In July and August 2007, the COMELEC, sitting as the National Board of

Canvassers, made a partial proclamation of the winners in the party-list

elections which was held in May 2007.
In proclaiming the winners and apportioning their seats, the COMELEC
considered the following rules:
1. In the lower house, 80% shall comprise the seats for legislative districts,
while the remaining 20% shall come from party-list representatives (Sec. 5,
Article VI, 1987 Constitution);
2. Pursuant to Sec. 11b of R.A. 7941 or the Party-List System Act, a party-
list which garners at least 2% of the total votes cast in the party-list
elections shall be entitled to one seat;
3. If a party-list garners at least 4%, then it is entitled to 2 seats; if it garners
at least 6%, then it is entitled to 3 seats this is pursuant to the 2-4-6
rule or the Panganiban Formula from the case of Veterans Federation
Party vs COMELEC.
4. In no way shall a party be given more than three seats even if if garners
more than 6% of the votes cast for the party-list election (3 seat cap rule,
same case).
The Barangay Association for National Advancement and Transparency
(BANAT), a party-list candidate, questioned the proclamation as well as the
formula being used. BANAT averred that the 2% threshold is invalid; Sec.
11 of RA 7941 is void because its provision that a party-list, to qualify for a
congressional seat, must garner at least 2% of the votes cast in the party-
list election, is not supported by the Constitution. Further, the 2% rule
creates a mathematical impossibility to meet the 20% party-list seat
prescribed by the Constitution.
BANAT also questions if the 20% rule is a mere ceiling or is it mandatory. If
it is mandatory, then with the 2% qualifying vote, there would be instances
when it would be impossible to fill the prescribed 20% share of party-lists in
the lower house. BANAT also proposes a new computation (which shall be
discussed in the HELD portion of this digest).
On the other hand, BAYAN MUNA, another party-list candidate, questions
the validity of the 3 seat rule (Section 11a of RA 7941). It also raised the
issue of whether or not major political parties are allowed to participate in
the party-list elections or is the said elections limited to sectoral parties.
ISSUES:
I. How is the 80-20 rule observed in apportioning the seats in the lower
house?
II. Whether or not the 20% allocation for party-list representatives
mandatory or a mere ceiling.
III. Whether or not the 2% threshold to qualify for a seat valid.
IV. How are party-list seats allocated?
V. Whether or not major political parties are allowed to participate in the
party-list elections.
VI. Whether or not the 3 seat cap rule (3 Seat Limit Rule) is valid.
HELD:
I. The 80-20 rule is observed in the following manner: for every 5 seats
allotted for legislative districts, there shall be one seat allotted for a party-
list representative. Originally, the 1987 Constitution provides that there
shall be not more than 250 members of the lower house. Using the 80-20
rule, 200 of that will be from legislative districts, and 50 would be from
party-list representatives. However, the Constitution also allowed Congress
to fix the number of the membership of the lower house as in fact, it can
create additional legislative districts as it may deem appropriate. As can be
seen in the May 2007 elections, there were 220 district representatives,
hence applying the 80-20 rule or the 5:1 ratio, there should be 55 seats
allotted for party-list representatives.
How did the Supreme Court arrive at 55? This is the formula:
(Current Number of Legislative DistrictRepresentatives 0.80) x (0.20) =
Number of Seats Available to Party-List Representatives
Hence,
(220 0.80) x (0.20) = 55
II. The 20% allocation for party-list representatives is merely a ceiling
meaning, the number of party-list representatives shall not exceed 20% of
the total number of the members of the lower house. However, it is not
mandatory that the 20% shall be filled.
III. No. Section 11b of RA 7941 is unconstitutional. There is no
constitutional basis to allow that only party-lists which garnered 2% of the
votes cast are qualified for a seat and those which garnered less than 2%
are disqualified. Further, the 2% threshold creates a mathematical
impossibility to attain the ideal 80-20 apportionment. The Supreme Court
explained:
To illustrate: There are 55 available party-list seats. Suppose there are 50
million votes cast for the 100 participants in the party list elections. A party
that has two percent of the votes cast, or one million votes, gets a
guaranteed seat. Let us further assume that the first 50 parties all get one
million votes. Only 50 parties get a seat despite the availability of 55 seats.
Because of the operation of the two percent threshold, this situation will
repeat itself even if we increase the available party-list seats to 60 seats
and even if we increase the votes cast to 100 million. Thus, even if the
maximum number of parties get two percent of the votes for every party, it
is always impossible for the number of occupied party-list seats to exceed
50 seats as long as the two percent threshold is present.
It is therefore clear that the two percent threshold presents an unwarranted
obstacle to the full implementation of Section 5(2), Article VI of the
Constitution and prevents the attainment of the broadest possible
representation of party, sectoral or group interests in the House of
Representatives.
IV. Instead, the 2% rule should mean that if a party-list garners 2% of the
votes cast, then it is guaranteed a seat, and not qualified. This allows
those party-lists garnering less than 2% to also get a seat.
But how? The Supreme Court laid down the following rules:
1. 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.
2. 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
guaranteed seat each.
3. Those garnering sufficient number of votes, according to the ranking in
paragraph 1, shall be entitled to additional seats in proportion to their total
number of votes until all the additional seats are allocated.
4. Each party, organization, or coalition shall be entitled to not more than
three (3) seats.
In computing the additional seats, the guaranteed seats shall no longer be
included because they have already been allocated, at one seat each, to
every two-percenter. Thus, the remaining available seats for allocation as
additional seats are the maximum seats reserved under the Party List
System less the guaranteed seats. Fractional seats are disregarded in the
absence of a provision in R.A. No. 7941 allowing for a rounding off of
fractional seats.
In short, there shall be two rounds in determining the allocation of the
seats. In the first round, all party-lists which garnered at least 2% of the
votes cast (called the two-percenters) are given their one seat each. The
total number of seats given to these two-percenters are then deducted from
the total available seats for party-lists. In this case, 17 party-lists were able
to garner 2% each. There are a total 55 seats available for party-lists
hence, 55 minus 17 = 38 remaining seats. (Please refer to the full text of
the case for the tabulation).
The number of remaining seats, in this case 38, shall be used in the
second round, particularly, in determining, first, the additional seats for the
two-percenters, and second, in determining seats for the party-lists that did
not garner at least 2% of the votes cast, and in the process filling up the
20% allocation for party-list representatives.
How is this done?
Get the total percentage of votes garnered by the party and multiply it
against the remaining number of seats. The product, which shall not be
rounded off, will be the additional number of seats allotted for the party list
but the 3 seat limit rule shall still be observed.
Example:
In this case, the BUHAY party-list garnered the highest total vote of
1,169,234 which is 7.33% of the total votes cast for the party-list elections
(15,950,900).
Applying the formula above: (Percentage of vote garnered) x (remaining
seats) = number of additional seat
Hence, 7.33% x 38 = 2.79
Rounding off to the next higher number is not allowed so 2.79 remains 2.
BUHAY is a two-percenter which means it has a guaranteed one seat
PLUS additional 2 seats or a total of 3 seats. Now if it so happens that
BUHAY got 20% of the votes cast, it will still get 3 seats because the 3 seat
limit rule prohibits it from having more than 3 seats.
Now after all the tw0-percenters were given their guaranteed and additional
seats, and there are still unoccupied seats, those seats shall be distributed
to the remaining party-lists and those higher in rank in the voting shall be
prioritized until all the seats are occupied.
V. No. By a vote of 8-7, the Supreme Court continued to disallow major
political parties (the likes of UNIDO, LABAN, etc) from participating in the
party-list elections.
Although the ponencia (Justice Carpio) did point out that there is no
prohibition either from the Constitution or from RA 7941 against major
political parties from participating in the party-list elections as the word
party was not qualified and that even the framers of the Constitution in
their deliberations deliberately allowed major political parties to participate
in the party-list elections provided that they establish a sectoral wing which
represents the marginalized (indirect participation), Justice Puno, in his
separate opinion, concurred by 7 other justices, explained that the will of
the people defeats the will of the framers of the Constitution precisely
because it is the people who ultimately ratified the Constitution and the
will of the people is that only the marginalized sections of the country shall
participate in the party-list elections. Hence, major political parties cannot
participate in the party-list elections, directly or indirectly.
VI. Yes, the 3 seat limit rule is valid. This is one way to ensure that no one
party shall dominate the party-list system.