao and Aberlardo, supra note 8, at pages
4-5.
12De Leon, supra note 2, at page 55 citing
the 1986 U.P. Law Center Constitution Project, Legislative Department
13Libunao and Abelardo, supra note 1, at pages
17.
14Senator Arturo Tolentino during his sponsorship speech
for Senate Bill No. 1913, Record of the Senate on the P:arty-List
System, Volume II, No. 32, page 119.
"Marginalized parties" as defined by Senator Tolentino,
are "those which, on their own strength as political parties,
would not be able to elect Congressmen in the different districts
because they would not have the number of votes needed in particular
districts [and] if these [votes] are combined together on a national
basis, they may be able to elect even one or two Congresmen on the
basis of proportional representation"; See Record of the Senate
on the Party- List System, Volume II, No. 32, page 1356.
15As stated by Senator Arturo Tolentino during the interpellations
for Senate Bill No. 1913, Record of the Senate on the Party-List
System, Volume II, No. 32, page 135.
16The Constitutional Commission of 1986 - Record of
the Constitutional Commission, Volume 3, page 561.
17Id. at page 562.
18Senator Arturo Tolentino during his sponsorship speech
for Senate Bill No. 1913, Record of the Senate on the Party-List
System, Volume II, No. 32, page 119.
19Joaquin Bernas, S.J. Constitutional Structure and
Powers of Government - Part 1, 2nd Edition (1997)
20Libunao and Abelardo, supra note 1, at page
13.
21Melay Abao, Notes on the May 11, 1998 Party-List
Elections, Political Brief- Special Issue, Vol. 5, No. 9 (1998),
Institute of Popular Democracy
22288 SCRA 447, 507 (1998)
23Citing Joaquin Bernas, S.J., The Intent of the 1986
Constitution Writers (1995), page 344 . [Emphasis supplied].
24As stated by Senator Leticia Ramos-Shahani during
the interpellations for Senate Bill No. 1913, Record of the Senate
on the Party-List System, Volume II, No. 34, page 156.
25Abao, supra note 21, at page 1
26See comment of Constitutional Commissioner Nieva in
The Constitutional Commission of 1986 - Record of the Constitutional
Commission, Volume 3, page 574.
27Record of the Senate, supra note 24, at page
157.
28De Leon, supra note 2, at page 56.
29Record of the Senate, supra note 24, at page
157.
30A provision against turncoatism is provided in Section
15 of the Party-List System Act: "Section 15. Change of Affiliation;
Effect. - Any elected party-list representative who changes his
political party or sectoral affiliation during his term of office
shal forfeit his seat: Provided, That if he changes his political
party or sectoral affiliation within six (6) months before an election,
he shall not be eligible for nomination as party-list representative
under his new party or organization."
31Supra note 8, at pages 4-5. In this critique,
Atty. Agra makes a thorough enumeration of the specific purposes
and advantages of a List PR system.
32This is now Article VI, Section 5 of teh 1987 Philippine
Constitution. (Emphasis supplied)
33The Consitutional Commission of 1986 - Record of the
Constitutional Commission, Volume 3, 25 July 1986 deliberations,
pages 554-555. (Emphasis supplied)
34Id. (Emphasis supplied)
35Senator Arturo Tolentino during his sponsorship speech
for Senate Bill No. 1913, Record of the Senate on the Party-List
System, Volume II, No. 32, page 120.
36As stated by Senator Orlando Mercado during the interpellations
for Senate Bill No. 1913, Record of the Senate on the Party-List
System, Volume II, No. 33, page 140.
37Rodriguez and Velasco, supra note 3. (Emphasis
supplied)
38 The Consitutional Commission of 1986 - Record of
the Constitutional Commission, Volume 3, 25 July 1986 deliberations,
pages 257. (Emphasis supplied)
39 As stated by Senator Ernesto Maceda during the interpellations
for Senate Bill No. 1913, Record of the Senate on the Party-List
System, Volume II, No. 32, page 127-128. (Emphasis supplied)
40 The Consitutional Commission of 1986 - Record of
the Constitutional Commission, Volume 3, 25 July 1986 deliberations,
pages 566. (Emphasis supplied)
41 Joaquin Bernas, S.J., The Constitution of the Republic
of the Philippines, Volume II (1988), page 90 citing II Record
of the Constitutional Commission, pages 253-254.
42 The Consitutional Commission of 1986 - Record of
the Constitutional Commission, Volume 3, 25 July 1986 deliberations,
pages 567. (Emphasis supplied)
43 The Consitutional Commission of 1986 - Record of
the Constitutional Commission, Volume 3, 25 July 1986 deliberations,
pages 568. (Emphasis supplied)
44 Article VI, Section 5(2) of the 1987 Constitution.
45Bernas, supra note 40 citing II Record
of the Constitutional Commission, pages 567-570, 577-582.
46 Interpellations on Senate Bill No. 1913, Record of
the Senate on the Party-List System, Volume II, No. 34, page 157.
47Note the comments made by Senators Tolentino and Shahani
during the interpellations on Senate Bill No. 1913, Record of the
Senate on the Party-List System, Volume II, No. 34, page 157.
48 Rodriguez and Velasco, supra note 3, at page
8.
49 Ibid. (Emphasis supplied)
50 Interpellations on Senate Bill No. 1913, Record of
the Senate on the Party-List System, Volume II, No. 34, page 157.
(Emphasis supplied)
51Libunao and Abelardo, supra note 1, at page
18.
52G. Luis Igaya, "The Failure of the Party-List
Elections", Conjuncture, Vol. 10, No. 2, June 1998, cited
in Rodriguez and Velasco, supra. Note 3.
53Abao, supra note 21, at page 4.
54Ibid.
55Rodriguez and Velasco, supra note 3, at page
9.
56Ibid.
57Id. (Emphasis supplied)
58Id. (Emphasis supplied)
59Section 11, Party-List System Act.
60Seperate Concurring Opinion of Justice Reynato Puno
in the case of Veterans Federation Party vs. COMELEC, G.R.
Nos. 136781, 136786 and 136795 (October 6, 2000)
61Libunao and Abelardo, supra note 1, at page
16. (Emphasis supplied)
62Abao, supra note 21, at page 7
63Ibid.
64Libunao and Abelardo, supra note 1, at page
18.
65Abao, supra note 21, at page 3
66G.R. Nos. 136781, 136786 and 136795 (October 6, 2000).
67Parties or organizations or coalitions.
68APEC, which garnered the most number of votes, was
given two seats.
69Veterans Federation Party, et. al. vs. Commission
on Elections, et. al. , G.R. Nos. 136781, 136786 and 136795
(October 6, 2000); (Emphasis supplied)
70Ibid. (Emphasis supplied)
71Id.
72Ibid
73Id.
74Id. (Emphasis supplied)
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Copyright Friedrich-Ebert-Stiftung 2001
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