Overstretched

When the Supreme Court (SC) declares a law unconstitutional it is exercising its power of judicial review explicitly granted by the Constitution itself (Section 5 (2) (a) and (b) Article VIII). This does not mean judicial supremacy but merely the performance of a duty as part of the system of checks and balances (Dabuet vs. Roach Pharmaceutical, 149 SCRA 394). Its latest ruling on the party list representation (Banat vs. COMELEC, G.R. 179271, 179295, April 21, 2009) interpreting RA 7941 or the Party List System Act should have been viewed as such.

Unfortunately the ruling has become controversial because it raised more questions than gave sufficient answers as it set aside the precedent laid down in the previous case of Veterans Federation Party vs. COMELEC 396 Phil. 496 (“Veterans”) interpreting the same Party List System Act.

Banat recognizes that Veterans has set at least “four inviolable parameters” in a party-list election, Philippine style: first the combined number of all party list congressmen shall not exceed 20% of the total membership of the House of Representatives including those under the party list as provided in Section 5 (2) Article VI of the Constitution and Section 11 of RA 7941; second, only those garnering a minimum of 2% of the total valid votes cast for the party-list system are qualified to have a seat in the House; third each qualified party regardless of the number of votes actually obtained is entitled to a maximum of 3 seats, 1 qualifying and two additional seats; and fourth, the additional seats to which a qualified party is entitled shall be computed in proportion to their total number of votes.

In computing the number of seats available to party-list representatives, Banat used the same Veterans’ formula by getting 20% of the 220 legislative districts over 80% and came up with 55 seats. Obviously if 55 seats are available for party-list representatives and there are 220 members of the House of Representatives, the total number of members of the House of Representatives will be 275 which is over the limit of 250 set by Section 5(1) Article VI of the Charter. Banat says that this is not contrary to said Section because of the proviso therein declaring “unless otherwise fixed by law”. And that law is by implication Section 11, RA 7941 fixing the number party list representatives at 55 as above computed.

As to the manner of allocating the seats available, Banat cites Sections 11 (a) and (b) and Section 12 of RA 7941 and set the following procedure: (1) the parties shall be ranked from the highest to the lowest based on the number of votes garnered during the elections; (2) the parties receiving at least 2% of the total votes cast for the party list system shall be entitled to 1 guaranteed seat each; (3) those garnering sufficient number of votes according to the ranking in par. (1), shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated; and (4) each party shall be entitled to not more than 3 seats.

In computing the allocation of additional seats, the second clause of Section 11 (b), R.A. 7941 provides that “those garnering more than 2% of the votes shall be entitled to additional seats in proportion to their total number of votes”. Here Banat says that the computation of Veterans still applying the 2% threshold is unconstitutional. The SC found that the 2% threshold “makes it mathematically impossible to achieve the maximum number of available party list seats when that number exceeds 50”.

The SC then gives the following illustration: Supposing there are 55 seats available with 100 participants in the party-list elections. If there are 50 million votes cast, a party that gets 2% or 1 million votes gets a guaranteed seat. Assuming that the first 50 parties all get 1 million votes, then only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the 2% threshold the situation will repeat itself even if the available party list seats is increased to 60 and the number of votes cast to 100 million. Thus even if the maximum number of parties get 2% of the votes for every party, it is always impossible for the number of occupied party-list seats to exceed 50 as long as the 2% threshold is applied.

Hence the SC struck down the 2% threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11 (b), RA 7941 because it 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 the allocation of the additional seats is no longer limited to the parties that garnered 2 or more percent. In the last elections only 17 parties got the minimum 2% or the guaranteed 1 seat each. In the second round allocation, the remaining 38 seats (55 less 17) were made available where 19 parties next in rank got 1 seat each even if they did not garner 2% of the total votes cast for the party list system.

It seems that the SC here somewhat stretched its power of judicial review a bit too far. The old computation on the allocation of seats for party list does not appear to be contrary to the Constitution or blatantly unconstitutional. The issue here is not really a direct and open violation of the Constitution but only the lack of full compliance with the Constitution. As the SC itself said the existing computation in the allocation of the additional seats only prevents the “full implementation” of the Constitution. Hence it is more of a defect in the existing law that should be remedied by Congress and not by the Courts.

By fixing the number of seats for party list representatives at 55, the decision seems to even breach the 250 member Constitutional limit on the composition of House of Representatives. Of course that may be exceeded if a law fixes another limit. In this case, it is not even clear if RA 7941 has fixed another limit. It is only by implication arrived at by application of the science of mathematics to the art of interpreting a law.

Besides, there is a rule that courts will not touch the issue of constitutionality unless it is really unavoidable (Sotto vs. COMELEC 76 Phil. 516). In the Banat case it appears that the constitutional issue is not really unavoidable. So the ruling has even been branded as a form of “judicial legislation” and uncalled for. It looks more like an encroachment of the legislative power. –Jose C. Sison, Philippine Star