Solving the party-list fiasco

In “Talk to the People” days ago, President Duterte asked his successor (without naming who) to abolish the party-list system.

THE PARTY-LIST WAS BORROWED BY OUR 1987 CONSTITUTION from the parliaments of Europe and imbedded it into the presidential type of government that we, in turn, copied substantially from the United States, resulting in a mongrel without any historical, political, or social anchor in our country. It was conceived as an “experiment” with the noble purpose of giving the marginalized and underrepresented a better chance to be lawmakers.

Nonetheless, other than saying that the “party-list representatives shall constitute 20 per centum of the total number of representatives…” and that for “three consecutive terms after the ratification of this Constitution, one-half of the seats … shall be filled, as provided by law, by selection or election” from the marginalized and underrepresented, the Charter did not clearly define what this political mongrel was.

It left that job to Congress which obliged by passing the Party-list System Act (Republic Act No. 7941) that, among other provisions, limited the party-list winners only from those that obtained at least two percent of the total votes cast for all the party-list candidates.

IN ITS EARLIEST DECISION (Veterans v. Comelec, Oct. 6, 2000), the Supreme Court upheld the constitutionality of this two percent limitation. It further explained that the 20 percent constitutional allocation need not be filled since it was merely directory, not mandatory. Subsequently, Ang Bagong Bayani v. Comelec (June 26, 2001) ruled that only those parties or organizations and their nominees “who belong to the marginalized and underrepresented sectors” were qualified to hold party-list seats.

The Court stressed, “The 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 Court unanimously reiterated these two early decisions in Partido ng Mangagawa v. Comelec (March 15, 2006) and Cibac v. Comelec (April 13, 2007). Later, it went further by excluding the major political parties from party-list elections since they were already well-represented in the district polls.

These two early decisions (Veterans and Ang Bagong Bayani) that I had the honor of writing for the Court pointed to the textual ambiguities of the Constitution and the party-list law, and asked Congress to enact new legislation to redefine and clarify the mongrel. While awaiting congressional action, it limited, via the said two decisions, the party-list winners to only a few seats (about 15) because, to repeat, the 20 percent constitutional allocation was ruled to be merely directory, not mandatory. Sadly, Congress did not heed the Court.

Meanwhile, the advocates of verba legis and dura lex sed lex criticized the Court in general and me in particular for allegedly sacrificing the letter of the law in favor of the intent of the framers.

After I had retired, the Court, in Banat v. Comelec (April 21, 2009), heeded the critics and voided the two-percent bar of the party-list law; and in Atong Paglaum v. Comelec (April 2, 2013), ruled that the party-list candidates and their nominees need not belong to the marginalized and underrepresented, thereby opening the party-list to everyone.

As a result, the dynasts, the tradpols, the rich, and the powerful invaded the system, misused it to circumvent the three-term constitutional limit, and misrepresented the lowly and the weak. Further, the House had to fund 63 party-list solons (constituting 20 percent thereof), and grant them “pork- barrel-like” insertions and reinventions.

I CAN THINK OF THREE GENERAL WAYS TO SOLVE THIS FIASCO. The first is to amend the party-list law. Well, as I stated earlier, legislative amendments had already been advocated by the Supreme Court to no avail. As the May 17 Inquirer editorial pointed out, “party-list representatives [and their allies, if I may add] who have gamed the system can hardly be expected to initiate any change…”

The second way is to amend the Constitution via a constitutional convention (not by a constituent assembly which would be composed of the incumbent members of Congress) I advocated in my earlier columns. However, the Inquirer editorial branded this “a cure worse than the disease” because it would give the wicked a chance to overhaul the better parts of the Charter.

The third is for the Court to overturn Banat and Atong Paglaum. After all, if it could reverse its two earliest decisions, it could likewise easily solve this befuddling fiasco by simply reinstating its first two decisions, via a proper petition filed by the proper parties.

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