GAY MARRIAGES ON FRONT PAGE

Gay Marriage on Front Page

Joaquin G. Bernas, S.J.

On billboards along EDSA you will see the ad for My Husband’s Lover.  It is shaking up some elements of the Church, probably fans of Be Careful with My Heart.

If you look into the debates in the House of Lords, you will find Catholic peers disagreeing about same sex marriage. 

Last week the US Supreme Court came out with a decision on the subject of gay marriages.

The first case to reach the Philippine Supreme Court about gays was not about gay marriage but about the Comelec’s challenge to the party Ang Ladlad.  The Comelec wanted Ang Ladlad banned from participating in the party lists elections.  The Comelec lost that one with the Supreme Court saying: “We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval.  It is not difficult to imagine the reasons behind this censure – religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle.  Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct.”

If ever we should reach the point of debating about same sex marriage, I am sure we will be hearing about the constitutional provision which says “The state recognizes the sanctity of the family life and shall protect  and strengthen the family is a basic social institution.”  Certainly the question of how the state will protect and strengthen the family as a social institution will be a subject of debate.  We will also be debating about the constitutional meaning of family and  marriage.

But let us leave that for now and go to the legal debate going on in the United Kingdom and in the United States.

What interests me very much is the split among Catholic British peers on the issue of gay marriage.  A couple of weeks after the Marriage (Same Sex) Bill passed the House of Commons, it was sent to the House of Lords for debate.  How to deal with it was a dilemma for Catholic peers.  The split among them went three ways – six in favor, at least seven against and at least six abstained.  What was behind their vote?

Among those who expressed opposition to the Act one argued that, whatever the constitutional implications might be, she opposed the redefinition of marriage.  She said that marriage was between two people of the opposite sex “and I don’t think you can make things the same by an Act of Parliament”. Another said that the bill was flawed because appropriating the word “marriage” could not change its true meaning. “I believe that, in time, LGBT [lesbian, gay, bisexual and transgendered] people will regret attaching their unions to heterosexual marriage.”  A third argued that the bill would cause disharmony, anger and long-lasting hurt.  “Far from creating equality in marriage, he warned peers that the bill would establish two different sorts of marriage – statutory  gay marriage and traditional marriage.”

Of those who supported gay marriage one argued that homosexuality was not “heterosexuals behaving badly, but gay people behaving naturally”. He

believed it was possible to distinguish between state marriage and Catholic marriage. “The State has got to make different arrangements from the Church because it has different concerns,” Another argued that he had a “strong impulse” towards equality.  And a Baroness who was consulted on the legal implications of the bill for religious organizations was firmly of the view that the bill protected the Church. “That people, gay or straight, should want to be part of the whole that is our society is surely an advance on marriage as it is currently constructed,” she said. “It means that, in fact, we are enhancing

rather than diminishing the meaning of marriage.”

That is a sampling of how things might go should the subject of gay marriage come up for debate in Congress and in the larger Philippine society.  It is perhaps worth noting that our Constitution does not speak of protecting marriage but “protecting the family.”

Going now to the United States, we can look at a recent Supreme Court decision promulgated only last June 26.  I quote the first paragraph of the Court’s decision:  “Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of ‘spouse’ as that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the constitutionality of this provision. The United States District Court and the Court of Appeals ruled that this portion of the statute is unconstitutional and ordered the United States to pay Windsor a refund. This Court granted certiorari and now affirms the judgment in Windsor’s favor.”

That is the short of it.  The long of it, however, is complicated and not for one column.  It involves not only differences between federal and state law but also delicate equal protection principles. But mainly it iterates that marital relations from earliest times have been regulated by the states and not by the federal government.  Since ours is a unitary system of government, we do not have that kind of allocation of powers.  At present thirteen US states and the District of Columbia allow same-sex marriage and the Federal Supreme Court will not touch them.

1 July 2013

MRE ON THE VAT REFUND

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                                                     More on Vat Refund

Joaquin G. Bernas, S.J.

A couple of weeks ago I ended my column with the question: “As applied to VAT refund, do the equities of the case demand only prospective application of the rule?”

The rule I was referring to, of course, was the “operative fact” rule.  The rule, which is of American origin, says: ““"The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official."  

Clearly, the rule does not say prospectivity only. Prospectivity or retroactivity will depend on “various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official."  As recently shown by the Luisita case, the invalidation of the stock transfer system was first applied prospectively only, but was later reversed to make the invalidation retroactive as demanded by the equities of the case.  Even American decisions do not apply the rule in a unidirectional case.

The background for my article which I ended with a question was this: Under the law, for investors to be able to bring in capital equipment, they must pay the VAT but with the promise that the VAT will be refunded upon the filing of a proper claim. 

There are two steps in the refund process.  The first step is administrative: filing  a claim for refund with the BIR.  The second step, when needed, is filing for refund with the Court of Tax Appeals.  The law says that the investor has 120 + 30 days from denial of the claim by the BIR or from the inaction of the BIR to file the claim for refund with the Court of Tax Appeals.

The practice allowed in the past was that the investor need not wait for the lapse of 120 days before going to the Court of Tax Appeals or CTA.  But if he does go to the CTA early and in the mean time the BIR approves his claim for refund, that terminates the case of before the CTA.  This was the practice followed by the BIR and the Court of Appeals for several years and it had the approval of the Supreme Court.

A recent decision of the Court, however, held that this practice was all wrong and that investors who had filed their claim following the old practice could not avail of the “operative fact rule” and must suffer invalidation of their still pending claims.  The decision, in other words, was applied retroactively and not prospectively.  Thus my question: Do the equities of the case demand only prospective application of rule?

I deliberately did not answer my own question because weighing the equities of the case is not a simple matter.

A concurring opinion on the case, however, had a simple answer: “The capacity to bear the costs of these [official] mistakes in interpretation is generally better internalized by the private taxpayers rather than carried by the public as a whole.”

The question, however, is not about who has the better capacity to bear the cost of official mistakes.  The question is:
What is fair?  The fact that a taxpayer has a bottomless pocket does not mean that he has no right to be treated fairly.

The taxpayer, after all, will receive the refund only after a finding that the VAT already paid was not due; that is, it did not belong to the government.  In the first place, the taxpayer had paid the tax in advance because he had no other choice if he wanted to do business.  Advance payment was required by law.

A letter of the Chambers of Comemerce to Secretary Purisima said: ““The rule established by the Supreme Court should only be given a prospective effect. Otherwise, it will result to grave damage and prejudice of . . . taxpayers who have complied fully and in good faith with the then prevailing procedures sanctioned by the BIR and accepted by the courts. The long line of decisions by the Supreme Court, the Court of Appeals and the Court of Tax Appeals clearly indicate that prior to the [latest] ruling, the BIR and the CTA did not observe the 120+30 day periods in actual practice. We believe that if these decisions are taken into consideration, it will radically change the outcome of the case. We also believe that the failure of the courts to rule in favor of a prospective application will undeniably result in an unwitting yet palpable and grave violation of the constitutional guarantee of due process (notice requirement) as well as equal protection. . . .” 

It is understandable that the Chambers of Commerce should speak in such categorical terms.  But they were speaking mainly of the San Roque et al cases and what they claimed was that the equities of the case should favor San R.oque et al.  But there are other Vat Refund cases awaiting decision.  They should be reviewed individually to determine where the equities of the case are. 

In all fairness, this is probably also what the concurring opinion I cited also meant when it said that the cost is “generally better internalized by the private taxpayers rather than carried by the public as a whole.”  The language admits of exceptions.  True, the life blood of a state are taxes; but they should be collected fairly.

10 May 2013

ABOUT FISH AND FISHING

All About Fish and Fishing

 Joaquin G. Bernas, S.J.

What can legally be said about the incursions of Chinese fishing and other vessels into Philippine waters?  The first thing, of course, is to look into the laws that govern the seas. 

The importance of the seas flows from two factors: first, they are a medium of communication, and second, they contain vast natural resources.  In the seventeenth century the Portuguese proclaimed vast areas of sea as belonging to itself.  But it was Grotius who elaborated the doctrine of the open seas which considers the high seas as res communis accessible to all.  The doctrine, however, recognized as  permissible the delineation of a maritime belt by littoral states as an indivisible part of its domain. 

In international law, specifically the United Nations Convention on the Law of the Sea (UNCLOS), there is such a thing as the exclusive economic zone  of a state or a state’s “patrimonial sea.”.  Both the Philippines and China are among the signatories to the UNCLOS and are therefore bound to respect its provisions.

To understand the extent of the authority of states over waters one must begin with an understanding of baselines.  The baseline is “the low-water line along the coast as marked on large scale charts officially recognized by the coastal State.” It is from this line that the various areas of a state’s authority over the sea are measured: the territorial sea, twelve nautical miles from the baseline; the contiguous zone, 24 miles from the baseline; and exclusive economic zone, 200 nautical miles.  The Philippines recently revised its Baseline Law to make it conform to the requirements under UNCLOS.

The doctrine on the exclusive economic zone is a recent development.  Prior to the acceptance of this doctrine, all waters beyond the contiguous zone were considered as high seas over which no state  had control.  The exclusive economic zone doctrine developed owing to the desire of coastal states for better conservation and management of coastal fisheries.

The coastal state has rights over the economic resources of the exclusive economic zone, that is, over its seabed, subsoil and waters. But the provisions on the exclusive economic zone are both a grant of rights to and an imposition of obligations on coastal states relative to the exploitation, management and preservation of the resources found within the zone.

Coastal states have two primary obligations.  First, they must ensure through proper conservation and management measures that the living resources of the EEZ are not subjected to over-exploitation.   This includes the duty to maintain and restore populations of harvested fisheries at levels which produce a "maximum sustainable yield."  Second, they must promote  the objective of "optimum utilization" of the living resources.  They therefore should determine the allowable catch of living resources.  If the coastal state does not have the capacity to harvest the allowable catch, it must grant access to other states. 

The claim of the Philippine government is that Chinese fishing vessels continue to foray into the excusive economic zone of the Philippines without the needed consent from the Philippine government and in fact against the wishes of the Philippine government and to the prejudice of the economic rights of the Philippines over the patrimonial sea.

Considering the width of the patrimonial sea which a state may claim and the distances between states, it is inevitable that the different claimed areas will overlap.  China, for its part, bases its claim on what it calls the “nine-dash map,” the demarcation lines used by both the governments of the People's Republic of China and the Republic of China (Taiwan).  The demarcation lines include, among others, the Spratly Islands disputed by the Philippines, China, Brunei, Malaysia, Taiwan, and Vietnam and the Panatag Shoal in Zambales.  At stake here are believed to be not just fishing resources but also vast mineral resources, including oil.  The Chinese date their claim under the “9-dotted line” to as early as 1948.

In the face of conflicting claims and in the light of international law against resort to force, the Philippines obviously cannot enforce by force of arms what it believes to be its right.  The Philippines therefore hopes that arbitration will solve the problem.  Will it?

Peaceful settlement of disputes is compulsory. Under Part XV of the 1982 Convention on the Law of the seas states are required to settle peacefully disputes concerning the Convention.  If a bilateral settlement fails, Article 285 requires submission of the dispute for compulsory settlement to one of the tribunals clothed with jurisdiction.  The alternatives are the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), or a voluntary arbitral tribunal constituted  under the Convention.

Assume, however, that the Philippines wins, how will the decision be enforced?  Submission to the ICJ may be declined by a state.  But if a state submits to the ICJ, decision of the ICJ maybe enforced by the Security Council.  But China has veto power in the Security Council.  For its part, ITLOS does not contain an enforcement mechanism.  Associate Justice Antonio Carpio calls the situation a “legal black hole” and suggests that our only hope is that the bully China will yield to international public opinion.

3 June 2013

THE LATEST ON THE JBC

The Latest  on the JBC

 Joaquin G. Bernas, S.J.

Since 1987 the Judicial and Bar Council has struggled with the question whether it should allow two or only one member of Congress to sit in the body.  Last month a divided Supreme Court finally ordered the JBC: You can have only one member of Congress.   How much of a difference will that make?

But first a bit of history as the Supreme Court tells it:  “It bears reiterating that from the birth of the Philippine Republic, the exercise of appointing members of the Judiciary has always been the exclusive prerogative of the executive and legislative branches of the government. Like their progenitor of American origins, both the Malolos Constitution and the 1935 Constitution vested the power to appoint the members of the Judiciary in the President, subject to confirmation by the Commission on Appointments.

“It was during these times that the country became witness to the deplorable practice of aspirants seeking confirmation of their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.

“Then, under the 1973 Constitution, with the fusion of the executive and legislative powers in one body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The power became exclusive and absolute to the Executive, subject only to the condition that the appointees must have all the qualifications and none of the disqualifications. 

“Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political pressure and partisan activities, the members of the Constitutional Commission saw it wise to create a separate, competent and independent body to recommend nominees to the President. Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment process, and called it the Judicial and Bar Council (JBC).”

The Constitution now says:  “A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.”

I recall that when this provision was approved providing for only one member of Congress in the Judicial and Bar Council, the thinking of the Constitutional Commission was that the legislative body would be unicameral.  When the Commission decided instead to have a bicameral Congress, the Commission, whether intentionally or inadvertently, did not change what it had approved about legislative participation in the Council. 

When the provision was first implemented, only one member of Congress sat.  By 1994, however, two legislators were allowed to sit but either alternating or sitting together but with only half a vote each.  In 2001, however, the Judicial and Bar Council allowed two members to sit, each with a full vote.

The Court decision of last April 16, put an end to this and said that there should be only one member of Congress.  Will that really make much of a difference in the quality of decisions of the Judicial and Bar Council?

Your answer to this question will be as good or as bad as mine.  But if we must change the system of appointing justices and judges, my preference would be to go back to the 1935 system of requiring confirmation by the Senate for appointments to the Supreme Court.  That system gave us the golden years of the Supreme Court. 

I know that the shift away from this system was justified by the desire to remove political influence from the appointing system.  When the Constitutional Commission was debating the subject, however, the examples given of political influence were not taken from the process of appointing members of the Supreme Court but from appointments to lower courts and to executive offices.

Has the Judicial and Bar Council given us a better judiciary, whether in the higher or the lower levels?  As lawyers would say, Res ipsa loquitur!  Certainly, however, the present system is an improvement on the system under the 1973 Constitution when all appointments were at the discretion of the President.

Even today, however, we must ask how strong the influence of the President can be on the appointment process?  True it is that the President can only appoint from among those recommended by the Judicial and Bar Council.  The Constitution says from among “at least three.”  The JBC can give the President more to choose from. 

Moreover,  look at the composition of the Council.  The Chief Justice, the Secretary of Justice and a member of Congress are ex officio members.  The rest,  consisting of a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector, are appointed by the President but with the consent of the Commission on Appointments.  Will that solve the problem of political (read “presidential”) interference?

Under the 1935 Constitution the President had to present to the Commission on Appointments impeccable  nominees for Chief Justice and associate justices, or risk being rebuffed by the Commission on Appointments. As I see it now, the JBC is so composed as to be proximately exposed to the temptation of serving to the President a platter of “peccable” nominees.  In the end, we get the government we vote for!

6 May 2013

ABOUT POLITICAL DNASTIES

About Political Dynasties

 Joaquin G. Bernas, S.J.

The campaign against political dynasties is on full blast.  Nothing will come out of it.

This, in fact, is not a novel issue.  The constitutional provision on the subject was already a subject  of debate in the 1987 Constitutional Commission.  The debate started during the deliberations on the article on Local Governments when Commissioner Foz proposed the prohibition of political dynasties.  The arguments pro and con about prohibiting political dynasties were rehearsed during the brief debate. 

Briefly Foz argued that “The idea of a prohibition against the rise of political dynasties is essentially to prevent one family from controlling political power as against the democratic idea that political power should be dispersed as much as possible among our people.” 

Immediately, however, Commissioner Nativided objected saying that this would be a diminution of the power of the people to elect their governors.

Essentially that was Commissioner Monsod’s argument too saying that “we have to be very clear on what we mean and not just have a provision that can be interpreted in a very wide latitude.  I say so because this is a restrictive provision.  It excludes and it disqualifies.  We should think very hard about this before we put things in the Constitution that will deprive the people of the right to a full choice as to who should be their local leaders.”  He added: “I just want to note that the ultimate objective in cleaning the election process is to make sure that an elective office is accessible to all, whether rich or poor.  If we are going to say that in order to democratize we will have to disqualify somebody, this does not sound right.”

But Nolledo argued for prohibition saying that “If we adopt a provision against political dynasties as defined by Congress, we widen the political base or the political opportunities on the part of poor but deserving candidates to run for public office with a better chance of winning.”

In the end the Foz proposal was rejected. 

But the idea refused to die and  Commissioner Nolledo tried to revive it during the deliberation on the Declaration of Principles. Nolledo entertained the hope that the Constitutional Commission might still approve a prohibition of political dynasties because, as he said, “It seems to me that the resolution asking for a provision in the Constitution is very popular outside but does not seem to enjoy the same popularity inside the Constitutional Commission.”  He was also faintly hoping that Congress would do what the Commission would not do.  Hence his impassioned plea:  “And so I plead with the Members of the Commission to please approve this provision. . . [W]e leave it to Congress to determine the circumstances under which political dynasty is prohibited.  The Commission will not determine hard and fast rules by which political dynasty may be condemned.  But I think this is a very progressive provision and, in consulting the people, the people will like this provision.  I hope the Commission will hear the plea of the people.”

The Commission responded to his anguished plea by approving what we now have: “Section 26. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.”

As can be seen, it is a limp-wristed provision.  It is like most of the provisions in the Declaration of Principles.  They are not strict constitutional provisions which bind; they merely served to shorten Commission debates.  At best they invite to Congress to accept an idea and to give it substance and form. 

In 2011 Senator Miriam Defensor Santiago filed Senate Bill 2649 on political dynasties. Her Explanatory Note pretty much summed up the arguments expressed by others for the passage of such a bill.  But the bill did not get anywhere.  Will a constitutional amendment by referendum and plebiscite, as suggested by the currently disheartened Chairman Brillantes, succeed in drafting a provision  that defines what political dynasty means? But amendment by initiative and referendum has had its own problems.

Now we are at it again looking for an end to political dynasties.  In 1986 Commissioner Ople was more optimistic.  “We see lots of evidences that, in fact, people disadvantaged by the accident of birth have indeed risen through their own efforts to become successful competitors of entrenched political dynasties in their provinces and cities.”  Now, however, as new dynasties are sprouting, there is not much room for optimism. 

The argument that the electorate should be left free to decide whom to choose is not without validity.  Partly for that reason, the meaning of political dynasties has been left for Congress to define.  But since Congress is the principal playground of political dynasties, the realization of the dream that the provision on political dynasties would widen access to political opportunities, will very probably be exhaustingly long in coming.  In the end, how people vote this year and in the election years to come will determine our future.

29 April 2013

MORE ON THE PARTY LIST SYSTEM

More on the New Party List Decision

Joaquin G. Bernas, S.J.

The controversial party-list cases have been remanded by the Supreme Court to the Comelec for review.  What the Comelec is required to do is to decide two related questions:  (1) Which organizations may participate in the party list system?  (2) Who are qualified to represent the party list organizations?

My column last week was an attempt to answer the first of the above questions.  Let me summarize.  (a) The inspiration of the system is social justice understood in both the economic and political sense.  (b) Participation in the system is not limited to the sectors enumerated by the Constitution or law, i.e., “labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law.”  (c) The enumerated sectors must be economically marginalized because that is what disables them from successfully engaging in the political struggle.  (d) The national and regional organizations need not be economically marginalized but they must be politically or ideologically disadvantaged or marginalized.  (e) Traditional political parties, if they wish to participate, must renounce participation in district elections.  (f) Segments of political parties, if they wish to participate, must be separately incorporated and be independent of their original parties.

In all of this, the Comelec must be guided by what the Supreme Court has said about the common denominator of participating organizations, namely: “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-traditional parties that could not compete in legislative district elections.” 

And that is the difficult part causing concern, because it involves the evaluation of difficult factual issues.  It is relatively easy to determine whether a sectoral party, e.g., of security guards, is economically marginalized and underrepresented and thus does not have much of a chance to win in a district election.  But if the security guards of the country band together they might win one of the seats in the 20% share of party list organizations.  The same would be the case of other sectoral parties or a combination of them.  But how does one measure the strength of non=traditional or regional parties?

The concern of some, however, is that non-traditional national or regional parties might guzzle up all of the 20% share of party-list organizations if the non-sectorals happen to have the support of moneyed individuals. Realistically, however, where are these non-traditional parties  who are so vote rich and so economically affluent as to be able to wipe out the economically marginalized and underrepresented?

The point is that the party list system was designed for groups that “cannot expect to win in legislative district elections  but can garner, in nationwide elections, at least the same number of votes that winning candidates can garner in legislative district elections.”  These are the disadvantaged who wish to win but cannot win representation through district elections.  They are the beneficiaries of social justice in the 1987 Constitution which favors those who have less in life either economically or politically. 

Pluralism is a characteristic of a democracy. “To require all national and regional parties under the party-list system to represent the ‘marginalized and underrepresented’ is to deprive and exclude, by judicial fiat, ideology-based and cause-oriented parties from the party-list system. How will these ideology-based and cause-oriented parties, who cannot win in legislative district elections, participate in the electoral process if they are excluded from the party-list system? To exclude them from the party- list system is to prevent them from joining the parliamentary struggle, leaving as their only option the armed struggle.”

Moreover, I repeat my question: Where are the wealthy national or regional organizations capable of burying the sectors under an avalanche of votes?  Will the Comelec be able to uncover them?

I now come to the qualifications of a party-list representative.  This is a relatively easier puzzle for the Comelec.  A party-list representative, of course, must have the qualifications of a district representative except for the residence requirement because he or she does not represent a district.  But one must be a bona fide member of the party or organization which one seeks to represent at least 90 days before the election. In the case of sectoral parties, to be a bona fide party-list representative one must either belong to the sector represented, or have a track record of advocacy for such sector.  In other words, to represent a party of farmers, one need not be a farmer but must have a track record of advocacy for such sector.

Ultimately, however, let us remember that the party-list system was meant to be an experiment.  Next time we review the Constitution, let us take a good hard look at the results of the experiment.

22 April 2013

THE NEW PARTY LIST DECISION

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