Justice Robert A. Abad's Comment on Ang Ladlad vs. Comelec

EN BANC

G.R. No. 190582 -- ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner, versus COMMISSION ON ELECTIONS, Respondent.



Promulgated:



April 8, 2010

x ---------------------------------------------------------------------------------------- x



SEPARATE OPINION





ABAD, J.:



I have to concur only in the result set forth in the well-written ponencia of Justice Mariano C. Del Castillo because I arrived at the same conclusion following a different path.



I also felt that the Court needs, in resolving the issues in this case, to say more about what the Constitution and Republic Act (R.A.) 7941 intends in the case of the party-list system to abate the aggravations and confusion caused by the alarming overnight proliferation of sectoral parties.



The underlying policy of R.A. 7941 or The Party-List System Act is to give the marginalized and underrepresented sectors of society an opportunity to take a direct part in enacting the laws of the land. In Ang Bagong Bayani-OFW Labor Party v. Commission on Elections (COMELEC),[1] the Court laid down guidelines for accreditation, but these seem to leave the COMELEC like everyone else even more perplexed and dumbfounded about what organizations, clubs, or associations can pass for sectoral parties with a right to claim a seat in the House of Representatives. The Court can, in adjudicating this case, unravel some of the difficulties.



Here, I fully agree that the COMELEC erred when it denied Ang Ladlad’s petition for sectoral party accreditation on religious and moral grounds. The COMELEC has never applied these tests on regular candidates for Congress. There is no reason for it to apply them on Ang Ladlad. But the ponencia already amply and lucidly discussed this point.



What I am more concerned about is COMELEC’s claim in its comment on the petition that the Ang Ladlad sectoral party was not marginalized and underrepresented since it is not among, or even associated with, the sectors specified in the Constitution and in R.A. 7941.[2] Ang Ladlad, it claims, did not qualify as a marginalized and underrepresented group of people like those representing labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals. This is effectively the COMELEC’s frame of mind in adjudicating applications for accreditation.



But, the COMELEC’s proposition imposes an unwarranted restriction which is inconsistent with the purpose and spirit of the Constitution and the law. A reading of Ang Bagong Bayani will show that, based on the Court’s reading, neither the Constitution nor R.A. 7941 intends the excessively limited coverage that the COMELEC now suggests. In fact, the Court said in that case that the list in R.A. 7941 is not exclusive. Thus, while the party-list system is not meant for all sectors of society, it was envisioned as a social justice tool for the marginalized and underrepresented in general.



As it happened, the only clue that the Constitution provides respecting the identity of the sectors that will make up the party-list system is found in the examples it gives, namely, the labor, the peasant, the urban poor, the indigenous cultural minorities, the women, and the youth segments of society. Section 5(2), Article VI of the 1987 Constitution provides:



(2) The party-list representative 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.” (Underscoring supplied.)



Getting its bearing from the examples given above, the Congress provided in Section 2 of R.A. 7941 a broad standard for screening and identifying those who may qualify for the party-list system. Thus:



Sec. 2. Declaration of policy. The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack 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 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. (Underscoring supplied.)



The above speaks of “marginalized and underrepresented sectoral parties or organizations x x x lack well defined political constituencies x x x who could contribute to the formulation and enactment of appropriate legislation.” But, as the Court said in Ang Bagong Bayani, the whole thing boils down to ascertaining whether the party seeking accreditation belongs to the “marginalized and underrepresented.”[3]



Unfortunately, Congress did not provide a definition of the term “marginalized and underrepresented.” Nor did the Court dare provide one in its decision in Ang Bagong Bayani. It is possible, however, to get a sense of what Congress intended in adopting such term. No doubt, Congress crafted that term—marginalized and underrepresented—from its reading of the concrete examples that the Constitution itself gives of groupings that are entitled to accreditation. These examples are the labor, the peasant, the urban poor, the indigenous cultural minorities, the women, and the youth sectors. Fortunately, quite often ideas are best described by examples of what they are, which was what those who drafted the 1987 Constitution did, rather than by an abstract description of them.



For Congress it was much like looking at a gathering of “a dog, a cat, a horse, an elephant, and a tiger” and concluding that it is a gathering of “animals.” Here, it looked at the samples of qualified groups (labor, peasant, urban poor, indigenous cultural minorities, women, and youth) and found a common thread that passes through them all. Congress concluded that these groups belonged to the “marginalized and underrepresented.”



So what is the meaning of the term “marginalized and underrepresented?” The examples given (labor, peasant, urban poor, indigenous cultural minorities, women, and youth) should be the starting point in any search for definition. Congress has added six others to this list: the fisherfolk, the elderly, the handicapped, the veterans, the overseas workers, and the professionals.[4] Thus, the pertinent portion of Section 5 of R.A. 7941 provides:



Sec. 5. Registration. – x x x Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.



If one were to analyze these Constitutional and statutory examples of qualified parties, it should be evident that they represent the working class (labor, peasant, fisherfolk, overseas workers), the service class (professionals), the economically deprived (urban poor), the social outcasts (indigenous cultural minorities), the vulnerable (women, youth) and the work impaired (elderly, handicapped, veterans). This analysis provides some understanding of who, in the eyes of Congress, are marginalized and underrepresented.



The parties of the marginalized and underrepresented should be more than just lobby or interest groups. They must have an authentic identity that goes beyond mere similarities in background or circumstances. It is not enough that their members belong to the same industry, speak the same dialect, have a common hobby or sport, or wish to promote public support for their mutual interests. The group should be characterized by a shared advocacy for genuine issues affecting basic human rights as these apply to their groups. This is in keeping with the statutory objective of sharing with them seats in the House of Representatives so they can take part in enacting beneficial legislation.



It should be borne in mind, however, that both the Constitution and R.A. 7941 merely provide by examples a sense of what the qualified organizations should look like. As the Court acknowledged in Ang Bagong Bayani, these examples are not exclusive. For instance, there are groups which are pushed to the margin because they advocate an extremist political ideology, such as the extreme right and the extreme left of the political divide. They may be regarded, if the evidence warrants, as qualified sectors.



Further, to qualify, a party applying for accreditation must represent a narrow rather than a specific definition of the class of people they seek to represent. For example, the Constitution uses the term “labor,” a narrower definition than the broad and more abstract term, “working class,” without slipping down to the more specific and concrete definition like “carpenters,” “security guards,” “microchips factory workers,” “barbers,” “tricycle drivers,” and similar sub-groupings in the “labor” group. See the other illustrations below.



Broad

Definition


*Narrow

Definition




Specifically Defined Groups

Working Class


Labor


Carpenters, security guards, microchip

factory workers, barbers, tricycle drivers

Economically

Deprived


Urban

Poor


Informal settlers, the jobless, persons displaced by domestic wars

The Vulnerable


Women


Working women, battered women,

victims of slavery

Work Impaired


Handi-

Capped


Deaf and dumb, the blind, people on wheelchairs

*The definition that the Constitution and R.A. 7941 use by their examples.



Obviously, the level of representation desired by both the Constitution and R.A. 7941 for the party-list system is the second, the narrow definition of the sector that the law regards as “marginalized and underrepresented.” The implication of this is that, if any of the sub-groupings (the carpenters, the security guards, the microchips factory workers, the barbers, the tricycle drivers in the example) within the sector desires to apply for accreditation as a party-list group, it must compete with other sub-groups for the seat allotted to the “labor sector” in the House of Representatives. This is the apparent intent of the Constitution and the law.



An interpretation that will allow concretely or specifically defined groups to seek election as a separate party-list sector by itself will result in riot and redundancy in the mix of sectoral parties grabbing seats in the House of Representatives. It will defeat altogether the objectives of the party-list system. If they can muster enough votes, the country may have a party-list of pedicab drivers and another of tricycle drivers. There will be an irrational apportionment of party-list seats in the legislature.



In addition, Section 5 of R.A. 7941 provides that parties interested in taking part in the party-list system must state if they are to be considered as national, regional, or sectoral parties. Thus:



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, x x x.



This provision, taken alongside with the territorial character of the sample sectors provided by the Constitution and R.A. 7941, indicates that every sectoral party-list applicant must have an inherently regional presence (indigenous cultural minorities) or a national presence (all the rest).



The people they represent are not bound up by the territorial borders of provinces, cities, or municipalities. A sectoral group representing the sugar plantation workers of Negros Occidental, for example, will not qualify because it does not represent the inherently national character of the labor sector.



Finally, as the Court held in Ang Bagong Bayani, it is not enough for a party to claim that it represents the marginalized and underrepresented. That is easy to do. The party must factually and truly represent the marginalized and underrepresented. It must present to the COMELEC clear and convincing evidence of its history, authenticity, advocacy, and magnitude of presence. The COMELEC must reject those who put up building props overnight as in the movies to create an illusion of sectoral presence so they can get through the door of Congress without running for a seat in a regular legislative district.



In sum, to qualify for accreditation:



One, the applying party must show that it represents the “marginalized and underrepresented,” exemplified by the working class, the service class, the economically deprived, the social outcasts, the vulnerable, the work impaired, or some such similar class of persons.



Two, the applying party should be characterized by a shared advocacy for genuine issues affecting basic human rights as these apply to the sector it represents.



Three, the applying party must share the cause of their sector, narrowly defined as shown above. If such party is a sub-group within that sector, it must compete with other sub-groups for the seat allocated to their sector.



Four, the members of the party seeking accreditation must have an inherent regional or national presence.



And five, except for matters the COMELEC can take judicial notice of, the party applying for accreditation must prove its claims by clear and convincing evidence.



In this case, Ang Ladlad represents men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered persons (LGBTs). Applying the universally accepted estimate that one out of every 10 persons is an LGBT of a certain kind,[5] the Filipino LGBTs should now stand at about 8.7 million. Despite this, however, they are by and large, subtly if not brutally, excluded from the mainstream, discriminated against, and persecuted. That the COMELEC denied Ang Ladlad’s petition on religious and moral grounds is proof of this discrimination.



Ang Ladlad claims that many cases of intolerance and violence against LGBTs have been documented. At home, effeminate or gay youths are subjected to physical abuse by parents or guardians to make them conform to standard gender norms of behavior, while lesbian youths are raped to cure them of their perceived affliction. LGBTs are refused admission from certain schools, or are suspended and put on probation. Meanwhile, in the workplace, they are denied promotions or benefits which are otherwise available to heterosexuals holding the same positions. There is bigotry for their group.



Ang Ladlad has amply proved that it meets the requirements for sectoral party accreditation. Their members are in the vulnerable class like the women and the youth. Ang Ladlad represents a narrow definition of its class (LGBTs) rather than a concrete and specific definition of a sub-group within the class (group of gay beauticians, for example). The people that Ang Ladlad seeks to represent have a national presence.



The lesbians, gays, bisexuals, and trans-gendered persons in our communities are our brothers, sisters, friends, or colleagues who have suffered in silence all these years. True, the party-list system is not necessarily a tool for advocating tolerance or acceptance of their practices or beliefs. But it does promise them, as a marginalized and underrepresented group, the chance to have a direct involvement in crafting legislations that impact on their lives and existence. It is an opportunity for true and effective representation which is the very essence of our party-list system.



For the above reasons, I vote to GRANT the petition.









ROBERTO A. ABAD

Associate Justice



[1] 412 Phil. 308 (2001).

[2] Comment, pp. 2-6.

[3] “In the end, the role of the Comelec is to see to it that only those Filipinos who are “marginalized and underrepresented” become members of Congress under the party-list system, Filipino style.” Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, supra note 1, at 334.

[4] Section 5. Registration.—x x x Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.

[5] http://www.aglbical.org/2STATS.htm.

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