Banat vs Comelec (121)

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 was 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 party-list 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 if 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 (which shall be discussed in the “HELD” portion of this digest).

On the other hand, BAYAN MUNA, another party-list candidate, questions the validity of the 3
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 or is the said elections limited to
sectoral parties.
ISSUES:

I. How is the 80-20 rule observed in apportioning the seats in the lower house?

II. Whether or not the 20% allocation for party-list representatives mandatory or a mere ceiling.

III. Whether or not the 2% threshold to qualify for a seat valid.

IV. How are party-list seats allocated?

V. Whether or not major political parties are allowed to participate in the party-list elections.

VI. Whether or not the 3 seat cap rule (3 Seat Limit Rule) is valid.

HELD:

I. The 80-20 rule is observed in the following manner: for every 5 seats allotted for legislative
districts, there shall be one seat allotted for a party-list representative. Originally, the 1987
Constitution provides that there shall be not more than 250 members of the lower house. Using
the 80-20 rule, 200 of that will be from legislative districts, and 50 would be from party-list
representatives. However, the Constitution also allowed Congress to fix the number of the
membership of the lower house as in fact, it can create additional legislative districts as it may
deem appropriate. As can be seen in the May 2007 elections, there were 220 district
representatives, hence applying the 80-20 rule or the 5:1 ratio, there should be 55 seats allotted
for party-list representatives.

How did the Supreme Court arrive at 55? This is the formula:

(Current Number of Legislative DistrictRepresentatives ÷ 0.80) x (0.20) = Number of Seats

Available to Party-List Representatives

Hence,

(220 ÷ 0.80) x (0.20) = 55

II. 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.

III. No. Section 11b 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.”

IV. 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? 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. There
are a total 55 seats available for party-lists hence, 55 minus 17 = 38 remaining seats. (Please
refer to 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, first, the additional seats for the two-percenters, and second, 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 vote garnered) x (remaining seats) = number of
additional seat

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.

Now after all the tw0-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.

V. No. By a vote of 8-7, the Supreme Court continued to disallow major political parties (the
likes of UNIDO, LABAN, etc) from participating in the party-list elections.

Although the ponencia (Justice Carpio) did point out that there is no prohibition either from the
Constitution or from RA 7941 against major political parties from participating in the party-list
elections as the word “party” was not qualified and that even the framers of the Constitution in
their deliberations deliberately allowed major political parties to participate in the party-list
elections provided that they establish a sectoral wing which represents the marginalized (indirect
participation), Justice Puno, in his separate opinion, concurred by 7 other justices, explained that
the will of the people defeats the will of the framers of the Constitution precisely because it is the
people who ultimately ratified the Constitution – and the will of the people is that only the
marginalized sections of the country shall participate in the party-list elections. Hence, major
political parties cannot participate in the party-list elections, directly or indirectly.

VI. Yes, the 3 seat limit rule is valid. This is one way to ensure that no one party shall dominate
the party-list system.

Gaminde vs COA (130)

FACTS: On June 11, 1993, the President of the Philippines appointed petitioner Thelma P.
Gaminde,ad interim,Commissioner, Civil Service Commission. She assumed office on June 22,
1993, after taking an oath of office.OnSeptember 07, 1993, the Commission on Appointment,
Congress of the Philippines confirmed the

appointment.However, on February 24, 1998, petitioner sought clarification from the Office of
the President as totheexpiry date of her term of office.In reply to her request, the Chief
Presidential Legal Counsel, in a letter dated April 07, 1998 opined that petitioner’s term of office
would expire on February 02, 2000, not on February 02, 1999.Relying on said advisory opinion,
petitioner remained in Leon, wrote office after February 02, 1999.On February 04,1999,
Chairman Corazon Alma G. de the Commission on Audit requesting opinion on whether or not

Commissioner Thelma P. Gaminde and her co-terminous staff may be paid their salaries
notwithstanding the expiration of their appointments on February 02, 1999.

On February 18, 1999, the General Counsel, Commission On Audit, issued an opinion that “the
term of Commissioner Gaminde has expired on February 02, 1999 as stated in her appointment
conformably with the constitutional intent.”Consequently, on March 24, 1999, CSC Resident
Auditor Flovitas U. Felipe issued notice of disallowance No. 99-002-101 (99), disallowing in
audit the salaries and emoluments pertaining to petitioner and her co-terminous staff, effective
February 02, 1999. On April 5, 1999, petitioner appealed the disallowance to the Commission on
Audit en banc.

On June 15, 1999, the Commission on Audit issued Decision dismissing petitioner’s appeal.The
Commission on Audit affirmed the propriety of the disallowance, holding that the issue of
petitioner’s term of office may be properly addressed by mere reference to her appointment
paper which set the expiration date onFebruary 02,1999, and that the Commission is bereft of
power to recognize an extension of her term, not even with the implied acquiescence of the
Office of the President.

In time, petitioner moved for reconsideration; however, onAugust 17, 1999, the Commission on
Audit denied the motion. Hence, this petition.
ISSUE: The basic issue raised is whether the term of office of Atty. Thelma P. Gaminde, as
Commissioner, Civil Service Commission, to which she was appointed on June 11, 1993,
expired on February 02, 1999, as stated in the appointment paper, or on February 02, 2000, as
claimed by her.

HELD: The term of office of Ms. Thelma P. Gaminde as Commissioner, Civil Service
Commission, under an appointment extended to her by President Fidel V. Ramos on June 11,
1993, expired on February 02, 1999. However, she served as

de facto officer in good faith until February 02, 2000, and thus entitled to receive her salary and
other emoluments for actual service rendered.Consequently, the Commission on Audit erred in
disallowing in audit such salary and other emoluments,

including that of her co-terminous staff.

RATIO: Consequently, the terms of the first Chairmen and Commissioners of the Constitutional
Commissions under the 1987 Constitution must start on a common date, irrespective of the
variations in the dates of appointments and qualifications of the appointees, in order that the
expiration of the first terms of seven, fiveand three years should lead to the regular recurrence of
the two-year interval between the expiration of the

terms. Applying the foregoing conditions to the case at bar, we rule that the

appropriate starting point of the terms of office of the first appointees to the Constitutional
Commissions under the 1987 Constitution must be on February 02, 1987, the date of the
adoption of the 1987 Constitution. In case of a belated appointment or qualification, the interval
between the start of the term and the actual qualification of the appointee must be counted
against the latter. In the law of public officers, there is a settled distinction between “term” and
“tenure.” “[T]he term of an office must be distinguished from the tenure of the incumbent. The
term means the time during which the officer may claim to hold office as of right, and fixes the
interval after which the several incumbents shall succeed one another. The tenure represents the
term during which the incumbent actually holds the office. The term of office is not affected by
the hold-over. The tenure may be shorter than the term for reasons within or beyond the power of
the incumbent.” Clearly, the transitory provisions mean that the incumbent members of the
Constitutional Commissions shall continue in office for one year after the ratification of this
Constitution under their existing appointments at the discretion of the appointing power, who
may cut short their tenure by: (1) their removal from office for cause; (2) their becoming
incapacitated to discharge the duties of their office, or (3) their appointment to a new term
thereunder, all of which events may occur before the end of the one year period after the
effectivity of the Constitution.However, thetransitory provisions do not affect the term of office
fixed in Article IX, providing for a seven-five-three year rotational interval for the first
appointees under this Constitution.

Phil Guardians Brotherhood vs COMELEC (123)

Facts:

The Philippine Guardians Brotherhood, Inc. (PGBI) files a petition for review and a motion for
reconsideration to nullify Commission on Elections (COMELEC) Resolution No. 8679 dated
October 13, 2009 insofar as it relates to PGBI and the Resolution dated December 9, 2009. These
resolutions delisted PGBI from the roster of registered national, regional or sectoral parties,
organizations or coalitions under

the party-list system. According to Section 6(8) of Republic Act No. 7941, known as Party-List
System Act, COMELEC, upon verified complaint of any interested party, may remove or cancel,
after due notice and hearing, the registration of any national, regional or sectoral party,
organization or coalition if: (1) it fails to participate in the last two preceding elections or (2)fails
to obtain at least two per centum (2%) of the votes cast under the party-list system in the two
preceding elections for the constituency in which it has registered. For May 2010 Elections, the
COMELEC en banc issued Resolution No. 8679 deleting several party-list groups or
organizations from the list of registered national, regional or sectoral parties, organizations or
coalitions.Among the party-list organizations affected was PGBI; it was delisted because it failed
to get 2% of the votes cast in 2004 and it did not participate in the 2007 elections.

PGBI filed its opposition to Resolution No. 8679 and likewise, sought for accreditation as a
party-list organization. One of the arguments cited is that the Supreme Court's ruling in G.R. No.
177548 – MINERO (Philippine Mines Safety Environment Association) vs COMELEC cannot
apply in the instant controversy.One of the reasons is because the factual milieu of the cited case
is removed from PGBI's. Additionally, the

requirement of Section 6(8) has been relaxed by the Court's ruling in G.R. No. 179271 -
BANAT(Barangay Association for Advancement and National Transparency) vs COMELEC.
COMELEC denied the motion and in response, pointed out that the MINERO ruling is squarely
in point, as MINERO failed to get 2% of the votes in 2001 and did not participate at all in the
2004 elections.

Issue:
Whether the MINERO ruling can be use as a legal basis in delisting PGBI.

Held:

According to the Court, the MINERO ruling is an erroneous application of Section 6(8) of RA
7941; hence, it cannot sustain PGBI's delisting from the roster of registered national, regional or
sectoral parties, organizations or coalitions under the party-list system. First the law is clear in
that the word "or" is a disjunctive term signifying disassociation and independence of one thing
from the other things enumerated; it should, as a rule, be construed in the sense in which it
ordinarily implies, as a disjunctive word. Thus, the plain, clear and unmistakable language of the
law

provides for two separate reasons for delisting.Second, MINERO is diametrically opposed to the
legislative intent of Section 6(8) of RA 7941 and therefore, simply cannot stand. Its basic defect
lies in its characterization of the non-participation of a party-list organization in an election as
similar to a failure to garner the 2% threshold party-list vote. What MINERO effectively holds is
that a party list organization that does not participate in an election necessarily gets, by default,
less than 2% of the party-list votes. To be sure, this is a confused interpretation of the law, given
the law's clear and categorical language and the legislative intent to treat the two scenarios
differently. A delisting based on a mixture or fusion of these two different and separate grounds
for delisting is therefore a strained application of the law - in jurisdictional terms, it is an
interpretation not within the contemplation of the framers of the law and hence is a gravely
abusive interpretation of the law. Instead, what should be taken into account is the ruling in
BANAT vs COMELEC where the 2% party-list vote requirement provided in RA 7941 is partly
invalidated. The Court rules that, in computing the allocation of additional seats, the continued
operation of the two percent threshold for the distribution of the additional seats as found in the
second clause of Section 11(b)

of R.A. No. 7941 is unconstitutional; it finds that the two percent threshold makes it
mathematically impossible to achieve the maximum number of available party list seats when the
number of available party list seats exceeds 50.The continued operation of the two percent
threshold in the distribution of the additional seats frustrates the attainment of the permissive
ceiling that 20% of the members of the House of Representatives shall consist of party-list
representatives. To reiterate, Section 6(8) of RA 7941 provides for two separate grounds for
delisting; these grounds cannot be mixed or combined to support delisting; and the
disqualification for failure to garner 2% party-list votes in two preceding elections should now be
understood, in light of the BANAT ruling, to mean failure to qualify for a party-list seat in two
preceding elections for the constituency in which it has registered. This is
how Section 6(8) of RA 7941 should be understood and applied under the authority of the
Supreme Court to state what the law is and as an exception to the application of the principle of
stare decisis (to adhere to precedents and not to unsettle things which are established). The most
compelling reason to abandon MINERO and strike it out from ruling case law is that it was
clearly an erroneous application of the law - an application that the principle of stability or
predictability of decisions alone cannot sustain. MINERO did unnecessary violence to the
language of the law, the intent of

the legislature and to the rule of law in general. Therefore, the Supreme Court grants PGBI’s
petition and accordingly, annul COMELEC Resolution No. 8679 dated October 13, 2009 insofar
as the petitioner PGBI is concerned and the Resolution dated

December 9, 2009 which denied PGBI's motion for reconsideration. PGBI is qualified to be
voted upon as a party-list group or organization in the May 2010 elections.