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Transcription in Constitutional Law

Cesar M. Salarza
August 14, 2013



Determination of the 20% allocation for the Party-list Members

Qualifications of District Representatives
Party Nominees
Term of office

There is a provision in RA 7941 that says that the party-list organizations, this is
section 11 paragraph B of 7941 states the parties, organizations and coalitions
receiving at least two percent 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
of the votes shall be entitled to additional seats in proportion to their total number
of votes. This is the provision where there is a difference between the VETERANS
case and BANAT case because in the VETERANS case, the Supreme Court
interpreted this as in proportion to their total number of votes in relation to their
total number of votes of the 1st party and how many seats the 1st party has. In the
veterans there should be no way that the 2 nd, 3rd, 4th, and so on ranking parties
should not have a number of seats equivalent to the 1 st party, because in the mind
of SC in the case of veterans, in proportion means ano and boto ko in relation sa
boto ng first party so if the 1st party has 20 percent then I have 10 percent votes, I
have 50 percent less than the 1 st party and we have a provision on 3 seat limit, the
SC interpreted this to mean as if you have 2 percent you have 1 seat, 4 percent 2
seats, 6 percent 3 seats, this would mean that if they would not apply formula that
they imposed in the VETERANS that the 1 st party with 20 percent and 2 nd party with
10 percent will have the same number of seats, now the SC cannot accept that so
when you read the VETERANS case the SC provide 2 formulae - it complicated what
should have been as simpler process of allocating seats because of that mindset.
That is why when they solve for the 1 st ranking, madali lang kinuha nila yung
percentage if you have 2% 1 seat , 4% 2 seats, 6% 3 seats (refer to the solving) but
when they solve for the 2nd ranking party down, the total number of votes of the
concerned party divided by the total number of votes of the 1 st party. What is wrong
with that? The law says total number of votes of the concerned party in relation to
the total number of votes. So I f I say 2%, I have 2% if the total number of votes
NOT that I have 2% of the total votes of the 1 st ranking party. Doon nagkamali ang
SC, that is why when they revisited the VETERANS and made a decision in BANAT,
they made the computation much simpler; get their total percentage by computing
your number of votes in relation to the total number of votes in the party-list
election and in the case of Ang Bagong Bayani in 2003, the SC said that the total
number of votes mean that you do not count the votes for the disqualified parties,

only for the qualified parties. The original number of votes is around 50 million but
what was before the COMELEC ruled that of the 50 million, only 6 million are for the
qualified parties, the rest were votes for the disqualified parties.

After ranking the party-lists, the next step would be those who obtained 2% and
more shall have 1 guaranteed seat. So the 2% is still true or valid with regards to 1
guaranteed seat. Now after that, there is a 2 nd round of allocating seats, not
computation actually but allocating seats because this time, after giving out the
guaranteed seats, ilan ang remaining seats? the percentage of the votes obtained
by a party in relation to the remaining available seats. So let us say that we have a
ranking of 8.9%, 7.9% x the number of remaining seats, so ilan ang upuan ko dyan?
Now the next provision of the law provided that those garnering 2% if the total
votes shall be entitled to have an additional seat in proportion to their total number
of votes, we are talking about additional seats. In VETERANS, only those with 2%
and up are entitled to additional seat, but in BANAT the SC said that that portion is
now declared as unconstitutional.
Why? Because, if we follow this, no
mathematical formula would yield a number that would fill the entire 20%
allocation, although it is not mandatory, there would be no instance in the future
wherein the entire 20% available seats would be filled up. So meaning, that
provision of the constitution would remain fictional because the provision of law
cannot reach that 20%. As the SC declared that provision unconstitutional, what
does that mean? 4 additional seats this is not only for those 2 percenters, you still
follow the ranking, those who have 2% or more, get their percentage in relation to
the remaining seats, give them the seats that they are entitled to, up to 3 seats
each. What about the rest? If I have 1.9% multiply it by remaining seats, say 38,
that would be equivalent to 1 seat then you are entitled to 1 seat. I am not a 2
percenter but still I am entitled of 1 guaranteed seat. After that, if you look at the
ranking, other parties have 0.9, 0.8, they did not reach the 1 percent mark, the SC
said that it is pointless to solve kasi hindi naman yan aabot hanggang 1, but what
did the SC did to this case? It distributed all the seats to the next in rank until all the
available seats would be filled up.
If you compare VETERANS and BANAT, in VETERANS, only the 1 st party will get the 3
seats, the 2nd party and down, 2 seats nalang yan, in fact when they use the
veterans formula, I think, 4 parties were given additional seats. But if you use the
BANAT formula, not only the 1st party will get the 3 seats but also the 2nd, 3rd, 4th,
may still get the 3 seats depending on the result of the percentage x number of
seats available. So if you were asked a question, is the 2% threshold constitutional?
Yes, as to the guaranteed seat and No as to additional seats.
Section 6 provides that no person shall be a Member of the House of
Representatives unless he is a natural-born citizen of the Philippines and,
on the day of the election, is at least twenty-five (25) years of age, able to

read and write, and, except the party-list representatives, a registered

voter in the district in which he shall be elected, a resident thereof for a
period of not less than one year immediately preceding the day of
So section 6 provides for the qualifications for the members of the House of
Representatives. Since we have 2 compositions of the house, District and Party-list
representatives, they differ some aspects and particularly in the residency
requirement. Let us go to the District Representatives, constitutional qualifications
would be that he/she must be a natural born, at least 25 years of age, able to read
and write, registered voter of the district of which he shall be elected for not less
than a year immediately prior from the day of elections. When we talk about
residency under the topic of right to suffrage, we said that residency is synonymous
with domicile and this is also true to run for public office, thus residency is
synonymous with domicile.
So if we look at it, when you say residence in its visual sense, what is required is
the actual if physical presence. But when you say domicile, it does not require
actual or physical presence, what is required is attachment where one is absent, he
has always the intention to return.
Now, let us apply this in the case of Imelda Marcos. She was born in Leyte, but they
transferred in Tolosa, Leyte when she was 8 years old, and from there she studied
elementary, high school, and college and in fact she worked there as a teacher. If
you count her stay in Tolosa, she stayed there for more or less 14 years but it was
established that Tolosa, Leyte is her domicile. After that, she went to manila, met
Ferdinand Marcos, and married him. Around 1960s, Ferdinand became the
president of the Philippines, during that time Imelda was already living in Manila. In
her registration as a voter, she put there that she is a resident of Manila. After the
1980 revolution, we know that the Marcos spouse left the Philippines. She came
back the same as her brother around 1990s then she ran for presidency and in her
certificate of candidacy she stated there that her residence is in San Juan, Manila.
After that, she lost the elections, went back to Tolosa on August 1994, an election
would be held in May 1995 as she will be running for congresswoman. If you count
from August 1994 up to May 1995, it is around 9 months. Question, was she able to
comply the residency requirement? Yes, because residency is synonymous to
domicile. Come to think of it, she spent only 14 years in Tolosa compare to 40 years
on Manila. What is the conclusion?
No matter how long one is absent from his domicile as long as there are no acts
showing abandonment of domicile, one does not lose her domicile. It is very difficult
to lose ones domicile of origin; you have to have establishment of new residency of
physical presence, animus amendi and etc, if you change or abandon your own
domicile and should establish actual physical presence in new domicile coupled by
intention to stay there and intention to abandon the old one. It is very difficult to

prove its intention of abandonment. So usually in election cases, the SC will always
rule fir the establishment of residency via domicile. In this case, although Imelda
stayed only 14 years in Tolosa, it is not shown that she abandoned her domicile. All
her milestones are celebrated in Tolosa and in fact she was always visiting Tolosa
even if she was already in Malacanang. All businesses and most projects that she
handles would benefit Tolosa, Leyte and establish in her political power via her
brothers and relatives in Leyte.
What about Aquino vs. COMELEC? Aquino here is Butch Aquino. In Mariano vs.
COMELEC, we learned that Makati was converted into a city and other than that, an
additional legislative district was created, now Butch here intended to run for the 2 nd
legislative of Makati but we that the Aquinos are domicile of Tarlac. If he wants to
run the legislative district of Makati, the law requires him to establish a residency
for at least 1 year. How did he attempt to do that? He rented a condo unit in Makati
and to prove that he has been a resident of that area, the date of the contract for
him was material to show 1 year residency. However, the SC said that it is not
sufficient, why? It is not sufficient to show abandonment of ones domicile.
The SC is talking about domicile, but if it talks about residence, it would still not
sufficient because if you say residence, there is a need of ACTUAL PHYSICAL
PRESENCE. In that case, what he presented as evidence of residency is just the
contract and nothing more. Hence, there are no acts which show attachment to that
place. So, the SC said, it does not in general the kind of permanency required to
prove abandonment of his original domicile because he also admitted that he has
other residence in Manila or Quezon City.

But for me, so that you will not get confuse, it is not about domicile here, it is about
residence because even if Tarlac is his domicile, he can still establish residence in
some other place, the only requirement according to the constitution is no need to
abandon the domicile. But in this case, the 1 year lease contract alone is not
sufficient to establish residence, and he failed to produce other means to show that
he is actually, physically present in Makati. Now, he also argued that the 2 nd district
of Makati is a newly created district and it is just 4 months old. Hence, it is
impossible for anyone to comply the 1 year requirement and the SC said No,
although the district is new, the geographical area has been existed even before the
creation of the said district.
Now in Domino vs. COMELEC, the same, he has been a resident of Quezon City but
in May 1998, he ran and won in Sarangani as a representative. His qualification has
been questioned because; in June 1997 he was a registered voter of Quezon City. To
prove his residency, he presented his contract of lease that shows he has been a
resident since 1997, and the SC said that the contract alone is not sufficient.

So that you will not get confused, do not look this in the context of domicile,
residency lang. Anyway, let us go to Fernandez vs. HRET, Fernandez had been a vice
governor of Laguna. In his Certificate of Candidacy, it was stated that he was a
resident of Pagsanjan, Laguna. The said area belonged to the 4 th legislative district.
Now this time, he ran the 1 st legislative disctrict of Laguna and in his certificate of
candidacy, he stated that he is a resident of Sta. Rosa, Laguna. Can you do that?
Can you change residency? Yes, the next problem is that naabot mo ba yung 1
year? Why is there a residency requirement? To prevent a strange from ruling that
place. In this case, he was a vice-governor, so he is already a familiar icon of that
place and other that that he also presented a contract of lease in Sta. Rosa. This
time the SC said, it would suffice, why? It has been coupled with other evidence of
acts and other circumstances that he had the intention to abandon Pagsanjan and
transferring to Sta. Rosa. What are these circumstances? They had business in Sta.
Rosa, they had properties in Sta. Rosa and their children were also studied in Sta.
Rosa for more than 2 years already. Hence, there is already an attachment to the
place. As to the lease of contract, a question was raised that is it necessary for a
person to buy a property? The SC said no, a candidate is not required to buy a
property to comply the residency requirement, why? It would provide for another
qualification to run which is property requirement, which is unconstitutional. So in
this case, there is no requirement to buy because the said qualifications are
exclusive. Kahit nakikitira ka lang sa parents mo, pwede nay un for as long as you
can prove that you are a resident of that place.

Qualification of a nominee
Under the RA 7941 of section 9 provides that no person shall be
nominated as party-list representative unless he is natural-born citizen of
the Philippines, a registered voter, a resident of the Philippines for a
period of not less than one (1)year immediately preceding the day of the
election, able to read and write, a bona fide member of the party or
organization which he seeks to represent for at least ninety (90) days
preceding the day of the election, and is at least twenty-five (25) years of
age on the day of the election.
The qualifications of the constitution are more or less the same except for the
residency requirement and in case of party-list representatives they must be bona
fide members of the party-list which they seek to represent. Now in the case of
BANAT vs. COMELEC, it was held that only those parties or organizations which
represent the marginalized and underrepresented are qualified to participate in the
party-list. In that case, a question was asked, should a nominee be also

marginalized and underrepresented? The SC said that a nominee need not wallow in
poverty, restitution, or infirmity, as there is no financial status required by law. It is
enough that the nominee of the said party, organization, or coalition belongs to the
marginalized of underrepresented sectors that is if the nominee represents the
fisher folk, he must also be a fisher folk himself, and etc.
Automatically, the next question is who will represent the Bantay Bata? If you follow
this decision, no one can represent them. So in the case Ang Atong Paglaum, it
qualifies that the decision of BANAT becomes temporal. What did the case said?
First, the party-list system is not limited to the marginalized and underrepresented
sectors, even political parties can participate, and even youth organizations which
lack well-defined the political constituents can also participate. Example of parties
which lack well-defined political constituents; the group of professionals, they are
not marginalized sectors or political parties but they lack the qualified political
constituents. wala silang mga members na tinatawag nating may advocacy
towards governance, kasi yun yung sa political pero meron silang advocacy for a
calling or a cause. In Atong Paglaum, the SC expanded the decision in BANAT, the
nominees of the said parties or organizations that represent the marginalized and
underrepresented are that represent those who lack well-defined political
constituencies, either must belong to their respective sectors or must have a record
of their advocacy of their sector. So in the case if Bantay Bata, you need not be
marginalized for you to be a nominee as long as you have a record of advocacy for
their respective sectors. Now the nominees of national and regional parties or
organization must be bona fide member of such parties of the organization. Take
note that bona fide membership period that is required by law is only 90 days.
Section 7 provides that the Members of the House of Representative shall
be elected for a term of three years which shall begin, unless otherwise
provided by law, at noon on the thirtieth day of June next following
The term for a member for a house is 3 years, you can run again for a maximum of
3 consecutive terms, any voluntary renunciation is considered as interruption. More
or less, it is the same in provision for the senators, so what is a term and how is it
different from tenure? Tenure is period provided by law where one is entitled to hold
a public office and when you say tenure, it is the actual holding of an office. Now the
term, can only be shortened via amendment in this case of the Constitution, it can
be reduced or lengthened via amendment.
What about tenure? Tenure can be shortened or lengthened anytime; there is no
need for an amendment in the constitution. In the case of Dimaporo vs. Mitra, there
was a provision that an elective official who file his Certificate of Candidacy for
another office, which he is not currently holding, is considered ipso facto resign.
That was the law under the Omnibus Code.

In the present case, he was a congressman and there is an upcoming election and
he filed his certificate of candidacy, he was delisted from the membership in the
house, by course of law as he was considered as ipso facto resign. He challenged
the provision as unconstitutional because it amends the term of office of a
congressman by legislation and not by amendment of the constitution,
(Bold phrases supplied) a term can be shortened or lengthened via amendment of
the constitution, and the SC said, No, the shortened here is not his term but his
tenure through his voluntary act of filing the Certificate of Candidacy, that had the
effect on shortening his stay in the office but the term in the office remains. That
was the law then, but now, Public Officials who run for public office are no longer
considered as ipso facto resign.