EN BANC

[G.R. No. 147589. November 20, 2003.]

ANG BAGONG BAYANI, OFW, Et Al., Petitioners, v. COMMISSION ON

ELECTIONS, Et Al., Respondents.

[G.R. No. 147613. November 20, 2003.]

BAYAN MUNA, Petitioner, v. COMMISSION ON

ELECTIONS, Respondent.

RESOLUTION

DAVIDE, JR., C.J.:

The remaining issues left for the resolution of the Court are: (1) the effect of
the proclamation by the Commission on Elections of the additional nominees
of APEC, BUTIL, CIBAC and AKBAYAN pursuant to its Order of 22 November
2002, a proclamation this Court declared in its Resolution of 18 February
2003 to be a violation of, inter alia, the Temporary Restraining Order it
issued on 9 May 2001; and (2) whether BUHAY is entitled to one additional
seat in the party-list system.chanrob1es virtua1 1aw 1ibrary

It may be recalled that in its Resolution No. NBC-02-001 dated 6 November

2002, the COMELEC found that APEC is entitled to three seats; AKBAYAN,
two seats; BUTIL, two seats; CIBAC, two seats; BUHAY, two seats; AMIN,
one seat; ABA, one seat; COCOFED, one seat; NCIA, one seat; PM, one
seat; and SANLAKAS, one seat.

The additional nominees of APEC, BUTIL, CIBAC and AKBAYAN proclaimed by

the COMELEC immediately took their oath and assumed office as members
of the House of Representatives.

In its Resolution of 25 June 2003, the Court has found that, indeed BUHAY
obtained 4.46% of the total number of votes cast for the party-list system,
thus:chanrob1es virtual 1aw library

Table No. 3

Rank Party-List Votes Percentage Additional

(%) Seats

2 APEC 802,060 12.29 n/c

3 AKBAYAN 377,852 5.79 n/c

4 BUTIL 330,282 5.06 n/c

5 CIBAC 323,810 4.96 n/c

6 BUHAY 290,760 4.46 0.51

7 AMIN 252,051 3.86 0.44

8 ABA 242,199 3.71 0.42

9 COCOFED 229,165 3.51 0.40

10 PM 216,823 3.32 0.38

11 SANLAKAS 151,017 2.31 0.26

12 ABANSE! PINAY 135,211 2.07 0.24

In the column additional seats, those for APEC, AKBAYAN, BUTIL, and CIBAC
are indicated as n/c, which, as disclosed in the footnote, means as
follows:jgc:chanrobles.com.ph

"not computed," since, to repeat, the Court is yet to resolve the validity of
the proclamation of the additional nominees of APEC, AKBAYAN, BUTIL, and
CIBAC, due to the Motion of BAYAN MUNA to set aside Comelec Resolution
No. NBC-02-001 promulgated on November 6, 2003 and the related
November 22, 2002 Comelec Order and the November 26, 2002 Comelec
Resolution.

The fact of the matter, however, is that the percentage for the additional
seats for APEC, AKBAYAN, BUTIL and CIBAC is recorded in the table, just as
what was done to BUHAY, thus:chanrob1es virtua1 1aw 1ibrary

APEC — 1.40

AKBAYAN — 0.66

BUTIL — 0.58
CIBAC — 0.56

In the Resolution of 8 July 2003, this Court resolved that "the COMELEC may
now proclaim those declared elected with one nominee each in the
Resolution of 25 June 2003, to wit: BUHAY, AMIN, ABA, COCOFED, PM,
SANLAKAS, and ABANSE! PINAY."cralaw virtua1aw library

It is thus established in the Resolution of 25 June 2003 that, like APEC,

BUTIL, CIBAC and AKBAYAN, BUHAY had obtained more than four percent
(4%) of the total number of votes validly cast for the party-list system and
obtained more than 0.50 for the additional seats. Accordingly, just like the
first four whose additional nominees are now holding office as member of
the House of Representatives, BUHAY should be declared entitled to one
additional seat.

ACCORDINGLY, the Court hereby RESOLVES, pro hac vice

1. To consider closed and terminated the issue regarding the proclamation

by the COMELEC of the additional nominees of APEC, BUTIL, CIBAC and
AKBAYAN, such nominees having taken their oath and assumed office;

2. To DECLARE that BUHAY is entitled to one (1) additional seat in the party-
list system in the elections of May 2001 and;

3. To ORDER the COMELEC to proclaim BUHAY’s second nominee.

SO ORDERED.

Davide, Jr., C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,

Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna and
Tinga, JJ., concur.

Vitug, J., I reiterate my separate opinion in the ponencia (main

decision).chanrob1es virtua1 1aw 1ibrary

Separate Opinions

PANGANIBAN, J.:

For resolution by the Court are two sets of Motions filed by (A) BAYAN MUNA
and (B) BUHAY. The majority holds that the Motions of BAYAN MUNA should
be denied, but that those of BUHAY should be granted. I agree that BAYAN
MUNA’s Motions should be denied, but for reasons different from those
proffered by the majority. On the other hand, I submit, with due respect,
that BUHAY’s Motions should be denied, not granted.

A. BAYAN MUNA’s Motions

An examination of BAYAN MUNA’s 16-page "Comment/Opposition with

Motion to Set Aside the 6 November 2002 Resolution of the Commission on
Elections" shows that it is principally meant to be an opposition to the
"Motion to Lift TRO" filed by BUHAY and COCOFED. However, at the latter
part thereof (from page 13), it argues that "COMELEC erred in disregarding
the ruling in Veterans Federation Party v. Commission on Elections 1 when it
allocated seats in Congress for APEC, AKBAYAN, BUTIL, CIBAC, BUHAY,
AMIN, ABA, COCOFED, NCIA, PM and SANLAKAS in the assailed Resolution
dated 6 November 2002." Thus, aside from opposing the BUHAY and
COCOFED Motion, it additionally prays for the setting aside of the said 6
November 2002 COMELEC Resolution.

In a "Supplemental Motion to Set Aside Comelec Resolution No. NBC-02-001

promulgated on 22 November 2002," BAYAN MUNA contends that this latter
Resolution of 22 November 2002 — which granted two additional seats to
APEC and one additional seat each to BUTIL, CIBAC and AKBAYAN — is also
void for having likewise been issued in violation of the ruling in Veterans and
the proportional representation proviso of RA 7941 (the Party List Law),
which limited the entitlement of a party-list winner to a maximum of three
seats. It complains that this COMELEC Resolution "equalized APEC’s number
of representatives with those" of BAYAN MUNA despite the "disparity in the
number of votes between them — 1,697,578 for BAYAN MUNA as against
801,587 for APEC." chanrob1es virtua1 1aw 1ibrary

Thus, it prays for the declaration of (1) the nullity of the said 22 November
2002 COMELEC Resolution; and (2) the unconstitutionality of Section 11 of
RA 7941 (the Party List Law), insofar as it allowed a maximum of only three
seats per party-list winner, to enable BAYAN MUNA to have more than three
representatives in the House.

Assailed COMELEC Resolutions Made Without Authority

In its Resolution dated 18 February 2003, the Court has already

unanimously ruled that the assailed COMELEC Resolutions dated 6 November
2002 and 22 November 2003 as well as that dated 26 November 2002 were
issued by Commission without any authority, in "brazen disobedience to
[this Court’s] lawful directives, in particular its Temporary Restraining Order
dated May 9, 2001." For issuing such Resolutions, the COMELEC chairman
and members were held in contempt by this Court.

However, I respectfully submit that the nullity of these issuances authorizing

the proclamation of the additional nominees of APEC, BUTIL, CIBAC and
AKBAYAN does not ipso facto mean that the Court, in the present
proceedings and by means of a mere motion, could thereby automatically
unseat these representatives. As held in the Court’s Resolution dated 16
September 2003 in AM No. 03-8-22 SC, 2 "there is a distinction between
holding in contempt the authors of an arbitrary proclamation resolution on
the one hand[;] and on the other, unseating those who have been
proclaimed, have taken their seats in Congress and have begun performing
their lawmaking duties."cralaw virtua1aw library

Be it remembered that on 26 June 2001, the Court — in the present

consolidated cases — had already rendered its Decision, which has become
final and executory. The instant proceedings are conducted for the purpose
merely of passing upon the COMELEC’s compliance with the 8-point guideline
issued in the said Decision.

The relief prayed for by BAYAN MUNA — to declare Section 11 of RA 7941

unconstitutional — is completely alien to these incidental proceedings. To
take up this alleged unconstitutionality now would mean a reopening of the
26 June 2001 Decision which, to repeat, has already become final and
executory. Obviously, a discussion of that issue cannot be done at this point.

Proper Petition by Proper Party at the Proper Time

The same observation can be made of any attempt to unseat the concerned
additional nominees by means of a mere motion in these proceedings. To
oust members of the House of Representatives who have already taken their
oaths and have begun to discharge the functions of their offices is a
contentious matter and partakes of the nature of quo
warranto, certiorari and/or mandamus. Clearly, these extraordinary writs
may be issued only in special civil actions for which the Rules of Court
prescribe specific requirements, like the verification of an independent
petition — with specific allegations showing lack or excess of jurisdiction or
grave abuse of discretion — filed in the proper court or quasi judicial agency
by the proper party; and subject to certain formalities like a sworn certificate
of non-forum shopping and so on. Also, these documents must be filed
within the prescribed period of time.chanrob1es virtua1 1aw 1ibrary

In contrast, the present Motion and Supplemental Motion are not even
verified and are definitely not special civil actions; they were filed merely as
purported incidents in these compliance proceedings. Furthermore, there is
no showing that they were filed in the proper forum, considering that under
the Constitution, the House of Representatives Electoral Tribunal (HRET) is
"the sole judge of all contests relating to the election returns and
qualifications" of the members of the House of Representatives. 3 True, in
Codilla v. Comelec, 4 this Court ousted an incumbent member of Congress
and caused the seating of the overwhelming winner during the election.
However, that Decision was issued only after an independent petition for
mandamus and quo warranto was filed by the proper party, and only after
proper proceedings had been held thereon.

In any event, in Guerrero v. Comelec, 5 this Court declared that "once a

winning candidate has been proclaimed, taken his oath, and assumed office
as a member of the House of Representatives, the COMELEC’s jurisdiction
over election contests relating to his election, returns and qualification ends,
and the HRET’s own jurisdiction begins."cralaw virtua1aw library

Thus, if this Court were to give due course to BAYAN MUNA’s prayer, it will
have to rule on the propriety of assuming jurisdiction over the controversy in
the present proceedings; equally important, it will also have to determine
which of these two rulings (Codilla or Guerrero), if any, applies. These are
contentious issues that are alien to the present proceedings; they constitute
questions that cannot be ruled upon unless the appropriate petitions are filed
in the appropriate forum by the appropriate party at the appropriate time
and alleging the appropriate jurisdictional facts.

Nevertheless, it should be noted that while BAYAN MUNA’s Motions prayed

for the nullification of the assailed COMELEC Resolutions, they did not
expressly ask for the unseating of the proclaimed winners who had already
taken their seats and had long ago begun to discharge their functions.

B. BUHAY’s Motions

Several Motions filed by BUHAY and its second nominee 6 ask that the Court
modify its Resolution dated 25 June 2003 by authorizing BUHAY’s second
nominee to take his congressional seat as soon as possible. They contend
that the formulas devised by this Court for computing party-list winners are
applicable only in the 1998, not in the 2001, party-list elections; that it is
the COMELEC formula contained in its 6 November 2002 Resolution that is
appropriate to the May 14, 2001 elections; and that this COMELEC formula
allocates one (1) seat to the parties that get at least two percent (2%) of
the total votes cast, two (2) seats to those that obtain at least 4%, and the
maximum of three (3) seats to those that get at least 6% of the total votes
cast.chanrob1es virtua1 1aw 1ibrary
COMELEC Formula Already Rejected by the Court

I respectfully submit that these Motions of BUHAY have no merit. First, the
so-called COMELEC formula has long been expressly rejected by this Court in
Veterans Federation Party v. COMELEC, 7 as follows:jgc:chanrobles.com.ph

"One proposed formula is to allocate one additional seat for every additional
proportion of the votes obtained equivalent to the two percent vote
requirement for the first seat. Translated in figures, a party that wins at
least six percent of the total votes cast will be entitled to three seats;
another party that gets four percent will be entitled to two seats; and one
that gets two percent will be entitled to one seat only. This proposal has the
advantage of simplicity and ease of comprehension. Problems arise,
however, when the parties get very lop-sided votes — for example, when
Party A receives 20 percent of the total votes cast; Party B, 10 percent; and
Party C, 6 percent. Under the method just described, Party A would be
entitled to 10 seats; Party B, to 5 seats and Party C, to 3 seats. Considering
the three-seat limit imposed by law, all the parties will each uniformly have
three seats only. We would then have the spectacle of a party garnering two
or more times the number of votes obtained by another, yet getting the
same number of seats as the other one with the much lesser votes. In
effect, proportional representation will be contravened and the law rendered
nugatory by this suggested solution. Hence, the Court discarded it." (p. 274)

The correct formulas for computing the proportionate allocation of seats to

party-list winners have been decided in Veterans after long deliberation and
study; these formulas apply to all party-list elections conducted under the
present law.

Unless amended by a subsequent law approved by Congress or by a new

ruling of this Court in appropriate proceedings, these formulas cannot be
disregarded, for they ensure that the number of seats allocated to the
winning parties conform to the principle of proportional representation
mandated by the Party-List Law.

Second, in our unanimous en banc Resolution dated 18 February 2003, the

COMELEC chairman and commissioners were held in contempt of this Court
when they discarded these formulas and used the erroneous and rejected
computation method espoused by movant. The Court issued this reminder to
the Commission:chanrob1es virtua1 1aw 1ibrary

"Comelec had no authority or power to modify or alter, even with the help of
Black’s Law Dictionary, the final and executory Decisions of this Court,
especially the carefully crafted rule on how to compute the winners in a
party-list election as held in Veterans Federation Party v. Comelec. It should
also remember that in said case, this Court expressly reversed Comelec’s
own formula of determining said winners. A becoming regard for superior
authority should have prevented the poll body from insisting on its own will.
If a lower tribunal like the Comelec disagrees with our Decisions, it may
state its opinions or may even recommend, at the proper occasion and time,
a change in the ruling. But it is constitutionally required, in the meantime, to
follow our Decisions whether it agrees with them or not. This is the rule of
law. As it is, by its intransigence and disobedience, Comelec, its chairman
and members have clearly placed themselves in contempt of this Court." (p.
5)

Finally, the question of how to compute the number of seats a party-list

winner is entitled to has NOT BEEN RAISED AS AN ISSUE in these
consolidated cases. As already stated, that matter has finally been settled
long ago in Veterans.

Determining the Party-List Winners

To stress, our unanimous en banc Resolution of June 25, 2003 in the present
consolidated cases patiently and clearly outlined in detail (on pages 36-40)
the procedure for determining the party-list winners and for computing the
number of seats they are entitled to. This procedure, the Court ruled, should
be used "in determining the party-list winners in the future." The Resolution
clearly and unequivocally ordered that party-list winners shall be determined
in accordance with "the formulas mandated in Veterans v. Comelec."cralaw
virtua1aw library

While I symphatize with the dilemma of the BUHAY second nominee, I

respectfully submit that there is no sufficient legal reason to proclaim him
and thereby violate the very pronouncements of this Court discussed above.

WHEREFORE, I vote to DENY the Motions of BAYAN MUNA and

BUHAY.chanrob1es virtua1 1aw 1ibrary