BANAT vs COMELEC

GR NO. 179271, April 21, 2009

FACTS:
In July and August 2007, the COMELEC, sitting as the National Board of
Canvassers, made a partial proclamation of the winners in the party-list
elections which were held in May 2007.
In proclaiming the winners and apportioning their seats, the COMELEC
considered the following rules:
1.

In the lower house, 80% shall comprise the seats for legislative
districts, while the remaining 20% shall come from party-list
representatives (Sec. 5, Article VI, 1987 Constitution);
2. Pursuant to Sec. 11b of R.A. 7941 or the Party-List System Act, a partylist which garners at least 2% of the total votes cast in the party-list
elections shall be entitled to one seat;
3. If a party-list garners at least 4%, then it is entitled to 2 seats; if it
garners at least 6%, then it is entitled to 3 seats this is pursuant to
the 2-4-6 rule or the Panganiban Formula from the case of Veterans
Federation Party vs COMELEC.
4. In no way shall a party be given more than three seats even if it
garners more than 6% of the votes cast for the party-list election (3
seat cap rule, same case).
The Barangay Association for National Advancement and Transparency
(BANAT), a party-list candidate, questioned the proclamation as well as the
formula being used. BANAT averred that the 2% threshold is invalid; Sec. 11
of RA 7941 is void because its provision that a party-list, to qualify for a
congressional seat, must garner at least 2% of the votes cast in the party-list
election, is not supported by the Constitution. Further, the 2% rule creates a
mathematical impossibility to meet the 20% party-list seat prescribed by the
Constitution.
BANAT also questions if the 20% rule is a mere ceiling or is it mandatory. If it
is mandatory, then with the 2% qualifying vote, there would be instances
when it would be impossible to fill the prescribed 20% share of party-lists in
the lower house. BANAT also proposes a new computation.
On the other hand, BAYAN MUNA, another party-list candidate, questions the
validity of the three-seat rule (Section 11a of RA 7941). It also raised the
issue of whether or not major political parties are allowed to participate in
the party-list elections and whether or not said elections are limited to
sectoral parties.
ISSUES:

1. Is the twenty percent allocation for party-list representatives provided

in Section 5(2), Article VI of the Constitution mandatory or is it merely
a ceiling?
2. Is the three-seat limit provided in Section 11(b) of RA 7941
constitutional?
3. Is the two percent threshold and qualifier votes prescribed by the
same Section 11(b) of RA 7941 constitutional?
4. How shall the party-list representatives be allocated?
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 partylist elections?
RULING:
1. The 20% allocation for party-list representatives is merely a ceiling
meaning, the number of party-list representatives shall not exceed
20% of the total number of the members of the lower house. However,
it is not mandatory that the 20% shall be filled. In addition, 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.
2. Yes. The three-seat limit is constitutional. Although the party-list
representatives cannot be more than 20% of the members of the
House of Representatives, 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. Congress, in enacting R.A. No. 7941, put the three-seat cap to
prevent any party from dominating the party-list elections.
3. No. Section 11(b) of RA 7941 is unconstitutional. There is no
constitutional basis to allow that only party-lists which garnered 2% of
the votes cast are qualified for a seat and those which garnered less
than 2% are disqualified. Further, the 2% threshold creates a
mathematical impossibility to attain the ideal 80-20 apportionment.
The Supreme Court explained:
To illustrate: There are 55 available party-list seats. Suppose there are
50 million votes cast for the 100 participants in the party list elections.
A party that has two percent of the votes cast, or one million votes,
gets a guaranteed seat. Let us further assume that the first 50 parties
all get one million votes. Only 50 parties get a seat despite the
availability of 55 seats. Because of the operation of the two percent
threshold, this situation will repeat itself even if we increase the
available party-list seats to 60 seats and even if we increase the votes

cast to 100 million. Thus, even if the maximum number of parties get
two percent of the votes for every party, it is always impossible for the
number of occupied party-list seats to exceed 50 seats as long as the
two percent threshold is present.
It is therefore clear that the two percent threshold presents an
unwarranted obstacle to the full implementation of Section 5(2), Article
VI of the Constitution and prevents the attainment of the broadest
possible representation of party, sectoral or group interests in the
House of Representatives.
4. Instead, the 2% rule should mean that if a party-list garners 2% of the
votes cast, then it is guaranteed a seat, and not qualified. This allows
those party-lists garnering less than 2% to also get a seat.
But how? Under Section 11, R.A. No. 7941, the Supreme Court laid
down the following rules:
(1)The parties, organizations, and coalitions shall be ranked from the
highest to the lowest based on the number of votes they garnered
during the elections.
(2)The parties, organizations, and coalitions receiving at least two
percent (2%) of the total votes cast for the party-list system shall be
entitled to one guaranteed seat each.
(3)Those garnering sufficient number of votes, according to the ranking
in paragraph 1, shall be entitled to additional seats in proportion to
their total number of votes until all the additional seats are
allocated.
(4)Each party, organization, or coalition shall be entitled to not more
than three (3) seats.
In computing the additional seats, the guaranteed seats shall no longer
be included because they have already been allocated, at one seat
each, to every two-percenter. Thus, the remaining available seats for
allocation as additional seats are the maximum seats reserved under
the Party List System less the guaranteed seats. Fractional seats are
disregarded in the absence of a provision in R.A. No. 7941 allowing for
a rounding off of fractional seats.
In short, there shall be two rounds in determining the allocation of the
seats. In the first round, all party-lists which garnered at least 2% of
the votes cast (called the two-percenters) are given their one seat
each. The total number of seats given to these two-percenters are then
deducted from the total available seats for party-lists. In this case, 17
party-lists were able to garner 2% each (hence, theyre called twopercenters). There are a total 55 seats available for party-lists, and
thus, 55 minus 17 = 38 remaining seats. (Please refer to Table 3.
Distribution of Available Party-List Seats found the full text of the
case for the tabulation).

The number of remaining seats, in this case 38, shall be used in the
second round, particularly, in determining, (1) the additional seats for
the two-percenters, and (2) in determining seats for the party-lists that
did not garner at least 2% of the votes cast, and in the process filling
up the 20% allocation for party-list representatives.
How is this done?
Get the total percentage of votes garnered by the party and multiply it
against the remaining number of seats. The product, which shall not be
rounded off, will be the additional number of seats allotted for the
party list but the 3 seat limit rule shall still be observed.
Example:
In this case, the BUHAY party-list garnered the highest total vote of
1,169,234 which is 7.33% of the total votes cast for the party-list
elections (15,950,900).
Applying the formula above: (Percentage of
(remaining seats) = number of additional seat

vote

garnered) x

Hence, 7.33% x 38 = 2.79

Rounding off to the next higher number is not allowed so 2.79 remains
2. BUHAY is a two-percenter which means it has a guaranteed one seat
PLUS additional 2 seats or a total of 3 seats. Now if it so happens that
BUHAY got 20% of the votes cast, it will still get 3 seats because the 3
seat limit rule prohibits it from having more than 3 seats.
After all the two-percenters were given their guaranteed and additional
seats, and there are still unoccupied seats, those seats shall be
distributed to the remaining party-lists and those higher in rank in the
voting shall be prioritized until all the seats are occupied.
5. No. The Constitutional Commission adopted a multi-party system that
allowed all political parties to participate in the party-list elections.
Political parties, particularly minority political parties, are not
prohibited to participate in the party list election provided if they can
prove that they are also organized along sectoral lines.