The experimental party-list mongrel

The Makabayan bloc in the House of Representatives has again filed bills to revise the party-list law (Republic Act No. 7941) to “ensure that it stays true to its original purpose of serving the marginalized” and underrepresented. Sen. Risa Hontiveros filed a similar bill in the Senate, targeting the dynasties.

THE ORIGINAL SIN IS IMBEDDED not only in the law but also in its creator, the 1987 Constitution, which experimentally instituted the party-list system it borrowed from parliamentary systems and tried to integrate it into our presidential system.

While the experiment was well-intended, it was—in my humble opinion—flawed because the presidential system, by its nature, is meant to be partnered with proportional representation in the House and by the autonomous equality of the component states, as in the United States. For decades, we adopted the US presidential system from US enactments (like the Jones Law, the Tydings-McDuffie Act, etc.) that happily blended with our culture of patriarchal and matriarchal supremacy.

To be accurate, the 1987 framers provided not just for proportional representation in the House but also for “those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.” They further stipulated that the party-list representatives shall constitute 20 percent of the House’s total membership, and that “[f]or 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.”

In short, other than saying that the party-list shall constitute at least 20 percent of the House’s total membership and that for three consecutive terms, one-half of the seats shall be filled by the marginalized, the Charter did not define what this political animal was, nor the timeline of the experiment.

NEITHER DID CONGRESS. While it tried to fulfill its constitutional duty “as provided by law,” it merely limited the party-list electoral winners to those who obtained at least 2 percent of the total votes cast for all the party-list candidates. It did not define the nature of the mongrel.

In Veterans v. Comelec (Oct. 6, 2000), the Supreme Court upheld the 2 percent statutory restriction, ruling that the 20 percent constitutional limit was merely directory, not mandatory. Thereafter, in Bagong Bayani v. Comelec (June 26, 2001), it held that only the parties and organizations, and their nominees, who belong to the marginalized and underrepresented were deemed qualified to be elected.

These two early decisions that I wrote for the Court pointed to the textual ambiguities of the Constitution and the party-list law and asked Congress to enact new legislation to define and clarify the mongrel. While awaiting congressional action, it limited, via the said two decisions, the party-list winners to only a few seats (about 15).

AFTER I RETIRED, the Court, in Banat v. Comelec (April 21, 2009), voided the 2-percent bar of the party-list law, reasoning that the 20 percent could never be attained mathematically with that bar; and in Atong Paglaum vs Comelec (April 2, 2013), ruled that the party-list candidates and their nominees need not belong to the marginalized and underrepresented. Rather, it was open to all.

As a result, the dynasties invaded the system, the veteran politicians misused it to circumvent the three-term constitutional limit, the rich owned it as an easy election tool, and the powerful misrepresented the lowly and weak in Congress. Moreover, the House had to increase its budget by 20 percent more to fund the party-list solons, aside from also increasing the pork barrel and flood control insertions.

Given that the House, at present, is composed of 20 percent party-list solons, I doubt whether the proposed reforms and refinements that eliminate the dynasties and the power blocs would succeed. In my humble view, only a constitutional convention (not a constituent assembly) can abolish the mongrel or limit its membership only to the marginalized and underrepresented.

In writing those two early decisions, I exposed my rather activist streak—interpreting liberally—to attain the avowed aim of serving the marginalized and underrepresented. I was guided by the spirit rather than by the wording of the laws.

On the other hand, my successors interpreted the Constitution verba legis or according to its text; they ruled that the word “shall” was mandatory, meaning that 20 percent of the House members should always be party-list. And that this 20 percent could not be attained if the winners were limited (1) only to those who garnered at least 2 percent of the total votes cast and (2) only to those who were marginalized and underrepresented. So, they opened the gates, and the flood rushed in.

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