Ang Ladlad LGBT Party v. COMELEC, G.R. No. 190582, April 8, 2010

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.

Veteran’s Federation v. COMELEC, G.R. No. 13678, October 26, 2010

Facts: 

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.

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.

Comelec en Banc

Issue: 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?

Ruling by Comelec En Banc:

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."

Result from Court en Banc decision:

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. 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.

Supreme Court

Issue:

1. Does the Constitution require all such allocated seats to be filled up all the time and under all  circumstances?

2.(a) Are the two percent threshold requirement; and 

   (b) 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?

Ruling:

1. No, the Constitution does not require all such allocated seats to be filled up all the time and under all circumstances.

The Art. VI, Sec. 5 of the Philippine Constitution provides that the party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. Furthermore, the Court ruled in this case that Art. VI, Sec. 5 paragraph 2 is not mandatory but it merely provides a ceiling for party-list seats in Congress.

2. (a) Yes, the two percent threshold requirement is constitutional.

The Court ruled that 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. 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" to ensure meaningful local representation.

In this case, 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.

Hence, the two percent threshold requirement is constitutional.

2. (b) Yes, the three-seat limit provided in Section 11 (b) of RA 7941 constitutional.

The Court held 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 three-seat 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.

3. The Court determines the allocation of seats as follows: 

Method of Allocating Additional Seats

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 of additional 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.

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 Total votes for party-list system

=

Proportion of votes of first party relative to total votes for 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.

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:

Additional seats for concerned party

=

No. of votes of concerned party No. of votes of first party

x

No. of additional seats allocated to the first party

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.