Title

ARTURO TOLENTINO AND ARTURO MOJICA VS. COMMISSION ON ELECTIONS,

SENATOR RALPH RECTO AND SENATOR GREGORIO HONASAN
G.R. No. 148334. January 21, 2004

Facts
Following the appointment of Senator Teofisto Guingona as Vice-President of the Philippines,
the Senate on February 8, 2001 passed Resolution No. 84, calling on COMELEC to fill the
vacancy through a special election to be held simultaneously with the regular elections on May
14, 2001. Twelve senators, with 6-year term each, were due to be elected in that election. The
resolution further provides that the Senatorial candidate garnering the 13th highest number of
votes shall serve only for the unexpired term of former Senator Teofisto Guingona, Jr. which
ends on June 30, 2004.
On June 5, 2001, after canvassing the election results, the COMELEC proclaimed 13 candidates
as the elected Senators, with the first 12 Senators to serve the unexpired term of 6 years and the
13th Senator to serve the full term of 3 years of Senator Teofisto Guingona, Jr. Gregorio
Honasan ranked 13th.
Petitioners Arturo Tolentino and Arturo Mojica, as voters and taxpayers, filed the instant petition
for prohibition, praying for the nullification of Resolution No. 01-005.

Issue
Whether or not the Special Election held on May 14, 2001 should be nullified:
(1) for failure to give notice by the body empowered to and
(2) for not following the procedure of filling up the vacancy pursuant to R.A. 6645.

Decision
(1) Where the law does not fix the time and place for holding a special election but
empowers some authority to fix the time and place after the happening of a condition
precedent, the statutory
provision on the giving of notice is considered mandatory, and failure to do so will render
the election a nullity.

The test in determining the validity of a special election in relation to the failure to give
notice of the special election is whether want of notice has resulted in misleading a
sufficient number of voters as would change the result of special election. If the lack of
official notice misled a substantial number of voters who wrongly believed that there was
no special election to fill vacancy, a choice by small percentage of voters would be void.
(2) There is no basis in the petitioners claim that the manner by which the COMELEC
conducted the special Senatorial election on May 14, 2001 is a nullity because the
COMELEC failed to document separately the candidates and to canvass separately the
votes cast for the special election. No such requirement exists in our election laws. What
is mandatory under Section 2 of R.A. 6645 is that the COMELEC fix the date of
election, if necessary, and state among others, the office/s to be voted for.
Significantly, the method adopted by the COMELEC in conducting the special election
on May 14, 2001 merely implemented the procedure specified by the Senate in
Resolution No. 84. Initially, the original draft of said resolution as introduced by Senator
Francisco Tatad made no mention of the manner by which the seat vacated by former
Senator Guingona would be filled. However, upon the suggestion of Senator Raul Roco,
the Senate agreed to amend the resolution by providing as it now appears, that the
senatorial cabdidate garnering the 13th highest number of votes shall serve only for the
unexpired term of former Senator Teofisto Giongona, Jr.

Pimentel vs. COMELEC GR 161658, Nov. 3, 2003

Facts: Congress passed RA 9165, Comprehensive Dangerous Drugs Act of 2002, and makes it
mandatory for candidates for public office, students of secondary and tertiary schools, officers
and employees of public and private offices, and persons charged before the prosecutors office
with certain offenses, among other personalities, to undergo a drug test. Hence, Senator
Pimentel, who is a senatorial candidate for the 2004 synchronized elections, challenged Section
36(g) of the said law.
Issue: is the mandatory drug testing of candidates for public office an unconstitutional imposition
of additional qualification on candidates for Senator?

Held: Yes. Section 36 (g) of RA 9165, requiring all candidates for public office whether
appointed or elected both in the national or local government undergo a mandatory drug test is
UNCONSITUTIONAL. Under Sec.3, Art. VI of the Constitution, an aspiring candidate for
Senator needs only to meet 5 qualifications: (1) citizenship, (2) voter registration, (3) literacy, (4)
age, and (5) residency. The Congress cannot validly amend or otherwise modify these

qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional

mandate, or alter or enlarge the Constitution. 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. 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.
Veterans Federation Party v. COMELEC
[G.R. No. 136781. October 6, 2000]
Facts:
COMELEC proclaimed 14 party-list representatives from 13 parties which obtained at least
2% of the total number of votes cast for the party-list system as members of the House of
Representatives. Upon petition for respondents, who were party-list organizations, it
proclaimed 38 additional party-list representatives although they obtained less than 2% of the
total number of votes cast for the party-list system on the ground that under the Constitution,
it is mandatory that at least 20% of the members of the House of Representatives come from
the party-list representatives.
Issue:
Is the twenty percent allocation for party-list representatives mentioned in Section 5 (2),
Article VI of the Constitution, mandatory or is it merely a ceiling? In other words, should the
twenty percent allocation for party-list solons be filled up completely and all the time?
Held:
It is not mandatory. It merely provides a ceiling for the party-list seats in the House of
Representatives. The Constitution vested Congress with the broad power to define and
prescribe the mechanics of the party-list system of representatives. In the exercise of its
constitutional prerogative, Congress deemed it necessary to require parties participating in
the system to obtain at least 2% of the total votes cast for the party list system to be entitled
to a party-list seat. Congress wanted to ensure that only those parties having a sufficient
number of constituents deserving of representation are actually represented in Congress.
FORMULA FOR

determination of total number of party-list representatives = #district representatives/.80 x

.20

additional representatives of first party = # of votes of first party/ # of votes of party list
system

additional seats for concerned party = # of votes of concerned party/ # votes of first party
x additional seats for concerned party

Issue:
Are the two percent threshold requirement and the three-seat limit provided in Section 11 (b)
of RA 7941 constitutional?

Held:
Yes. In imposing a two percent threshold, Congress wanted to ensure that only those parties,
organizations and coalitions having a sufficient number of constituents deserving of
representation are actually represented in Congress. This intent can be gleaned from the
deliberations on the proposed bill. The two percent threshold is consistent not only with the
intent of the framers of the Constitution and the law, but with the very essence of
"representation." Under a republican or representative state, all government authority
emanates from the people, but is exercised by representatives chosen by them. But to have
meaningful representation, the elected persons must have the mandate of a sufficient number
of people. Otherwise, in a legislature that features the party-list system, the result might be
the proliferation of small groups which are incapable of contributing significant legislation,
and which might even pose a threat to the stability of Congress. Thus, even legislative
districts are apportioned according to "the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio" to ensure meaningful local representation.

Issue:
How should the additional seats of a qualified party be determined?
Held:
Step One. There is no dispute among the petitioners, the public and the private respondents,
as well as the members of this Court that the initial step is to rank all the participating parties,
organizations and coalitions from the highest to the lowest based on the number of votes they

each received. Then the ratio for each party is computed by dividing its votes by the total
votes cast for all the parties participating in the system. All parties with at least two percent
of the total votes are guaranteed one seat each. Only these parties shall be considered in the
computation of additional seats. The party receiving the highest number of votes shall
thenceforth be referred to as the first party.
Step Two. The next step is to determine the number of seats the first party is entitled to, in
order to be able to compute that for the other parties. Since the distribution is based on
proportional representation, the number of seats to be allotted to the other parties cannot
possibly exceed that to which the first party is entitled by virtue of its obtaining the most
number of votes.
Step Three The next step is to solve for the number of additional seats that the other qualified
parties are entitled to, based on proportional representation.
NOTE: This case is consolidated with BAYAN Muna vs COMELEC (G.R. No. 179295).
In July and August 2007, the COMELEC, sitting as the National Board of Canvassers, made a
partial proclamation of the winners in the party-list elections which was held in May 2007.
In proclaiming the winners and apportioning their seats, the COMELEC considered the
following rules:
1. In the lower house, 80% shall comprise the seats for legislative districts, while the remaining
20% shall come from party-list representatives (Sec. 5, Article VI, 1987 Constitution);
2. Pursuant to Sec. 11b of R.A. 7941 or the Party-List System Act, a party-list which garners at
least 2% of the total votes cast in the party-list elections shall be entitled to one seat;
3. If a party-list garners at least 4%, then it is entitled to 2 seats; if it garners at least 6%, then it is
entitled to 3 seats this is pursuant to the 2-4-6 rule or the Panganiban Formula from the case of
Veterans Federation Party vs COMELEC.
4. In no way shall a party be given more than three seats even if if garners more than 6% of the
votes cast for the party-list election (3 seat cap rule, same case).
The Barangay Association for National Advancement and Transparency (BANAT), a party-list
candidate, questioned the proclamation as well as the formula being used. BANAT averred that
the 2% threshold is invalid; Sec. 11 of RA 7941 is void because its provision that a party-list, to
qualify for a congressional seat, must garner at least 2% of the votes cast in the party-list
election, is not supported by the Constitution. Further, the 2% rule creates a mathematical
impossibility to meet the 20% party-list seat prescribed by the Constitution.
BANAT also questions if the 20% rule is a mere ceiling or is it mandatory. If it is mandatory,
then with the 2% qualifying vote, there would be instances when it would be impossible to fill
the prescribed 20% share of party-lists in the lower house. BANAT also proposes a new
computation (which shall be discussed in the HELD portion of this digest).

On the other hand, BAYAN MUNA, another party-list candidate, questions the validity of the 3
seat rule (Section 11a of RA 7941). It also raised the issue of whether or not major political
parties are allowed to participate in the party-list elections or is the said elections limited to
sectoral parties.
ISSUES:
I. How is the 80-20 rule observed in apportioning the seats in the lower house?
II. Whether or not the 20% allocation for party-list representatives mandatory or a mere ceiling.
III. Whether or not the 2% threshold to qualify for a seat valid.
IV. How are party-list seats allocated?
V. Whether or not major political parties are allowed to participate in the party-list elections.
VI. Whether or not the 3 seat cap rule (3 Seat Limit Rule) is valid.
HELD:
I. The 80-20 rule is observed in the following manner: for every 5 seats allotted for legislative
districts, there shall be one seat allotted for a party-list representative. Originally, the 1987
Constitution provides that there shall be not more than 250 members of the lower house. Using
the 80-20 rule, 200 of that will be from legislative districts, and 50 would be from party-list
representatives. However, the Constitution also allowed Congress to fix the number of the
membership of the lower house as in fact, it can create additional legislative districts as it may
deem appropriate. As can be seen in the May 2007 elections, there were 220 district
representatives, hence applying the 80-20 rule or the 5:1 ratio, there should be 55 seats allotted
for party-list representatives.
How did the Supreme Court arrive at 55? This is the formula:
(Current Number of Legislative DistrictRepresentatives 0.80) x (0.20) = Number of Seats
Available to Party-List Representatives
Hence,
(220 0.80) x (0.20) = 55
II. The 20% allocation for party-list representatives is merely a ceiling meaning, the number of
party-list representatives shall not exceed 20% of the total number of the members of the lower
house. However, it is not mandatory that the 20% shall be filled.
III. No. Section 11b of RA 7941 is unconstitutional. There is no constitutional basis to allow that
only party-lists which garnered 2% of the votes cast are qualified for a seat and those which

garnered less than 2% are disqualified. Further, the 2% threshold creates a mathematical
impossibility to attain the ideal 80-20 apportionment. The Supreme Court explained:
To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for
the 100 participants in the party list elections. A party that has two percent of the votes cast, or
one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one
million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the
operation of the two percent threshold, this situation will repeat itself even if we increase the
available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus,
even if the maximum number of parties get two percent of the votes for every party, it is always
impossible for the number of occupied party-list seats to exceed 50 seats as long as the two
percent threshold is present.
It is therefore clear that the two percent threshold presents an unwarranted obstacle to the full
implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of
the broadest possible representation of party, sectoral or group interests in the House of
Representatives.
IV. Instead, the 2% rule should mean that if a party-list garners 2% of the votes cast, then it is
guaranteed a seat, and not qualified. This allows those party-lists garnering less than 2% to
also get a seat.
But how? The Supreme Court laid down the following rules:
1. The parties, organizations, and coalitions shall be ranked from the highest to the lowest based
on the number of votes they garnered during the elections.
2. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes
cast for the party-list system shall be entitled to one guaranteed seat each.
3. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be
entitled to additional seats in proportion to their total number of votes until all the additional
seats are allocated.
4. Each party, organization, or coalition shall be entitled to not more than three (3) seats.
In computing the additional seats, the guaranteed seats shall no longer be included because they
have already been allocated, at one seat each, to every two-percenter. Thus, the remaining
available seats for allocation as additional seats are the maximum seats reserved under the
Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a
provision in R.A. No. 7941 allowing for a rounding off of fractional seats.
In short, there shall be two rounds in determining the allocation of the seats. In the first round, all
party-lists which garnered at least 2% of the votes cast (called the two-percenters) are given their
one seat each. The total number of seats given to these two-percenters are then deducted from the
total available seats for party-lists. In this case, 17 party-lists were able to garner 2% each. There

are a total 55 seats available for party-lists hence, 55 minus 17 = 38 remaining seats. (Please
refer to the full text of the case for the tabulation).
The number of remaining seats, in this case 38, shall be used in the second round, particularly, in
determining, first, the additional seats for the two-percenters, and second, in determining seats
for the party-lists that did not garner at least 2% of the votes cast, and in the process filling up the
20% allocation for party-list representatives.
How is this done?
Get the total percentage of votes garnered by the party and multiply it against the remaining
number of seats. The product, which shall not be rounded off, will be the additional number of
seats allotted for the party list but the 3 seat limit rule shall still be observed.
Example:
In this case, the BUHAY party-list garnered the highest total vote of 1,169,234 which is 7.33%
of the total votes cast for the party-list elections (15,950,900).
Applying the formula above: (Percentage of vote garnered) x (remaining seats) = number of
additional seat
Hence, 7.33% x 38 = 2.79
Rounding off to the next higher number is not allowed so 2.79 remains 2. BUHAY is a twopercenter which means it has a guaranteed one seat PLUS additional 2 seats or a total of 3 seats.
Now if it so happens that BUHAY got 20% of the votes cast, it will still get 3 seats because the 3
seat limit rule prohibits it from having more than 3 seats.
Now after all the tw0-percenters were given their guaranteed and additional seats, and there are
still unoccupied seats, those seats shall be distributed to the remaining party-lists and those
higher in rank in the voting shall be prioritized until all the seats are occupied.
V. No. By a vote of 8-7, the Supreme Court continued to disallow major political parties (the
likes of UNIDO, LABAN, etc) from participating in the party-list elections.
Although the ponencia (Justice Carpio) did point out that there is no prohibition either from the
Constitution or from RA 7941 against major political parties from participating in the party-list
elections as the word party was not qualified and that even the framers of the Constitution in
their deliberations deliberately allowed major political parties to participate in the party-list
elections provided that they establish a sectoral wing which represents the marginalized (indirect
participation), Justice Puno, in his separate opinion, concurred by 7 other justices, explained that
the will of the people defeats the will of the framers of the Constitution precisely because it is the
people who ultimately ratified the Constitution and the will of the people is that only the
marginalized sections of the country shall participate in the party-list elections. Hence, major
political parties cannot participate in the party-list elections, directly or indirectly.

VI. Yes, the 3 seat limit rule is valid. This is one way to ensure that no one party shall dominate
the party-list system.
Borja, Jr. v. Comelec
Action:
Determination of the scope of constitutional provision barring elective officials, with the
exception of barangay officials, from serving more than three consecutive terms.
Facts:
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988 for
a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law,
upon the death of the incumbent, Cesar Borja. For the next two succeeding elections in 1992 and
1995, he was again re-elected as Mayor.
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of
Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja, Jr., who was also a
candidate for mayor, sought Capcos disqualification on the theory that the latter would have
already served as mayor for three consecutive terms by June 30, 1998 and would therefore be
ineligible to serve for another term after that.
The Second Division of the Commission on Elections ruled in favor of petitioner and declared
private respondent Capco disqualified from running for reelection as mayor of Pateros but in the
motion for reconsideration, majority overturned the original decision.
Issue:
1. w/n Capco has served for three consecutive terms as Mayor
2. w/n Capco can run again for Mayor in the next election
Held:
1. No. Capco was not elected to the office of mayor in the first term but simply found himself
thrust into it by operation of law. Neither had he served the full term because he only continued
the service, interrupted by the death, of the deceased mayor. A textual analysis supports the
ruling of the COMELEC that Art. X, Sec. 8 contemplates service by local officials for three
consecutive full terms as a result of election. It is not enough that an individual has served three
consecutive terms in an elective local officials, he must also have been elected to the same
position for the same number of times before the disqualification can apply.
2. Yes. Although he has already first served as mayor by succession, he has not actually served
three full terms in all for the purpose of applying the three-term limit. The three-term limit shall
apply when these 2 conditions concur: (1) the local official concerned has been elected three
consecutive times; and (2) he has fully served three consecutive terms.