Republic of the Philippines

SUPREME COURT
Manila

Petitioners now come before this Court, contending that R.A. No. 7675, specifically
Article VIII, Section 49 thereof, is unconstitutional for being violative of three
specific provisions of the Constitution.

EN BANC

Article VIII, Section 49 of R.A. No. 7675 provides:

G.R. No. L-114783 December 8, 1994

As a highly-urbanized city, the City of Mandaluyong shall have its own legislative
district with the first representative to be elected in the next national elections after
the passage of this Act. The remainder of the former legislative district of San
Juan/Mandaluyong shall become the new legislative district of San Juan with its first
representative to be elected at the same election.

ROBERT V. TOBIAS, RAMON M. GUZMAN, TERRY T. LIM, GREGORIO

D. GABRIEL, and ROBERTO R. TOBIAS, JR. petitioners,
vs.
HON. CITY MAYOR BENJAMIN S. ABALOS, CITY TREASURER
WILLIAM MARCELINO, and THE SANGGUNIANG PANLUNGSOD, all of
the City of Mandaluyong, Metro Manila, respondents.

Petitioner's first objection to the aforequoted provision of R.A. No. 7675 is that it
contravenes the "one subject-one bill" rule, as enunciated in Article VI, Section 26(1)
of the Constitution, to wit:

Estrella, Bautista & Associates for petitioners.

Sec. 26(1). Every bill passed by the Congress shall embrace only one subject which
shall be expressed in the title thereof.

BIDIN, J.:

Petitioners allege that the inclusion of the assailed Section 49 in the subject law
resulted in the latter embracing two principal subjects, namely: (1) the conversion of
Mandaluyong into a highly urbanized city; and (2) the division of the congressional
district of San Juan/Mandaluyong into two separate districts.

Invoking their rights as taxpayers and as residents of Mandaluyong, herein

petitioners assail the constitutionality of Republic Act No. 7675, otherwise known as
"An Act Converting the Municipality of Mandaluyong into a Highly Urbanized City
to be known as the City of Mandaluyong."
Prior to the enactment of the assailed statute, the municipalities of Mandaluyong and
San Juan belonged to only one legislative district. Hon. Ronaldo Zamora, the
incumbent congressional representative of this legislative district, sponsored the bill
which eventually became R.A. No. 7675. President Ramos signed R.A. No. 7675
into law on February 9, 1994.
Pursuant to the Local Government Code of 1991, a plebiscite was held on April 10,
1994. The people of Mandaluyong were asked whether they approved of the
conversion of the Municipality of Mandaluyong into a highly urbanized city as
provided under R.A. No. 7675. The turnout at the plebiscite was only 14.41% of the
voting population. Nevertheless, 18,621 voted "yes" whereas 7,911 voted "no." By
virtue of these results, R.A. No. 7675 was deemed ratified and in effect.

Petitioners contend that the second aforestated subject is not germane to the subject
matter of R.A. No. 7675 since the said law treats of the conversion of Mandaluyong
into a highly urbanized city, as expressed in the title of the law. Therefore, since
Section 49 treats of a subject distinct from that stated in the title of the law, the "one
subject-one bill" rule has not been complied with.
Petitioners' second and third objections involve Article VI, Sections 5(1) and (4) of
the Constitution, which provide, to wit:
Sec. 5(1). The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party list system of registered national, regional and sectoral parties
or organizations.

Sec. 5(4). Within three years following the return of every census, the Congress shall
make a reapportionment of legislative districts based on the standard provided in this
section.

practical rather than a technical construction. It should be sufficient compliance with

such requirement if the title expresses the general subject and all the provisions are
germane to that general subject."

Petitioners argue that the division of San Juan and Mandaluyong into separate
congressional districts under Section 49 of the assailed law has resulted in an
increase in the composition of the House of Representatives beyond that provided in
Article VI, Sec. 5(1) of the Constitution. Furthermore, petitioners contend that said
division was not made pursuant to any census showing that the subject municipalities
have attained the minimum population requirements. And finally, petitioners assert
that Section 49 has the effect of preempting the right of Congress to reapportion
legislative districts pursuant to Sec. 5(4) as aforecited.

The liberal construction of the "one title-one subject" rule had been further
elucidated in Lidasan v. Comelec (21 SCRA 496 [1967]), to wit:

The contentions are devoid of merit.

Anent the first issue, we agree with the observation of the Solicitor General that the
statutory conversion of Mandaluyong into a highly urbanized city with a population
of not less than two hundred fifty thousand indubitably ordains compliance with the
"one city-one representative" proviso in the Constitution:
. . . Each city with a population of at least two hundred fifty thousand, or each
province, shall have at least one representative" (Article VI, Section 5(3),
Constitution).
Hence, it is in compliance with the aforestated constitutional mandate that the
creation of a separate congressional district for the City of Mandaluyong is decreed
under Article VIII, Section 49 of R.A. No. 7675.
Contrary to petitioners' assertion, the creation of a separate congressional district for
Mandaluyong is not a subject separate and distinct from the subject of its conversion
into a highly urbanized city but is a natural and logical consequence of its conversion
into a highly urbanized city. Verily, the title of R.A. No. 7675, "An Act Converting
the Municipality of Mandaluyong Into a Highly Urbanized City of Mandaluyong"
necessarily includes and contemplates the subject treated under Section 49 regarding
the creation of a separate congressional district for Mandaluyong.
Moreover, a liberal construction of the "one title-one subject" rule has been
invariably adopted by this court so as not to cripple or impede legislation. Thus, in
Sumulong v. Comelec (73 Phil. 288 [1941]), we ruled that the constitutional
requirement as now expressed in Article VI, Section 26(1) "should be given a

Of course, the Constitution does not require Congress to employ in the title of an
enactment, language of such precision as to mirror, fully index or catalogue all the
contents and the minute details therein. It suffices if the title should serve the purpose
of the constitutional demand that it inform the legislators, the persons interested in
the subject of the bill and the public, of the nature, scope and consequences of the
proposed law and its operation" (emphasis supplied).
Proceeding now to the other constitutional issues raised by petitioners to the effect
that there is no mention in the assailed law of any census to show that Mandaluyong
and San Juan had each attained the minimum requirement of 250,000 inhabitants to
justify their separation into two legislative districts, the same does not suffice to
strike down the validity of R.A. No. 7675. The said Act enjoys the presumption of
having passed through the regular congressional processes, including due
consideration by the members of Congress of the minimum requirements for the
establishment of separate legislative districts. At any rate, it is not required that all
laws emanating from the legislature must contain all relevant data considered by
Congress in the enactment of said laws.
As to the contention that the assailed law violates the present limit on the number of
representatives as set forth in the Constitution, a reading of the applicable provision,
Article VI, Section 5(1), as aforequoted, shows that the present limit of 250 members
is not absolute. The Constitution clearly provides that the House of Representatives
shall be composed of not more than 250 members, "unless otherwise provided by
law." The inescapable import of the latter clause is that the present composition of
Congress may be increased, if Congress itself so mandates through a legislative
enactment. Therefore, the increase in congressional representation mandated by R.A.
No. 7675 is not unconstitutional.
Thus, in the absence of proof that Mandaluyong and San Juan do not qualify to have
separate legislative districts, the assailed Section 49 of R.A.
No. 7675 must be allowed to stand.

As to the contention that Section 49 of R.A. No. 7675 in effect preempts the right of
Congress to reapportion legislative districts, the said argument borders on the absurd
since petitioners overlook the glaring fact that it was Congress itself which drafted,
deliberated upon and enacted the assailed law, including Section 49 thereof.
Congress cannot possibly preempt itself on a right which pertains to itself.
Aside from the constitutional objections to R.A. No. 7675, petitioners present further
arguments against the validity thereof.
Petitioners contend that the people of San Juan should have been made to participate
in the plebiscite on R.A. No. 7675 as the same involved a change in their legislative
district. The contention is bereft of merit since the principal subject involved in the
plebiscite was the conversion of Mandaluyong into a highly urbanized city. The
matter of separate district representation was only ancillary thereto. Thus, the
inhabitants of San Juan were properly excluded from the said plebiscite as they had
nothing to do with the change of status of neighboring Mandaluyong.

Similarly, petitioners' additional argument that the subject law has resulted in
"gerrymandering," which is the practice of creating legislative districts to favor a
particular candidate or party, is not worthy of credence. As correctly observed by the
Solicitor General, it should be noted that Rep. Ronaldo Zamora, the author of the
assailed law, is the incumbent representative of the former San Juan/Mandaluyong
district, having consistently won in both localities. By dividing San
Juan/Mandaluyong, Rep. Zamora's constituency has in fact been diminished, which
development could hardly be considered as favorable to him.
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, P

Republic of the Philippines

Supreme Court

Baguio City
G.R. No. 190582

represented herein by its Chair,

EN BANC

ANG LADLAD LGBT PARTY

DANTON REMOTO,

Petitioner,

PUNO, C. J.,

Present:

CARPIO,

CORONA,

NACHURA,

CARPIO MORALES,

LEONARDO-DE CASTRO,

- versus -

VELASCO, JR.,

BRION,

DEL CASTILLO,

PERALTA,

ABAD,

BERSAMIN,

VILLARAMA, JR.,

COMMISSION ON ELECTIONS,

PEREZ, and

Promulgated:

Respondent.

MENDOZA, JJ.

April 8, 2010

x--------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

value protected by our Bill of Rights. Indeed, our democracy is built on genuine
recognition of, and respect for, diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the
definitions and demands of morality. In many cases, where moral convictions are
concerned, harmony among those theoretically opposed is an insurmountable goal.
Yet herein lies the paradox philosophical justifications about what is moral are
indispensable and yet at the same time powerless to create agreement. This Court
recognizes, however, that practical solutions are preferable to ideological stalemates;
accommodation is better than intransigence; reason more worthy than rhetoric. This
will allow persons of diverse viewpoints to live together, if not harmoniously, then,
at least, civilly.

... [F]reedom to differ is not limited to things that do not matter much. That would be
a mere shadow of freedom. The test of its substance is the right to differ as to things
that touch the heart of the existing order.

Factual Background

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette[1]

One unavoidable consequence of everyone having the freedom to choose is that

others may make different choices choices we would not make for ourselves, choices
we may disapprove of, even choices that may shock or offend or anger us. However,
choices are not to be legally prohibited merely because they are different, and the
right to disagree and debate about important questions of public policy is a core

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang Ladlad
LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections
(COMELEC) dated November 11, 2009[2] (the First Assailed Resolution) and
December 16, 2009[3] (the Second Assailed Resolution) in SPP No. 09-228 (PL)
(collectively, the Assailed Resolutions). The case has its roots in the COMELECs
refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA)
No. 7941, otherwise known as the Party-List System Act.[4]

Ang Ladlad is an organization composed of men and women who identify

themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).
Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC
in 2006. The application for accreditation was denied on the ground that the
organization had no substantial membership base. On August 17, 2009, Ang Ladlad
again filed a Petition[5] for registration with the COMELEC.

x x x a marginalized and under-represented sector that is particularly disadvantaged

because of their sexual orientation and gender identity.

and proceeded to define sexual orientation as that which:

Before the COMELEC, petitioner argued that the LGBT community is a

marginalized and under-represented sector that is particularly disadvantaged because
of their sexual orientation and gender identity; that LGBTs are victims of exclusion,
discrimination, and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad complied with the
8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor
Party v. Commission on Elections.[6] Ang Ladlad laid out its national membership
base consisting of individual members and organizational supporters, and outlined its
platform of governance.[7]

x x x refers to a persons capacity for profound emotional, affectional and sexual

attraction to, and intimate and sexual relations with, individuals of a different gender,
of the same gender, or more than one gender.

This definition of the LGBT sector makes it crystal clear that petitioner tolerates
immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote:

On November 11, 2009, after admitting the petitioners evidence, the COMELEC
(Second Division) dismissed the Petition on moral grounds, stating that:

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino

Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:

For this cause God gave them up into vile affections, for even their women did
change the natural use into that which is against nature: And likewise also the men,
leaving the natural use of the woman, burned in their lust one toward another; men
with men working that which is unseemly, and receiving in themselves that
recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women ye are indeed a people
transgressing beyond bounds. (7.81) And we rained down on them a shower (of
brimstone): Then see what was the end of those who indulged in sin and crime!
(7:84) He said: O my Lord! Help Thou me against people who do mischief (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2,
2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the

Petitions par. 6F: Consensual partnerships or relationships by gays and lesbians who
are already of age. It is further indicated in par. 24 of the Petition which waves for
the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were
estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or

accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal
Code are deemed part of the requirement to be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance
as Any act, omission, establishment, business, condition of property, or anything else
which x x x (3) shocks, defies; or disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: The contracting parties may
establish such stipulations, clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law, morals, good customs, public
order or public policy. Art 1409 of the Civil Code provides that Contracts whose
cause, object or purpose is contrary to law, morals, good customs, public order or
public policy are inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code,
as amended, penalizes Immoral doctrines, obscene publications and exhibitions and
indecent shows as follows:

10

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent
shows. The penalty of prision mayor or a fine ranging from six thousand to twelve
thousand pesos, or both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public
morals;

2. (a) The authors of obscene literature, published with their knowledge in any form;
the editors publishing such literature; and the owners/operators of the establishment
selling the same;

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or
literature which are offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral
doctrines but likewise for not being truthful when it said that it or any of its
nominees/party-list representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections.

Furthermore, should this Commission grant the petition, we will be exposing our
youth to an environment that does not conform to the teachings of our faith. Lehman
Strauss, a famous bible teacher and writer in the U.S.A. said in one article that older
practicing homosexuals are a threat to the youth. As an agency of the government,
ours too is the States avowed duty under Section 13, Article II of the Constitution to
protect our youth from moral and spiritual degradation.[8]

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent
or immoral plays, scenes, acts or shows, it being understood that the obscene
literature or indecent or immoral plays, scenes, acts or shows, whether live or in film,
which are prescribed by virtue hereof, shall include those which: (1) glorify
criminals or condone crimes; (2) serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic
in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good
customs, established policies, lawful orders, decrees and edicts.

11

When Ang Ladlad sought reconsideration,[9] three commissioners voted to overturn

the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V.
Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang
Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito
N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and
speaking for the majority in his Separate Opinion, upheld the First Assailed
Resolution, stating that:

I.

The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even
assuming that it has properly proven its under-representation and marginalization, it
cannot be said that Ladlads expressed sexual orientations per se would benefit the
nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list
system of electing congressional representatives is to enable Filipino citizens
belonging to marginalized and under-represented sectors, organizations and parties,
and who lack well-defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will benefit the nation as a
whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an organization
to represent its constituencies, then all representative organizations would have
found themselves into the party-list race. But that is not the intention of the framers
of the law. The party-list system is not a tool to advocate tolerance and acceptance of
misunderstood persons or groups of persons. Rather, the party-list system is a tool
for the realization of aspirations of marginalized individuals whose interests are also
the nations only that their interests have not been brought to the attention of the
nation because of their under representation. Until the time comes when Ladlad is
able to justify that having mixed sexual orientations and transgender identities is
beneficial to the nation, its application for accreditation under the party-list system
will remain just that.

II.

No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine

jurisprudence, courts do not recognize lesbians, gays, homosexuals, and bisexuals
(LGBT) as a special class of individuals. x x x Significantly, it has also been held
that homosexuality is not a constitutionally protected fundamental right, and that
nothing in the U.S. Constitution discloses a comparable intent to protect or promote
the social or legal equality of homosexual relations, as in the case of race or religion
or belief.

12

xxxx

Thus, even if societys understanding, tolerance, and acceptance of LGBTs is

elevated, there can be no denying that Ladlad constituencies are still males and
females, and they will remain either male or female protected by the same Bill of
Rights that applies to all citizens alike.

xxxx

Christian upbringing, such that some moral precepts espoused by said religions have
sipped [sic] into society and these are not publicly accepted moral norms.

V.

Legal Provisions

But above morality and social norms, they have become part of the law of the land.
Article 201 of the Revised Penal Code imposes the penalty of prision mayor upon
Those who shall publicly expound or proclaim doctrines openly contrary to public
morals. It penalizes immoral doctrines, obscene publications and exhibition and
indecent shows. Ang Ladlad apparently falls under these legal provisions. This is
clear from its Petitions paragraph 6F: Consensual partnerships or relationships by
gays and lesbians who are already of age It is further indicated in par. 24 of the
Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs
in the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil
Code defines nuisance as any act, omission x x x or anything else x x x which
shocks, defies or disregards decency or morality x x x. These are all unlawful.[10]

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim

religious practices. Neither is there any attempt to any particular religious groups
moral rules on Ladlad. Rather, what are being adopted as moral parameters and
precepts are generally accepted public morals. They are possibly religious-based, but
as a society, the Philippines cannot ignore its more than 500 years of Muslim and

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the
Assailed Resolutions and direct the COMELEC to grant Ang Ladlads application for
accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary

13

mandatory injunction against the COMELEC, which had previously announced that
it would begin printing the final ballots for the May 2010 elections by January 25,
2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its
Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010.
[11] Instead of filing a Comment, however, the OSG filed a Motion for Extension,
requesting that it be given until January 16, 2010 to Comment.[12] Somewhat
surprisingly, the OSG later filed a Comment in support of petitioners application.[13]
Thus, in order to give COMELEC the opportunity to fully ventilate its position, we
required it to file its own comment.[14] The COMELEC, through its Law
Department, filed its Comment on February 2, 2010.[15]

In the meantime, due to the urgency of the petition, we issued a temporary

restraining order on January 12, 2010, effective immediately and continuing until
further orders from this Court, directing the COMELEC to cease and desist from
implementing the Assailed Resolutions.[16]

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion
to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-inIntervention.[17] The CHR opined that the denial of Ang Ladlads petition on moral
grounds violated the standards and principles of the Constitution, the Universal
Declaration of Human Rights (UDHR), and the International Covenant on Civil and

Political Rights (ICCPR). On January 19, 2010, we granted the CHRs motion to
intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene[18]
which motion was granted on February 2, 2010.[19]

The Parties Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the
exclusion by using religious dogma, violated the constitutional guarantees against the
establishment of religion. Petitioner also claimed that the Assailed Resolutions
contravened its constitutional rights to privacy, freedom of speech and assembly, and
equal protection of laws, as well as constituted violations of the Philippines
international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred
in denying petitioners application for registration since there was no basis for
COMELECs allegations of immorality. It also opined that LGBTs have their own

14

special interests and concerns which should have been recognized by the COMELEC
as a separate classification. However, insofar as the purported violations of
petitioners freedom of speech, expression, and assembly were concerned, the OSG
maintained that there had been no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete
and genuine national political agenda to benefit the nation and that the petition was
validly dismissed on moral grounds. It also argued for the first time that the LGBT
sector is not among the sectors enumerated by the Constitution and RA 7941, and
that petitioner made untruthful statements in its petition when it alleged its national
existence contrary to actual verification reports by COMELECs field personnel.

Our Ruling

We grant the petition.

The COMELEC denied Ang Ladlads application for registration on the ground that
the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it
associated with or related to any of the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related to
said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals)
may be registered under the party-list system. As we explicitly ruled in Ang Bagong
Bayani-OFW Labor Party v. Commission on Elections,[20] the enumeration of
marginalized and under-represented sectors is not exclusive. The crucial element is
not whether a sector is specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition
when it alleged that it had nationwide existence through its members and affiliate
organizations. The COMELEC claims that upon verification by its field personnel, it
was shown that save for a few isolated places in the country, petitioner does not exist
in almost all provinces in the country.[21]

Compliance with the Requirements of the Constitution and Republic Act No. 7941

15

This argument that petitioner made untruthful statements in its petition when it
alleged its national existence is a new one; previously, the COMELEC claimed that
petitioner was not being truthful when it said that it or any of its nominees/party-list
representatives have not violated or failed to comply with laws, rules, or regulations
relating to the elections. Nowhere was this ground for denial of petitioners
accreditation mentioned or even alluded to in the Assailed Resolutions. This, in
itself, is quite curious, considering that the reports of petitioners alleged nonexistence were already available to the COMELEC prior to the issuance of the First
Assailed Resolution. At best, this is irregular procedure; at worst, a belated
afterthought, a change in respondents theory, and a serious violation of petitioners
right to procedural due process.

Albay Gay Association

Arts Center of Cabanatuan City Nueva Ecija

Boys Legion Metro Manila

Cagayan de Oro People Like Us (CDO PLUS)

Cant Live in the Closet, Inc. (CLIC) Metro Manila

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of

Ang Ladlads initial petition shows that it never claimed to exist in each province of
the Philippines. Rather, petitioner alleged that the LGBT community in the
Philippines was estimated to constitute at least 670,000 persons; that it had 16,100
affiliates and members around the country, and 4,044 members in its electronic
discussion group.[22] Ang Ladlad also represented itself to be a national LGBT
umbrella organization with affiliates around the Philippines composed of the
following LGBT networks:

Cebu Pride Cebu City

Circle of Friends

Dipolog Gay Association Zamboanga del Norte

Gay, Bisexual, & Transgender Youth Association (GABAY)

Abra Gay Association

Gay and Lesbian Activists Network for Gender Equality (GALANG)

Metro Manila

Aklan Butterfly Brigade (ABB) Aklan

Gay Mens Support Group (GMSG) Metro Manila

16

Gay United for Peace and Solidarity (GUPS) Lanao del Norte

RADAR PRIDEWEAR

Iloilo City Gay Association Iloilo City

Rainbow Rights Project (R-Rights), Inc. Metro Manila

Kabulig Writers Group Camarines Sur

San Jose del Monte Gay Association Bulacan

Lesbian Advocates Philippines, Inc. (LEAP)

Sining Kayumanggi Royal Family Rizal

LUMINA Baguio City

Society of Transexual Women of the Philippines (STRAP) Metro Manila

Marikina Gay Association Metro Manila

Soul Jive Antipolo, Rizal

Metropolitan Community Church (MCC) Metro Manila

The Link Davao City

Naga City Gay Association Naga City

Tayabas Gay Association Quezon

ONE BACARDI

Womens Bisexual Network Metro Manila

Order of St. Aelred (OSAe) Metro Manila

Zamboanga Gay Association Zamboanga City[23]

PUP LAKAN

17

Since the COMELEC only searched for the names ANG LADLAD LGBT or
LADLAD LGBT, it is no surprise that they found that petitioner had no presence in
any of these regions. In fact, if COMELECs findings are to be believed, petitioner
does not even exist in Quezon City, which is registered as Ang Ladlads principal
place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from
COMELECs moral objection and the belated allegation of non-existence, nowhere in
the records has the respondent ever found/ruled that Ang Ladlad is not qualified to
register as a party-list organization under any of the requisites under RA 7941 or the
guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang
Ladlads morality, or lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration

Our Constitution provides in Article III, Section 5 that [n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof. At
bottom, what our non-establishment clause calls for is government neutrality in
religious matters.[24] Clearly, governmental reliance on religious justification is
inconsistent with this policy of neutrality.[25] We thus find that it was grave
violation of the non-establishment clause for the COMELEC to utilize the Bible and
the Koran to justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions
should depend, instead, on whether the COMELEC is able to advance some
justification for its rulings beyond mere conformity to religious doctrine. Otherwise
stated, government must act for secular purposes and in ways that have primarily
secular effects. As we held in Estrada v. Escritor:[26]

x x x The morality referred to in the law is public and necessarily secular, not
religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as
expressed in public debate may influence the civil public order but public moral
disputes may be resolved only on grounds articulable in secular terms." Otherwise, if
government relies upon religious beliefs in formulating public policies and morals,
the resulting policies and morals would require conformity to what some might
regard as religious programs or agenda. The non-believers would therefore be
compelled to conform to a standard of conduct buttressed by a religious belief, i.e.,
to a "compelled religion," anathema to religious freedom. Likewise, if government
based its actions upon religious beliefs, it would tacitly approve or endorse that
belief and thereby also tacitly disapprove contrary religious or non-religious views
that would not support the policy. As a result, government will not provide full
religious freedom for all its citizens, or even make it appear that those whose beliefs
are disapproved are second-class citizens.

18

In other words, government action, including its proscription of immorality as

expressed in criminal law like concubinage, must have a secular purpose. That is, the
government proscribes this conduct because it is "detrimental (or dangerous) to those
conditions upon which depend the existence and progress of human society" and not
because the conduct is proscribed by the beliefs of one religion or the other.
Although admittedly, moral judgments based on religion might have a compelling
influence on those engaged in public deliberations over what actions would be
considered a moral disapprobation punishable by law. After all, they might also be
adherents of a religion and thus have religious opinions and moral codes with a
compelling influence on them; the human mind endeavors to regulate the temporal
and spiritual institutions of society in a uniform manner, harmonizing earth with
heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian
in its deepest roots, but it must have an articulable and discernible secular purpose
and justification to pass scrutiny of the religion clauses. x x x Recognizing the
religious nature of the Filipinos and the elevating influence of religion in society,
however, the Philippine constitution's religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that government must pursue
its secular goals and interests but at the same time strive to uphold religious liberty to
the greatest extent possible within flexible constitutional limits. Thus, although the
morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend
compelling state interests.[27]

Public Morals as a Ground to Deny Ang Ladlads Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality and

homosexual conduct may be religion-based, it has long been transplanted into
generally accepted public morals. The COMELEC argues:

Petitioners accreditation was denied not necessarily because their group consists of
LGBTs but because of the danger it poses to the people especially the youth. Once it
is recognized by the government, a sector which believes that there is nothing wrong
in having sexual relations with individuals of the same gender is a bad example. It
will bring down the standard of morals we cherish in our civilized society. Any
society without a set of moral precepts is in danger of losing its own existence.[28]

We are not blind to the fact that, through the years, homosexual conduct, and perhaps
homosexuals themselves, have borne the brunt of societal disapproval. It is not
difficult to imagine the reasons behind this censure religious beliefs, convictions
about the preservation of marriage, family, and procreation, even dislike or distrust
of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that
the Philippines has not seen fit to criminalize homosexual conduct. Evidently,
therefore, these generally accepted public morals have not been convincingly
transplanted into the realm of law.[29]

19

society. Nonetheless, we cannot countenance advocates who, undoubtedly with the

loftiest of intentions, situate morality on one end of an argument or another, without
bothering to go through the rigors of legal reasoning and explanation. In this, the
notion of morality is robbed of all value. Clearly then, the bare invocation of
morality will not remove an issue from our scrutiny.
The Assailed Resolutions have not identified any specific overt immoral act
performed by Ang Ladlad. Even the OSG agrees that there should have been a
finding by the COMELEC that the groups members have committed or are
committing immoral acts.[30] The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a

different gender, or more than one gender, but mere attraction does not translate to
immoral acts. There is a great divide between thought and action. Reduction ad
absurdum. If immoral thoughts could be penalized, COMELEC would have its hands
full of disqualification cases against both the straights and the gays. Certainly this is
not the intendment of the law.[31]

Respondent has failed to explain what societal ills are sought to be prevented, or why
special protection is required for the youth. Neither has the COMELEC
condescended to justify its position that petitioners admission into the party-list
system would be so harmful as to irreparably damage the moral fabric of society. We,
of course, do not suggest that the state is wholly without authority to regulate matters
concerning morality, sexuality, and sexual relations, and we recognize that the
government will and should continue to restrict behavior considered detrimental to

We also find the COMELECs reference to purported violations of our penal and civil
laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a
nuisance as any act, omission, establishment, condition of property, or anything else
which shocks, defies, or disregards decency or morality, the remedies for which are a
prosecution under the Revised Penal Code or any local ordinance, a civil action, or
abatement without judicial proceedings.[32] A violation of Article 201 of the Revised
Penal Code, on the other hand, requires proof beyond reasonable doubt to support a
criminal conviction. It hardly needs to be emphasized that mere allegation of
violation of laws is not proof, and a mere blanket invocation of public morals cannot
replace the institution of civil or criminal proceedings and a judicial determination of
liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient

governmental interest to justify exclusion of homosexuals from participation in the
party-list system. The denial of Ang Ladlads registration on purely moral grounds
amounts more to a statement of dislike and disapproval of homosexuals, rather than a
tool to further any substantial public interest. Respondents blanket justifications give
rise to the inevitable conclusion that the COMELEC targets homosexuals themselves
as a class, not because of any particular morally reprehensible act. It is this selective
targeting that implicates our equal protection clause.

20

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides
nor shall any person be denied equal protection of the laws, courts have never
interpreted the provision as an absolute prohibition on classification. Equality, said
Aristotle, consists in the same treatment of similar persons.[33] The equal protection
clause guarantees that no person or class of persons shall be deprived of the same
protection of laws which is enjoyed by other persons or other classes in the same
place and in like circumstances.[34]

behavior or expressions or parties about homosexual behavior. Indeed, even if we

were to assume that public opinion is as the COMELEC describes it, the asserted
state interest here that is, moral disapproval of an unpopular minority is not a
legitimate state interest that is sufficient to satisfy rational basis review under the
equal protection clause. The COMELECs differentiation, and its unsubstantiated
claim that Ang Ladlad cannot contribute to the formulation of legislation that would
benefit the nation, furthers no legitimate state interest other than disapproval of or
dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system on the
same basis as other political parties similarly situated. State intrusion in this case is
equally burdensome. Hence, laws of general application should apply with equal
force to LGBTs, and they deserve to participate in the party-list system on the same
basis as other marginalized and under-represented sectors.
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right
nor targets a suspect class, we will uphold the classification as long as it bears a
rational relationship to some legitimate government end.[35] In Central Bank
Employees Association, Inc. v. Banko Sentral ng Pilipinas,[36] we declared that [i]n
our jurisdiction, the standard of analysis of equal protection challenges x x x have
followed the rational basis test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a showing of a
clear and unequivocal breach of the Constitution.[37]

The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes sufficient
reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine
electorate has expressed no such belief. No law exists to criminalize homosexual

It bears stressing that our finding that COMELECs act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any
other law distinguishing between heterosexuals and homosexuals under different
circumstances would similarly fail. We disagree with the OSGs position that
homosexuals are a class in themselves for the purposes of the equal protection
clause.[38] We are not prepared to single out homosexuals as a separate class
meriting special or differentiated treatment. We have not received sufficient evidence
to this effect, and it is simply unnecessary to make such a ruling today. Petitioner
itself has merely demanded that it be recognized under the same basis as all other
groups similarly situated, and that the COMELEC made an unwarranted and
impermissible classification not justified by the circumstances of the case.

21

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and
attempt to persuade society of the validity of its position through normal democratic
means.[39] It is in the public square that deeply held convictions and differing
opinions should be distilled and deliberated upon. As we held in Estrada v. Escritor:
[40]

In a democracy, this common agreement on political and moral ideas is distilled in

the public square. Where citizens are free, every opinion, every prejudice, every
aspiration, and every moral discernment has access to the public square where people
deliberate the order of their life together. Citizens are the bearers of opinion,
including opinion shaped by, or espousing religious belief, and these citizens have
equal access to the public square. In this representative democracy, the state is
prohibited from determining which convictions and moral judgments may be
proposed for public deliberation. Through a constitutionally designed process, the
people deliberate and decide. Majority rule is a necessary principle in this democratic
governance. Thus, when public deliberation on moral judgments is finally
crystallized into law, the laws will largely reflect the beliefs and preferences of the
majority, i.e., the mainstream or median groups. Nevertheless, in the very act of
adopting and accepting a constitution and the limits it specifies including protection
of religious freedom "not only for a minority, however small not only for a majority,
however large but for each of us" the majority imposes upon itself a self-denying
ordinance. It promises not to do what it otherwise could do: to ride roughshod over
the dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic

society, and this freedom applies not only to those that are favorably received but
also to those that offend, shock, or disturb. Any restriction imposed in this sphere
must be proportionate to the legitimate aim pursued. Absent any compelling state
interest, it is not for the COMELEC or this Court to impose its views on the
populace. Otherwise stated, the COMELEC is certainly not free to interfere with
speech for no better reason than promoting an approved message or discouraging a
disfavored one.

This position gains even more force if one considers that homosexual conduct is not
illegal in this country. It follows that both expressions concerning ones
homosexuality and the activity of forming a political association that supports LGBT
individuals are protected as well.

Other jurisdictions have gone so far as to categorically rule that even overwhelming
public perception that homosexual conduct violates public morality does not justify
criminalizing same-sex conduct.[41] European and United Nations judicial decisions
have ruled in favor of gay rights claimants on both privacy and equality grounds,
citing general privacy and equal protection provisions in foreign and international
texts.[42] To the extent that there is much to learn from other jurisdictions that have
reflected on the issues we face here, such jurisprudence is certainly illuminating.
These foreign authorities, while not formally binding on Philippine courts, may
nevertheless have persuasive influence on the Courts analysis.

22

In the area of freedom of expression, for instance, United States courts have ruled
that existing free speech doctrines protect gay and lesbian rights to expressive
conduct. In order to justify the prohibition of a particular expression of opinion,
public institutions must show that their actions were caused by something more than
a mere desire to avoid the discomfort and unpleasantness that always accompany an
unpopular viewpoint.[43]

With respect to freedom of association for the advancement of ideas and beliefs, in
Europe, with its vibrant human rights tradition, the European Court of Human Rights
(ECHR) has repeatedly stated that a political party may campaign for a change in the
law or the constitutional structures of a state if it uses legal and democratic means
and the changes it proposes are consistent with democratic principles. The ECHR has
emphasized that political ideas that challenge the existing order and whose
realization is advocated by peaceful means must be afforded a proper opportunity of
expression through the exercise of the right of association, even if such ideas may
seem shocking or unacceptable to the authorities or the majority of the population.
[44] A political group should not be hindered solely because it seeks to publicly
debate controversial political issues in order to find solutions capable of satisfying
everyone concerned.[45] Only if a political party incites violence or puts forward
policies that are incompatible with democracy does it fall outside the protection of
the freedom of association guarantee.[46]

We do not doubt that a number of our citizens may believe that homosexual conduct
is distasteful, offensive, or even defiant. They are entitled to hold and express that
view. On the other hand, LGBTs and their supporters, in all likelihood, believe with
equal fervor that relationships between individuals of the same sex are morally
equivalent to heterosexual relationships. They, too, are entitled to hold and express
that view. However, as far as this Court is concerned, our democracy precludes using
the religious or moral views of one part of the community to exclude from
consideration the values of other members of the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights
litigants. It well may be that this Decision will only serve to highlight the
discrepancy between the rigid constitutional analysis of this Court and the more
complex moral sentiments of Filipinos. We do not suggest that public opinion, even
at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims
and we neither attempt nor expect to affect individual perceptions of homosexuality
through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent
punishment imposed on Ang Ladlad, and its members have not been deprived of
their right to voluntarily associate, then there has been no restriction on their freedom
of expression or association. The OSG argues that:

23

There was no utterance restricted, no publication censored, or any assembly denied.

[COMELEC] simply exercised its authority to review and verify the qualifications of
petitioner as a sectoral party applying to participate in the party-list system. This
lawful exercise of duty cannot be said to be a transgression of Section 4, Article III
of the Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the members of the
petitioner to freely take part in the conduct of elections. Their right to vote will not
be hampered by said denial. In fact, the right to vote is a constitutionally-guaranteed
right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that

the denial of Ang Ladlads petition has the clear and immediate effect of limiting, if
not outrightly nullifying the capacity of its members to fully and equally participate
in public life through engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but a privilege
subject to limitations imposed by law. x x x[47]

The OSG fails to recall that petitioner has, in fact, established its qualifications to
participate in the party-list system, and as advanced by the OSG itself the moral
objection offered by the COMELEC was not a limitation imposed by law. To the
extent, therefore, that the petitioner has been precluded, because of COMELECs
action, from publicly expressing its views as a political party and participating on an
equal basis in the political process with other equally-qualified party-list candidates,
we find that there has, indeed, been a transgression of petitioners fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise,
international human rights law, in particular, has grown dynamically in its attempt to
bring about a more just and humane world order. For individuals and groups
struggling with inadequate structural and governmental support, international human
rights norms are particularly significant, and should be effectively enforced in
domestic legal systems so that such norms may become actual, rather than ideal,
standards of conduct.

24

Our Decision today is fully in accord with our international obligations to protect and
promote human rights. In particular, we explicitly recognize the principle of nondiscrimination as it relates to the right to electoral participation, enunciated in the
UDHR and the ICCPR.

In this context, the principle of non-discrimination requires that laws of general

application relating to elections be applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically enumerated as a status or
ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights
Committee has opined that the reference to sex in Article 26 should be construed to
include sexual orientation.[48] Additionally, a variety of United Nations bodies have
declared discrimination on the basis of sexual orientation to be prohibited under
various international agreements.[49]

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as

follows:

The UDHR provides:

Article 26

Article 21.
All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
(1) Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.

Likewise, the ICCPR states:

25

Article 25

As stated by the CHR in its Comment-in-Intervention, the scope of the right to

electoral participation is elaborated by the Human Rights Committee in its General
Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows:

Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by

universal and equal suffrage and shall be held by secret ballot, guaranteeing the free
expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

1. Article 25 of the Covenant recognizes and protects the right of every citizen to
take part in the conduct of public affairs, the right to vote and to be elected and the
right to have access to public service. Whatever form of constitution or government
is in force, the Covenant requires States to adopt such legislative and other measures
as may be necessary to ensure that citizens have an effective opportunity to enjoy the
rights it protects. Article 25 lies at the core of democratic government based on the
consent of the people and in conformity with the principles of the Covenant.

xxxx

15. The effective implementation of the right and the opportunity to stand for
elective office ensures that persons entitled to vote have a free choice of candidates.
Any restrictions on the right to stand for election, such as minimum age, must be
justifiable on objective and reasonable criteria. Persons who are otherwise eligible to

26

stand for election should not be excluded by unreasonable or discriminatory

requirements such as education, residence or descent, or by reason of political
affiliation. No person should suffer discrimination or disadvantage of any kind
because of that person's candidacy. States parties should indicate and explain the
legislative provisions which exclude any group or category of persons from elective
office.[50]

We stress, however, that although this Court stands willing to assume the
responsibility of giving effect to the Philippines international law obligations, the
blanket invocation of international law is not the panacea for all social ills. We refer
now to the petitioners invocation of the Yogyakarta Principles (the Application of
International Human Rights Law In Relation to Sexual Orientation and Gender
Identity),[51] which petitioner declares to reflect binding principles of international
law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain
norms that are obligatory on the Philippines. There are declarations and obligations
outlined in said Principles which are not reflective of the current state of
international law, and do not find basis in any of the sources of international law
enumerated under Article 38(1) of the Statute of the International Court of Justice.
[52] Petitioner has not undertaken any objective and rigorous analysis of these
alleged principles of international law to ascertain their true status.

We also hasten to add that not everything that society or a certain segment of society
wants or demands is automatically a human right. This is not an arbitrary human
intervention that may be added to or subtracted from at will. It is unfortunate that
much of what passes for human rights today is a much broader context of needs that
identifies many social desires as rights in order to further claims that international
law obliges states to sanction these innovations. This has the effect of diluting real
human rights, and is a result of the notion that if wants are couched in rights
language, then they are no longer controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are at best de lege
ferenda and do not constitute binding obligations on the Philippines. Indeed, so much
of contemporary international law is characterized by the soft law nomenclature, i.e.,
international law is full of principles that promote international cooperation,
harmony, and respect for human rights, most of which amount to no more than wellmeaning desires, without the support of either State practice or opinio juris.[53]

As a final note, we cannot help but observe that the social issues presented by this
case are emotionally charged, societal attitudes are in flux, even the psychiatric and
religious communities are divided in opinion. This Courts role is not to impose its
own view of acceptable behavior. Rather, it is to apply the Constitution and laws as
best as it can, uninfluenced by public opinion, and confident in the knowledge that
our democracy is resilient enough to withstand vigorous debate.

27

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the

Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP
No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed
to GRANT petitioners application for party-list accreditation.

SO ORDERED.

Republic of the Philippines

SUPREME COURT

BACKGROUND FACTS

Manila

EN BANC

G.R. No. 176970

December 8, 2008

ROGELIO Z. BAGABUYO, petitioner,

On October 10, 2006, Cagayan de Oro's then Congressman Constantino G. Jaraula

filed and sponsored House Bill No. 5859: "An Act Providing for the Apportionment
of the Lone Legislative District of the City of Cagayan De Oro."3 This law
eventually became Republic Act (R.A.) No. 9371.4 It increased Cagayan de Oro's
legislative district from one to two. For the election of May 2007, Cagayan de Oro's
voters would be classified as belonging to either the first or the second district,
depending on their place of residence. The constituents of each district would elect
their own representative to Congress as well as eight members of the Sangguniang
Panglungsod.

vs.
COMMISSION ON ELECTIONS, respondent.

DECISION

BRION, J.:

Before us is the petition for certiorari, prohibition, and mandamus,1 with a prayer for
the issuance of a temporary restraining order and a writ of preliminary injunction,
filed by Rogelio Bagabuyo (petitioner) to prevent the Commission on Elections
(COMELEC) from implementing Resolution No. 7837 on the ground that Republic
Act No. 93712 - the law that Resolution No. 7837 implements - is unconstitutional.

Section 1 of R.A. No. 9371 apportioned the City's barangays as follows:

Legislative Districts - The lone legislative district of the City of Cagayan De Oro is
hereby apportioned to commence in the next national elections after the effectivity of
this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag,
Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia,
Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga,
Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first district
while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth,
Macasandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan,
Puerto, Bugo, and Balubal and all urban barangays from Barangay 1 to Barangay 40
shall comprise the second district.5

28

On March 13, 2007, the COMELEC en Banc promulgated Resolution No. 78376
implementing R.A. No. 9371.

unit took place; and 4) R.A. No. 9371 did not bring about any change in Cagayan de
Oro's territory, population and income classification; hence, no plebiscite is required.

Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on
March 27, 2007.7 On 10 April 2008, the petitioner amended the petition to include
the following as respondents: Executive Secretary Eduardo Ermita; the Secretary of
the Department of Budget and Management; the Chairman of the Commission on
Audit; the Mayor and the members of the Sangguniang Panglungsod of Cagayan de
Oro City; and its Board of Canvassers.8

The petitioner argued in his reply that: 1) pursuant to the Court's ruling in Del Mar v.
PAGCOR,9 the Court may take cognizance of this petition if compelling reasons, or
the nature and importance of the issues raised, warrant the immediate exercise of its
jurisdiction; 2) Cagayan de Oro City's reapportionment under R.A. No. 9371 falls
within the meaning of creation, division, merger, abolition or substantial alteration of
boundaries of cities under Section 10, Article X of the Constitution; 3) the creation,
division, merger, abolition or substantial alteration of boundaries of local
government units involve a common denominator - the material change in the
political and economic rights of the local government units directly affected, as well
as of the people therein; 4) a voter's sovereign power to decide on who should be
elected as the entire city's Congressman was arbitrarily reduced by at least one half
because the questioned law and resolution only allowed him to vote and be voted for
in the district designated by the COMELEC; 5) a voter was also arbitrarily denied his
right to elect the Congressman and the members of the city council for the other
legislative district, and 6) government funds were illegally disbursed without prior
approval by the sovereign electorate of Cagayan De Oro City.10

In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on
constitutional grounds, the petitioner argued that the COMELEC cannot implement
R.A. No. 9371 without providing for the rules, regulations and guidelines for the
conduct of a plebiscite which is indispensable for the division or conversion of a
local government unit. He prayed for the issuance of an order directing the
respondents to cease and desist from implementing R.A. No. 9371 and COMELEC
Resolution No. 7837, and to revert instead to COMELEC Resolution No. 7801
which provided for a single legislative district for Cagayan de Oro.

Since the Court did not grant the petitioner's prayer for a temporary restraining order
or writ of preliminary injunction, the May 14 National and Local Elections
proceeded according to R.A. No. 9371 and Resolution No. 7837.

THE ISSUES

The core issues, based on the petition and the parties' memoranda, can be limited to
the following contentious points:
The respondent's Comment on the petition, filed through the Office of the Solicitor
General, argued that: 1) the petitioner did not respect the hierarchy of courts, as the
Regional Trial Court (RTC) is vested with concurrent jurisdiction over cases
assailing the constitutionality of a statute; 2) R.A. No. 9371 merely increased the
representation of Cagayan de Oro City in the House of Representatives and
Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution;
3) the criteria established under Section 10, Article X of the 1987 Constitution only
apply when there is a creation, division, merger, abolition or substantial alteration of
boundaries of a province, city, municipality, or barangay; in this case, no such
creation, division, merger, abolition or alteration of boundaries of a local government

1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant
petition be dismissed on this ground?

2) Does R.A. No. 9371 merely provide for the legislative reapportionment of
Cagayan de Oro City, or does it involve the division and conversion of a local
government unit?

29

3) Does R.A. No. 9371 violate the equality of representation doctrine?

OUR RULING

Except for the issue of the hierarchy of courts rule, we find the petition totally
without merit.

The hierarchy of courts principle.

The Supreme Court has original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus.11 It was pursuant to this original
jurisdiction that the petitioner filed the present petition.

While this jurisdiction is shared with the Court of Appeals12 and the RTCs,13 a
direct invocation of the Supreme Court's jurisdiction is allowed only when there are
special and important reasons therefor, clearly and especially set out in the petition.
Reasons of practicality, dictated by an increasingly overcrowded docket and the need
to prioritize in favor of matters within our exclusive jurisdiction, justify the existence
of this rule otherwise known as the "principle of hierarchy of courts." More generally
stated, the principle requires that recourse must first be made to the lower-ranked
court exercising concurrent jurisdiction with a higher court.14

Among the cases we have considered sufficiently special and important to be

exceptions to the rule, are petitions for certiorari, prohibition, mandamus and quo
warranto against our nation's lawmakers when the validity of their enactments is
assailed.15 The present petition is of this nature; its subject matter and the nature of
the issues raised - among them, whether legislative reapportionment involves a
division of Cagayan de Oro City as a local government unit - are reasons enough for

considering it an exception to the principle of hierarchy of courts. Additionally, the

petition assails as well a resolution of the COMELEC en banc issued to implement
the legislative apportionment that R.A. No. 9371 decrees. As an action against a
COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court
that in turn requires a review by this Court via a Rule 65 petition for certiorari.16 For
these reasons, we do not see the principle of hierarchy of courts to be a stumbling
block in our consideration of the present case.

The Plebiscite Requirement.

The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de
Oro as a local government unit, and does not merely provide for the City's legislative
apportionment. This argument essentially proceeds from a misunderstanding of the
constitutional concepts of apportionment of legislative districts and division of local
government units.

Legislative apportionment is defined by Black's Law Dictionary as the determination

of the number of representatives which a State, county or other subdivision may send
to a legislative body.17It is the allocation of seats in a legislative body in proportion
to the population; the drawing of voting district lines so as to equalize population and
voting power among the districts.18 Reapportionment, on the other hand, is the
realignment or change in legislative districts brought about by changes in population
and mandated by the constitutional requirement of equality of representation.19

Article VI (entitled Legislative Department) of the 1987 Constitution lays down the
rules on legislative apportionment under its Section 5 which provides:

Sec. 5(1). (1) The House of Representatives shall be composed of not more than two
hundred fifty members unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the

30

basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional and sectoral
parties or organizations.

xxx

(3) Each legislative district shall comprise, as far as practicable, continuous,

compact, and adjacent territory. Each city with a population of at least two hundred
fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this
section.

Separately from the legislative districts that legal apportionment or reapportionment

speaks of, are the local government units (historically and generically referred to as
"municipal corporations") that the Constitution itself classified into provinces, cities,
municipalities and barangays.20 In its strict and proper sense, a municipality has
been defined as "a body politic and corporate constituted by the incorporation of the
inhabitants of a city or town for the purpose of local government thereof."21 The
creation, division, merger, abolition or alteration of boundary of local government
units, i.e., of provinces, cities, municipalities, and barangays, are covered by the
Article on Local Government (Article X). Section 10 of this Article provides:

No province, city, municipality, or barangay may be created, divided, merged,

abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code and subject to approval by a majority of the
votes cast in a plebiscite in the political unit directly affected.

Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the
authority to act has been vested in the Legislature. The Legislature undertakes the
apportionment and reapportionment of legislative districts,22 and likewise acts on
local government units by setting the standards for their creation, division, merger,
abolition and alteration of boundaries and by actually creating, dividing, merging,
abolishing local government units and altering their boundaries through legislation.
Other than this, not much commonality exists between the two provisions since they
are inherently different although they interface and relate with one another.

The concern that leaps from the text of Article VI, Section 5 is political
representation and the means to make a legislative district sufficiently represented so
that the people can be effectively heard. As above stated, the aim of legislative
apportionment is "to equalize population and voting power among districts."23
Hence, emphasis is given to the number of people represented; the uniform and
progressive ratio to be observed among the representative districts; and accessibility
and commonality of interests in terms of each district being, as far as practicable,
continuous, compact and adjacent territory. In terms of the people represented, every
city with at least 250,000 people and every province (irrespective of population) is
entitled to one representative. In this sense, legislative districts, on the one hand, and
provinces and cities, on the other, relate and interface with each other. To ensure
continued adherence to the required standards of apportionment, Section 5(4)
specifically mandates reapportionment as soon as the given standards are met.

In contrast with the equal representation objective of Article VI, Section 5, Article X,
Section 10 expressly speaks of how local government units may be "created, divided,
merged, abolished, or its boundary substantially altered." Its concern is the
commencement, the termination, and the modification of local government units'
corporate existence and territorial coverage; and it speaks of two specific standards
that must be observed in implementing this concern, namely, the criteria established
in the local government code and the approval by a majority of the votes cast in a
plebiscite in the political units directly affected. Under the Local Government Code
(R.A. No. 7160) passed in 1991, the criteria of income, population and land area are
specified as verifiable indicators of viability and capacity to provide services.24 The
division or merger of existing units must comply with the same requirements (since a
new local government unit will come into being), provided that a division shall not

31

reduce the income, population, or land area of the unit affected to less than the
minimum requirement prescribed in the Code.25

A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is

on the requirement of a plebiscite. The Constitution and the Local Government Code
expressly require a plebiscite to carry out any creation, division, merger, abolition or
alteration of boundary of a local government unit.26 In contrast, no plebiscite
requirement exists under the apportionment or reapportionment provision. In Tobias
v. Abalos,27 a case that arose from the division of the congressional district formerly
covering San Juan and Mandaluyong into separate districts, we confirmed this
distinction and the fact that no plebiscite is needed in a legislative reapportionment.
The plebiscite issue came up because one was ordered and held for Mandaluyong in
the course of its conversion into a highly urbanized city, while none was held for San
Juan. In explaining why this happened, the Court ruled that no plebiscite was
necessary for San Juan because the objective of the plebiscite was the conversion of
Mandaluyong into a highly urbanized city as required by Article X, Section 10 the
Local Government Code; the creation of a new legislative district only followed as a
consequence. In other words, the apportionment alone and by itself did not call for a
plebiscite, so that none was needed for San Juan where only a reapportionment took
place.

The need for a plebiscite under Article X, Section 10 and the lack of requirement for
one under Article VI, Section 5 can best be appreciated by a consideration of the
historical roots of these two provisions, the nature of the concepts they embody as
heretofore discussed, and their areas of application.

A Bit of History.

In Macias v. COMELEC,28 we first jurisprudentially acknowledged the American

roots of our apportionment provision, noting its roots from the Fourteenth
Amendment29 of the U.S. Constitution and from the constitutions of some American
states. The Philippine Organic Act of 1902 created the Philippine Assembly,30 the
body that acted as the lower house of the bicameral legislature under the Americans,

with the Philippine Commission acting as the upper house. While the members of the
Philippine Commission were appointed by the U.S. President with the conformity of
the U.S. Senate, the members of the Philippine Assembly were elected by
representative districts previously delineated under the Philippine Organic Act of
1902 pursuant to the mandate to apportion the seats of the Philippine Assembly
among the provinces as nearly as practicable according to population. Thus,
legislative apportionment first started in our country.

The Jones Law or the Philippine Autonomy Act of 1916 maintained the
apportionment provision, dividing the country into 12 senate districts and 90
representative districts electing one delegate each to the House of Representatives.
Section 16 of the Act specifically vested the Philippine Legislature with the authority
to redistrict the Philippine Islands.

Under the 1935 Constitution, Article VI, Section 5 retained the concept of legislative
apportionment together with "district" as the basic unit of apportionment; the
concern was "equality of representation . . . as an essential feature of republican
institutions" as expressed in the leading case of Macias v. COMELEC.31 The case
ruled that inequality of representation is a justiciable, not a political issue, which
ruling was reiterated in Montejo v. COMELEC.32 Notably, no issue regarding the
holding of a plebiscite ever came up in these cases and the others that followed, as no
plebiscite was required.

Article VIII, Section 2 of the 1973 Constitution retained the concept of equal
representation "in accordance with the number of their respective inhabitants and on
the basis of a uniform and progressive ratio" with each district being, as far as
practicable, contiguous, compact and adjacent territory. This formulation was
essentially carried over to the 1987 Constitution, distinguished only from the
previous one by the presence of party-list representatives. In neither Constitution was
a plebiscite required.

The need for a plebiscite in the creation, division, merger, or abolition of local
government units was not constitutionally enshrined until the 1973 Constitution.

32

However, as early as 1959, R.A. No. 226433 required, in the creation of barrios by
Provincial Boards, that the creation and definition of boundaries be "upon petition of
a majority of the voters in the areas affected." In 1961, the Charter of the City of
Caloocan (R.A. No. 3278) carried this further by requiring that the "Act shall take
effect after a majority of voters of the Municipality of Caloocan vote in favor of the
conversion of their municipality into a city in a plebiscite." This was followed up to
1972 by other legislative enactments requiring a plebiscite as a condition for the
creation and conversion of local government units as well as the transfer of sitios
from one legislative unit to another.34 In 1973, the plebiscite requirement was
accorded constitutional status.

Under these separate historical tracks, it can be seen that the holding of a plebiscite
was never a requirement in legislative apportionment or reapportionment. After it
became constitutionally entrenched, a plebiscite was also always identified with the
creation, division, merger, abolition and alteration of boundaries of local government
units, never with the concept of legislative apportionment.

Nature and Areas of Application.

The legislative district that Article VI, Section 5 speaks of may, in a sense, be called
a political unit because it is the basis for the election of a member of the House of
Representatives and members of the local legislative body. It is not, however, a
political subdivision through which functions of government are carried out. It can
more appropriately be described as a representative unit that may or may not
encompass the whole of a city or a province, but unlike the latter, it is not a corporate
unit. Not being a corporate unit, a district does not act for and in behalf of the people
comprising the district; it merely delineates the areas occupied by the people who
will choose a representative in their national affairs. Unlike a province, which has a
governor; a city or a municipality, which has a mayor; and a barangay, which has a
punong barangay, a district does not have its own chief executive. The role of the
congressman that it elects is to ensure that the voice of the people of the district is
heard in Congress, not to oversee the affairs of the legislative district. Not being a
corporate unit also signifies that it has no legal personality that must be created or
dissolved and has no capacity to act. Hence, there is no need for any plebiscite in the
creation, dissolution or any other similar action on a legislative district.

The local government units, on the other hand, are political and corporate units. They
are the territorial and political subdivisions of the state.35 They possess legal
personality on the authority of the Constitution and by action of the Legislature. The
Constitution defines them as entities that Congress can, by law, create, divide,
abolish, merge; or whose boundaries can be altered based on standards again
established by both the Constitution and the Legislature.36 A local government unit's
corporate existence begins upon the election and qualification of its chief executive
and a majority of the members of its Sanggunian.37

As a political subdivision, a local government unit is an "instrumentality of the state

in carrying out the functions of government."38 As a corporate entity with a distinct
and separate juridical personality from the State, it exercises special functions for the
sole benefit of its constituents. It acts as "an agency of the community in the
administration of local affairs"39 and the mediums through which the people act in
their corporate capacity on local concerns.40 In light of these roles, the Constitution
saw it fit to expressly secure the consent of the people affected by the creation,
division, merger, abolition or alteration of boundaries of local government units
through a plebiscite.

33

These considerations clearly show the distinctions between a legislative

apportionment or reapportionment and the division of a local government unit.
Historically and by its intrinsic nature, a legislative apportionment does not mean,
and does not even imply, a division of a local government unit where the
apportionment takes place. Thus, the plebiscite requirement that applies to the
division of a province, city, municipality or barangay under the Local Government
Code should not apply to and be a requisite for the validity of a legislative
apportionment or reapportionment.

in the House of Representatives. Thus, Article X, Section 10 of the Constitution does

not come into play and no plebiscite is necessary to validly apportion Cagayan de
Oro City into two districts.

Admittedly, the legislative reapportionment carries effects beyond the creation of

another congressional district in the city by providing, as reflected in COMELEC
Resolution No. 7837, for additional Sangguniang Panglunsod seats to be voted for
along the lines of the congressional apportionment made. The effect on the
Sangguniang Panglunsod, however, is not directly traceable to R.A. No. 9371 but to
another law - R.A. No. 663641 - whose Section 3 provides:

R.A. No. 9371 and COMELEC Res. No. 7837

R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed
in accordance with the authority granted to Congress under Article VI, Section 5(4)
of the Constitution. Its core provision - Section 1 - provides:

SECTION 1. Legislative Districts. - The lone legislative district of the City of

Cagayan de Oro is hereby apportioned to commence in the next national elections
after the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas,
Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat,
Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an,
Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall
comprise the first district while barangays Macabalan, Puntod, Consolacion,
Camaman-an, Nazareth, Macansandig, Indahag, Lapasan, Gusa, Cugman, FS
Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all urban barangays from
Barangay 1 to Barangay 40 shall comprise the second district.

Under these wordings, no division of Cagayan de Oro City as a political and

corporate entity takes place or is mandated. Cagayan de Oro City politically remains
a single unit and its administration is not divided along territorial lines. Its territory
remains completely whole and intact; there is only the addition of another legislative
district and the delineation of the city into two districts for purposes of representation

SECTION 3. Other Cities. - The provision of any law to the contrary

notwithstanding the City of Cebu, City of Davao, and any other city with more than
one representative district shall have eight (8) councilors for each district who shall
be residents thereof to be elected by the qualified voters therein, provided that the
cities of Cagayan de Oro, Zamboanga, Bacolod, Iloilo and other cities comprising a
representative district shall have twelve (12) councilors each and all other cities shall
have ten (10) councilors each to be elected at large by the qualified voters of the said
cities: Provided, That in no case shall the present number of councilors according to
their charters be reduced.

However, neither does this law have the effect of dividing the City of Cagayan de
Oro into two political and corporate units and territories. Rather than divide the city
either territorially or as a corporate entity, the effect is merely to enhance voter
representation by giving each city voter more and greater say, both in Congress and
in the Sangguniang Panglunsod.

To illustrate this effect, before the reapportionment, Cagayan de Oro had only one
congressman and 12 city council members citywide for its population of
approximately 500,000.42 By having two legislative districts, each of them with one
congressman, Cagayan de Oro now effectively has two congressmen, each one
representing 250,000 of the city's population. In terms of services for city residents,
this easily means better access to their congressman since each one now services

34

only 250,000 constituents as against the 500,000 he used to represent. The same goes
true for the Sangguniang Panglungsod with its ranks increased from 12 to 16 since
each legislative district now has 8 councilors. In representation terms, the fewer
constituents represented translate to a greater voice for each individual city resident
in Congress and in the Sanggunian; each congressman and each councilor represents
both a smaller area and fewer constituents whose fewer numbers are now
concentrated in each representative. The City, for its part, now has twice the number
of congressmen speaking for it and voting in the halls of Congress. Since the total
number of congressmen in the country has not increased to the point of doubling its
numbers, the presence of two congressman (instead of one) from the same city
cannot but be a quantitative and proportional improvement in the representation of
Cagayan de Oro City in Congress.

Equality of representation.

The petitioner argues that the distribution of the legislative districts is unequal.
District 1 has only 93,719 registered voters while District 2 has 127,071. District 1 is
composed mostly of rural barangays while District 2 is composed mostly of urban
barangays.43 Thus, R.A. No. 9371 violates the principle of equality of
representation.

A clarification must be made. The law clearly provides that the basis for districting
shall be the number of the inhabitants of a city or a province, not the number of
registered voters therein. We settled this very same question in Herrera v.
COMELEC44 when we interpreted a provision in R.A. No. 7166 and COMELEC
Resolution No. 2313 that applied to the Province of Guimaras. We categorically
ruled that the basis for districting is the number of inhabitants of the Province of
Guimaras by municipality based on the official 1995 Census of Population as
certified to by Tomas P. Africa, Administrator of the National Statistics Office.

The petitioner, unfortunately, did not provide information about the actual population
of Cagayan de Oro City. However, we take judicial notice of the August 2007 census

of the National Statistics Office which shows that barangays comprising Cagayan de
Oro's first district have a total population of 254,644, while the second district has
299,322 residents. Undeniably, these figures show a disparity in the population sizes
of the districts.45 The Constitution, however, does not require mathematical
exactitude or rigid equality as a standard in gauging equality of representation.46 In
fact, for cities, all it asks is that "each city with a population of at least two hundred
fifty thousand shall have one representative," while ensuring representation for every
province regardless of the size of its population. To ensure quality representation
through commonality of interests and ease of access by the representative to the
constituents, all that the Constitution requires is that every legislative district should
comprise, as far as practicable, contiguous, compact, and adjacent territory. Thus, the
Constitution leaves the local government units as they are found and does not require
their division, merger or transfer to satisfy the numerical standard it imposes. Its
requirements are satisfied despite some numerical disparity if the units are
contiguous, compact and adjacent as far as practicable.

The petitioner's contention that there is a resulting inequality in the division of

Cagayan de Oro City into two districts because the barangays in the first district are
mostly rural barangays while the second district is mostly urban, is largely
unsubstantiated. But even if backed up by proper proof, we cannot question the
division on the basis of the difference in the barangays' levels of development or
developmental focus as these are not part of the constitutional standards for
legislative apportionment or reapportionment. What the components of the two
districts of Cagayan de Oro would be is a matter for the lawmakers to determine as a
matter of policy. In the absence of any grave abuse of discretion or violation of the
established legal parameters, this Court cannot intrude into the wisdom of these
policies.47

WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs against the
petitioner.

SO ORDERED.

35

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 176970

On October 10, 2006, Cagayan de Oro's then Congressman Constantino G. Jaraula

filed and sponsored House Bill No. 5859: "An Act Providing for the Apportionment
of the Lone Legislative District of the City of Cagayan De Oro."3 This law
eventually became Republic Act (R.A.) No. 9371.4 It increased Cagayan de Oro's
legislative district from one to two. For the election of May 2007, Cagayan de Oro's
voters would be classified as belonging to either the first or the second district,
depending on their place of residence. The constituents of each district would elect
their own representative to Congress as well as eight members of the Sangguniang
Panglungsod.

December 8, 2008
Section 1 of R.A. No. 9371 apportioned the City's barangays as follows:

ROGELIO Z. BAGABUYO, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

DECISION

BRION, J.:

Before us is the petition for certiorari, prohibition, and mandamus,1 with a prayer for
the issuance of a temporary restraining order and a writ of preliminary injunction,
filed by Rogelio Bagabuyo (petitioner) to prevent the Commission on Elections
(COMELEC) from implementing Resolution No. 7837 on the ground that Republic
Act No. 93712 - the law that Resolution No. 7837 implements - is unconstitutional.

BACKGROUND FACTS

Legislative Districts - The lone legislative district of the City of Cagayan De Oro is
hereby apportioned to commence in the next national elections after the effectivity of
this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag,
Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia,
Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga,
Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first district
while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth,
Macasandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan,
Puerto, Bugo, and Balubal and all urban barangays from Barangay 1 to Barangay 40
shall comprise the second district.5

On March 13, 2007, the COMELEC en Banc promulgated Resolution No. 78376
implementing R.A. No. 9371.

Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on
March 27, 2007.7 On 10 April 2008, the petitioner amended the petition to include
the following as respondents: Executive Secretary Eduardo Ermita; the Secretary of
the Department of Budget and Management; the Chairman of the Commission on
Audit; the Mayor and the members of the Sangguniang Panglungsod of Cagayan de
Oro City; and its Board of Canvassers.8

36

In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on
constitutional grounds, the petitioner argued that the COMELEC cannot implement
R.A. No. 9371 without providing for the rules, regulations and guidelines for the
conduct of a plebiscite which is indispensable for the division or conversion of a
local government unit. He prayed for the issuance of an order directing the
respondents to cease and desist from implementing R.A. No. 9371 and COMELEC
Resolution No. 7837, and to revert instead to COMELEC Resolution No. 7801
which provided for a single legislative district for Cagayan de Oro.

Since the Court did not grant the petitioner's prayer for a temporary restraining order
or writ of preliminary injunction, the May 14 National and Local Elections
proceeded according to R.A. No. 9371 and Resolution No. 7837.

The respondent's Comment on the petition, filed through the Office of the Solicitor
General, argued that: 1) the petitioner did not respect the hierarchy of courts, as the
Regional Trial Court (RTC) is vested with concurrent jurisdiction over cases
assailing the constitutionality of a statute; 2) R.A. No. 9371 merely increased the
representation of Cagayan de Oro City in the House of Representatives and
Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution;
3) the criteria established under Section 10, Article X of the 1987 Constitution only
apply when there is a creation, division, merger, abolition or substantial alteration of
boundaries of a province, city, municipality, or barangay; in this case, no such
creation, division, merger, abolition or alteration of boundaries of a local government
unit took place; and 4) R.A. No. 9371 did not bring about any change in Cagayan de
Oro's territory, population and income classification; hence, no plebiscite is required.

division, merger, abolition or substantial alteration of boundaries of local

government units involve a common denominator - the material change in the
political and economic rights of the local government units directly affected, as well
as of the people therein; 4) a voter's sovereign power to decide on who should be
elected as the entire city's Congressman was arbitrarily reduced by at least one half
because the questioned law and resolution only allowed him to vote and be voted for
in the district designated by the COMELEC; 5) a voter was also arbitrarily denied his
right to elect the Congressman and the members of the city council for the other
legislative district, and 6) government funds were illegally disbursed without prior
approval by the sovereign electorate of Cagayan De Oro City.10

THE ISSUES

The core issues, based on the petition and the parties' memoranda, can be limited to
the following contentious points:

1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant
petition be dismissed on this ground?

2) Does R.A. No. 9371 merely provide for the legislative reapportionment of
Cagayan de Oro City, or does it involve the division and conversion of a local
government unit?

3) Does R.A. No. 9371 violate the equality of representation doctrine?

The petitioner argued in his reply that: 1) pursuant to the Court's ruling in Del Mar v.
PAGCOR,9 the Court may take cognizance of this petition if compelling reasons, or
the nature and importance of the issues raised, warrant the immediate exercise of its
jurisdiction; 2) Cagayan de Oro City's reapportionment under R.A. No. 9371 falls
within the meaning of creation, division, merger, abolition or substantial alteration of
boundaries of cities under Section 10, Article X of the Constitution; 3) the creation,

OUR RULING

37

Except for the issue of the hierarchy of courts rule, we find the petition totally
without merit.

The hierarchy of courts principle.

The Supreme Court has original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus.11 It was pursuant to this original
jurisdiction that the petitioner filed the present petition.

While this jurisdiction is shared with the Court of Appeals12 and the RTCs,13 a
direct invocation of the Supreme Court's jurisdiction is allowed only when there are
special and important reasons therefor, clearly and especially set out in the petition.
Reasons of practicality, dictated by an increasingly overcrowded docket and the need
to prioritize in favor of matters within our exclusive jurisdiction, justify the existence
of this rule otherwise known as the "principle of hierarchy of courts." More generally
stated, the principle requires that recourse must first be made to the lower-ranked
court exercising concurrent jurisdiction with a higher court.14

Among the cases we have considered sufficiently special and important to be

exceptions to the rule, are petitions for certiorari, prohibition, mandamus and quo
warranto against our nation's lawmakers when the validity of their enactments is
assailed.15 The present petition is of this nature; its subject matter and the nature of
the issues raised - among them, whether legislative reapportionment involves a
division of Cagayan de Oro City as a local government unit - are reasons enough for
considering it an exception to the principle of hierarchy of courts. Additionally, the
petition assails as well a resolution of the COMELEC en banc issued to implement
the legislative apportionment that R.A. No. 9371 decrees. As an action against a
COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court
that in turn requires a review by this Court via a Rule 65 petition for certiorari.16 For
these reasons, we do not see the principle of hierarchy of courts to be a stumbling
block in our consideration of the present case.

The Plebiscite Requirement.

The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de
Oro as a local government unit, and does not merely provide for the City's legislative
apportionment. This argument essentially proceeds from a misunderstanding of the
constitutional concepts of apportionment of legislative districts and division of local
government units.

Legislative apportionment is defined by Black's Law Dictionary as the determination

of the number of representatives which a State, county or other subdivision may send
to a legislative body.17It is the allocation of seats in a legislative body in proportion
to the population; the drawing of voting district lines so as to equalize population and
voting power among the districts.18 Reapportionment, on the other hand, is the
realignment or change in legislative districts brought about by changes in population
and mandated by the constitutional requirement of equality of representation.19

Article VI (entitled Legislative Department) of the 1987 Constitution lays down the
rules on legislative apportionment under its Section 5 which provides:

Sec. 5(1). (1) The House of Representatives shall be composed of not more than two
hundred fifty members unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional and sectoral
parties or organizations.

xxx

38

(3) Each legislative district shall comprise, as far as practicable, continuous,

compact, and adjacent territory. Each city with a population of at least two hundred
fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this
section.

Separately from the legislative districts that legal apportionment or reapportionment

speaks of, are the local government units (historically and generically referred to as
"municipal corporations") that the Constitution itself classified into provinces, cities,
municipalities and barangays.20 In its strict and proper sense, a municipality has
been defined as "a body politic and corporate constituted by the incorporation of the
inhabitants of a city or town for the purpose of local government thereof."21 The
creation, division, merger, abolition or alteration of boundary of local government
units, i.e., of provinces, cities, municipalities, and barangays, are covered by the
Article on Local Government (Article X). Section 10 of this Article provides:

No province, city, municipality, or barangay may be created, divided, merged,

abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code and subject to approval by a majority of the
votes cast in a plebiscite in the political unit directly affected.

Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the
authority to act has been vested in the Legislature. The Legislature undertakes the
apportionment and reapportionment of legislative districts,22 and likewise acts on
local government units by setting the standards for their creation, division, merger,
abolition and alteration of boundaries and by actually creating, dividing, merging,
abolishing local government units and altering their boundaries through legislation.
Other than this, not much commonality exists between the two provisions since they
are inherently different although they interface and relate with one another.

The concern that leaps from the text of Article VI, Section 5 is political
representation and the means to make a legislative district sufficiently represented so
that the people can be effectively heard. As above stated, the aim of legislative
apportionment is "to equalize population and voting power among districts."23
Hence, emphasis is given to the number of people represented; the uniform and
progressive ratio to be observed among the representative districts; and accessibility
and commonality of interests in terms of each district being, as far as practicable,
continuous, compact and adjacent territory. In terms of the people represented, every
city with at least 250,000 people and every province (irrespective of population) is
entitled to one representative. In this sense, legislative districts, on the one hand, and
provinces and cities, on the other, relate and interface with each other. To ensure
continued adherence to the required standards of apportionment, Section 5(4)
specifically mandates reapportionment as soon as the given standards are met.

In contrast with the equal representation objective of Article VI, Section 5, Article X,
Section 10 expressly speaks of how local government units may be "created, divided,
merged, abolished, or its boundary substantially altered." Its concern is the
commencement, the termination, and the modification of local government units'
corporate existence and territorial coverage; and it speaks of two specific standards
that must be observed in implementing this concern, namely, the criteria established
in the local government code and the approval by a majority of the votes cast in a
plebiscite in the political units directly affected. Under the Local Government Code
(R.A. No. 7160) passed in 1991, the criteria of income, population and land area are
specified as verifiable indicators of viability and capacity to provide services.24 The
division or merger of existing units must comply with the same requirements (since a
new local government unit will come into being), provided that a division shall not
reduce the income, population, or land area of the unit affected to less than the
minimum requirement prescribed in the Code.25

A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is

on the requirement of a plebiscite. The Constitution and the Local Government Code
expressly require a plebiscite to carry out any creation, division, merger, abolition or
alteration of boundary of a local government unit.26 In contrast, no plebiscite
requirement exists under the apportionment or reapportionment provision. In Tobias
v. Abalos,27 a case that arose from the division of the congressional district formerly
covering San Juan and Mandaluyong into separate districts, we confirmed this

39

distinction and the fact that no plebiscite is needed in a legislative reapportionment.

The plebiscite issue came up because one was ordered and held for Mandaluyong in
the course of its conversion into a highly urbanized city, while none was held for San
Juan. In explaining why this happened, the Court ruled that no plebiscite was
necessary for San Juan because the objective of the plebiscite was the conversion of
Mandaluyong into a highly urbanized city as required by Article X, Section 10 the
Local Government Code; the creation of a new legislative district only followed as a
consequence. In other words, the apportionment alone and by itself did not call for a
plebiscite, so that none was needed for San Juan where only a reapportionment took
place.

The need for a plebiscite under Article X, Section 10 and the lack of requirement for
one under Article VI, Section 5 can best be appreciated by a consideration of the
historical roots of these two provisions, the nature of the concepts they embody as
heretofore discussed, and their areas of application.

A Bit of History.

In Macias v. COMELEC,28 we first jurisprudentially acknowledged the American

roots of our apportionment provision, noting its roots from the Fourteenth
Amendment29 of the U.S. Constitution and from the constitutions of some American
states. The Philippine Organic Act of 1902 created the Philippine Assembly,30 the
body that acted as the lower house of the bicameral legislature under the Americans,
with the Philippine Commission acting as the upper house. While the members of the
Philippine Commission were appointed by the U.S. President with the conformity of
the U.S. Senate, the members of the Philippine Assembly were elected by
representative districts previously delineated under the Philippine Organic Act of
1902 pursuant to the mandate to apportion the seats of the Philippine Assembly
among the provinces as nearly as practicable according to population. Thus,
legislative apportionment first started in our country.

The Jones Law or the Philippine Autonomy Act of 1916 maintained the
apportionment provision, dividing the country into 12 senate districts and 90

representative districts electing one delegate each to the House of Representatives.

Section 16 of the Act specifically vested the Philippine Legislature with the authority
to redistrict the Philippine Islands.

Under the 1935 Constitution, Article VI, Section 5 retained the concept of legislative
apportionment together with "district" as the basic unit of apportionment; the
concern was "equality of representation . . . as an essential feature of republican
institutions" as expressed in the leading case of Macias v. COMELEC.31 The case
ruled that inequality of representation is a justiciable, not a political issue, which
ruling was reiterated in Montejo v. COMELEC.32 Notably, no issue regarding the
holding of a plebiscite ever came up in these cases and the others that followed, as no
plebiscite was required.

Article VIII, Section 2 of the 1973 Constitution retained the concept of equal
representation "in accordance with the number of their respective inhabitants and on
the basis of a uniform and progressive ratio" with each district being, as far as
practicable, contiguous, compact and adjacent territory. This formulation was
essentially carried over to the 1987 Constitution, distinguished only from the
previous one by the presence of party-list representatives. In neither Constitution was
a plebiscite required.

The need for a plebiscite in the creation, division, merger, or abolition of local
government units was not constitutionally enshrined until the 1973 Constitution.
However, as early as 1959, R.A. No. 226433 required, in the creation of barrios by
Provincial Boards, that the creation and definition of boundaries be "upon petition of
a majority of the voters in the areas affected." In 1961, the Charter of the City of
Caloocan (R.A. No. 3278) carried this further by requiring that the "Act shall take
effect after a majority of voters of the Municipality of Caloocan vote in favor of the
conversion of their municipality into a city in a plebiscite." This was followed up to
1972 by other legislative enactments requiring a plebiscite as a condition for the
creation and conversion of local government units as well as the transfer of sitios
from one legislative unit to another.34 In 1973, the plebiscite requirement was
accorded constitutional status.

40

Under these separate historical tracks, it can be seen that the holding of a plebiscite
was never a requirement in legislative apportionment or reapportionment. After it
became constitutionally entrenched, a plebiscite was also always identified with the
creation, division, merger, abolition and alteration of boundaries of local government
units, never with the concept of legislative apportionment.

The local government units, on the other hand, are political and corporate units. They
are the territorial and political subdivisions of the state.35 They possess legal
personality on the authority of the Constitution and by action of the Legislature. The
Constitution defines them as entities that Congress can, by law, create, divide,
abolish, merge; or whose boundaries can be altered based on standards again
established by both the Constitution and the Legislature.36 A local government unit's
corporate existence begins upon the election and qualification of its chief executive
and a majority of the members of its Sanggunian.37

Nature and Areas of Application.

The legislative district that Article VI, Section 5 speaks of may, in a sense, be called
a political unit because it is the basis for the election of a member of the House of
Representatives and members of the local legislative body. It is not, however, a
political subdivision through which functions of government are carried out. It can
more appropriately be described as a representative unit that may or may not
encompass the whole of a city or a province, but unlike the latter, it is not a corporate
unit. Not being a corporate unit, a district does not act for and in behalf of the people
comprising the district; it merely delineates the areas occupied by the people who
will choose a representative in their national affairs. Unlike a province, which has a
governor; a city or a municipality, which has a mayor; and a barangay, which has a
punong barangay, a district does not have its own chief executive. The role of the
congressman that it elects is to ensure that the voice of the people of the district is
heard in Congress, not to oversee the affairs of the legislative district. Not being a
corporate unit also signifies that it has no legal personality that must be created or
dissolved and has no capacity to act. Hence, there is no need for any plebiscite in the
creation, dissolution or any other similar action on a legislative district.

As a political subdivision, a local government unit is an "instrumentality of the state

in carrying out the functions of government."38 As a corporate entity with a distinct
and separate juridical personality from the State, it exercises special functions for the
sole benefit of its constituents. It acts as "an agency of the community in the
administration of local affairs"39 and the mediums through which the people act in
their corporate capacity on local concerns.40 In light of these roles, the Constitution
saw it fit to expressly secure the consent of the people affected by the creation,
division, merger, abolition or alteration of boundaries of local government units
through a plebiscite.

These considerations clearly show the distinctions between a legislative

apportionment or reapportionment and the division of a local government unit.
Historically and by its intrinsic nature, a legislative apportionment does not mean,
and does not even imply, a division of a local government unit where the
apportionment takes place. Thus, the plebiscite requirement that applies to the
division of a province, city, municipality or barangay under the Local Government
Code should not apply to and be a requisite for the validity of a legislative
apportionment or reapportionment.

R.A. No. 9371 and COMELEC Res. No. 7837

R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed
in accordance with the authority granted to Congress under Article VI, Section 5(4)
of the Constitution. Its core provision - Section 1 - provides:

41

SECTION 1. Legislative Districts. - The lone legislative district of the City of

Cagayan de Oro is hereby apportioned to commence in the next national elections
after the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas,
Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat,
Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an,
Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall
comprise the first district while barangays Macabalan, Puntod, Consolacion,
Camaman-an, Nazareth, Macansandig, Indahag, Lapasan, Gusa, Cugman, FS
Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all urban barangays from
Barangay 1 to Barangay 40 shall comprise the second district.

Under these wordings, no division of Cagayan de Oro City as a political and

corporate entity takes place or is mandated. Cagayan de Oro City politically remains
a single unit and its administration is not divided along territorial lines. Its territory
remains completely whole and intact; there is only the addition of another legislative
district and the delineation of the city into two districts for purposes of representation
in the House of Representatives. Thus, Article X, Section 10 of the Constitution does
not come into play and no plebiscite is necessary to validly apportion Cagayan de
Oro City into two districts.

Admittedly, the legislative reapportionment carries effects beyond the creation of

another congressional district in the city by providing, as reflected in COMELEC
Resolution No. 7837, for additional Sangguniang Panglunsod seats to be voted for
along the lines of the congressional apportionment made. The effect on the
Sangguniang Panglunsod, however, is not directly traceable to R.A. No. 9371 but to
another law - R.A. No. 663641 - whose Section 3 provides:

SECTION 3. Other Cities. - The provision of any law to the contrary

notwithstanding the City of Cebu, City of Davao, and any other city with more than
one representative district shall have eight (8) councilors for each district who shall
be residents thereof to be elected by the qualified voters therein, provided that the
cities of Cagayan de Oro, Zamboanga, Bacolod, Iloilo and other cities comprising a

representative district shall have twelve (12) councilors each and all other cities shall
have ten (10) councilors each to be elected at large by the qualified voters of the said
cities: Provided, That in no case shall the present number of councilors according to
their charters be reduced.

However, neither does this law have the effect of dividing the City of Cagayan de
Oro into two political and corporate units and territories. Rather than divide the city
either territorially or as a corporate entity, the effect is merely to enhance voter
representation by giving each city voter more and greater say, both in Congress and
in the Sangguniang Panglunsod.

To illustrate this effect, before the reapportionment, Cagayan de Oro had only one
congressman and 12 city council members citywide for its population of
approximately 500,000.42 By having two legislative districts, each of them with one
congressman, Cagayan de Oro now effectively has two congressmen, each one
representing 250,000 of the city's population. In terms of services for city residents,
this easily means better access to their congressman since each one now services
only 250,000 constituents as against the 500,000 he used to represent. The same goes
true for the Sangguniang Panglungsod with its ranks increased from 12 to 16 since
each legislative district now has 8 councilors. In representation terms, the fewer
constituents represented translate to a greater voice for each individual city resident
in Congress and in the Sanggunian; each congressman and each councilor represents
both a smaller area and fewer constituents whose fewer numbers are now
concentrated in each representative. The City, for its part, now has twice the number
of congressmen speaking for it and voting in the halls of Congress. Since the total
number of congressmen in the country has not increased to the point of doubling its
numbers, the presence of two congressman (instead of one) from the same city
cannot but be a quantitative and proportional improvement in the representation of
Cagayan de Oro City in Congress.

Equality of representation.

42

The petitioner argues that the distribution of the legislative districts is unequal.
District 1 has only 93,719 registered voters while District 2 has 127,071. District 1 is
composed mostly of rural barangays while District 2 is composed mostly of urban
barangays.43 Thus, R.A. No. 9371 violates the principle of equality of
representation.

A clarification must be made. The law clearly provides that the basis for districting
shall be the number of the inhabitants of a city or a province, not the number of
registered voters therein. We settled this very same question in Herrera v.
COMELEC44 when we interpreted a provision in R.A. No. 7166 and COMELEC
Resolution No. 2313 that applied to the Province of Guimaras. We categorically
ruled that the basis for districting is the number of inhabitants of the Province of
Guimaras by municipality based on the official 1995 Census of Population as
certified to by Tomas P. Africa, Administrator of the National Statistics Office.

The petitioner, unfortunately, did not provide information about the actual population
of Cagayan de Oro City. However, we take judicial notice of the August 2007 census
of the National Statistics Office which shows that barangays comprising Cagayan de
Oro's first district have a total population of 254,644, while the second district has
299,322 residents. Undeniably, these figures show a disparity in the population sizes
of the districts.45 The Constitution, however, does not require mathematical
exactitude or rigid equality as a standard in gauging equality of representation.46 In
fact, for cities, all it asks is that "each city with a population of at least two hundred
fifty thousand shall have one representative," while ensuring representation for every
province regardless of the size of its population. To ensure quality representation
Republic of the Philippines

through commonality of interests and ease of access by the representative to the

constituents, all that the Constitution requires is that every legislative district should
comprise, as far as practicable, contiguous, compact, and adjacent territory. Thus, the
Constitution leaves the local government units as they are found and does not require
their division, merger or transfer to satisfy the numerical standard it imposes. Its
requirements are satisfied despite some numerical disparity if the units are
contiguous, compact and adjacent as far as practicable.

The petitioner's contention that there is a resulting inequality in the division of

Cagayan de Oro City into two districts because the barangays in the first district are
mostly rural barangays while the second district is mostly urban, is largely
unsubstantiated. But even if backed up by proper proof, we cannot question the
division on the basis of the difference in the barangays' levels of development or
developmental focus as these are not part of the constitutional standards for
legislative apportionment or reapportionment. What the components of the two
districts of Cagayan de Oro would be is a matter for the lawmakers to determine as a
matter of policy. In the absence of any grave abuse of discretion or violation of the
established legal parameters, this Court cannot intrude into the wisdom of these
policies.47

WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs against the
petitioner.

SO ORDERED.
G.R. No. 157870

November 3, 2008

SUPREME COURT
Manila

SOCIAL JUSTICE SOCIETY (SJS), petitioner

vs.

EN BANC

DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT

AGENCY (PDEA), respondents.

43

x-----------------------------------------------x

G.R. No. 158633

November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner

In these kindred petitions, the constitutionality of Section 36 of Republic Act No.

(RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002,
insofar as it requires mandatory drug testing of candidates for public office, students
of secondary and tertiary schools, officers and employees of public and private
offices, and persons charged before the prosecutor's office with certain offenses,
among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT
AGENCY, respondents.

x-----------------------------------------------x

G.R. No. 161658

SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any
government forensic laboratories or by any of the drug testing laboratories accredited
and monitored by the DOH to safeguard the quality of the test results. x x x The drug
testing shall employ, among others, two (2) testing methods, the screening test which
will determine the positive result as well as the type of drug used and the
confirmatory test which will confirm a positive screening test. x x x The following
shall be subjected to undergo drug testing:

November 3, 2008
xxxx

AQUILINO Q. PIMENTEL, JR., petitioner

vs.
COMMISSION ON ELECTIONS, respondents.

DECISION

VELASCO, JR., J.:

(c) Students of secondary and tertiary schools. - Students of secondary and tertiary
schools shall, pursuant to the related rules and regulations as contained in the
school's student handbook and with notice to the parents, undergo a random drug
testing x x x;

(d) Officers and employees of public and private offices. - Officers and employees of
public and private offices, whether domestic or overseas, shall be subjected to
undergo a random drug test as contained in the company's work rules and
regulations, x x x for purposes of reducing the risk in the workplace. Any officer or
employee found positive for use of dangerous drugs shall be dealt with
administratively which shall be a ground for suspension or termination, subject to the

44

provisions of Article 282 of the Labor Code and pertinent provisions of the Civil
Service Law;

xxxx

(f) All persons charged before the prosecutor's office with a criminal offense having
an imposable penalty of imprisonment of not less than six (6) years and one (1) day
shall undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national
or local government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for
dangerous drugs use shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued

Resolution No. 6486, prescribing the rules and regulations on the mandatory drug
testing of candidates for public office in connection with the May 10, 2004
synchronized national and local elections. The pertinent portions of the said
resolution read as follows:

xxxx

(g) All candidates for public office x x x both in the national or local government
shall undergo a mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public

officers and employees must at all times be accountable to the people, serve them
with utmost responsibility, integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will
know the quality of candidates they are electing and they will be assured that only
those who can serve with utmost responsibility, integrity, loyalty, and efficiency
would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under

the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and
other election laws, RESOLVED to promulgate, as it hereby promulgates, the
following rules and regulations on the conduct of mandatory drug testing to
candidates for public office[:]

SECTION 1. Coverage. - All candidates for public office, both national and local, in
the May 10, 2004 Synchronized National and Local Elections shall undergo
mandatory drug test in government forensic laboratories or any drug testing
laboratories monitored and accredited by the Department of Health.

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 3. x x x
SEC. 36. Authorized Drug Testing. - x x x

45

On March 25, 2004, in addition to the drug certificates filed with their respective
offices, the Comelec Offices and employees concerned shall submit to the Law
Department two (2) separate lists of candidates. The first list shall consist of those
candidates who complied with the mandatory drug test while the second list shall
consist of those candidates who failed to comply x x x.

SEC. 4. Preparation and publication of names of candidates. - Before the start of the
campaign period, the [COMELEC] shall prepare two separate lists of candidates.
The first list shall consist of those candidates who complied with the mandatory drug
test while the second list shall consist of those candidates who failed to comply with
said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate.
- No person elected to any public office shall enter upon the duties of his office until
he has undergone mandatory drug test and filed with the offices enumerated under
Section 2 hereof the drug test certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re election in the May 10, 2004 elections,1 filed a Petition for Certiorari and Prohibition
under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they
impose a qualification for candidates for senators in addition to those already
provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from
implementing Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution,
which states:

SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the

Philippines, and, on the day of the election, is at least thirty - five years of age, able
to read and write, a registered voter, and a resident of the Philippines for not less than
two years immediately preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5)

qualifications for one to be a candidate for, elected to, and be a member of the
Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165
and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a
mandatory drug test, create an additional qualification that all candidates for senator
must first be certified as drug free. He adds that there is no provision in the
Constitution authorizing the Congress or COMELEC to expand the qualification
requirements of candidates for senator.

G.R. No. 157870 (Social Justice Society v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a
registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and
the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c),
(d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally
infirm. For one, the provisions constitute undue delegation of legislative power when
they give unbridled discretion to schools and employers to determine the manner of
drug testing. For another, the provisions trench in the equal protection clause
inasmuch as they can be used to harass a student or an employee deemed
undesirable. And for a third, a person's constitutional right against unreasonable
searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

46

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his
Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g)
of RA 9165 be struck down as unconstitutional for infringing on the constitutional
right to privacy, the right against unreasonable search and seizure, and the right
against self - incrimination, and for being contrary to the due process and equal
protection guarantees.

to the transcendental importance and the paramount public interest involved in the
enforcement of Sec. 36 of RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the
standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA
assert, SJS and Laserna failed to allege any incident amounting to a violation of the
constitutional rights mentioned in their separate petitions.2

It is basic that the power of judicial review can only be exercised in connection with
a bona fide controversy which involves the statute sought to be reviewed.3 But even
with the presence of an actual case or controversy, the Court may refuse to exercise
judicial review unless the constitutional question is brought before it by a party
having the requisite standing to challenge it.4 To have standing, one must establish
that he or she has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the
challenged action; and the injury is likely to be redressed by a favorable action.5

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for
non - traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the
public interest so requires, such as when the matter is of transcendental importance,
of overarching significance to society, or of paramount public interest.6 There is no
doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004
elections, possesses the requisite standing since he has substantial interests in the
subject matter of the petition, among other preliminary considerations. Regarding
SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an
additional qualification for candidates for senator? Corollarily, can Congress enact a
law prescribing qualifications for candidates for senator in addition to those laid
down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional?
Specifically, do these paragraphs violate the right to privacy, the right against
unreasonable searches and seizure, and the equal protection clause? Or do they
constitute undue delegation of legislative power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution
No. 6486 illegally impose an additional qualification on candidates for senator. He
points out that, subject to the provisions on nuisance candidates, a candidate for
senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the
Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and
(5) residency. Beyond these stated qualification requirements, candidates for senator
need not possess any other qualification to run for senator and be voted upon and

47

elected as member of the Senate. The Congress cannot validly amend or otherwise
modify these qualification standards, as it cannot disregard, evade, or weaken the
force of a constitutional mandate,7 or alter or enlarge the Constitution.

Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be,
as it is hereby declared as, unconstitutional. It is basic that if a law or an
administrative rule violates any norm of the Constitution, that issuance is null and
void and has no effect. The Constitution is the basic law to which all laws must
conform; no act shall be valid if it conflicts with the Constitution.8 In the discharge
of their defined functions, the three departments of government have no choice but to
yield obedience to the commands of the Constitution. Whatever limits it imposes
must be observed.9

Congress' inherent legislative powers, broad as they may be, are subject to certain
limitations. As early as 1927, in Government v. Springer, the Court has defined, in
the abstract, the limits on legislative power in the following wise:

Someone has said that the powers of the legislative department of the Government,
like the boundaries of the ocean, are unlimited. In constitutional governments,
however, as well as governments acting under delegated authority, the powers of
each of the departments x x x are limited and confined within the four walls of the
constitution or the charter, and each department can only exercise such powers as are
necessarily implied from the given powers. The Constitution is the shore of
legislative authority against which the waves of legislative enactment may dash, but
over which it cannot leap.10

Thus, legislative power remains limited in the sense that it is subject to substantive
and constitutional limitations which circumscribe both the exercise of the power
itself and the allowable subjects of legislation.11 The substantive constitutional
limitations are chiefly found in the Bill of Rights12 and other provisions, such as
Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for
senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering
election laws or promulgating rules and regulations to implement Sec. 36(g), validly
impose qualifications on candidates for senator in addition to what the Constitution
prescribes. If Congress cannot require a candidate for senator to meet such additional
qualification, the COMELEC, to be sure, is also without such power. The right of a
citizen in the democratic process of election should not be defeated by unwarranted
impositions of requirement not otherwise specified in the Constitution.13

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC

resolution, effectively enlarges the qualification requirements enumerated in the Sec.
3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a
candidate for senator to be certified illegal - drug clean, obviously as a pre condition to the validity of a certificate of candidacy for senator or, with like effect, a
condition sine qua non to be voted upon and, if proper, be proclaimed as senator elect. The COMELEC resolution completes the chain with the proviso that "[n]o
person elected to any public office shall enter upon the duties of his office until he
has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec.
36(g) of RA 9165 and the implementing COMELEC Resolution add another
qualification layer to what the 1987 Constitution, at the minimum, requires for
membership in the Senate. Whether or not the drug - free bar set up under the
challenged provision is to be hurdled before or after election is really of no moment,
as getting elected would be of little value if one cannot assume office for non compliance with the drug - testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that
the provision does not expressly state that non - compliance with the drug test
imposition is a disqualifying factor or would work to nullify a certificate of
candidacy. This argument may be accorded plausibility if the drug test requirement is
optional. But the particular section of the law, without exception, made drug - testing
on those covered mandatory, necessarily suggesting that the obstinate ones shall have
to suffer the adverse consequences for not adhering to the statutory command. And
since the provision deals with candidates for public office, it stands to reason that the
adverse consequence adverted to can only refer to and revolve around the election
and the assumption of public office of the candidates. Any other construal would

48

reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without
meaning and effect whatsoever.

While it is anti - climactic to state it at this juncture, COMELEC Resolution No.

6486 is no longer enforceable, for by its terms, it was intended to cover only the May
10, 2004 synchronized elections and the candidates running in that electoral event.
Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule,
as it hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec.

36(g) of RA 9165 is rooted on its having infringed the constitutional provision
defining the qualification or eligibility requirements for one aspiring to run for and
serve as senator.

SJS Petition

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and

Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act
may, by himself/herself or through his/her parent, [close relatives] x x x apply to the
Board x x x for treatment and rehabilitation of the drug dependency. Upon such
application, the Board shall bring forth the matter to the Court which shall order that
the applicant be examined for drug dependency. If the examination x x x results in
the certification that the applicant is a drug dependent, he/she shall be ordered by the
Court to undergo treatment and rehabilitation in a Center designated by the Board x x
x.

xxxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission
Program. - A drug dependent under the voluntary submission program, who is finally
discharged from confinement, shall be exempt from the criminal liability under
Section 15 of this Act subject to the following conditions:

(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

xxxx
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and
tertiary level students and public and private employees, while mandatory, is a
random and suspicionless arrangement. The objective is to stamp out illegal drug and
safeguard in the process "the well being of [the] citizenry, particularly the youth,
from the harmful effects of dangerous drugs." This statutory purpose, per the policy declaration portion of the law, can be achieved via the pursuit by the state of "an
intensive and unrelenting campaign against the trafficking and use of dangerous
drugs x x x through an integrated system of planning, implementation and
enforcement of anti - drug abuse policies, programs and projects."14 The primary
legislative intent is not criminal prosecution, as those found positive for illegal drug
use as a result of this random testing are not necessarily treated as criminals. They
may even be exempt from criminal liability should the illegal drug user consent to
undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:

School children, the US Supreme Court noted, are most vulnerable to the physical,
psychological, and addictive effects of drugs. Maturing nervous systems of the
young are more critically impaired by intoxicants and are more inclined to drug
dependency. Their recovery is also at a depressingly low rate.15

The right to privacy has been accorded recognition in this jurisdiction as a facet of
the right protected by the guarantee against unreasonable search and seizure16 under
Sec. 2, Art. III17 of the Constitution. But while the right to privacy has long come
into its own, this case appears to be the first time that the validity of a state - decreed
search or intrusion through the medium of mandatory random drug testing among
students and employees is, in this jurisdiction, made the focal point. Thus, the issue
tendered in these proceedings is veritably one of first impression.

49

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect

to random drug testing among school children, we turn to the teachings of Vernonia
School District 47J v. Acton (Vernonia) and Board of Education of Independent
School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of
Education),18 both fairly pertinent US Supreme Court - decided cases involving the
constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug

menace in their respective institutions following the discovery of frequent drug use
by school athletes. After consultation with the parents, they required random
urinalysis drug testing for the school's athletes. James Acton, a high school student,
was denied participation in the football program after he refused to undertake the
urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing
policy violated, inter alia, the Fourth Amendment19 of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia,

considered the following: (1) schools stand in loco parentis over their students; (2)
school children, while not shedding their constitutional rights at the school gate, have
less privacy rights; (3) athletes have less privacy rights than non - athletes since the
former observe communal undress before and after sports events; (4) by joining the
sports activity, the athletes voluntarily subjected themselves to a higher degree of
school supervision and regulation; (5) requiring urine samples does not invade a
student's privacy since a student need not undress for this kind of drug testing; and
(6) there is need for the drug testing because of the dangerous effects of illegal drugs
on the young. The US Supreme Court held that the policy constituted reasonable
search under the Fourth20 and 14th Amendments and declared the random drug testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma

required a drug test for high school students desiring to join extra - curricular
activities. Lindsay Earls, a member of the show choir, marching band, and academic
team declined to undergo a drug test and averred that the drug - testing policy made

to apply to non - athletes violated the Fourth and 14th Amendments. As Earls argued,
unlike athletes who routinely undergo physical examinations and undress before their
peers in locker rooms, non - athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing
even among non - athletes on the basis of the school's custodial responsibility and
authority. In so ruling, said court made no distinction between a non - athlete and an
athlete. It ratiocinated that schools and teachers act in place of the parents with a
similar interest and duty of safeguarding the health of the students. And in holding
that the school could implement its random drug - testing policy, the Court hinted
that such a test was a kind of search in which even a reasonable parent might need to
engage.

In sum, what can reasonably be deduced from the above two cases and applied to
this jurisdiction are: (1) schools and their administrators stand in loco parentis with
respect to their students; (2) minor students have contextually fewer rights than an
adult, and are subject to the custody and supervision of their parents, guardians, and
schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and
well - being of their students and may adopt such measures as may reasonably be
necessary to discharge such duty; and (4) schools have the right to impose conditions
on applicants for admission that are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds
that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug
testing of students are constitutional. Indeed, it is within the prerogative of
educational institutions to require, as a condition for admission, compliance with
reasonable school rules and regulations and policies. To be sure, the right to enroll is
not absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the
country that threatens the well - being of the people,21 particularly the youth and
school children who usually end up as victims. Accordingly, and until a more
effective method is conceptualized and put in motion, a random drug testing of

50

students in secondary and tertiary schools is not only acceptable but may even be
necessary if the safety and interest of the student population, doubtless a legitimate
concern of the government, are to be promoted and protected. To borrow from
Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as
enhancing efficient enforcement of the Nation's laws against the importation of
drugs"; the necessity for the State to act is magnified by the fact that the effects of a
drug - infested school are visited not just upon the users, but upon the entire student
body and faculty.22 Needless to stress, the random testing scheme provided under
the law argues against the idea that the testing aims to incriminate unsuspecting
individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random
drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and
private offices is justifiable, albeit not exactly for the same reason. The Court notes
in this regard that petitioner SJS, other than saying that "subjecting almost everybody
to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of
the individual right to privacy,"23 has failed to show how the mandatory, random,
and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right
to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1
and 2 of the Constitution.24 Petitioner Laserna's lament is just as simplistic,
sweeping, and gratuitous and does not merit serious consideration. Consider what he
wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings
on the constitutionality of mandatory drug tests in the school and the workplaces.
The US courts have been consistent in their rulings that the mandatory drug tests
violate a citizen's constitutional right to privacy and right against unreasonable
search and seizure. They are quoted extensively hereinbelow.25

abstract prohibition against unreasonable searches and seizures' into workable broad
guidelines for the decision of particular cases is a difficult task," to borrow from C.
Camara v. Municipal Court.28 Authorities are agreed though that the right to privacy
yields to certain paramount rights of the public and defers to the state's exercise of
police power.29

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has
been held, "reasonableness" is the touchstone of the validity of a government search
or intrusion.30 And whether a search at issue hews to the reasonableness standard is
judged by the balancing of the government - mandated intrusion on the individual's
privacy interest against the promotion of some compelling state interest.31 In the
criminal context, reasonableness requires showing of probable cause to be personally
determined by a judge. Given that the drug - testing policy for employees--and
students for that matter--under RA 9165 is in the nature of administrative search
needing what was referred to in Vernonia as "swift and informal disciplinary
procedures," the probable - cause standard is not required or even practicable. Be
that as it may, the review should focus on the reasonableness of the challenged
administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the
privacy interest upon which the drug testing, which effects a search within the
meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement. The employees'
privacy interest in an office is to a large extent circumscribed by the company's work
policies, the collective bargaining agreement, if any, entered into by management and
the bargaining unit, and the inherent right of the employer to maintain discipline and
efficiency in the workplace. Their privacy expectation in a regulated office
environment is, in fine, reduced; and a degree of impingement upon such privacy has
been upheld.

The essence of privacy is the right to be left alone.26 In context, the right to privacy
means the right to be free from unwarranted exploitation of one's person or from
intrusion into one's private activities in such a way as to cause humiliation to a
person's ordinary sensibilities. 27 And while there has been general agreement as to
the basic function of the guarantee against unwarranted search, "translation of the

51

Just as defining as the first factor is the character of the intrusion authorized by the
challenged law. Reduced to a question form, is the scope of the search or intrusion
clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a
search "narrowly drawn" or "narrowly focused"?32

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its
implementing rules and regulations (IRR), as couched, contain provisions
specifically directed towards preventing a situation that would unduly embarrass the
employees or place them under a humiliating experience. While every officer and
employee in a private establishment is under the law deemed forewarned that he or
she may be a possible subject of a drug test, nobody is really singled out in advance
for drug testing. The goal is to discourage drug use by not telling in advance anyone
when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself
prescribes what, in Ople, is a narrowing ingredient by providing that the employees
concerned shall be subjected to "random drug test as contained in the company's
work rules and regulations x x x for purposes of reducing the risk in the work place."

For another, the random drug testing shall be undertaken under conditions calculated
to protect as much as possible the employee's privacy and dignity. As to the
mechanics of the test, the law specifies that the procedure shall employ two testing
methods, i.e., the screening test and the confirmatory test, doubtless to ensure as
much as possible the trustworthiness of the results. But the more important
consideration lies in the fact that the test shall be conducted by trained professionals
in access - controlled laboratories monitored by the Department of Health (DOH) to
safeguard against results tampering and to ensure an accurate chain of custody.33 In
addition, the IRR issued by the DOH provides that access to the drug results shall be
on the "need to know" basis;34 that the "drug test result and the records shall be
[kept] confidential subject to the usual accepted practices to protect the
confidentiality of the test results."35 Notably, RA 9165 does not oblige the employer
concerned to report to the prosecuting agencies any information or evidence relating
to the violation of the Comprehensive Dangerous Drugs Act received as a result of
the operation of the drug testing. All told, therefore, the intrusion into the employees'
privacy, under RA 9165, is accompanied by proper safeguards, particularly against
embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the
country and thus protect the well - being of the citizens, especially the youth, from
the deleterious effects of dangerous drugs. The law intends to achieve this through
the medium, among others, of promoting and resolutely pursuing a national drug
abuse policy in the workplace via a mandatory random drug test.36 To the Court, the
need for drug testing to at least minimize illegal drug use is substantial enough to
override the individual's privacy interest under the premises. The Court can consider
that the illegal drug menace cuts across gender, age group, and social - economic
lines. And it may not be amiss to state that the sale, manufacture, or trafficking of
illegal drugs, with their ready market, would be an investor's dream were it not for
the illegal and immoral components of any of such activities. The drug problem has
hardly abated since the martial law public execution of a notorious drug trafficker.
The state can no longer assume a laid back stance with respect to this modern - day
scourge. Drug enforcement agencies perceive a mandatory random drug test to be an
effective way of preventing and deterring drug use among employees in private
offices, the threat of detection by random testing being higher than other modes. The
Court holds that the chosen method is a reasonable and enough means to lick the
problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on
the part of the employees, the compelling state concern likely to be met by the
search, and the well - defined limits set forth in the law to properly guide authorities
in the conduct of the random testing, we hold that the challenged drug test
requirement is, under the limited context of the case, reasonable and, ergo,
constitutional.

Like their counterparts in the private sector, government officials and employees also
labor under reasonable supervision and restrictions imposed by the Civil Service law
and other laws on public officers, all enacted to promote a high standard of ethics in
the public service.37 And if RA 9165 passes the norm of reasonableness for private
employees, the more reason that it should pass the test for civil servants, who, by
constitutional command, are required to be accountable at all times to the people and
to serve them with utmost responsibility and efficiency.38

52

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground
of undue delegation of power hardly commends itself for concurrence. Contrary to
its position, the provision in question is not so extensively drawn as to give unbridled
options to schools and employers to determine the manner of drug testing. Sec. 36
expressly provides how drug testing for students of secondary and tertiary schools
and officers/employees of public/private offices should be conducted. It enumerates
the persons who shall undergo drug testing. In the case of students, the testing shall
be in accordance with the school rules as contained in the student handbook and with
notice to parents. On the part of officers/employees, the testing shall take into
account the company's work rules. In either case, the random procedure shall be
observed, meaning that the persons to be subjected to drug test shall be picked by
chance or in an unplanned way. And in all cases, safeguards against misusing and
compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation

with the DOH, Department of the Interior and Local Government, Department of
Education, and Department of Labor and Employment, among other agencies, the
IRR necessary to enforce the law. In net effect then, the participation of schools and
offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It
is, therefore, incorrect to say that schools and employers have unchecked discretion
to determine how often, under what conditions, and where the drug tests shall be
conducted.

The validity of delegating legislative power is now a quiet area in the constitutional
landscape.39 In the face of the increasing complexity of the task of the government
and the increasing inability of the legislature to cope directly with the many
problems demanding its attention, resort to delegation of power, or entrusting to
administrative agencies the power of subordinate legislation, has become imperative,
as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],

[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no
valid justification for mandatory drug testing for persons accused of crimes. In the
case of students, the constitutional viability of the mandatory, random, and
suspicionless drug testing for students emanates primarily from the waiver by the
students of their right to privacy when they seek entry to the school, and from their
voluntarily submitting their persons to the parental authority of school authorities. In
the case of private and public employees, the constitutional soundness of the
mandatory, random, and suspicionless drug testing proceeds from the reasonableness
of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the
public prosecutor's office with criminal offenses punishable with six (6) years and
one (1) day imprisonment. The operative concepts in the mandatory drug testing are
"randomness" and "suspicionless." In the case of persons charged with a crime
before the prosecutor's office, a mandatory drug testing can never be random or
suspicionless. The ideas of randomness and being suspicionless are antithetical to
their being made defendants in a criminal complaint. They are not randomly picked;
neither are they beyond suspicion. When persons suspected of committing a crime
are charged, they are singled out and are impleaded against their will. The persons
thus charged, by the bare fact of being haled before the prosecutor's office and
peaceably submitting themselves to drug testing, if that be the case, do not
necessarily consent to the procedure, let alone waive their right to privacy.40 To
impose mandatory drug testing on the accused is a blatant attempt to harness a
medical test as a tool for criminal prosecution, contrary to the stated objectives of
RA 9165. Drug testing in this case would violate a persons' right to privacy
guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons
are veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and
declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as
UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos.
157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165
CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All
concerned agencies are, accordingly, permanently enjoined from implementing Sec.
36(f) and (g) of RA 9165. No costs.

53

SO ORDERED.
Republic of the Philippines

The facts are as follows:

SUPREME COURT
Manila

On May 25, 2010, private respondent Melanio Mauricio, Jr. filed a petition2 with the
COMELEC for the cancellation of registration and accreditation of petitioner ABC
Party-List3 on the ground that petitioner is a front for a religious organization; hence,
it is disqualified to become a party-list group under Section 6 (1)4 of Republic Act
(R.A.) No. 7941, otherwise known as the Party-List System Act.

EN BANC

G.R. No. 193256

March 22, 2011

Private respondent contends that ABC is a front for a religious group called the
Children of God International, which is more popularly known as Ang Dating Daan,
based on the following circumstances:

ABC (ALLIANCE FOR BARANGAY CONCERNS) PARTY LIST, represented

herein by its Chairman, JAMES MARTY LIM, Petitioner,
vs.
COMMISSION ON ELECTIONS and MELANIO MAURICIO, JR., Respondents.

DECISION

1. Although its National Chairman, James Marty Lim, was being publicly bruited as
its first nominee, the real number one nominee of the party is Arnulfo "Noel"
Molero, who is a known top official of Ang Dating Daan;

2. ABC was organized, established and is being run by Ang Dating Daan not as a
party-list organization for political purposes [envisioned by R.A. No. 7941 (the
Party-List System Act)], but as a religious sect for religious purposes;

PERALTA, J.:

This is a special civil action for certiorari1 alleging that the Commission on Elections
(COMELEC) en banc acted without jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the Resolution dated August 3,
2010, which reinstated the petition to cancel the registration and accreditation of
petitioner ABC (Alliance for Barangay Concerns) Party-List, and directed the
Commission Secretary to schedule a hearing on the petition.

3. The resources of Ang Dating Daan are being used to finance the campaign of ABC
on a nationwide scale; and

4. The membership of ABC is composed of the members of Ang Dating Daan.5

54

Private respondent also alleged that ABC made an untruthful statement in its petition
for accreditation, as it stated that it does not possess any of the disqualifications
provided by the Party-List System Act when it is disqualified for being, in reality, a
religious organization. In addition, he alleged that ABC is receiving support from
third parties abroad.

Private respondent prayed that the accreditation of ABC be cancelled, and that it be
declared disqualified as a party-list group for violating R.A. No. 7941.

In its Answer,6 petitioner ABC denied private respondents allegations, which were
unproven by any material and convincing evidence. It averred that ABC, as a
political party, is allowed by law to be registered and run under the party-list system
of representation. The COMELEC has approved petitioners registration and
accreditation as a party-list group, and petitioner had participated and was voted
upon in the 2007 elections.

Moreover, petitioner stated that as a political party of national constituency, it was

founded and headed by Mr. James Marty Lim, who held the position of National
President of the Association of Barangay Chairmen for 11 years. Its stature as a
party-list organization with national constituency that could contribute to the
formulation and enactment of appropriate legislation for the marginalized and
underrepresented sectors of society should remove any doubt that it was established
for religious purposes. Petitioner averred that it has not been identified with any
religious entity or aggrupation.

notarized in accordance with the 2004 Rules on Notarial Practice, as amended.

Sections 1 and 6, Rule II of the 2004 Rules on Notarial Practice require that the
person appearing before a notary public must be known to the notary public or
identified by the notary public through competent evidence of identity. In this case,
the COMELEC, Second Division found that the "Acknowledgment" at the end of the
verification did not contain the name of private respondent who supposedly appeared
before the notary public, and he was not identified by any competent evidence of
identity as required by the rules on notarial practice.

The COMELEC, Second Division also dismissed the petition based on substantial
grounds, as it found that ABC is not a religious sect, and is, therefore, not
disqualified from registration.

On June 22, 2010, private respondent filed a Motion for Reconsideration with
Motion to Annul Proclamation and Suspend its Effects.8 He argued that his petition
was not defective since attached to the verification were photocopies of his
identification cards. He likewise argued that he should be given the opportunity to
present his evidence to support his Petition in accordance with Section 6 of R.A. No.
7941.

On July 6, 2010, petitioner filed its Comment/Opposition with Extremely Urgent

Motion to Dismiss.9

On July 6, 2010, private respondent submitted a Supplemental Motion for

Reconsideration10 and his evidence to support his petition.
On June 16, 2010, the COMELEC, Second Division issued a Resolution7 dismissing
the petition based on procedural and substantial grounds.

The dismissal on procedural grounds was grounded on the lack of proper verification
of the petition. According to the COMELEC, Second Division, the Verification with
Certification Re: Forum Shopping and Special Power of Attorney was not duly

In response thereto, petitioner filed on July 21, 2010 a Supplement11 to its

Comment/Opposition with Extremely Urgent Motion to Dismiss that was filed on
July 6, 2010. Petitioner urged the COMELEC to dismiss the petition for lack of
jurisdiction, since the Secretary General of the House of Representatives had already
recognized ABC as a proclaimed party-list group by asking its first nominee to attend

55

the Orientation Program for the new members of the House of Representatives,
Fifteenth Congress on July 8, 2010 at the plenary hall.

On July 30, 2010, private respondent filed a Comment/Opposition12 to petitioner's

motion to dismiss, arguing that ABC was not validly proclaimed; hence, the
COMELEC still has jurisdiction over the case.

On August 3, 2010, the COMELEC en banc issued a Resolution13 partially granting

private respondents Motion for Reconsideration with Motion to Annul Proclamation
and Suspend Its Effects dated June 22, 2010. The dispositive portion of the
Resolution reads:

More importantly, the COMELEC en banc stated that the records of the case showed
that the Resolution of the Second Division was issued without any hearing, which
deprived Mauricio of the opportunity to submit evidence in support of his petition.
The COMELEC en banc averred that Section 616 of R.A. No. 7941 requires the
sending out of notices and that an actual hearing is held to ensure that the parties
right to due process is respected. It cited the case of Sandoval v. Commission on
Elections,17 which held that procedural due process demands notice and hearing.

ABC filed this petition raising the following issues:

1. The Commission en banc has no more jurisdiction to entertain the petition for
cancellation of registration and accreditation since ABC was already proclaimed as
winner.

WHEREFORE, premises considered, the instant motion for reconsideration is

PARTIALLY GRANTED. The petition is hereby REINSTATED and the
Commission Secretary is hereby DIRECTED TO SCHEDULE a hearing on the
petition with notice to the parties.14

2. Granting that public respondent still has jurisdiction, the COMELEC en banc
committed grave abuse of discretion amounting to lack or excess of jurisdiction
when it set the petition of Mauricio for hearing when he was already given all the
time and opportunity to present and substantiate his case.

Contrary to the findings of the Second Division, the COMELEC en banc found that
the petitions verification page substantially complied with the 2004 Rules on
Notarial Practice, thus:

3. Granting that public respondent still has jurisdiction, the COMELEC en banc
committed grave abuse of discretion amountING to lack or excess of jurisdiction
when it did not recognize that on its face the petition of Mauricio is unmeritorious
and procedurally defective.

x x x A perusal of the said verification page immediately shows that photostatic

copies of Mauricio, Jr.s Community Tax Certificate No. CCI2009 30975061,
Integrated Bar of the Philippines Lifetime Membership Card, and Permit to Carry
Firearms No. 09083204 were attached thereto, thereby making them an integral part
of said verification page. Clearly, Mauricio Jr.s submission of his community tax
certificate and two (2) identification cards, with the verification page substantially
complies with the requirements of the 2004 Notarial Rules.15

4. Granting that public respondent still has jurisdiction, the COMELEC en banc
committed grave abuse of discretion amounting to lack or excess of jurisdiction
when it singled out the case of ABC, setting the same for hearing when all the other
cases of the same nature were all summarily and motu proprio dismissed by the
COMELEC.

56

5. Because of the foregoing, the assailed Resolution of August 3, 2010 is a patent

nullity; hence, direct resort to this honorable Supreme Court is proper.18

Petitioner contends that the COMELEC en banc no longer had jurisdiction to

entertain the petition for cancellation of registration and accreditation of ABC PartyList after it was already proclaimed as one of the winners in the party-list elections of
May 10, 2010 per National Board of Canvassers Resolution No. 10-00919
promulgated on May 31, 2010.

Petitioner avers that Section 17, Article VI of the Constitution provides that "[t]he
Senate and the House of Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members." Hence, once a candidate for House of
Representatives is proclaimed, the COMELEC is divested of jurisdiction to pass
upon its qualification and the same is vested with the House of Representatives
Electoral Tribunal (HRET).

Petitioner states that in this case, there is no dispute that ABC Party-List has been
proclaimed by the COMELEC as one of the winners in the party-list elections of
May 10, 2010; therefore, any question as to its qualification should be resolved by
the HRET and not by the COMELEC. Petitioner asserts that once a party-list group
has been proclaimed winner and its nominees have taken their oath, the COMELEC
should be divested of its jurisdiction over both the party-list group and its nominees.

Further, petitioner submits that Section 6 of R.A. No. 7941, which states that the
COMELEC may motu proprio or upon verified complaint of any interested party
remove or cancel, after due notice and hearing, the registration of any national,
regional or sectoral party, organization or coalition, is applicable only to a nonwinning party-list group. According to petitioner, its submission is supported by the
fact that one of the grounds for the cancellation of the registration of any national,
regional or sectoral party is failure to obtain the required two percent of votes or to
participate in the past two elections which are obviously applicable only to losing
party-list groups.

The arguments of petitioner do not persuade.

The jurisdiction of the COMELEC over petitions for cancellation of registration of

any political party, organization or coalition is derived from Section 2 (5), Article IXC of the Constitution, which states:

Sec, 2. The Commission on Elections shall exercise the following powers and
functions:

xxxx

(5) Register, after sufficient publication, political parties, organizations, or coalitions

which, in addition to other requirements, must present their platform or program of
government; and accredit citizens arms of the Commission on Elections. Religious
denominations and sects shall not be registered. Those which seek to achieve their
goals through violence or unlawful means, or refuse to uphold and adhere to this
Constitution, or which are supported by any foreign government shall likewise be
refused registration.

Financial contributions from foreign governments and their agencies to political

parties, organizations, coalitions, or candidates related to elections constitute
interference in national affairs, and when accepted, shall be an additional ground for
the cancellation of their registration with the Commission, in addition to other
penalties that may be prescribed by law.20

Based on the provision above, the Constitution grants the COMELEC the authority
to register political parties, organizations or coalitions, and the authority to cancel the

57

registration of the same on legal grounds. The said authority of the COMELEC is
reflected in Section 6 of R.A. No. 7941, which provides:

Section 6. Refusal and/or Cancellation of Registration. -- The Comelec may motu

proprio or upon verified complaint of any interested party, refuse or cancel, after due
notice and hearing, the registration of any national, regional or sectoral party,
organization or coalition on any of the following grounds:

Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional, and sectoral
parties or organizations.22

Thus, the members of the House of Representatives are composed of the members
who shall be elected from legislative districts and those who shall be elected through
a party-list system of registered national, regional, and sectoral parties or
organizations.

(1) It is a religious sect or denomination, organization or association organized for

religious purposes;
Abayon v. House of Representatives Electoral Tribunal23 held:
xxx

It is, therefore, clear that the COMELEC has jurisdiction over the instant petition for
cancellation of the registration of the ABC Party-List.

In the case of the party-list nominees/representatives, it is the HRET that has

jurisdiction over contests relating to their qualifications. Although it is the party-list
organization that is voted for in the elections, it is not the organization that sits as and
becomes a member of the House of Representatives,21 but it is the party-list
nominee/representative who sits as a member of the House of Representatives.

The members of the House of Representatives are provided for in Section 5, Article
VI of the Constitution:

Sec. 5. (1). The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan

x x x x [F]rom the Constitution's point of view, it is the party-list representatives who

are "elected" into office, not their parties or organizations. These representatives are
elected, however, through that peculiar party-list system that the Constitution
authorized and that Congress by law established where the voters cast their votes for
the organizations or parties to which such party-list representatives belong.

Once elected, both the district representatives and the party-list representatives are
treated in like manner. They have the same deliberative rights, salaries, and
emoluments. They can participate in the making of laws that will directly benefit
their legislative districts or sectors. They are also subject to the same term limitation
of three years for a maximum of three consecutive terms.

It may not be amiss to point out that the Party-List System Act itself recognizes
party-list nominees as "members of the House of Representatives," thus:

Sec. 2. Declaration of Policy. - The State shall promote proportional representation in

the election of representatives to the House of Representatives through a party-list
system of registered national, regional and sectoral parties or organizations or

58

coalitions thereof, which will enable Filipino citizens belonging to the marginalized
and underrepresented sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to become members of
the House of Representatives. Towards this end, the State shall develop and
guarantee a full, free and open party system in order to attain the broadest possible
representation of party, sectoral or group interests in the House of Representatives by
enhancing their chances to compete for and win seats in the legislature, and shall
provide the simplest scheme possible. (Underscoring supplied)24

Since the representative of the elected party-list organization becomes a member of

the House of Representatives, contests relating to the qualifications of the said partylist representative is within the jurisdiction of the HRET, as Section 17, Article VI of
the Constitution provides:

Sec. 17. The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns,
and qualifications of their respective Members.

Abayon held:

x x x [P]arty-list nominees are "elected members" of the House of Representatives

no less than the district representatives are, the HRET has jurisdiction to hear and
pass upon their qualifications. By analogy with the cases of district representatives,
once the party or organization of the party-list nominee has been proclaimed and the
nominee has taken his oath and assumed office as member of the House of
Representatives, the COMELEC's jurisdiction over election contests relating to his
qualifications ends and the HRET's own jurisdiction begins.25

Constitution, while the jurisdiction of the COMELEC over petitions for cancellation
of registration of any national, regional or sectoral party, organization or coalition is
derived from Section 2 (5), Article IX-C of the Constitution.1avvphi1

In sum, the COMELEC en banc had jurisdiction over the petition for cancellation of
the registration and accreditation of petitioner ABC Party-List for alleged violation
of Section 6 (1) of R.A. No. 7941.

Moreover, petitioner contends that the COMELEC en banc committed grave abuse
of discretion amounting to lack or excess of jurisdiction when it still set the petition
for hearing despite the fact that private respondent had the opportunity to be heard
and was not denied due process, and he presented his evidence as attachments to his
Supplemental Motion for Reconsideration.

The contention lacks merit.

The COMELEC has the constitutional mandate to register political parties,

organizations and coalitions, and to cancel their registration on legal grounds; hence,
the COMELEC en banc, in this case, has the prerogative to direct that a hearing be
conducted on the petition for cancellation of registration of the ABC Party-List. The
COMELEC en banc stated in its Resolution that only then can the petition be
resolved on its merits with due regard to private respondents right to due process.

Grave abuse of discretion implies capricious and whimsical exercise of judgment

amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because
of passion or personal hostility.26 The grave abuse of discretion must be so patent
and gross as to amount to an evasion or refusal to perform a duty enjoined by law.27
It is absent in this case.

Therefore, the jurisdiction of the HRET over contests relating to the qualifications of
a party-list nominee or representative is derived from Section 17, Article VI of the

59

As regards the alleged lack of proper verification of the petition of private

respondent, the COMELEC en banc held that private respondent substantially
complied with the requirements of the 2004 Rules on Notarial Practice as he
submitted his community tax certificate and two identification cards with the
verification page. The Court agrees with the ruling of the COMELEC en banc, which
has the discretion to liberally construe procedural rules in order to achieve a just and
speedy resolution of every action brought before the COMELEC.

Further, petitioner contends that the COMELEC en banc committed grave abuse of
discretion when it singled out this case and directed that it be set for hearing when
other cases of the same nature were summarily and motu proprio dismissed by the
COMELEC, citing the cases of Barangay Natin Party-List (BANAT) v. Citizens
Battle Against Corruption (CIBAC) Foundation, Inc., and BANAT v. 1st Consumers
Alliance for Rural Energy (1-CARE) and Association of Philippine Electric
Cooperatives (APEC).28

eligibility of CIBAC as a registered/accredited party-list organization, unlike in this

case.29

In regard to the case of BANAT v. 1-CARE and APEC,30 the COMELEC dismissed
a similar petition on the ground that the registration and qualification of APEC and
its nominees have been settled affirmatively by this Court in Ang Bagong BayaniOFW Labor Party v. Commission on Elections.31

In fine, the COMELEC en banc did not act without or in excess of its jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing
the Resolution dated August 3, 2010.

WHEREFORE, the petition is hereby DISMISSED for lack of merit.

The contention is without merit.
Costs against petitioner.
In the cited case of BANAT v. CIBAC Foundation, Inc., the COMELEC dismissed
the petition for cancellation of the certificate of registration and accreditation of
CIBAC Foundation Inc. on the ground that this Court had already determined the

SO ORDERED.

Republic of the Philippines

SUPREME COURT

BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND

TRANSPARENCY (BANAT), Petitioner,

Manila

vs.
COMMISSION ON ELECTIONS (sitting as the National Board of Canvassers),
Respondent.

EN BANC

ARTS BUSINESS AND SCIENCE PROFESSIONALS, Intervenor.

G.R. No. 179271

July 8, 2009

AANGAT TAYO, Intervenor.

60

COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE

PHILIPPINES, INC. (SENIOR CITIZENS), Intervenor.

admitted to the Roll of Members considering that the Court declared as winners 55
party-list representatives.

x - - - - - - - - - - - - - - - - - - - - - - -x

B. The House of Representatives wishes to be guided on whether it should enroll in

its Roll of Members the 32 named party-list representatives enumerated in Table 3 or
only such number of representatives that would complete the 250 member maximum
prescribed by Article VI, Sec. 5(1) of the Constitution. In the event that it is ordered
to admit all 32, will this act not violate the above-cited Constitutional provision
considering that the total members would now rise to 270.

G.R. No. 179295

BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT THROUGH

ACTION, COOPERATION AND HARMONY TOWARDS EDUCATIONAL
REFORMS, INC., and ABONO, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.

RESOLUTION

CARPIO, J.:

The House of Representatives, represented by Speaker Prospero C. Nograles, filed a

motion for leave to intervene in G.R. Nos. 179271 and 179295. The House of
Representatives filed a motion for clarification in intervention and enumerated the
issues for clarification as follows:

A. There are only 219 legislative districts and not 220. Accordingly, the alloted seats
for party-list representation should only be 54 and not 55. The House of
Representatives seeks clarification on which of the party-list representatives shall be

C. The Court declared as unconstitutional the 2% threshold only in relation to the

distribution of additional seats as found in the second clause of Section 11(b) of R.A.
No. 7941. Yet, it distributed first seats to party-list groups which did not attain the
minimum number of votes that will entitle them to one seat. Clarification is,
therefore, sought whether the term "additional seats" refer to 2nd and 3rd seats only
or all remaining available seats. Corollary thereto, the House of Representatives
wishes to be clarified whether there is no more minimum vote requirement to qualify
as a party-list representative.

D. For the guidance of the House of Representatives, clarification is sought as to

whether the principle laid down in Veterans that "the filling up of the allowable seats
for party-list representatives is not mandatory," has been abandoned.1

On the other hand, Armi Jane Roa-Borje (Roa-Borje), third nominee of Citizens
Battle Against Corruption (CIBAC), filed a motion for leave for partial
reconsideration-in-intervention, alleging that:

The Supreme Court, in ruling on the procedure for distribution of seats, has deprived
without due process and in violation of the equal protection clause, parties with more
significant constituencies, such as CIBAC, Gabriela and APEC, in favor of parties
who did not even meet the 2% threshold.2

61

Following the Courts Decision of 21 April 2009, the Commission on Elections

(COMELEC) submitted to this Court on 27 April 2009 National Board of Canvassers
(NBC) Resolution No. 09-001. NBC Resolution No. 09-001 updated the data used by
this Court in its Decision of 21 April 2009. The total votes for party-list is now
15,723,764 following the cancellation of the registration of party-list group Filipinos
for Peace, Justice and Progress Movement (FPJPM). Moreover, the total number of
legislative districts is now 219 following the annulment of Muslim Mindanao
Autonomy Act No. 201 creating the province of Shariff Kabunsuan. Thus, the
percentage and ranking of the actual winning party-list groups are different from
Table 3 of the Decision in G.R. Nos. 179271 and 179295.

Representatives is done by piecemeal legislation or by enactment of a law

authorizing a general increase. Legislation that makes piecemeal increases of the
number of district representatives is no less valid than legislation that makes a
general increase.

In 1987, there were only 200 legislative districts. Twenty legislative districts were
added by piecemeal legislation after the ratification of the 1987 Constitution:

Republic Act
into Law

Year Signed

Legislative District

The Number of Members of the House of Representatives

7160

1992

Biliran

in the 2007 Elections

7675

1994

Mandaluyong City

7854

1994

Makati (2nd District)

7878

1995

Apayao

7896 and 7897

1995

7926

1995

Muntinlupa City

8470

1998

Compostela Valley

8487

1998

Taguig City (2nd District)

8526

1998

Valenzuela City (2nd District)

10

9229

2003

Paraaque (2nd District)

11

9230

2003

San Jose del Monte City

12

8508 and 9232

1998 and 2003

13

9232

2003

Antipolo (2nd District)

14

9269

2004

Zamboanga City (2nd District)

Section 5(1), Article VI of the 1987 Constitution reads:

The House of Representatives shall be composed of not more than two hundred and
fifty members, unless otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the Metropolitan Manila area
in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected
through a party-list system of registered national, regional, and sectoral parties or
organizations. (Emphasis supplied)

The 1987 Constitution fixes the maximum number of members of the House of
Representatives at 250. However, the 1987 Constitution expressly allows for an
increase in the number of members of the House of Representatives provided a law
is enacted for the purpose. This is clear from the phrase "unless otherwise provided
by law" in Section 5(1), Article VI of the 1987 Constitution. The Legislature has the
option to choose whether the increase in the number of members of the House of

Guimaras

Antipolo (1st District)

62

15

9355

2006

Dinagat Island

party-list representatives

16

9357

2006

Sultan Kudarat (2nd District)

17

9360

2006

Zamboanga Sibugay (2nd District)

18

9364

2006

Marikina City (2nd District)

19

9371

2007

Cagayan de Oro (2nd District)

20

9387

2007

Navotas City

Thus, for purposes of the 2007 elections, there were only 219 district representatives.
Navotas City became a separate district on 24 June 2007, more than a month after
the 14 May 2007 elections.

As we stated in our Decision of 21 April 2009, "[t]his formula allows for the
corresponding increase in the number of seats available for party-list representatives
whenever a legislative district is created by law." Thus, for every four district
representatives, the 1987 Constitution mandates that there shall be one party-list
representative. There is no need for legislation to create an additional party-list seat
whenever four additional legislative districts are created by law. Section 5(2), Article
VI of the 1987 Constitution automatically creates such additional party-list seat.

We use the table below to illustrate the relationship between the number of
legislative districts and the number of party-list seats for every election year after
1987.

The Number of Party-List Seats

Election Year
Number of Legislative Districts
Number of Party-List Seats
Total Number of Members of the House of Representatives

in the 2007 Elections

1992

200

50

250

1995

206

51

257

Section 5(2), Article VI of the 1987 Constitution reads in part:

New Districts:
The party-list representatives shall constitute twenty per centum of the total number
of representatives including those under the party-list. x x x

Biliran
Mandaluyong City
Makati (2nd District)

The 1987 Constitution fixes the ratio of party-list representatives to district

representatives. This ratio automatically applies whenever the number of district
representatives is increased by law. The mathematical formula for determining the
number of seats available to party-list representatives is

Guimaras
Muntinlupa City

Number of seats available

to legislative districts.80

Apayao

.20

Number of seats available to

1998

209

52

261

63

Marikina City (2nd District)

New Districts:

Cagayan de Oro (2nd District)

Compostela Valley
Taguig City (2nd District)

2010

220

55

275

Valenzuela City (2nd District)

New District:
2001

209

52

261

Navotas City

2004

214

53

267

(assuming no additional districts are created)

New Districts:
Paraaque City (2nd District)
San Jose del Monte City

We see that, as early as the election year of 1995, the total number of members of the
House of Representatives is already beyond the initial maximum of 250 members as
fixed in the 1987 Constitution.

Antipolo (1st District)

Antipolo (2nd District)
Zamboanga City (2nd District)

2007

219

54

273

New Districts:

Any change in the number of legislative districts brings a corresponding change in

the number of party-list seats. However, the increase in the number of members of
the House of Representatives went unnoticed as the available seats for party-list
representatives have never been filled up before. As of the oral arguments in G.R.
Nos. 179271 and 179295, there were 220 legislative districts. Fifty-five party-list
seats were thus allocated. However, the number of legislative districts was
subsequently reduced to 219 with our ruling on 16 July 2008 declaring void the
creation of the Province of Sharif Kabunsuan.3 Thus, in the 2007 elections, the
number of party-list seats available for distribution should be correspondingly
reduced from 55 to 54.

Dinagat Island
Sultan Kudarat (2nd District)
Zamboanga Sibugay (2nd District)

The filling-up of all available party-list seats is not mandatory. Actual occupancy of
the party-list seats depends on the number of participants in the party-list election. If
only ten parties participated in the 2007 party-list election, then, despite the

64

availability of 54 seats, the maximum possible number of occupied party-list seats

would only be 30 because of the three-seat cap. In such a case, the three-seat cap
prevents the mandatory allocation of all the 54 available seats.

Under Section 11(b) of R.A. No. 7941, garnering 2% of the total votes cast
guarantees a party one seat. This 2% threshold for the first round of seat allocation
does not violate any provision of the 1987 Constitution. Thus, the Court upholds this
2% threshold for the guaranteed seats as a valid exercise of legislative
power.1avvphi1

In the second round allocation of additional seats, there is no minimum vote

requirement to obtain a party-list seat because the Court has struck down the
application of the 2% threshold in the allocation of additional seats. Specifically, the
provision in Section 11(b) of the Party-List Act stating that "those garnering more
than two percent (2%) of the votes shall be entitled to additional seats in the
proportion to their total number of votes" can no longer be given any effect.
Otherwise, the 20 percent party-list seats in the total membership of the House of
Representatives as provided in the 1987 Constitution will mathematically be
impossible to fill up.

However, a party-list organization has to obtain a sufficient number of votes to gain a

seat in the second round of seat allocation. What is deemed a sufficient number of
votes is dependent upon the circumstances of each election, such as the number of
participating parties, the number of available party-list seats, and the number of
parties with guaranteed seats received in the first round of seat allocation. To
continue the example above, if only ten parties participated in the 2007 party-list
election and each party received only one thousand votes, then each of the ten parties
would receive 10% of the votes cast. All are guaranteed one seat, and are further
entitled to receive two more seats in the second round of seat allocation.

Similarly, a presidential candidate may win the elections even if he receives only one
thousand votes as long as all his opponents receive less than one thousand votes. A
winning presidential candidate only needs to receive more votes than his opponents.

The same policy applies in every election to public office, from the presidential to
the barangay level. Except for the guaranteed party-list seat, there is no minimum
vote requirement before a candidate in any election, for any elective office, can be
proclaimed the winner. Of course, the winning candidate must receive at least one
vote, assuming he has no opponents or all his opponents do not receive a single vote.

In the absence of a minimum vote requirement in the second round of party-list seat
allocation, there is no need to belabor the disparity between the votes obtained by the
first and last ranked winning parties in the 2007 party-list elections. In the same
manner, no one belabors the disparity between the votes obtained by the highest and
lowest ranked winners in the senatorial elections. However, for those interested in
comparing the votes received by party-list representatives vis-a-vis the votes
received by district representatives, the 162,678 votes cast in favor of TUCP, the last
party to obtain a party-list seat, is significantly higher than the votes received by 214
of the 218 elected district representatives.4

The Actual Number of Party-List Representatives

in the 2007 Elections

The data used in Table 3 of our Decision promulgated on 21 April 2009 was based on
the submissions of the parties. We used the figures from Party-List Canvass Report
No. 32, as of 6:00 p.m. of 31 August 2007. The NBC issued NBC Report No. 33 on
11 June 2008, updating the 31 August 2007 report. The parties did not furnish this
Court with a copy of NBC Report No. 33. In any case, we stated in the dispositive
portion of our Decision that "[t]he allocation of additional seats under the Party-List
System shall be in accordance with the procedure used in Table 3 of this decision."
Party-List Canvass Report No. 32 is not part of the procedure.1avvphi1

The computation of the COMELEC in NBC No. 09-001 applying the procedure laid
down in our Decision requires correction for purposes of accuracy. Instead of
multiplying the percentage of votes garnered over the total votes for party-list by 36,
the COMELEC multiplied the percentage by 37. Thirty-six is the proper multiplier as

65

it is the difference between 54, the number of available party-list seats, and 18, the
number of guaranteed seats. Only the figures in column (C) are affected. The
allocation of seats to the winning party-list organizations, however, remains the same
as in NBC No. 09-001. Our modification of the COMELECs computation in NBC
No. 09-001 is shown below:
Rank

Party

Votes Garnered

Votes Garnered over

Total Votes for Party List, in %

(A)

Guaranteed Seat

(First Round)
(B)

Additional

Seats
(Second Round)
(C)

(B) plus (C), in whole integers

(D)

Applying the three seat cap

(E)
1

BUHAY
N.A.

1,169,338

7.44%

2.68

BAYAN MUNA 979,189 6.23%

2.24

N.A.

CIBAC 755,735 4.81%

1.73

N.A.

GABRIELA

1.42

APEC

1.42

N.A.

A Teacher

490,853 3.12%

1.12

N.A.

AKBAYAN

466,448 2.97%

1.07

N.A.

85

ALAGAD

423,165 2.69%

N.A.

621,266 3.95%

619,733 3.94%

N.A.

COOP-NATCCO
N.A.

409,987 2.61%

10

BUTIL 409,168 2.60%

N.A.

11

BATAS 385,956 2.45%

N.A.

12

ARC

N.A.

13

ANAKPAWIS

14

AMIN 347,527 2.21%

N.A.

15

ABONO

16

YACAP 331,623 2.11%

N.A.

17

AGAP 328,814 2.09%

N.A.

18

AN WARAY

321,516 2.04%

N.A.

19

UNI-MAD

251,804 1.60%

N.A.

20

ABS

235,152 1.50%

N.A.

21

ALIF

229,267 1.46%

N.A.

22

KAKUSA

229,036 1.46%

N.A.

23

KABATAAN

228,700 1.45%

N.A.

24

ABA-AKO

219,363 1.40%

N.A.

25

SENIOR CITIZENS
N.A.

213,095 1.36%

26

AT

200,030 1.27%

N.A.

27

VFP

196,358 1.25%

N.A.

28

ANAD 188,573 1.20%

N.A.

29

BANAT 177,068 1.13%

N.A.

374,349 2.38%

370,323 2.36%
1

340,002 2.16%

N.A.

N.A.

66

30

ANG KASANGGA
N.A.

31

BANTAY

169,869 1.08%

N.A.

32

ABAKADA

166,897 1.06%

N.A.

33

1-UTAK

165,012 1.05%

N.A.

34

TUCP

N.A.

35

COCOFED

Total

18

162,678 1.03%

170,594 1.08%

156,007 0.99%

N.A.

54

Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) and Ang

Laban ng Indiginong Filipino (ALIF) both have pending cases before the
COMELEC. The COMELEC correctly deferred the proclamation of both BATAS
and ALIF as the outcome of their cases may affect the final composition of party-list
representatives. The computation and allocation of seats may still be modified in the
event that the COMELEC decides against BATAS and/or ALIF.

To address Roa-Borjes motion for partial reconsideration-in-intervention and for

purposes of computing the results in future party-list elections, we reiterate that in
the second step of the second round of seat allocation, the preference in the
distribution of seats should be in accordance with the higher percentage and higher
rank, without limiting the distribution

to parties receiving two-percent of the votes.6 To limit the distribution of seats to the
two-percenters would mathematically prevent the filling up of all the available partylist seats.

In the table above, CIBAC cannot claim a third seat from the seat allocated to TUCP,
the last ranked party allocated with a seat. CIBAC's 2.81% (from the percentage of
4.81% less the 2% for its guaranteed seat) has a lower fractional seat value after the
allocation of its second seat compared to TUCP's 1.03%. CIBAC's fractional seat
after receiving two seats is only 0.03 compared to TUCP's 0.38 fractional seat.
Multiplying CIBAC's 2.81% by 37, the additional seats for distribution in the second
round, gives 1.03 seat, leaving 0.03 fractional seat. Multiplying TUCP's 1.03% by 37
gives a fractional seat of 0.38, higher than CIBAC's fractional seat of 0.03. The
fractional seats become material only in the second step of the second round of seat
allocation to determine the ranking of parties. Thus, for purposes of the second step
in the second round of seat allocation,7 TUCP has a higher rank than CIBAC.

Roa-Borjes position stems from the perceived need for absolute proportionality in
the allocation of party-list seats. However, the 1987 Constitution does not require
absolute proportionality in the allocation of party-list seats. Section 5(1), Article VI
of the 1987 Constitution provides:

(1) The House of Representatives shall be composed of not more than two hundred
and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional, and sectoral
parties and organizations. (Boldfacing and italicization supplied)

The phrase "legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio" in Section 5(1) of
Article VI requires that legislative districts shall be apportioned according to
proportional representation. However, this principle of proportional representation
applies only to legislative districts, not to the party-list system. The allocation of
seats under the party-list system is governed by the last phrase of Section 5(1), which
states that the party-list representatives shall be "those who, as provided by law, shall
be elected through a party-list system," giving the Legislature wide discretion in

67

formulating the allocation of party-list seats. Clearly, there is no constitutional

requirement for absolute proportional representation in the allocation of party-list
seats in the House of Representatives.

Section 2, on Declaration of Policy, of R.A. No. 7941 provides that the "State shall
promote proportional representation in the election of representatives to the House of
Representatives through a party-list system of registered national, regional and
sectoral parties or organizations or coalitions thereof x x x." However, this
proportional representation in Section 2 is qualified by Section 11(b)8 of the same
law which mandates a three-seat cap, which is intended to bar any single party-list
organization from dominating the party-list system. Section 11(b) also qualifies this
proportional representation by imposing a two percent cut-off for those entitled to the
guaranteed seats. These statutory qualifications are valid because they do not violate
the Constitution, which does not require absolute proportional representation for the
party-list system.

To summarize, there are four parameters in a Philippine-style party-list election

system:

1. Twenty percent of the total number of the membership of the House of

Representatives is the maximum number of seats available to party-list
organizations, such that there is automatically one party-list seat for every four
existing legislative districts.

2. Garnering two percent of the total votes cast in the party-list elections guarantees a
party-list organization one seat. The guaranteed seats shall be distributed in a first
round of seat allocation to parties receiving at least two percent of the total party-list
votes.
Republic of the Philippines

3. The additional seats, that is, the remaining seats after allocation of the guaranteed
seats, shall be distributed to the party-list organizations including those that received
less than two percent of the total votes. The continued operation of the two percent
threshold as it applies to the allocation of the additional seats is now unconstitutional
because this threshold mathematically and physically prevents the filling up of the
available party-list seats. The additional seats shall be distributed to the parties in a
second round of seat allocation according to the two-step procedure laid down in the
Decision of 21 April 2009 as clarified in this Resolution.

4. The three-seat cap is constitutional. The three-seat cap is intended by the

Legislature to prevent any party from dominating the party-list system. There is no
violation of the Constitution because the 1987 Constitution does not require absolute
proportionality for the party-list system. The well-settled rule is that courts will not
question the wisdom of the Legislature as long as it is not violative of the
Constitution.

These four parameters allow the mathematical and practical fulfillment of the
Constitutional provision that party-list representatives shall comprise twenty percent
of the members of the House of Representatives. At the same time, these four
parameters uphold as much as possible the Party-List Act, striking down only that
provision of the Party-List Act that could not be reconciled anymore with the 1987
Constitution.

WHEREFORE, the Courts Decision of 21 April 2009 in the present case is clarified
accordingly.

SO ORDERED.
Manila

SUPREME COURT

68

EN BANC

G.R. No. L-7068

December 22, 1954

The error claimed to have been committed by the trial court in refusing admission of
an amended petition, presumably to allege an additional ground for disqualification
of the respondent is no longer urged, the attempt to file such petition having been
made on the day set for the hearing of the case.lawphil.net

PERFECTO FAYPON, petitioner,

vs.
ELISEO QUIRINO, respondent.

Ramon Diokno and Jose W. Diokno for petitioner.

Quirino, Soriano and Crisologo for respondent.

PADILLA, J.:

A petition for quo warranto under section 173 of Republic Act No. 180, as amended,
was dismissed by the Court of First Instance of Ilocos Sur. The Court of Appeals
affirmed the dismissal. By a petition for a writ of certiorari under Rule 46 the last
judgment is now before us for review.

The ground for the quo warranto petition is the respondent's ineligibility for the
office of Provincial Governor of Ilocos Sur to which he was proclaimed elected by
the provincial board of canvassers in the elections held on 13 November 1951. It is
alleged that he lacks the residence in the province, as required in section 2071 of the
Revised Administrative Code.

The second point raised is the irregular constitution in the Court of Appeals of the
division of five members that rendered the judgment in the case. It is claimed that
when the unanimous concurrence of the division of three could not be had, the
Presiding Justice chose or designated two additional Associate Justices in violation
of the resolution of the Court in banc promulgated on 15 September 1952 which
required that it be by rotation in the order of seniority. The alleged violation of the
resolution of the Court in banc promulgated on 15 September 1952 which required
that it be by rotation in the order of seniority. The alleged violation of the resolution
does not affect the jurisdiction of the Court of Appeals to hear and decide the case
before it on appeal. If the alleged irregular designation be a sufficient ground for the
setting aside of the judgment rendered by the Court of Appeals and remanding the
case to it for further proceedings, it would unnecessarily delay the disposition of this
case to the detriment of public interest. As the judgment rendered in the case is being
reviewed, the hearing and consideration of the case by this Court sufficiently
guarantee and protect the petitioner's right and interest. Also, the fact that after the
designation of two additional Associate Justices of the Court of Appeals to form a
division of five, as provided for in the Judiciary Act of 1948, no hearing was held, is
not sufficient to render judgment void, because section 1, Rule 53, allows the
consideration and adjudication of an appealed case "by any and all of Justices who
are members of the court at the time when such matters are taken up for
consideration and adjudication, whether such justices were or were not members of
the court and whether they were not present at the date of submission . .".

The third point is the alleged respondent's lack of residence as required by law
section 2071 of the Revised Administrative Code. The Court of Appeals found the
following facts:

69

. . That respondent-appellee was born in Caoayan, Ilocos Sur, in June, 1895; that he
went to the United States in 1919 to study and returned to the Philippines in 1923;
that on his return, he taught as professor in the University of the Philippines for four
years. He became owner and editor of the Intelligence, a newspaper publish in
Manila. He went to Iloilo as editor of the Iloilo Times. He became executive
secretary and general manager of the NEPA (National Economic Protectionism
Association) from 1936 until December 31, 1951 (Exhibits G, G-1 to G-3). He was
editor of Commerce, an official organ of the Chamber of Commerce in Manila
(Exhibits F, F-1 to F-11). He registered as a voter in Pasay City in 1946-1947
(Exhibit A). He owns a house and resides at 55-11th Street, Quezon City (Exhibits
H-H-1).

There is no question then that he was born in the municipality of Caoayan, Ilocos
Sur, in June, 1895; came to Manila to pursue his studies; went to the United States
for the same purpose; returned to the Philippines; and engaged in the newspaper
work in Manila, Iloilo and later on again in Manila. There is also no question that the
respondent was proclaimed by the provincial board of canvassers elected to the
office of Provincial Governor of Ilocos Sur with 49,017 votes cast for him as against
19,466 votes cast for the petitioner.

The crucial and pivotal fact upon which the petitioner relies to have judgment of the
respondent as voter in Pasay City in 1946 and 1947. In several cases we have ruled
that mere absence from one's residence or origin domicile to pursue studies
engage in business, or practice his avocation, is not sufficient to constitute
abandonment or loss of such residence. It is contended, however, that the
respondent's registration as voter in Pasay City in 1946 and 1947 in accordance with
the provisions of the Constitution and the laws on the subject, implies and means that
he was a resident thereof during the six months immediately preceding such
registration and of the Philippines for one year; 1 and that such being the case he was
ineligible for the office to which he was elected, because

No person shall be eligible to a provincial office unless at the time of the election he
is qualified voter of the province, has been a bona fide resident therein for at least
one year prior to the election and is not less than thirty years of age. 2

Did the respondent's registration as voter in Pasay City in 1946 and 1947 constitute
abandonment or loss of his residence of origin? The determination of a person's legal
residence or domicile largely depends upon intention which may be inferred from his
acts, activities and utterances. The party who claims that a person has abandoned or
lost his residence of origin must show and prove preponderantly such abandonment
or loss. If we are to take literally the meaning of the voter's oath 3 which he files
with the board of inspectors for his registration as such, there is no doubt that the
respondent having registered in 1946 and 1947 as voter in Pasay City must have
acquired residence in that city and must be deemed to have abandoned his residence
of origin. But in several decisions we have laid down the rule that in which he is
elected is not sufficient to constitute abandonment or loss of his residence of origin.
In Yra vs. Abano, 52 Phil., 380, the election of the protestee to the office of the
municipal president of Meycauayan, Bulacan, was upheld, notwithstanding the fact
that he had registered as voter in Manila. In Vivero vs. Murillo, 52 Phil., 694, where
the protestee had registered as voter in the Municipality of Buraruen, Leyte, we held
that such registration had not caused the loss of his residence of origin (La Paz, same
province), where he has elected municipal president. In Laurena vs. Teves, 61 Phil.,
36, 38, we upheld the election of Pedro Teves to the office of the municipal president
of Dumaguete where he was born, because he had his residence of origin which was
Dumaguete, "notwithstanding the fact that in the year 1919 he registered in the list of
voters of the municipal of Bacong; run for representative for the second district of
Oriental Negros to which said municipality of Bacong belongs; again ran for
reelection in the year 1992; and launched his candidacy for member (membership) of
(in) the provincial board of Oriental Negros in 1925, stating under oath in his
certificate of candidacy that he was a resident of said municipality of Bacong,
Oriental Negros, without having ever registered as elector in any of the precincts of
the municipality of Dumaguete from said year, 1919, up to the present, and having
ordered the cancellation of his name in the list of voters of said municipality of
Bacong only on April 5, 1934." And in the case of Gallego vs. Verra, 73 Phil., 453,
where it appears that Pedro Gallego worked in several provinces other than his native
town (Abuyog, Leyte), registered as elector and voted in Malaybalay, Bukidnon, in
1938, took his residence certificate in Malaybalay in 1940 where it appeared that he
had resided in that municipality for one and a half years, we held that he had not lost
this residence of origin and the protest against his election in 1940 to the office of
municipal mayor of Abuyog was dismissed.

70

The rule laid down in the foregoing cases is not devoid of reason and justification. A
citizen may leave the place of his birth to look for "greener pastures," as the saying
goes, to improve his lot, and that, of course, includes study in other places, practice
of his avocation, or engaging in business. When election is to be held, the citizen
who left his birthplace to improve his lot may desire to return to his native town to
cast his ballot but for professional or business reasons, or for any other reason, he
may not be absent himself from the place of his professional or business activities; so
there he registers as voter as he has the qualifications to be one and is not willing to
give up or lose the opportunity to choose the officials who are to run the government
especially in national elections. Despite such registration, the animus revertendi to
his home, to his domicile or residence of origin, he has not forsaken him. This may
be the explanation why the registration of a voter in a place other than his residence
of origin has not been deemed sufficient to constitute abandonment or loss of such
residence. It finds justification in the natural desire and longing of every person to
return to the place of birth. This strong feeling of attachment to the place of one's
birth must be overcome by positive proof of abandonment for another.

Counsel for the petitioner argues that in addition to other qualifications residence for
at least one year in the municipality were the municipal officer is elected, as
provided for in section 2174 of the Revised Administrative Code, is sufficient;
whereas the residence requirement for a provincial officer such as that of the
provincial governor must be a bona fide residence in the province for at least one
prior to his election, and concludes that the rule laid down in the cases cited and
invoked is not applicable to and does not and cannot benefit the respondent. We fail
to see the difference between the requirement of not less than one year bona fide
residence for provincial officers. If any inference is to be drawn from the words
"bona fide," it is that in the case of a municipal office in addition to other
qualifications an actual residence in the municipality for at least one year of a
candidate for municipal office would be sufficient to make him eligible for such
office; whereas in the case of a provincial office in addition to other qualifications a
residence in good faith in the province for not less than one year of a candidate for
provincial office, although he may not actually be present therein, would be enough
to make him eligible for such office. But this would be a hair-splitting differentiation.
The residence requirement for elective provincial and municipal officials is the same;
and the rule that a previous registration as voter of a municipal mayor-elect in a
municipality other than the one in which he is elected is no ground for disqualifying
him because of alleged loss or abandonment of his residence of origin in the

municipality where he is elected, applies with equal force to elective provincial

officials.

The case of Tanseco vs. Arteche, 57 Phil., 227, upon which the petitioner relies
cannot be invoked as authority to reverse the judgment under review, because apart
from a long stay in Manila, where he had engaged in the practice of his profession,
Arteche, elected provincial governor of Samar, admitted in a brief submitted by his
law firm in his behalf in a criminal case where he was charged with serious slander,
that he had been a bona fide resident of the City of Manila years before he ran for the
office of Governor. This fact is stated twice in the decision of this Court on p. 234,
supra. So, he admitted that he had lost and abandoned his residence of origin in the
province of Samar and acquired another in Manila. The abandonment or loss of his
residence of origin was not denied but admitted but the only point decided was that
he did not reacquire his residence of origin. Two Justices dissented and were of the
opinion that he had not lost his residence of origin in the province of Samar. In the
case before us there is no such admission.

In Nuval vs. Guray, 52 Phil., 645, referred to in Tanseco vs. Arteche, supra, there was
no question as to the intention of protestee Guray to change his residence from Luna
to Balaoan, and the only point decided was that he did not reacquire his residence of
origin in Luna one year before his election to the office of municipal president in the
latter municipality.

Upon the authority of cases decided by this Court, we are of the opinion and so hold
that on the evidence found by the Court of Appeals, the respondent has not lost his
residence of origin.

The judgment under review is affirmed, without pronouncement as to costs.

Bengzon, Montemayor, Reyes, A., Jugo, Bautista Angelo and Labrador, JJ., concur.

71

Republic of the Philippines

SUPREME COURT

determination of petitioner's ineligibility to run for office and the lifting of the 07
September 20 1 0 Status Quo Order.

Manila
Petitioner, on the other hand, questions the Decision, by raising the following
arguments:
EN BANC

G.R. No. 193314

June 25, 2013

SVETLANA P. JALOSJOS, Petitioner,

1. This Court erred in concluding that there are inconsistencies in the Joint Affidavit
of the witnesses presented by petitioner.

2. Petitioners stay in Brgy. Punta Miray should be considered in determining the

one-year residency requirement in the same municipality.

vs.
COMMISSION ON ELECTIONS, EDWIN ELIM TUPAG and RODOLFO Y.
ESTRELLADA. Respondents.

RESOLUTION

3. Petitioners registration as a voter presupposes she has stayed in the municipality

at least six months prior to the registration.

4. Petitioners certificate of candidacy (COC) should not be cancelled, absent any

finding of a deliberate attempt to deceive the electorate.

SERENO, CJ.:
5. COMELEC was ousted of its jurisdiction to decide on the question of the
qualification of petitioner after she was proclaimed as winner.
This Resolution resolves the Motion for Partial Reconsideration dated 8 March 2013,
filed by Edwin Elim Tumpag and Rodolfo Y. Estrellada (private respondents) and the
Motion for Reconsideration dated 27 March 2013, filed by Svetlana P. Jalosjos
(petitioner) in connection with the Decision of the Court promulgated on 26
February 2013.

Private respondents come before this Court on the sole issue of who between the
vice-mayor and the second placer shall assume office pursuant to the final

We deny the motion of petitioner and grant the partial motion for reconsideration of
private respondents.

The claim of actual and physical residence in Brgy. Tugas since 2008 is contradicted
by the statements that petitioner was staying in Mrs. Lourdes Yaps house while her

72

residential unit was being constructed; and that by December 2009, the construction
was still ongoing.

Petitioner questions the inconsistencies noted by the court in the affidavit of her
witnesses who, while claiming that they personally know her to have been an actual
and physical resident of Brgy. Tugas since 2008, declared in the same affidavit that
while her house was being constructed, she used to stay at the residence of Mrs.
Lourdes Yap (Mrs. Yap) in Brgy. Punta Miray.

The declaration of petitioners witnesses that they know petitioner to be "an actual
and physical resident of Brgy. Tugas since 2008" contradicts their statements that (1)
they have "started the construction of the residential house of the owner and other
infrastructures of the resort since January 2009"; (2) "until the present (meaning until
December 2009 when they executed their affidavit), the construction and
development projects are still on-going"; and (3) "at times when Ms. Jalosjos is in
Baliangao, she used to stay in the house of Mrs. Lourdes Yap at Sitio Balas Diut,
Brgy. Punta Miray, Baliangao, Misamis Occidental, while her residential house was
still being constructed."

Petitioner asserts that there are no inconsistencies in the statements of her witnesses,
and that the statements are in fact consistent with her claim that she had been
residing in Baliangao, Misamis Occidental for at least one year prior to the 10 May
2010 elections. She argues as follows:

x x x the fact that some of these witnesses knew that petitioner lived in the house of
Mrs. Lourdes Yap in a different barangay, particularly Brgy. Punta Miray, is not at all
inconsistent or contradictory with petitioners assertion and the witnesses statements
that petitioner resides in Brgy. Tugas, because petitioner obviously needed a place to
stay while her residence in Brgy. Tugas was being constructed. This does not negate
the fact that petitioner was establishing her residence in Brgy. Tugas since the latter
part of 2008, or at the very latest during the first few months (sic) of January 2009.1

Her assertion that she "was establishing her residence in Brgy. Tugas since the latter
part of 2008, or at the very latest during the first few months [sic] of January 2009"
shows that she herself cannot pinpoint the particular date when she established her
legal residence in Brgy. Tugas. This fact is contradictory to the declaration of the
witnesses that "we have personal knowledge that Ms. Svetlana P. Jalosjos has been
an actual and physical resident of Sunrise Tugas, Baliangao, Misamis Occidental,
after she bought the properties thereat from the Heirs of Agapita Yap, Jr. on 9
December 2008."

To be an actual and physical resident of a locality, one must have a dwelling place
where one resides no matter how modest and regardless of ownership. The mere
purchase of a parcel of land does not make it ones residence. The fact that the
residential structure where petitioner intends to reside was still under construction on
the lot she purchased means that she has not yet established actual and physical
residence in the barangay, contrary to the declaration of her witnesses that she has
been an actual and physical resident of Brgy. Tugas since 2008.

Petitioner wants this Court to believe that the ongoing construction referred to by her
witnesses in their joint affidavit does not refer to the residential structure, but to the
other structures in the resort that petitioner was then establishing. She does not
assert, however, that her residential unit had already been completed by that time. In
fact, she has failed to present any proof as to when her claimed residential unit was
completed, or when she transferred to the unit.

It must be pointed out that the second statement in paragraph 1 of the Joint Affidavit
states: "We have started the construction of the residential house of the owner and
the other infrastructures of the resort since January, 2009." This was immediately
followed by paragraph 2 which reads:

2. Until the present, the construction and development projects are still ongoing. To
establish the fact of the on-going construction work, we are attaching herewith as
part hereof, pictures we have taken on December 20 and 29, 2009 marked Annexes
"1", "2", "3", "4", "5", and "6" hereof, respectively.2

73

Without any qualification as to what is being referred to by the construction and

development projects in paragraph 2, it follows that it refers to the "construction of
the residential house of the owner and the other infrastructures of the resort" found in
the prior statement.

In the affidavit, there is no mention whatsoever of completion of the residential

house as of 30 December 2009. Neither has any occupancy permit been presented by
petitioner to definitely establish the date she started occupying what she claims to be
her residential unit in the resort.

7. More importantly, if this Honorable Court would consider the circumstance that
petitioner was staying in Brgy. Punta Miray as true so as to render the statements of
her witnesses inconsistent, then such a consideration should not have led this
Honorable Court to the conclusion that petitioner was not a resident of Baliangao,
Misamis Occidental since Brgy. Punta Miray is located in the municipality of
Baliangao like Brgy. Tugas. In other words, the fact that petitioner was staying in a
house in Brgy. Punta Miray while her residence in Brgy. Tugas was being
constructed during the early part of 2009 would STILL LEAD to the conclusion that
petitioner has been residing in Baliangao, Misamis Occidental for at least one (1)
year prior to the 10 May 2010 elections since Brgy. Punta Miray is a part of
Baliangao.3 (Emphasis in the original and underscoring omitted)

Petitioner takes pains to present photographs of other structures in the resort, but
fails to present any photograph of a completed residential structure, which is more
relevant in proving her claimed residence in Brgy. Tugas. If the residential unit was
already completed by December 2009, her witnesses could have easily testified to
that fact and presented photographs of the structure.

Petitioner relies on Mitra v. COMELEC4 and Sabili v. COMELEC5 in claiming that

"the series of events whereby petitioner first had her residence constructed ... after
she purchased in 2008 the property where her residence was eventually established,
and while she lived in another barangay of the same municipality, and then
eventually moved in to her residence in Brgy. Tugas amounted to an incremental
process of transferring residence."

This absence of any photograph proving the alleged residence of petitioner in the
resort bolsters the courts conclusion that at the time the witnesses signed their
affidavits in December 2009, or six months prior to the May 2010 elections, her
residential unit had not yet been built.

Petitioners case must be differentiated from Mitra in that petitioner therein

presented not only the notarized lease contract over the property where he claimed to
be residing, but also "a residence certificate ... and an identification card of the
House of Representatives showing Aborlan as his residence."6

A temporary stay in a strangers house cannot amount to residence.

In Sabili, the Court declared that "the existence of a house and lot apparently owned
by petitioners common-law wife, with whom he has been living for over two
decades, makes plausible petitioners allegation of bodily presence and intent to
reside in the area."7

Petitioner wants this Court to credit her stay in Mrs. Yaps house as proof that she
had been a resident of the Municipality of Baliangao for more than one year prior to
the 10 May 2010 elections. In her words:

Petitioners stay in the house of Mrs. Yap in Brgy. Punta Miray, on the other hand,
was only a temporary and intermittent stay that does not amount to residence. It was
never the intention of petitioner to reside in that barangay, as she only stayed there at

74

times when she was in Baliangao while her house was being constructed.8 Her
temporary stay in Brgy. Punta Miray cannot be counted as residence in Baliangao.

Petitioner failed to show by what right she stayed in Mrs. Yaps house. Except for the
declarations of her witnesses that she stayed there while her residential unit in the
resort was being built, she presented no other evidence to show any basis of her right
to stay in that particular house as a resident.

Petitioner contends that the Court erred in upholding the cancellation of her COC
despite the glaring absence of any finding made by the respondent COMELEC in its
assailed Resolution that petitioner committed a false material representation in said
COC.

Approval of voter registration does not presuppose six-month residency in the place
prior to registration.

The finding of the COMELEC that petitioner lacks the one year residency
requirement to run for local elective position in the municipality of Baliangao
directly contradicts her sworn declaration that she is eligible to run for public office.
The fact that petitioner failed to prove that she has been a resident of the locality for
at least one year prior to the elections reveals the falsity of her assertion in her COC
that she is qualified to run for a local elective position. This false material
representation justifies the cancellation of her COC.

It appears on record that petitioner, in filing her application for registration as a voter
on 7 May 2009, claimed "that she has been a resident of Brgy. Tugas, Baliangao,
Misamis Occidental for six (6) months prior to the filing of the said registration."9
For her claim to be true, she must have resided in Brgy. Tugas on or before 8
November 2008. The records, however, show that she purchased property in Brgy.
Tugas only on December 2008. Thus, her claim that she had been a resident of Brgy.
Tugas for at least six (6) months prior to her application for registration as a voter on
7 May 2009 is an utter falsity.

When the candidates claim of eligibility is proven false, as when the candidate
failed to substantiate meeting the required residency in the locality, the
representation of eligibility in the COC constitutes a "deliberate attempt to mislead,
misinform, or hide the fact"11 of ineligibility.

The approval of the registration of petitioner as a voter does not and cannot carry
with it an affirmation of the falsehood and misrepresentation as to the period of her
residence in Brgy. Tugas. At best, the approval of her registration as a voter carries a
presumption that the registrant will be able to meet the six-month residency
requirement for the elections in which the registrant intends to vote.10 It does not
prove that the registrant has resided in the locality for more than one year prior to the
elections.

Representation that one is qualified to run for public office when proven false
constitutes a deliberate attempt to deceive the electorate.

COMELEC is not ousted of jurisdiction to decide a petition for cancellation of the

certificate of candidacy after the winner is proclaimed.

The COMELEC, in its Resolution dated 19 August 2010, citing Aquino v.

COMELEC,12 has amply discussed this matter, thus:

Petitioners contention that "after the conduct of the election and (petitioner) has
been established the winner of the electoral exercise from the moment of election,
the COMELEC is automatically divested of authority to pass upon the question of
qualification" finds no basis in law, because even after the elections the COMELEC

75

is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continue to hear

and decide questions relating to qualifications of candidates. Section 6 states:

SECTION 6. Effect of Disqualification Case. Any candidate who has been declared
by final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of guilt is
strong.

This Court has ruled in Aratea v. COMELEC14 and Jalosjos, Jr. v. COMELEC15
that the cancellation of the COC based on an ineligibility that existed at the time of
its filing means that the candidate was never a valid candidate from the very
beginning.16

On the question of who should assume the post vacated by the ineligible candidate,
this Court amply explained in Jalosjos, Jr. that:

Under the above-quoted provision, not only is a disqualification case against a

candidate allowed to continue after the election (and does not oust the COMELEC of
its jurisdiction), but his obtaining the highest number of votes will not result in the
suspension or termination of the proceedings against him when the evidence of guilt
is strong. While the phrase "when the evidence of guilt is strong" seems to suggest
that the provisions of Section 6 ought to be applicable only to disqualification cases
under Section 68 of the Omnibus Election Code, Section 7 of R.A. 6646 allows the
application of the provisions of Section 6 to cases involving disqualification based
on ineligibility under Section 78 of B.P. 881. Section 7 states:

Decisions of this Court holding that the second-placer cannot be proclaimed winner
if the first-placer is disqualified or declared ineligible should be limited to situations
where the certificate of candidacy of the first placer was valid at the time of filing
but subsequently had to be cancelled because of a violation of law that took place, or
a legal impediment that took effect, after the filing of the certificate of candidacy. If
the certificate of candidacy is void ab initio, then legally the person who filed such
void certificate of candidacy was never a candidate in the elections at any time. All
votes for such non-candidate are stray votes and should not be counted. Thus, such
non-candidate can never be a first-placer in the elections. If a certificate of candidacy
void ab initio is cancelled on the day, or before the day, of the election, prevailing
jurisprudence holds that all votes for that candidate are stray votes. If a certificate of
candidacy void ab initio is cancelled one day or more after the elections, all votes for
such candidate should also be stray votes because the certificate of candidacy is void
from the very beginning.17 x x x. (Citations omitted)

SECTION 7. Petition to Deny Due Course or to Cancel a Certificate of

Candidacy.1wphi1 The procedure hereinabove provided shall apply to petition to
deny due course to or cancel a certificate of candidacy based on Sec. 78 of Batas
Pambansa 881.13

There is another more compelling reason why the eligible candidate who garnered
the highest number of votes must assume the office. The ineligible candidate who
was proclaimed and who already assumed office is a de facto officer by virtue of the
ineligibility.

The cancellation of the certificate of candidacy of an ineligible candidate who has

assumed office renders the officer a de facto officer.

The rule on succession in Section 44 of the Local Government Code18 cannot apply
in instances when a de facto officer is ousted from office and the de jure officer takes
over. The ouster of a de facto officer cannot create a permanent vacancy as
contemplated in the Local Government Code. There is no vacancy to speak of as the

76

de jure officer, the rightful winner in the elections, has the legal right to assume the
position.

WHEREFORE, in view of the foregoing, the Motion for Partial Reconsideration

dated 08 March 2013 is hereby GRANTED. Petitioner's Motion for Reconsideration
Republic of the Philippines
SUPREME COURT

dated 27 March 2013 is hereby DENIED with FINALITY. AGNE V. YAP, SR. is
hereby declared the duly elected Mayor of the Municipality of Baliangao, Misamis
Occidental in the 10 May 2010 elections. This resolution is immediately executory.

SO ORDERED.
election day is disqualified. To do so will amount to their disenfranchisement and the
failure to comply with the proportionality for party-list representatives required by
the Constitution and by law.

Manila
We are asked to decide the Petition for Review on Certiorari filed by a party-list
group that ran for the 2010 national elections. The petitioner questions the validity of
the formula used by the Commission on Elections in determining and proclaiming
the winning party-list groups.1

EN BANC

G.R. No. 192803

December 10, 2013

ALLIANCE FOR RURAL AND AGRARIAN RECONSTRUCTION, INC., ALSO

KNOWN AS ARARO PARTY-LIST, Petitioner,

We rule that the Petition is moot and academic. However, we provide guidance for
the bench and the bar with respect to the formula used in determining the winning
party-list groups. We refine the divisor in the formula use din getting the percentage
of votes garnered by a party-list.

vs.
COMMISSION ON ELECTIONS, Respondent.

The facts as established on record are as follows:

DECISION

Petitioner, Alliance for Rural and Agrarian Reconstruction, Inc.,(ARARO) was a

duly accredited party-list under Republic Act No. 7941.2Itgarnered a total of one
hundred forty-seven thousand two hundred four (147,204) votes in the May 10, 2010
elections and ranked fiftieth (50th).3 The Commission on Elections En Banc sitting
as the National Board of Canvassers initially proclaimed twenty-eight (28) party-list
organizations as winners involving a total of thirty-five (35) seats guaranteed and
additional seats.4 The result was based on the Commission on Elections count of
one hundred twenty-one (121) Certificates of Canvass or a total of twenty-nine

LEONEN, J.:

It is beyond human expectations that we charge voters with knowledge as to which

among the many party-list groups listed in the ballot they are presented with during

77

million seven hundred fifty thousand and forty-one (29,750,041) votes for the PartyList System.5

8 AGRICULTURAL SECTOR ALLIANCE SECTOR OF THE PHILIPPINES, INC.

1

The winning party-list groups were the following:6

9 ALLIANCE FOR BARANGAY CONCERNS PARTY 1

PARTY NUMBER OF SEATS

10 ANAKPAWIS 1

1 COALITION OF ASSOCIATIONS OF SENIOR CITIZENS OF THE

PHILIPPINES, INC. 2

11 KABATAAN PARTYLIST 1

12 ABANTE MINDANAO, INC. 1

2 AKBAYAN! CITIZENS ACTION PARTY 2
13 ACT TEACHERS 1
3 GABRIELA WOMENS PARTY 2
14 YOU AGAINST CORRUPTION AND POVERTY 1
4 COOPERATIVE NATCCO NETWORK PARTY 2
15 KASANGGA SA KAUNLARAN, INC. 1
5 ABONO 2
16 BAGONG HENERASYON 1
6 BAYAN MUNA 2
17 ANG GALING PINOY 1
7 AN WARAY 2
18 AGBIAG! TIMPUYOG ILOCANO, INC. 1

78

19 PUWERSA NG BAYANing ATLETA 1

20 ARTS BUSINESS AND SCIENCE PROFESSIONALS 1

21 TRADE UNION CONGRESS PARTY 1

22 ALYANSA NG MGA GRUPONG HALIGI NG AGHAM AT TEKNOLOHIYA

PARA SA MAMAMAYAN, INC. 1

23 DEMOCRATIC INDEPENDENT WORKERS ASSOCIATION, INC. 1

24 KAPATIRAN NG MGA NAKULONG NA WALANG SALA 1

25 KALINGA-ADVOCACY FOR SOCIAL EMPOWERMENT AND NATION

BUILDING THROUGH EASING POVERTY, INC. 1

Petitioner then filed an election protest before the House of Representatives Electoral
Tribunal questioning the Resolution of the Commission on Elections that proclaimed
the 28 party-list groups listed above.7

Without waiting for the resolution of the House of Representatives Electoral

Tribunal, the petitioner filed the present Petition for Review on Certiorari with
Prayer for Preliminary Injunction and Temporary Restraining Order.8 The petitioner
asks that this Court:

1. modify the Commission on Elections interpretation of the formula stated in

BANAT v. COMELEC9 by making the divisor for the computation of the percentage
votes, from total number of votes cast minus the votes for the disqualified party-list
candidates, to the total number of votes cast regardless whether party-list groups are
disqualified;

2. enjoin the public respondent Commission on Elections from proclaiming the

remaining winning party-list candidates until it modifies the interpretation of the
formula used in BANAT v. COMELEC to the formula proposed by the petitioner;
and

26 ALAGAD PARTY-LIST 1

27 UNA ANG PAMILYA FORMERLY ALLIANCE OF NEO-CONSERVATIVES 1

28 ALLIANCE OF VOLUNTEER EDUCATORS 1

3. issue a Temporary Restraining Order against the public respondent until it

modifies the present formula for computing the number of seats for the winning
party-list candidates to the formula proposed by the petitioner.10This Court did not
issue any Temporary Restraining Order.11By Resolution, the National Board of
Canvassers proclaimed the winning party-list groups with the following
computation:12

TOTAL SEATS 35

79

WHEREAS, as of May 17, 2010, the projected/maximum total party-list votes

cannot go any higher than thirty million two hundred sixty[-]four thousand five
hundred seventy[-]nine (30,264,579)given the following statistical data:

DESCRIPTION REGISTERED VOTERS

Maximum Total Party-List Votes 30,264,579

WHEREAS, since there are twohundred twenty-nine (229) legislative districts, the
total number of party-list seats available for the May 10, 2010 automated national
and local elections is fifty-seven (57) based on the following formula: number of
legislative districts/0.80 x 0.20;

Total party-list votes already canvassed/tabulated 29,750,041

WHEREAS, the provision of Section 11 of Republic Act No. 7941 provides, in part,
that:
Less: Votes garnered by the eight (8) disqualified parties 308,335

Total party-list votes already canvassed/tabulated after deducting votes of the eight
(8) disqualified parties 29,441,706

"(b) 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 [sic] (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 coalitions shall be entitled to not more than three (3)
seats."

Add: Party-list votes still uncanvassed Lanao del Sur 515,488

Local Absentee Voting 19,071

Overseas Absentee Voting 9,299

WHEREAS, applying the formula in the case of Barangay Association for National
Advancement and Transparency (BANAT) v. Commission on Elections, and [sic]
Bayan Muna, Advocacy for Teacher Empowerment, Cooperation and Harmony
Towards Educational Reforms, Inc., and Abono [v.]Commission on Elections, the
ranking of the participating parties, organizations and coalitions from highest to
lowest based on the number of votes garnered as of May 17, 2010, and the seats that
may be obtained by each party to complete the allocation of the available 57 partylist seats, are shown below:13

Due to lowering of threshold 92,740

Precincts reporting Final Testing and Sealing results 186,275

RANK PARTY VOTES GARNERED VOTES GARNERED OVER TOTAL

VOTES FOR PARTY LIST, in %(A) GUARANTEED SEAT First Round (B)
ADDITIONAL SEATS Second Round(C) (B) plus (C), in whole integers (D)

80

1 AKO BICOL POLITICAL PARTY 1,522,986 5.0322% 1 2.26 3

2 COALITION OF ASSOCIATIONS OF SENIOR CITIZENS OF THE

PHILIPPINES, INC. 1,292,182 4.2696% 1 1.92 2

12 ADVOCACY FOR TEACHER EMPOWERMENT THROUGH ACTION

COOPERATION AND HARMONY TOWARDS EDUCATIONAL REFORMS
614,725 2.0312% 1 0.91 1

3 BUHAY HAYAAN YUMABONG 1,249,555 4.1288% 1 1.85 2

13 AGRICULTURAL SECTOR ALLIANCE SECTOR OF THE PHILIPPINES,

INC. 515,501 1.7033% 0 1 1

4 AKBAYAN! CITIZEN'S ACTION PARTY 1,058,6913.4981% 1 1.57 2

14 BUTIL FARMERS PARTY 506,703 1.6742% 0 1 1

5 GABRIELAWOMENS PARTY 1,001,421 3.3089% 11.482

15 ALLIANCE FOR BARANGAY CONCERNS PARTY 469,093 1.5500% 0 1 1

6 COOPERATIVE NATCCO NETWORK PARTY 943,5293.1176% 1 1.40 2

16 ANAKPAWIS 445,628 1.4724% 0 1 1

7 1ST CONSUMERS ALLIANCE FOR RURAL ENERGY 768,829 2.5404% 1

1.142

17 KABATAAN PARTYLIST 417,923 1.3809% 0 1 1

8 ABONO 766,615 2.5330% 1 1.132

9 BAYAN MUNA 746,019 2.4650% 1 1.102

10 AN WARAY 711,631 2.3514% 1 1.05 2

11 CITIZEN'S BATTLE AGAINST CORRUPTION 647,483 2.1394% 1 0.96 1

18 LPG MARKETERS ASSOCIATION, INC. 417,600 1.3798% 0 1 1

19 ABANTE MINDANAO, INC. 376,011 1.2424% 0 1 1

20 ACT TEACHERS 369,564 1.2211% 0 1 1

21 ANG ASOSASYON SANG MANGUNGUMA NGA BISAYA-OWA

MANGUNGUMA, INC. 357,009 1.1796% 0 1 1

81

22 YOU AGAINST CORRUPTION AND POVERTY 335,635 1.1090% 0 1 1

23 ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES 313,359

1.0354% 0 1 1

24 KASANGGA SA KAUNLARAN, INC. 296,368 0.9793% 0 1 1

25 BAGONG HENERASYON 292,875 0.9677% 0 1 1

32 ALYANSA NG MGA GRUPONG HALIGI NG AGHAM AT TEKNOLOHIYA

PARA SA MAMAMAYAN, INC. 241,898 0.7993% 0 1 1

33 DEMOCRATIC INDEPENDENT WORKERS' ASSOCIATION, INC. 238,675

0.7886% 0 1 1

34 KAPATIRAN NG MGA NAKULONG NA WALANG SALA 234,717 0.7756% 0

11

35 KALINGA-ADVOCACY FOR SOCIAL EMPOWERMENT AND NATION

BUILDING THROUGH EASING POVERTY, INC. 229,198 0.7573% 0 1 1

26 ALLIANCE FOR NATIONALISM AND DEMOCRACY 292,057 0.9650% 0 1 1

36 ALAGAD PARTY-LIST 227,116 0.7504% 0 1 1
27 ANG GALING PINOY 269,009 0.8889% 0 1 1
37 1-UNITED TRANSPORT KOALISYON 220,002 0.7269% 0 1 1
28 AGBIAG! TIMBUYOG ILOCANO, INC. 262,298 0.8667% 0 1 1
38 UNA ANG PAMILYA FORMERLY ALLIANCE OF NEO-CONSERVATIVES
217,032 0.7171% 0 1 1
29 PUWERSA NG BAYANING ATLETA 258,498 0.8541% 0 1 1
39 ALLIANCE OF VOLUNTEER EDUCATORS 214,760 0.7096% 0 1
30 ARTS BUSINESS AND SCIENCE PROFESSIONALS 257,301 0.8502% 0 1 1
14 0AANGAT TAYO 176,074 0.5818% 0 1 1
31 TRADE UNION CONGRESS PARTY 244,623 0.8083% 0 1 1
41 ADHIKAING TINATAGUYOD NG KOOPERATIBA 173,711 0.5740% 0 1 1

82

42 ANG LABAN NG INDIGONG FILIPINO 170,304 0.5627% 0 1 1

52 PILIPINO ASSOCIATION FOR COUNTRY-URBAN POOR YOUTH

ADVANCEMENT AND WELFARE 143,151 0.4730% 0 0 0

43 ASSOCIATION OF LABORERS AND EMPLOYEES 167,654 0.5540% 0 1 1

53 ABANTE TRIBUNG MAKABANSA 142,013 0.4692% 0 0 0
44 KASOSYO PRODUCER-CONSUMER EXCHANGE ASSOCIATION, INC.
166,432 0.5499% 0 1 1

45 ALAY BUHAY COMMUNITY DEVELOPMENT FOUNDATION, INC.

163,164 0.5391% 0 1 1

46 AKSYON MAGSASAKA PARTIDO TINIG NG MASA 161,674 0.5342% 0 1 1

47 KATIPUNAN NG MGA ANAK NG BAYAN ALL FILIPINO DEMOCRATIC

MOVEMENT 160,745 0.5311% 0 0 0

54 ANGAT ATING KABUHAYAN PILIPINAS, INC. 141,780 0.4685% 0 0 0

55 PARTIDO NG MANGGAGAWA 140,000 0.4626% 0 0 0

56 ALYANSANG BAYANIHAN NG MGA MAGSASAKA, MANGGAGAWANGBUKID AT MANGINGISDA 137,842 0.4555% 0 0 0

57 ALLIANCE TRANSPORT SECTOR 136,710 0.4517% 0 0 0

48 ANAK MINDANAO 157,733 0.5212% 0 0 0

58 KAUNLARAN NG AGRIKULTURA ASENSADONG PROBINSYA ANGAT

NG BAYAN 130,270 0.4304% 0 0 0

49 VETERANS FREEDOM PARTY 154,183 0.5095% 0 0 0

59 BARANGAY NATIN 126,462 0.4179% 0 0 0

50 ALLIANCE FOR RURAL RECONSTRUCTION, INC. 147,204 0.4864% 0 0 0

60 1-AKO BABAENG ASTIG AASENSO 120,734 0.3989% 0 0 0

51 ATONG PAGLAOM 145,435 0.4805% 0 0 0

61 1GUARDIANS NATIONALIST OF THE PHILIPPINES, INC. 120,727 0.3989%

000

83

62 BABAE PARA SA KAUNLARAN 117,299 0.3876% 0 0 0

63 BAGONG BAYAN NAGTATAGUYOD SA DEMOKRATIKONG

IDEOLOHIYA AT LAYUNIN 115,428 0.3814% 0 0 0

71 BINHI; PARTIDO NG MGA MAGSASAKA PARA SA MGA MAGSASAKA

108,005 0.3569% 0 0 0

72 1-AANI 107,970 0.3568% 0 0 0

73 AKAP BATA, INC. 107,154 0.3541% 0 0 0

64 AHON PINOY 115,197 0.3806% 0 0 0

65 ACTION FOR DYNAMIC DEVELOPMENT, INC. 115,058 0.3802% 0 0 0

66 KATRIBU INDIGINOUS PEOPLES SECTORAL PARTY 114,891 0.3796% 0 0

0

67 ANG LADLAD LBGT PARTY 113,187 0.3740% 0 0 0

68 CONFEDERATION OF NON-STOCK SAVINGS AND LOAN

ASSOCIATIONS, INC. 110,759 0.3660% 0 0 0

74 ANG ASOSASYON NG MGA TRABAHADOR AT PAHINANTE 107,135

0.3540% 0 0 0

75 AGILA NG MGA KATUTUBONG PILIPINO, INC. 105,009 0.3470% 0 0 0

The petitioner suggests that the formula used by the Commission on Elections is
flawed because votes that were spoiled or that were not made for any party-lists were
not counted. According to the petitioner, around seven million (7,000,000) votes
were disregarded as a result of the Commission on Elections erroneous
interpretation. The figure presented by petitioner resulted from the following
computations:14

69 KABALIKAT NG MGA MAMAMAYAN 109,739 0.3626% 0 0 0

37,377,371 (Number of voters who actually voted LESS votes for disqualified party
lists)

70 ONE ADVOCACY FOR HEALTH, PROGRESS AND OPPORTUNITY 109,682

0.3624% 0 0 0

less 30,264,579 (Number of votes for party-list candidates LESS number of votes for
disqualified party-list candidates)

7,112,792 (Total number of disregarded votes according to petitioner ARARO)

84

First, the total number of votes for disqualified party-lists is deducted from the total
number of voters that actually voted. The total number of votes for disqualified
party-list groups is three hundred eight thousand three hundred thirty-five (308,335).
15 The total number of voters that actually voted is thirty-seven million six hundred
eighty-five thousand seven hundred six (37,685,706).16 After subtracting the
amounts, the result is thirty-seven million three hundred seventy-seven thousand
three hundred seventy-one (37,377,371)votes.

Second, the number of votes for disqualified party-list groups is again deducted from
the number of votes for party-list candidates which the petitioner pegged at thirty
million five hundred seventy-two thousand nine hundred fourteen votes
(30,572,914).17 The difference then is thirty million two hundred sixty-four
thousand five hundred seventy-nine (30,264,579) votes.

Lastly, to get the total number of votes disregarded by the Commission on Elections
interpretation, 30,264,579 is subtracted from 37,377,371.The computation then
results to seven million one hundred twelve thousand seven hundred ninety-two
(7,112,792) votes disregarded using the Commission on Elections interpretation.

On the other hand, the formula used by the Commission on Elections En Banc sitting
as the National Board of Canvassers is the following:

Thus, the total number of party-list seats available for the May 2010 elections is 57
as shown below:

229______________________________x .20 =57 .80

The National Board of Canvassers Resolution No. 10-009 applies the formula used
in Barangay Association for National Advancement and Transparency (BANAT) v.
COMELEC18 to arrive at the winning party-list groups and their guaranteed seats,
where:

Number of votes of party-list

______________________________=

Proportion or Percentage of votes garnered by party-list

Total number of votes for party-list candidates

ref - http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2013/december2013/192803.pdf

The Proportion or Percentage of votes garnered by party-list should be greater than

or equal to 2% or 0.02 to entitle a party-list candidate to one (1) seat in the first
round. There will be a second round if the total number of guaranteed seats awarded
in the first round is less than the total number of party-list seats available. Thus:

Number of seats available to legislative

districts______________________________x .20 =Number of seats available to
party-list representatives .80

Total number of party-list seats available - Number of seats allocated in first round x
Proportion or Percentage of votes garnered by party-list = Additional seats awarded

85

If the total seats available for party-lists are not yet awarded after the second round
(this is computed by getting the sum of the seats awarded in the first round and the
additional seats awarded in the second round), the next in the party-list ranking will
be given one (1) seat each until all seats are fully distributed. A three-seat cap per
party-list, however, is imposed on winning groups. Fractional seats are not rounded
off and are disregarded.

The petitioner argues that the Commission on Elections interpretation of the formula
used in BANAT v. COMELEC is flawed because it is not in accordance with the
law.19 The petitioner distinguishes the phrases, valid votes cast for party-list
candidates on the one hand as against votes cast for the party-list system on the other.

(a) 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.

(b) 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.

The petitioner puts in issue the interpretation of Sections 11 and 12 of Republic Act
No.7941 or "An Act Providing for the Election of Party-List Representatives
Through the Party-List System, and Appropriating Funds Therefor." The sections
provide the guidelines in allocating seats to party-list representatives:

Section 12. Procedure in Allocating Seats for Party-List Representatives. The

COMELEC shall tally all the votes for the parties, organizations, or coalitions on a
nationwide basis, rank them according to the number of votes received and allocate
party-list representatives proportionately according to the percentage of votes
obtained by each party, organization, or coalition as against the total nationwide
votes cast for the party-list system.(Emphasis provided)

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.

The petitioner argues that the correct interpretation of the provisions of Republic Act
No. 7941 or the Party-list Law does not distinguish between valid and invalid votes,
to wit:

For purposes of the May 1998 elections, the first five (5) major political parties on
the basis of party representation in the House of Representatives at the start of the
Tenth Congress of the Philippines shall not be entitled to participate in the party-list
system.

Therefore, votes for specific party lists are not the same as votes for the party-list
system. Hence, people whose votes were spoiled for instance (like checking or
failure to properly shade the ovals in the ballots, or voted for two party lists when the
requirement is only one, or had erasures on their ballots for instance), or did not vote
for any party-list at all are still voters for the party-list system. The votes for the
party-list system [include] all those people who voted whether their votes were
counted or not as long as the mechanism for the selection of party-list is in place.20
(Emphasis provided)

In determining the allocation of seats for the second vote, the following procedure
shall be observed:

86

In its November 12, 2010 Comment,21 the Commission on Elections through the
Office of the Solicitor General took the position that invalid or stray votes should not
be counted in determining the divisor. The Commission on Elections argues that this
will contradict Citizens Battle Against Corruption (CIBAC) v. COMELEC22 and
Barangay Association for National Advancement and Transparency (BANAT) v.
COMELEC.23 It asserts that:

Neither can the phrase be construed to include the number of voters who did not
even vote for any qualified party-list candidate, as these voters cannot be considered
to have cast any vote "for the party-list system."24

B. The total votes cast

C. The total number of valid votes cast for the party-list system including votes cast
for party-list groups listed in the ballot even if subsequently declared disqualified.
The divisor should not include votes that are declared spoiled or invalid.

We decide as follows:

I
The issues in this case are as follows:

I. Whether the case is already moot and academic

II. Whether petitioners have legal standing

III. Whether the Commission on Elections committed grave abuse of discretion in its
interpretation of the formula used in BANAT v. COMELEC25 to determine the
party-list groups that would be proclaimed in the 2010 elections

The third issue requires our determination of the computation of the correct divisor
to be used. The options are:

A. All votes cast for the party-list system less the votes cast for subsequently
disqualified party-list groups and votes declared spoiled

This case is moot and academic. Mendoza v. Villas26 defines a moot and academic
case:

A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical
value. As a rule, courts decline jurisdiction over such case, or dismiss it on ground of
mootness.27

Several supervening events have already rendered this case moot and academic.
First, the Commission on Elections En Banc already proclaimed other winning partylist groups.28 Second, the term of office of the winning party-list groups in the May
2010 national elections ended on June 30, 2013. Finally, the conduct of the May 13,
2013 elections resulted in a new set of party-list groups.

We held that the expiration of the challenged term of office renders the
corresponding Petition moot and academic.29 This leaves any ruling on the issues
raised by the petitioner with no practical or useful value.30

87

Votes garnered over total votes cast for party-lists (%) 0.4864 0.3939
However, the following exceptions to the rule of declining jurisdiction over moot
and academic cases are allowed: (1) there was a grave violation of the Constitution;
(2) the case involved a situation of exceptional character and was of paramount
public interest; (3) the issues raised required the formulation of controlling principles
to guide the Bench, the Bar and the public; and (4) the case was capable of repetition
yet evading review.31 On the importance of the assailed formula, this Court will
discuss the issues raised by the petitioner as these are capable of repetition yet
evading review32 and for the guidance of the bench, bar, and public.33

II

The petitioner is not the real party in interest

"A real party in interest is the party who stands to be benefited or injured by the
judgement in the suit, or the party entitled to the avails of the suit."34 The partys
interest must be direct, substantial, and material.35 In this case, the petitioner attacks
the validity of the formula used and upheld in BANAT. It also proposes its own
interpretation of the formula to determine the proportional representation of party-list
candidates in the House of Representatives. However despite any new computation,
ARAROs proposed divisor of total votes cast for the party-list system whether valid
or invalid still fails to secure one seat for ARARO. Reviewing the figures presented
by the petitioner:36

With Divisor of total valid votes cast for party-list system minus votes cast for
disqualified party-lists or invalid votes (30,264,579) With Divisor of votes cast for
the party-list system as proposed by ARARO (37,377,371)

Votes garnered 147,204 147,204

Guaranteed Seat 0 0

This table clearly shows that the petitioner does not suffer a direct, substantial or
material injury from the application of the formula interpreted and used in BANAT
in proclaiming the winning party-lists in the assailed National Board of Canvassers
Resolution. The computation proposed by petitioner ARARO even lowers its
chances to meet the 2% threshold required by law for a guaranteed seat. Its
arguments will neither benefit nor injure the party. Thus, it has no legal standing to
raise the argument in this Court.

III

However, we review the interpretation of the formula used for the determination of
wining party-list candidates with respect to the divisor used for the guidance of
bench and bar and for future elections.

The textual references for determining the formula to be used are found in the
Constitution and the statute interpreting the relevant provisions.

Article VI, Section 5,paragraphs 1 and 2 of the 1987 Constitution provide the
following:

1. The House of Representatives shall be composed of not more than two hundred
and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the

88

basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional, and sectoral
parties or organizations.

2. The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party list. For three consecutive
terms after the ratification of this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided by law, by selection or election
from the labor, peasant, urban poor, indigenous cultural communities, women, youth,
and such other sectors as may be provided by law, except the religious sector.

Sections 11 and 12 of Republic Act No. 7941,thus, provide:

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.

For purposes of the May 1998 elections, the first five (5) major political parties on
the basis of party representation in the House of Representatives at the start of the
Tenth Congress of the Philippines shall not be entitled to participate in the party-list
system.

In determining the allocation of seats for the second vote, the following procedure
shall be observed:

(a) 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.

(b) The parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list systemshall 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.

Section 12. Procedure in Allocating Seats for Party-List Representatives. The

COMELEC shall tally all the votes for the parties, organizations, or coalitions on a
nationwide basis, rank them according to the number of votes received and allocate
party-list representatives proportionately according to the percentage of votes
obtained by each party, organization, or coalition as against the total nationwide
votes cast for the party-list system.(Emphasis provided)

In Veterans Federation Party v. Commission on Elections,37 we reversed the

Commission on Elections ruling that the respondent parties, coalitions, and
organizations were each entitled to a party-list seat despite their failure to reach the
2% threshold in the 1998 party-list election. Veterans also stated that the 20%
requirement in the Constitution is merely a ceiling.

Veterans laid down the "four inviolable parameters" in determining the winners in a
Philippine-style party-list election based on a reading of the Constitution and
Republic Act No. 7941:

First, the twenty percent allocation-the combined number of all party-list

congressmen shall not exceed twenty percent of the total membership of the House
of Representatives, including those elected under the party list.

Second, the two percent threshold-only those parties garnering a minimum of two
percent of the total valid votes cast for the party-list system are "qualified" to have a
seat in the House of Representatives.

89

Third, the three-seat limit-each qualified party, regardless of the number of votes it
actually obtained, is entitled to a maximum of three seats; that is, one "qualifying"
and two additional seats.

Fourth, proportional representation-the additional seats which a qualified party is

entitled to shall be computed "in proportion to their total number of votes."38
(Emphasis provided)

In Partido ng Manggagawa (PM) and Butil Farmers Party (Butil) v. COMELEC,39

the petitioning party-list groups sought the immediate proclamation by the
Commission on Elections of their respective second nominee, claiming that they
were entitled to one (1) additional seat each in the House of Representatives. We held
that the correct formula to be used is the one used in Veterans and reiterated it in Ang
Bagong Bayani OFW Labor Party v. COMELEC.40 This Court in CIBAC v.
COMELEC41 differentiates the formula used in Ang Bagong Bayani but upholds the
validity of the Veterans formula.

In BANAT v. COMELEC,42 we declared the 2% threshold in relation to the

distribution of the additional seats as void. We said in that case that:

x x x 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." (Republic Act No. 7941, Section 2)

xxxx

x x x There are two steps in the second round of seat allocation. First, 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. Second, we 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 threeseat cap to determine the number of seats each qualified party-list candidate is
entitled.43

The most recent Atong Paglaum v. COMELEC44 does not in any way modify the
formula set in Veterans. It only corrects the definition of valid party-list groups. We
affirmed that party-list groups maybe national, regional, and sectoral parties or
organizations. We abandoned the requirement introduced in Ang Bagong Bayani that
all party-list groups should prove that they represent a "marginalized" or "underrepresented" sector.

Proportional representation is provided in Section 2 of Republic Act No. 7941.45

BANAT overturned Veterans interpretation of the phrase in proportion to their total
number of votes. We clarified that the interpretation that only those that obtained at
least 2% of the votes may get additional seats will not result in proportional
representation because it will make it impossible for the party-list seats to be filled
completely. As demonstrated in BANAT, the 20% share may never be filled if the 2%
threshold is maintained.

The divisor, thus, helps to determine the correct percentage of representation of

party-list groups as intended by the law. This is part of the index of proportionality of
the representation of a party-list to the House of Representatives.46 It measures the
relation between the share of the total seats and the share of the total votes of the
party-list.47 In Veterans, where the 20% requirement in the Constitution was treated

90

only as a ceiling, the mandate for proportional representation was not achieved, and
thus, was held void by this Court.

The petitioner now argues that the votes of all the registered voters who actually
voted in the May 2010 elections should be included in the computation of the divisor
whether valid or invalid.48 According to the petitioner, votes cast for the party-list
candidates is not the same as the votes cast under or for the party-list system.
Specifically, it said that: The party list system is not just for the specific party lists as
provided in the ballot, but pertains to the system of selection of the party list to be
part of the House of Representatives.49 The petitioner claims that there should be no
distinction in law between valid and invalid votes. Invalid votes include those votes
that were made for disqualified party-list groups, votes that were spoiled due to
improper shading, erasures in the ballots, and even those that did not vote for any
party-list candidate at all.50 All of the votes should be included in the divisor to
determine the 2% threshold.

We agree with the petitioner but only to the extent that votes later on determined to
be invalid due to no cause attributable to the voter should not be excluded in the
divisor. In other words, votes cast validly for a party-list group listed in the ballot but
later on disqualified should be counted as part of the divisor. To do otherwise would
be to disenfranchise the voters who voted on the basis of good faith that that ballot
contained all the qualified candidates. However, following this rationale, party-list
groups listed in the ballot but whose disqualification attained finality prior to the
elections and whose disqualification was reasonably made known by the
Commission on Elections to the voters prior to such elections should not be included
in the divisor.

Not all votes cast in the elections should be included in the divisor. Contrary to the
argument of the petitioner, Section 11(b) of Republic Act No. 7941 is clear that only
those votes cast for the party-list system shall be considered in the computation of
the percentage of representation:

(b) The parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list systemshall 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. (Emphasisprovided)

The total votes cast do not include invalid votes. The invalid votes, for the
determination of the denominator, may be votes that were spoiled or votes that
resulted from the following: improper shading or having no shade at all;51 existence
of stray or ambiguous marks;52 tears in the ballot; and/or ballots rejected by the
Precinct Count Optical Scan (PCOS) machines under the paper-based53automated
election system. All these are causes that nullify the count for that vote that can be
attributable to the voters action.

Votes cast for the party-list system should, however, include all votes cast for partylist groups contained in the ballot even if subsequently they are disqualified by the
Commission on Elections or by our courts. Thus, the content of the divisor in the
formula to determine the seat allocation for the party-list component of the House of
Representatives should be amended accordingly.

We qualify that the divisor to be used in interpreting the formula used in BANAT is
the total votes cast for the party-list system. This should not include the invalid votes.
However, so as not to disenfranchise a substantial portion of the electorate, total
votes cast for the party-list system should mean all the votes validly cast for all the
candidates listed in the ballot. The voter relies on the ballot when making his or her
choices.

To the voter, the listing of candidates in the official ballot represents the extent of his
or her choices for an electoral exercise. He or she is entitled to the expectation that
these names have properly been vetted by the Commission on Elections. Therefore,
he or she is also by right entitled to the expectation that his or her choice based on
the listed names in the ballot will be counted.

91

In Reyes v.COMELEC54 as cited in Loreto v. Brion,55 this Court said "that the
votes cast for the disqualified candidate are presumed to have been cast in the belief
that he is qualified."56 Therefore, the votes cast for disqualified candidates are
presumed to be made with a sincere belief that the voters choices were qualified
candidates and that they were without any intention to misapply their franchise.57
Their votes may not be treated as stray, void or meaningless58for purposes of the
divisor in the party-list elections. Assuming arguendo that petitions for certiorari do
not stay the execution of the judgment or final order or resolution sought to be
reviewed,59 the finality of the disqualification of a candidate should not be a means
for the disenfranchisement of the votes cast for the party-list system.

Section 10 of the Party-list Law should thus be read in conjunction with the intention
of the law as seen in Section 2, to wit:

Sec. 2. Declaration of Policy. -The State shall promote proportional representation in

the election of representatives to the House of Representatives through a party-list
system of registered national, regional and sectoral parties or organizations or
coalitions thereof, which will enable Filipino citizens belonging to the marginalized
and underrepresented sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to become members of
the House of Representatives. Towards this end, the State shall develop and
guarantee a full, free and open party system in order to attain the broadest possible
representation of party, sectoral or group interests in the House of Representatives by
enhancing their chances to compete for and win seats in the legislature, and shall
provide the simplest scheme possible. (Emphasis provided)

Section 10 of Republic Act No. 7941, which governs party-list elections, states that
votes cast for a party-list "not entitled to be voted for shall not be counted." It does
not specify any reckoning period of the finding of disqualification or cancellation of
registration for the validity or the invalidity of votes unlike that in Section 72 of the
Omnibus Election Code, as amended by Section 6, Republic Act No. 6646.60 Taking

Sections 2 and 10 together, this Court must consider the intention of the law and the
nature of Philippine style party-list elections. Party-list groups provide for a different
and special representation in Congress. To disregard votes of party-list groups
disqualified after the conduct of the elections means the disenfranchisement of
thousands, if not hundreds of thousands of votes, of the Filipino people. Definitely, it
is not the voters fault that the party-list group in the ballot it votes for will be
subsequently disqualified. The voter should not be penalized.

The counting of votes for party-list groups in the ballot but subsequently declared as
disqualified is, thus, corollary to the "fundamental tenet of representative democracy
that the people should be allowed to choose whom they please to govern them."61 It
is also part of the right of suffrage, and the laws intention to ensure a more
representative Congress should be given priority.

Therefore, the divisor should now include all votes cast for party-list groups that are
subsequently disqualified for so long as they were presented as a choice to the
electorate.

If his or her vote is not counted as part of the divisor, then this would amount to a
disenfranchisement of a basic constitutional right to be able to choose representatives
of the House of Representatives in two ways. First, his or her vote will be nullified.
Second, he or she will be deprived of choosing another party-list group to represent
his or her interest should the party listed in the ballot be declared disqualified.

However, there are instances when the Commission on Elections include the name of
the party-list group in the ballot but such group is disqualified with finality prior to
the elections. In applying and interpreting the provisions of Section 6 of Republic
Act No. 6646,we said in Cayat v. Commission on Elections62 that votes cast in favor
of a candidate "disqualified with finality" should be considered stray and not be
counted. To be consistent, the party-list group in the ballot that has been disqualified
with finality and whose final disqualification was made known to the electorate by
the Commission on Elections should also not be included in the divisor. This is to

92

accord weight to the disqualification as well as accord respect to the inherent right of
suffrage of the voters.

1. The prayer to enjoin the Commission on Elections from proclaiming the qualified
party-list groups is denied for being moot and academic;

Thus, the formula to determine the proportion garnered by the party-list group would
now henceforth be:

2. The formula in determining the winning party-list groups, as used and interpreted
in the case of BANAT v. COMELEC, is MODIFIED as follows:

Number of votes of party-list ______________________________ = Proportion or

Percentage of votes garnered by party-list Total number of valid votes for party-list
candidates

Number of votes. of party-list Total number of valid votes for party-list candidates
Proportion or Percentage of votes garnered by party-list

The total votes cast for the party-list system include those votes made for party-list
groups indicated in the ballot regardless of the pendency of their motions for
reconsideration or petitions before any tribunal in relation to their cancellation or
disqualification cases. However, votes made for those party-list groups whose
disqualification attained finality prior to the elections should be excluded if the
electorate is notified of the finality of their disqualification by the Commission on
Elections. The divisor also shall not include invalid votes.

WHEREFORE from the above discussion:

The divisor shall be the total number of valid votes cast for the party-list system
including votes cast for party-list groups whose names are in the ballot but are
subsequently disqualified. Party-list groups listed in the ballot but whose
disqualification attained finality prior to the elections and whose disqualification was
reasonably made known by the Commission on Elections to the voters prior to such
elections should not be included in the divisor. The divisor shall also not include
votes that are declared spoiled or invalid.

The refined formula shall apply prospectively to succeeding party-list elections from
the date of finality of this case.

SO ORDERED.
G.R. No. 204486
x-----------------------x
1st KABALIKAT NG BAYAN GINHAWANG SANGKATAUHAN (1st
KABAGIS), Petitioner,

G.R. No. 204490

vs.
COMMISSION ON ELECTIONS, Respondent.

93

PILIPINAS PARA SA PINOY (PPP), Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

The Facts Pursuant to the provisions of Republic Act No. 7941 (R.A. No. 7941) and
COMELEC Resolution Nos. 9366 and 9531, approximately 280 groups and
organizations registered and manifested their desire to participate in the 13 May 2013
party-list elections.
G.R. No.

PERLAS-BERNABE,*

SPP No.

Group

Grounds for Denial

A. Via the COMELEC En Bancs automatic review of the COMELEC

Divisions resolutions approving registration of groups/organizations

DECISION

Resolution dated 23 November 20128

1

CARPIO, J.:

204379 12-099

(PLM) Alagad ng
Sining (ASIN)

The Cases

- The "artists" sector is not

considered marginalized and

underrepresented;

These cases constitute 54 Petitions for Certiorari and Petitions for Certiorari and
Prohibition1 filed by 52 party-list groups and organizations assailing the Resolutions
issued by the Commission on Elections (COMELEC) disqualifying them from
participating in the 13 May 2013 party-list elections, either by denial of their
petitions for registration under the party-list system, or cancellation of their
registration and accreditation as party-list organizations.

- Failure to prove track

record; and
- Failure of the nominees to
qualify under RA 7941 and
Ang Bagong Bayani.

This Court resolved to consolidate the 54 petitions in the Resolutions dated 13

November 2012,2 20 November 2012,3 27 November 2012,4 4 December 2012,5 11
December 2012,6 and 19 February 2013.7

Omnibus Resolution dated 27 November 20129

2

204455 12-041

(PLM) Manila Teachers

Savings and
Loan

94

Association, Inc.

Advocating

(Manila

Autonomy Party

Teachers)

- A non-stock savings and

(1AAAP)

- Failure of the nominees to

loan association cannot be

qualify: although registering

considered marginalized and

as a regional political party,

underrepresented; and

two of the nominees are not

- The first and second

residents of the region; and

nominees are not teachers by

four of the five nominees do

profession.

not belong to the

marginalized and underrepresented.

204426 12-011

(PLM) Association of

Resolution dated 27 November 201211

Local Athletics

Entrepreneurs

Kalusugan

and Hobbyists,

(AKIN), Inc.

Inc. (ALA-EH)

- Failure to show that its

204367 12-104 (PL)

Akbay

- Failure of the group to show

that its nominees belong to

members belong to the

the urban poor sector.

marginalized; and

Resolution dated 29 November 201212

- Failure of the nominees to

qualify.

(AAB) - Failure to represent a

Resolution dated 27 November 201210

marginalized sector of

society, despite the formation

204435 12-057

(PLM) 1 Alliance

204370 12-011 (PP)

Ako An Bisaya

of a sectoral wing for the

95

benefit of farmers of Region

five nominees.

8;

Resolution dated 4 December 201214

- Constituency has district

representatives;

Organizations,

- Lack of track record in

Networks and Associations of

representing peasants and

the Philippines,

farmers; and

Inc. (ALONA)

- Nominees are neither

group can represent 14

farmers nor peasants.

sectors; - The sectors of homeowners

Resolution dated 4 December 201213

associations, entrepreneurs

and cooperatives are not

204436 12-009 (PP),

204485 12-175 (PL)

- Failure to establish that the

12-165

marginalized and

(PLM) Abyan Ilonggo

underrepresented; and

Party (AI)

- The nominees do not belong

- Failure to show that the

Alliance of

party represents a

to the marginalized and

marginalized and

underrepresented.

underrepresented sector, as

B. Via the COMELEC En Bancs review on motion for reconsideration

the Province of Iloilo has

of the COMELEC Divisions resolutions denying registration of groups

district representatives;

and organizations

- Untruthful statements in the

Resolution dated 7 November 201215

memorandum; and

- Withdrawal of three of its

Mamamahayag

204139 12-127 (PL)

Alab ng

96

(ALAM)

- Failure to prove track

sectors with conflicting

record as an organization;

interests; and

- Failure to show that the

- The nominees do not belong

group actually represents the

to the sector which the group

marginalized and

claims to represent.

underrepresented; and

Resolution dated 14 November 201217

- Failure to establish that the

11

group can represent all

Guard, Utility

sectors it seeks to represent.

Helper, Aider,

Resolution dated 7 November 201216

Rider, Driver/

10

Domestic

204402 12-061 (PP)

Kalikasan Party-List

204394 12-145 (PL)

(KALIKASAN) - The group reflects an

Helper,

advocacy for the

Janitor, Agent

environment, and is not

and

representative of the

Nanny of the

marginalized and

Philippines, Inc.

underrepresented;

(GUARDJAN)

- There is no proof that

membership base and track

majority of its members

record;

belong to the marginalized

- Failure to present activities

and underrepresented;

that sufficiently benefited its

- The group represents

intended constituency; and

Association of

- Failure to prove

97

- The nominees do not belong

to any of the sectors which
the group seeks to represent.
Resolution dated 5 December 201218
12

204490 12-073

(PLM) Pilipinas Para sa

Pinoy (PPP)

- Failure to show that the

group represents a
marginalized and

its track record as an organization that seeks to uplift the lives of the "marginalized
and underrepresented."20
These 13 petitioners (ASIN, Manila Teachers, ALA-EH, 1AAAP, AKIN, AAB, AI,
ALONA, ALAM, KALIKASAN, GUARDJAN, PPP, and PBB) were not able to
secure a mandatory injunction from this Court. The COMELEC, on 7 January 2013
issued Resolution No. 9604,21 and excluded the names of these 13 petitioners in the
printing of the official ballot for the 13 May 2013 party-list elections.
Pursuant to paragraph 222 of Resolution No. 9513, the COMELEC En Banc
scheduled summary evidentiary hearings to determine whether the groups and
organizations that filed manifestations of intent to participate in the 13 May 2013
party-list elections have continually complied with the requirements of R.A. No.
7941 and Ang Bagong Bayani-OFW Labor Party v. COMELEC23 (Ang Bagong
Bayani). The COMELEC disqualified the following groups and organizations from
participating in the 13 May 2013 party-list elections:

underrepresented sector, as
Region 12 has district
representatives; and
- Failure to show a track
record of undertaking
programs for the welfare of
the sector the group seeks to
represent.

G.R. No.

SPP No.

Group

Grounds for Denial

Resolution dated 10 October 201224

1

203818-19

12-154

(PLM)
12-177
(PLM) AKO Bicol
Political Party
(AKB) Retained registration and
accreditation as a political

In a Resolution dated 5 December 2012,19 the COMELEC En Banc affirmed the

COMELEC Second Divisions resolution to grant Partido ng Bayan ng Bidas (PBB)
registration and accreditation as a political party in the National Capital Region.
However, PBB was denied participation in the 13 May 2013 party-list elections
because PBB does not represent any "marginalized and underrepresented" sector;
PBB failed to apply for registration as a party-list group; and PBB failed to establish

party, but denied participation

in the May 2013 party-list
elections
- Failure to represent any

98

marginalized and

(PLM) Association for

underrepresented sector;

Righteousness

- The Bicol region already

Advocacy on

has representatives in

Leadership

Congress; and

(ARAL)

- The nominees are not

accreditation

marginalized and

- Failure to comply, and for

underrepresented.

violation of election laws;

Omnibus Resolution dated 11 October 201225

- The nominees do not

represent the sectors which

203766 12-161

Cancelled registration and

(PLM) Atong Paglaum,

the party represents; and

Inc. (Atong

- There is doubt that the party

Paglaum)

Cancelled registration and

is organized for religious

accreditation

purposes.

- The nominees do not belong

to the sectors which the party

(PLM) Alliance for

represents; and

Rural Concerns

- The party failed to file its

(ARC) Cancelled registration and

Statement of Contributions

accreditation

and Expenditures for the

- Failure of the nominees to

2010 Elections.

qualify; and

- Failure of the party to prove

203981 12-187

204002 12-188

99

that majority of its members

belong to the sectors it seeks

(PLM) 1-Bro Philippine

to represent.

Guardians

Brotherhood,

204318 12-220

204100 12-196

(PLM) United

Inc. (1BRO-PGBI)

Movement

- Failure to define the sector

Against Drugs

it seeks to represent; and

Foundation

- The nominees do not belong

(UNIMAD)

Cancelled registration and

Cancelled registration

to a marginalized and

accreditation

underrepresented sector.

- The sectors of drug

counsellors and lecturers,

(PLM) 1 Guardians

veterans and the youth, are

Nationalist

not marginalized and

Philippines, Inc.

underrepresented;

(1GANAP/

- Failure to establish track

GUARDIANS) Cancelled registration

record; and

- The party is a military

- Failure of the nominees to

fraternity;

qualify as representatives of

- The sector of community

the youth and young urban

volunteer workers is too

professionals.

broad to allow for meaningful

Omnibus Resolution dated 16 October 201226

representation; and

204122 12-223

100

- The nominees do not appear

Resolution dated 16 October 201227

to belong to the sector of

community volunteer

(PLM) 1st

workers.

Consumers

20426

12-257

203960 12-260

Alliance for

(PLM) Blessed

Rural Energy,

Federation of

Inc. (1-CARE)

Farmers and

- The sector of rural energy

Fishermen

consumers is not

International,

marginalized and

Inc. (A

underrepresented;

BLESSED

- The partys track record is

Party-List)

Cancelled registration

Cancelled registration

related to electric

- Three of the seven

cooperatives and not rural

nominees do not belong to

energy consumers; and

the sector of farmers and

- The nominees do not belong

fishermen, the sector sought

to the sector of rural energy

to be represented; and

consumers.

- None of the nominees are

Resolution dated 16 October 201228

registered voters of Region

10

XI, the region sought to be

(PLM) Association of

represented.

Philippine

203922 12-201

101

Electric

youth, urban poor); and

Cooperatives

- The nominees do not belong

(APEC) Cancelled registration and

to the marginalized sectors

accreditation

that the party seeks to

- Failure to represent a

represent.

marginalized and

Omnibus Resolution dated 24 October 201230

underrepresented sector; and

12

- The nominees do not belong

(PLM) Alliance for

to the sector that the party

Rural and

claims to represent.

Agrarian

Resolution dated 23 October 201229

Reconstruction,

11

Inc. (ARARO)

204174 12-232

203976 12-288

Cancelled registration and

(PLM) Aangat Tayo

accreditation

Party-List Party

- The interests of the peasant

( AT )

and urban poor sectors that

Cancelled registration and

accreditation

the party represents differ;

- The incumbent

- The nominees do not belong

representative in Congress

to the sectors that the party

failed to author or sponsor

seeks to represent;

bills that are beneficial to the

- Failure to show that three of

sectors that the party

the nominees are bona fide

represents (women, elderly,

party members; and

102

- Lack of a Board resolution

activities for its constituency.

to participate in the party-list

14

elections.

(PLM) Aksyon

Omnibus Resolution dated 24 October 201231

Magsasaka-Partido Tinig ng

13

Masa (AKMA-PTM)

204240 12-279

203936 12-248

Cancelled registration

(PLM) Agri-Agra na

- Failure to show that

Reporma Para sa

majority of its members are

Magsasaka ng

marginalized and

Pilipinas

underrepresented;

Movement

- Failure to prove that four of

(AGRI) Cancelled registration

its nine nominees actually

- The party ceased to exist for

belong to the farmers sector;

more than a year immediately

and

after the May 2010 elections;

- Failure to show that five of

- The nominees do not belong

its nine nominees work on

to the sector of peasants and

uplifting the lives of the

farmers that the party seeks to

members of the sector.

represent;

15

- Only four nominees were

(PLM) Kaagapay ng

submitted to the COMELEC;

Nagkakaisang

and

Agilang

- Failure to show meaningful

Pilipinong

204126 12-263

103

Magsasaka

Kaunlaran

(KAP) Cancelled registration

(AKO-BAHAY) Cancelled registration

- The Manifestation of Intent

- Failure to show that

and Certificate of Nomination

nominees actually belong to

were not signed by an

the sector, or that they have

appropriate officer of the

undertaken meaningful

party;

activities for the sector.

- Failure to show track record

17

for the farmers and peasants

(PLM) The True

sector; and

Marcos Loyalist

- Failure to show that

(for God,

nominees actually belong to

Country and

the sector, or that they have

People)

undertaken meaningful

Association of

activities for the sector.

the Philippines,

16

Inc. (BANTAY) Cancelled registration

204364 12-180

204141 12-229

(PLM) Adhikain at

- Failure to show that

Kilusan ng

majority of its members are

Ordinaryong

marginalized and

Tao Para sa

underrepresented; and

Lupa, Pabahay,

- Failure to prove that two of

Hanapbuhay at

its nominees actually belong

104

to the marginalized and

members of the urban poor

underrepresented.

sector.

18

19

204408 12-217

204153 12-277

(PLM) Pilipino

(PLM) Pasang Masda

Association for

Nationwide

Country Urban

Party (PASANG

Poor Youth

MASDA)

Advancement

- The party represents drivers

and Welfare

and operators, who may have

( PA C YAW )

Cancelled registration

Cancelled registration

conflicting interests; and

- Change of sector (from

- Nominees are either

urban poor youth to urban

operators or former operators.

poor) necessitates a new

20

application;

(PLM) Kapatiran ng

- Failure to show track record

mga Nakulong

for the marginalized and

na Walang Sala,

underrepresented;

Inc. (KAKUSA) Cancelled registration

- Failure to prove that

- Failure to prove that

majority of its members and

na Walang Sala,

officers are from the urban

Inc. (KAKUSA)

poor sector; and

majority of its officers and

- The nominees are not

members belong to the

203958 12-015

105

marginalized and

- Failure to attend the

underrepresented;

summary hearing;

- The incumbent

- Failure to show track record

representative in Congress

for the marginalized and

failed to author or sponsor

underrepresented; and

bills that are beneficial to the

- The nominees did not

sector that the party

appear to be marginalized and

represents (persons

underrepresented.

imprisoned without proof of

Resolution dated 7 November 201233

guilt beyond reasonable

22

doubt);

(PLM) Alliance for

- Failure to show track record

Nationalism and

for the marginalized and

Democracy

underrepresented; and

(ANAD)

- The nominees did not

accreditation

appear to be marginalized and

- Failure to represent an

underrepresented.

identifiable marginalized and

Resolution dated 30 October 201232

underrepresented sector;

21

- Only three nominees were

204428 12-256

204094 12-185

Cancelled registration and

(PLM) Ang Galing

submitted to the COMELEC;

Pinoy (AG)

- The nominees do not

accreditation

Cancelled registration and

belong to the marginalized

106

and underrepresented; and

24

- Failure to submit its

(PLM) Firm 24-K

Statement of Contribution

Association, Inc.

and Expenditures for the

(FIRM 24-K)

2007 Elections.

accreditation

Omnibus Resolution dated 7 November 201234

- The nominees do not

23

belong to the sector that the

204239 12-060

204236 12-254

Cancelled registration and

(PLM) Green Force for

party seeks to represent

the Environment

(urban poor and peasants of

Sons and

the National Capital Region);

Daughters of

- Only two of its nominees

Mother Earth

reside in the National Capital

(GREENFORCE)

Cancelled registration and

Region; and

accreditation

- Failure to comply with the

- The party is an advocacy

track record requirement.

group and does not represent

25

the marginalized and

(PLM) Action League

underrepresented;

of Indigenous

- Failure to comply with the

Masses (ALIM) Cancelled registration and

track record requirement; and

accreditation

- The nominees are not

- Failure to establish that its

marginalized citizens.

nominees are members of the

204341 12-269

107

indigenous people in the

which may not be allowed

Mindanao and Cordilleras

registration under the party-list system; and

sector that the party seeks to

- Failure to establish that the

represent;

nominees actually belong to

- Only two of the partys

the sector.

nominees reside in the

Resolution dated 7 November 201236

Mindanao and Cordilleras;

27

and

(PLM) Social

- Three of the nominees do

Movement for

not appear to belong to the

Active Reform

marginalized.

and

Resolution dated 7 November 201235

Transparency

26

(SMART)

204358 12-204

204359 12-272

Cancelled registration

(PLM) Alliance of

- The nominees are

Advocates in

disqualified from

Mining

representing the sectors that

Advancement

the party represents;

for National

- Failure to comply with the

Progress

track record requirement; and

(AAMA)

Cancelled registration

- There is doubt as to whether

- The sector it represents is a

majority of its members are

specifically defined group

marginalized and

108

underrepresented.

marginalized and

Resolution dated 7 November 201237

underrepresented sector of

28

professionals; and

204238 12-173

(PLM) Alliance of

- One nominee was declared

Bicolnon Party

unqualified to represent the

(ABP) Cancelled registration and

sector of professionals.

accreditation

Resolution dated 7 November 201239

- Defective registration and

30

accreditation dating back to

(PLM) Ang Agrikultura

2010;

Natin Isulong

- Failure to represent any

(AANI) Cancelled registration and

sector; and

accreditation

- Failure to establish that the

- Failure to establish a track

nominees are employed in the construction industry, the

record of enhancing the lives

sector it claims to represent.

of the marginalized and

Resolution dated 7 November 201238

underrepresented farmers

29

which it claims to represent;

204323 12-210

204321 12-252

(PLM) Bayani Party

and

List (BAYANI)

- More than a majority of the

Cancelled registration and

accreditation

partys nominees do not

- Failure to prove a track

belong to the farmers sector.

record of trying to uplift the

Resolution dated 7 November 201240

109

31

204125 12-292

(COCOFED)

Cancelled registration and

(PLM) Agapay ng

accreditation

Indigenous

- The party is affiliated with

Peoples Rights

private and government

Alliance, Inc.

agencies and is not

(A-IPRA)

Cancelled registration and

marginalized;

accreditation

- The party is assisted by the

- Failure to prove that its five

government in various

nominees are members of the

projects; and

indigenous people sector;

- The nominees are not

- Failure to prove that its five

members of the marginalized

nominees actively

sector of coconut farmers and

participated in the

producers.

undertakings of the party; and

Resolution dated 7 November 201242

- Failure to prove that its five nominees are bona fide

33

members.

(PLM) Abang Lingkod

Resolution dated 7 November 201241

Party-List

32

(ABANG

204216 12-202

204220 12-238

(PLM) Philippine

LINGKOD)

Cancelled registration

Coconut

- Failure to establish a track

Producers

record of continuously

Federation, Inc.

representing the peasant

110

farmers sector;

- Failure to show a complete

- Failure to show that its

track record of its activities

members actually belong to

since its registration; and

the peasant farmers sector;

- The nominees are not part

and

of any of the sectors which

- Failure to show that its

the party seeks to represent.

nominees are marginalized

Resolution dated 28 November 201244

and underrepresented, have

35

actively participated in

(PLM) Binhi-Partido ng

programs for the

mga Magsasaka

advancement of farmers, and

Para sa mga

adhere to its advocacies.

Magsasaka

Resolution dated 14 November 201243

(BINHI)

34

accreditation

204158 12-158

204374 12-228

Cancelled registration and

(PLM) Action

- The party receives

Brotherhood for Active

assistance from the

Dreamers, Inc.

government through the

(ABROAD)

Cancelled registration and

Department of Agriculture;

accreditation - Failure to show that the

and

party is actually able to

- Failure to prove that the

represent all of the sectors it

group is marginalized and

claims to represent;

underrepresented.

111

Resolution dated 28 November 201245

(1st

36

KABAGIS)

204356 12-136

Cancelled registration and

(PLM) Butil Farmers

accreditation

Party (BUTIL)

- Declaration of untruthful

Cancelled registration and

accreditation

statements;

- Failure to establish that the

- Failure to exist for at least

agriculture and cooperative

one year; and

sectors are marginalized and

- None of its nominees

underrepresented; and

belong to the labor,

- The partys nominees

fisherfolk, and urban poor

neither appear to belong to

indigenous cultural

the sectors they seek to

communities sectors which it

represent, nor to have

seeks to represent.

actively participated in the

Resolution dated 4 December 201247

undertakings of the party.

38

Resolution dated 3 December 201246

(PLM) 1-United

37

Transport

204486 12-194

204410 12-198

(PLM) 1st

Koalisyon (1-UTAK)

Cancelled accreditation

Kabalikat ng

- The party represents drivers

Bayan

and operators, who may have

Ginhawang

conflicting interests; and

Sangkatauhan

- The partys nominees do not

112

belong to any marginalized

and underrepresented sector.
Resolution dated 4 December 201248
39

204421,

204425 12-157

Petitioners prayed for the issuance of a temporary restraining order and/or writ of
preliminary injunction. This Court issued Status Quo Ante Orders in all petitions.
This Decision governs only the 54 consolidated petitions that were granted Status
Quo Ante Orders, namely:
G.R. No.

(PLM),

SPP No.

Group

Resolution dated 13 November 2012

12-191

203818-19

(PLM) Coalition of
Senior Citizens

12-154

(PLM)
12-177

in the

(PLM) AKO Bicol Political Party (AKB)

Philippines, Inc.

203981 12-187

(SENIOR
CITIZENS)

include the names of these 39 petitioners in the printing of the official ballot for the
13 May 2013 party-list elections.

(PLM) Association for Righteousness Advocacy on

Cancelled registration

- The party violated election

laws because its nominees
had a term-sharing
agreement.

Leadership (ARAL)
204002 12-188
(PLM) Alliance for Rural Concerns (ARC)
203922 12-201
(PLM) Association of Philippine Electric Cooperatives
(APEC)

These 39 petitioners (AKB, Atong Paglaum, ARAL, ARC, UNIMAD, 1BRO-PGBI,

1GANAP/GUARDIANS, A BLESSED Party-List, 1-CARE, APEC, AT, ARARO,
AGRI, AKMA-PTM, KAP, AKO-BAHAY, BANTAY, PACYAW, PASANG
MASDA, KAKUSA, AG, ANAD, GREENFORCE, FIRM 24-K, ALIM, AAMA,
SMART, ABP, BAYANI, AANI, A-IPRA, COCOFED, ABANG LINGKOD,
ABROAD, BINHI, BUTIL, 1st KABAGIS, 1-UTAK, SENIOR CITIZENS) were
able to secure a mandatory injunction from this Court, directing the COMELEC to

203960 12-260
(PLM) 1st
Consumers Alliance for Rural Energy, Inc.
(1-CARE)

113

203936 12-248

and People) Association of the Philippines, Inc.

(PLM) Aksyon Magsasaka-Partido Tinig ng Masa

(BANTAY)

(AKMA-PTM)

204240 12-279

203958 12-015

(PLM) Agri-Agra na Reporma Para sa Magsasaka ng

(PLM) Kapatiran ng mga Nakulong na Walang Sala,

Pilipinas Movement (AGRI)

Inc. (KAKUSA)

204216 12-202

203976 12-288

(PLM) Philippine Coconut Producers Federation, Inc.

(PLM) Alliance for Rural and Agrarian Reconstruction,

(COCOFED)

Inc. (ARARO)

204158 12-158

Resolution dated 20 November 2012

(PLM) Action Brotherhood for Active Dreamer, Inc.

204094 12-185

(ABROAD)

(PLM) Alliance for Nationalism and Democracy

Resolutions dated 4 December 2012

(ANAD)

204122 12-223

204125 12-292

(PLM) 1 Guardians Nationalist Philippines, Inc.

(PLM) Agapay ng Indigenous Peoples Rights Alliance,

(1GANAP/GUARDIANS)

Inc. (A-IPRA)

203766 12-161

204100 12-196

(PLM) Atong Paglaum, Inc. (Atong Paglaum)

(PLM) 1-Bro Philippine Guardians Brotherhood, Inc.

204318 12-220

(1BRO-PGBI)

(PLM) United Movement Against Drugs Foundation

Resolution dated 27 November 2012

(UNIMAD)

204141 12-229

204263 12-257

(PLM) The True Marcos Loyalist (for God, Country

(PLM) Blessed Federation of Farmers and Fishermen

114

International, Inc. (A BLESSED Party-List)

(PLM) Ang Agrikultura Natin Isulong (AANI)

204174 12-232

204323 12-210

(PLM) Aangat Tayo Party-List Party (AT)

(PLM) Bayani Party List (BAYANI)

204126 12-263

204341 12-269

(PLM) Kaagapay ng Nagkakaisang Agilang Pilipinong

(PLM) Action League of Indigenous Masses (ALIM)

Magsasaka (KAP)

204358 12-204

204364 12-180

(PLM) Alliance of Advocates in Mining Advancement

(PLM) Adhikain at Kilusan ng Ordinaryong Tao Para sa

for National Progress (AAMA)

Lupa, Pabahay, Hanapbuhay at Kaunlaran

204359 12-272

(AKO-BAHAY)

(PLM) Social Movement for Active Reform and

204139 12-127 (PL)

Alab ng Mamamahayag (ALAM)

Transparency (SMART)

204220 12-238

204356 12-136

(PLM) Abang Lingkod Party-List (ABANG

(PLM) Butil Farmers Party (BUTIL)

LINGKOD)

Resolution dated 11 December 2012

204236 12-254

204402 12-061 (PL)

Kalikasan Party-List (KALIKASAN)

(PLM) Firm 24-K Association, Inc. (FIRM 24-K)

204394 12-145 (PL)

Association of Guard, Utility Helper, Aider,

204238 12-173

Rider, Driver/Domestic Helper, Janitor, Agent

(PLM) Alliance of Bicolnon Party (ABP)

and Nanny of the Philippines, Inc.

204239 12-060

(GUARDJAN)

(PLM) Green Force for the Environment Sons and

204408 12-217

Daughters of Mother Earth (GREENFORCE)

(PLM) Pilipino Association for Country Urban Poor

204321 12-252

Youth Advancement and Welfare (PACYAW)

115

204428 12-256

Sangkatauhan (1st KABAGIS)

(PLM) Ang Galing Pinoy (AG)

204410 12-198

204490 12-073

(PLM) 1-United Transport Koalisyon (1-UTAK)

(PLM) Pilipinas Para sa Pinoy (PPP)

204421,

204379 12-099

204425 12-157

(PLM) Alagad ng Sining (ASIN)

(PLM)

204367 12-104 (PL)

12-191

Akbay Kalusugan (AKIN)

204426 12-011

(PLM) Coalition of Senior Citizens in the Philippines,

(PLM) Association of Local Athletics Entrepreneurs

Inc. (SENIOR CITIZENS)

and Hobbyists, Inc. (ALA-EH)

204436 12-009 (PP),

204455 12-041

12-165

(PLM) Manila Teachers Savings and Loan Association,

(PLM) Abyan Ilonggo Party (AI)

Inc. (Manila Teachers)

204485 12-175 (PL)

204374 12-228

Associations of the Philippines, Inc. (ALONA)

(PLM) Binhi-Partido ng mga Magsasaka Para sa mga

204484 11-002 Partido ng Bayan ng Bida (PBB)

Magsasaka (BINHI)

Resolution dated 11 December 2012

204370 12-011 (PP)

Ako An Bisaya (AAB)

Alliance of Organizations, Networks and

204153 12-277

204435 12-057

(PLM) Pasang Masda Nationwide Party (PASANG

(PLM) 1 Alliance Advocating Autonomy Party

MASDA)

(1AAAP)
204486 12-194

The Issues

(PLM) 1st Kabalikat ng Bayan Ginhawang

116

We rule upon two issues: first, whether the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in disqualifying petitioners
from participating in the 13 May 2013 party-list elections, either by denial of their
new petitions for registration under the party-list system, or by cancellation of their
existing registration and accreditation as party-list organizations; and second,
whether the criteria for participating in the party-list system laid down in Ang
Bagong Bayani and Barangay Association for National Advancement and
Transparency v. Commission on Elections49 (BANAT) should be applied by the
COMELEC in the coming 13 May 2013 party-list elections.

The Courts Ruling

Section 5, Article VI

(1) The House of Representatives shall be composed of not more than two hundred
and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional, and sectoral
parties or organizations.

We hold that the COMELEC did not commit grave abuse of discretion in following
prevailing decisions of this Court in disqualifying petitioners from participating in
the coming 13 May 2013 party-list elections. However, since the Court adopts in this
Decision new parameters in the qualification of national, regional, and sectoral
parties under the party-list system, thereby abandoning the rulings in the decisions
applied by the COMELEC in disqualifying petitioners, we remand to the COMELEC
all the present petitions for the COMELEC to determine who are qualified to register
under the party-list system, and to participate in the coming 13 May 2013 party-list
elections, under the new parameters prescribed in this Decision.

(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party list. For three consecutive
terms after the ratification of this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided by law, by selection or election
from the labor, peasant, urban poor, indigenous cultural communities, women, youth,
and such other sectors as may be provided by law, except the religious sector.

The Party-List System

Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be

valid, except for those registered under the party-list system as provided in this
Constitution.

The 1987 Constitution provides the basis for the party-list system of representation.
Simply put, the party-list system is intended to democratize political power by giving
political parties that cannot win in legislative district elections a chance to win seats
in the House of Representatives.50 The voter elects two representatives in the House
of Representatives: one for his or her legislative district, and another for his or her
party-list group or organization of choice. The 1987 Constitution provides:

Sections 7 and 8, Article IX-C

Sec. 8. Political parties, or organizations or coalitions registered under the party-list

system, shall not be represented in the voters registration boards, boards of election
inspectors, boards of canvassers, or other similar bodies. However, they shall be
entitled to appoint poll watchers in accordance with law.

117

Commissioner Christian S. Monsod, the main sponsor of the party-list system,

stressed that "the party-list system is not synonymous with that of the sectoral
representation."51 The constitutional provisions on the party-list system should be
read in light of the following discussion among its framers:

MR. MONSOD: x x x.

I would like to make a distinction from the beginning that the proposal for the party
list system is not synonymous with that of the sectoral representation. Precisely, the
party list system seeks to avoid the dilemma of choice of sectors and who constitute
the members of the sectors. In making the proposal on the party list system, we were
made aware of the problems precisely cited by Commissioner Bacani of which
sectors will have reserved seats. In effect, a sectoral representation in the Assembly
would mean that certain sectors would have reserved seats; that they will choose
among themselves who would sit in those reserved seats. And then, we have the
problem of which sector because as we will notice in Proclamation No. 9, the sectors
cited were the farmers, fishermen, workers, students, professionals, business,
military, academic, ethnic and other similar groups. So these are the nine sectors that
were identified here as "sectoral representatives" to be represented in this
Commission. The problem we had in trying to approach sectoral representation in the
Assembly was whether to stop at these nine sectors or include other sectors. And we
went through the exercise in a caucus of which sector should be included which went
up to 14 sectors. And as we all know, the longer we make our enumeration, the more
limiting the law become because when we make an enumeration we exclude those
who are not in the enumeration. Second, we had the problem of who comprise the
farmers. Let us just say the farmers and the laborers. These days, there are many
citizens who are called "hyphenated citizens." A doctor may be a farmer; a lawyer
may also be a farmer. And so, it is up to the discretion of the person to say "I am a
farmer" so he would be included in that sector.

The third problem is that when we go into a reserved seat system of sectoral
representation in the Assembly, we are, in effect, giving some people two votes and
other people one vote. We sought to avoid these problems by presenting a party list
system. Under the party list system, there are no reserved seats for sectors. Let us

say, laborers and farmers can form a sectoral party or a sectoral organization that will
then register and present candidates of their party. How do the mechanics go?
Essentially, under the party list system, every voter has two votes, so there is no
discrimination. First, he will vote for the representative of his legislative district.
That is one vote. In that same ballot, he will be asked: What party or organization or
coalition do you wish to be represented in the Assembly? And here will be attached a
list of the parties, organizations or coalitions that have been registered with the
COMELEC and are entitled to be put in that list. This can be a regional party, a
sectoral party, a national party, UNIDO, Magsasaka or a regional party in Mindanao.
One need not be a farmer to say that he wants the farmers' party to be represented in
the Assembly. Any citizen can vote for any party. At the end of the day, the
COMELEC will then tabulate the votes that had been garnered by each party or each
organization one does not have to be a political party and register in order to
participate as a party and count the votes and from there derive the percentage of
the votes that had been cast in favor of a party, organization or coalition.

When such parties register with the COMELEC, we are assuming that 50 of the 250
seats will be for the party list system. So, we have a limit of 30 percent of 50. That
means that the maximum that any party can get out of these 50 seats is 15. When the
parties register they then submit a list of 15 names. They have to submit these names
because these nominees have to meet the minimum qualifications of a Member of the
National Assembly. At the end of the day, when the votes are tabulated, one gets the
percentages. Let us say, UNIDO gets 10 percent or 15 percent of the votes; KMU
gets 5 percent; a womens party gets 2 1/2 percent and anybody who has at least 2
1/2 percent of the vote qualifies and the 50 seats are apportioned among all of these
parties who get at least 2 1/2 percent of the vote.

What does that mean? It means that any group or party who has a constituency of,
say, 500,000 nationwide gets a seat in the National Assembly. What is the
justification for that? When we allocate legislative districts, we are saying that any
district that has 200,000 votes gets a seat. There is no reason why a group that has a
national constituency, even if it is a sectoral or special interest group, should not
have a voice in the National Assembly. It also means that, let us say, there are three
or four labor groups, they all register as a party or as a group. If each of them gets
only one percent or five of them get one percent, they are not entitled to any
representative. So, they will begin to think that if they really have a common interest,

118

they should band together, form a coalition and get five percent of the vote and,
therefore, have two seats in the Assembly. Those are the dynamics of a party list
system.

We feel that this approach gets around the mechanics of sectoral representation while
at the same time making sure that those who really have a national constituency or
sectoral constituency will get a chance to have a seat in the National Assembly.
These sectors or these groups may not have the constituency to win a seat on a
legislative district basis. They may not be able to win a seat on a district basis but
surely, they will have votes on a nationwide basis.

The purpose of this is to open the system. In the past elections, we found out that
there were certain groups or parties that, if we count their votes nationwide; have
about 1,000,000 or 1,500,000 votes. But they were always third place or fourth place
in each of the districts. So, they have no voice in the Assembly. But this way, they
would have five or six representatives in the Assembly even if they would not win
individually in legislative districts. So, that is essentially the mechanics, the purpose
and objectives of the party list system.

BISHOP BACANI: Madam President, am I right in interpreting that when we speak

now of party list system though we refer to sectors, we would be referring to sectoral
party list rather than sectors and party list?

MR. MONSOD: As a matter of fact, if this body accepts the party list system, we do
not even have to mention sectors because the sectors would be included in the party
list system. They can be sectoral parties within the party list system.

xxxx

MR. MONSOD. Madam President, I just want to say that we suggested or proposed
the party list system because we wanted to open up the political system to a
pluralistic society through a multiparty system. x x x We are for opening up the
system, and we would like very much for the sectors to be there. That is why one of
the ways to do that is to put a ceiling on the number of representatives from any
single party that can sit within the 50 allocated under the party list system. x x x.

xxx

MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to
political parties. My question is this: Are we going to classify for example Christian
Democrats and Social Democrats as political parties? Can they run under the party
list concept or must they be under the district legislation side of it only?

MR. VILLACORTA. In reply to that query, I think these parties that the
Commissioner mentioned can field candidates for the Senate as well as for the House
of Representatives. Likewise, they can also field sectoral candidates for the 20
percent or 30 percent, whichever is adopted, of the seats that we are allocating under
the party list system.

MR. MONSOD. In other words, the Christian Democrats can field district candidates
and can also participate in the party list system?

MR. VILLACORTA. Why not? When they come to the party list system, they will
be fielding only sectoral candidates.

MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list
system?

119

MR. VILLACORTA. Yes, why not? For as long as they field candidates who come
from the different marginalized sectors that we shall designate in this Constitution.

that under this system, would UNIDO be banned from running under the party list
system?

MR. MONSOD. Suppose Senator Taada wants to run under BAYAN group and
says that he represents the farmers, would he qualify?

MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that
condition alone, UNIDO may be allowed to register for the party list system.

MR. VILLACORTA. No, Senator Taada would not qualify.

MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?

MR. MONSOD. But UNIDO can field candidates under the party list system and say
Juan dela Cruz is a farmer. Who would pass on whether he is a farmer or not?

MR. TADEO. The same.

MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.

MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political
parties, particularly minority political parties, are not prohibited to participate in the
party list election if they can prove that they are also organized along sectoral lines.

MR. MONSOD. What the Commissioner is saying is that all political parties can
participate because it is precisely the contention of political parties that they
represent the broad base of citizens and that all sectors are represented in them.
Would the Commissioner agree?

MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang
political party, it will dominate the party list at mawawalang saysay din yung sector.
Lalamunin mismo ng political parties ang party list system. Gusto ko lamang bigyan
ng diin ang "reserve." Hindi ito reserve seat sa marginalized sectors. Kung titingnan
natin itong 198 seats, reserved din ito sa political parties.

MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my
question to Commissioner Villacorta and probably also to Commissioner Tadeo is

MR. MONSOD: Sino po ang magsasabi kung iyong kandidato ng UNIDO ay hindi
talagang labor leader or isang laborer? Halimbawa, abogado ito.

MR. TADEO: Iyong mechanics.

MR. MONSOD: Hindi po mechanics iyon because we are trying to solve an inherent
problem of sectoral representation. My question is: Suppose UNIDO fields a labor
leader, would he qualify?

MR. TADEO: The COMELEC may look into the truth of whether or not a political
party is really organized along a specific sectoral line. If such is verified or
confirmed, the political party may submit a list of individuals who are actually
members of such sectors. The lists are to be published to give individuals or
organizations belonging to such sector the chance to present evidence contradicting

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claims of membership in the said sector or to question the claims of the existence of
such sectoral organizations or parties. This proceeding shall be conducted by the
COMELEC and shall be summary in character. In other words, COMELEC
decisions on this matter are final and unappealable.52 (Emphasis supplied)

Indisputably, the framers of the 1987 Constitution intended the party-list system to
include not only sectoral parties but also non-sectoral parties. The framers intended
the sectoral parties to constitute a part, but not the entirety, of the party-list system.
As explained by Commissioner Wilfredo Villacorta, political parties can participate
in the party-list system "For as long as they field candidates who come from the
different marginalized sectors that we shall designate in this Constitution."53

In fact, the framers voted down, 19-22, a proposal to reserve permanent seats to
sectoral parties in the House of Representatives, or alternatively, to reserve the partylist system exclusively to sectoral parties. As clearly explained by Justice Jose C.
Vitug in his Dissenting Opinion in Ang Bagong Bayani:

The draft provisions on what was to become Article VI, Section 5, subsection (2), of
the 1987 Constitution took off from two staunch positions the first headed by
Commissioner Villacorta, advocating that of the 20 per centum of the total seats in
Congress to be allocated to party-list representatives half were to be reserved to
appointees from the marginalized and underrepresented sectors. The proposal was
opposed by some Commissioners. Mr. Monsod expressed the difficulty in delimiting
the sectors that needed representation. He was of the view that reserving seats for the
marginalized and underrepresented sectors would stunt their development into fullpledged parties equipped with electoral machinery potent enough to further the
sectoral interests to be represented. The Villacorta group, on the other hand, was
apprehensive that pitting the unorganized and less-moneyed sectoral groups in an
electoral contest would be like placing babes in the lion's den, so to speak, with the
bigger and more established political parties ultimately gobbling them up. R.A. 7941
recognized this concern when it banned the first five major political parties on the
basis of party representation in the House of Representatives from participating in
the party-list system for the first party-list elections held in 1998 (and to be
automatically lifted starting with the 2001 elections). The advocates for permanent

seats for sectoral representatives made an effort towards a compromise that the
party-list system be open only to underrepresented and marginalized sectors. This
proposal was further whittled down by allocating only half of the seats under the
party-list system to candidates from the sectors which would garner the required
number of votes. The majority was unyielding. Voting 19-22, the proposal for
permanent seats, and in the alternative the reservation of the party-list system to the
sectoral groups, was voted down. The only concession the Villacorta group was able
to muster was an assurance of reserved seats for selected sectors for three
consecutive terms after the enactment of the 1987 Constitution, by which time they
would be expected to gather and solidify their electoral base and brace themselves in
the multi-party electoral contest with the more veteran political groups.54 (Emphasis
supplied)

Thus, in the end, the proposal to give permanent reserved seats to certain sectors was
outvoted. Instead, the reservation of seats to sectoral representatives was only
allowed for the first three consecutive terms.55 There can be no doubt whatsoever
that the framers of the 1987 Constitution expressly rejected the proposal to make the
party-list system exclusively for sectoral parties only, and that they clearly intended
the party-list system to include both sectoral and non-sectoral parties.

The common denominator between sectoral and non-sectoral parties is that they
cannot expect to win in legislative district elections but they can garner, in
nationwide elections, at least the same number of votes that winning candidates can
garner in legislative district elections. The party-list system will be the entry point to
membership in the House of Representatives for both these non-traditional parties
that could not compete in legislative district elections.

The indisputable intent of the framers of the 1987 Constitution to include in the
party-list system both sectoral and non-sectoral parties is clearly written in Section
5(1), Article VI of the Constitution, which states:

Section 5. (1) The House of Representative shall be composed of not more that two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from

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legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional, and sectoral
parties or organizations. (Emphasis supplied)

Section 5(1), Article VI of the Constitution is crystal-clear that there shall be "a
party-list system of registered national, regional, and sectoral parties or
organizations." The commas after the words "national," and "regional," separate
national and regional parties from sectoral parties. Had the framers of the 1987
Constitution intended national and regional parties to be at the same time sectoral,
they would have stated "national and regional sectoral parties." They did not,
precisely because it was never their intention to make the party-list system
exclusively sectoral.

What the framers intended, and what they expressly wrote in Section 5(1), could not
be any clearer: the party-list system is composed of three different groups, and the
sectoral parties belong to only one of the three groups. The text of Section 5(1)
leaves no room for any doubt that national and regional parties are separate from
sectoral parties.

Thus, the party-list system is composed of three different groups: (1) national parties
or organizations; (2) regional parties or organizations; and (3) sectoral parties or
organizations. National and regional parties or organizations are different from
sectoral parties or organizations. National and regional parties or organizations need
not be organized along sectoral lines and need not represent any particular sector.

Moreover, Section 5(2), Article VI of the 1987 Constitution mandates that, during the
first three consecutive terms of Congress after the ratification of the 1987
Constitution, "one-half of the seats allocated to party-list representatives shall be
filled, as provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other sectors as may
be provided by law, except the religious sector." This provision clearly shows again

that the party-list system is not exclusively for sectoral parties for two obvious
reasons.

First, the other one-half of the seats allocated to party-list representatives would
naturally be open to non-sectoral party-list representatives, clearly negating the idea
that the party-list system is exclusively for sectoral parties representing the
"marginalized and underrepresented." Second, the reservation of one-half of the
party-list seats to sectoral parties applies only for the first "three consecutive terms
after the ratification of this Constitution," clearly making the party-list system fully
open after the end of the first three congressional terms. This means that, after this
period, there will be no seats reserved for any class or type of party that qualifies
under the three groups constituting the party-list system.

Hence, the clear intent, express wording, and party-list structure ordained in Section
5(1) and (2), Article VI of the 1987 Constitution cannot be disputed: the party-list
system is not for sectoral parties only, but also for non-sectoral parties.

Republic Act No. 7941 or the Party-List System Act, which is the law that
implements the party-list system prescribed in the Constitution, provides:

Section 3. Definition of Terms. (a) The party-list system is a mechanism of

proportional representation in the election of representatives to the House of
Representatives from national, regional and sectoral parties or organizations or
coalitions thereof registered with the Commission on Elections (COMELEC).
Component parties or organizations of a coalition may participate independently
provided the coalition of which they form part does not participate in the party-list
system.

(b) A party means either a political party or a sectoral party or a coalition of parties.

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(c) A political party refers to an organized group of citizens advocating an ideology

or platform, principles and policies for the general conduct of government and
which, as the most immediate means of securing their adoption, regularly nominates
and supports certain of its leaders and members as candidates for public office.

It is a national party when its constituency is spread over the geographical territory
of at least a majority of the regions. It is a regional party when its constituency is
spread over the geographical territory of at least a majority of the cities and
provinces comprising the region.

(d) A sectoral party refers to an organized group of citizens belonging to any of the
sectors enumerated in Section 5 hereof whose principal advocacy pertains to the
special interest and concerns of their sector.

(e) A sectoral organization refers to a group of citizens or a coalition of groups of

citizens who share similar physical attributes or characteristics, employment,
interests or concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral

parties or organizations for political and/or election purposes. (Emphasis supplied)

Section 3(a) of R.A. No. 7941 defines a "party" as "either a political party or a
sectoral party or a coalition of parties." Clearly, a political party is different from a
sectoral party. Section 3(c) of R.A. No. 7941 further provides that a "political party
refers to an organized group of citizens advocating an ideology or platform,
principles and policies for the general conduct of government." On the other hand,
Section 3(d) of R.A. No. 7941 provides that a "sectoral party refers to an organized
group of citizens belonging to any of the sectors enumerated in Section 5 hereof
whose principal advocacy pertains to the special interest and concerns of their
sector." R.A. No. 7941 provides different definitions for a political and a sectoral
party. Obviously, they are separate and distinct from each other.

R.A. No. 7941 does not require national and regional parties or organizations to
represent the "marginalized and underrepresented" sectors. To require all national
and regional parties under the party-list system to represent the "marginalized and
underrepresented" is to deprive and exclude, by judicial fiat, ideology-based and
cause-oriented parties from the party-list system. How will these ideology-based and
cause-oriented parties, who cannot win in legislative district elections, participate in
the electoral process if they are excluded from the party-list system? To exclude
them from the party-list system is to prevent them from joining the parliamentary
struggle, leaving as their only option the armed struggle. To exclude them from the
party-list system is, apart from being obviously senseless, patently contrary to the
clear intent and express wording of the 1987 Constitution and R.A. No. 7941.

Under the party-list system, an ideology-based or cause-oriented political party is

clearly different from a sectoral party. A political party need not be organized as a
sectoral party and need not represent any particular sector. There is no requirement in
R.A. No. 7941 that a national or regional political party must represent a
"marginalized and underrepresented" sector. It is sufficient that the political party
consists of citizens who advocate the same ideology or platform, or the same
governance principles and policies, regardless of their economic status as citizens.

Section 5 of R.A. No. 7941 states that "the sectors shall include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals."56 The sectors
mentioned in Section 5 are not all necessarily "marginalized and underrepresented."
For sure, "professionals" are not by definition "marginalized and underrepresented,"
not even the elderly, women, and the youth. However, professionals, the elderly,
women, and the youth may "lack well-defined political constituencies," and can thus
organize themselves into sectoral parties in advocacy of the special interests and
concerns of their respective sectors.

Section 6 of R.A. No. 7941 provides another compelling reason for holding that the
law does not require national or regional parties, as well as certain sectoral parties in

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Section 5 of R.A. No. 7941, to represent the "marginalized and underrepresented."

Section 6 provides the grounds for the COMELEC to refuse or cancel the registration
of parties or organizations after due notice and hearing.

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at
least two per centum (2%) of the votes cast under the party-list system in the two (2)
preceding elections for the constituency in which it has registered.

Section 6. Refusal and/or Cancellation of Registration. The COMELEC may,

motu proprio or upon verified complaint of any interested party, refuse or cancel,
after due notice and hearing, the registration of any national, regional or sectoral
party, organization or coalition on any of the following grounds:

None of the 8 grounds to refuse or cancel registration refers to non-representation of

the "marginalized and underrepresented."

(1) It is a religious sect or denomination, organization or association organized for

religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party,
foundation, organization, whether directly or through any of its officers or members
or indirectly through third parties for partisan election purposes;

The phrase "marginalized and underrepresented" appears only once in R.A. No.
7941, in Section 2 on Declaration of Policy.57 Section 2 seeks "to promote
proportional representation in the election of representatives to the House of
Representatives through the party-list system," which will enable Filipinos belonging
to the "marginalized and underrepresented sectors, organizations and parties, and
who lack well-defined political constituencies," to become members of the House of
Representatives. While the policy declaration in Section 2 of R.A. No. 7941 broadly
refers to "marginalized and underrepresented sectors, organizations and parties," the
specific implementing provisions of R.A. No. 7941 do not define or require that the
sectors, organizations or parties must be "marginalized and underrepresented." On
the contrary, to even interpret that all the sectors mentioned in Section 5 are
"marginalized and underrepresented" would lead to absurdities.

How then should we harmonize the broad policy declaration in Section 2 of R.A. No.
7941 with its specific implementing provisions, bearing in mind the applicable
provisions of the 1987 Constitution on the matter?

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

The phrase "marginalized and underrepresented" should refer only to the sectors in
Section 5 that are, by their nature, economically "marginalized and
underrepresented." These sectors are: labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped, veterans, overseas workers, and other
similar sectors. For these sectors, a majority of the members of the sectoral party
must belong to the "marginalized and underrepresented." The nominees of the
sectoral party either must belong to the sector, or must have a track record of
advocacy for the sector represented. Belonging to the "marginalized and
underrepresented" sector does not mean one must "wallow in poverty, destitution or

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infirmity." It is sufficient that one, or his or her sector, is below the middle class.
More specifically, the economically "marginalized and underrepresented" are those
who fall in the low income group as classified by the National Statistical
Coordination Board.58

The recognition that national and regional parties, as well as sectoral parties of
professionals, the elderly, women and the youth, need not be "marginalized and
underrepresented" will allow small ideology-based and cause-oriented parties who
lack "well-defined political constituencies" a chance to win seats in the House of
Representatives. On the other hand, limiting to the "marginalized and
underrepresented" the sectoral parties for labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped, veterans, overseas workers, and other
sectors that by their nature are economically at the margins of society, will give the
"marginalized and underrepresented" an opportunity to likewise win seats in the
House of Representatives.

This interpretation will harmonize the 1987 Constitution and R.A. No. 7941 and will
give rise to a multi-party system where those "marginalized and underrepresented,"
both in economic and ideological status, will have the opportunity to send their own
members to the House of Representatives. This interpretation will also make the
party-list system honest and transparent, eliminating the need for relatively well-off
party-list representatives to masquerade as "wallowing in poverty, destitution and
infirmity," even as they attend sessions in Congress riding in SUVs.

The major political parties are those that field candidates in the legislative district
elections. Major political parties cannot participate in the party-list elections since
they neither lack "well-defined political constituencies" nor represent "marginalized
and underrepresented" sectors. Thus, the national or regional parties under the partylist system are necessarily those that do not belong to major political parties. This
automatically reserves the national and regional parties under the party-list system to
those who "lack well-defined political constituencies," giving them the opportunity
to have members in the House of Representatives.

To recall, Ang Bagong Bayani expressly declared, in its second guideline for the
accreditation of parties under the party-list system, that "while even major political
parties are expressly allowed by RA 7941 and the Constitution to participate in the
party-list system, they must comply with the declared statutory policy of enabling
Filipino citizens belonging to marginalized and underrepresented sectors xxx to be
elected to the House of Representatives. "However, the requirement in Ang Bagong
Bayani, in its second guideline, that "the political party xxx must represent the
marginalized and underrepresented," automatically disqualified major political
parties from participating in the party-list system. This inherent inconsistency in Ang
Bagong Bayani has been compounded by the COMELECs refusal to register
sectoral wings officially organized by major political parties. BANAT merely
formalized the prevailing practice when it expressly prohibited major political parties
from participating in the party-list system, even through their sectoral wings.

Section 11 of R.A. No. 7941 expressly prohibited the "first five (5) major political
parties on the basis of party representation in the House of Representatives at the
start of the Tenth Congress" from participating in the May 1988 party-list
elections.59 Thus, major political parties can participate in subsequent party-list
elections since the prohibition is expressly limited only to the 1988 party-list
elections. However, major political parties should participate in party-list elections
only through their sectoral wings. The participation of major political parties through
their sectoral wings, a majority of whose members are "marginalized and
underrepresented" or lacking in "well-defined political constituencies," will facilitate
the entry of the "marginalized and underrepresented" and those who "lack welldefined political constituencies" as members of the House of Representatives.

The 1987 Constitution and R.A. No. 7941 allow major political parties to participate
in party-list elections so as to encourage them to work assiduously in extending their
constituencies to the "marginalized and underrepresented" and to those who "lack
well-defined political constituencies." The participation of major political parties in
party-list elections must be geared towards the entry, as members of the House of
Representatives, of the "marginalized and underrepresented" and those who "lack
well-defined political constituencies," giving them a voice in law-making. Thus,to
participate in party-list elections, a major political party that fields candidates in the
legislative district elections must organize a sectoral wing, like a labor, peasant,

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fisherfolk, urban poor, professional, women or youth wing, that can register under
the party-list system.

Such sectoral wing of a major political party must have its own constitution, by-laws,
platform or program of government, officers and members, a majority of whom must
belong to the sector represented. The sectoral wing is in itself an independent
sectoral party, and is linked to a major political party through a coalition. This
linkage is allowed by Section 3 of R.A. No. 7941, which provides that "component
parties or organizations of a coalition may participate independently (in party-list
elections) provided the coalition of which they form part does not participate in the
party-list system."

Section 9 of R.A. No. 7941 prescribes the qualifications of party-list nominees. This
provision prescribes a special qualification only for the nominee from the youth
sector.

Section 9. Qualifications of Party-List Nominees. No person shall be nominated as

party-list representative unless he is a 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.

A party-list nominee must be a bona fide member of the party or organization which
he or she seeks to represent. In the case of sectoral parties, to be a bona fide party-list
nominee one must either belong to the sector represented, or have a track record of
advocacy for such sector.

In disqualifying petitioners, the COMELEC used the criteria prescribed in Ang

Bagong Bayani and BANAT. Ang Bagong Bayani laid down the guidelines for
qualifying those who desire to participate in the party-list system:

First, the political party, sector, organization or coalition must represent the
marginalized and underrepresented groups identified in Section 5 of RA 7941. x x x

Second, while even major political parties are expressly allowed by RA 7941 and the
Constitution to participate in the party-list system, they must comply with the
declared statutory policy of enabling "Filipino citizens belonging to marginalized
and underrepresented sectors x x x to be elected to the House of Representatives." x
x x.

xxxx

Third, x x x the religious sector may not be represented in the party-list system. x x
x.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not
more than thirty (30) years of age on the day of the election.
xxxx
Any youth sectoral representative who attains the age of thirty (30) during his term
shall be allowed to continue in office until the expiration of his term.1wphi1

Fourth, a party or an organization must not be disqualified under Section 6 of RA

7941, which enumerates the grounds for disqualification as follows:

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xxxx
"(1) It is a religious sect or denomination, organization or association, organized for
religious purposes;

Sixth, the party must not only comply with the requirements of the law; its nominees
must likewise do so. Section 9 of RA 7941 reads as follows:

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party,
foundation, organization, whether directly or through any of its officers or members
or indirectly through third parties for partisan election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

"SEC 9. Qualifications of Party-List Nominees. - No person shall be nominated as

party-list representative unless he is a 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.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not
more than thirty (30) years of age on the day of the election. Any youth sectoral
representative who attains the age of thirty (30) during his term shall be allowed to
continue in office until the expiration of his term."

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at
least two per centum (2%) of the votes cast under the party-list system in the two (2)
preceding elections for the constituency in which it has registered."

Fifth, the party or organization must not be an adjunct of, or a project organized or an
entity funded or assisted by, the government. x x x.

Seventh, not only the candidate party or organization must represent marginalized
and underrepresented sectors; so also must its nominees. x x x.

Eighth, x x x the nominee must likewise be able to contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole.
(Emphasis supplied)

In 2009, by a vote of 8-7 in BANAT, this Court stretched the Ang Bagong Bayani
ruling further. In BANAT, the majority officially excluded major political parties
from participating in party-list elections,60 abandoning even the lip-service that Ang
Bagong Bayani accorded to the 1987 Constitution and R.A.No. 7941 that major
political parties can participate in party-list elections.

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The minority in BANAT, however, believed that major political parties can
participate in the party-list system through their sectoral wings. The minority
expressed that "[e]xcluding the major political parties in party-list elections is
manifestly against the Constitution, the intent of the Constitutional Commission, and
R.A. No. 7941. This Court cannot engage in socio-political engineering and
judicially legislate the exclusion of major political parties from the party-list
elections in patent violation of the Constitution and the law."61 The
experimentations in socio-political engineering have only resulted in confusion and
absurdity in the party-list system. Such experimentations, in clear contravention of
the 1987 Constitution and R.A. No. 7941, must now come to an end.

We cannot, however, fault the COMELEC for following prevailing jurisprudence in

disqualifying petitioners. In following prevailing jurisprudence, the COMELEC
could not have committed grave abuse of discretion. However, for the coming 13
May 2013 party-list elections, we must now impose and mandate the party-list
system actually envisioned and authorized under the 1987 Constitution and R.A. No.
7941. In BANAT, this Court devised a new formula in the allocation of party-list
seats, reversing the COMELEC's allocation which followed the then prevailing
formula in Ang Bagong Bayani. In BANAT, however, the Court did not declare that
the COMELEC committed grave abuse of discretion. Similarly, even as we
acknowledge here that the COMELEC did not commit grave abuse of discretion, we
declare that it would not be in accord with the 1987 Constitution and R.A. No. 7941
to apply the criteria in Ang Bagong Bayani and BANAT in determining who are
qualified to participate in the coming 13 May 2013 party-list elections. For this
purpose, we suspend our rule62 that a party may appeal to this Court from decisions
or orders of the COMELEC only if the COMELEC committed grave abuse of
discretion.

Thus, we remand all the present petitions to the COMELEC. In determining who
may participate in the coming 13 May 2013 and subsequent party-list elections, the
COMELEC shall adhere to the following parameters:

1. Three different groups may participate in the party-list system: (1) national parties
or organizations, (2) regional parties or organizations, and (3) sectoral parties or
organizations.

2. National parties or organizations and regional parties or organizations do not need

to organize along sectoral lines and do not need to represent any "marginalized and
underrepresented" sector.

3. Political parties can participate in party-list elections provided they register under
the party-list system and do not field candidates in legislative district elections. A
political party, whether major or not, that fields candidates in legislative district
elections can participate in party-list elections only through its sectoral wing that can
separately register under the party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be "marginalized and

underrepresented" or lacking in "well-defined political constituencies." It is enough
that their principal advocacy pertains to the special interest and concerns of their
sector. The sectors that are "marginalized and underrepresented" include labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped,
veterans, and overseas workers. The sectors that lack "well-defined political
constituencies" include professionals, the elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that represent the

"marginalized and underrepresented" must belong to the "marginalized and
underrepresented" sector they represent. Similarly, a majority of the members of
sectoral parties or organizations that lack "well-defined political constituencies" must
belong to the sector they represent. The nominees of sectoral parties or organizations
that represent the "marginalized and underrepresented," or that represent those who
lack "well-defined political constituencies," either must belong to their respective
sectors, or must have a track record of advocacy for their respective sectors. The
nominees of national and regional parties or organizations must be bona-fide
members of such parties or organizations.

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6. National, regional, and sectoral parties or organizations shall not be disqualified if

some of their nominees are disqualified, provided that they have at least one nominee
who remains qualified.

The COMELEC excluded from participating in the 13 May 2013 party-list elections
those that did not satisfy these two criteria: (1) all national, regional, and sectoral
groups or organizations must represent the "marginalized and underrepresented"
sectors, and (2) all nominees must belong to the "marginalized and
underrepresented" sector they represent. Petitioners may have been disqualified by
the COMELEC because as political or regional parties they are not organized along
sectoral lines and do not represent the "marginalized and underrepresented." Also,
petitioners' nominees who do not belong to the sectors they represent may have been
disqualified, although they may have a track record of advocacy for their sectors.
Likewise, nominees of non-sectoral parties may have been disqualified because they
do not belong to any sector. Moreover, a party may have been disqualified because
one or more of its nominees failed to qualify, even if the party has at least one
remaining qualified nominee. As discussed above, the disqualification of petitioners,
and their nominees, under such circumstances is contrary to the 1987 Constitution
and R.A. No. 7941.

This Court is sworn to uphold the 1987 Constitution, apply its provisions faithfully,
and desist from engaging in socio-economic or political experimentations contrary to
what the Constitution has ordained. Judicial power does not include the power to rewrite the Constitution. Thus, the present petitions should be remanded to the
COMELEC not because the COMELEC committed grave abuse of discretion in
disqualifying petitioners, but because petitioners may now possibly qualify to
participate in the coming 13 May 2013 party-list elections under the new parameters
prescribed by this Court.

WHEREFORE, all the present 54 petitions are GRANTED. The 13 petitions, which
have been granted Status Quo Ante Orders but without mandatory injunction to
include the names of petitioners in the printing of ballots, are remanded to the
Commission on Elections only for determination whether petitioners are qualified to
register under the party-list system under the parameters prescribed in this Decision
but they shall not participate in the 13 May 2013 part-list elections. The 41 petitions,
which have been granted mandatory injunctions to include the names of petitioners
in the printing of ballots, are remanded to the Commission on Elections for
determination whether petitioners are qualified to register under the party-list system
and to participate in the 13 May 2013 party-list elections under the parameters
prescribed in this Decision. The Commission on Elections may conduct summary
evidentiary hearings for this purpose. This Decision is immediately executory.

SO ORDERED.
Republic of the Philippines
SUPREME COURT

ABANG LINGKOD PARTY-LIST ABANG LINGKOD, Petitioner,

Manila

vs.
COMMISSION ON ELECTIONS, Respondent.

EN BANC
DECISION
G.R. No. 206952

October 22, 2013

129

REYES, J.:

This is a petition for certiorari under Rule 64 in relation to Rule 65 of the Rules of
Court filed by (Abang Lingkod Party-List ABANG LINGKOD) assailing the
Resolution1 dated May 10, 2013 issued by the Commission on Elections
COMELEC) En Bane in SPP No. 12-238 PLM}, which, alia, affirmed the
cancellation of ABANG LINGKOD's registration as a party-list group.

The Facts

ABANG LINGKOD is a sectoral organization that represents the interests of peasant

fanners and fisherfolks, and was registered under the party-list system on December
22, 2009. It participated in the May 2010 elections, but failed to obtain the number of
votes needed for a seat in the House of Representatives.

On May 31, 2012, ABANG LINGKOD manifested before the COMELEC its intent
to participate in the May 2013 elections. On August 2, 2012, the COMELEC issued
Resolution No. 9513,2 which, inter alia required previously registered party-list
groups that have filed their respective Manifestations of Intent to undergo summary
evidentiary hearing for purposes of determining their continuing compliance with the
requirements under Republic Act (R.A.) No. 79413 and the guidelines set forth in
Ang Bagong Bayani-OFW Labor Party v. COMELEC.4

Accordingly, on August 9 2012, the COMELEC issued a Resolution, which set the
summary evidentiary hearing of previously registered party-list groups. The
COMELEC scheduled three (3) dates -August 17, 31 and September 3, 2012 -for the
summary hearing of ABANG LINGKOD's Manifestation of Intent to enable it to
show proof of its continuing qualification under the party-list system.

On August 16, 2012, ABANG LINGKOD, in compliance with the COMELEC's

August 9, 2012 Resolution, filed with the COMELEC pertinent documents to prove
its continuing compliance with the requirements under R.A. No. 7941.

After due proceedings, the COMELEC En Bane in a Resolution dated November 7

2012, cancelled ABANG LINGKOD's registration as a partylist group. The
COMELEC En Bane pointed out that ABANG LINGKOD failed to establish its
track record in uplifting the cause of the marginalized and underrepresented; that it
merely offered photographs of some alleged activities it conducted after the May
2010 elections. The COMELEC En Bane further opined that ABANG LINGKOD
failed to show that its nominees are themselves marginalized and underrepresented
or that they have been involved in activities aimed at improving the plight of the
marginalized and underrepresented sectors it claims to represent.

ABANG LINGKOD then filed with this Court a petition5 for certiorari alleging that
the COMELEC gravely abused its discretion in cancelling its registration under the
party-list system. The said petition was consolidated with the separate petitions filed
by fifty-one (51) other party-list groups whose registration were cancelled or who
were denied registration under the party-list system. The said party-list groups,
including ABANG LINGKOD, were able to obtain status quo ante orders from this
Court.

On April 2, 2013, the Court, in Atong Paglaum Inc. v. Commission on Elections,6

laid down new parameters to be observed by the COMELEC in screening parties,
organizations or associations seeking registration and/or accreditation under the
party-list system, viz:

1. Three different groups may participate in the party-list system: (1) national parties
or organizations, (2) regional parties or organizations, and (3) sectoral parties or
organizations.

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2. National parties or organizations and regional parties or organizations do not need

to organize along sectoral lines and do not need to represent any marginalized and
underrepresented sector. 3. Political parties can participate in party-list elections
provided they register under the party-list system and do not field candidates in
legislative district elections. A political party, whether major or not, that fields
candidates in legislative district elections can participate in party-list elections only
through its sectoral wing that can separately register under the party-list system. The
sectoral wing is by itself an independent sectoral party, and is linked to a political
party through a coalition.

4. Sectoral parties or organizations may either be "marginalized and

underrepresented or lacking in "well-defined political constituencies." It is enough
that their principal advocacy pertains to the special interests and concerns of their
sector. The sectors that are marginalized and underrepresented include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and
overseas workers. The sectors that lack "well-defined political constituencies"
include professionals, the elderly, women, and the youth.

5. A majority of the members of the sectoral parties or organizations that represent

the ''marginalized and underrepresented must belong to the marginalized and
underrepresented sector they represent. Similarly, a majority of the members of
sectoral parties or organizations that lack "well-defined political constituencies" must
belong to the sector they represent. The nominees of sectoral parties or organizations
that represent the "marginalized and underrepresented" or that represent those who
lack "well-defined political constituencies," either must belong to their respective
sectors, or must have a track record or advocacy for their respective sectors. The
nominees of national and regional parties or organizations must be bona-fide
members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if

some of their nominees are disqualified, provided that they have at least one nominee
who remains qualified.

Thus, the Court remanded to the COMELEC the cases of previously registered partylist groups, including that of ABANG LINGKOD, to determine whether they are
qualified under the party-list system pursuant to the new parameters laid down by the
Court and, in the affirmative, be allowed to participate in the May 2013 party-list
elections.

On May 10, 2013, the COMELEC issued the herein assailed Resolution,7 which,
inter alia affirmed the cancellation of ABANG LINGKOD's registration under the
party-list system. The COMELEC issued the Resolution dated May 10, 2013 sans
any summary evidentiary hearing, citing the proximity of the May 13 2013 elections
as the reason therefor.

In maintaining the cancellation of ABANG LINGKOD's registration, the COMELEC

held that:

The Commission maintains its position in the previous en bane ruling cancelling the
registration of ABANG LINGKOD. To reiterate, it is not enough that the party-list
organization claim representation of the marginalized and underrepresented because
representation is easy to claim and to feign. It is but reasonable to require from
groups and organizations consistent participation and advocacy in the sector it seeks
to represent, and not just seasonal and sporadic programs which are unrelated to its
sector.

ABANG LINGKOD submitted pictures showing a seminar held on 10 July 2010,

Medical Mission on 11 November 2010, Disaster Management Training on 21
October 2011, Book-giving on 28 June 2011, and Medical Mission on 1 December
2011.

And as if to insult the Commission, the photographs submitted appear to have been
edited to show in the banners that ABANG LINGKOD participated in the activities.

131

ABANG LINGKOD's name and logo was superimposed on some banners to feign
participation in the activities (Joint Medical Mission, Book-giving).

Under the party-list System Act, a group s registration may be cancelled for
declaring unlawful statements in its petition. Photoshopping images to establish a
fact that did not occur is tantamount to declaring unlawful statements. It is on this
ground that the Commission cancels ABANG LINGKOD s registration.8

On May 12, 2013, ABANG LINGKOD sought a reconsideration of the COMELEC s

Resolution dated May 10, 2013. However, on May 15, 2013, ABANG LINGKOD
withdrew the motion for reconsideration it filed with the COMELEC and, instead,
instituted the instant petition9 with this Court, alleging that there may not be enough
time for the COMELEC to pass upon the merits of its motion for reconsideration
considering that the election returns were already being canvassed and consolidated
by the COMELEC.

In support of the instant petition, ABANG LINGKOD claims that the COMELEC
gravely abused its discretion when it affirmed the cancellation of its registration sans
a summary evidentiary hearing for that purpose, asserting that the COMELEC
should have allowed it to present evidence to prove its qualification as a party-list
group pursuant to Atong Paglaum. It claims that there was no valid justification for
the COMELEC to cancel its registration considering that it complied with the sixpoint parameters m screening party-list groups laid down in Atong Paglaum.

On the other hand, the COMELEC avers that the instant petition should be dismissed
for utter lack of merit. It asserts that ABANG LINGKOD was not denied due process
when the COMELEC affirmed the cancellation of its registration since it was given
every reasonable opportunity to be heard. The COMELEC further claims that it did
not abuse its discretion when it cancelled ABANG LINGKODs registration on the
ground that it failed to establish a track record in representing the marginalized and
underrepresented. Further, the COMELEC alleges that its finding of facts may not be
passed upon by this Court as the same is supported by substantial evidence.

The Issues

In sum, the issues presented for the Court s resolution are the following: first whether
ABANG LINGKOD was denied due process when the COMELEC affirmed the
cancellation of its registration under the patiy-list system sans any summary
evidentiary hearing; and second whether the COMELEC gravely abused its
discretion in cancelling ABANG LINGKODs registration under the party-list
system.

The Court's Ruling

The petition is meritorious.

First Issue: Due Process

The essence of due process is simply an opportunity to be heard or as applied to

administrative or quasi-judicial proceedings, an opportunity to explain one s side or
an opportunity to seek reconsideration of the action or ruling complained of. A
formal or trial type hearing is not at all times and in all instances essential. The
requirements are satisfied when the parties are afforded fair and reasonable
opportunity to explain their side of the controversy at hand. What is frowned upon is
the absolute lack of notice or hearing.10

In the instant case, while the petitioner laments that it was denied due process, the
Court finds that the COMELEC had afforded ABANG LINGKOD sufficient
opportunity to present evidence establishing its qualification as a party-list group. It
was notified through Resolution No. 9513 that its registration was to be reviewed by
the COMELEC. That ABANG LINGKOD was able to file its Manifestation of Intent

132

and other pertinent documents to prove its continuing compliance with the
requirements under R.A. No. 7941, which the COMELEC set for summary hearing
on three separate dates, belies its claim that it was denied due process.

There was no necessity for the COMELEC to conduct further summary evidentiary
hearing to assess the qualification of ABANG LINGKOD pursuant to Atong
Paglaum. ABANG LINGKODs Manifestation of Intent and all the evidence
adduced by it to establish its qualification as a party-list group are already in the
possession of the COMELEC. Thus, conducting further summary evidentiary
hearing for the sole purpose of determining ABANG LINGKOD s qualification
under the party-list system pursuant to Atong Paglaum would just be a superfluity.

Contrary to ABANG LINGKODs claim, the Court, in Atong Paglaum, did not
categorically require the COMELEC to conduct a summary evidentiary hearing for
the purpose of determining the qualifications of the petitioners therein pursuant to
the new parameters for screening party-list groups. The dispositive portion of Atong
Paglaum reads:

WHEREFORE, all the present 54 petitions are GRANTED. The 13 petitions, which
have been granted Status Quo Ante Orders but without mandatory injunction to
include the names of the petitioners in the printing of ballots, are remanded to the
Commission on Elections only for determination whether petitioners are qualified to
register under the party-list system under the parameters prescribed in this Decision
but they shall not participate in the 13 May 2013 party-list elections. The 41
petitions, which have been granted mandatory injunctions to include the names of
petitioners in the printing of ballots, are remanded to the Commission on Elections
for determination whether petitioners are qualified to register under the party-list
system and to participate in the 13 May 2013 party-list elections under the
parameters prescribed in this Decision. The Commission on Elections may conduct
summary evidentiary hearings for this purpose. This Decision is immediately
executory.

SO ORDERED.11 (Emphasis ours)

Thus, the cases of previously registered party-list groups, including ABANG

LINGKOD, were remanded to the COMELEC so that it may reassess, based on the
evidence already submitted by the former, whether they are qualified to participate in
the party-list system pursuant to the new parameters laid down in Atong Paglaum.
The Court did not require the COMELEC to conduct a hearing de novo in
reassessing the qualifications of said party-list groups. Nevertheless, the Court gave
the COMELEC the option to conduct further summary evidentiary hearing should it
deem appropriate to do so.

The records also disclose that ABANG LINGKOD was able to file with the
COMELEC a motion for reconsideration of the Resolution dated May 10, 2013,
negating its claim that it was denied due process. As it has been held, deprivation of
due process cannot be successfully invoked where a party was given a chance to be
heard on his motion for reconsideration.12

Second Issue: Cancellation of

ABANG LINGKODs Registration

However, after a careful perusal of the factual antecedents of this case, pinned
against the new parameters in screening party-list groups laid down in Atong
Paglaum the Court finds that the COMELEC gravely abused its discretion in
cancelling the registration of ABANG LINGKOD under the party-list system.

The COMELEC affirmed the cancellation of ABANG LINGKOD's registration on

the ground that it declared untruthful statement in its bid for accreditation as a partylist group in the May 2013 elections, pointing out that it deliberately submitted
digitally altered photographs of activities to make it appear that it had a track record
in representing the marginalized and underrepresented. Essentially, ABANG

133

LINGKOD's registration was cancelled on the ground that it failed to adduce

evidence showing its track record in representing the marginalized and
underrepresented.

must prove through their, inter alia track record that they truly represent the
marginalized and underrepresented, thus:

xxx
The flaw in the COMELEC's disposition lies in the fact that it insists on requiring
party-list groups to present evidence showing that they have a track record in
representing the marginalized and underrepresented.

Track record is a record of past performance often taken as an indicator of likely

future performance.13 As a requirement imposed by Ang Bagong Bayani for groups
intending to participate in the party-list elections, track record pertains to the actual
activities undertaken by groups to uplift the cause of the sector/s, which they
represent.

Section 5 of R.A. No. 7941 however provides:

Sec. 5 Registration. Any organized group of persons may register as a party,

organization or coalition for purposes of the party-list system by filing with the
COMELEC not later than ninety (90) days before the election a petition verified by
its president or secretary stating its desire to participate in the party-list system as a
national, regional or sectoral party or organization or a coalition of such parties or
organizations, attaching thereto its constitution, by-laws, platform or program of
government list of officers, coalition agreement and other relevant information as the
COMELEC may require: Provided, That the sectors shall include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals. (Emphasis ours)

R.A. No. 7941 did not require groups intending to register under the party-list system
to submit proof of their track record as a group. The track record requirement was
only imposed in Ang Bagong Bayani where the Court held that national, regional,
and sectoral parties or organizations seeking registration under the party-list system

In this light, the Court finds it appropriate to lay down the following guidelines,
culled from the law and the Constitution, to assist the Comelec in its work.

First, the political pat1y, sector, organization or coalition must represent the
marginalized and underrepresented groups identified in Secdon 5 of RA 7941. In
other words, it must show -- through its constitution, articles of incorporation,
bylaws, history, platform of government and track record -- that it represents and
seeks to uplift marginalized and underrepresented sectors. Verily, majority of its
membership should belong to the marginalized and underrepresented. And it must
demonstrate that in a conflict of interests, it has chosen or is likely to choose the
interest of such sectors. (Emphasis ours)

Track record is not the same as the submission or presentation of "constitution, bylaws, platform of government, list of officers, coalition agreement, and other relevant
information as may be required by the COMELEC," which are but mere pieces of
documentary evidence intended to establish that the group exists and is a going
concern. The said documentary evidence presents an abstract of the ideals that
national, regional, and sectoral parties or organizations seek to achieve.

This is not merely a matter of semantics; the delineation of what constitutes a track
record has certain consequences in a group's bid for registration under the party-list
system. Under Section 5 of R.A. No. 7941, groups intending to register under the
party-list system are not required to submit evidence of their track record; they are
merely required to attach to their verified petitions their "constitution, by-laws,
platform of government, list of officers, coalition agreement, and other relevant
information as may be required by the COMELEC."

134

In Atong Paglaum the Court has modified to a great extent the jurisprudential
doctrines on who may register under the party-list system and the representation of
the marginalized and underrepresented. For purposes of registration under the partylist system, national or regional parties or organizations need not represent any
marginalized and underrepresented sector; that representation of the marginalized
and underrepresented is only required of sectoral organizations that represent the
sectors stated under Section 5 of R.A. No. 7941 that are, by their nature,
economically marginalized and underrepresented.

There was no mention that sectoral organizations intending to participate in the

party-list elections are still required to present a track record, viz:

x x x In determining who may participate in the coming 13 May 2013 and

subsequent party-list elections, the COMELEC shall adhere to the following
parameters:

sector they represent. Indeed, it is enough that their principal advocacy pertains to
the special interest and concerns of their sector. Otherwise stated, it is sufficient that
the ideals represented by the sectoral organizations are geared towards the cause of
the sector/s, which they represent.

If at all, evidence showing a track record in representing the marginalized and

underrepresented sectors is only required from nominees of sectoral parties or
organizations that represent the marginalized and underrepresented who do not
factually belong to the sector represented by their party or organization.

Dissenting, my esteemed colleague, Mr. Justice Leonen, however, maintains that

parties or organizations intending to register under the party-list system are still
required to present a track record notwithstanding the Court's pronouncement in
Atong Paglaum that the track record that would have to be presented would only
differ as to the nature of their group/organization. He opines that sectoral
organizations must prove their links with the marginalized and underrepresented
while national or regional parties or organizations must show that they have been
existing as a bona fide organization.

xxxx

4. Sectoral parties or organizations may either be marginalized and underrepresented

or lacking in well-defined political constituencies. It is enough that their principal
advocacy pertains to the special interests and concerns of their sector. The sectors
that are marginalized and underrepresented include labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, handicapped, veterans, and overseas workers.
The sectors that lack well-defined political constituencies'' include professionals, the
elderly, women, and the youth. (Emphasis ours)

Contrary to the COMELEC's claim, sectoral parties or organizations, such as

ABANG LINGKOD, are no longer required to adduce evidence showing their track
record, i.e. proof of activities that they have undertaken to further the cause of the

To submit to the dissent's insistence on varying track records, which are required of
those intending to register under the party-list system, depending on the nature of
their group, would result into an absurd and unjust situation. Under the varying track
record requirement, sectoral organizations must present evidence showing their track
record in representing the marginalized and underrepresented, i.e. actual activities
conducted by them to further uplift the cause of the sector/s they represent. On the
other hand, national and regional parties or organizations need only prove that they
exist as bona fide organizations which, as the dissent suggests, may be done through
the submission of their constitution, by-laws, platform of government, list of officers,
coalition agreement, and other relevant information required by the COMELEC.

However, submission of a group's constitution, by-laws, platform of government, list

of officers, coalition agreement, and other relevant information required by the
COMELEC, as explained earlier, is not synonymous with the track record

135

requirement. In such case, only sectoral organizations would be required to present a

track record (actual activities conducted by them to further the cause of the
marginalized and underrepresented); while national and regional organizations need
not present their track record as they are only required to submit documentary
evidence showing that they are bona fide organizations.

There is no logic in treating sectoral organizations differently from national and

regional parties or organizations as regards their bid for registration under the partylist system. The varying track record requirement suggested by the dissent would
unnecessarily put a premium on groups intending to register as national and regional
parties or organizations as against those intending to register as sectoral
organizations The imposition of an additional burden on sectoral organizations, i.e.
submission of their track record, would be plainly unjust as it effectively deters the
marginalized and underrepresented sectors from organizing themselves under the
party-list system.

Likewise, that there was no explicit reversal of the guidelines in ng Bagong Bayani
in tong Paglaum does not mean that groups intending to register under the party-list
system are still required to submit a track record. The track record of groups
intending to register under the party-list system was required under the first guideline
of Ang Bagong Bayani for a very specific purpose to show that the national,
regional, and sectoral parties or organizations that would be allowed to participate in
the party-list elections are truly representative of the marginalized and
underrepresented sectors It was necessary-then to require groups seeking registration
under the party-list system since representation of the marginalized and
underrepresented, as understood in the context of Ang Bagong Bayani is easy to
claim and feign.

There exists no reason to further require groups seeking registration under the partylist system to submit evidence showing their track record. Pursuant to Atong
Paglaum not all groups are required to represent the marginalized and
underrepresented sectors and, accordingly, there is no longer any incentive in merely
feigning representation of the marginalized and underrepresented sectors.

In the case of sectoral organizations, although they are still required to represent the
marginalized and underrepresented, they are likewise not required to show a track
record since there would be no reason for them to feign representation of the
marginalized and underrepresented as they can just register as a national or regional
party or organization. Thus, the Court, in Atong Paglaum stated that, for purposes of
registration under the party-list system, it is enough that the principal advocacy of
sectoral organizations pertains to the sector/s they represent.

There is thus no basis in law and established jurisprudence to insist that groups
seeking registration under the party-list system still comply with the track record
requirement. Indeed, nowhere in R.A. No. 7941 is it mandated that groups seeking
registration thereunder must submit evidence to show their track record as a group.

The dissent likewise suggests that the deceit committed by ABANG LINGKOD goes
into its qualification as a party-list group since it seriously puts in question the
existence of ABANG LINGKOD as a group per se and the genuineness of its
representation of the farmers and fisherfolk.

It must be stressed that the COMELEC cancelled ABANG LINGKOD s registration

solely on the ground of the lack of its track record -that it falsely represented, by
submitting digitally altered photographs of its supposed activities, that it had a track
record in representing the marginalized and underrepresented. The existence of
ABANG LINGKOD as a party-list group per se and the genuineness of its
representation of the farmers and fisherfolks were never raised in the proceedings
before the COMELEC. It would thus be the height of injustice in the Court, in this
certiorari action, would scrutinize the legitimacy of ABANG LINGKOD as a partylist group and the genuineness of its representation of the farmers and fisherfolk, and
affirm the cancellation of its registration, when the issue is limited only to the track
record of ABANG LINGKOD.

136

Moreover, ABANG LINGKOD had been previously registered as a party-list group,

as in fact it participated in the May 2010 party-list elections, and it was able to obtain
a sufficient number of votes in the May 2013 party-list elections to obtain a seat in
the House of Representatives. These are circumstances, which clearly indicate that
ABANG LINGKOD is indeed a legitimate party-list group.

ABANG LINGKOD, notwithstanding the cancellation of its registration three days

prior to the May 13, 2013 elections, was able to obtain a total of 260 215 votes out of
the 26 722 131 votes that were cast for the party-list,14 thus entitling it to a seat in
the House of Representatives. This is indicative of the fact that a considerable
portion of the electorate considers ABANG LINGKOD as truly representative of
peasant farmers and fisherfolk.

Anent the photographs submitted by ABANG LINGKOD, these only show bookgiving and medical missions, which are activities it conducted. Suffice it to state,
however, that said activities do not specifically or directly pertain to the interest or
advocacy espoused by ABANG LINGKOD. As such, the misrepresentation
committed by ABANG LINGKOD with regard to said activities would not
necessarily militate against its representation of the farmers and fisherfolk.

Lest it be misunderstood, the Court does not condone the deceit perpetrated by
ABANG LINGKOD in connection with its bid for continued registration under the
party-list system. That ABANG LINGKOD, to establish its track record, submitted
photographs that were edited to make it appear that it conducted activities aimed at
ameliorating the plight of the sectors it represents is a factual finding by the
COMELEC, which the Court, considering that it is supported by substantial
evidence, will not disturb. The Court does not tolerate ABANG LINGKOD s resort
to chicanery and its shabby treatment of the requirements for registration under the
party-list system.

In this case, ABANG LINGKOD s submission of digitally altered photographs

cannot be considered material to its qualification as a party-list group. Section 6 of
R.A. No. 7941, in part, reads:

Sec. 6 Refusal and/or Cancellation o Registration The COMELEC may, motu propio
or upon verified complaint of any interested party, refuse or cancel, after due notice
and hearing, the registration of any national, regional or sectoral party, organization
or coalition on any of the following grounds:

xxxx

(6) It declares untruthful statements in its petition;

Declaration of an untruthful statement in a petition for registration, or in any other

document pertinent to the registration and/or accreditation under the party-list
system, as a ground for the refusal or cancellation of registration under Section 6(6)
of R.A. No. 7941, is akin to material misrepresentation in the certificate of candidacy
filed by an individual candidate under Section 78 of the Omnibus Election Code.
Both provisions disallow prospective candidates from participating in an election for
declaring false statements in their eligibility requirements. Section 78 of the
Omnibus Election Code reads:

Sec. 78. A verified petition seeking to deny due course to or cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any material
misrepresentation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election.

Nevertheless, considering that track record is no longer a requirement, a groups

misrepresentation as to its track record cannot be used as a ground to deny or cancel
its registration -it is no longer material to its qualification under the party-list system.

137

Elucidating on what constitutes material misrepresentation in a certificate of

candidacy under Section 78 of the Omnibus Election Code, the Court, in Lluz v.
Commission on Elections,15 explained that:

would otherwise render a candidate ineligible." In other words, it must be made with
the intention to deceive the electorate as to the would-be candidate's qualifications
for public office.18 (Citation omitted and emphasis ours)

From these two cases several conclusions follow. First a misrepresentation in a

certificate of candidacy is material when it refers to a qualification for elective office
and affects the candidate s eligibility. x x x Third a misrepresentation of a nonmaterial fact, or a non-material misrepresentation, is not a ground to deny due course
to or cancel a certificate of candidacy under Section 78. In other words, for a
candidate s certificate of candidacy to be denied due course or canceled by the
COMELEC, the fact misrepresented must pertain to a qualification for the office
sought by the candidate.16 (Emphasis ours)

Similarly, a declaration of an untruthful statement in a petition for registration under

Section 6(6) of R.A. No. 7941, in order to be a ground for the refusal and/or
cancellation of registration under the party-list system, must pertain to the
qualification of the party, organization or coalition under the party-list system. In
order to justify the cancellation or refusal of registration of a group, there must be a
deliberate attempt to mislead, misinform, or hide a fact, which would otherwise
render the group disqualified from participating in the party-list elections.

In Velasco v. Commission on Elections,17 the Court further clarified that a false

representation under Section 78 of the Omnibus Election Code, in order to be a
ground to deny due course or cancel a certificate of candidacy, must consist of a
deliberate attempt to mislead, misinform, or hide a fact which would otherwise
render a candidate ineligible. Thus:

The false representation that [Sections 74 and 78 of the Omnibus Election Code]
mention must necessarily pertain to a material fact, not to a mere innocuous mistake.
This is emphasized by the consequences of any material falsity: a candidate who
falsifies a material fact cannot run; if he runs and is elected, cannot serve; in both
cases, he or she can be prosecuted for violation of the election laws. Obviously, these
facts are those that refer to a candidate s qualification for elective office, such as his
or her citizenship and residence. The candidate's status as a registered voter similarly
falls under this classification as it is a requirement that, by law (the Local
Government Code), must be reflected in the COC. The reason for this is obvious: the
candidate, if he or she wins, will work for and represent the local government under
which he is running.

The digitally altered photographs of activities submitted by ABANG LINGKOD to

prove its continuing qualification under R.A. No. 7941 only pertain to its track
record, which, as already discussed, is no longer a requirement under the new
parameters laid down in Atong Paglaum Simply put, they do not affect the
qualification of ABANG LINGKOD as a party-list group and, hence, could not be
used as a ground to cancel its registration under the party-list system. Further, the
Court notes that the COMELEC, in its Resolution dated November 7 2012, asserted
that ABANG LINGKOD failed to adduce evidence that would show the track record
of its five nominees, composed of a non-government organization worker, an
employee and three farmers, in uplifting the cause of the sector that the group
represents.1wphi1 The COMELEC opined that the failure of ABANG LINGKOD
to present a track record of its nominees justified the cancellation of its registration
as a party-list group.

The Court does not agree. Assuming arguendo that the nominees of ABANG
LINGKOD, as opined by the COMELEC, indeed do not have track records showing
their participation in activities aimed at improving the conditions of the sector that
the group represents, the same would not affect the registration of ABANG
LINGKOD as a party-list group.

Separately from the requirement of materiality, a false representation under Section

78 must consist of a deliberate attempt to mislead, misinform, or hide a fact which

138

To stress, in Atong Paglaum the Court pointed out that [t]he nominees of sectoral
parties or organizations that represent the 'marginalized and underrepresented,' or
that represent those who lack 'well-defined political constituencies,' either must
belong to their respective sectors or must have a track record o advocacy for their
respective sectors. Stated otherwise, the nominee of a party-list groups may either
be: first one who actually belongs to the sector which the party-list group represents,
in which case the track record requirement does not apply; or second one who does
not actually belong to the sector which the party-list group represents but has a track
record showing the nominee's active participation in activities aimed at uplifting the
cause of the sector which the group represents."

In the case under consideration, three of the five nominees of ABANG LINGKOD
are farmers and, thus, are not required to present a track record showing their active
participation in activities aimed to promote the sector which ABANG LINGKOD
represents, i.e. peasant farmers and fisherfolk. That two of ABANG LINGKOD's
nominees do not actually belong to the sector it represents is immaterial and would
not result in the cancellation of ABANG LINGKOD's registration as a party-list
group. This is clear from the sixth parameter laid down by the Court in tong Paglaum
which states that "national, regional and sectoral organizations shall not be
disqualified if some of their nominees are disqualified, provided that they have at
least one nominee who remains qualified." At the very least, ABANG LINGKOD
has three (3) qualified nominees, being farmers by occupation.

Indeed, the disqualification of one or some of the nominees of a party-list group

should not automatically result in the disqualification of the group.1avvphi1
Otherwise it would accord the nominees the same significance, which the law holds
for the party-list groups; it is still the fact that the party-list group satisfied the
qualifications of the law that is material to consider. The disqualification of the
nominees must simply be regarded as failure to qualify for an office or position. It
should not, in any way, blemish the qualifications of the party-list group itself with
defect. The party-list group must be treated as separate and distinct from its
nominees such that qualifications of the latter must not be considered part and parcel
of the qualifications of the former.

In sum, that ABANG LINGKOD's registration must be cancelled due to its

misrepresentation is a conclusion derived from a simplistic reading of the provisions
of R.A. No. 7941 and the import of the Court's disposition in tong Paglaum. Not
every misrepresentation committed by national, regional, and sectoral groups or
organizations would merit the denial or cancellation of their registration under the
party-list system. The misrepresentation must relate to their qualification as a partylist group. In this regard, the COMELEC gravely abused its discretion when it
insisted on requiring ABANG LINGKOD to prove its track record notwithstanding
that a group s track record is no longer required pursuant to the Court s
pronouncement in Atong Paglaum

Likewise, upholding the cancellation of ABANG LINGKOD s registration,

notwithstanding that it was able to obtain sufficient number of votes for a legislative
seat, would serve no purpose other than to subvert the will of the electorate who
voted to give ABANG LINGKOD the privilege to represent them in the House of
Representatives.

WHEREFORE in light of the foregoing disquisitions, the instant petition is hereby

GRANTED. The Resolution dated May 10, 2013 issued by the Commission on
Elections in SPP Case No. 12-238 (PLM), insofar as it affirmed the cancellation of
ABANG LINGKOD s registration and disallowed it to participate in the May 13,
2013 elections is REVERSED and SET ASIDE.

The Commission on Elections is hereby ORDERED to PROCLAIM ABANG

LINGKOD as one of the winning party-list groups during the May 13, 2013
elections with the number of seats it may be entitled to based on the total number of
votes it garnered during the said elections.

SO ORDERED.

EN BANC

139

BAI SANDRA S. A. SEMA, G.R. No. 177597

PERFECTO F. MARQUEZ, G.R. No. 178628

Petitioner,

Petitioner,

Present:

- versus -

PUNO, C.J.,

QUISUMBING,

COMMISSION ON ELECTIONS

YNARES-SANTIAGO,

and DIDAGEN P. DILANGALEN,

CARPIO,

Respondents.

AUSTRIA-MARTINEZ,

x------------------------x

CORONA,

140

CARPIO MORALES,

COMMISSION ON ELECTIONS, Promulgated:

- versus - AZCUNA,

Respondent. July 16, 2008

TINGA,

CHICO-NAZARIO,

x--------------------------------------------------x

VELASCO, JR.,

NACHURA,
DECISION
REYES,

LEONARDO-DE CASTRO, and

BRION, JJ.
CARPIO, J.:

141

first legislative district, it is not part of the ARMM but of Region XII, having voted
against its inclusion in the ARMM in the plebiscite held in November 1989.
The Case

On 28 August 2006, the ARMMs legislature, the ARMM Regional Assembly,

exercising its power to create provinces under Section 19, Article VI of RA 9054,[5]
enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the
Province of Shariff Kabunsuan composed of the eight municipalities in the first
district of Maguindanao. MMA Act 201 provides:
These consolidated petitions[1] seek to annul Resolution No. 7902, dated 10 May
2007, of the Commission on Elections (COMELEC) treating Cotabato City as part of
the legislative district of the Province of Shariff Kabunsuan.[2]

Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan,

Matanog, Parang, Sultan Kudarat, Sultan Mastura, and Upi are hereby separated
from the Province of Maguindanao and constituted into a distinct and independent
province, which is hereby created, to be known as the Province of Shariff
Kabunsuan.

The Facts

xxxx
The Ordinance appended to the 1987 Constitution apportioned two legislative
districts for the Province of Maguindanao. The first legislative district consists of
Cotabato City and eight municipalities.[3] Maguindanao forms part of the
Autonomous Region in Muslim Mindanao (ARMM), created under its Organic Act,
Republic Act No. 6734 (RA 6734), as amended by Republic Act No. 9054 (RA
9054).[4] Although under the Ordinance, Cotabato City forms part of Maguindanaos

142

Sec. 5. The corporate existence of this province shall commence upon the
appointment by the Regional Governor or election of the governor and majority of
the regular members of the Sangguniang Panlalawigan.

The incumbent elective provincial officials of the Province of Maguindanao shall

continue to serve their unexpired terms in the province that they will choose or
where they are residents: Provided, that where an elective position in both provinces
becomes vacant as a consequence of the creation of the Province of Shariff
Kabunsuan, all incumbent elective provincial officials shall have preference for
appointment to a higher elective vacant position and for the time being be appointed
by the Regional Governor, and shall hold office until their successors shall have been
elected and qualified in the next local elections; Provided, further, that they shall
continue to receive the salaries they are receiving at the time of the approval of this
Act until the new readjustment of salaries in accordance with law. Provided,
furthermore, that there shall be no diminution in the number of the members of the
Sangguniang Panlalawigan of the mother province.

Later, three new municipalities[6] were carved out of the original nine municipalities
constituting Shariff Kabunsuan, bringing its total number of municipalities to 11.
Thus, what was left of Maguindanao were the municipalities constituting its second
legislative district. Cotabato City, although part of Maguindanaos first legislative
district, is not part of the Province of Maguindanao.

The voters of Maguindanao ratified Shariff Kabunsuans creation in a plebiscite held

on 29 October 2006.

On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed

Resolution No. 3999 requesting the COMELEC to clarify the status of Cotabato City
in view of the conversion of the First District of Maguindanao into a regular
province under MMA Act 201.

In answer to Cotabato Citys query, the COMELEC issued Resolution No. 07-0407
on 6 March 2007 "maintaining the status quo with Cotabato City as part of Shariff
Kabunsuan in the First Legislative District of Maguindanao. Resolution No. 070407, which adopted the recommendation of the COMELECs Law Department
under a Memorandum dated 27 February 2007,[7] provides in pertinent parts:
Except as may be provided by national law, the existing legislative district, which
includes Cotabato as a part thereof, shall remain.

Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to

adopt the recommendation of the Law Department that pending the enactment of the
appropriate law by Congress, to maintain the status quo with Cotabato City as part of
Shariff Kabunsuan in the First Legislative District of Maguindanao. (Emphasis
supplied)

143

7845 designating Cotabato City as the lone component of Maguindanaos

reapportioned first legislative district.[12] Sema further claimed that in issuing
Resolution No. 7902, the COMELEC usurped Congress power to create or
reapportion legislative districts.

However, in preparation for the 14 May 2007 elections, the COMELEC promulgated
on 29 March 2007 Resolution No. 7845 stating that Maguindanaos first legislative
district is composed only of Cotabato City because of the enactment of MMA Act
201.[8]

In its Comment, the COMELEC, through the Office of the Solicitor General (OSG),
chose not to reach the merits of the case and merely contended that (1) Sema
wrongly availed of the writ of certiorari to nullify COMELEC Resolution No. 7902
because the COMELEC issued the same in the exercise of its administrative, not
quasi-judicial, power and (2) Semas prayer for the writ of prohibition in G.R. No.
177597 became moot with the proclamation of respondent Didagen P. Dilangalen
(respondent Dilangalen) on 1 June 2007 as representative of the legislative district of
Shariff Kabunsuan Province with Cotabato City.

On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these
petitions, amending Resolution No. 07-0407 by renaming the legislative district in
question as Shariff Kabunsuan Province with Cotabato City (formerly First District
of Maguindanao with Cotabato City).[9]

In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for
Representative of Shariff Kabunsuan with Cotabato City, prayed for the nullification
of COMELEC Resolution No. 7902 and the exclusion from canvassing of the votes
cast in Cotabato City for that office. Sema contended that Shariff Kabunsuan is
entitled to one representative in Congress under Section 5 (3), Article VI of the
Constitution[10] and Section 3 of the Ordinance appended to the Constitution.[11]
Thus, Sema asserted that the COMELEC acted without or in excess of its jurisdiction
in issuing Resolution No. 7902 which maintained the status quo in Maguindanaos
first legislative district despite the COMELECs earlier directive in Resolution No.

In his Comment, respondent Dilangalen countered that Sema is estopped from

questioning COMELEC Resolution No. 7902 because in her certificate of candidacy
filed on 29 March 2007, Sema indicated that she was seeking election as
representative of Shariff Kabunsuan including Cotabato City. Respondent Dilangalen
added that COMELEC Resolution No. 7902 is constitutional because it did not
apportion a legislative district for Shariff Kabunsuan or reapportion the legislative
districts in Maguindanao but merely renamed Maguindanaos first legislative district.
Respondent Dilangalen further claimed that the COMELEC could not reapportion
Maguindanaos first legislative district to make Cotabato City its sole component unit
as the power to reapportion legislative districts lies exclusively with Congress, not to
mention that Cotabato City does not meet the minimum population requirement
under Section 5 (3), Article VI of the Constitution for the creation of a legislative
district within a city.[13]

144

Sema filed a Consolidated Reply controverting the matters raised in respondents

Comments and reiterating her claim that the COMELEC acted ultra vires in issuing
Resolution No. 7902.

In the Resolution of 4 September 2007, the Court required the parties in G.R. No.
177597 to comment on the issue of whether a province created by the ARMM
Regional Assembly under Section 19, Article VI of RA 9054 is entitled to one
representative in the House of Representatives without need of a national law
creating a legislative district for such new province. The parties submitted their
compliance as follows:

(1) Sema answered the issue in the affirmative on the following grounds: (a) the
Court in Felwa v. Salas[14] stated that when a province is created by statute, the
corresponding representative district comes into existence neither by authority of that
statute which cannot provide otherwise nor by apportionment, but by operation of the
Constitution, without a reapportionment; (b) Section 462 of Republic Act No. 7160
(RA 7160) affirms the apportionment of a legislative district incident to the creation
of a province; and (c) Section 5 (3), Article VI of the Constitution and Section 3 of
the Ordinance appended to the Constitution mandate the apportionment of a
legislative district in newly created provinces.

(2) The COMELEC, again represented by the OSG, apparently abandoned its earlier
stance on the propriety of issuing Resolution Nos. 07-0407 and 7902 and joined
causes with Sema, contending that Section 5 (3), Article VI of the Constitution is
self-executing. Thus, every new province created by the ARMM Regional Assembly
is ipso facto entitled to one representative in the House of Representatives even in
the absence of a national law; and

(3) Respondent Dilangalen answered the issue in the negative on the following
grounds: (a) the province contemplated in Section 5 (3), Article VI of the
Constitution is one that is created by an act of Congress taking into account the
provisions in RA 7160 on the creation of provinces; (b) Section 3, Article IV of RA
9054 withheld from the ARMM Regional Assembly the power to enact measures
relating to national elections, which encompasses the apportionment of legislative
districts for members of the House of Representatives; (c) recognizing a legislative
district in every province the ARMM Regional Assembly creates will lead to the
disproportionate representation of the ARMM in the House of Representatives as the
Regional Assembly can create provinces without regard to the requirements in
Section 461 of RA 7160; and (d) Cotabato City, which has a population of less than
250,000, is not entitled to a representative in the House of Representatives.

On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral
arguments on the following issues: (1) whether Section 19, Article VI of RA 9054,
delegating to the ARMM Regional Assembly the power to create provinces, is
constitutional; and (2) if in the affirmative, whether a province created under Section
19, Article VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative district for such
new province.[15]

145

Section 461 of RA 7160 on the creation of provinces contravenes Section 10, Article
X of the Constitution and the Equal Protection Clause; and

In compliance with the Resolution dated 27 November 2007, the parties in G.R. No.
177597 filed their respective Memoranda on the issues raised in the oral arguments.
[16] On the question of the constitutionality of Section 19, Article VI of RA 9054,
the parties in G.R. No. 177597 adopted the following positions:

(3) The COMELEC, through the OSG, joined causes with respondent Dilangalen
(thus effectively abandoning the position the COMELEC adopted in its Compliance
with the Resolution of 4 September 2007) and contended that Section 19, Article VI
of RA 9054 is unconstitutional because (a) it contravenes Section 10 and Section 6,
[20] Article X of the Constitution and (b) the power to create provinces was withheld
from the autonomous regions under Section 20, Article X of the Constitution.

(1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a
valid delegation by Congress to the ARMM of the power to create provinces under
Section 20 (9), Article X of the Constitution granting to the autonomous regions,
through their organic acts, legislative powers over other matters as may be
authorized by law for the promotion of the general welfare of the people of the
region and (b) as an amendment to Section 6 of RA 7160.[17] However, Sema
concedes that, if taken literally, the grant in Section 19, Article VI of RA 9054 to the
ARMM Regional Assembly of the power to prescribe standards lower than those
mandated in RA 7160 in the creation of provinces contravenes Section 10, Article X
of the Constitution.[18] Thus, Sema proposed that Section 19 should be construed as
prohibiting the Regional Assembly from prescribing standards x x x that do not
comply with the minimum criteria under RA 7160.[19]

On the question of whether a province created under Section 19, Article VI of RA

9054 is entitled to one representative in the House of Representatives without need
of a national law creating a legislative district for such new province, Sema and
respondent Dilangalen reiterated in their Memoranda the positions they adopted in
their Compliance with the Resolution of 4 September 2007. The COMELEC deemed
it unnecessary to submit its position on this issue considering its stance that Section
19, Article VI of RA 9054 is unconstitutional.

(2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054 is

unconstitutional on the following grounds: (a) the power to create provinces was not
among those granted to the autonomous regions under Section 20, Article X of the
Constitution and (b) the grant under Section 19, Article VI of RA 9054 to the ARMM
Regional Assembly of the power to prescribe standards lower than those mandated in

The pendency of the petition in G.R. No. 178628 was disclosed during the oral
arguments on 27 November 2007. Thus, in the Resolution of 19 February 2008, the
Court ordered G.R. No. 178628 consolidated with G.R. No. 177597. The petition in
G.R. No. 178628 echoed Sema's contention that the COMELEC acted ultra vires in
issuing Resolution No. 7902 depriving the voters of Cotabato City of a representative

146

in the House of Representatives. In its Comment to the petition in G.R. No. 178628,
the COMELEC, through the OSG, maintained the validity of COMELEC Resolution
No. 7902 as a temporary measure pending the enactment by Congress of the
appropriate law.

(2) whether the proclamation of respondent Dilangalen as representative of Shariff

Kabunsuan Province with Cotabato City mooted the petition in G.R. No. 177597.

The Issues

The petitions raise the following issues:

(B) On the merits

I. In G.R. No. 177597:

(A) Preliminarily

(1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test the
constitutionality of COMELEC Resolution No. 7902; and

(1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional
Assembly the power to create provinces, cities, municipalities and barangays, is
constitutional; and

(2) if in the affirmative, whether a province created by the ARMM Regional

Assembly under MMA Act 201 pursuant to Section 19, Article VI of RA 9054 is
entitled to one representative in the House of Representatives without need of a
national law creating a legislative district for such province.

147

II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No.
7902 is valid for maintaining the status quo in the first legislative district of
Maguindanao (as Shariff Kabunsuan Province with Cotabato City [formerly First
District of Maguindanao with Cotabato City]), despite the creation of the Province of
Shariff Kabunsuan out of such district (excluding Cotabato City).

The Ruling of the Court

On the Preliminary Matters

The petitions have no merit. We rule that (1) Section 19, Article VI of RA 9054 is
unconstitutional insofar as it grants to the ARMM Regional Assembly the power to
create provinces and cities; (2) MMA Act 201 creating the Province of Shariff
Kabunsuan is void; and (3) COMELEC Resolution No. 7902 is valid.

The Writ of Prohibition is Appropriate

to Test the Constitutionality of

148

Election Laws, Rules and Regulations

The purpose of the writ of Certiorari is to correct grave abuse of discretion by any
tribunal, board, or officer exercising judicial or quasi-judicial functions.[21] On the
other hand, the writ of Mandamus will issue to compel a tribunal, corporation, board,
officer, or person to perform an act which the law specifically enjoins as a duty.[22]
True, the COMELEC did not issue Resolution No. 7902 in the exercise of its judicial
or quasi-judicial functions.[23] Nor is there a law which specifically enjoins the
COMELEC to exclude from canvassing the votes cast in Cotabato City for
representative of Shariff Kabunsuan Province with Cotabato City. These, however,
do not justify the outright dismissal of the petition in G.R. No. 177597 because Sema
also prayed for the issuance of the writ of Prohibition and we have long recognized
this writ as proper for testing the constitutionality of election laws, rules, and
regulations.[24]

There is also no merit in the claim that respondent Dilangalens proclamation as

winner in the 14 May 2007 elections for representative of Shariff Kabunsuan
Province with Cotabato City mooted this petition. This case does not concern
respondent Dilangalens election. Rather, it involves an inquiry into the validity of
COMELEC Resolution No. 7902, as well as the constitutionality of MMA Act 201
and Section 19, Article VI of RA 9054. Admittedly, the outcome of this petition, one
way or another, determines whether the votes cast in Cotabato City for representative
of the district of Shariff Kabunsuan Province with Cotabato City will be included in
the canvassing of ballots. However, this incidental consequence is no reason for us
not to proceed with the resolution of the novel issues raised here. The Courts ruling
in these petitions affects not only the recently concluded elections but also all the
other succeeding elections for the office in question, as well as the power of the
ARMM Regional Assembly to create in the future additional provinces.

On the Main Issues

Respondent Dilangalens Proclamation

Does Not Moot the Petition

Whether the ARMM Regional Assembly

149

Can Create the Province of Shariff Kabunsuan

The creation of local government units is governed by Section 10, Article X of the
Constitution, which provides:

Second, such creation must not conflict with any provision of the Constitution.
Third, there must be a plebiscite in the political units affected.

There is neither an express prohibition nor an express grant of authority in the

Constitution for Congress to delegate to regional or local legislative bodies the
power to create local government units. However, under its plenary legislative
powers, Congress can delegate to local legislative bodies the power to create local
government units, subject to reasonable standards and provided no conflict arises
with any provision of the Constitution. In fact, Congress has delegated to provincial
boards, and city and municipal councils, the power to create barangays within their
jurisdiction,[25] subject to compliance with the criteria established in the Local
Government Code, and the plebiscite requirement in Section 10, Article X of the
Constitution. However, under the Local Government Code, only x x x an Act of
Congress can create provinces, cities or municipalities.[26]

Sec. 10. No province, city, municipality, or barangay may be created, divided,

merged, abolished or its boundary substantially altered except in accordance with the
criteria established in the local government code and subject to approval by a
majority of the votes cast in a plebiscite in the political units directly affected.
Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM
Regional Assembly the power to create provinces, cities, municipalities and
barangays within the ARMM. Congress made the delegation under its plenary
legislative powers because the power to create local government units is not one of
the express legislative powers granted by the Constitution to regional legislative
bodies.[27] In the present case, the question arises whether the delegation to the
ARMM Regional Assembly of the power to create provinces, cities, municipalities
and barangays conflicts with any provision of the Constitution.
Thus, the creation of any of the four local government units province, city,
municipality or barangay must comply with three conditions. First, the creation of a
local government unit must follow the criteria fixed in the Local Government Code.

150

There is no provision in the Constitution that conflicts with the delegation to regional
legislative bodies of the power to create municipalities and barangays, provided
Section 10, Article X of the Constitution is followed. However, the creation of
provinces and cities is another matter. Section 5 (3), Article VI of the Constitution
provides, Each city with a population of at least two hundred fifty thousand, or each
province, shall have at least one representative in the House of Representatives.
Similarly, Section 3 of the Ordinance appended to the Constitution provides, Any
province that may hereafter be created, or any city whose population may hereafter
increase to more than two hundred fifty thousand shall be entitled in the immediately
following election to at least one Member x x x.

Clearly, a province cannot be created without a legislative district because it will

violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the
Ordinance appended to the Constitution. For the same reason, a city with a
population of 250,000 or more cannot also be created without a legislative district.
Thus, the power to create a province, or a city with a population of 250,000 or more,
requires also the power to create a legislative district. Even the creation of a city with
a population of less than 250,000 involves the power to create a legislative district
because once the citys population reaches 250,000, the city automatically becomes
entitled to one representative under Section 5 (3), Article VI of the Constitution and
Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a
province or city inherently involves the power to create a legislative district.

Legislative Districts are Created or Reapportioned

Only by an Act of Congress

Under the present Constitution, as well as in past[28] Constitutions, the power to

increase the allowable membership in the House of Representatives, and to
reapportion legislative districts, is vested exclusively in Congress. Section 5, Article
VI of the Constitution provides:

SECTION 5. (1) The House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law, who shall be elected
from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of registered national,
regional, and sectoral parties or organizations.

For Congress to delegate validly the power to create a province or city, it must also
validly delegate at the same time the power to create a legislative district. The
threshold issue then is, can Congress validly delegate to the ARMM Regional
Assembly the power to create legislative districts for the House of Representatives?
The answer is in the negative.

151

xxxx

allowable membership of the House of Representatives can be increased, and new

legislative districts of Congress can be created, only through a national law passed
by Congress. In Montejo v. COMELEC,[29] we held that the power of redistricting x
x x is traditionally regarded as part of the power (of Congress) to make laws, and
thus is vested exclusively in Congress.

(3) Each legislative district shall comprise, as far as practicable, contiguous,

compact, and adjacent territory. Each city with a population of at least two hundred
fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this
section. (Emphasis supplied)

This textual commitment to Congress of the exclusive power to create or reapportion

legislative districts is logical. Congress is a national legislature and any increase in
its allowable membership or in its incumbent membership through the creation of
legislative districts must be embodied in a national law. Only Congress can enact
such a law. It would be anomalous for regional or local legislative bodies to create or
reapportion legislative districts for a national legislature like Congress. An inferior
legislative body, created by a superior legislative body, cannot change the
membership of the superior legislative body.

The creation of the ARMM, and the grant of legislative powers to its Regional
Assembly under its organic act, did not divest Congress of its exclusive authority to
create legislative districts. This is clear from the Constitution and the ARMM
Organic Act, as amended. Thus, Section 20, Article X of the Constitution provides:

Section 5 (1), Article VI of the Constitution vests in Congress the power to increase,
through a law, the allowable membership in the House of Representatives. Section 5
(4) empowers Congress to reapportion legislative districts. The power to reapportion
legislative districts necessarily includes the power to create legislative districts out of
existing ones. Congress exercises these powers through a law that Congress itself
enacts, and not through a law that regional or local legislative bodies enact. The

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide
for legislative powers over:

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(1) Administrative organization;

Nothing in Section 20, Article X of the Constitution authorizes autonomous regions,

expressly or impliedly, to create or reapportion legislative districts for Congress.

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic
Act, provides, The Regional Assembly may exercise legislative power x x x except
on the following matters: x x x (k) National elections. x x x. Since the ARMM
Regional Assembly has no legislative power to enact laws relating to national
elections, it cannot create a legislative district whose representative is elected in
national elections. Whenever Congress enacts a law creating a legislative district, the
first representative is always elected in the next national elections from the
effectivity of the law.[30]

Indeed, the office of a legislative district representative to Congress is a national

office, and its occupant, a Member of the House of Representatives, is a national
official.[31] It would be incongruous for a regional legislative body like the ARMM
Regional Assembly to create a national office when its legislative powers extend
only to its regional territory. The office of a district representative is maintained by
national funds and the salary of its occupant is paid out of national funds. It is a selfevident inherent limitation on the legislative powers of every local or regional
legislative body that it can only create local or regional offices, respectively, and it
can never create a national office.

(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region.

To allow the ARMM Regional Assembly to create a national office is to allow its
legislative powers to operate outside the ARMMs territorial jurisdiction. This
violates Section 20, Article X of the Constitution which expressly limits the coverage
of the Regional Assemblys legislative powers [w]ithin its territorial jurisdiction x x
x.

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The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the
exclusive nature of Congress power to create or reapportion legislative districts by
abstaining from creating a legislative district for Shariff Kabunsuan. Section 5 of
MMA Act 201 provides that:

Except as may be provided by national law, the existing legislative district, which
includes Cotabato City as a part thereof, shall remain. (Emphasis supplied)

However, a province cannot legally be created without a legislative district because

the Constitution mandates that each province shall have at least one representative.
Thus, the creation of the Province of Shariff Kabunsuan without a legislative district
is unconstitutional.

Each legislative district shall comprise, as far as practicable, contiguous, compact,

and adjacent territory. Each city with a population of at least two hundred fifty
thousand, or each province, shall have at least one representative. (Emphasis
supplied)

and Section 3 of the Ordinance appended to the Constitution, which states:

Any province that may hereafter be created, or any city whose population may
hereafter increase to more than two hundred fifty thousand shall be entitled in the
immediately following election to at least one Member or such number of Members
as it may be entitled to on the basis of the number of its inhabitants and according to
the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution.
The number of Members apportioned to the province out of which such new
province was created or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission on
Elections but such adjustment shall not be made within one hundred and twenty days
before the election. (Emphasis supplied)

Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the
Constitution, which provides:

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serve as bases for the conclusion that the Province of Shariff Kabunsuan, created on
29 October 2006, is automatically entitled to one member in the House of
Representatives in the 14 May 2007 elections. As further support for her stance,
petitioner invokes the statement in Felwa that when a province is created by statute,
the corresponding representative district comes into existence neither by authority of
that statute which cannot provide otherwise nor by apportionment, but by operation
of the Constitution, without a reapportionment.

The contention has no merit.

First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA
4695), creating the provinces of Benguet, Mountain Province, Ifugao, and KalingaApayao and providing for congressional representation in the old and new provinces,
was unconstitutional for creati[ng] congressional districts without the apportionment
provided in the Constitution. The Court answered in the negative, thus:

The Constitution ordains:

The House of Representatives shall be composed of not more than one hundred and
twenty Members who shall be apportioned among the several provinces as nearly as
may be according to the number of their respective inhabitants, but each province
shall have at least one Member. The Congress shall by law make an apportionment
within three years after the return of every enumeration, and not otherwise. Until
such apportionment shall have been made, the House of Representatives shall have
the same number of Members as that fixed by law for the National Assembly, who
shall be elected by the qualified electors from the present Assembly districts. Each
representative district shall comprise as far as practicable, contiguous and compact
territory.

Pursuant to this Section, a representative district may come into existence: (a)
indirectly, through the creation of a province for each province shall have at least one
member in the House of Representatives; or (b) by direct creation of several
representative districts within a province. The requirements concerning the
apportionment of representative districts and the territory thereof refer only to the
second method of creation of representative districts, and do not apply to those
incidental to the creation of provinces, under the first method. This is deducible, not
only from the general tenor of the provision above quoted, but, also, from the fact
that the apportionment therein alluded to refers to that which is made by an Act of
Congress. Indeed, when a province is created by statute, the corresponding
representative district, comes into existence neither by authority of that statute which
cannot provide otherwise nor by apportionment, but by operation of the Constitution,
without a reapportionment.

There is no constitutional limitation as to the time when, territory of, or other

conditions under which a province may be created, except, perhaps, if the
consequence thereof were to exceed the maximum of 120 representative districts
prescribed in the Constitution, which is not the effect of the legislation under
consideration. As a matter of fact, provinces have been created or subdivided into
other provinces, with the consequent creation of additional representative districts,
without complying with the aforementioned requirements.[32] (Emphasis supplied)

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Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly
created legislative districts indirectly through a special law enacted by Congress
creating a province and (2) the creation of the legislative districts will not result in
breaching the maximum number of legislative districts provided under the 1935
Constitution. Felwa does not apply to the present case because in Felwa the new
provinces were created by a national law enacted by Congress itself. Here, the new
province was created merely by a regional law enacted by the ARMM Regional
Assembly.

What Felwa teaches is that the creation of a legislative district by Congress does not
emanate alone from Congress power to reapportion legislative districts, but also from
Congress power to create provinces which cannot be created without a legislative
district. Thus, when a province is created, a legislative district is created by operation
of the Constitution because the Constitution provides that each province shall have at
least one representative in the House of Representatives. This does not detract from
the constitutional principle that the power to create legislative districts belongs
exclusively to Congress. It merely prevents any other legislative body, except
Congress, from creating provinces because for a legislative body to create a province
such legislative body must have the power to create legislative districts. In short,
only an act of Congress can trigger the creation of a legislative district by operation
of the Constitution. Thus, only Congress has the power to create, or trigger the
creation of, a legislative district.

Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to

Shariff Kabunsuan upon its creation, this will leave Cotabato City as the lone
component of the first legislative district of Maguindanao. However, Cotabato City
cannot constitute a legislative district by itself because as of the census taken in
2000, it had a population of only 163,849. To constitute Cotabato City alone as the
surviving first legislative district of Maguindanao will violate Section 5 (3), Article
VI of the Constitution which requires that [E]ach city with a population of at least
two hundred fifty thousand x x x, shall have at least one representative.

Second. Semas theory also undermines the composition and independence of the
House of Representatives. Under Section 19,[33] Article VI of RA 9054, the ARMM
Regional Assembly can create provinces and cities within the ARMM with or
without regard to the criteria fixed in Section 461 of RA 7160, namely: minimum
annual income of P20,000,000, and minimum contiguous territory of 2,000 square
kilometers or minimum population of 250,000.[34] The following scenarios thus
become distinct possibilities:

(1) An inferior legislative body like the ARMM Regional Assembly can create 100 or
more provinces and thus increase the membership of a superior legislative body, the
House of Representatives, beyond the maximum limit of 250 fixed in the
Constitution (unless a national law provides otherwise);

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(2) The proportional representation in the House of Representatives based on one

representative for at least every 250,000 residents will be negated because the
ARMM Regional Assembly need not comply with the requirement in Section 461(a)
(ii) of RA 7160 that every province created must have a population of at least
250,000; and

So, you mean to say [a] Local Government can create legislative district[s] and pack
Congress with their own representatives [?]

Atty. Vistan II:[35]

(3) Representatives from the ARMM provinces can become the majority in the
House of Representatives through the ARMM Regional Assemblys continuous
creation of provinces or cities within the ARMM.

Yes, Your Honor, because the Constitution allows that.

Justice Carpio:

The following exchange during the oral arguments of the petition in G.R. No.
177597 highlights the absurdity of Semas position that the ARMM Regional
Assembly can create provinces:

So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x
x x and, therefore, they can have thirty-five (35) new representatives in the House of
Representatives without Congress agreeing to it, is that what you are saying? That
can be done, under your theory[?]

Atty. Vistan II:

Justice Carpio:
Yes, Your Honor, under the correct factual circumstances.

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So, they can also create one thousand (1000) new provinces, sen[d] one thousand
(1000) representatives to the House of Representatives without a national law[,] that
is legally possible, correct?
Justice Carpio:

Under your theory, the ARMM legislature can create thirty-five (35) new provinces,
there may be x x x [only] one hundred thousand (100,000) [population], x x x, and
they will each have one representative x x x to Congress without any national law, is
that what you are saying?

Atty. Vistan II:

Yes, Your Honor.[36] (Emphasis supplied)

Atty. Vistan II:

Without law passed by Congress, yes, Your Honor, that is what we are saying.

xxxx

Neither the framers of the 1987 Constitution in adopting the provisions in Article X
on regional autonomy,[37] nor Congress in enacting RA 9054, envisioned or
intended these disastrous consequences that certainly would wreck the tri-branch
system of government under our Constitution. Clearly, the power to create or
reapportion legislative districts cannot be delegated by Congress but must be
exercised by Congress itself. Even the ARMM Regional Assembly recognizes this.

Justice Carpio:

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The Constitution empowered Congress to create or reapportion legislative districts,

not the regional assemblies. Section 3 of the Ordinance to the Constitution which
states, [A]ny province that may hereafter be created x x x shall be entitled in the
immediately following election to at least one Member, refers to a province created
by Congress itself through a national law. The reason is that the creation of a
province increases the actual membership of the House of Representatives, an
increase that only Congress can decide. Incidentally, in the present 14th Congress,
there are 219[38] district representatives out of the maximum 250 seats in the House
of Representatives. Since party-list members shall constitute 20 percent of total
membership of the House, there should at least be 50 party-list seats available in
every election in case 50 party-list candidates are proclaimed winners. This leaves
only 200 seats for district representatives, much less than the 219 incumbent district
representatives. Thus, there is a need now for Congress to increase by law the
allowable membership of the House, even before Congress can create new provinces.

It is axiomatic that organic acts of autonomous regions cannot prevail over the
Constitution. Section 20, Article X of the Constitution expressly provides that the
legislative powers of regional assemblies are limited [w]ithin its territorial
jurisdiction and subject to the provisions of the Constitution and national laws, x x x.
The Preamble of the ARMM Organic Act (RA 9054) itself states that the ARMM
Government is established within the framework of the Constitution. This follows
Section 15, Article X of the Constitution which mandates that the ARMM shall be
created x x x within the framework of this Constitution and the national sovereignty
as well as territorial integrity of the Republic of the Philippines.

constitutionality of the creation of municipalities and barangays that does not comply
with the criteria established in Section 461 of RA 7160, as mandated in Section 10,
Article X of the Constitution, because the creation of such municipalities and
barangays does not involve the creation of legislative districts. We leave the
resolution of this issue to an appropriate case.

In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to

the ARMM Regional Assembly the power to create provinces and cities, is void for
being contrary to Section 5 of Article VI and Section 20 of Article X of the
Constitution, as well as Section 3 of the Ordinance appended to the Constitution.
Only Congress can create provinces and cities because the creation of provinces and
cities necessarily includes the creation of legislative districts, a power only Congress
can exercise under Section 5, Article VI of the Constitution and Section 3 of the
Ordinance appended to the Constitution. The ARMM Regional Assembly cannot
create a province without a legislative district because the Constitution mandates that
every province shall have a legislative district. Moreover, the ARMM Regional
Assembly cannot enact a law creating a national office like the office of a district
representative of Congress because the legislative powers of the ARMM Regional
Assembly operate only within its territorial jurisdiction as provided in Section 20,
Article X of the Constitution. Thus, we rule that MMA Act 201, enacted by the
ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is void.

Resolution No. 7902 Complies with the Constitution

The present case involves the creation of a local government unit that necessarily
involves also the creation of a legislative district. The Court will not pass upon the

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Consequently, we hold that COMELEC Resolution No. 7902, preserving the

geographic and legislative district of the First District of Maguindanao with Cotabato
City, is valid as it merely complies with Section 5 of Article VI and Section 20 of
Article X of the Constitution, as well as Section 1 of the Ordinance appended to the
Constitution.

WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054

UNCONSTITUTIONAL insofar as it grants to the Regional Assembly of the
Autonomous Region in Muslim Mindanao the power to create provinces and cities.
Thus, we declare VOID Muslim Mindanao Autonomy Act No. 201 creating the
Province of Shariff Kabunsuan. Consequently, we rule that COMELEC Resolution
No. 7902 is VALID.

Let a copy of this ruling be served on the President of the Senate and the Speaker of
the House of Representatives.

SO ORDERED.

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