Notes on the Party-List System: Survey of Law and Rules on the Registration and Election of Party-List Representatives

28 min readFeb 7, 2021

The party-list system is an innovation of the 1987 Constitution, aiming to ensure representation from various sectors of Philippine society, particularly from underrepresented and disadvantaged groups, of representation in the highest lawmaking body in the Philippines.[1] However, the party-list system has been met with controversy and ambiguity as to its application throughout the years, which called for certain doctrines and interpretations to be ruled and overruled. By reviewing the development of the party-list system through various Supreme Court decisions in the Philippines, this paper seeks to clarify how surrounding laws and rules on the regulation and election of party-list representatives are to be understood, how they are to be applied, and how it affects the elections for the House of Representatives.

I. Concept of the party-list system and its purpose

The Party-List System is a mechanism to promote proportional representation within the House of Representatives in electing representatives from national, regional, and sectoral parties or organizations or coalitions duly registered with the COMELEC. The Party-List System hopes to democratize political power; wherein it would enable Filipino citizens of marginalized or underrepresented sectors to be represented and thereby contribute to the formulation and enactment of laws for national interest. In doing so, the State shall develop and guarantee a full, free, and open party system, in the simplest scheme possible, so that the broadest possible representation of party, sectoral, or group interests in the House of Representatives may be attained through enhancing their chances to lawfully win seats in the legislature.[2]

II. Apportionment and representation for party-list representation

Sec. 5 (2), Art. VI of the 1987 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. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.”[3]

In Veterans Federation Party v. COMELEC, GR №136781, October 6, 2000, the Supreme Court ruled that the twenty per centum threshold stated in the Constitution is a mere “ceiling” that provides for the maximum number of party-list seats in Congress, and is therefore not mandatory to be filled up all the time. The case arose from the first elections held for party-list representation on 1998[4]. Therein, out of the 123 parties and organizations that participated in the election, only 14 party-list representatives garnered 2% or more of the votes casted. Pursuant to RA. 7941 or the Party-List System Act, only those who obtain at least 2% of the votes cast under the party-list system are qualified to sit in the House of Representatives. PAG-ASA (People’s Progressive Alliance for Peace and Good Government Towards Alleviation of Poverty and Social Advancement) filed with the COMELEC a petition, alleging that the filling up of twenty per centum of party-list representatives was mandatory, and that to literally apply the two percent vote requirement and the three-seat limit under RA. 7941 would contradict Sec. 5, Art. IV of the Constitution, because it would effectively declare only 25 winners. However, the Court sustained the two percent threshold, as it ensures “that only those parties, organizations and coalitions having a sufficient number of constituents deserving of representation are actually represented in Congress”. Moreover, the three-seat limit ensures that no party, group, or organization would dominate the party-list seats, and that various interests may be represented equally.

In Sec. 6(8) of The Party-List System Act (RA. 7941), the COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any party, organization, or coalition. One of the grounds for such are if the party, organization, or coalition fails to participate in the last two preceding elections or fails to obtain 2% of the votes cast[5]. In Phil. Guardians v. COMELEC, GR №190529, April 29, 2009, the Philippine Guardians Brotherhood, Inc. (PGBI) failed to get 2% of the total votes cast in the 2004 elections, as well as failing to participate in the 2007 elections; and were consequently delisted.[6] PGBI, however, argued that the Supreme Court’s ruling in Philippine Mine Safety & Environment Association, also known as “MINERO” vs. Commission on Elections, GR. №177548, May 10, 2007, cannot apply to the instant case. The Court thus had to rule on whether there was legal basis to delist PGBI. Thereafter, the Court abandoned the MINERO ruling because it was an erroneous application of Sec. 6 (8) of RA. 7941 and an interpretation that did not contemplate the law’s legislative intent.[7] The MINERO ruling held that a party-list organization that does not participate in an election will, by default, get less than 2% of the party-list votes. However, in Phil Guardians, it was clear that the legislative intent of the law is to treat the two scenarios differently as separate grounds. Moreover, the Court ruled that the 2% threshold in distributing additional seats as provided in Sec. 11(b) of RA. 7941 is unconstitutional. Such threshold would make it mathematically impossible for the maximum number of available party-list seats to be achieved if such seats exceeds 50; it would thus conflict with the 20% ceiling for party-list representatives in the House. PGBI’s disqualification on the ground of failure to obtain at least 2% of votes in the last two preceding elections should instead be understood according to the case of BANAT vs. COMELEC, 586 SCRA 210. In the Banat ruling[8], it was stated that a party-list group or organization that qualified in the second round of seat allocation cannot be delisted for the sole reason that it failed to garner at least 2% in the last two preceding elections. Instead, disqualification should now “be read to apply to party-list groups or organizations that did not qualify for a seat in the last two preceding elections for the constituency in which it registered.” The Court recognized that the specific case of PGBI, in failing to garner at least 2% in a prior election and failed to participate in the next election, is not something within the purview of Sec. 6(8) of RA. 7941. Since there was a gap in the said law, such becomes a matter for the Congress to address, and not the Court. Thus, the Court ruled that PGBI is qualified to be voted upon as a party-list group in the May 2010 elections.[9]

In Aksyon Magsasaka-Partido Tinig ng Masa v. Commission on Elections, G.R. №207134, June 16, 2015, COMELEC proclaimed that the 14 party-list groups, which obtained at least 2% of the total votes cast under the party-list system, were entitled to one guaranteed seat each in the House of Representatives.[10] However, petitioner argued that the allocation of seats did not follow Sec. 11 of RA. 7941 and the BANAT ruling, and that COMELEC erred in computing for the results of the elections. The Court held that the COMELEC did not abuse their discretion nor did they err in allocating additional seats and proclaiming the winners. Party-list groups obtaining less than 2% of the party-list votes may qualify in the allocation of additional seats, but such is dependent on how they will qualify in the second round.[11] In BANAT vs. COMELEC, 586 SCRA 210, determining the allocation of additional seats should be as follows:

(a) 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.

(b) 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 seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats.[12]

Thus, it is important to emphasize that in effect, the doctrine in BANAT overruled the ruling in Veterans Federation Party v. COMELEC. Instead, the 2% threshold should be understood that if a party-list obtains 2% of the total votes cast, then it is guaranteed a seat, but the 2% threshold is not a determining factor in the allocation of additional seats. Thus, allowing those who garnered less than 2% to also get a seat.

In Ang Ladlad LGBT Party vs. Commission on Elections, GR №190582, April 8, 2010, the Court had to decide on whether or not the COMELEC erred in dismissing petitioner’s application for accreditation as a party-list based on moral grounds.[13] COMELEC argued that petitioner did not have a concrete and genuine political agenda to benefit the nation as a whole, and that the dismissal of the petition was validly dismissed on moral grounds. It also argued that the LGBT sector was not among the enumerated sectors in the Constitution or RA. 7941. First, the Court clarified that the enumeration of marginalized and underrepresented sectors is “not exclusive”, as long as such party, organization, or coalition complies with the requirements stated in the Constitution or RA. 7941. As for morality as a ground to disqualify a party, the Court held that moral disapproval alone is insufficient; such amounts to a “disapproval of homosexuals, rather than a tool to further any substantial public interest”. COMELEC’s failure to identify any particular morally reprehensible act done by Ang Ladlad, and its blanket justifications implies selective targeting of homosexuals as a class; necessarily, the equal protection clause applies.[14]

As provided by Sec. 2, Art. IX-C of the 1987 Philippine Constitution, the Commission on Elections (COMELEC) was constitutionally created to “enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall”.[15] The COMELEC thus functions to protect the people’s right to suffrage and ensure the faithful discharge of the sanctity of elections.

In Magdalo vs. COMELEC, G.R. №190793, June 19, 2012, the COMELEC denied the application for registration of petitioner Magdalo Para sa Pagbabago (MAGDALO) pursuant to Art IX-C Sec. 2(5) of the Constitution, wherein parties, organizations, or coalitions who “seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution […] shall likewise be refused registration.”[16] In denying the application, the COMELEC cited that some of MAGDALO’s party members, including their Chairman and party-list organizer, participated in the Oakwood mutiny, wherein several civilians were held hostage. The Court held that Art. IX-C, Sec. 2 (5) of the Constitution mandates a refusal of the registration of organizations, parties, or coalitions which seek to achieve their goals through violence or unlawful means; and stating that “the power vested by Art. IX-C, Sec. 2(5) of the Constitution and Sec. 61 of BP 881 in the COMELEC to register political parties and ascertain the eligibility of groups to participate in the elections is purely administrative in character”. That said, the COMELEC only has to assess whether such party utilizes violence or unlawful means to pursue its goals, and such need not be criminal in nature. Moreover, petitioner’s claimed that they have been granted amnesty, and as such, their application for registration should be granted. The Court recognized such amnesty but was not inconsiderate of the COMELEC’s apprehensions in registering a political party that uses violence; thus, the Court clarified that should MAGDALO file another petition for registration, “its officers must individually execute affidavits renouncing the use of violence or unlawful means to achieve their objective.”[17]

In Dayao v. COMELEC, G.R. №193643, Jan 29, 2013, petitioner’s filed a petition for cancellation of LPG Marketing Association’s (LPGMA) accreditation claiming that LPGMA does not represent a marginalized sector of society because it instead represents marketers and independent re-fillers of LPG that control 45% of the national LPG industry.[18] LPGMA, in response, stated that Art. VI, Sec. 5 (2) of the Constitution does not require that party-list representatives must belong to the marginalized or underrepresented sectors of society. LPGMA also contended that the ground argued by petitioners is not one of those mentioned in Sec. 6 of RA. 7941. Thereafter, COMELEC dismissed the complaint due to the ground cited by petitioner’s is not one of those mentioned in Sec. 6 of RA. 7941, and that LPGMA’s petition for registration has long been approved with finality. In the instant case, the Court held that there was no valid justification for the dismissal of the complaint for cancellation. The party-list system was created for the marginalized and underrepresented sectors, with their alleviation as the ultimate policy of the law. Hence, to categorically mention that “those who are not marginalized and underrepresented are disqualified” is not needed because being a state policy “it must permeate every discussion of the qualification” under the party-list system; thus, a party or an organization that does not comply with this policy is disqualified. In accordance with the procedure provided in RA. 7941, the COMELEC committed a grave abuse of discretion “considering that the poll body did not proceed to make a proximate determination of the present circumstances of LPGMA’s qualification.”

However, in the later case of Atong Paglaum, Inc. vs. COMELEC, G.R. №203766, April 2, 2013, it was held that the party-list system is not for sectoral parties only, but also for non-sectoral parties; thus, RA. 7941 does not require that parties or organizations represent the marginalized and underrepresented sectors.[19] To require such would result in depriving and excluding ideology-based and cause-oriented parties from the party-list system.

In the said case, 52 groups were disqualified by COMELEC from participating in the May 2013 party-list elections, either by cancellation of their registration and accreditation as party-list organizations, or denial of their petitions for registration under the party-list system.[20] Separate petitions were filed by the disqualified groups to reverse such COMELEC resolutions; the petitions were, however, denied due to their failure to establish that they were representatives of marginalized and underrepresented sectors and that they failed to established that their nominees were indeed part of the said sectors they sought to represent. The Court held that COMELEC did not err in disqualifying the 52 party-list groups from participating in the elections therein because COMELEC was merely controlled by and followed existing jurisprudence set by earlier Supreme Court rulings. The Court thereafter remanded all the present petitions to the COMELEC. In determining who may participate in the such election, the Court ordered that COMELEC shall adhere to the new guidelines for the party-list system, to wit:

1. Three different groups may participate in the party-list system: (1) national parties or organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any “marginalized and underrepresented” sector.

3. Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in party-list elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be “marginalized and underrepresented” or lacking in “well-defined political constituencies.” It is enough that their principal advocacy pertains to the special interest and concerns of their sector. The sectors that are “marginalized and underrepresented” include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors that lack “well-defined political constituencies” include professionals, the elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that represent the “marginalized and underrepresented” must belong to the “marginalized and underrepresented” sector they represent. Similarly, a majority of the members of sectoral parties or organizations that lack “well-defined political constituencies” must belong to the sector they represent. The nominees of sectoral parties or organizations that represent the “marginalized and underrepresented,” or that represent those who lack “well-defined political constituencies,” either must belong to their respective sectors, or must have a track record of advocacy for their respective sectors. The nominees of national and regional parties or organizations must be bona-fide members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified.[21]

In Abang Lingkod v. COMELEC, GR №206952, October 22, 2013, petitioner is a sectoral organization representing the interests of farmers and fisherfolks whose registration was cancelled by COMELENC due to its failure to establish its track record in uplifting their cause for the marginalized group they seek to represent.[22] COMELEC averred that petitioner declared an unlawful statement in its petition by submitting pictures that were edited to show participation in its alleged activities.[23] The Court ruled that sectoral organizations are no longer required to adduce evidence of their track record, and it is sufficient that the ideals represented by such sectoral organizations are geared towards furthering the cause of the sectors they represent. Not every misrepresentation would merit a denial or cancellation of their registration, and it would only lead to such if the misrepresentation were of the required qualifications of the party-list. However, since the Court ruled that track records are no longer required, such misrepresentation is immaterial to its qualification under the party-list system. Moreover, the Court defined the meaning of nation, regional, and sectoral parties or organizations. A national party is “when its constituency is spread over the geographical territory of at least a majority of the regions”, and it is a regional party when “its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region.” A sectoral party, however, is an organized group with a principal advocacy pertaining “to the special interest and concern of their sector.”

In Lico v. COMELEC, G.R. №205505, September 20, 2015, the Court had to determine whether the COMELEC has jurisdiction over the expulsion of a sitting party-list representative in the House of Representatives, and his expulsion from the party-list organization itself.[24] The Court held that the COMELEC was correct in deciding that they had no jurisdiction over the expulsion of a sitting party-list representative. The House of Representatives Electoral Tribunal (HRET) has sole jurisdiction to resolve a disqualification case “upon proclamation of the winning party-list group, oath of the nominee, and assumption of office as member of the House of Representatives”, thus, in the instant case having met the criteria, the HRET had jurisdiction over the disqualification case.[25]

III. Rules on apportionment through special law

Sec. 5 (1), Art. VI of the 1987 Philippine Constitution fixes the number of membership within the House of Representatives at two hundred and fifty.[26] However, the “unless otherwise provided clause” of the same section provides that the total membership of the House may be raised if such is necessary. If such is the case, reapportionment is done to create new districts or provinces because “each province is entitled to at least one district, or through the creation of cities meriting one legislative district” pursuant to Sec. 5 (3). Sec 5 (4) providing that reapportionment of legislative districts must be done “within three years following the return of every census.”[27]

Reapportionment may also be done through a special law. In Tobias v. Abalos, 239 SCRA 106 (1994), RA. 7675 was assailed for its alleged unconstitutionality; wherein such was a special law that sought for the City of Mandaluyong to have its own legislative district and, in effect, the remainder of the former legislative district of Mandaluyong shall become the new legislative district of San Juan.[28] Sec. 49, Art. VII of the said law resulted in an increase in composition in the House beyond what is provided for in Art. 6, Sec. 5 (1) of the Constitution. The Court held that 250 members is not absolute; therefore, increasing congressional representation mandated by RA. 7675 is constitutional.[29] Moreover, the Court ruled that Sec. 49 thereof does not preempt the right of Congress to reapportion districts because it is Congress itself that enacted such law, and if anything, RA. 7675 is an exercise of this power to apportion. Lastly, ‘gerrymandering’ is the practice of creating legislative districts for the benefit of a particular candidate. The Court also ruled that there was no “gerrymandering” found to have resulted in dividing San Juan and Mandaluyong; in fact, such division diminished the constituency of Rep. Zamora, the author of said law.

The ruling in Tobias vs. Abalos was upheld in Mariano vs. COMELEC, 242 SCRA 211 (1995), wherein RA. 7854 created another legislative district in Makati.[30] Petitioners argued that reapportionment cannot be made by a special law, and that the population of Makati only stands at 450,000 which is less than what is required of in Sec. 5 (3), Art. VI of the Constitution. The Court ruled that it is stated in the said provision that the minimum population is only 250,000 to qualify for at least one representative. The argument of the petitioners that reapportionment cannot be made by special law does not stand because, with reference to the Tobias case, it is a well settled doctrine that creation of legislative districts may only be done through a special law, which would be the sole prerogative of the Congress.[31]

In the creation of provinces, cities, municipalities, or barangays, such must comply with 3 conditions pursuant to Sec. 10, Art. X of the Constitution:

1. The creation of a local government must follow the criteria fixed in the LGC

2. Such creation must not conflict with any provision of the Constitution

3. There must be a plebiscite in the political units affected

In Sema vs. COMELEC, G.R. №177597, July 16, 2008, RA. 9504 was passed, vesting the ARMM Regional Assembly the power to create provinces, cities, municipalities, or barangays within ARMM.[32] However, the power to validly delegate the creation of a legislative district precedes the power to create a province, city, municipality, or barangay. Congress cannot delegate the power to create legislative districts, because such is the sole prerogative of Congress.[33]

IV. Jurisprudence on the rules on apportionment as provided by pars. 1, 3, and 4 of Sec. 5, Art. VI of the 1987 Philippine Constitution

As stipulated in Sec. 5(1) of Art. VI of the Constitution, one of the rules on apportionment mandate that representatives “shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio”.[34] In Montejo v. COMELEC, 242 SCRA 415 (1995), it was held that COMELEC does not possess the power of legislative apportionment because such is lodged in the Congress.[35] However, the COMELEC may perform minor adjustments relating to reapportionment, such as adjustments in the correct name of a municipality.[36] In Herrera vs. COMELEC, G.R. №131499, Nov. 17, 1999, a resolution was passed allotting 8 Sangguniang Panlalawigan seats to Guimaras, and effectively dividing such into two provincial districts. Petitioners argue that the apportionment of the province into two districts is not equitable, but the Court ruled that RA. 7166, or the Synchronized National and Local Elections and for Electoral Reforms Act, provides that the basis for dividing provinces into districts shall be the number of inhabitants in the province and not the amount of its registered voters.[37] Moreover, RA. 6636 provides that the basis for allotment of elective members to provinces and municipalities is it’s classification — if it is either a province or a municipality. RA. 7166 also provides that “provinces with only 1 legislative district” shall be divided by the Commission into “2 districts for the purposes of electing members of the Sangguniang Panlalawagin…” and the division thereof should be nearly predictable, based on the number of inhabitants, that each district shall comprise a compact and adjacent territory, and the number of seats be equally proportioned with the districts.[38]

In Samson vs. Aguirre, G.R. №133076, September 22, 1999, President Fidel V. Ramos signed into law RA. 8635, creating the City of Novaliches out of 15 barangays of Quezon City.[39] Petitioner assailed the constitutionality of the said on the grounds of its failure to conform to the criteria established by the Local Government Code (LGC), particularly on income, population, and land area; seat of government; and the said law will in effect amend the Constitution. During the deliberations that led to the passage of RA. 8635, certifications on income, land area, and population were not presented to the Congress. However, petitioner failed to substantiate his allegations that there were no certifications presented. The Court thus ruled that every statute is presumed to be valid and to have duly gone through congressional processes. The burden to prove the invalidity of a statute should be on the person assailing it. Sec. 7 of the Local Government Code (LGC) provides that, as a general rule, in creating an LGU or its conversion from one level to another, it shall be based on determinable indicators and projected capacity to provide services; these indicators are:

(a) Income. — It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned;

(b) Population. — It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and

© Land Area. — It must be contiguous, unless it comprises two or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace.[40]

Sec. 7 of the LGC manifests Sec. 5, Art. VI of the 1987 Philippine Constitution into requiring for the certification of how the area would be affected through income, population, and land area if a new legislative district were to be created or separated from them. In this regard, since petitioner failed to substantiate his claims, the Court presumed in favor of what is stated in Sec. 5 of Art. VI.[41]

In Aldaba v. COMELEC, GR №188078, January 25, 2010, it was held that certifications on population, land area, and income shall only be issued by the National Statistics Coordination Board, the National Statistics Office Administrator, or his designated certifying officer.

In Aquino v. COMELEC, GR №189793, April 7, 2010, the Court ruled that as provided in Sec. 5(3) of Art.VI of the Constitution, it distinguishes that provinces are entitled to a representative but cities are not. This is so because in Sec. 5(3) the presence of the comma before “or each province” indicates that cities must first establish that they meet the requirement of 250,000 in population, but provinces are not required to present such.

In Navarro v. Ermita, GR №180050, 12 April 2011, the Court held that if the local government unit to be created is composed of one or more islands, it is made an exception to the land area requirement mandated by Sec. 7 of the LGC. This exception is provided in Sec. 442 and Sec. 450 of the LGC, for LGUs under municipalities or cities; but the exception is not stated for the creation of a province. Justice Carpio, in his dissenting opinion, said that the Dinagat islands met neither the land area nor the population requirement. He emphasized that allowing the creation of a province and an LGU would risk such provinces to be subject to the expectations of a wealthy municipality and would endanger the functionality of the said LGU subsequently.

In Bagabuyo v. COMELEC, GR №176970, December 8, 2008, the Court held that “following the return of every census”, the Congress shall make a legislative reapportionment. Reapportionment pursuant to Sec. 5(4) of Art. VI of the Constitution does not require confirmation by plebiscite. Plebiscite is only required upon the creation, division, merging, abolition, or altering of a local government unit, as stated in Sec. 10, Art. X of the Constitution. Legislative apportionment is the allocation of seats in a legislative body relative to the population. The aim of which is to “equalize population and voting power among districts”.

IV. Synthesis and analysis

According to the Supreme Court, the twenty per centum threshold stated in Sec. 5 (2), Art. IV of the 1987 Philippine Constitution[42] is a mere “ceiling” that provides for the maximum number of party-list seats in Congress, and is therefore not mandatory to be filled up all the time.[43] However, the two percent threshold was sustained, as it ensures “that only those parties, organizations and coalitions having a sufficient number of constituents deserving of representation are actually represented in Congress”; and the three-seat limit ensures that no party, group, or organization would dominate the party-list seats, and that various interests may be represented equally.[44]

However, it should be emphasized that the doctrine in BANAT overruled the ruling in Veterans Federation Party v. COMELEC. Instead, the 2% threshold should be understood that if a party-list obtains 2% of the total votes cast, then it is guaranteed a seat, but the 2% threshold is not a determining factor in the allocation of additional seats. Thus, allowing those who garnered less than 2% to also get a seat.[45] Failing to garner at least 2% in a prior election and failing to participate in the next election is not something within the purview of the Party-List System Act. A party-list or organization that qualified in the second round of seat allocation cannot be delisted for the sole reason that it failed to garner at least 2% in the last two preceding elections.[46] However, disqualification should be read to apply to “party-list groups or organizations that did not qualify for a seat in the last two preceding elections for the constituency in which it registered”.[47]

Party-list groups obtaining less than 2% of the party-list votes may qualify in the allocation of additional seats, but such is dependent on how they will qualify in the second round.[48] Determining the allocation of additional seats should be as follows:

(a) 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.

(b) 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 seat each; provided, that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes; provided, finally, that each party, organization, or coalition shall be entitled to not more than three (3) seats.[49]

As for morality to qualify as grounds for disqualification of a party-list or organization, moral disapproval alone is insufficient and a particular morally reprehensible act must be identified to justify such grounds for disqualification.[50] However, when a party, organization, or coalition seeks to achieve their goals through violent or unlawful means, which need not be criminal in nature, this is a ground for disqualification and it is a power vested in the COMELEC to register and ascertain the eligibility of groups to participate in the elections.[51] Moreover, if amnesty has been granted on such acts, the COMELEC still has the right to refuse registration on such grounds; but the parties officers may individually execute affidavits renouncing the use of violence or unlawful means should they file another petition for registration.[52]

It has been held that R.A. 7941 does not require that parties or organizations represent the marginalized and underrepresented sectors; thus, the party-list system is not for sectoral parties only, but also for non-sectoral parties.[53] Moreover, the Court clarified in the case of Atong Paglaum, Inc. vs. COMELEC, the new guidelines for the party-list system:

1. The groups that may participate in the party-list system are: national parties or organizations; regional parties or organizations; and sectoral parties or organizations.

2. Such groups need not be sectoral nor represent any marginalized or underrepresented sector.

3. Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections.

The Supreme Court has also ruled that not every misrepresentation would merit a denial or cancellation of their registration, and it would only lead to such if the misrepresentation were of the required qualifications of the party-list.[55] However, in the same ruling, it was held that sectoral organizations are no longer required to adduce evidence of their track record, and it is sufficient that the ideals represented by such sectoral organizations are geared towards furthering the cause of the sectors they represent. Thus, since the Court ruled that track records are no longer required, such misrepresentation is immaterial to its qualification under the party-list system.[56] Moreover, the Court defined the meaning of nation, regional, and sectoral parties or organizations. A national party is “when its constituency is spread over the geographical territory of at least a majority of the regions”, and it is a regional party when “its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region.” A sectoral party, however, is an organized group with a principal advocacy pertaining “to the special interest and concern of their sector.”[57]

As for the expulsion of a sitting party-list representative, it is the House of Representatives Electoral Tribunal (HRET) that has sole jurisdiction to resolve a disqualification case upon “proclamation of the winning party-list group, oath of the nominee, and assumption of office as member of the House of Representatives.”

It is a well-settled doctrine that the reapportionment and creation of legislative districts can only be done through a special law, which is necessarily the sole prerogative of Congress; thus, such creation or reapportionment cannot be delegated.[58] [59] [60]

In the creation of provinces, cities, municipalities, or barangays, such must comply with 3 conditions pursuant to Sec. 10, Art. X of the Constitution:

1. The creation of a local government must follow the criteria fixed in the LGC

2. Such creation must not conflict with any provision of the Constitution

3. There must be a plebiscite in the political units affected[61]

While it is true that the COMELEC does not possess the power of legislative apportionment because such is lodged in the Congress, the former may still perform minor adjustments relating to reapportionment; such as adjustments in the correct name of a municipality.[62] Moreover, it has also been held[63] that the Synchronized National and Local Elections and for Electoral Reforms Act, or R.A. 7166, provides that the basis for dividing provinces into districts shall be the number of inhabitants in the province and not the amount of its registered votes.[64] R.A. 6636 provides that the basis for allotment of elective members to provinces and municipalities is according to its classification of either being a province or municipality. However, for provinces with only 1 legislative district, such shall be divided by COMELEC into “2 districts for the purpose of electing members of the Sangguniang Panlalawagin…” and the division thereof should: be based on the number of inhabitants, each district shall comprise a compact and adjacent territory, and the number of seats shall be equally proportioned with the districts.[65]

In contesting the validity of a special law that creates a legislative district, the Court presumed that such is to be valid and to have undergone congressional processes. Thus, the burden to prove the invalidity of a statute should be on the person assailing it.[66]

Sec. 5 (3), Art. VI of the 1987 Philippine Constitution talks about the requirements of a legislative district[67], and Sec. 7 of the LGC establishes the criteria on 1) income, population, and land area; 2) seat of government; and 3) that there be no adverse effect on the city it is a part of.[68] Specifically, it provides that, as a general rule, in creating an LGU or its conversion from one level to another, it shall be based on determinable indicators and projected capacity to provide services; these indicators are:

(b) Population. — It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and

( c) Land Area. — It must be contiguous, unless it comprises two or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace.[69]

Moreover, the certifications on population, land area, and income shall only be issued by the National Statistics Coordination Board, the National Statistics Office Administrator, or his designated certifying officer.[70]

However, an exception to the general rule provided by Sec. 7 of the LGC is if the local government unit to be created is composed of one or more islands.[71] This exception is provided in Sec. 442 and Sec. 450 of the LGC, for LGUs under municipalities or cities; but the exception is not stated for the creation of a province.[72]

Sec. 5 (3), Art. VI of the 1987 Constitution, specifically the comma before “or each province”, indicates that cities must first establish that they meet the requirement of 250,000 in population, but provinces are not required to present such. Thus, it has been ruled that Sec. 5 (3) distinguishes that provinces are entitled to a representative but cities are not.[73]

Sec. 5 (4), Art. VI of the 1987 Constitution talks about the proper time when Congress shall make a reapportionment.[74] The Supreme Court has held[75] that reapportionment, pursuant to Sec. 5(4), does not require confirmation by plebiscite. Plebiscite is only required upon the creation, division, merging, abolition, or altering of a local government unit, as stated in Sec. 10, Art. X of the 1987 Philippine Constitution.[76] Legislative apportionment is the allocation of seats in a legislative body relative to the population. The aim of which is to “equalize population and voting power among districts”.[77]

Based on the surrounding laws and jurisprudence on the party-list system, it is apparent that the party-list system and its effect on the election of party-list representatives should be understood not in isolation of what is simply vested in the Party-List System Act nor in Sec. 5, Art. VI of the 1987 Constitution; but in connection to surrounding laws such as, for example, the Local Government Code, and existing doctrines.

[1] Fritzie P. Tangkia & Ma. Araceli B. Habaradas, Party-List System: The Philippine Experience, Ateneo School of Government and Friedrich-Ebert-Stiftung (FES), Philippine Office, April, 2001, at 1.

[2] An Act Providing for the Election of Party-List Representatives Through the Party-List System, and Appropriating Funds Therefor [Party-List System Act], Republic Act №7941, § 2 (1995).

[3] PHIL. CONST. art. VI, § 5 (2).

[4] Veterans Federation Party v. COMELEC, GR №136781, Oct. 6, 2000.

[5] Party-List System Act, § 6 (8).

[6] Phil. Guardians v. COMELEC, GR №190529, April 29, 2009.

[7] Id.

[8] BANAT vs. COMELEC, 586 SCRA 210.

[9] Phil. Guardians v. COMELEC, id.

[10] Aksyon Magsasaka-Partido Tinig ng Masa v. Commission on Elections, G.R. №207134, June 16, 2015.

[11] Id.

[12] BANAT vs. COMELEC, id.

[13] Ang Ladlad LGBT Party vs. Commission on Elections, GR №190582, April 8, 2010

[14] Id.

[15] PHIL. CONST. art. IX-C, § 2.

[16] Magdalo vs. COMELEC, G.R. №190793, June 19, 2012.

[17] Id.

[18] Dayao v. COMELEC, G.R. №193643, Jan 29, 2013.

[19] Atong Paglaum, Inc. vs. COMELEC, G.R. №203766, April 2, 2013

[20] Id.

[21] Id.

[22] Abang Lingkod v. COMELEC, GR №206952, October 22, 2013.

[23] Id.

[24] Lico v. COMELEC, G.R. №205505, September 20, 2015.

[25] Id.

[26] PHIL. CONST. art. VI, § 5 (1).

[27] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary 700 (2009 Ed.).

[28] Tobias vs. Abalos, 239 SCRA 106 (1994).

[29] Id.

[30] Mariano vs. COMELEC, 242 SCRA 211 (1995).

[31] Id.

[32] Sema vs. COMELEC, G.R. №177597, July 16, 2008.

[33] Id.

[34] PHIL. CONST. art. VI, § 5 (1).

[35] Montejo v. COMELEC, 242 SCRA 415 (1995).

[36] Id.

[37] Herrera vs. COMELEC, G.R. №131499, Nov. 17, 1999.

[38] Id.

[39] Samson vs. Aguirre, G.R. №133076, Sept. 22, 1999.

[40] An Act Providing for a Local Government Code of 1991 [Local Government Code of 1991], Republic Act №7160, § 7 (1991).

[41] Id.

[42] PHIL. CONST. art. VI, § 5 (2).

[43] Veterans Federation Party v. COMELEC, id.

[44] Id.

[45] BANAT vs. COMELEC, id.

[46] Id.

[47] Phil. Guardians vs. COMELEC, id.

[48] BANAT vs. COMELEC, id.

[49] Id.

[50] Magdalo vs. COMELEC, id.

[51] Id.

[52] Id.

[53] Atong Paglaum, Inc. vs. COMELEC, id.

[54] Id.

[55] Abang Lingkod v. COMELEC, id.

[56] Id.

[57] Id.

[58] Tobias vs. Abalos, id.

[59] Mariano vs. COMELEC, id.

[60] Sema vs.COMELEC, id.

[61] PHIL. CONST. art. X, § 10.

[62] Montejo vs. COMELEC, id.

[63] Herrera vs. COMELEC, id.

[64] Id.

[65] Id.

[66] Samson vs. Aguirre, id.

[67] PHIL. CONST. art. VI, § 5 (3).

[68] Local Government Code of 1991, § 7.

[69] Id.

[70] Aldaba vs. COMELEC, id.

[71] Navarro vs. Ermita, id.

[72] Local Government Code of 1991, § 442 and 450.

[73] Aquino vs. COMELEC, id.

[74] PHIL. CONST. art. VI, § 5 (4).

[75] Bagabuyo vs. COMELEC, id.

[76] PHIL. CONST. art. X, § 10.

[77] Bagabuyo vs. COMELEC, id.

Notes on the Party-List System: Survey of Law and Rules on the Registration and Election of Party-List Representatives

Written by Marga Magalong