Who ‘bastardized’ the party-list?

Outrage and finger-pointing, there have been on who “bastardized” the Filipino party-list system, and on how the popular, the dynasts and the moneyed have snatched it from the “progressives.”

Nobly-intended to give power to the powerless, the party-list — a feature of parliamentary governments — was instituted by the Constitution as an “experiment” in our presidential regime.

However, the Charter was rather vague in defining it. Other than saying (1) that the party-list shall constitute 20 percent of the total membership of the House of Representatives and (2) that for three consecutive terms, one-half of the seats shall be filled by the marginalized sectors, it left everything else to Congress.

Accordingly, Congress passed the Party-List Law (Republic Act No. 7941) that laudably wanted “Filipino citizens belonging to the marginalized and underrepresented sectors, organizations and parties, and who lack well-defined constituencies…” to become lawmakers.

However, this laudable desire was hobbled by its inexplicit textual provisions, including one allowing the election only of parties receiving at least 2 percent of the total votes cast for the party-list (2 percent parameter).

I had the honor of writing the first two party-list decisions of the Supreme Court. The first, Ang Bagong Bayani v. Comelec (June 26, 2001), held that only those parties and their nominees “who belong to the marginalized and underrepresented sectors” were qualified to hold party-list seats.

Verily, “[t]he intent of the Constitution is clear: to give genuine power to the people, not only by giving more law to those who have less in life, but more so by enabling them to become veritable lawmakers themselves… The law crafted to address the peculiar disadvantages of the Payatas hovel dwellers cannot be appropriated by the mansion owners of Forbes Park…”

The second decision, Veterans Party v. Comelec (Oct. 6, 2000), upheld the Party-List Law provision limiting the winners only to those passing the 2-percent parameter. It explained that the constitutional allocation of 20 percent of the House seats to the party-list was merely directory, not mandatory, in character. As a result, only a few (about 15) party-list candidates were elected.

However, after I retired, the Court modified these two decisions. First, Atong Paglaum v. Comelec (April 2, 2013) held that regional and/or sectoral candidates need not represent the “marginalized or underrepresented.” It was enough that their members advocate common ideologies or principles “regardless of their economic status as citizens.”

Second, Banat v. Comelec (April 21, 2009) voided the 2-percent parameter. Otherwise, the Court said, the Charter’s 20-percent seat allotment to the party-list would never be attained. With the floodgates opened, we now have over 60 party-list representatives.

Sadly, the Court became literal, no longer liberal. It interpreted the words “marginalized and underrepresented” primarily in their electoral sense, that is, to benefit those who cannot win district elections for any reason, and only secondarily in their social justice sense, that is, to give more law to those who have less in life.

This new “verba legis” interpretation enabled the popular, the dynasts and the moneyed to corner the party-list as an easier and cheaper backdoor to Congress. Ironically, they elbowed out the truly poor and powerless.

In the two earliest decisions I wrote and in my other writings and speeches, I urged Congress to craft a clearer-worded law to make sure “marginalized and underrepresented” would refer only to the poor and powerless. However, the victorious party-list solons—led by the “progressives” who benefited from the decisions—failed to secure the legislative clarity that could withstand a verba legis  scrutiny.

As a result, they have been overtaken by poll newbies who, I think, would never surrender their newly-secured gains. Incredibly, Akbayan lost its seat for the first time since 1998, and Bayan Muna — the erstwhile party-list topnotcher — was relegated to second place.

However, the progressives should finger-point no more, remembering that three other fingers point back at them. Yes, they too must share the blame.

Comments to chiefjusticepanganiban@hotmail.com