Thursday, April 23, 2009


The recent ruling of the Supreme Court in the consolidated cases of BANAT v. COMELEC, G.R. No. 179271 and BAYAN MUNA, et al., v. COMELEC, G.R. No. 179295 has elicited concerns about its constitutionality from some prominent legislators, bloggers, legal and political analysts, which reminded me of an old law school humor that when a lower court makes a mistake in interpreting the law it becomes reversible error, but when the Supreme Court makes the mistake it becomes law of the land.

This, I believe, is what happened in the above-cited cases which we will call Banat for brevity. Although the central ruling of the Court in Banat concerns the formula to be adopted in applying the votes for party-list representatives, which paved the way for an increase in their number from currently 22 to 55, it also created the consequent effect of increasing the members of the House of Representatives in a most questionable manner.

For ease of reference, Section 5, Article VI of the Constitution provides the following:

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (emphasis mine)

Notice in the foregoing that the number of members of the House of Representatives shall be 250. These 250 shall be composed of district representatives (those to be elected through congressional districts) and party-list representatives (those to be elected under the party-list system). Section 5(2), Article VI limits the number of party-list representatives to 20% of the total House membership, including those elected under the party-list system. In other words, going by the 250 limit set by section 5(1), there shall only be 50 party-list representatives.

But Banat changed this when the Supreme Court determined there should be 55 party-list seats based on the existing 220 congressional districts. As we know, of course, every congressional district is entitled to one congressman, and since there are 220 congressional districts there will be 220 corresponding congressmen or district representatives. The Supreme Court extrapolated the 55 by following the 20% limitation in section 5(2) in this wise: 220 + 55 = 275. 20% of 275 is 55. In other words, it arrived at this number by choosing one which when added to 220 would become 20% of the sum.

The Supreme Court used 220 as the known value, which is based on the number of existing congressional districts. The implication of this is that whenever new congressional districts are created – which, as observed by constitutional law expert Fr. Joaquin Bernas, S.J., are at present merely incidental to the creation of cities or provinces – the known value increases and more seats for party-list representatives are also created. This will result in an increase in the number of members of the House of Representatives. As clearly pointed out by Philippine Commentary blogger Dean Jorge Bacobo, “every time five new Congressional Districts are created because of population growth, we are now to assume that one new Lower House seat has been created as well and made available to the Party List System.”

What is questionable about this is that section 5(1) clearly limits the number of congressmen to 250, and only a law passed by Congress can change this number by the phrase “unless otherwise fixed by law.” While the creation of a new province could very well satisfy the requirement of a law, since in that case Congress will have to pass a law and such newly-created province, by constitutional mandate, automatically carries with it the creation of a new congressional district and, therefore, a corresponding increase in House membership, the same rule cannot extend to an increase in House membership through party-list representatives. An increase in House membership brought about by the creation of a new province clearly refers only to district representatives as opposed to party-list representatives, because it is based on the creation of a congressional district.

It would be a stretch of the imagination to say that the law fixing the number of House members can be a ruling of the Supreme Court, for while decisions of the Supreme Court form part of the law of the land they are strictly speaking merely interpretations of what the law is. Clearly, the law contemplated in section 5(1) is one that is passed by Congress in the performance of its legislative function.

To quote Sema v. COMELEC, G.R. Nos. 177597 & G.R. No. 178628 (July 16, 2008), which is incidentally also written by Justice Antonio Carpio, “[u]nder the present Constitution, as well as in past Constitutions, the power to increase the allowable membership in the House of Representatives, and to reapportion legislative districts, is vested exclusively in Congress. . .Section 5 (1), Article VI of the Constitution vests in Congress the power to increase, through a law, the allowable membership in the House of Representatives.” (emphasis mine)

What suddenly made the Supreme Court reverse itself and stretch the rule on increasing House membership via the creation of a legislative district to party-list representatives is perplexing. The following obiter dictum in the Sema case is interesting, especially so that the writer therein is the writer of the Court’s opinion in Banat:

Incidentally, in the present 14th Congress, there are 219 district representatives out of the maximum 250 seats in the House of Representatives. Since party-list members shall constitute 20 percent of total membership of the House, there should at least be 50 party-list seats available in every election in case 50 party-list candidates are proclaimed winners. This leaves only 200 seats for district representatives, much less than the 219 incumbent district representatives. Thus, there is a need now for Congress to increase by law the allowable membership of the House, even before Congress can create new provinces. (emphasis mine)

This observation of Justice Carpio clearly shows that only a law passed by Congress can increase House membership via party-list representatives. In fact, he was even urging Congress then that such law should precede the creation of any new province, obviously to comply with the constitutional requirement that party-list representatives shall constitute 20% of the total House membership.

So what precipitated this sudden departure from the clearly established rule that only a law passed by Congress can increase membership in the House of Representatives? Your guess is as good as mine.

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