FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON ELECTIONS, represented by its Chairman, BENJAMIN S.

ABALOS, ESMERALDA AMORA-LADRA, in her capacity as Acting Director IV, National Capital Judicial Region, Commission on Elections, and the SOLICITOR GENERAL,respondents. In this petition for prohibition with prayer for the issuance of a writ of preliminary injunction, Francisco I. Chavez stands as a taxpayer and a citizen asking this Court to enjoin the Commission on Elections (COMELEC) from enforcing Section 32 of its Resolution No. 6520, dated January 6, 2004. The assailed provision is, as follows: Section 32. All propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image, or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office shall be immediately removed by said candidate and radio station, print media or television station within 3 days after the effectivity of these implementing rules; otherwise, he and said radio station, print media or television station shall be presumed to have conducted premature campaigning in violation of Section 80 of the Omnibus Election Code. Petitioner Chavez, on various dates, entered into formal agreements with certain establishments to endorse their products. On August 18, 2003, he authorized a certain Andrew So to use his name and image for 96 North, a clothing company. Petitioner also signed Endorsement Agreements with Konka International Plastics Manufacturing Corporation and another corporation involved in the amusement and video games business, G-Box. These last two agreements were entered into on October 14, 2003 and November 10, 2003, respectively. Pursuant to these agreements, three billboards were set up along the Balintawak Interchange of the North Expressway. One billboard showed petitioner promoting the plastic products of Konka International Plastics Manufacturing Corporation, and the other two showed petitioner endorsing the clothes of 96 North. One more billboard was set up along Roxas Boulevard showing petitioner promoting the game and amusement parlors of G-Box. On December 30, 2003, however, petitioner filed his certificate of candidacy for the position of Senator under Alyansa ng Pag-asa, a tripartite alliance of three political parties: PROMDI, REPORMA, and Aksyon Demokratiko. On January 6, 2004, respondent COMELEC issued Resolution No. 6520, which contained Section 32, the provision assailed herein. On January 21, 2004, petitioner was directed to comply with the said provision by the COMELECs Law Department. He replied, on January 29, 2004, by requesting the COMELEC that he be informed as to how he may have violated the assailed provision. He sent another letter dated February 23, 2004, this time asking the COMELEC that he be exempted from the application of Section 32, considering that the billboards adverted to are mere product endorsements and cannot be construed as paraphernalia for premature campaigning under the rules. The COMELEC answered petitioners request by issuing another letter, dated February 27, 2004, wherein it ordered him to remove or cause the removal of the billboards, or to cover them from public view pending the approval of his request. Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be enjoined from enforcing the assailed provision. He urges this Court to declare the assailed provision unconstitutional as the same is allegedly (1) a gross violation of the non-impairment clause; (2) an invalid exercise of police power; (3) in the nature of an ex-post facto law; (4) contrary to the Fair Elections Act; and (5) invalid due to overbreadth. Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of police power? Petitioner argues that the billboards, while they exhibit his name and image, do not at all announce his candidacy for any public office nor solicit support for such candidacy from the electorate. They are, he claims, mere product endorsements and not election propaganda. Prohibiting, therefore, their exhibition to the public is not within the scope of the powers of the COMELEC, he concludes. This Court takes a contrary view. Police power, as an inherent attribute of sovereignty, is the power to prescribe regulations to promote the health, morals, peace, education, good order, or safety, and the general welfare of the people.[1] To determine the validity of a police measure, two questions must be asked: (1) Does the interest of the public in general, as distinguished from those of a particular class, require the exercise of police power? and (2) Are the means employed reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals?

A close examination of the assailed provision reveals that its primary objectives are to prohibit premature campaigning and to level the playing field for candidates of public office, to equalize the situation between popular or rich candidates, on one hand, and lesser-known or poorer candidates, on the other, by preventing the former from enjoying undue advantage in exposure and publicity on account of their resources and popularity. The latter is a valid reason for the exercise of police power as held in National Press Club v. COMELEC,[2] wherein the petitioners questioned the constitutionality of Section 11(b) of Republic Act No. 6646, which prohibited the sale or donation of print space and air time for campaigning or other political purposes, except to the COMELEC. The obvious intention of this provision is to equalize, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign war chests. This Court ruled therein that this objective is of special importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution between the economic elite and the rest of society, and by the prevalence of poverty, with so many of our population falling below the poverty line. Moreover, petitioner cannot claim that the subject billboards are purely product endorsements and do not announce nor solicit any support for his candidacy. Under the Omnibus Election Code, election campaign or partisan political activity is defined as an act designed to promote the election or defeat of a particular candidate or candidates to a public office. Activities included under this definition are: (1) Forming organizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.[3] (underscoring ours)

It is true that when petitioner entered into the contracts or agreements to endorse certain products, he acted as a private individual and had all the right to lend his name and image to these products. However, when he filed his certificate of candidacy for Senator, the billboards featuring his name and image assumed partisan political character because the same indirectly promoted his candidacy. Therefore, the COMELEC was acting well within its scope of powers when it required petitioner to discontinue the display of the subject billboards. If the subject billboards were to be allowed, candidates for public office whose name and image are used to advertise commercial products would have more opportunity to make themselves known to the electorate, to the disadvantage of other candidates who do not have the same chance of lending their faces and names to endorse popular commercial products as image models. Similarly, an individual intending to run for public office within the next few months, could pay private corporations to use him as their image model with the intention of familiarizing the public with his name and image even before the start of the campaign period. This, without a doubt, would be a circumvention of the rule against premature campaigning: Sec. 80. Election campaign or partisan political activity outside campaign period. It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period. x x x [4] Article IX (C) (4) of the Constitution provides: Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or

information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. Under the abovementioned Constitutional provision, the COMELEC is expressly authorized to supervise or regulate the enjoyment or utilization of all media communication or information to ensure equal opportunity, time, and space. All these are aimed at the holding of free, orderly, honest, peaceful, and credible elections. Neither is Section 32 of Resolution No. 6520 a gross violation of the non-impairment clause. The non-impairment clause of the Constitution must yield to the loftier purposes targeted by the Government.[5] Equal opportunity to proffer oneself for public office, without regard to the level of financial resources one may have at his disposal, is indeed of vital interest to the public. The State has the duty to enact and implement rules to safeguard this interest. Time and again, this Court has said that contracts affecting public interest contain an implied reservation of the police power as a postulate of the existing legal order. This power can be activated at anytime to change the provisions of the contract, or even abrogate it entirely, for the promotion or protection of the general welfare. Such an act will not militate against the impairment clause, which is subject to and limited by the paramount police power.[6] Furthermore, this Court notes that the very contracts entered into by petitioner provide that the endorsers photograph and image shall be utilized in whatever form, mode and manner in keeping with norms of decency, reasonableness, morals and law;[7] and in whatever form, mode and manner not contrary to law and norms of decency,[8] and in whatever form, mode and manner in keeping with norms of decency, reasonableness, morals and law.[9] Petitioner also claims that Section 32 of Resolution No. 6520 is in the nature of an ex post facto law. He urges this Court to believe that the assailed provision makes an individual criminally liable for an election offense for not removing such advertisement, even if at the time the said advertisement was exhibited, the same was clearly legal. Hence, it makes a person, whose name or image is featured in any such advertisement, liable for premature campaigning under the Omnibus Election Code.[10] A close scrutiny of this rationale, however, demonstrates its lack of persuasiveness. Section 32, although not penal in nature, defines an offense and prescribes a penalty for said offense. Laws of this nature must operate prospectively, except when they are favorable to the accused. It should be noted, however, that the offense defined in the assailed provision is not the putting up of propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office. Nor does it prohibit or consider an offense the entering of contracts for such propaganda materials by an individual who subsequently becomes a candidate for public office. One definitely does not commit an offense by entering into a contract with private parties to use his name and image to endorse certain products prior to his becoming a candidate for public office. The offense, as expressly prescribed in the assailed provision, is the non-removal of the described propaganda materials three (3) days after the effectivity of COMELEC Resolution No. 6520. If the candidate for public office fails to remove such propaganda materials after the given period, he shall be liable under Section 80 of the Omnibus Election Code for premature campaigning. Indeed, nowhere is it indicated in the assailed provision that it shall operate retroactively. There is, therefore, no ex post facto law in this case. Next, petitioner urges that Section 32 is a violation of the Fair Elections Act. According to him, under this law, billboards are already permitted as lawful election propaganda. He claims, therefore, that the COMELEC, in effectively prohibiting the use of billboards as a form of election propaganda through the assailed provision, violated the Fair Elections Act. Petitioners argument is not tenable. The Solicitor General rightly points out that the assailed provision does not prohibit billboards as lawful election propaganda. It only regulates their use to prevent premature campaigning and to equalize, as much as practicable, the situation of all candidates by preventing popular and rich candidates from gaining undue advantage in exposure and publicity on account of their resources and popularity.[11] Moreover, by regulating the use of such election propaganda materials, the COMELEC is merely doing its duty under the law. Under Sections 3 and 13 of the Fair Elections Act, all election propaganda are subject to the supervision and regulation by the COMELEC:

SECTION 3. Lawful Election Propaganda. -- Election propaganda, whether on television, cable television radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties observance of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC). For the purpose of this Act, lawful election propaganda shall include: 3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one half inches in width and fourteen inches in length; 3.2. Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office; 3.3. Cloth, paper or cardboard posters whether framed or posted, with an area not exceeding two(2) feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four (24) hours after said meeting or rally; 3.4. Paid advertisements in print or broadcast media: Provided, That the advertisements shall follow the requirements set forth in Section 4 of this Act; and 3.5. All other forms of election propaganda not prohibited by the Omnibus Election Code or this Act. x x x

SECTION 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. - The COMELEC shall promulgate and furnish all political parties and candidates and the mass media entities the rules and regulations for the implementation of this Act, consistent with the criteria established in Article IX-C, Section 4 of the Constitution and Section 86 of the Omnibus Election Code (Batas Pambansa Blg. 881). Rules and regulations promulgated by the COMELEC under and by authority of this Section shall take effect on the seventh day after their publication in at least two (2) daily newspapers of general circulation. Prior to effectivity of said rules and regulations, no political advertisement or propaganda for or against any candidate or political party shall be published or broadcast through mass media. Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be an election offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code (Batas Pambansa Blg. 881). Finally, petitioner contends that Section 32 of COMELEC Resolution No. 6520 is invalid because of overbreadth. A statute or regulation is considered void for overbreadth when it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to State regulations may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms.[12] The provision in question is limited in its operation both as to time and scope. It only disallows the continued display of a persons propaganda materials and advertisements after he has filed a certificate of candidacy and before the start of the campaign period. Said materials and advertisements must also show his name and image. There is no blanket prohibition of the use of propaganda materials and advertisements. During the campaign period, these may be used subject only to reasonable limitations necessary and incidental to achieving the purpose of preventing premature campaigning and promoting equality of opportunities among all candidates. The provision, therefore, is not invalid on the ground of overbreadth.

WHEREFORE, the petition is DISMISSED and Section 32 of COMELEC Resolution No. 6520 is declared valid and constitutional. The prayer for a Temporary Restraining Order and/or a Writ of Preliminary Injunction is hereby DENIED. No costs. SO ORDERED. Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur. Puno, Panganiban, Sandoval-Gutierrez, and Carpio, JJ., on official leave.

ROSALINDA A. PENERA, Petitioner,

G.R. No. 181613

COMMISSION ON ELECTIONS Promulgated: and EDGAR T. ANDANAR, Respondents. November 25, 2009 RESOLUTION CARPIO, J.:

We grant Rosalinda A. Peneras (Penera) motion for reconsideration of this Courts Decision of 11 September 2009 (Decision).

The assailed Decision dismissed Peneras petition and affirmed the Resolution dated 30 July 2008 of the COMELEC En Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second Division. The Decision disqualified Penera from running for the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed Penera.

In support of her motion for reconsideration, Penera submits the following arguments: 1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as amended by Section 13 of RA 9369. 2. The petition for disqualification failed to submit convincing and substantial evidence against Penera for violation of Section 80 of the Omnibus Election Code. 3. Penera never admitted the allegations of the petition for disqualification and has consistently disputed the charge of premature campaigning. 4. The admission that Penera participated in a motorcade is not the same as admitting she engaged in premature election campaigning.

Section 79(a) of the Omnibus Election Code defines a candidate as any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x. The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that [a]ny person who files his certificate of candidacy within [the period for filing] shall onlybe considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy. The immediately succeeding proviso in the same third paragraph states that unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period. These two provisions determine the resolution of this case.

The Decision states that [w]hen the campaign period starts and [the person who filed his certificate of candidacy] proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified.[1]

Under the Decision, a candidate may already be liable for premature campaigning after the filing of the certificate of candidacy buteven before the start of the campaign period. From the filing of the certificate of candidacy, even long before the start of the campaign period, the Decision considers the partisan political acts of a person so filing a certificate of candidacy as the promotion of his/her election as a candidate. Thus, such person can be disqualified for premature campaigning for acts done before the start of the campaign period. In short, the Decision considers a person who files a certificate of candidacy already a candidate even before the start of the campaign period.

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,[2] which held that a person who files a certificate of candidacy is not a candidate until the start of the campaign period. In Lanot, this Court explained: Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period. The second element requires the existence of a candidate. Under Section 79(a), a candidate is one wh o has filed a certificate of candidacy to an elective public office. Unless one has filed his certificate of candidacy, he is not a candidate. The third element requires that the campaign period has not started when the election campaign or partisan political activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day. Before such last day, there is no particular candidate or candidates to campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since Section 80 covers only acts done outside the campaign period. Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close to the last day. There is no dispute that Eusebios acts of election campaigning or partisan political activities were committed outside of the campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a candidate when he committed those acts before the start of the campaign period on 24 March 2004. Section 11 of Republic Act No. 8436 (RA 8436) moved the deadline for the filing of certificates of candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to the start of the campaign period on 24 March 2004? Section 11 of RA 8436 provides: SECTION 11. Official Ballot. The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall be provided. Both sides of the ballots may be used when necessary. For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, VicePresident, Senators and candidates under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998. The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing

requirements. Accredited political parties and deputized citizens arms of the Commission may assign watchers in the printing, storage and distribution of official ballots. To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot. The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct. Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee: SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national officials? THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods. SENATOR GONZALES. But the moment one files a certificate of candidacy, hes already a candidate, and there are many prohibited acts on the part of candidate. THE CHAIRMAN (REP. TANJUATCO). Unless we. . . . SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic). THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the certificate will not bring about ones being a candidate. SENATOR GONZALES. If thats a fact, the law cannot change a fact. THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable ballots. So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate version. THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman. xxxx SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a candidate? THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to print the ballots, this provision does not intend to change the campaign periods as presently, or rather election periods as presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition. THE CHAIRMAN (REP. TANJUATCO). Thats right. THE ACTING CHAIRMAN (SEN. FERNAN). Okay. THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days also. So that is election period already. But he will still not be considered as a candidate. Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become immediately a candidate for purposes other than the printing of ballots. This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. The clear intention of Congress was to preserve the election periods as x x x fixed by existing law prior to RA 8436 and that one who files to meet the early deadline will still not be considered as a candidate.[3] (Emphasis in the original)

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the campaign period. This ground was based on the deliberations of the legislators who explained the intent of the provisions of RA 8436, which laid the legal framework for an automated election system. There was no express provision in the original RA 8436 stating that one who files a certificate of candidacy is not a candidate until the start of the campaign period.

When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law, realizing that Lanotmerely relied on the deliberations of Congress in holding that The clear intention of Congress was to preserve the election periods as x x x fixed by existing law prior to RA 8436 and that one who files to meet the early deadline will still not be considered as a candidate.[4] (Emphasis supplied)

Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the automated election system would be disqualified or penalized for any partisan political act done before the start of the campaign period. Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended Section 15 of RA 8436, thus: xxx

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (Boldfacing and underlining supplied)

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be annulled by this Court except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot without repealing this second sentence, because to reverse Lanot would mean repealing this second sentence.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire Section 15 good law. Thus, the Decision is self-contradictory reversing Lanot but maintaining the constitutionality of the second sentence, which embodies the Lanotdoctrine. In so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA 8436. The original provision in RA 8436 states

x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period, x x x. In RA 9369, Congress inserted the word only so that the first proviso now reads x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period x x x. (Emphasis supplied)

Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed by a candidate only upon the start of the campaign period. This clearly means that before the start of the campaign period, such election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. There is absolutely no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio: x x x The definition of a candidate in Section 79(a) of the Omnibus Election Code should be read together with the amended Section 15 of RA 8436. A candidate refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties. However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy. Any person may thus file a certificate of candidacy on any day within the prescribed period for filing a certificate of candidacy yet that person shall be considered a candidate, for purposes of determining ones possible violations of election laws, only during the campaign period. Indeed, there is no election campaign or partisan political activity designed to promote the election or defeat of a particular candidate or candidates to public office simply because there is no candidate to speak of prior to the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the questioned motorcade which was conducted a day before the start of the campaign period. x x x The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date when she became a candidate, even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm of a citizens protected freedom of expression. Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80 punishes only acts outside the campaign period.[5]

The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates take effect only upon the start of the campaign period. The Decision states that: x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period, does not mean that the acts constituting premature campaigning can only be committed, for which the offender may be disqualified, during the campaign period. Contrary to the pronouncement in

the dissent, nowhere in saidproviso was it stated that campaigning before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity. As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity, However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her candidacy.[6] (Emphasis supplied)

It is a basic principle of law that any act is lawful unless expressly declared unlawful by law . This is specially true to expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan activities before the start of the campaign period are lawful. It is sufficient for Congress to state that any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period. The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are lawful.

In laymans language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only after the start of the campaign period. This is not what the law says. What the law says is any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period. The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness.

Congress has laid down the law a candidate is liable for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy. Neither can this Court turn a blind eye to the express and clear language of the law that any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.

The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its immediately succeedingproviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Peneras Motion for Reconsideration. We SET ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor of Sta. Monica, Surigao del Norte.

SO ORDERED.

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD, petitioners, vs. COMMISSION ON ELECTIONS, respondent. Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features newsworthy items of information including election surveys.

Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which provides: Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. The term election surveys is defined in 5.1 of the law as follows: Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidates popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as Survey). To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC enjoins Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14, 2001. Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to the voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys which are relatively objective. Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the evils sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness. Respondent claims that in National Press Club v. COMELEC,[1] a total ban on political advertisements, with candidates being merely allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according to respondent, it states that the prohibition in 5.4 of R.A. No. 9006 is much more limited. For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press. To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven (7) days before a local election. Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity.[2] Indeed, any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government thus carries a heavy burden of showing justification for the enforcement of such restraint.[3] There is thus a reversal of the normal presumption of validity that inheres in every legislation.

Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out in sustaining the ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring equal opportunity, time, space, and the right to reply as well as uniform and reasonable rates of charges for the use of such media facilities for public information campaigns and forums among candidates.[4] This Court stated: The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press.[5] MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of 5.4. Indeed, as has been pointed out in Osmea v. COMELEC,[6] this test was originally formulated for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations. Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by weighing and balancing the circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served by the regulation of the free enjoyment of the rights (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the junking of weak and losing candidates by their parties, and the form of election cheating called dagdag-bawas and invoking the States power to supervise media of information during the election period (pages 11 -16), the dissenting opinion simply concludes: Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18) The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As already stated, the purpose of Art. IX-C, 4 is to ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for public information campaigns and forums among candidates. Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process. In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little protection. For anyone who can bring a plausible justification forward can easily show a rational connection between the statute and a legitimate governmental purpose. In contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC,[7] from which the dissent in this case takes its cue, was a strong one resulting in his conclusion that 50-B of R.A. No. 4880, which limited the period of election campaign and partisan political activity, was an unconstitutional abridgment of freedom of expression. Nor can the ban on election surveys be justified on the ground that there are other countries 78, according to the Solicitor General, while the dissent cites 28 which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is noteworthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature democracy. Neither

are there laws imposing an embargo on survey results, even for a limited period, in other countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more mature than the Philippines in political development, do not restrict the publication of election survey results. What test should then be employed to determine the constitutional validity of 5.4? The United States Supreme Court, through Chief Justice Warren, held in United States v. OBrien: [A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest.[8] This is so far the most influential test for distinguishing content-based from content-neutral regulations and is said to have become canonical in the review of such laws.[9] It is noteworthy that the OBrien test has been applied by this Court in at least two cases.[10] Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is not unrelated to the suppression of free expression. Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. Our inquiry should accordingly focus on these two considerations as applied to 5.4. First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the causal connection of expression to the asserted governmental interest makes such interest not unrelated to the suppression of free expression. By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion makers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.[11] The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire,[12] thus: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Nor is there justification for the prior restraint which 5.4 lays on protected speech. In Near v. Minnesota,[13] it was held: [The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government . . . . Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category

of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be valid in National Press Club v. COMELEC[14] and Osmea v.COMELEC.[15] For the ban imposed by R.A. No. 6646, 11(b) is not only authorized by a specific constitutional provision,[16] but it also provided an alternative so that, as this Court pointed out in Osmea, there was actually no ban but only a substitution of media advertisements by the COMELEC space and COMELEC hour. Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of the OBrien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, 5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, junking of weak or losing candidates, and resort to the form of election cheating called dagdag bawas. Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987,[17] the COMELEC is given the power: To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing. This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be identified with the winners. Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results which are a form of expression? It has been held that [mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.[18] To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its decisions, orders, or resolutions may be reviewed by this Court only by certiorari. The flaws in this argument is that it assumes that its Resolution 3636, dated March 1, 2001 is a decision, order, or resolution within the meaning of Art. IX -A, 7. Indeed, counsel for COMELEC maintains that Resolution 3636 was rendered by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for the COMELECs claim that this petition for prohibition is inappropriate. Prohibition has been found appropriate for testing the constitutionality of various election laws, rules, and regulations.[19] WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006 and 24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared unconstitutional. SO ORDERED.

EN BANC ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner, G.R. No. 190582

Present:

COMMISSION ON ELECTIONS, Promulgated: Respondent. April 8, 2010 x--------------------------------------------------------x DECISION DEL CASTILLO, J.: ... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. Justice Robert A. Jackson West Virginia State Board of Education v. Barnette[1]

One unavoidable consequence of everyone having the freedom to choose is that others may make different choices choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely because they are different, and the right to disagree and debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and respect for, diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed is an insurmountable goal. Yet herein lies the paradox philosophical justifications about what is moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that practical solutions are preferable to ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly.

Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009[2] (the First Assailed Resolution) and December 16, 2009[3] (the Second Assailed Resolution) in SPP No. 09-228

(PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELECs refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.[4]

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or transgendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization had no substantial membership base. On August 17, 2009,Ang Ladlad again filed a Petition[5] for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladladcomplied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.[6] Ang Ladlad laid out its national membership base consisting of individual members and organizational supporters, and outlined its platform of governance.[7]

On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating that: x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus: x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity. and proceeded to define sexual orientation as that which: x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender. This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote: For this cause God gave them up into vile affections, for even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompense of their error which was meet. In the Koran, the hereunder verses are pertinent: For ye practice your lusts on men in preference to women ye are indeed a people transgressing beyond bounds. (7.81) And we rained down on them a shower (of brimstone):

Then see what was the end of those who indulged in sin and crime! (7:84) He said: O my Lord! Help Thou me against people who do mischief (29:30). As correctly pointed out by the Law Department in its Comment dated October 2, 2008: The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions par. 6F: Consensual partnerships or relationships by gays and lesbians who are already of age. It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom andGomorrah). Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied with for accreditation. ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as Any act, omission, establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or disregards decency or morality x x x It also collides with Article 1306 of the Civil Code: The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code provides that Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy are inexistent and void from the beginning. Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes Immoral doctrines, obscene publications and exhibitions and indecent shows as follows: Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: 1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals; 2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts. 3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said that it or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections.

Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one article that older practicing homosexuals are a threat to the youth. As an agency of the government, ours too is the States avowed duty under Section 13, Article II of the Constitution to protect our youth from moral and spiritual degradation.[8]

When Ang Ladlad sought reconsideration,[9] three commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that: I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has properly proven its under-representation and marginalization, it cannot be said that Ladlads expressed sexual orientations per se would benefit the nation as a whole. Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing congressional representatives is toenable Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. If entry into the party-list system would depend only on the ability of an organization to represent its constituencies, then all representative organizations would have found themselves into the party-list race. But that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the realization of aspirations of marginalized individuals whose interests are also the nations only that their interests have not been brought to the attention of the nation because of their under representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is beneficial to the nation, its application for accreditation under the party-list system will remain just that. II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a special class of individuals. x x x Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right, and that nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or legal equality of homosexual relations, as in the case of race or religion or belief. xxxx Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no denying that Ladlad constituencies are still males and females, and they will remain either male or female protected by the same Bill of Rights that applies to all citizens alike. xxxx

IV. Public Morals x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is there any attempt to any particular religious groups moral rules on Ladlad. Rather, what are being adopted as moral parameters and precepts are generally accepted public morals. They are possibly religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that some moral precepts espoused by said religions have sipped [sic] into society and these are not publicly accepted moral norms. V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised Penal Code imposes the penalty of prision mayor upon Those who shall publicly expound or proclaim doctrines openly contrary to public morals. It penalizes immoral doctrines, obscene publications and exhibition and indecent shows. Ang Ladlad apparently falls under these legal provisions. This is clear from its Petitions paragraph 6F: Consensual partnerships or relationships by gays and lesbians who are already of age It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines nuisance as any act, omission x x x or anything else x x x which shocks, defies or disregards decency or morality x x x. These are all unlawful.[10]

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang Ladlads application for accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010.[11] Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to Comment.[12] Somewhat surprisingly, the OSG later filed a Comment in support of petitioners application.[13] Thus, in order to give COMELEC the opportunity to fully ventilate its position, we required it to file its own comment.[14] The COMELEC, through its Law Department, filed its Comment on February 2, 2010.[15]

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to cease and desist from implementing the Assailed Resolutions.[16]

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae,attaching thereto its Comment-in-Intervention.[17] The CHR opined that the denial of Ang Ladlads petition on moral grounds

violated the standards and principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHRs motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene[18] which motion was granted on February 2, 2010.[19]

The Parties Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted violations of thePhilippines international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners application for registration since there was no basis for COMELECs allegations of immorality. It also opined that LGBTs have their own special interests and concerns which should have been recognized by the COMELEC as a separate classification. However, insofar as the purported violations of petitioners freedom of speech, expression, and assembly were concerned, the OSG maintained that there had been no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by COMELECs field personnel.

Our Ruling We grant the petition. Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,[20] the enumeration of marginalized and under-represented sectors is not exclusive. The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had nationwide existence through its members and affiliate organizations. The COMELEC claims that upon verification by its field personnel, it was shown that save for a few isolated places in the country, petitioner does not exist in almost all provinces in the country.[21] This argument that petitioner made untruthful statements in its petition when it alleged its national existence is a new one; previously, the COMELEC claimed that petitioner was not being truthful when it said that it or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections. Nowhere was this ground for denial of petitioners accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioners alleged non-existence were already available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in respondents theory, and a serious violation of petitioners right to procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044 members in its electronic discussion group.[22] Ang Ladlad also represented itself to be a national LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT networks: Abra Gay Association Aklan Butterfly Brigade (ABB) Aklan Albay Gay Association Arts Center of Cabanatuan City Nueva Ecija Boys Legion Metro Manila Cagayan de Oro People Like Us (CDO PLUS) Cant Live in the Closet, Inc. (CLIC) Metro Manila Cebu Pride Cebu City Circle of Friends Dipolog Gay Association Zamboanga del Norte Gay, Bisexual, & Transgender Youth Association (GABAY)

Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila Gay Mens Support Group (GMSG) Metro Manila Gay United for Peace and Solidarity (GUPS) Lanao del Norte Iloilo City Gay Association Iloilo City Kabulig Writers Group Camarines Sur Lesbian Advocates Philippines, Inc. (LEAP) LUMINA Baguio City Marikina Gay Association Metro Manila Metropolitan Community Church (MCC) Metro Manila Naga City Gay Association Naga City ONE BACARDI Order of St. Aelred (OSAe) Metro Manila PUP LAKAN RADAR PRIDEWEAR Rainbow Rights Project (R-Rights), Inc. Metro Manila San Jose del Monte Gay Association Bulacan Sining Kayumanggi Royal Family Rizal Society of Transexual Women of the Philippines (STRAP) Metro Manila Soul Jive Antipolo, Rizal The Link Davao City Tayabas Gay Association Quezon Womens Bisexual Network Metro Manila Zamboanga Gay Association Zamboanga City[23]

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they found that petitioner had no presence in any of these regions. In fact, if COMELECs findings are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlads principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements for accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlads morality, or lack thereof. Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration

Our Constitution provides in Article III, Section 5 that [n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. At bottom, what our non-establishment clause calls for is government neutrality in religious matters.[24] Clearly, governmental reliance on religious justification is inconsistent with this policy of neutrality.[25] We thus find

that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion ofAng Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor:[26] x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests.[27]

Public Morals as a Ground to Deny Ang Ladlads Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be religionbased, it has long been transplanted into generally accepted public morals. The COMELEC argues: Petitioners accreditation was denied not necessarily because their group consists of LGBTs but because of the danger it poses to the people especially the youth. Once it is recognized by the government, a sector which believes that there is nothing wrong in having sexual relations with individuals of the same gender is a bad example. It will bring down the standard of morals we cherish in our civilized society. Any society without a set of moral precepts is in danger of losing its own existence.[28]

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these generally accepted public morals have not been convincingly transplanted into the realm of law.[29]

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees that there should have been a finding by the COMELEC that the groups members have committed or are committing immoral acts.[30] The OSG argues: x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full of disqualification cases against both the straights and the gays. Certainly this is not the intendment of the law.[31]

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the government will and should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny.

We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as any act, omission, establishment, condition of property, or anything else which shocks, defies, or disregards decency or morality, the remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings.[32] A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondents blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides nor shall any person be denied equal protection of the laws, courts have never interpreted the provision as an absolute prohibition on classification. Equality, said Aristotle, consists in the same treatment of similar persons.[33] The equal protection clause guarantees that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by other persons or other classes in the same place and in like circumstances.[34]

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the classification as long as it bears a rational relationship to some legitimate government end.[35] In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,[36] we declared that [i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have followed the rational basis test, coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution.[37]

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted state interest here that is, moral disapproval of an unpopular minority is not a legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause. The COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is

equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar as the party-list system is concerned does not imply that any other law distinguishing between heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the OSGs position that homosexuals are a class in themselves for the purposes of the equal protection clause.[38] We are not prepared to single out homosexuals as a separate class meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under the same basis as all other groups similarly situated, and that the COMELEC made an unwarranted and impermissible classification not justified by the circumstances of the case. Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity of its position through normal democratic means.[39] It is in the public square that deeply held convictions and differing opinions should be distilled and deliberated upon. As we held in Estrada v. Escritor:[40] In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance. Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies including protection of religious freedom "not only for a minority, however small not only for a majority, however large but for each of us" the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning ones homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well. Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates public morality does not justify criminalizing same-sex conduct.[41] European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal protection provisions in foreign and international texts.[42] To the extent that there is much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Courts analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression of opinion, public institutions must show that their actions were caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.[43]

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that political ideas that challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of association, even if such ideas may seem shocking or unacceptable to the authorities or the majority of the population.[44] A political group should not be hindered solely because it seeks to publicly debate controversial political issues in order to find solutions capable of satisfying everyone concerned.[45] Only if a political party incites violence or puts forward policies that are incompatible with democracy does it fall outside the protection of the freedom of association guarantee.[46]

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of homosexuality through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has been no restriction on their freedom of expression or association. The OSG argues that: There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section 4, Article III of the Constitution. xxxx A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is a constitutionally-guaranteed right which cannot be limited. As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlads petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its members to fully and equally participate in public life through engagement in the party list elections. This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations imposed by law. x x x[47] The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list system, and as advanced by the OSG itself the moral objection offered by the COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of COMELECs action, from publicly expressing its views as a political party and participating on an equal basis in the political process with other equally-qualified party-list candidates, we find that there has, indeed, been a transgression of petitioners fundamental rights. Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and governmental support, international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct.

Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows: Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to sex in Article 26 should be construed to include sexual orientation.[48] Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements.[49]

The UDHR provides: Article 21. (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

Likewise, the ICCPR states: Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows: 1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant. xxxx 15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the legislative provisions which exclude any group or category of persons from elective office.[50]

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioners invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity),[51] which petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.[52] Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status.

We also hasten to add that not everything that society or a certain segment of society wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if wants are couched in rights language, then they are no longer controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are at best de lege ferenda and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the soft law nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than wellmeaning desires, without the support of either State practice or opinio juris.[53]

As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Courts role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed to GRANTpetitioners application for party-list accreditation. SO ORDERED.

[G.R. No. 136781. October 6, 2000]

VETERANS FEDERATION PARTY, ALYANSANG BAYANIHAN NG MGA MAGSASAKA, MANGGAGAWANG BUKID AT MANGINGISDA, ADHIKAIN AT KILUSAN NG ORDINARYONG TAO PARA SA LUPA, PABAHAY AT KAUNLARAN, and LUZON FARMERS PARTY, petitioners, vs. COMMISSION ON ELECTIONS, PAG-ASA, SENIOR CITIZENS, AKAP AKSYON, PINATUBO, NUPA, PRP, AMIN, PAG-ASA, MAHARLIKA, OCW-UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMEN-POWER, INC., FEJODAP, CUP, VETERANS CARE, 4L, AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAKBAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT, AABANTE KA PILIPINAS -- All Being Party-List Parties/Organizations -- and Hon. MANUEL B. VILLAR, JR. in His Capacity as Speaker of the House of Representatives, respondents.

[G.R. No. 136786. October 6, 2000]

AKBAYAN! (CITIZENS' ACTION PARTY), ADHIKAIN AT KILUSAN NG ORDINARYONG TAO PARA SA LUPA, PABAHAY AT KAUNLARAN (AKO), and ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES (APEC), petitioners, vs. COMMISSION ON ELECTIONS (COMELEC), HOUSE OF REPRESENTATIVES represented by Speaker Manuel B. Villar, PAG-ASA, SENIOR CITIZENS, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, MAHARLIKA, OCW, UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMENPOWER INC., FEJODAP,

CUP, VETERANS CARE, FOUR "L", AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT, AABANTE KA PILIPINAS, respondents.

[G.R. No. 136795. October 6, 2000]

ALAGAD (PARTIDO NG MARALITANG-LUNGSOD), NATIONAL CONFEDERATION OF SMALL COCONUT FARMERS' ORGANIZATIONS (NCSFCO), and LUZON FARMERS' PARTY (BUTIL), petitioners, vs. COMMISSION ON ELECTIONS, SENIOR CITIZENS, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PAG-ASA, MAHARLIKA, OCW, UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE, 4L, AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT, and AABANTE KA PILIPINAS, respondents. DECISION PANGANIBAN, J.:*

Prologue To determine the winners in a Philippine-style party-list election, the Constitution and Republic Act (RA) No. 7941 mandate at least four inviolable parameters. These are: 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 actually obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional seats. Fourth, proportional representation - the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes. Because the Comelec violated these legal parameters, the assailed Resolutions must be struck down for having been issued in grave abuse of discretion. The poll body is mandated to enforce and administer election-related laws. It has no power to contravene or amend them. Neither does it have authority to decide the wisdom, propriety or rationality of the acts of Congress. Its bounden duty is to craft rules, regulations, methods and formulas to implement election laws -- not to reject, ignore, defeat, obstruct or circumvent them. In fine, the constitutional introduction of the party-list system - a normal feature of parliamentary democracies into our presidential form of government, modified by unique Filipino statutory parameters, presents new paradigms and novel questions, which demand innovative legal solutions convertible into mathematical formulations which are, in turn, anchored on time-tested jurisprudence.

The Case

Before the Court are three consolidated Petitions for Certiorari (with applications for the issuance of a temporary restraining order or writ of preliminary injunction) under Rule 65 of the Rules of Court, assailing (1) the October 15, 1998 Resolution[1] of the Commission on Elections (Comelec), Second Division, in Election Matter 98-065;[2] and (2) the January 7, 1999 Resolution[3] of the Comelec en banc, affirming the said disposition. The assailed Resolutions ordered the proclamation of thirty-eight (38) additional party-list representatives "to complete the full complement of 52 seats in the House of Representatives as provided under Section 5, Article VI of the 1987 Constitution and R.A. 7941.

The Facts and the Antecedents Our 1987 Constitution introduced a novel feature into our presidential system of government -- the party-list method of representation. Under this system, any national, regional or sectoral party or organization registered with the Commission on Elections may participate in the election of party-list representatives who, upon their election and proclamation, shall sit in the House of Representatives as regular members.[4] In effect, a voter is given two (2) votes for the House -- one for a district congressman and another for a party-list representative.[5] Specifically, this system of representation is mandated by Section 5, Article VI of the Constitution, which provides: Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected by a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. Complying with its constitutional duty to provide by law the selection or election of party-list representatives, Congress enacted RA 7941 on March 3, 1995. Under this statutes policy declaration, the State shall "promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. (italics ours.) The requirements for entitlement to a party-list seat in the House are prescribed by this law (RA 7941) in this wise: Sec. 11. Number of Party-List Representatives. -- The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system. In determining the allocation of seats for the second vote, the following procedure shall be observed:

(a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each; Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes; Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Pursuant to Section 18 of RA 7941, the Comelec en banc promulgated Resolution No. 2847, prescribing the rules and regulations governing the election of party-list representatives through the party-list system.

Election of the Fourteen Party-List Representatives On May 11, 1998, the first election for party-list representation was held simultaneously with the national elections. A total of one hundred twenty-three (123) parties, organizations and coalitions participated. On June 26, 1998, the Comelec en banc proclaimed thirteen (13) party-list representatives from twelve (12) parties and organizations, which had obtained at least two percent of the total number of votes cast for the party-list system. Two of the proclaimed representatives belonged to Petitioner APEC, which obtained 5.5 percent of the votes. The proclaimed winners and the votes cast in their favor were as follows:[6] Party/Organization/ Number of Percentage of Nominees Coalition Votes Obtained Total Votes 1. APEC 503,487 5.5% Rene M. Silos Melvyn D. Eballe 2. ABA 321,646 3.51% Leonardo Q. Montemayor 3. ALAGAD 312,500 3.41% Diogenes S. Osabel 4. VETERANS 304,802 3.33% Eduardo P. Pilapil FEDERATION 5. PROMDI 255,184 2.79% Joy A.G. Young 6. AKO 239,042 2.61% Ariel A. Zartiga 7. NCSCFO 238,303 2.60% Gorgonio P. Unde 8. ABANSE! PINAY 235,548 2.57% Patricia M. Sarenas 9. AKBAYAN 232,376 2.54% Loreta Ann P. Rosales 10. BUTIL 215,643 2.36% Benjamin A. Cruz 11. SANLAKAS 194,617 2.13% Renato B. Magtubo 12. COOP-NATCCO 189,802 2.07% Cresente C. Paez After passing upon the results of the special elections held on July 4, 18, and 25, 1998, the Comelec en banc further determined that COCOFED (Philippine Coconut Planters Federation, Inc.) was entitled to one party -list seat for having garnered 186,388 votes, which were equivalent to 2.04 percent of the total votes cast for the party-list system. Thus, its first nominee, Emerito S. Calderon, was proclaimed on September 8, 1998 as the 14th party-list representative.[7] On July 6, 1998, PAG-ASA (Peoples Progressive Alliance for Peace and Good Government Towards Alleviation of Poverty and Social Advancement) filed with the Comelec a "Petition to Proclaim [the] Full Number of Party-List Representatives provided by the Constitution." It alleged that the filling up of the twenty percent membership of partylist representatives in the House of Representatives, as provided under the Constitution, was mandatory. It further claimed that the literal application of the two percent vote requirement and the three-seat limit under RA 7941 would defeat this constitutional provision, for only 25 nominees would be declared winners, short of the 52 party-list representatives who should actually sit in the House. Thereafter, nine other party-list organizations[8] filed their respective Motions for Intervention, seeking the same relief as that sought by PAG-ASA on substantially the same grounds. Likewise, PAG-ASAs Petition was joined by other party-list organizations in a Manifestation they filed on August 28, 1998. These organizations were COCOFED, Senior

Citizens, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PCCI, AMMA-KATIPUNAN, OCW-UNIFIL, KAMPIL, MAHARLIKA, AFW, Women Power, Inc., Ang Lakas OCW, FEJODAP, CUP, Veterans Care, Bantay Bayan, 4L, AWATU, PMP, ATUCP, ALU and BIGAS. On October 15, 1998, the Comelec Second Division promulgated the present assailed Resolution granting PAGASA's Petition. It also ordered the proclamation of herein 38 respondents who, in addition to the 14 already sitting, would thus total 52 party-list representatives. It held that "at all times, the total number of congressional[9] seats must be filled up by eighty (80%) percent district representatives and twenty (20%) percent party-list representatives." In allocating the 52 seats, it disregarded the two percent-vote requirement prescribed under Section 11 (b) of RA 7941. Instead, it identified three "elements of the party-list system," which should supposedly determine "how the 52 seats should be filled up." First, "the system was conceived to enable the marginalized sectors of the Philippine society to be represented in the House of Representatives." Second, "the system should represent the broadest sectors of the Philippine society." Third, "it should encourage [the] multi-party system. (Boldface in the original.) Considering these elements, but ignoring the two percent threshold requirement of RA 7941, it concluded that "the partylistgroups ranked Nos. 1 to 51 x x x should have at least one representative. It thus disposed as follows: "WHEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code (B.P. 881), Republic Act No. 7941 and other election laws, the Commission (Second Division) hereby resolves to GRANT the instant petition and motions for intervention, to include those similarly situated. ACCORDINGLY, the nominees from the party-list hereinbelow enumerated based on the list of names submitted by their respective parties, organizations and coalitions are PROCLAIMED as party-list representatives, to wit: 1. SENIOR CITIZENS 2. AKAP 3. AKSYON 4. PINATUBO 5. NUPA 6. PRP 7. AMIN 8. PAG-ASA 9. MAHARLIKA 10. OCW-UNIFIL 11. FCL 12. AMMA-KATIPUNAN 13. KAMPIL 14. BANTAY BAYAN 15. AFW 16. ANG LAKAS OCW 17. WOMENPOWER, INC. 18. FEJODAP 19. CUP 20. VETERANS CARE

21. 4L 22. AWATU 23. PMP 24. ATUCP 25. NCWP 26. ALU 27. BIGAS 28. COPRA 29. GREEN 30. ANAKBAYAN 31. ARBA 32. MINFA 33. AYOS 34. ALL COOP 35. PDP-LABAN 36. KATIPUNAN 37. ONEWAY PRINT 38. AABANTE KA PILIPINAS to complete the full complement of 52 seats in the House of Representatives as provided in Section 5, Article VI of the 1987 Constitution and R.A. 7941. The foregoing disposition sums up a glaring bit of inconsistency and flip-flopping. In its Resolution No. 2847 dated June 25, 1996, the Comelec en banc had unanimously promulgated a set of Rules and Regulations Governing the Election of x x x Party-List Representatives Through the Party-List System. Under these Rules and Regulations, one additional seat shall be given for every two percent of the vote, a formula the Comelec illustrated in its Annex A. It apparently relied on this method when it proclaimed the 14 incumbent party-list solons (two for APEC and one each for the 12 other qualified parties). However, for inexplicable reasons, it abandoned said unanimous Resolution and proclaimed, based on its three elements, the Group of 38 private respondents.[10] The twelve (12) parties and organizations, which had earlier been proclaimed winners on the basis of having obtained at least two percent of the votes cast for the party-list system, objected to the proclamation of the 38 parties and filed separate Motions for Reconsideration. They contended that (1) under Section 11 (b) of RA 7941, only parties, organizations or coalitions garnering at least two percent of the votes for the party-list system were entitled to seats in the House of Representatives; and (2) additional seats, not exceeding two for each, should be allocated to those which had garnered the two percent threshold in proportion to the number of votes cast for the winning parties, as provided by said Section 11.

Ruling of the Comelec En Banc Noting that all the parties -- movants and oppositors alike - had agreed that the twenty percent membership of party-list representatives in the House "should be filled up, the Comelec en banc resolved only the issue concerning the apportionment or allocation of the remaining seats. In other words, the issue was: Should the remaining 38 unfilled

seats allocated to party-list solons be given (1) to the thirteen qualified parties that had each garnered at least two percent of the total votes, or (2) to the Group of 38 - herein private respondents - even if they had not passed the two percent threshold? The poll body held that to allocate the remaining seats only to those who had hurdled the two percent vote requirement "will mean the concentration of representation of party, sectoral or group interests in the House of Representatives to thirteen organizations representing two political parties, three coalitions and four sectors: urban poor, veterans, women and peasantry x x x. Such strict application of the 2% 'threshold' does not serve the essence and object of the Constitution and the legislature -- to develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives x x x. Additionally, it "will also prevent this Commission from complying with the constitutional and statutory decrees for party-list representatives to compose 20% of the House of Representatives. Thus, in its Resolution dated January 7, 1999, the Comelec en banc, by a razor-thin majority -- with three commissioners concurring[11] and two members[12] dissenting -- affirmed the Resolution of its Second Division. It, however, held in abeyance the proclamation of the 51st party (AABANTE KA PILIPINAS), "pending the resolution of petitions for correction of manifest errors. Without expressly declaring as unconstitutional or void the two percent vote requirement imposed by RA 7941, the Commission blithely rejected and circumvented its application, holding that there were more important considerations than this statutory threshold. Consequently, several petitions for certiorari, prohibition and mandamus, with prayers for the issuance of temporary restraining orders or writs of preliminary injunction, were filed before this Court by the parties and organizations that had obtained at least two per cent of the total votes cast for the party-list system.[13] In the suits, made respondents together with the Comelec were the 38 parties, organizations and coalitions that had been declared by the poll body as likewise entitled to party-list seats in the House of Representatives. Collectively, petitioners sought the proclamation of additional representatives from each of their parties and organizations, all of which had obtained at least two percent of the total votes cast for the party-list system. On January 12, 1999, this Court issued a Status Quo Order directing the Comele c to CEASE and DESIST from constituting itself as a National Board of Canvassers on 13 January 1999 or on any other date and proclaiming as winners the nominees of the parties, organizations and coalitions enumerated in the dispositive portions of its 15 October 1998 Resolution or its 7 January 1999 Resolution, until further orders from this Court. On July 1, 1999, oral arguments were heard from the parties. Atty. Jeremias U. Montemayor appeared for petitioners in GR No. 136781; Atty. Gregorio A. Andolana, for petitioners in GR No. 136786; Atty. Rodante D. Marcoleta for petitioners in GR No. 136795; Attys. Ricardo Blancaflor and Pete Quirino Quadra, for all the private respondents; Atty. Porfirio V. Sison for Intervenor NACUSIP; and Atty. Jose P. Balbuena for Respondent Comelec. Upon invitation of the Court, retired Comelec Commissioner Regalado E. Maambong acted as amicus curiae. Solicitor General Ricardo P. Galvez appeared, not for any party but also as a friend of the Court. Thereafter, the parties and the amici curiae were required to submit their respective Memoranda in amplification of their verbal arguments.[14]

The Issues The Court believes, and so holds, that the main question of how to determine the winners of the subject party-list election can be fully settled by addressing the following issues: 1. Is the twenty percent allocation for party-list representatives mentioned in Section 5 (2), Article VI of the Constitution, mandatory or is it merely a ceiling? In other words, should the twenty percent allocation for party-list solons be filled up completely and all the time?

2. Are the two percent threshold requirement and the three-seat limit provided in Section 11 (b) of RA 7941 constitutional? 3. If the answer to Issue 2 is in the affirmative, how should the additional seats of a qualified party be determined?

The Courts Ruling The Petitions are partly meritorious. The Court agrees with petitioners that the assailed Resolutions should be nullified, but disagrees that they should all be granted additional seats.

First Issue: Whether the Twenty Percent Constitutional Allocation Is Mandatory The pertinent provision[15] of the Constitution on the composition of the House of Representatives reads as follows: Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected by a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

Determination of the Total Number of Party-List Lawmakers Clearly, the Constitution makes the number of district representatives the determinant in arriving at the number of seats allocated for party-list lawmakers, who shall comprise "twenty per centum of the total number of representatives including those under the party-list." We thus translate this legal provision into a mathematical formula, as follows: No. of district representatives ---------------------------------- x .20 = No. of party-list .80 representatives This formulation[16] means that any increase in the number of district representatives, as may be provided by law, will necessarily result in a corresponding increase in the number of party-list seats. To illustrate, considering that there were 208 district representatives to be elected during the 1998 national elections, the number of party-list seats would be 52, computed as follows: 208 -------- x .20 = 52 .80 The foregoing computation of seat allocation is easy enough to comprehend. The problematic question, however, is this: Does the Constitution require all such allocated seats to be filled up all the time and under all circumstances? Our short answer is No.

Twenty Percent Allocation a Mere Ceiling The Constitution simply states that "[t]he party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. According to petitioners, this percentage is a ceiling; the mechanics by which it is to be filled up has been left to Congress. In the exercise of its prerogative, the legislature enacted RA 7941, by which it prescribed that a party, organization or coalition participating in the party-list election must obtain at least two percent of the total votes cast for the system in order to qualify for a seat in the House of Representatives. Petitioners further argue that the constitutional provision must be construed together with this legislative requirement. If there is no sufficient number of participating parties, organizations or coalitions which could hurdle the two percent vote threshold and thereby fill up the twenty percent party-list allocation in the House, then naturally such allocation cannot be filled up completely. The Comelec cannot be faulted for the "incompleteness," for ultimately the voters themselves are the ones who, in the exercise of their right of suffrage, determine who and how many should represent them. On the other hand, Public Respondent Comelec, together with the respondent parties, avers that the twenty percent allocation for party-list lawmakers is mandatory, and that the two percent vote requirement in RA 7941 is unconstitutional, because its strict application would make it mathematically impossible to fill up the House party-list complement. We rule that a simple reading of Section 5, Article VI of the Constitution, easily conveys the equally simple message that Congress was vested with the broad power to define and prescribe the mechanics of the party-list system of representation. The Constitution explicitly sets down only the percentage of the total membership in the House of Representatives reserved for party-list representatives. In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said earlier, Congress declared therein a policy to promote "proportional representation" in the election of party-list representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors to contribute legislation that would benefit them. It however deemed it necessary to require parties, organizations and coalitions participating in the system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat.Those garnering more than this percentage could have "additional seats in proportion to their total number of votes. Furthermore, no winning party, organization or coalition can have more than three seats in the House of Representatives. Thus the relevant portion of Section 11(b) of the law provides: (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each; Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes; Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Considering the foregoing statutory requirements, it will be shown presently that Section 5 (2), Article VI of the Constitution is not mandatory. It merely provides a ceiling for party-list seats in Congress. On the contention that a strict application of the two percent threshold may result in a mathematical impossibility, suffice it to say that the prerogative to determine whether to adjust or change this percentage requirement rests in Congress.[17] Our task now, as should have been the Comelecs, is not to find fault in the wisdom of the law through highly unlikely scenarios of clinical extremes, but to craft an innovative mathematical formula that can, as far as practicable, implement it within the context of the actual election process. Indeed, the function of the Supreme Court, as well as of all judicial and quasi-judicial agencies, is to apply the law as we find it, not to reinvent or second-guess it. Unless declared unconstitutional, ineffective, insufficient or otherwise void by the proper tribunal, a statute remains a valid command of sovereignty that must be respected and obeyed at all times. This is the essence of the rule of law.

Second Issue: The Statutory Requirement and Limitation

The Two Percent Threshold In imposing a two percent threshold, Congress wanted to ensure that only those parties, organizations and coalitions having a sufficient number of constituents deserving of representation are actually represented in Congress. This intent can be gleaned from the deliberations on the proposed bill. We quote below a pertinent portion of the Senate discussion: SENATOR GONZALES: For purposes of continuity, I would want to follow up a point that was raised by, I think, Senator Osmea when he said that a political party must have obtained at least a minimum percentage to be provided in this law in order to qualify for a seat under the party-list system. They do that in many other countries. A party must obtain at least 2 percent of the votes cast, 5 percent or 10 percent of the votes cast. Otherwise, as I have said, this will actually proliferate political party groups and those who have not really been given by the people sufficient basis for them to represent their constituents and, in turn, they will be able to get to the Parliament through the backdoor under the name of the party-list system, Mr. President."[18] A similar intent is clear from the statements of the bill sponsor in the House of Representatives, as the following shows: MR. ESPINOSA. There is a mathematical formula which this computation is based at, arriving at a five percent ratio which would distribute equitably the number of seats among the different sectors. There is a mathematical formula which is, I think, patterned after that of the party list of the other parliaments or congresses, more particularly the Bundestag of Germany.[19] Moreover, even the framers of our Constitution had in mind a minimum-vote requirement, the specification of which they left to Congress to properly determine. Constitutional Commissioner Christian S. Monsod explained: MR. MONSOD. x x x We are amenable to modifications in the minimum percentage of votes. Our proposal is that anybody who has two-and-a-half percent of the votes gets a seat. There are about 20 million who cast their votes in the last elections. Two-and-a-half percent would mean 500,000 votes. Anybody who has a constituency of 500,000 votes nationwide deserves a seat in the Assembly. If we bring that down to two percent, we are talking about 400,000 votes. The average vote per family is three. So, here we are talking about 134,000 families. We believe that there are many sectors who will be able to get seats in the Assembly because many of them have memberships of over 10,000. In effect, that is the operational implication of our proposal. What we are trying to avoid is this selection of sectors, the reserve seat system. We believe that it is our job to open up the system and that we should not have within that system a reserve seat. We think that people should organize, should work hard, and should earn their seats within that system.[20] The two percent threshold is consistent not only with the intent of the framers of the Constitution and the law, but with the very essence of "representation." Under a republican or representative state, all government authority emanates from the people, but is exercised by representatives chosen by them.[21] But to have meaningful representation, the elected persons must have the mandate of a sufficient number of people. Otherwise, in a legislature that features the party-list system, the result might be the proliferation of small groups which are incapable of contributing significant legislation, and which might even pose a threat to the stability of Congress. Thus, even legislative districts are apportioned according to "the number of their respective inhabitants, and on the basis of a uniform and progressive ratio"[22] to ensure meaningful local representation. All in all, we hold that the statutory provision on this two percent requirement is precise and crystalline. When the law is clear, the function of courts is simple application, not interpretation or circumvention.[23]

The Three-Seat-Per-Party Limit An important consideration in adopting the party-list system is to promote and encourage a multiparty system of representation. Again, we quote Commissioner Monsod: MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. But we also wanted to avoid the problems of mechanics and operation in the implementation of a concept that has very serious shortcomings of classification and of double or triple votes. We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives from any single party that can sit within the 50 allocated under the party list system.This way, we will open it up and enable sectoral groups, or maybe regional groups, to earn their seats among the fifty. x x x.[24] Consistent with the Constitutional Commission's pronouncements, Congress set the seat-limit to three (3) for each qualified party, organization or coalition. "Qualified" means having hurdled the two percent vote threshold. Such threeseat limit ensures the entry of various interest-representations into the legislature; thus, no single group, no matter how large its membership, would dominate the party-list seats, if not the entire House. We shall not belabor this point, because the validity of the three-seat limit is not seriously challenged in these consolidated cases.

Third Issue: Method of Allocating Additional Seats Having determined that the twenty percent seat allocation is merely a ceiling, and having upheld the constitutionality of the two percent vote threshold and the three-seat limit imposed under RA 7941, we now proceed to the method of determining how many party-list seats the qualified parties, organizations and coalitions are entitled to. The very first step - there is no dispute on this - is to rank all the participating parties, organizations and coalitions (hereafter collectively referred to as "parties") according to the votes they each obtained. The percentage of their respective votes as against the total number of votes cast for the party-list system is then determined. All those that garnered at least two percent of the total votes cast have an assured or guaranteed seat in the House of Representatives. Thereafter, "those garnering more than two percent of the votes shall be entitled to additional seats in proportion to their total number of votes." The problem is how to distribute additional seats "proportionally," bearing in mind the three-seat limit further imposed by the law.

One Additional Seat Per Two Percent Increment One proposed formula is to allocate one additional seat for every additional proportion of the votes obtained equivalent to the two percent vote requirement for the first seat.[25] Translated in figures, a party that wins at least six percent of the total votes cast will be entitled to three seats; another party that gets four percent will be entitled to two seats; and one that gets two percent will be entitled to one seat only. This proposal has the advantage of simplicity and ease of comprehension. Problems arise, however, when the parties get very lop-sided votes -- for example, when Party A receives 20 percent of the total votes cast; Party B, 10 percent; and Party C, 6 percent. Under the method just described, Party A would be entitled to 10 seats; Party B, to 5 seats and Party C, to 3 seats. Considering the three-seat limit imposed by law, all the parties will each uniformly have three seats only. We would then have the spectacle of a party garnering two or more times the number of votes obtained by another, yet getting the same number of seats as the other one with the much lesser votes. In effect, proportional representation will be contravened and the law rendered nugatory by this suggested solution. Hence, the Court discarded it.

The Niemeyer Formula Another suggestion that the Court considered was the Niemeyer formula, which was developed by a German mathematician and adopted by Germany as its method of distributing party-list seats in the Bundestag. Under this formula, the number of additional seats to which a qualified party would be entitled is determined by multiplying the remaining number of seats to be allocated by the total number of votes obtained by that party and dividing the product by the total number of votes garnered by all the qualified parties. The integer portion of the resulting product will be the number of additional seats that the party concerned is entitled to. Thus: No. of remaining seats to be allocated No. of additional --------------------------- x No. of votes of = seats of party Total no. of votes of party concerned concerned qualified parties (Integer.decimal) The next step is to distribute the extra seats left among the qualified parties in the descending order of the decimal portions of the resulting products. Based on the 1998 election results, the distribution of party-list seats under the Niemeyer method would be as follows: Party Number of Guaranteed Additional Extra Total Votes Seats Seats Seats 1. APEC 503,487 1 5.73 1 7 2. ABA 321,646 1 3.66 1 5 3. ALAGAD 312,500 1 3.55 4 4. VETERANS 304,802 1 3.47 4 FEDERATION 5. PROMDI 255,184 1 2.90 1 4 6. AKO 239,042 1 2.72 1 4 7. NCSCFO 238,303 1 2.71 1 4 8. ABANSE! PINAY 235,548 1 2.68 1 4 9. AKBAYAN 232,376 1 2.64 1 4 10. BUTIL 215,643 1 2.45 3 11. SANLAKAS 194,617 1 2.21 3 12. COOP-NATCCO 189,802 1 2.16 3 13. COCOFED 186,388 1 2.12 3 Total 3,429,338 13 32 7 52 However, since Section 11 of RA 7941 sets a limit of three (3) seats for each party, those obtaining more than the limit will have to give up their excess seats. Under our present set of facts, the thirteen qualified parties will each be entitled to three seats, resulting in an overall total of 39. Note that like the previous proposal, the Niemeyer formula would violate the principle of "proportional representation," a basic tenet of our party-list system. The Niemeyer formula, while no doubt suitable for Germany, finds no application in the Philippine setting, because of our three-seat limit and the non-mandatory character of the twenty percent allocation. True, both our Congress and the Bundestag have threshold requirements -- two percent for us and five for them. There are marked differences between the two models, however. As ably pointed out by private respondents,[26] one half of the German Parliament is filled up by party-list members. More important, there are no seat limitations, because German law discourages the proliferation of small parties. In contrast, RA 7941, as already mentioned, imposes a three-seat limit to encourage the promotion of the multiparty system. This major statutory difference makes the Niemeyer formula completely inapplicable to the Philippines. Just as one cannot grow Washington apples in the Philippines or Guimaras mangoes in the Arctic because of fundamental environmental differences, neither can the Niemeyer formula be transplanted in toto here because of essential variances between the two party-list models.

The Legal and Logical Formula for the Philippines It is now obvious that the Philippine style party-list system is a unique paradigm which demands an equally unique formula. In crafting a legally defensible and logical solution to determine the number of additional seats that a qualified party is entitled to, we need to review the parameters of the Filipino party-list system. As earlier mentioned in the Prologue, they are 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 actually obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional seats. Fourth, proportional representation - the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes. The problem, as already stated, is to find a way to translate proportional representation into a mathematical formula that will not contravene, circumvent or amend the above-mentioned parameters. After careful deliberation, we now explain such formula, step by step. Step One. There is no dispute among the petitioners, the public and the private respondents, as well as the members of this Court, that the initial step is to rank all the participating parties, organizations and coalitions from the highest to the lowest based on the number of votes they each received. Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in the system. All parties with at least two percent of the total votes are guaranteed one seat each. Only these parties shall be considered in the computation ofadditional seats. The party receiving the highest number of votes shall thenceforth be referred to as the first party. Step Two. The next step is to determine the number of seats the first party is entitled to, in order to be able to compute that for the other parties. Since the distribution is based on proportional representation, the number of seats to be allotted to the other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the most number of votes. For example, the first party received 1,000,000 votes and is determined to be entitled to two additional seats. Another qualified party which received 500,000 votes cannot be entitled to the same number of seats, since it garnered only fifty percent of the votes won by the first party. Depending on the proportion of its votes relative to that of the first party whose number of seats has already been predetermined, the second party should be given less than that to which the first one is entitled. The other qualified parties will always be allotted less additional seats than the first party for two reasons: (1) the ratio between said parties and the first party will always be less than 1:1, and (2) the formula does not admit of mathematical rounding off, because there is no such thing as a fraction of a seat. Verily, an arbitrary rounding off could result in a violation of the twenty percent allocation. An academic mathematical demonstration of such incipient violation is not necessary because the present set of facts, given the number of qualified parties and the voting percentages obtained, will definitely not end up in such constitutional contravention. The Court has previously ruled in Guingona Jr. v. Gonzales[27] that a fractional membership cannot be converted into a whole membership of one when it would, in effect, deprive another party's fractional membership. It would be a violation of the constitutional mandate of proportional representation. We said further that "no party can claim more than what it is entitled to x x x. In any case, the decision on whether to round off the fractions is better left to the legislature. Since Congress did not provide for it in the present law, neither will this Court. The Supreme Court does not make the law; it merely applies it to a given set of facts.

Formula for Determining Additional Seats for the First Party Now, how do we determine the number of seats the first party is entitled to? The only basis given by the law is that a party receiving at least two percent of the total votes shall be entitled to one seat. Proportionally, if the first party were to receive twice the number of votes of the second party, it should be entitled to twice the latter's number of seats and so on. The formula, therefore, for computing the number of seats to which the first party is entitled is as follows: Number of votes of first party Proportion of votes of -------------------- = first party relative to Total votes for total votes for party-list system party-list system If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total valid votes cast for all the party list groups, then the first party shall be entitled to two additional seats or a total of three seats overall. If the proportion of votes without a rounding off is equal to or greater than four percent, but less than six percent, then the first party shall have one additional or a total of two seats. And if the proportion is less than four percent, then the first party shall not be entitled to any additional seat. We adopted this six percent bench mark, because the first party is not always entitled to the maximum number of additional seats. Likewise, it would prevent the allotment of more than the total number of available seats, such as in an extreme case wherein 18 or more parties tie for the highest rank and are thus entitled to three seats each. In such scenario, the number of seats to which all the parties are entitled may exceed the maximum number of party-list seats reserved in the House of Representatives. Applying the above formula, APEC, which received 5.5% of the total votes cast, is entitled to one additional seat or a total of two seats. Note that the above formula will be applicable only in determining the number of additional seats the first party is entitled to. It cannot be used to determine the number of additional seats of the other qualified parties. As explained earlier, the use of the same formula for all would contravene the proportional representation parameter. For example, a second party obtains six percent of the total number of votes cast. According to the above formula, the said party would be entitled to two additional seats or a total of three seats overall. However, if the first party received a significantly higher amount of votes -- say, twenty percent -- to grant it the same number of seats as the second party would violate the statutory mandate of proportional representation, since a party getting only six percent of the votes will have an equal number of representatives as the one obtaining twenty percent. The proper solution, therefore, is to grant the first party a total of three seats; and the party receiving six percent, additional seats in proportion to those of the first party.

Formula for Additional Seats of Other Qualified Parties Step Three The next step is to solve for the number of additional seats that the other qualified parties are entitled to, based on proportional representation. The formula is encompassed by the following complex fraction: No. of votes of concerned party -----------------Total no. of votes Additional seats for party-list system No. of additional for concerned = ----------------------- x seats allocated to party No. of votes of the first party first party -----------------Total no. of votes

for party list system In simplified form, it is written as follows: No. of votes of Additional seats concerned party No. of additional for concerned = ------------------ x seats allocated to party No. of votes of the first party first party Thus, in the case of ABA, the additional number of seats it would be entitled to is computed as follows: No. of votes of Additional seats ABA No. of additional for concerned = -------------------- x seats allocated to party (ABA) No. of votes of the first party first party (APEC) Substituting actual values would result in the following equation: Additional seats 321,646 for concerned = ----------- x 1 = .64 or 0 additional seat, since party (ABA) 503,487 rounding off is not to be applied Applying the above formula, we find the outcome of the 1998 party-list election to be as follows: Organization Votes %age of Initial No. Additional Total Garnered Total Votes of Seats Seats 1. APEC 503,487 5.50% 1 1 2 2. ABA 321,646 3.51% 1 321,646 / 503,487 * 1 = 0.64 1 3. ALAGAD 312,500 3.41% 1 312,500 / 503,487 * 1 = 0.62 1 4. VETERANS 304,802 3.33% 1 304,802 / 503,487 * 1 = 0.61 1 FEDERATION 5. PROMDI 255,184 2.79% 1 255,184 / 503,487 * 1 = 0.51 1 6. AKO 239,042 2.61% 1 239,042 / 503,487 * 1 = 0.47 1 7. NCSFO 238,303 2.60% 1 238,303 / 503,487 * 1 = 0.47 1 8. ABANSE! 235,548 2.57% 1 321,646 / 503,487 * 1 = 0.47 1 PINAY 9. AKBAYAN! 232,376 2.54% 1 232,376 / 503,487 * 1 = 0.46 1 10. BUTIL 215,643 2.36% 1 215,643 / 503,487 * 1 = 0.43 1 11. SANLAKAS 194,617 2.13% 1 194,617 / 503,487 * 1 = 0.39 1 12. COOP- 189,802 2.07% 1 189,802 / 503,487 * 1 = 0.38 1 NATCCO 13. COCOFED 186,388 2.04% 1 186,388 / 503,487 * 1 = 0.37 1 Incidentally, if the first party is not entitled to any additional seat, then the ratio of the number of votes for the other party to that for the first one is multiplied by zero. The end result would be zero additional seat for each of the other qualified parties as well. The above formula does not give an exact mathematical representation of the number of additional seats to be awarded since, in order to be entitled to one additional seat, an exact whole number is necessary. In fact, most of the actual mathematical proportions are not whole numbers and are not rounded off for the reasons explained earlier. To repeat, rounding off may result in the awarding of a number of seats in excess of that provided by the law. Furthermore, obtaining absolute proportional representation is restricted by the three-seat-per-party limit to a maximum of twoadditional slots. An increase in the maximum number of additional representatives a party may be entitled to would result in a more accurate proportional representation. But the law itself has set the limit: only two additional seats. Hence, we need to work within such extant parameter.

The net result of the foregoing formula for determining additional seats happily coincides with the present number of incumbents; namely, two for the first party (APEC) and one each for the twelve other qualified parties. Hence, we affirm the legality of the incumbencies of their nominees, albeit through the use of a different formula and methodology. In his Dissent, Justice Mendoza criticizes our methodology for being too strict. We say, however, that our formula merely translated the Philippine legal parameters into a mathematical equation, no more no less. If Congress in its wisdom decides to modify RA 7941 to make it less strict, then t he formula will also be modified to reflect the changes willed by the lawmakers.

Epilogue In sum, we hold that the Comelec gravely abused its discretion in ruling that the thirty-eight (38) herein respondent parties, organizations and coalitions are each entitled to a party-list seat, because it glaringly violated two requirements of RA 7941: the two percent threshold and proportional representation. In disregarding, rejecting and circumventing these statutory provisions, the Comelec effectively arrogated unto itself what the Constitution expressly and wholly vested in the legislature: the power and the discretion to define the mechanics for the enforcement of the system. The wisdom and the propriety of these impositions, absent any clear transgression of the Constitution or grave abuse of discretion amounting to lack or excess of jurisdiction, are beyond judicial review.[28] Indeed, the Comelec and the other parties in these cases - both petitioners and respondents - have failed to demonstrate that our lawmakers gravely abused their discretion in prescribing such requirements. By grave abuse of discretion is meant such capricious or whimsical exercise of judgment equivalent to lack or excess of jurisdiction.[29] The Comelec, which is tasked merely to enforce and administer election-related laws,[30] cannot simply disregard an act of Congress exercised within the bounds of its authority. As a mere implementing body, it cannot judge the wisdom, propriety or rationality of such act. Its recourse is to draft an amendment to the law and lobby for its approval and enactment by the legislature. Furthermore, a reading of the entire Constitution reveals no violation of any of its provisions by the strict enforcement of RA 7941. It is basic that to strike down a law or any of its provisions as unconstitutional, there must be a clear and unequivocal showing that what the Constitution prohibits, the statute permits.[31] Neither can we grant petitioners prayer that they each be given additional seats (for a total of three each), because granting such plea would plainly and simply violate the proportional representation mandated by Section 11 (b) of RA 7941. The low turnout of the party-list votes during the 1998 elections should not be interpreted as a total failure of the law in fulfilling the object of this new system of representation. It should not be deemed a conclusive indication that the requirements imposed by RA 7941 wholly defeated the implementation of the system. Be it remembered that the partylist system, though already popular in parliamentary democracies, is still quite new in our presidential system. We should allow it some time to take root in the consciousness of our people and in the heart of our tripartite form of republicanism. Indeed, the Comelec and the defeated litigants should not despair. Quite the contrary, the dismal result of the first election for party-list representatives should serve as a challenge to our sectoral parties and organizations. It should stir them to be more active and vigilant in their campaign for representation in the State's lawmaking body. It should also serve as a clarion call for innovation and creativity in adopting this novel system of popular democracy. With adequate information dissemination to the public and more active sectoral parties, we are confident our people will be more responsive to future party-list elections. Armed with patience, perseverance and perspicacity, our marginalized sectors, in time, will fulfill the Filipino dream of full representation in Congress under the aegis of the partylist system, Philippine style.

WHEREFORE, the Petitions are hereby partially GRANTED. The assailed Resolutions of the Comelec are SET ASIDE and NULLIFIED. The proclamations of the fourteen (14) sitting party-list representatives - two for APEC and one each for the remaining twelve (12) qualified parties - are AFFIRMED. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189466 February 11, 2010

DARYL GRACE J. ABAYON, Petitioner, vs. THE HONORABLE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, PERFECTO C. LUCABAN, JR., RONYL S. DE LA CRUZ and AGUSTIN C. DOROGA, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 189506 CONGRESSMAN JOVITO S. PALPARAN, JR., Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET), DR. REYNALDO LESACA, JR., CRISTINA PALABAY, RENATO M. REYES, JR., ERLINDA CADAPAN, ANTONIO FLORES and JOSELITO USTAREZ,Respondents. DECISION ABAD, J.: These two cases are about the authority of the House of Representatives Electoral Tribunal (HRET) to pass upon the eligibilities of the nominees of the party-list groups that won seats in the lower house of Congress. The Facts and the Case In G.R. 189466, petitioner Daryl Grace J. Abayon is the first nominee of the Aangat Tayo party-list organization that won a seat in the House of Representatives during the 2007 elections. Respondents Perfecto C. Lucaban, Jr., Ronyl S. Dela Cruz, and Agustin C. Doroga, all registered voters, filed a petition for quo warranto with respondent HRET against Aangat Tayo and its nominee, petitioner Abayon, in HRET Case 07-041. They claimed that Aangat Tayo was not eligible for a party-list seat in the House of Representatives, since it did not represent the marginalized and underrepresented sectors. Respondent Lucaban and the others with him further pointed out that petitioner Abayon herself was not qualified to sit in the House as a party-list nominee since she did not belong to the marginalized and underrepresented sectors, she being the wife of an incumbent congressional district representative. She moreover lost her bid as party-list representative of the party-list organization called An Waray in the immediately preceding elections of May 10, 2004. Petitioner Abayon countered that the Commission on Elections (COMELEC) had already confirmed the status of Aangat Tayo as a national multi-sectoral party-list organization representing the workers, women, youth, urban poor, and elderly and that she belonged to the women sector. Abayon also claimed that although she was the second nominee of

An Waray party-list organization during the 2004 elections, she could not be regarded as having lost a bid for an elective office. Finally, petitioner Abayon pointed out that respondent HRET had no jurisdiction over the petition for quo warranto since respondent Lucaban and the others with him collaterally attacked the registration of Aangat Tayo as a party-list organization, a matter that fell within the jurisdiction of the COMELEC. It was Aangat Tayo that was taking a seat in the House of Representatives, and not Abayon who was just its nominee. All questions involving her eligibility as first nominee, said Abayon, were internal concerns of Aangat Tayo. On July 16, 2009 respondent HRET issued an order, dismissing the petition as against Aangat Tayo but upholding its jurisdiction over the qualifications of petitioner Abayon.1 The latter moved for reconsideration but the HRET denied the same on September 17, 2009,2 prompting Abayon to file the present petition for special civil action of certiorari. In G.R. 189506, petitioner Jovito S. Palparan, Jr. is the first nominee of the Bantay party-list group that won a seat in the 2007 elections for the members of the House of Representatives. Respondents Reynaldo Lesaca, Jr., Cristina Palabay, Renato M. Reyes, Jr., Erlinda Cadapan, Antonio Flores, and Joselito Ustarez are members of some other party-list groups. Shortly after the elections, respondent Lesaca and the others with him filed with respondent HRET a petition forquo warranto against Bantay and its nominee, petitioner Palparan, in HRET Case 07-040. Lesaca and the others alleged that Palparan was ineligible to sit in the House of Representatives as party-list nominee because he did not belong to the marginalized and underrepresented sectors that Bantay represented, namely, the victims of communist rebels, Civilian Armed Forces Geographical Units (CAFGUs), former rebels, and security guards. Lesaca and the others said that Palparan committed gross human rights violations against marginalized and underrepresented sectors and organizations. Petitioner Palparan countered that the HRET had no jurisdiction over his person since it was actually the party-list Bantay, not he, that was elected to and assumed membership in the House of Representatives. Palparan claimed that he was just Bantays nominee. Consequently, any question involving his eligibility as first nominee was an internal concern of Bantay. Such question must be brought, he said, before that party-list group, not before the HRET. On July 23, 2009 respondent HRET issued an order dismissing the petition against Bantay for the reason that the issue of the ineligibility or qualification of the party-list group fell within the jurisdiction of the COMELEC pursuant to the PartyList System Act. HRET, however, defended its jurisdiction over the question of petitioner Palparans qualifications.3 Palparan moved for reconsideration but the HRET denied it by a resolution dated September 10, 2009,4 hence, the recourse to this Court through this petition for special civil action of certiorari and prohibition. Since the two cases raise a common issue, the Court has caused their consolidation. The Issue Presented The common issue presented in these two cases is: Whether or not respondent HRET has jurisdiction over the question of qualifications of petitioners Abayon and Palparan as nominees of Aangat Tayo and Bantay party-list organizations, respectively, who took the seats at the House of Representatives that such organizations won in the 2007 elections. The Courts Ruling Petitioners Abayon and Palparan have a common theory: Republic Act (R.A.) 7941, the Party-List System Act, vests in the COMELEC the authority to determine which parties or organizations have the qualifications to seek party-list seats in the House of Representatives during the elections. Indeed, the HRET dismissed the petitions for quo warranto filed with it insofar as they sought the disqualifications of Aangat Tayo and Bantay. Since petitioners Abayon and Palparan were not

elected into office but were chosen by their respective organizations under their internal rules, the HRET has no jurisdiction to inquire into and adjudicate their qualifications as nominees. If at all, says petitioner Abayon, such authority belongs to the COMELEC which already upheld her qualification as nominee of Aangat Tayo for the women sector. For Palparan, Bantays personality is so inseparable and intertwined with his own person as its nominee so that the HRET cannot dismiss the quo warranto action against Bantay without dismissing the action against him. But, although it is the party-list organization that is voted for in the elections, it is not the organization that sits as and becomes a member of the House of Representatives. Section 5, Article VI of the Constitution,5 identifies who the "members" of that House are: Sec. 5. (1). The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (Underscoring supplied) Clearly, the members of the House of Representatives are of two kinds: "members x x x who shall be elected from legislative districts" and "those who x x x shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations." This means that, from the Constitutions point of view, it is the party-list representatives who are "elected" into office, not their parties or organizations. These representatives are elected, however, through that peculiar party-list system that the Constitution authorized and that Congress by law established where the voters cast their votes for the organizations or parties to which such party-list representatives belong. Once elected, both the district representatives and the party-list representatives are treated in like manner. They have the same deliberative rights, salaries, and emoluments. They can participate in the making of laws that will directly benefit their legislative districts or sectors. They are also subject to the same term limitation of three years for a maximum of three consecutive terms. It may not be amiss to point out that the Party-List System Act itself recognizes party-list nominees as "members of the House of Representatives," thus: Sec. 2. Declaration of Policy. - The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to the marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. (Underscoring supplied) As this Court also held in Bantay Republic Act or BA-RA 7941 v. Commission on Elections,6 a party-list representative is in every sense "an elected member of the House of Representatives." Although the vote cast in a party-list election is a vote for a party, such vote, in the end, would be a vote for its nominees, who, in appropriate cases, would eventually sit in the House of Representatives. Both the Constitution and the Party-List System Act set the qualifications and grounds for disqualification of party-list nominees. Section 9 of R.A. 7941, echoing the Constitution, states: Sec. 9. Qualification of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than

one (1) year immediately preceding the day of the election, able to read and write, bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.1avvphi1 In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue until the expiration of his term. In the cases before the Court, those who challenged the qualifications of petitioners Abayon and Palparan claim that the two do not belong to the marginalized and underrepresented sectors that they ought to represent. The Party-List System Act provides that a nominee must be a "bona fide member of the party or organization which he seeks to represent."7 It is for the HRET to interpret the meaning of this particular qualification of a nominee the need for him or her to be a bona fide member or a representative of his party-list organizationin the context of the facts that characterize petitioners Abayon and Palparans relation to Aangat Tayo and Bantay, respectively, and the marginalized and underrepresented interests that they presumably embody. Petitioners Abayon and Palparan of course point out that the authority to determine the qualifications of a party-list nominee belongs to the party or organization that nominated him. This is true, initially. The right to examine the fitness of aspiring nominees and, eventually, to choose five from among them after all belongs to the party or organization that nominates them.8 But where an allegation is made that the party or organization had chosen and allowed a disqualified nominee to become its party-list representative in the lower House and enjoy the secured tenure that goes with the position, the resolution of the dispute is taken out of its hand. Parenthetically, although the Party-List System Act does not so state, the COMELEC seems to believe, when it resolved the challenge to petitioner Abayon, that it has the power to do so as an incident of its authority to approve the registration of party-list organizations. But the Court need not resolve this question since it is not raised here and has not been argued by the parties. What is inevitable is that Section 17, Article VI of the Constitution9 provides that the HRET shall be the sole judge of all contests relating to, among other things, the qualifications of the members of the House of Representatives. Since, as pointed out above, party-list nominees are "elected members" of the House of Representatives no less than the district representatives are, the HRET has jurisdiction to hear and pass upon their qualifications. By analogy with the cases of district representatives, once the party or organization of the party-list nominee has been proclaimed and the nominee has taken his oath and assumed office as member of the House of Representatives, the COMELECs jurisdiction over election contests relating to his qualifications ends and the HRETs own jurisdiction begins.10 The Court holds that respondent HRET did not gravely abuse its discretion when it dismissed the petitions for quo warranto against Aangat Tayo party-list and Bantay party-list but upheld its jurisdiction over the question of the qualifications of petitioners Abayon and Palparan. WHEREFORE, the Court DISMISSES the consolidated petitions and AFFIRMS the Order dated July 16, 2009 and Resolution 09-183 dated September 17, 2009 in HRET Case 07-041 of the House of Representatives Electoral Tribunal as well as its Order dated July 23, 2009 and Resolution 09-178 dated September 10, 2009 in HRET Case 07-040. SO ORDERED.