Abolish or reform party-list

Utterly bereft of local constitutional ancestry, the Filipino party-list was, from inception, beset by two tough questions: (1) Who can qualify for and hold party-list seats, and (2) How many should the seats be? Last Sunday, I tackled question 1; now, I will take up question 2.

To determine the winners in a party-list election, Veterans Federation Party vs Comelec (Oct. 6, 2000), the earliest jurisprudence on the subject via a 12-3 vote, mandated “four inviolable parameters.” The first was extracted from the Constitution and the other three from the Party-List Law (RA 7941), as follows:

“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;

“Third, the three seat limit — each qualified party, regardless of the number of votes it obtained, is entitled to a maximum of three seats, that is, one ‘qualifying’ and two additional seats; (and)

“Fourth, proportional representation — the additional seats which a party is entitled to shall be computed ‘in proportion to their total number of votes.’”

I will no longer detail the formula generated by the Court from these parameters. Suffice it to say that it resulted in the election of only a few candidates, below the 20-percent allocation, which the Court ruled to be merely a ceiling, not a mandatory number to attain.

Because of this paucity of winners, the Veterans formula was criticized by the losers, conveniently forgetting that the Veterans decision itself acknowledged the inevitability of distortions, but only because the formula (christened by the legal community as the “Panganiban formula” as I was the writer of the decision) merely reflected the distortions in the Party-list Law. That was why Veterans, anticipating these criticisms, suggested a revision of the law to cure the distortions.

The Court refused to nullify any provision of the Party-list Law. After all, the Charter gave Congress wide discretion to shape the Filipino party-list system. Warts and all, the Panganiban formula was unanimously reiterated in Partido ng Manggagawa vs Comelec (March 15, 2006) and Cibac vs Comelec (April 13, 2007).

However, on April 21, 2009 (after I had retired), the Court issued Banat vs Comelec, which modified Veterans by awarding seats to those garnering less than 2 percent of the votes. To do this, it voided the second parameter, saying that the 20-percent allocation would never be reached if the 2-percent threshold were maintained. Yet, it retained the third parameter that limited the topnotchers to three seats.

As a consequence, the Court declared 55 party-list winners instead of only 22 if the Veterans formula were used. Thus, Buhay Party which garnered 1,169,243 votes (7.33 percent of the total) was granted only three seats, while Cocofed which obtained a measly 155,920 votes (or .98 percent of the total) was given one seat. Under this ruling, a party that gets only 10,000 votes can win. Preposterous, but certainly possible! Obviously, the end result was still distorted, as the new Banat formula failed to follow the fourth parameter—proportional representation.

Because the floodgates to 20 percent of the House membership were opened by the scuttling of the 2-percent threshold, and because the “marginalized and underrepresented” doctrine was overturned per last Sunday’s column, the rich, the powerful and the dynasties now dominate our mongrelized party-list system, to the chagrin of the poor and the powerless.

Given this dominance, amending the Party-List Law is, I believe, no longer viable. The dominant solons will not allow it. Only a constitutional revision via a constitutional convention, not via a constituent assembly of Congress, may be the answer: Either abolish the party-list, which in the first place was just an experiment that has gone berserk, or institute the necessary reforms.

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