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No longer on the margins of the page

Views and analysis

(This is a shortened version of the 26-page petition filed by Ang Ladlad before the Supreme Court last Dec. 5 to reverse the Comelec ruling. The counsels were Attorneys Nicolas Pichay, Clara Rita Padilla, and Ibarra Gutierrez.)

Suddenly, we are back in the Middle Ages! The Comelec Resolution denying accreditation for Ang Ladlad to run under the party-list system is an example of society’s marginalization of lesbians, gays, bisexuals, transgender (LGBT). The Resolution demonizes the LBGT community by accusing us of indulging in imaginary acts of immorality that the Comelec deems as “a threat to the youth.” More importantly, the resolution violates rights guaranteed under the Constitution and laws of universal application.

Thus, Ang Ladlad filed a Petition for Certiorari with application for a writ of preliminary mandatory injunction, to the Supreme Court last Dec. 5. We are asking the Supreme Court to annul the Comelec Resolution dated 11 November denying the accreditation of Ang Ladlad and the Resolution dated 17 December 2009 denying our Motion for Reconsideration. The issues, especially on the application for an injunction, must also be settled soon, given the 25 January 2010 deadline for the printing of ballots.

The Facts At Hand

Ang Ladlad is an organization of men and women who self-identify as lesbians, gays, bisexuals or trans-gendered individuals.

On 17 August 2009, Ang Ladlad applied for party-list accreditation with the Comelec. In a hearing conducted on 24 September 2009 before the Comelec Second Division, Professor Remoto testified. He presented evidence to prove Ang Ladlad’s : 1) SEC registration; 2) The number and location of its members; 3) That it is a marginalized group within the intendment of the law; and 4) possession of all other qualifications/lack of any disqualification.

In its Resolution, the Second Division declared that although the organization has complied with all the requirements needed for accreditation under the party-list system, Ang Ladlad is being denied accreditation because it tolerates immorality. Proof? The Comelec cited passages from the Holy Bible and the Koran, adding that Ang Ladlad offended religious beliefs.

As if sharing the outrage of the LGBT community, institutions/corporate entities from both domestic and in the international domain, public figures and/or prominent personalities immediately issued separate expressions of support to Ang Ladlad and lambasted the Comelec resolution. The Commission on Human Rights (CHR) offered to intervene either in the Comelec or in the Supreme Court, while the International Commission of Jurists (ICJ) and Forum Asia also wrote their respective Amicus briefs.


Ang Ladlad maintains that the petition to the Supreme Court should be granted based on the following grounds:

1. The Comelec committed grave abuse of discretion amounting to lack, or excess of jurisdiction, when it made conclusions unsupported by records.

2. The Comelec’s resolution violates the following provisions of the Constitution:

A. Article III, Section 5: "No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights."

B. Article II, Section 6: "The separation of the Church and State shall be inviolable."

C. Article III, Section 1: "No person xxx (shall be) be denied the equal protection of the laws.

D. Article III, Section 4: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

3. The Comelec t violated international law which the Philippines is bound to observe.

Factual and/or legal conclusions unsupported by the evidence on record

The Resolution capitalized on our definitions of "LGBT" on the one hand, and "sexual orientation" on the other, in refusing registration on moral grounds. It said that Ladlad tolerates same-sex relations, which allegedly goes against the teachings of certain religions. Citing the Comelec Law Department's comment, it further declared that Ladlad advocates sexual immorality.

Just a cursory perusal of the Comelec’s point reveals that the Commission equated Ladlad's tolerance of the beliefs of those “differently-oriented” with Ang Ladlad’s supposed acts or practice of immorality. The Comelec invoked Article 201 of the Revised Penal Code (RPC), which deals with the glorification of criminals, violence in shows, obscene publications, lustful or pornographic exhibitions. It used said Article 201 to support its point that Ang Ladlad espouses doctrines contrary to public morals.

It may not be amiss to say that the principle of ejusdem generis is enough to declare that homosexuality per se does not fall within the ambit of the penal law. That one's affections towards people of the same sex easily translate to lust and immorality is a non-sequitur.

On a deeper analysis, Ang Ladlad may not be charged of the felony because first, the element of publicity in its purported adherence to the said doctrines is lacking. It must be remembered that Professor Danton Remoto, the Chairman of Ang Ladlad, gave the definitions in the context of the questions asked of him during the hearing.

Moreover, the Resolutions failed to see the focal point of Ang Ladlad’s objective to represent a marginalized sector of society, disadvantaged merely because of their sexual orientation and gender identity. In other words, Professor Remoto defined "homosexuality" or "sexual orientation" within the protected zone of the constitutional right to privacy.

Neither a sin nor a sickness

Even the Vatican has publicly condemned violence and discrimination against homosexuals, including penal legislation against them. In a Vatican statement dated December 10, 2009, and read before a United Nations General Assembly meeting, it stated that it “opposes all forms of violence and unjust discrimination against homosexual persons, including penal legislation which undermines the inherent dignity of the human person. . . . The murder and abuse of homosexual persons are to be confronted on all levels, especially when such violence is perpetrated by the State.”

Furthermore, 30 years ago, homosexuality has already been de-listed from the books as a medical/psychological aberration. Homosexuality is neither a conscious choice nor a contagious illness that is transmitted as in the leprosy of old, or in HIV/AIDS now (although the stigma and discrimination is present in these conditions as well). To put it mildly, the view asserted by the biblical scholar Lehman Strauss that Comelec cited is obsolete. Strauss was a scholar whose heyday was in the 1950s. He lived at the start of the past century and his pronouncements could not have been backed up by scientific evidence. As Professor Remoto succinctly remarked, "How would I have taught in the one of the country's exclusive Catholic schools (Ateneo de Manila University) for 22 years if I were a threat to the youth?"

No deceit or falsification

Quite preposterously, too, the Comelec stated in its Resolution that:

"Petitioner should be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said that it 'or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections" (Italics supplied)

How the poll body drew its inference that Ang Ladlad made untruthful statements of fact is simply beyond fathom. It seems to be trapped in a whimsical world where it is acceptable for one to conjure up evidence simply from thin air.

Be that as it may, assuming that Comelec was referring precisely to the penal code provision that it cited, Ang Ladlad may not be faulted for saying it had not violated such law. Neither Professor Remoto nor the officers of Ang Ladlad have been indicted against it, much less any convicted in any court of law. Significantly, the law allegedly violated should specifically pertain to elections, which the Revised Penal Code is not.

The Constitution declares that the Philippines is a secular state, by stating in Article II, Section 6 that: “The separation of Church and State shall be inviolable.” The rationale behind the principle of separation of church and state is to protect the government from the influence of a dominant religious group or institution. Under this principle, the Constitution prohibits the religious tyranny of the majority being exercised to suppress the rights of the few.

Under the same principle, Article III, Section 5 of the Constitution was included in order to ensure that the government may not force anyone to support or participate in a religion.

The denial of the accreditation of Ang Ladlad, insofar as it justifies the exclusion by using a religious dogma or belief, violates these constitutional guarantees against the establishment of religion. The Comelec’s citation of passages from the Bible and the Koran indicates the religious bias it applied in determining the merit and subsequent denial of Ang Ladlad’s application.

Incidentally, Comelec is also forcing a segment of the population to abide by the religious beliefs of the majority belonging to the Roman Catholic and Muslim faiths. This violates the freedom-of-exercise clause, assuming of course that that segment has a wholly distinct belief in the Biblical validity of love regardless of whether or not it is directed towards another of similar gender or sexual orientation.

But then again, even the leadership of the Roman Catholic Church through the Vatican Council, is averse at employing religious coercion. In a statement in 1965, the Council said: "[T]he human person has a right to religious freedom. This freedom means that all men [and women] are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his [or her] own beliefs xxx.”

It further declared that in “spreading religious faith xxx everyone ought at all times to refrain from any manner of action which might seem to carry a hint of coercion."

Secular morality

Speaking through then Associate Justice Reynato Puno the Supreme Court held in the case of Estrada v. Escritor that "morality" must be understood in its secular conception.

In the same case, the High Court had occasion to allude to the nexus between religious morality and the establishment of a State-religion or the effective decimation of the individual's freedom to exercise his own religion, thus:

The Comelec makes the most hostile of discriminations as it deprives Ang Ladlad accreditation using a standard of measure that makes a classification not justified by the circumstances at hand. The Constitution provides in Article III: Section 1. "No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws."

At their core, the subject Resolutions consider sexual preference—by itself—to be the basis for a disqualification from being voted for into office. There may be substantial distinctions between marginalized heterosexuals like straight women, on the one hand, and then homosexual women or lesbians, on the other. Truly, not all women are created equal. Stated sardonically, "some men (or women) are more equal than others."

Nonetheless, the inevitable question becomes, "is the distinction between straights and gays essential to the intent of the law to encompass as many representatives who may potentially contribute to sound legislation?"

Ang Ladlad believes the resounding "NO" to the issue posed has oftentimes had a res ipsa loquitur (the thing speaks for itself) feature to it. Professor Remoto may himself exemplify the fact that gay men must not be confined by society to the creative arts, for he is at par with or perhaps even better than any other straight man in Congress when it comes to educational qualifications and intellectual discourse.

Apart from violating the Constitution, the Comelec resolution is likewise contrary to the principles in international human rights law. Moreover, it constitutes a serious breach of Philippine State obligations under international law. International law forms part of the Philippine legal framework by virtue of the incorporation clause and the treaty clause.

In denying Ang Ladlad’s petition for registration as a sectoral party under the party-list system of representation principally, if not solely, on the ground that it “[advocates] immoral doctrines” as seen in the fact that it represents individuals who engage in same-sex relationships, the Comelec committed discrimination contrary to tenets enshrined in international law.

To begin with, Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR), a treaty to which the Philippines is a State party, explicitly provides that “Each State party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Emphasis supplied)

Among these rights that must be respected and ensured, “without distinction of any kind” are the right “to take part in the conduct of public affairs, directly or through freely chosen representatives” and the right “to vote and be elected at genuine periodic elections,” both of which are guaranteed under Article 25 of the ICCPR. By denying Ang Ladlad’s petition for registration on no other ultimate basis apart from the fact that it supports same-sex relationships, the COMELEC has engaged in discriminatory conduct in violation of the ICCPR.

It must be pointed out that for the purpose of applying Article 2(1) of the ICCPR, the United Nations Human Rights Committee (UNHRC), a body created under Article 28 of the ICCPR, has ruled, in a landmark decision involving a successful challenge to Australian laws criminalizing homosexual acts, that “sexual orientation” is included in reference to "sex" in the said provision. In other words, sexual orientation cannot be used as a basis for denying rights under the ICCPR, which is precisely what the Comelec did in denying Ang Ladlad’s petition for registration.

Discrimination, which is to be understood as “any distinction, exclusion, restriction or preference which is based on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms,” is anathema to the basic and general principles relating to the protection of human rights.

The Comelec resolution contravenes the 2003 recommendations of the UNHRC on the Philippines when it urged the Philippine government “to pursue its efforts to counter all forms of discrimination” pertaining to sexual orientation and to “strengthen human rights education to forestall manifestations of intolerance and de facto discrimination.” The very purpose of Petitioner Ang Ladlad in participating in the party-list elections is to enact a law protecting the rights of LGBTs against discrimination which was one of the recommendations of the UNHRC when it urged the Philippine government to “take the necessary steps to adopt legislation explicitly prohibiting discrimination, in accordance with articles 3 and 26 of the Covenant.”

The United Nations Committee on the Elimination of Discrimination Against Women (CEDAW Committee), tasked to monitor the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), a treaty to which the Philippines is a state party, has asked states parties to re-conceptualize lesbianism as a sexual orientation and to abolish penalties for its practice. The CEDAW Committee has also commended states parties for enacting laws prohibiting discrimination against sexual orientation and for showing concern on sexual preference at the same time expressing concern on discrimination against sexual orientation.

Under both the express terms of treaty law, i.e. the ICCPR, and as a general principle of international law, it cannot be countenanced. The Comelec’s denial of Ang Ladlad’s petition, which nullifies the capacity of its members to participate in public life through the party-list elections, a human right guaranteed under Article 25 of the ICCPR, solely on the basis of its disapproval of their sexual orientation, amounts to discrimination.

In the same vein, the Yogyakarta Principles, a document developed and unanimously adopted in 2007 by a distinguished group of human rights experts from diverse regions and backgrounds, intended to reflect the application of binding international human rights law to issues of sexual orientation and gender identity. It underscores that “everyone is entitled to enjoy all human rights without discrimination on the basis of sexual identity.” This principle is derived from custom and practice of various states, as may be seen in decisions of various national and international tribunals, as well as provisions of various treaties.


The denial of the accreditation of Ang Ladlad is unconstitutional, violating the fundamental protection that there should be no religious test xxx; that there should be a separation of church and state/non-establishment of religion and a freedom of exercise of religion; violating the rights of Ang Ladlad to political participation and violating the rights of the LGBT members of Ang Ladlad to privacy, expression (against prior restraint), equality/equal protection of the law, and violation of the Philippines’ international obligations against discrimination based on sexual orientation.

To protect the rights of LGBTs to the equal protection of the law, the Court should immediately overturn the resolution of the Comelec. It is the duty of the Philippines to uphold the right to sexual orientation and gender identity.

It is imperative that Ang Ladlad be accredited especially since the deadline for the printing of the ballots for the 2010 automated elections is January 25, 2010. Any further delay in the resolution of petitioner Ang Ladlad’s motion will result in grave injustice.

The German writer Victor Hugo said no idea is more powerful than one whose time has come. The idea of equal representation for all will find voice and resonance if the Supreme Court reverses the Comelec decision that consigns Ang Ladlad and the group it represents to the very margins of the page.
as of 02/03/2010 11:54 AM


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