Opening up the partylist system

Senior Associate Justice Antonio T. Carpio’s decisions have shaped the post-Edsa right to suffrage. In 2006, he blocked a spurious “people’s initiative” for charter change to a parliamentary government. In 2009, he revised the partylist seat-allocation formula after it became obvious that it left over half the seats unfilled. Last week’s decision, Atong Paglaum Inc. v. Commission on Elections, reversed the idealistic but woefully vague rule that the partylist system is solely for the marginalized.

Atong Paglaum, like the preceding decisions, married pragmatism with fidelity to the Constitution. Everyone up to Comelec Chair Sixto Brillantes now concedes it is impossible to define “marginalized.” Winning partylists include a Bicolano party, electric cooperatives, and a prolife group founded by Bro. Mike Velarde. Other seemingly legitimate groups’ nominees turned out to be politicians or alleged proxies. Most prominently, an alleged party of security guards fielded former President Gloria Arroyo’s son Mikey Arroyo.

The unsuccessful, bizarre attempt to disqualify Akbayan, the progressive leftist party led by senatorial candidate Risa Hontiveros, underscored the confusion. Rival leftist parties had argued it did not represent a specific marginalized sector because it has a multisectoral constituency. They said it was an administration partner, with several members appointed to senior positions, and therefore not marginalized. Spokesperson Ibarra Gutierrez countered that the partylist system should not be a race to the bottom of parties trumpeting how voiceless and oppressed they are, nor should they be ironically penalized for success in translating their sectoral platforms into mainstream politics.

Finally, the vagueness of “marginalized” gave near-unbridled discretion in qualifying parties, and with it, persistent allegations of graft.

Atong Paglaum’s solution is simple: Open the partylist system to all parties who do not field district candidates. Parties may even form sectoral wings for the partylist. The clearer ground for disqualification will be failure to win a seat for two consecutive elections, under Section 6 of the Partylist Act.

Many will be surprised that Atong Paglaum merely returns us to the 1986 Constitutional Commission’s intent. I previously wrote: “It is time to disclose constitutional law’s dirty secret: The partylist system was not intended solely for marginalized sectors.”

The Concom record quotes Commissioner Christian Monsod: “I would like to make a distinction from the beginning that the proposal for the partylist system is not synonymous with that of sectoral representation.” The Constitution created “a partylist system of registered national, regional, and sectoral parties or organizations,” and what would “national” and “regional” mean if the system only covered sectoral or marginalized parties? Monsod outlined: “Any group or party who has a constituency of, say, 500,000 nationwide gets a seat in the National Assembly…. There is no reason why a group that has a national constituency, even if it is a sectoral or special interest group, should not have a voice.” Finally, the Constitution provided for specific sectoral representatives for only the first three elections, implying no special emphasis was intended afterwards.

The marginalized were emphasized only much later. In his 2001 Ang Bagong Bayani decision, then Justice Artemio Panganiban stressed: “The law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be appropriated by the mansion owners of Forbes Park.” He in effect argued that “national” and “regional” parties must be national and regional parties of the marginalized. Panganiban also strained both doctrine and mathematics by arguing that “proportional representation” refers not to “numerical strength” but “to the representation of the ‘marginalized and underrepresented.’”

Ang Bagong Bayani also cited Concom deliberations, but cited discussion of an amendment the Concom actually rejected. Despite the tenuous ground in text, history and mathematics, Panganiban executed a judicial tour de force more broadly justified by the Constitution’s heavy emphasis on social justice. The noble attempt at revisionism unfortunately proved impossible to implement.

The partylist has been misunderstood from the very beginning. The original formula impliedly assigned a seat for each 2 percent of votes a party received. This was obviously impossible, as 57 seats require 114 percent. Further, Concom members assumed they were copying the German parliamentary system. They omitted its key mathematical details, and the Philippine system bears no resemblance.

Now that Carpio has restored the partylist system’s original intent, the electorate must guard against everything Panganiban feared. A party of billionaires from Forbes Park may compete against Payatas urban poor—something Panganiban labeled as desecration. However, a much wider array of advocacies is now possible. Only time will tell whether we have given voice to fresh ideas or formalized new rent-seeking ventures.

Carpio merely shifted the burden of qualifying partylists from a befuddled Comelec to the electorate itself. To quote Wendell Phillips, “Eternal vigilance is the price of liberty.” And to quote Joseph de Maistre, “Every nation gets the government it deserves.”

The critique of Oscar Franklin Tan (www.facebook.com/OscarFranklinTan, Twitter @oscarfbtan) of the partylist system echoes Atong Paglaum (“A Tragedy of Flawed Mathematics and Policy,” 78 PHIL. L.J. 735 [2004]) and received the University of the Philippines’ first Justice Vicente V. Mendoza award. He teaches constitutional law at the University of the East.