Banat vs.

COMELEC
Facts:
On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives
Provided by the Constitution before the NBC. BANAT filed its petition because "the Chairman and the
Members of the COMELEC have recently been quoted in the national papers that the COMELEC is duty
bound to and shall implement the Veterans ruling, that is, would apply the Panganiban formula in
allocating party-list seats."

BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No. 07-88.
BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88.

On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to
reconsider its decision to use the Veterans formula as stated in its NBC Resolution No. 07-60 because
the Veterans formula is violative of the Constitution and of Republic Act No. 7941 (R.A. No. 7941). On the
same day, the COMELEC denied reconsideration during the proceedings of the NBC.

IssueS:
1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of the
Constitution mandatory or merely a ceiling?
2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?
3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat
constitutional?
4. How shall the party-list representative seats be allocated?
5. Does the Constitution prohibit the major political parties from participating in the party-list
elections? If not, can the major political parties be barred from participating in the party-list
elections?

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

Ratio:
Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of
party-list representatives found in the Constitution. However, we cannot allow the continued existence
of a provision in the law which will systematically prevent the constitutionally allocated 20% party-list
representatives from being filled. The three-seat cap, as a limitation to the number of seats that a
qualified party-list organization may occupy, remains a valid statutory device that prevents any party from
dominating the party-list elections.

We rule that, in computing the allocation of additional seats, the continued operation of the two
percent threshold for the distribution of the additional seats as found in the second clause of Section
11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it
mathematically impossible to achieve the maximum number of available party list seats when the
number of available party list seats exceeds 50. The continued operation of the two percent threshold in
the distribution of the additional seats frustrates the attainment of the permissive ceiling.

In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional
seats to the two-percenters. The percentage of votes garnered by each party-list candidate is arrived at
by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for
party-list candidates. 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 party’s
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 three-seat cap to determine the number of seats
each qualified party-list candidate is entitled.
 Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in
the party-list system. On the contrary, the framers of the Constitution clearly intended the major political
parties to participate in party-list elections through their sectoral wings. In fact, the members of the
Constitutional Commission voted down, 19-22, any permanent sectoral seats, and in the alternative the
reservation of the party-list system to the sectoral groups. In defining a "party" that participates in party-list
elections as either "a political party or a sectoral party," R.A. No. 7941 also clearly intended that major
political parties will participate in the party-list elections. Excluding 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.

In view of the inclusion of major political parties (according to Puno, J.)

The Court today effectively reversed the ruling in Ang Bagong Bayani v. COMELEC with regard to the
computation of seat allotments and the participation of major political parties in the party-list system. I
vote for the formula propounded by the majority as it benefits the party-list system but I regret that my
interpretation of Article VI, Section 5 of the Constitution with respect to the participation of the major
political parties in the election of party-list representatives is not in direct congruence with theirs, hence

There is no gainsaying the fact that the party-list parties are no match to our traditional political parties
in the political arena. This is borne out in the party-list elections held in 2001 where major political parties
were initially allowed to campaign and be voted for. The results confirmed the fear expressed by some
commissioners in the Constitutional Commission that major political parties would figure in the
disproportionate distribution of votes: of the 162 parties which participated, the seven major political
parties made it to the top 50. These seven parties garnered an accumulated 9.54% of the total number
of votes counted, yielding an average of 1.36% each, while the remaining 155 parties (including those
whose qualifications were contested) only obtained 90.45% or an average of 0.58% each. Of these
seven, three parties or 42.8% of the total number of the major parties garnered more than 2% of the total
number of votes each, a feat that would have entitled them to seat their members as party-list
representatives. In contrast, only about 4% of the total number of the remaining parties, or only 8 out of
the 155 parties garnered more than 2%.

In sum, the evils that faced our marginalized and underrepresented people at the time of the framing
of the 1987 Constitution still haunt them today. It is through the party-list system that the Constitution
sought to address this systemic dilemma. In ratifying the Constitution, our people recognized how the
interests of our poor and powerless sectoral groups can be frustrated by the traditional political parties
who have the machinery and chicanery to dominate our political institutions. If we allow major political
parties to participate in the party-list system electoral process, we will surely suffocate the voice of the
marginalized, frustrate their sovereignty and betray the democratic spirit of the Constitution. That
opinion will serve as the graveyard of the party-list system.

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A bit of background. The PL Law says that 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. In addition,
the law says “those garnering more than two percent (2%) of the votes shall be entitled to additional
seats in proportion to their total number of votes.”

In Banat, the Court said that:

In computing the allocation of additional seats, the continued operation of the two percent threshold for
the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941
is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible
to achieve the maximum number of available party list seats when the number of available party list seats
exceeds 50. The continued operation of the two percent threshold in the distribution of the additional
seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of
Representatives shall consist of party-list representatives.

To 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.

We therefore strike down the two percent threshold only in relation to the distribution of the additional
seats as found in the second clause of Section 11(b) of R.A. No. 7941. 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.”

So, after having basically upended everything we thought we knew about the PL, the SC goes ahead and
lays down the rules:

In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the
following procedure shall be observed:

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.

The Court did clarify with this:

In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats in
Table 3 below to the two-percenters. The percentage of votes garnered by each party-list candidate is
arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of
votes cast for party-list candidates. 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 party’s 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 three-seat cap to
determine the number of seats each qualified party-list candidate is entitled.

It’s really not that hard to understand. Just remember a couple basics.
First, there are two rounds of allocation of seats.

The first round deals with those who get at least 2% of the total number of votes cast for the PL
system. Those lucky bastards get one sure seat in the House.

Second, the second round of allocations deals with additional seats. In this round, the 2%
threshold of the first round no longer applies. Here, the basis for allocation of seats is more pro-
rated, i.e., you get as many seats as may be proportional to the number of votes you got.

Some of the “2%ers” can get as much as two additional seats. There’s a cap to the number of seats a PL
group can win and hold – THREE. So, the front runners will probably max out at three seats each, while
everybody else gets less – with most getting just one seat. The main objective of this second round is to
ensure that the seats guaranteed to PL Representation, by the Constitution, are completely filled up.
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 two-percenter
which means it has a guaranteed one seat PLUS additional 2 seats or a total of 3 seats. Now if it so
happens that BUHAY got 20% of the votes cast, it will still get 3 seats because the 3 seat limit rule
prohibits it from having more than 3 seats.
Now after all the tw0-percenters were given their guaranteed and additional seats, and there are still
unoccupied seats, those seats shall be distributed to the remaining party-lists and those higher in rank in
the voting shall be prioritized until all the seats are occupied.
V. No. By a vote of 8-7, the Supreme Court continued to disallow major political parties (the likes of
UNIDO, LABAN, etc) from participating in the party-list elections.
Although the ponencia (Justice Carpio) did point out that there is no prohibition either from the
Constitution or from RA 7941 against major political parties from participating in the party-list elections as
the word “party” was not qualified and that even the framers of the Constitution in their deliberations
deliberately allowed major political parties to participate in the party-list elections provided that they
establish a sectoral wing which represents the marginalized (indirect participation), Justice Puno, in his
separate opinion, concurred by 7 other justices, explained that the will of the people defeats the will of the
framers of the Constitution precisely because it is the people who ultimately ratified the Constitution – and
the will of the people is that only the marginalized sections of the country shall participate in the party-list
elections. Hence, major political parties cannot participate in the party-list elections, directly or indirectly.
VI. Yes, the 3 seat limit rule is valid. This is one way to ensure that no one party shall dominate the party-
list system.

PENERA V. COMELEC

FACTS:
On 11 September 2009, the Supreme Court affirmed the COMELEC’s decision to disqualify petitioner Rosalinda Penera
(Penera) as mayoralty candidate in Sta. Monica, Surigao del Norte, for engaging in election campaign outside the campaign
period, in violation of Section 80 of Batas Pambansa Blg. 881 (the Omnibus Election Code). Penera moved for
reconsideration, arguing that she was not yet a candidate at the time of the supposed premature campaigning, since under
Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, “a person who files his certificate of candidacy
will only be considered a candidate at the start of the campaign period, and unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of such campaign period.”

ISSUE:
Whether or not Penera’s disqualification for engaging in premature campaigning should be reconsidered.

HELD:
Penera’s disqualification for engaging in premature campaigning should be reconsidered as she did not engage in
premature campaigning because it is the clear intent and letter of Section 15 of Republic Act 8436, as amended, that the
effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the
start of the campaign period, the same partisan political acts are lawful.

THE PRESIDENT

Qualifications (Art. VII Sec. 2)

1. Natural-born citizen of the Philippines
2. A registered voter
3. Able to read and write
4. At least forty years of age on the day of the election, and
5. A resident of the Philippines for at least 10 years immediately preceding such election.

NOTE: Qualifications of Vice President is the same as the President (ART 7 SEC 3)