Barangay Association for National Advancement and Transparency (BANAT) vs

COMELEC
This case is consolidated with BAYAN Munavs COMELEC (G.R. No. 179295).

Facts:

The 14 May 2007 elections included the elections for the party-list representatives. The
COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System.

BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided by
the Constitution, docketed as NBC No. 07-041 (PL) before the NBC. BANAT filed its petition
because the Chairman and the Members of the COMELEC have recently been quoted in the
national papers that the COMELEC is duty bound to and shall implement the Veterans ruling,
that is, would apply the Panganiban formula in allocating party-list seats. There were no
intervenors in BANATs petition before the NBC. BANAT filed a memorandum on 19 July 2007.

On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 07-
60. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the party-list
elections, namely: BuhayHayaanYumabong (BUHAY), Bayan Muna, Citizens Battle Against
Corruption (CIBAC), Gabrielas Women Party (Gabriela), Association of Philippine Electric
Cooperatives (APEC), A Teacher, Akbayan! Citizens Action Party (AKBAYAN), Alagad,
Luzon Farmers Party (BUTIL), Cooperative-Natco Network Party (COOP-NATCCO),
AnakPawis, Alliance of Rural Concerns (ARC), and Abono.

Petitioner:

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.

Respondent:

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 election 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 garners more than 6% of the
votes cast for the party-list election (3 seat cap rule, same case).

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:

WHEREFORE we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the
COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9 July
2007 in NBC No. 07-60. We declareunconstitutional the two percent threshold in the
distribution of additional party-list seats.

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 District Representatives ÷ 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.