25. BANAT v.

COMELEC_Celebrado
PETITIONER BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND
TRANSPARENCY (BANAT)

petition for certiorari and mandamus

BANAT vs. COMELEC1
Topic: C. LEGISLATIVE DEPARTMENT; C.1 Membership, Election, and
Qualifications
April 21, 2009
Carpio, J.
Facts
Barangay Association for National Advancement and Transparency (BANAT )filed
before the National Board of Canvassers(NBC) a petition to proclaim the full number
of party list representatives provided by the Constitution. COMELEC en banc
declared the petition moot and academic.
BANAT filed for petition for certiorari and mandamus assailing the resolution of
COMELEC to their petition to proclaim the full number of party list representatives
provided by the Constitution.
The COMELEC, sitting as the NBC, promulgated a resolution proclaiming thirteen
(13) parties as winners in the party-list elections in May 2007. The COMELEC
announced that, upon completion of the canvass of the party-listresults, it would
determine the total number of seats of each winning party,organization, or coalition
in accordance with Veterans Federation Party v. COMELEC formula.
COMELEC proclaimed thirteen (13) parties as winners in the party-list elections, namely: Buhay Hayaan Yumabong
(BUHAY), Bayan Muna, Citizens Battle Against Corruption (CIBAC), Gabrielas Women Party (Gabriela), Association of
Philippine Electric Cooperatives A (APEC), Teacher, Akbayan! Citizens Action Party (AKBAYAN), Alagad, Luzon
Farmers Party (BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns
(ARC), and Abono.

Bayan Muna, Abono, and Advocacy for Teacher Empowerment Through Action,
Cooperation and Harmony Towards Educational Reforms (A Teacher) asked the
COMELEC, acting as NBC, to reconsider its decision to use the Veterans formula.
COMELEC denied the consideration.
Bayan Muna, Abono, and A Teacher filed for certiorari with mandamus and
prohibition assailing the resolution of the COMELEC in its decision to use the
Veterans formula.
In proclaiming the winners and apportioning their seats, the COMELEC considered
the following rules:

1 Lifted partly from http://www.uberdigests.info/2012/01/barangay-association-for-

national-advancement-and-transparency-banat-vs-comelec/
 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 it garners
more than 6% of the votes cast for the party-list election (3 seat cap rule,
same case).
Petitioner
BANAT assails the Resolution promulgated on 3 August 2007 by the COMELEC. The
COMELECs resolution denied the petition of BANAT for being moot. BANAT filed before the
COMELEC En Banc, acting as NBC, a Petition to Proclaim the Full Number of Party-List
Representatives Provided by the Constitution.

The party-list candidate Barangay Association for National Advancement and

Transparency (BANAT) 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
its unclear 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).
VETERANS FORMULA

Number of votes of first party Proportion of votes of first

- - - - - - - - - - - - - - - - - - - - - = party relative to total votes for

Total votes for party-list system party-list system

Proportion of votes received Additional seats

by the first party

 Equal to or at least 6% Two (2) additional seats

Equal to or greater than 4% but less than 6% One (1) additional seat

Less than 4% No additional seat

No. of votes of

concerned party No. of additional

Additional seats for = ------------------- x seats allocated to

a concerned party No. of votes of first party

first party

BANAT COMPUTATION

following Section 12 of R.A. No. 7941. BANAT states that the COMELEC:

(a) shall tally all the votes for the parties, organizations, or
coalitions on a nationwide basis;
(b) rank them according to the number of votes received; and,
(c) allocate party-list representatives proportionately according to
the percentage of votes obtained by each party, organization
or coalition as against the total nationwide votes cast for the party-
list system.
BANAT used two formulas to obtain the same results: one is based on the
proportional percentage of the votes received by each party as against
the total nationwide party-list votes, and the other is by making the votes
of a party-list with a median percentage of votes as the divisor in
computing the allocation of seats. Thirty-four (34) party-list seats will be
awarded under BANATs second interpretation.
On the other hand, BAYAN MUNA questions:

the validity of the 3-seat rule (Section 11a of RA 7941)

whether major political parties can participate in the party-list elections or is
the said elections limited to sectoral parties.
Respondent
COMELEC abided with its NBC Resolution 07-60, which followed:

Sec. 11 of RA 7941; and,

the computation in Citizens Battle Against Corruption (CIBAC) v. COMELEC
(reiterated its ruling in Veterans Federation Party v. COMELEC) adopting a
 formula for the additional seats of each party, organization or coalition
receiving more than the required two percent (2%) votes, stating that the
same shall be determined only after all party-list ballots have been
completely canvassed.
Issue
I. How is the 80-20 rule observed in apportioning the seats in the lower house?
II. Whether the 20% allocation for party-list representatives mandatory or a mere
ceiling.
III. Whether the 2% threshold to qualify for a seat valid.
IV. How are party-list seats allocated?
V. Whether major political parties can participate in the party-list elections.
VI. Whether the 3-seat cap rule (3 Seat Limit Rule) is valid.
Court
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 District Representatives 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 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 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.