BANAT vs.

COMELEC FACTS: BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution. On July 2007, the COMELEC, sitting as the NBC (National Board of Canvassers), proclaimed thirteen (13) parties as winners in the party-list elections based on the presumptive two percent (2%) threshold of votes were thus given one (1) guaranteed partylist seat each. Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part: 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.

1. at least two percent (2%) of the total votes cast = guarantee one (1) seat 2. those garnering more than two percent (2%) = additional seats in proportion to their total number of votes 3. to not more than three (3) seats.

BUHAY party-list obtained the highest number of votes among the thirteen (13) qualified parties, organizations and coalitions, making it the first party in accordance with Veterans Federation Party versus COMELEC. In determining the additional seats for the first party, the correct formula as expressed in Veterans, is: 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

Proportion of votes received by the first party Equal to or at least 6%

Additional seats

Two (2) additional seats

Equal to or greater than 4% but less than 6% One (1) additional seat Less than 4% No additional seat

Applying the above formula, Buhay obtained the following percentage: 1,178,747 -------16,261,369 which entitles it to two (2) additional seats. = 0.07248 or 7.2%

In determining the additional seats for the other qualified parties, organizations and coalitions, the correct formula as expressed in Veterans, as follows: No. of votes of concerned party Additional seats for a concerned party = ------------------- ------ x No. of votes of No. of additional seats allocated to first party

first party WHEREAS, applying the above formula in the case of BAYAN MUNA, the result is as follows:

(BAYAN MUNA) 977,476 ---------------------------------------- x 2 = 1.65 % = 1 additional seat

(BUHAY) 1,178,747 WHEREAS, applying the above formula, the results are as follows: (13) Party Lists proclaimed as winners
One seat guaranteed based on the 2% threshold of votes

Percentage for additional seat

No. of additional Seat

Total No. of seats

BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO ANAKPAWIS ARC ABONO

1 1 1 1 1 1 1 1 1 1 1 1 1

7.2 1.65 1.28 1.05 1.05 0.83 0.78 0.71 0.69 0.69 0.62 0.63 0.57

2 1 1 1 1 0 0 0 0 0 0 0 0

3 2 2 2 2 1 1 1 1 1 1 1 1

ISSUES: 1. Is the twenty percent (20%) allocation for party-list representatives in Section 5(2), Article VI of the Constitution mandatory or merely a ceiling? ceiling 2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional? yes 3. Is the two percent (2%) threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat constitutional? no unconstitutional 4. How shall the party-list representative seats be allocated? refer table 2 below 5. Does the Constitution prohibit the major political parties from participating in the party-list elections? If not, can the major political parties be barred from participating in the party-list elections? Prohibited/barred

RULING:

The formula in Veterans has flaws in its mathematical interpretation of the term proportional representation, this Court is compelled to revisit the formula for the allocation of additional seats to party-list organizations. Number of Party-List Representatives: The Formula Mandated by the Constitution The first paragraph of Section 11 of R.A. No. 7941 reads: Section 11. Number of Party-List Representatives. The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. Section 5, Article VI of the Constitution provides: Section 5(1), Article VI - The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law. The House of Representatives shall be composed of district representatives and party-list representatives. The Constitution allows the legislature to modify the number of the members of the House of Representatives. Section 5 (2), Article VI - The party-list representatives shall constitute twenty per

centum (20%) of the total number of representatives including those under the partylist.
Section 5(2), Article VI is computed this way, as reiterated in Veterans formula: Number of seats available to legislative districts .80 This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is created by law. Since the 14th Congress of the Philippines has 220 district representatives, there are 55 seats available to party-list representatives. 220 x .20 = 55 seat available to party-list representatives Number of seats available to x .20 = party-list representatives

.80

Allocation of Seats for Party-List Representatives: The Statutory Limits Presented by the Two Percent Threshold and the Three-Seat Cap All parties agree on the formula to determine the guaranteed seats to party-list candidates garnering at least two-percent of the total party-list votes. However, there are numerous interpretations of the provisions of R.A. No. 7941 on the allocation of additional seats under the Party-List System. Section 11 and Section 12 of RA No. 7941 provide:

1. rank from the highest to the lowest

2. at least two percent (2%) of the total votes cast = guarantee one (1) seat

3. garnering more than two percent (2%) = additional seat = unconstitutional

4. not more than three (3) seats.

Table 1 below shows the first 20 party-list candidates that garnered 2% of the total votes cast, guarantying them one seat. The percentage of votes garnered by each party is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for all party-list candidates.

Table 1. The first 20 party-list candidates and their respective percentage of votes garnered over the total votes for the party-list. Votes Garnered Votes over Total Guaranteed Garnered Votes for Party- Seat List, in % 1,169,234 7.33% 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02% 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 17 310,889 300,923 245,382 1.95% 1.89% 1.54% 0 0 0

Rank

Party

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD COOP-NATCCO BUTIL BATAS ARC ANAKPAWIS ABONO AMIN AGAP AN WARAY Total

18 19 20

YACAP FPJPM UNI-MAD

From the Table above, we see that only 17 party-list candidates received at least 2% from the total number of votes cast for party-list candidates, and that they are the only entitled to one seat each, or the guaranteed seat.

The second clause of Section 11(b) of R.A. No. 7941 provides that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes. This is where petitioners and intervenors problem with the formula in Veterans lies. Veterans interprets the clause in proportion to their total number of votes to be in proportion to the votes of the first party. This interpretation is contrary to the express language of R.A. No. 7941. The Court rule this as unconstitutional.

This Court finds that the two percent (2%) threshold for additional seat makes it mathematically impossible to achieve the maximum number of 20% allocation for party list. In computing the additional seats, fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats. In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats to the two-percenters. Two steps of additional seat allocation: 1. The percentage is multiplied by the remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the remaining available seats corresponds to a partys share in the remaining available seats. Lets take the case of BAYAN MUNA for an example computation: BAYAN MUNA = 6.14% x 38 = 233.32 / 100 = 2.33 = therefore, 2 additional seat 2. Assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each qualified party-list candidate is entitled. Thus: Table 2. Distribution of Available Party-List Seats: Rank Party Votes Garnered Votes Garnered over Total Votes for Party-List 7.33% 6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 1 1 1 1 1 1 1 1 1 Guaranteed Seat Additional Seat Total Number of Seats

1 2 3 4 5 6 7 8 91[31]

BUHAY

1,169,234

2.79 2.33 1.80 1.48 1.48 1.17 1.11 1.01 1

3 3 2 2 2 2 2 2 2

BAYAN MUNA 979,039 CIBAC GABRIELA APEC A Teacher AKBAYAN ALAGAD COOPNATCCO BUTIL BATAS ARC ANAKPAWIS ABONO 755,686 621,171 619,657 490,379 466,112 423,149 409,883

10 11 12 13 14

409,160 385,810 374,288 370,261 339,990

2.57% 2.42% 2.35% 2.32% 2.13%

1 1 1 1 1

1 1 1 1 1

2 2 2 2 2

15 16 17 18 19 20 21 22 23 24 25 26

AMIN AGAP AN WARAY YACAP FPJPM UNI-MAD ABS KAKUSA KABATAAN ABA-AKO ALIF SENIOR CITIZENS AT VFP ANAD BANAT ANG KASANGGA BANTAY ABAKADA 1-UTAK TUCP COCOFED

338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058

2.12% 2.06% 2.02% 1.95% 1.89% 1.54% 1.47% 1.44% 1.43% 1.37% 1.37% 1.34%

1 1 1 0 0 0 0 0 0 0 0 0

1 1 1 1 1 1 1 1 1 1 1 1

2 2 2 1 1 1 1 1 1 1 1 1

27 28 29 30 31

197,872 196,266 188,521 177,028 170,531

1.24% 1.23% 1.18% 1.11% 1.07%

0 0 0 0 0

1 1 1 1 1

1 1 1 1 1

32 33 34 35 36 Total

169,801 166,747 164,980 162,647 155,920

1.06% 1.05% 1.03% 1.02% 0.98%

0 0 0 0 0 17

1 1 1 1 1

1 1 1 1 1 55

Applying the procedure of seat allocation as illustrated in Table 2 above, there are 55 party-list representatives from the 36 winning party-list organizations. All 55 available partylist seats are filled. The additional seats allocated to the parties with sufficient number of votes for one whole seat, in no case to exceed a total of three seats for each party.

Participation of Major Political Parties in Party-List Elections: Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from dominating the party-list elections. Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the party-list system. On the contrary, the framers of the Constitution clearly intended the major political parties to participate in party-list elections through

their sectoral wings. In defining a party that participates in party-list elections as either a political party or a sectoral party, R.A. No. 7941 also clearly intended that major political parties will participate in the party-list elections. Excluding the major political parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No. 7941. Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that major political parties are allowed to establish, or form coalitions with, sectoral organizations for electoral or political purposes. There should not be a problem if, for example, the Liberal Party participates in the party-list election through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties can thus organize, or affiliate with, their chosen sector or sectors. Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organizations nominee wallow in poverty, destitution and infirmity as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors, that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen. However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from participating in the party-list elections, directly or indirectly.

Conclusion: 1. Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of party-list representatives found in the Constitution. The Constitution, in paragraph 1, Section 5 of Article VI, left the determination of the number of the members of the House of Representatives to Congress: The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, x x x. The 20% allocation of party-list representatives is merely a ceiling; party-list representatives cannot be more than 20% of the members of the House of Representatives.

2. However, we cannot allow the continued existence of a provision in the law which will systematically prevent the constitutionally allocated 20% party-list representatives from being filled. The two percent (2%) threshold for additional seat makes it mathematically impossible to achieve the maximum number of 20% allocation. 3. The three-seat cap, as a limitation to the number of seats that a qualified partylist organization may occupy, remains a valid statutory device that prevents any party from dominating the party-list elections.

WHEREFORE, we PARTIALLY GRANT the petition. We declare unconstitutional the two percent (2%) threshold in the distribution of additional party-list seats. The allocation of additional seats under the Party-List System shall be in accordance with the procedure used in Table 3 of this Decision. Major political parties are disallowed from participating in party-list elections.