Sunday, April 14, 2013


The New Party List Decision
Joaquin G. Bernas, S.J.
If I approach the Supreme Court’s recent decision on the party least system by way merely of a mechanical exercise in statutory construction, I might conclude that the Court has stripped the party-list system of its soul. The party list system is not merely a restructuring the of the membership of the House of Representatives.  It is a peaceful revolutionary measure which introduces  social justice into the structure of the House. The Constituonal framers intended social justice to be the soul of the system and the latest decision has preserved that soul although giving it a reading slightly differently from the way the earlier Ang Bagong Bayani read it.
The Court’s new decision begins by saying that the party-list system has three component parts: (1) national organizations, (2) regional organizations, and (3) sectoral  organizations consisting of  “labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law.”  This enumeration is lifted out of the text of the Constitution.
When the framers were deliberating on the Constitution, they saw the generally marginalized condition of the third componet of the system  But the framers also saw that the economic sectors were not the only groups suffering marginalization and underrepresentation.  They also saw some national and regional parties as suffering this disadvantage.  Hence what they created was “a party-list system of registered national, regional, and sectoral parties or organizations.” But since the original inspiration for the party-list system were the economically disadvantaged sectors, the national and regional parties, when included in the system,  must, under the rule of eiusdem generis, also have the disadvantage of being “marginalized and underrepresented”  -- but not necessarily in the sense of being economically disadvantaged.
In the language of the ponencia itself,  “The common denominator between sectoral and non-sectoral parties is that they cannot expect to win in legislative district elections  but they can garner, in nationwide elections, at least the same number of votes that winning candidates can garner in legislative district elections.  The party-list system will be the entry point  to membership in the House of Representatives for both these non-traditinal parties that could not compete in legislative district elections.” 
I do not know if we are only playing with words here, but I find this citation from the ponencia to be a good inclusive definition of the phrase “marginalized and underrepresented.”
But whence did the quality of being “marginalized and underrepresented” come from when nowhere does the phrase appear in the text of the Constitution.  It comes from the general concept of social justice under Article II of the Constitution.  The current accepted meaning of social justice in jurisprudence is that those who have less in life either economically or politically should be given more in law.  That is what the party-list system tries to do. 
The ponencia, however, also notes that, while RA 7941 mentions “marginalized and undrrepresented” in its Declaration of Policy, the body of the law itself does not explicitly require that party-list participants must all be marginalized and underrepresented.  But, to my mind, that is because making such an explicit requirement would be a superfluity considering that the party-list system was conceived precisely for the sake of the marginalized and underrepresented.
The ponencia also says that the phrase marginalized and underrepresented should refer only to those which by nature are economically marginalized. I take this to mean that the requirement of marginalization, understood in the economic sense, remains applicable to the economic sectors. After all, it is their economic condition that makes them marginalized.  Bu it does not mean that national and regional parties that are not economically marginalized may not participate even if they are also otherwise marginalized, for example, ideologically. That would be true if the Constitution limited social justice, the soul of the party list system, to economic social justice, as the 1973 Constitution did.  But the 1987 Constitution has expanded the meaning of social justice to include political justice.  It can cover not just the economically marginalized but also the politically or ideologically marginalized.  In the ponencia’s own language, “The common denominator between sectoral and non-sectoral parties is that they cannot expect to win in legislative district elections.”
When reports came out about the latest Supreme Court decision on the party-list system, the immediate reaction of some was concern that it had stripped the party-list system of its social justice soul.  What caused the concern were reports that being “marginalized and underrepresented” was no longer a requirement for participation in the party-list system.  Partly true and partly untrue.  What I understand the Supreme Court decision in its entirety as saying is that economic marginalization remains a requirement for the economic sectors but not necessarily for the national and regional parties.  For these latter what is sufficient is political or ideological marginalization, even if the ponencia prefers tp limit the word marginalization.  In this sense, the new decision is a partial departure from the decision in Ang Bagong Bayani.  Thus, social justice as the soul of the sysem remains intact.
I am sure that what I have said does not clarify everything.  But I have run out of space. Next time I shall try to answer what the Comelec will have to do with the cases remanded to it for review.
15 April 2013

1 comment:

  1. What then is a politically marginalized party? We all know that trapos are very notorious when it comes to interpreting SC decisions or even the constitution thus we have a pathetic political system. Trapos has been known to disrespect the constitution by just deliberately failing to pass enabling law defining political dynasty what more with a SC ruling removing the marginalized requirement which is the very soul of the party list creation.