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^{SEPARATE (DISSENTING) OPINION}

VITUG, J.:

The 1987 Constitution, crafted at a time when the euphoria of the 1986 People Power had barely subsided, recognized the vigor infused by civilian society in a cleansing political reform and focused itself on institutionalizing civilian participation in daily governance. A cause for concern was the not-too-unlikely perpetuation of a single party in power- a convenient contrivance for authoritarian rule. Article VI, Section 5, subsection 2, of the 1987 Charter -

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 REPRESENTATIVE 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. -

was the result of long-drawn deliberations and compromises.

Immediately, after the resumption of the next Congress, then president Corazon C. Aquino, exercising her transitory appointing powers, assigned to the reserved seats in the Lower House, representatives of the labor, peasant, urban poor, indigenous cultural communities, women and youth sector. The assignment was made from a selected list of names submitted by the sectors themselves. The sectors would continue to enjoy these reserved seats for the next three terms; thenceforth, they would have to participate in an electoral contest to secure their representation in Congress.

Article 6, Section 5(2), however, not being self-executing, would wait for the legislature to ordain the enabling law. Congress was to be circumscribed by the terms expressed in Article 6, Section 5(2). -First, the system should only apply to the election of 20% of the total composition of the House of Representatives, second, it would prescribe a mandatory proportional representation scheme, and, third, it would allow participating parties and organizations to be represented in voter's registration boards, board of election inspectors, parties and organizations or similar entities.

On 03 March 1995, Republic Act 7941, also known as "An Act Providing for the Election of Party-List Representatives Through the Party- List System, and Appropriating Funds Therefor," was enacted. The enabling law laid the basis for COMELEC Resolution No.2847, issued on July 1996, prescribing the "Rules and Regulations Governing the Elections of the Party-List Representatives through the Party-List System." In the May 1998 first party-list elections, the sectors were required, to test, for the first time, their political mettle in an open electoral contest with other parties, groups and organizations under a party-list system. While the elections had a low-voter turnout, seen largely as a result of public unawareness of an electoral innovation, the recent 2001 multi-party list elections, however, were different. This time, a huge number of parties, groups and coalitions applied for registration with, and subsequently obtained accreditation from, the COMELEC. Six of these groups were established political parties, namely PARTIDO NG MASANG PILIPINO, LAKAS NUCD-UMDP, NATIONALIST PEOPLE'S COALITION, LABAN NG DEMOKRATIKONG PILIPINO, AKSYON DEMOKRATIKO, LIBERAL PARTY, NACIONALISTA PARTY and PDP-LABAN.

The instant petition prays for the exclusion of these major parties on the ground that their participation does not level the playing field for less known and less organized sectoral groups still in dire need of election logistics and machinery. Arguing that the system is open to the underrepresented and marginalized sectors, as well as other parties but only on the condition that the latter field sectoral candidates themselves, herein petitioner sought the disqualification of the large major political parties and groups which do not represent any "genuine" sectoral interest.

A perusal of the novel electoral engineering, introduced by the Constitution into the electoral system, would show the pertinent provisions to be stoically quiet on the qualifications of a party, group or coalition to participate under the party-list system. Instead, it has opted to rely on a subsequent statutory enactment to provide for the system's focal particulars, which now lead us to the enabling law itself. Section 2 of R.A. 7941 reads -

"The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable the Filipino citizens belonging to the marginalized and underrepresented sectors, organizations and parties, and who lacked well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives, by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible."

The draft provisions on what was to become Article VI, Section 5, subsection (2), of the 1987 Constitution took off from two staunch positions - the first headed by Commissioner Villacorta, advocating that of the 20 percentum of the total seats in Congress to be allocated to party-list representatives half were to be reserved to appointees from the marginalized and underrepresented sectors. The proposal was opposed by some Commissioners. Mr. Monsod expressed the difficulty in delimiting the sectors that needed representation. He was of the view that reserving seats for the marginalized and underrepresented sectors would stunt their development into full-pledged parties equipped with electoral machinery potent enough to further the sectoral interests to be represented. The Villacorta group, on the other hand, was apprehensive that pitting the unorganized and less-moneyed sectoral groups in an electoral contest would be like placing babes in the lion's den, so to speak, with the bigger and more established political parties ultimately gobbling them up. R.A. 7941 recognized this concern when it banned the first five major political parties on the basis of party representation in the House of Representatives from participating in the party-list system for the first party-list elections held in 1998 (and to be automatically lifted starting with the 2001 elections). The advocates for permanent seats for sectoral representatives made an effort towards a compromise - that the party-list system be open only to underrepresented and marginalized sectors. This proposal was further whittled down by allocating only half of the seats under the party-list system to candidates from the sectors which would garner the required number of votes. The majority was unyielding. Voting 19-22, the proposal for permanent seats, and in the alternative the reservation of the party-list system to the sectoral groups, was voted down. The only concession the Villacorta group was able to muster was an assurance of reserved seats for selected sectors for three consecutive terms after the enactment of the 1987 Constitution, by which time they would be expected to gather and solidify their electoral base and brace themselves in the multi-party electoral contest with the more veteran political groups.

The system, designed to accommodate as many groups as possible, abhors the monopoly of representation in the Lower House. This intent is evident in the statutory imposition of the three-seat cap, which prescribes the limit to the number of seats that may be gained by a party or organization. ¹ Votes garnered in excess of 6% of the total votes cast do not entitle the party to more than three seats.

There is no express provision of the Constitution or in the enabling law that disallows major political parties from participating in the party-list system and, at the same time, from fielding candidates for legislative district representatives.

Perhaps the present controversy stems from a confusion of the actual character of the party-list system. At first glance, it gives the impression of being a combination of proportional representation for non-traditional parties and sectoral representation. The first, proportional representation, on one end, is intended for no other reason than to open up the electoral process for broader participation and representation. Sectoral representation on the other, presupposes that every underrepresented sector be represented in Congress. This impression of sectoral-based representation stems from the provisions of Article 6, Section 5(2), of the Constitution, as well as R.A. 7941, in enumerating specific sectors to be represented. In holding that the party list system is open only to the underrepresented and marginalized sectors, the ponencia places much reliance on Section 5 of R.A. 7941:

"SEC. 5. Registration. Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, bylaws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided, That the sectors shall include labor peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.

"The COMELEC shall publish the petition in at least two (2) national newspapers of general circulation.

"The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15) days from the date it was submitted for decision but in no case not later than sixty (60) days before election."

It would seem to me that, construed along with Section 3(d) of the statute, defining a "sectoral party," the enumeration was intended to qualify only "sectoral parties" and not the other eligible groups (e.g., political parties, sectoral organizations and coalitions). Neither Article 6, Section 5(2), nor R.A. 7941 intended to guarantee representation to all sectors of society and, let alone, hand it over only to underrepresented and marginalized sectors. The real aim, if the will of the majority of the Commissioners were to be respected, was to introduce the concept of party-list representation.

The party-list system is limited to four groups - 1) political parties, 2) sectoral parties, 3) sectoral organizations, and 4) coalitions. A political party is an organized group of citizens advocating an ideology, or platform, principles or policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominate and supports certain of its leaders and members as candidates for public office. A sectoral party is an organized group of citizens belonging to identifiable sectors, such as those enumerated in Article 6, Section 5(2), of the 1987 Constitution, which includes the labor, peasant, urban poor, indigenous cultural communities and women and those added by R.A. 7941 like the fisherfolk, elderly, handicapped, veterans, overseas workers and professionals. A sectoral organization is a group of citizens who share the same or similar attributes or characteristics, employment, interests or concerns. Coalition is an aggrupation of duly registered national, regional, sectoral parties or organizations for election purposes.

A party or organization desiring to join the party-list system is required to register with the COMELEC, together with a list of its five nominees for party-list representatives, arranged according to the group's order of preference. In every election for the House of Representatives, each voter casts two votes - one for the district representative of his choice and another for the party or organization of his choice. The votes cast for the parties and organizations are totaled nationwide. In contrast to the election of all other officials where the rule of plurality (i.e., the candidate with the highest number of votes wins) is adopted, the number of seats under the party-list system depends on the number of votes received in proportion to the total number of votes cast nationwide. On the basis of the number of registered voters in the recent elections, a group under the party-list system, should get approximately half a million votes to be entitled to one seat.

At the center stage of this controversy are the political parties themselves. Undeniably, political parties are an important feature in both democratic and authoritarian regimes. By legitimizing the individuals and institutions that control political power, parties add an important element of stability to a political system and also help organize the government and electorate by recruiting candidates, conducting campaigns, encouraging partisan attachments and generally educating the public, stimulating voter participation and providing varying degrees of policy direction to government. The idea could also be seen as a good training and recruiting ground for potential leaders. Advocates commend the multi-party as allowing the expression and the compromise of the many interests of a complex society, including a range of ideological differences, conflicting political values and philosophies. Section 6 of the 1987 Constitution is explicit - "A free and open party system shall be allowed to evolve according to the free choice of the people." ² The multi-party system of proportional representation broadens the composition of the House of Representatives to accommodate sectors and organizations that do not have well-defined political constituencies and to facilitate access to minority or small parties.

A party-list nominee is subject to basically the same qualifications applicable to legislative districts candidates, ³ with the exception of the additional requirement that he be nominated in one list only, and provided, further, that he is not a candidate for any elective office or has lost his bid for an elective office in the immediately preceding election. ⁴ A nominee must actually belong to the sector which they purport to represent, otherwise, there can be no true representation. ⁵ A nominee of the youth sector is further required to be at least 25 but not more than 30 years of age on the day of the election. ⁶ Should he, however, attain the age of 30 during his term, he is allowed to continue until the expiration thereof. ⁷ Once elected, party-list representatives also enjoy the same term, rights and privileges as do district representatives, except that they are not entitled to the Country-wide Development Fund (CDF). ⁸cräläwvirtualibräry

A feature of the party-list system is that political parties, sectoral groups and organizations, coalitions and aggrupation acquire the status of "candidates" and their nominees relegated to mere agents. Thus, if a party-list representative dies, becomes physically incapacitated, removed from office by the party or the organization he represents, resigns, or is disqualified during his term, his party can send another person to take his place for the remaining period, provided the replacement is next in succession in the list of nominees submitted to the COMELEC upon registration. Furthermore, a party-list representative who switches party affiliations during his term forfeits his seat. ⁹ So, also, if a person changes his sectoral affiliation within 6 months before the election, he will not be eligible for nomination in party-list representative under his new party or organization. ¹⁰cräläwvirtualibräry

The argument raised by petitioners could not be said to have been overlooked as they precisely were the same points subjected to intense and prolonged deliberations by the members of the Constitutional Commission.

And, the polestar in the constructions of constitutions always remains --- "effect must be given to the intent of the framers of the organic law and of the people adopting it." ¹¹ The law, in its clear formulation cannot give this tribunal the elbow-room for construction. Courts are bound to suppose that any inconveniences involved in the application of constitutional provisions according to their plain terms and import have been considered in advance and accepted as less intolerable than those avoided, or as compensated by countervailing advantages. ¹² The ponencia itself, in ruling as it does, may unwittingly, be crossing the limits of judicial review and treading the dangerous waters of judicial legislation, and more importantly, of a constitutional amendment. While, the lament of herein petitioners is understandable, the remedy lies not with this Court but with the people themselves through an amendment of their work as and when better counsel prevails.

WHEREFORE , I regret my inability to concur with my colleagues in their judgment. I am thus constrained to vote for the dismissal of the petitions.

¹ Section 11(b), R.A. 7941.

² Bernas, pp. 355-358.

³ The Constitutional qualifications for legislative districts representatives apply to party-list nominees -

Section 6, Article 6, 1987 Constitution. No person shall be a member of the House of Representatives unless he is a natural-born citizen of the Philippines, and on the day of the election, at lest twenty-five years of age, able to read and write, and except the party-list representative, a registered voter in the district in which he shall be elected, and a resident thereof for a period not less than one year immediately preceding the day of the elections.

⁴ Section 8, R.A. 7941.

⁵ Supangan, Jr. v. Santos, 189 SCRA 56.

⁶ Section 9, R.A. 7941.

⁷ Ibid.

⁸ See the plenary deliberations (2^nd reading) of House Bill No. 3043.

⁹ Section 15, R.A. 7941.

¹⁰ Ibid.

¹¹ Whitman v. Oxford National Bank 176 US 559, 44 L Ed 587, 20 Sct. 477.

¹² People ex rel. Snowball v. Pendegast, 96 Cal 289 St 126, 110 NE 485.