The decision of the Supreme Court on Friday, April 5, to lift the exclusivity of the party list, limiting it only to so-called marginalized sectors has been criticized by non-government organizations. Why open the system to groups other than their kind, they asked?

But the ruling penned by Justice Antonio Carpio, in fact, only restores the party list to its original concept, as intended by the Constitution: proportional representation, open to all kinds of organizations. It only seeks to correct the 2001 decision penned by Chief Justice Artemio Panganiban.

We are re-publishing Newsbreak’s 2003 article that explains how the Panganiban decision threw the party list into disarray and how it has since tied the Comelec’s hands in implementing the party-list law. This article points out the need to correct that decision – something the Carpio decision finally does, a full decade later.

MANILA, Philippines – If Richard Gomez ran in Thailand, he would have become a lawmaker by now.

In 2001, the second time the party-list election was held in the Philippines, the popular actor and sportsman was the top nominee of Mamamayan Ayaw sa Droga (MAD), a multi-sectoral foundation. MAD garnered 1.52 million votes, the second highest among the party-list groups, and accounted for 10 percent of the total votes cast in the exercise. Gomez and MAD’s next two nominees were supposed to sit in the House of Representatives.

However, MAD and 6 other organizations, entitled to a total of 9 congressional seats, were disqualified by the Supreme Court after they won. The reason: the groups supposedly didn’t belong to or represent so-called “marginalized” sectors—a criterion that legal experts said violated the Constitution and the party-list law. (One group and its nominee later wangled an exception and got sworn in.)

So why Thailand?

Thailand’s 6-year-old party-list concept shares basic features with the Philippines’ 16-year-old system. Its newly established poll body, which carried out Thailand’s first party-election in 2001, was largely modeled after the Philippine’s 1940-formed Commission on Elections (Comelec).

Thailand succeeded on first try; the Philippines has failed in two elections so far, getting low turnouts and not filling all the allotted seats. In fact, the political party that finished in the Thai race—same as MAD’s feat here—captured six million votes that translated to 31 seats in the parliament.

“It’s another sad case of the Philippines having a head start and Thailand overtaking us,” says lawyer Jose Luis Martin Gascon, one of the framers of the 1987 Philippine Constitution that introduced the party-list system. He was the first to point out the many similarities of the two countries’ party-list systems.

‘Mature Thai voters’

The Philippines and Thailand have a mixed House of Representatives, composed of those elected through the party list and those elected in localities or districts. In the Philippines, the latter are called congressmen, representing geo-political districts of 4 to 5 towns each. In Thailand, they are called MPs (members of parliament), representing a population of at least 150,000 each. A Filipino or Thai voter, therefore, has to cast two votes: one for a representative of his locality, another for a party that is seeking a nationwide mandate through the party list.

Thailand has limited party-list participants to political parties, while the Philippines has opened the contest to just about any kind of organization—political parties, cause-oriented and advocacy groups, foundations, cooperatives—except those that are religious in nature, getting foreign funding for their campaigns, or espousing violence.

In both countries, this new manner of electing some members of the legislature was introduced after a long tradition of personality-based, mudslinging campaigns and fraud-marred elections.

The party-lists system was introduced to provide a balance for locality-based lawmakers, who are almost always elected on the basis of their popularity and the money they can dole out. The party-list system is meant to encourage people to vote for parties according to their program of government and track record. It is also meant to open doors to more qualified individuals, enlisted by the parties, who do not have the money and the personal connections to make them win in locality-based elections, but whose platform may appeal to voters nationwide.

But, Gascon says, the Thai voters turned out to be “more mature than Filipinos in the sense that they understood what the party list is—that it is a system of proportional representation.”

Proportional representation simply means that the percentage of votes that each participating party gets will determine how many seats it will occupy in Congress. The 1987 Constitution and Republic Act 7941 (the Party-List Law) are very clear about that.

Members of the Constitutional Commission, in fact, unanimously agreed that “the party-list system is not synonymous to sectoral representation” and that “there are not reserved seats for sectors…they will have to earn the seats through participation in the party-list system.”

Many Filipino voters failed to understand that because of misinterpretation by some sectors. Nongovernment organizations (NGOs), mostly those with leftist leanings, claimed that only NGOs like them who represented the “marginalized” or neglected sectors could join the party list.

In their propaganda offensive leading to the 2001 polls, these groups—particularly the political parties Bayan Muna and Akbayan (both won seats in Congress)—referred to a sentence in the Constitution and the party-list law that enumerates which sectors are referred to as “marginalized.” What the laws actually say is that there are many types of organizations that can compete in the party-list election, and that NGOs, such as those representing the basic sectors, can join, too.

In a previous interview with Newsbreak, Wilfrido Villacorta, a commission member, said “I plead guilty” to that misinterpreted provision. He said the enumeration of the sectors apparently gave NGOs the impression that they had to be accorded “special treatment” in the election.

In the end, these groups became the arbiter of which party-list participants were “genuine” and which were “bogus.”

Because the Comelec refused to disqualify the organizations it had already accredited, Bayan Muna brought the case to the Supreme Court. The latter adopted all of Bayan Muna’s arguments and disqualified all the rivals that it sought to be disqualified. The groups were disqualified after they already won in the election, and were classified as non-marginalized according to guidelines set by the court but are not found in the law.

Poor formula

The Philippines’ procedure in filling the party-list seats was poorly formulated. For an organization to earn a seat, it has to garner 2 percent of the total votes cast in the exercise; another 2 percent is required for every additional seat. For example, if the total votes for all participating parties is 10 million, the 2 percent would be 200,000 votes. Every organization that gets 200,000 votes can send a nominee to Congress. The one which gets 400,000 will have two nominees installed.

This formula makes it impossible to fill all the 52 party-list seats. To do this, each of the 100 groups should get at least 2 percent of the votes—assuming that all of them have networks or machinery that are strong enough to deliver the votes. In the last two elections, however, the Comelec accredited more than 100 organizations, spreading thinly the limited number of votes. Assuming that votes will be divided equally among the more than 100 organizations, none of them will get 2 percent.

The law also limits to 3 the number of seats that an organization can occupy, thus wasting the extra votes that strong organizations may capture. For example, if a group gets 10 percent of the votes, it would have been entitled to 5 seats. However, the law will allow the group to avail only of the 6 percent, or 3 seats. None gets to benefit from the extra 4 percent, or two seats.

Thailand’s formula is simpler, precisely designed to fill all 100 seats reserved for the party list. They compute the equivalent of 5 percent of the total votes cast for all parties. All parties that do not get 5 percent are eliminated. The total votes of eliminated parties are subtracted from the total party-list votes. The remaining votes will be divided by 100. For every number of votes equivalent to the quotient, a winning party gets a seat in Parliament.

For example, there are a total of 20 million votes cast in the election, 5 percent of which is one million. All the parties that didn’t get one million votes are eliminated, and their total votes—say, five million—are subtracted from the base. There are now only 15 million votes left for the winning parties.

The 15 million votes are divided by 100, the number of seats reserved for the party list. The quotient is 150,000. This means that for every 150,000 votes that a winning party gets, it is entitled to one seat. If the first winning party got 1.5 million votes, it gets 10 seats; the second winning group, which got 750,000 votes, gets five seats.

The formula adopted by Thailand was similar to the one proposed by Comelec, and sponsored by then Camarines Norte Rep Raul Roco, for the party-list law. That formula was approved by the House, but was altered in the bicameral conference committee when then Senators Jose Lina and the late Neptali Gonzales insisted on putting a 2-percent vote threshold and limiting to 3 the number of seats that an organization can get.

No to NGOs

When efforts to amend certain parts of the Constitution were renewed last year, Newsbreak conducted research and interviews in Bangkok on how the Philippine party list, thrown into disarray by the Supreme Court decision, could be improved or at least restored to its original concept. (This writer worked under a fellowship program of the Southeast Asian Press Alliance.)

“Our system is less complicated because we do not allow NGOs to join the party list,” said Dr Suchit Bunbongkarn, a member of the assembly that drafted the 1997 Thai Constitution. Although he also considered the NGOs’ electoral participation as a political breakthrough, he said they should be made to play fair.

Suchit is now a justice of the Constitutional Court, an independent body whose task is to decide if any bill, law, government rule ,or policy is in accordance with the Charter. If there was such a court in the Philippines, it would have been the one to decide on the controversial party list case of 2001.

“If they (NGOs) want that privilege (of participating in the party list), they have to transform themselves into political parties, and compete as the others do,” Suchit said.

Gothom Arya, an NGO leader before he became elections commissioner, said that in a party-list contest, participants cannot claim moral ascendancy over the others—all of them are “after state power.” Which group gets represented should therefore be determined by nothing but the number of votes it gathered, he said.

Gothom, who supervised his government’s year-long information campaign on the newly introduced party list, said that the purpose of an information drive is to help voters make an informed choice when election comes, regardless of whether their choices would be acceptable to the so-called progressive NGOs or the discriminating media.

Besides, Suchit pointed out that as the Thai system has shown, there is no guarantee that the party’s campaign platform will be realized when its nominees are in parliament. “Representing the people’s voice will always depend on individual politicians.”

Political scientists Sida Sonskri of Thammasat University came to the Philippines in 1996 to study the Comelec structure and the country’s electoral processes, with the intention of recommending to Thailand’s Constitutional Drafting Assembly good points she could pick up. The inclusion of NGOs in the party list—not the exclusivity of the exercise for NGOs—appealed to her, but she said that her government readily shot down the idea. “They didn’t trust NGOs and were so sure that they would only create problems.”

The Coalition for Charter Change Now, a network of Philippine NGOs identified with the ruling party, is proposing exactly what Thailand has done: limit the party list to political parties, and therefore require sectoral organizations to register as political parties to be able to join.

With that amendment, the Constitution and the party-list law will have no room for misinterpretation that favors some type of organizations over the others. That amendment will also nullify the Supreme Court guidelines that were never in the law to begin with.

If the Philippines is shifting to a multiparty parliamentary form of government—no doubt, the priority amendment sought by proponents of Charter change—then it cannot postpone fixing the party list system that goes with it. Or the exercise may fail again in 2004. – Rappler.com