Party-list: Legislation is the solution (2)

How are party-list winners determined? The Supreme Court answered this question in its very first decision on the party-list system, “Veterans Federation Party vs Comelec” (Oct. 6, 2000). Since then, several other decisions affirming and modifying this landmark case have come out, but the controversy on how to determine the winners persists.

Mathematically inscrutable. This is because the Party-list Law (Republic Act 7941) is vague, contradictory and mathematically inscrutable, yet—despite repeated prodding by the high court—Congress has not done anything about it.

The party-list system is a feature of some parliamentary governments, like Germany. The 1987 Constitution mongrelized it into our presidential system by saying that 20 percent of the total membership of the House of Representatives shall be “those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.”

The Constitution does not define the nature of the Filipino party-list system. By injecting the phrase “as provided by law” in the constitutional text, the constitutional framers passed the job to the legislature. In turn, Congress obliged by enacting RA 7941 that, however, convoluted the problem of determining the winners.

In the Senate race, only the 12 candidates garnering the biggest number of votes are deemed elected. In contrast, the determination of the party-list winners is quite complicated because, for one thing, the victors are parties and organizations, not individuals.

For another, unlike in the Senate where the vacancies to be filled are fixed at 12, the party-list slots are variable; per the Constitution, they constitute 20 percent of the total number of House seats that, in turn, is constantly increasing. Indeed, it is difficult to ascertain 20 percent of a ballooning whole.

Worse, the Party-list Law requires a winner to obtain at least 2 percent of the total valid votes cast for the party-list system. Moreover, those that qualify (or pass the 2-percent threshold) are entitled to additional seats but not exceeding two.

Otherwise stated, each winning party is entitled to a maximum of three seats; that is, one “qualifying” plus two additional seats. The additional seats shall be computed in proportion to their (winning parties’) total number of votes.

Complicated formulas. In the Veterans case, the justices had to find a way to convert into a mathematical formula the aforesaid parameters laid down by the Constitution and the Party-list Law—i.e., (1) “20 percent allocation,” (2) “2-percent threshold,” (3) “three-seat limit,” and (4) “proportional representation.”

After much internal debate, the Court came up with what is now known as the “Veterans formula” of determining the winners. It is also referred to as the “Panganiban formula” because I was the ponente of the decision.

I do not have the space to explain this complicated formula. Suffice it to say that it was criticized, mainly because it allegedly violated proportional representation and did not result “in a rough straight line when graphed.” However, the formula merely reflected the foregoing parameters.

Mathematically speaking, proportional representation as mandated by the Party-list Law cannot be perfected if all the parameters, especially the “2-percent threshold” and the “three-seat limit” are observed. To attain precise proportional representation, the Party-list Law must be amended and simplified.

In any event, the Veterans formula was affirmed unanimously in subsequent decisions: “Partido ng Manggagawa vs Comelec” (March 15, 2006) and “Cibac vs. Comelec” (April 13, 2007).

However, on April 21, 2009—two years after promulgating Cibac—the Court in “Banat vs. Comelec” modified Veterans by declaring unconstitutional the 2-percent threshold and authorized the award of congressional seats to party-list groups that obtained less than 2 percent of the total votes cast.

Nonetheless, the Banat decision did not solve the distortions of the Party-list Law because now, regardless of how few its votes are, a party-list candidate could win provided the 20-percent constitutional allocation is not breached. In contrast, the poll topnotchers are still limited to a maximum of three seats. Worse, Banat opened the floodgates to party-list representatives even if they obtained less than 1 percent of the total votes cast. While Veterans allowed only 14 party-list representatives to sit in the House, Banat authorized 55.

Redefine and reengineer. The Supreme Court does not make, amend or invent laws. It merely declares them valid or invalid. At times, it crafts guidelines on how to follow the law. It does not determine policy. Only Congress can correct gaps in the laws or make them more rational and mathematical.

In the present instance, Congress should define more clearly the concept and nature of the Philippine party-list system; it should declare in more unequivocal terms whether it is reserved only for the marginalized and underrepresented, and whether it is open to all parties. It should reengineer the method by which the winners could be determined more easily.

Or, it should repeal RA 7941 altogether if it believes the party-list experiment has failed. By repealing this law, the party-list system would be effectively abolished for want of an enabling law. But leaving it as is will just continue to confound and confuse everyone, including its own honorable members. And the people.

* * *

Comments to chiefjusticepanganiban@hotmail.com