BANAT v.

COMELEC
G.R. No. 179271 | CARPIO, J. | APRIL 21, 2009
PARTY LIST SYSTEM (RA 7941)

RELEVANT FACTS

Nature: 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;

In July and August 2007, the COMELEC, sitting as the National Board of Canvassers, promulgated Resolutions NBC 07-
60 and 07-041 as 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. BAYAN MUNA, another party-list candidate, questions the validity
of the 3 seat rule (Section 11a of RA 7941). The following issues were raised to the Court.

ISSUES
I. Whether or not the 20% allocation for party-list representatives provided in Section 5(2), Artile VI of the
Constitution mandatory or is it merely a ceiling.
II. Whether or not the 3-seat limit provided in Section 11(b) of RA 7941 constitutional.
III. Whether or not the 2% threshold and “qualifier” votes prescribed by Section 11(b) of RA 7941 constitutional
IV. How shall the party-list representatives be allocated?
V. Whether or not the Constitution prohibit the major political parties from participating in the party-list elections.

RATIO DECIDENDI

Comment: Sorry guys, medyo technical talaga yung case kaya puro computations.

I.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.

The Formula Mandated by the Constitution (Sec 5 Article VI)

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.
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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. Yes, the 3 seat limit rule is valid. This is one way to ensure that no one party shall dominate the party-list system.

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 a requalified 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:
RANKING: 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% GUARANTY. 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.
ADDITIONAL SEATS 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.
LIMITATION. 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. For instance, 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.

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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 two-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.

RULING
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 07-60. We declare unconstitutional
the 2 percent threshold in the distribution of additional party list seats. The allocation of additional seats under the
Party-List System shall be in accordance with the procedure used in Table 3 of this decision. Major political parties are
disallowed from participating in party-list elections. This decision is immediately executory.

SO ORDERED.

NOTES

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