Facts:
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 (the First Assailed Resolution) and December 16, 2009 (the
Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELEC’s refusal to accredit Ang
Ladlad as a party-list organization under Republic Act (RA) No. 7941,
otherwise known as the Party-List System Act.
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
Ladlad complied with the 8-point guidelines enunciated by this Court
in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections. Ang
Ladlad laid out its national membership base consisting of individual
members and organizational supporters, and outlined its platform of governance.
The
COMELEC (Second Division) dismissed the Petition on moral grounds.
The COMELEC Chairman, breaking the tie and speaking for the majority in
his Separate Opinion, upheld the First Assailed Resolution, stating that:
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 Ladlad’s
expressed sexual orientations per se would benefit the nation as a whole.
Even if society’s understanding, tolerance, and acceptance of
LGBT’s 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.
There is no question about not imposing on Ladlad Christian
or Muslim religious practices. Neither is there any attempt to any particular
religious group’s moral rules on Ladlad. Rather, what are being adopted as
moral parameters and precepts are generally accepted public morals.
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 Petition’s 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.
Issue:
1. WON ang Ladlad is qualified as a party-list?
2. WON there’s COMELEC’s ruling
is a violation of human rights?
Ruling:
1. Yes, ang Ladlad is qualified as a party-list.
The Court ruled that 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. No law exists to criminalize homosexual behavior or expressions or
parties about homosexual behavior. 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.
In this case, 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
petitioner’s admission into the party-list system would be so harmful as to
irreparably damage the moral fabric of society. Moral disapproval, without
more, is not a sufficient governmental interest to justify exclusion of
homosexuals from participation in the party-list system. 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.
Hence, ang Ladlad is qualified as a party-list
2. Yes, there is a violation of
human rights.
The Court ruled that 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.
Furthermore, 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:
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." Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements.
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.
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