Barangay Association for National Advancement and Transparency (BANAT) vs COMELEC

January 2, 2012

586 SCRA 210 – Political Law – Constitutional Law – Legislative Department – Party List System; Proportional Representation; Proper Computation

Statutory Construction – Rule in Interpreting the Constitution – Intent of the Framers vs Intent of the People

NOTE: This case is consolidated with BAYAN Muna vs COMELEC (G.R. No. 179295).

In July and August 2007, the COMELEC, sitting as the National Board of Canvassers, made a partial proclamation of the winners in the party-list elections which was held in May 2007.

In proclaiming the winners and apportioning their seats, the COMELEC considered the following rules:

1. In the lower house, 80% shall comprise the seats for legislative districts, while the remaining 20% shall come from party-list representatives (Sec. 5, Article VI, 1987 Constitution);

2. Pursuant to Sec. 11b of R.A. 7941 or the Party-List System Act, a party-list which garners at least 2% of the total votes cast in the party-list elections shall be entitled to one seat;

3. If a party-list garners at least 4%, then it is entitled to 2 seats; if it garners at least 6%, then it is entitled to 3 seats – this is pursuant to the 2-4-6 rule or the Panganiban Formula from the case of Veterans Federation Party vs COMELEC.

4. In no way shall a party be given more than three seats even if if garners more than 6% of the votes cast for the party-list election (3 seat cap rule, same case).

The Barangay Association for National Advancement and Transparency (BANAT), a party-list candidate, questioned the proclamation as well as the formula being used. BANAT averred that the 2% threshold is invalid; Sec. 11 of RA 7941 is void because its provision that a party-list, to qualify for a congressional seat, must garner at least 2% of the votes cast in the party-list election, is not supported by the Constitution. Further, the 2% rule creates a mathematical impossibility to meet the 20% party-list seat prescribed by the Constitution.

BANAT also questions if the 20% rule is a mere ceiling or is it mandatory. If it is mandatory, then with the 2% qualifying vote, there would be instances when it would be impossible to fill the prescribed 20% share of party-lists in the lower house. BANAT also proposes a new computation (which shall be discussed in the “HELD” portion of this digest).

On the other hand, BAYAN MUNA, another party-list candidate, questions the validity of the 3 seat rule (Section 11a of RA 7941). It also raised the issue of whether or not major political parties are allowed to participate in the party-list elections or is the said elections limited to sectoral parties.


I. How is the 80-20 rule observed in apportioning the seats in the lower house?

II. Whether or not the 20% allocation for party-list representatives mandatory or a mere ceiling.

III. Whether or not the 2% threshold to qualify for a seat valid.

IV. How are party-list seats allocated?

V. Whether or not major political parties are allowed to participate in the party-list elections.

VI. Whether or not the 3 seat cap rule (3 Seat Limit Rule) is valid.


I. The 80-20 rule is observed in the following manner: for every 5 seats allotted for legislative districts, there shall be one seat allotted for a party-list representative. Originally, the 1987 Constitution provides that there shall be not more than 250 members of the lower house. Using the 80-20 rule, 200 of that will be from legislative districts, and 50 would be from party-list representatives. However, the Constitution also allowed Congress to fix the number of the membership of the lower house as in fact, it can create additional legislative districts as it may deem appropriate. As can be seen in the May 2007 elections, there were 220 district representatives, hence applying the 80-20 rule or the 5:1 ratio, there should be 55 seats allotted for party-list representatives.

How did the Supreme Court arrive at 55? This is the formula:

(Current Number of Legislative DistrictRepresentatives ÷ 0.80) x (0.20) = Number of Seats Available to Party-List Representatives


(220  ÷ 0.80) x (0.20) = 55

II. The 20% allocation for party-list representatives is merely a ceiling – meaning, the number of party-list representatives shall not exceed 20% of the total number of the members of the lower house. However, it is not mandatory that the 20% shall be filled.

III. No. Section 11b of RA 7941 is unconstitutional. There is no constitutional basis to allow that only party-lists which garnered 2% of the votes cast are qualified for a seat and those which garnered less than 2% are disqualified. Further, the 2% threshold creates a mathematical impossibility to attain the ideal 80-20 apportionment. The Supreme Court explained:

To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party list elections.  A party that has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the two percent threshold, this situation will repeat itself even if we increase the available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the maximum number of parties get two percent of the votes for every party, it is always impossible for the number of occupied party-list seats to exceed 50 seats as long as the two percent threshold is present.

It is therefore clear that the two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of “the broadest possible representation of party, sectoral or group interests in the House of Representatives.”

IV. Instead, the 2% rule should mean that if a party-list garners 2% of the votes cast, then it is guaranteed a seat, and not “qualified”. This allows those party-lists garnering less than 2% to also get a seat.

But how? The Supreme Court laid down the following rules:

1. The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections.

2. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one guaranteed seat each.

3. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated.

4. Each party, organization, or coalition shall be entitled to not more than three (3) seats.

In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as “additional seats” are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats.

In short, there shall be two rounds in determining the allocation of the seats. In the first round, all party-lists which garnered at least 2% of the votes cast (called the two-percenters) are given their one seat each. The total number of seats given to these two-percenters are then deducted from the total available seats for party-lists. In this case, 17 party-lists were able to garner 2% each. There are a total 55 seats available for party-lists hence, 55 minus 17 = 38 remaining seats. (Please refer to the full text of the case for the tabulation).

The number of remaining seats, in this case 38, shall be used in the second round, particularly, in determining, first, the additional seats for the two-percenters, and second, in determining seats for the party-lists that did not garner at least 2% of the votes cast, and in the process filling up the 20% allocation for party-list representatives.

How is this done?

Get the total percentage of votes garnered by the party and multiply it against the remaining number of seats. The product, which shall not be rounded off, will be the additional number of seats allotted for the party list – but the 3 seat limit rule shall still be observed.


In this case, the BUHAY party-list garnered the highest total vote of 1,169,234 which is 7.33% of the total votes cast for the party-list elections (15,950,900).

Applying the formula above: (Percentage of vote garnered) x (remaining seats) = number of additional seat

Hence, 7.33% x 38 = 2.79

Rounding off to the next higher number  is not allowed so 2.79 remains 2. BUHAY is a two-percenter which means it has a guaranteed one seat PLUS additional 2 seats or a total of 3 seats. Now if it so happens that BUHAY got 20% of the votes cast, it will still get 3 seats because the 3 seat limit rule prohibits it from having more than 3 seats.

Now after all the tw0-percenters were given their guaranteed and additional seats, and there are still unoccupied seats, those seats shall be distributed to the remaining party-lists and those higher in rank in the voting shall be prioritized until all the seats are occupied.

V. No. By a vote of 8-7, the Supreme Court continued to disallow major political parties (the likes of UNIDO, LABAN, etc) from participating in the party-list elections.

Although the ponencia (Justice Carpio) did point out that there is no prohibition either from the Constitution or from RA 7941 against major political parties from participating in the party-list elections as the word “party” was not qualified and that even the framers of the Constitution in their deliberations deliberately allowed major political parties to participate in the party-list elections provided that they establish a sectoral wing which represents the marginalized (indirect participation), Justice Puno, in his separate opinion, concurred by 7 other justices, explained that the will of the people defeats the will of the framers of the Constitution precisely because it is the people who ultimately ratified the Constitution – and the will of the people is that only the marginalized sections of the country shall participate in the party-list elections. Hence, major political parties cannot participate in the party-list elections, directly or indirectly.

VI. Yes, the 3 seat limit rule is valid. This is one way to ensure that no one party shall dominate the party-list system.


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