ANG LADLAD LGBT PARTY petitioner V. COMELEC respondent, GR No.

190582, April 8,
2010

West Virginia State Board of Education v. Barnette

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.

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.

FACTS:

Before the COMELEC, petitioner argued that the LGBT (lesbians, gays, bisexuals and transgender)
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. On August 17, 2009, Ang Ladlad filed a Petition for registration with the
COMELEC.

On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second Division)
dismissed the Petition on moral grounds that petitioner tolerates immorality which offends religious
beliefs, and advocates sexual immorality. 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, states COMELEC, Ang Ladlad will be exposing our youth to an
environment that does not conform to the teachings of our faith. When Ang Ladlad sought
reconsideration, COMELEC still, on December 16, 2010, upheld the First Assailed Resolution.

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 (Party-List System Act)

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.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of
electing congressional representatives is to enable 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 nation's — 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.

On January 4, 2010, Ang Ladlad a Petition, praying that the Supreme Court annul the Assailed
Resolutions and direct the COMELEC to grant Ang Ladlad’s 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.

ISSUES:

1. Whether or not the denial of accreditation by COMELEC, violated the constitutional guarantees
against the establishment of religion. insofar as it justified the exclusion by using religious dogma.

2. Whether or not the Assailed Resolutions contravened the constitutional rights to privacy, freedom
of speech and assembly, and equal protection of laws, of Ang Ladlad, as well as constituted
violations of the Philippines’ international obligations against discrimination based on sexual
orientation.

HELD:
1. Our Constitution provides in Article III, Section 5 that “No 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.” Clearly,
“governmental reliance on religious justification is inconsistent with this policy of
neutrality.” The Supreme Court ruled that it was grave violation of the non-establishment clause
for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang 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. The government must act for secular purposes and in ways
that have primarily secular effects.

2. The Assailed Resolutions have not identified any specific overt immoral act performed by Ang
Ladlad. Even the Office of the Solicitor General agrees that “there should have been a finding by
the COMELEC that the group’s members have committed or are committing immoral
acts.” Respondent have failed to explain what societal ills are sought to be prevented, or why
special protection is required for the youth. 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. 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. Absent of any compelling state interest, it is not for the
COMELEC or the Supreme 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. 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. This is in accord with the country’s
international obligations to protect and promote human rights. The principle of non-
discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the
ICCPR should be recognized. The Constitution and laws should be applied uninfluenced by
public opinion. True democracy should be resilient enough to withstand vigorous debate due to
conflicting opinions.

The Petition was GRANTED. The Resolutions of the Commission on Elections dated
November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) was SET ASIDE and the
COMELEC was directed to GRANT petitioner’s application for party-list accreditation.
THELMA P. GAMINDE, petitioner, vs. COMMISSION ON AUDIT and/or Hon. CELSO
D. GANGAN, Hon. RAUL C. FLORES and EMMANUEL M. DALMAN, respondents.
FACTS:
On June 11, 1993, the President of the Philippines appointed petitioner Thelma P. Gaminde, ad
interim, Commissioner, Civil Service Commission. She assumed office on June 22, 1993, after
taking an oath of office. On September 07, 1993, the Commission on Appointment,
Congress of the Philippines confirmed the appointment. However, on February 24, 1998,
petitioner sought clarification from the Office of the President as to the expiry date of her term
of office. In reply to her request, the Chief Presidential Legal Counsel, in a letter dated April 07,
1998 opined that petitioner’s term of office would expire on February 02, 2000, not on February
02, 1999. Relying on said advisory opinion, petitioner remained in Leon, wrote office after
February 02, 1999. On February 04, 1999, Chairman Corazon Alma G. de the Commission on
Audit requesting opinion on whether or not Commissioner Thelma P. Gaminde and her co-
terminous staff may be paid their salaries notwithstanding the expiration of their
appointments on February 02, 1999. On February 18, 1999, the General Counsel, Commission
on Audit, issued an opinion that “the term of Commissioner Gaminde has expired on February
02, 1999 as stated in her appointment conformably with the constitutional intent.”
Consequently, on March 24, 1999, CSC Resident Auditor Flovitas U. Felipe issued notice of
disallowance No. 99-002-101 (99), disallowing in audit the salaries and emoluments pertaining
to petitioner and her co-terminous staff, effective February 02, 1999. On April 5, 1999, petitioner
appealed the disallowance to the Commission on Audit en banc. On June 15, 1999, the
Commission on Audit issued Decision dismissing petitioner’s appeal. The Commission on
Audit affirmed the propriety of the disallowance, holding that the issue of petitioner’s term
of office may be properly addressed by mere reference to her appointment paper which set
the expiration date on February 02, 1999, and that the Commission is bereft of power to
recognize an extension of her term, not even with the implied acquiescence of the Office of
the President. In time, petitioner moved for reconsideration; however, on August 17, 1999, the
Commission on Audit denied the motion. Hence, this petition.
ISSUE:
Whether the term of office of Atty. Thelma P. Gaminde, as Commissioner, Civil Service
Commission, to which she was appointed on June 11, 1993, expired on February 02, 1999, as
stated in the appointment paper, or on February 02, 2000, as claimed by her.
HELD:
The term of office of Ms. Thelma P. Gaminde as Commissioner, Civil Service Commission,
under an appointment extended to her by President Fidel V. Ramos on June 11, 1993, expired
on February 02, 1999. However, she served as de facto officer in good faith until February
02, 2000, and thus entitled to receive her salary and other emoluments for actual service
rendered. Consequently, the Commission on Audit erred in disallowing in audit such salary and
other emoluments, including that of her co-terminous staff.
Consequently, the terms of the first Chairmen and Commissioners of the Constitutional
Commissions under the 1987 Constitution must start on a common date, irrespective of the
variations in the dates of appointments and qualifications of the appointees, in order that
the expiration of the first terms of seven, five and three years should lead to the regular
recurrence of the two-year interval between the expiration of the terms.
Applying the foregoing conditions to the case at bar, we rule that the appropriate starting point
of the terms of office of the first appointees to the Constitutional Commissions under the 1987
Constitution must be on February 02, 1987, the date of the adoption of the 1987 Constitution.
In case of a belated appointment or qualification, the interval between the start of the term and
the actual qualification of the appointee must be counted against the latter.
In the law of public officers, there is a settled distinction between “term” and “tenure.” “[T]he
term of an office must be distinguished from the tenure of the incumbent. The term means the
time during which the officer may claim to hold office as of right, and fixes the interval after
which the several incumbents shall succeed one another. The tenure represents the term during
which the incumbent actually holds the office. The term of office is not affected by the hold-
over. The tenure may be shorter than the term for reasons within or beyond the power of the
incumbent.”
Clearly, the transitory provisions mean that the incumbent members of the Constitutional
Commissions shall continue in office for one year after the ratification of this Constitution under
their existing appointments at the discretion of the appointing power, who may cut short their
tenure by: (1) their removal from office for cause; (2) their becoming incapacitated to discharge
the duties of their office, or (3) their appointment to a new term thereunder, all of which events
may occur before the end of the one year period after the effectivity of the Constitution.
However, the transitory provisions do not affect the term of office fixed in Article IX,
providing for a seven-five-three year rotational interval for the first appointees under this
Constitution.
BANAT petitioner v COMELEC respondentG.R. No. 179271 April 21, 2009
Facts: On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List
Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL) before the
NBC. BANAT filed its petition because "the Chairman and the Members of the COMELEC have
recently been quoted in the national papers that the COMELEC is duty bound to and shall
implement the Veterans ruling, that is, would apply the Panganiban formula in allocating party-
list seats."

BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No.
07-88. BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88.

On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to
reconsider its decision to use the Veterans formula as stated in its NBC Resolution No. 07-60
because the Veterans formula is violative of the Constitution and of Republic Act No. 7941
(R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the
proceedings of the NBC.

Issue: Considering the allegations in the petitions and the comments of the parties in these cases,
we defined the following issues in our advisory for the oral arguments set on 22 April 2008:
1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of the
Constitution mandatory or merely a ceiling?
2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?
3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat
constitutional?
4. How shall the party-list representative seats be allocated?
5. Does the Constitution prohibit the major political parties from participating in the party-list
elections? If not, can the major political parties be barred from participating in the party-list
elections?

Held: WHEREFORE we PARTIALLY GRANT the petition. We SET ASIDE the Resolution
of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated
9 July 2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold in the
distribution of additional party-list seats.

Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20%
allocation of party-list representatives found in the Constitution. However, we cannot allow
the continued existence of a provision in the law which will systematically prevent the
constitutionally allocated 20% party-list representatives from being filled. The three-seat cap,
as a limitation to the number of seats that a qualified party-list organization may occupy, remains
a valid statutory device that prevents any party from dominating the party-list elections.

We rule that, in computing the allocation of additional seats, the continued operation of the two
percent threshold for the distribution of the additional seats as found in the second clause of
Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent
threshold makes it mathematically impossible to achieve the maximum number of available
party list seats when the number of available party list seats exceeds 50. The continued
operation of the two percent threshold in the distribution of the additional seats frustrates the
attainment of the permissive ceiling.

In declaring the two percent threshold unconstitutional, we do not limit our allocation of
additional seats to the two-percenters. The percentage of votes garnered by each party-list
candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the
total number of votes cast for party-list candidates. There are two steps in the second round of
seat allocation. First, the percentage is multiplied by the remaining available seats, 38, which is
the difference between the 55 maximum seats reserved under the Party-List System and the 17
guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of
the remaining available seats corresponds to a party’s share in the remaining available seats.
Second, we assign one party-list seat to each of the parties next in rank until all available seats
are completely distributed. We distributed all of the remaining 38 seats in the second round of
seat allocation. Finally, we apply the three-seat cap to determine the number of seats each
qualified party-list candidate is entitled.

Neither the Constitution nor R.A. No. 7941 prohibits major political parties from
participating in the party-list system. On the contrary, the framers of the Constitution clearly
intended the major political parties to participate in party-list elections through their sectoral
wings. In fact, the members of the Constitutional Commission voted down, 19-22, any
permanent sectoral seats, and in the alternative the reservation of the party-list system to the
sectoral groups. In defining a "party" that participates in party-list elections as either "a political
party or a sectoral party," R.A. No. 7941 also clearly intended that major political parties will
participate in the party-list elections. Excluding the major political parties in party-list elections
is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No.
7941. This Court cannot engage in socio-political engineering and judicially legislate the
exclusion of major political parties from the party-list elections in patent violation of the
Constitution and the law.