SEPARATE CONCURRING OPINION

PUNO, C.J.:

I concur with the groundbreaking ponencia of my esteemed colleague, Mr. Justice Mariano C. del
Castillo. Nonetheless, I respectfully submit this separate opinion to underscore some points that I
deem significant.

FIRST. The assailed Resolutions of the Commission on Elections (COMELEC) run afoul of the
1
non-establishment clause of the Constitution. There was cypher effort on the part of the COMELEC
to couch its reasoning in legal – much less constitutional – terms, as it denied Ang Ladlad’s petition
for registration as a sectoral party principally on the ground that it "tolerates immorality which offends
2 3
religious (i.e., Christian and Muslim ) beliefs." To be sure, the COMELEC’s ruling is completely
antithetical to the fundamental rule that "[t]he public morality expressed in the law is necessarily
secular[,] for in our constitutional order, the religion clauses prohibit the state from establishing a
4 5
religion, including the morality it sanctions." As we explained in Estrada v. Escritor, the requirement
of an articulable and discernible secular purpose is meant to give flesh to the constitutional policy of
full religious freedom for all, viz.:

Religion also dictates "how we ought to live" for the nature of religion is not just to know, but often, to
act in accordance with man's "views of his relations to His Creator." But the Establishment Clause
puts a negative bar against establishment of this morality arising from one religion or the other, and
implies the affirmative "establishment" of a civil order for the resolution of public moral disputes. This
agreement on a secular mechanism is the price of ending the "war of all sects against all"; the
establishment of a secular public moral order is the social contract produced by religious truce.

Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of
Professional Responsibility for lawyers, or "public morals" in the Revised Penal Code, or "morals" in
the New Civil Code, or "moral character" in the Constitution, the distinction between public and
secular morality on the one hand, and religious morality, on the other, should be kept in mind. The
morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr.
Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil
public order but public moral disputes may be resolved only on grounds articulable in secular terms."
Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the
resulting policies and morals would require conformity to what some might regard as religious
programs or agenda. The non-believers would therefore be compelled to conform to a standard of
conduct buttressed by a religious belief, i.e., to a "compelled religion;" anathema to religious
freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or
endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that
would not support the policy. As a result, government will not provide full religious freedom for all its
citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens.
Expansive religious freedom therefore requires that government be neutral in matters of religion;
6
governmental reliance upon religious justification is inconsistent with this policy of neutrality.
(citations omitted and italics supplied)
Consequently, the assailed resolutions of the COMELEC are violative of the constitutional directive
7
that no religious test shall be required for the exercise of civil or political rights. Ang Ladlad’s right of
political participation was unduly infringed when the COMELEC, swayed by the private biases and
personal prejudices of its constituent members, arrogated unto itself the role of a religious court or
worse, a morality police.

8
The COMELEC attempts to disengage itself from this "excessive entanglement" with religion by
9
arguing that we "cannot ignore our strict religious upbringing, whether Christian or Muslim" since
the "moral precepts espoused by [these] religions have slipped into society and … are now publicly
10
accepted moral norms." However, as correctly observed by Mr. Justice del Castillo, the Philippines
has not seen fit to disparage homosexual conduct as to actually criminalize it. Indeed, even if the
11
State has legislated to this effect, the law is vulnerable to constitutional attack on privacy grounds.
These alleged "generally accepted public morals" have not, in reality, crossed over from the religious
to the secular sphere.

Some people may find homosexuality and bisexuality deviant, odious, and offensive. Nevertheless,
private discrimination, however unfounded, cannot be attributed or ascribed to the State. Mr. Justice
Kennedy, speaking for the United States (U.S.) Supreme Court in the landmark case of Lawrence v.
12
Texas, opined:

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for
centuries there have been powerful voices to condemn homosexual conduct as immoral. The
condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior,
and respect for the traditional family. For many persons these are not trivial concerns but profound
and deep convictions accepted as ethical and moral principles to which they aspire and which thus
determine the course of their lives. These considerations do not answer the question before us,
however. The issue is whether the majority may use the power of the State to enforce these views
on the whole society through operation of the … law. "Our obligation is to define the liberty of all, not
13
to mandate our own moral code."

14
SECOND. The COMELEC capitalized on Ang Ladlad’s definition of the term "sexual orientation,"
15
as well as its citation of the number of Filipino men who have sex with men, as basis for the
declaration that the party espouses and advocates sexual immorality. This position, however, would
deny homosexual and bisexual individuals a fundamental element of personal identity and a
legitimate exercise of personal liberty. For, the "ability to [independently] define one’s identity that is
central to any concept of liberty" cannot truly be exercised in a vacuum; we all depend on the
16
"emotional enrichment from close ties with others." As Mr. Justice Blackmun so eloquently said in
17
his stinging dissent in Bowers v. Hardwick (overturned by the United States Supreme Court
18
seventeen years later in Lawrence v. Texas ):

Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key
relationship of human existence, central to family life, community welfare, and the development of
 19
human personality[.]" The fact that individuals define themselves in a significant way through their
intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be
many "right" ways of conducting those relationships, and that much of the richness of a relationship
will come from the freedom an individual has to choose the form and nature of these intensely
20
personal bonds.

In a variety of circumstances we have recognized that a necessary corollary of giving individuals

freedom to choose how to conduct their lives is acceptance of the fact that different individuals will
make different choices. For example, in holding that the clearly important state interest in public
education should give way to a competing claim by the Amish to the effect that extended formal
schooling threatened their way of life, the Court declared: "There can be no assumption that today's
majority is ‘right’ and the Amish and others like them are ‘wrong.’ A way of life that is odd or even
erratic but interferes with no rights or interests of others is not to be condemned because it is
21
different." The Court claims that its decision today merely refuses to recognize a fundamental right
to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental
interest all individuals have in controlling the nature of their intimate associations with others. (italics
supplied)

22
It has been said that freedom extends beyond spatial bounds. Liberty presumes an autonomy of
23
self that includes freedom of thought, belief, expression, and certain intimate conduct. These
matters, involving the most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central to the liberty protected by the due process
24
clause. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of
25
the universe, and of the mystery of human life. Beliefs about these matters could not define the
26 27
attributes of personhood were they formed under compulsion of the State. Lawrence v. Texas is
again instructive:

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans
the claim the individual put forward, just as it would demean a married couple were it to be said
marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here
are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their
penalties and purposes, though, have more far-reaching consequences, touching upon the most
private human conduct, sexual behavior, and in the most private of places, the home. The statutes
do seek to control a personal relationship that, whether or not entitled to formal recognition in the
law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the
meaning of the relationship or to set its boundaries absent injury to a person or abuse of an
institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon
this relationship in the confines of their homes and their own private lives and still retain their dignity
as free persons. When sexuality finds overt expression in intimate conduct with another person, the
conduct can be but one element in a personal bond that is more enduring. The liberty protected by
the Constitution allows homosexual persons the right to make this choice. (italics supplied)
THIRD. The ponencia of Mr. Justice del Castillo refused to characterize homosexuals and bisexuals
as a class in themselves for purposes of the equal protection clause. Accordingly, it struck down the
assailed Resolutions using the most liberal basis of judicial scrutiny, the rational basis test, according
to which government need only show that the challenged classification is rationally related to serving
a legitimate state interest.

I humbly submit, however, that a classification based on gender or sexual orientation is a

quasi-suspect classification, as to trigger a heightened level of review.

Preliminarily, in our jurisdiction, the standard and analysis of equal protection challenges in the main
have followed the rational basis test, coupled with a deferential attitude to legislative classifications
and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of
28
the Constitution. However, Central Bank Employees Association, Inc. v. Bangko Sentral ng
29
Pilipinas, carved out an exception to this general rule, such that prejudice to persons accorded
special protection by the Constitution requires stricter judicial scrutiny than mere rationality, viz.:

Congress retains its wide discretion in providing for a valid classification, and its policies should be
accorded recognition and respect by the courts of justice except when they run afoul of the
Constitution. The deference stops where the classification violates a fundamental right, or prejudices
persons accorded special protection by the Constitution. When these violations arise, this Court
must discharge its primary role as the vanguard of constitutional guaranties, and require a stricter
and more exacting adherence to constitutional limitations. Rational basis should not suffice.
(citations omitted and italics supplied)

Considering thus that labor enjoys such special and protected status under our fundamental law, the
Court ruled in favor of the Central Bank Employees Association, Inc. in this wise:

While R.A. No. 7653 started as a valid measure well within the legislature's power, we hold that the
enactment of subsequent laws exempting all rank-and-file employees of other GFIs leeched all
validity out of the challenged proviso.

xxxx

According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also violative of
the equal protection clause because after it was enacted, the charters of the GSIS, LBP, DBP and
SSS were also amended, but the personnel of the latter GFIs were all exempted from the coverage
of the SSL. Thus, within the class of rank-and-file personnel of GFIs, the BSP rank-and-file are also
discriminated upon.

Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress also
undertook the amendment of the charters of the GSIS, LBP, DBP and SSS, and three other GFIs,
from 1995 to 2004, viz.:

xxxx

It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs share
this common proviso: a blanket exemption of all their employees from the coverage of the SSL,
expressly or impliedly...
 xxxx

The abovementioned subsequent enactments, however, constitute significant changes in

circumstance that considerably alter the reasonability of the continued operation of the last proviso
of Section 15(c), Article II of Republic Act No. 7653, thereby exposing the proviso to more serious
scrutiny. This time, the scrutiny relates to the constitutionality of the classification — albeit made
indirectly as a consequence of the passage of eight other laws — between the rank-and-file of the
BSP and the seven other GFIs. The classification must not only be reasonable, but must also apply
equally to all members of the class. The proviso may be fair on its face and impartial in appearance
but it cannot be grossly discriminatory in its operation, so as practically to make unjust distinctions
between persons who are without differences.

Stated differently, the second level of inquiry deals with the following questions: Given that Congress
chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the exclusion of the
rank-and-file employees of the BSP stand constitutional scrutiny in the light of the fact that Congress
did not exclude the rank-and-file employees of the other GFIs? Is Congress' power to classify so
unbridled as to sanction unequal and discriminatory treatment, simply because the inequity
manifested itself, not instantly through a single overt act, but gradually and progressively, through
seven separate acts of Congress? Is the right to equal protection of the law bounded in time and
space that: (a) the right can only be invoked against a classification made directly and deliberately,
as opposed to a discrimination that arises indirectly, or as a consequence of several other acts; and
(b) is the legal analysis confined to determining the validity within the parameters of the statute or
ordinance (where the inclusion or exclusion is articulated), thereby proscribing any evaluation
vis-à-vis the grouping, or the lack thereof, among several similar enactments made over a period of
time?

In this second level of scrutiny, the inequality of treatment cannot be justified on the mere assertion
that each exemption (granted to the seven other GFIs) rests "on a policy determination by the
legislature." All legislative enactments necessarily rest on a policy determination — even those that
have been declared to contravene the Constitution. Verily, if this could serve as a magic wand to
sustain the validity of a statute, then no due process and equal protection challenges would ever
prosper. There is nothing inherently sacrosanct in a policy determination made by Congress or by
the Executive; it cannot run riot and overrun the ramparts of protection of the Constitution.

xxxx

In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no
characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the exemption
which BSP rank-and-file employees were denied (not to mention the anomaly of the SEC getting
one). The distinction made by the law is not only superficial, but also arbitrary. It is not based on
substantial distinctions that make real differences between the BSP rank-and-file and the seven
other GFIs.

xxxx

The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs
definitely bears the unmistakable badge of invidious discrimination — no one can, with candor and
fairness, deny the discriminatory character of the subsequent blanket and total exemption of the
seven other GFIs from the SSL when such was withheld from the BSP. Alikes are being treated as
unalikes without any rational basis.

xxxx

Thus, the two-tier analysis made in the case at bar of the challenged provision, and its conclusion of
unconstitutionality by subsequent operation, are in cadence and in consonance with the progressive
trend of other jurisdictions and in international law. There should be no hesitation in using the equal
protection clause as a major cutting edge to eliminate every conceivable irrational discrimination in
our society. Indeed, the social justice imperatives in the Constitution, coupled with the special status
and protection afforded to labor, compel this approach.

Apropos the special protection afforded to labor under our Constitution and international law, we held
in International School Alliance of Educators v. Quisumbing:

That public policy abhors inequality and discrimination is beyond contention. Our Constitution and
laws reflect the policy against these evils. The Constitution in the Article on Social Justice and
Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect
and enhance the right of all people to human dignity, reduce social, economic, and political
inequalities." The very broad Article 19 of the Civil Code requires every person, "in the exercise of
his rights and in the performance of his duties, [to] act with justice, give everyone his due, and
observe honesty and good faith."

International law, which springs from general principles of law, likewise proscribes discrimination.
General principles of law include principles of equity, i.e., the general principles of fairness and
justice, based on the test of what is reasonable. The Universal Declaration of Human Rights, the
International Covenant on Economic, Social, and Cultural Rights, the International Convention on
the Elimination of All Forms of Racial Discrimination, the Convention against Discrimination in
Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and
Occupation — all embody the general principle against discrimination, the very antithesis of fairness
and justice. The Philippines, through its Constitution, has incorporated this principle as part of its
national laws.

In the workplace, where the relations between capital and labor are often skewed in favor of capital,
inequality and discrimination by the employer are all the more reprehensible.

The Constitution specifically provides that labor is entitled to "humane conditions of work." These
conditions are not restricted to the physical workplace — the factory, the office or the field — but
include as well the manner by which employers treat their employees.

The Constitution also directs the State to promote "equality of employment opportunities for all."
Similarly, the Labor Code provides that the State shall "ensure equal work opportunities regardless
of sex, race or creed." It would be an affront to both the spirit and letter of these provisions if the
State, in spite of its primordial obligation to promote and ensure equal employment opportunities,
closes its eyes to unequal and discriminatory terms and conditions of employment.

xxx xxx xxx

Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7 thereof,
provides:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just
and [favorable] conditions of work, which ensure, in particular:

a. Remuneration which provides all workers, as a minimum, with:

i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in
particular women being guaranteed conditions of work not inferior to those enjoyed by men, with
equal pay for equal work;

xxx xxx xxx

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism
of "equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort
and responsibility, under similar conditions, should be paid similar salaries.

xxxx

Under most circumstances, the Court will exercise judicial restraint in deciding questions of
constitutionality, recognizing the broad discretion given to Congress in exercising its legislative
power. Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion
would be given deferential treatment.

But if the challenge to the statute is premised on the denial of a fundamental right, or the
perpetuation of prejudice against persons favored by the Constitution with special protection, judicial
scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this
Court's solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines.
This is true whether the actor committing the unconstitutional act is a private person or the
government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of
the character or nature of the actor.

In the case at bar, the challenged proviso operates on the basis of the salary grade or
officer-employee status. It is akin to a distinction based on economic class and status, with the
higher grades as recipients of a benefit specifically withheld from the lower grades. Officers of the
BSP now receive higher compensation packages that are competitive with the industry, while the
poorer, low-salaried employees are limited to the rates prescribed by the SSL. The implications are
quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL while
employees higher in rank — possessing higher and better education and opportunities for career
advancement — are given higher compensation packages to entice them to stay. Considering that
majority, if not all, the rank-and-file employees consist of people whose status and rank in life are
less and limited, especially in terms of job marketability, it is they — and not the officers — who have
the real economic and financial need for the adjustment. This is in accord with the policy of the
Constitution "to free the people from poverty, provide adequate social services, extend to them a
decent standard of living, and improve the quality of life for all." Any act of Congress that runs
counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass
muster. (citations omitted and italics supplied)
Corollarily, American case law provides that a state action questioned on equal protection grounds is
subject to one of three levels of judicial scrutiny. The level of review, on a sliding scale basis, varies
30
with the type of classification utilized and the nature of the right affected.

If a legislative classification disadvantages a "suspect class" or impinges upon the exercise of a

"fundamental right," then the courts will employ strict scrutiny and the statute must fall unless the
government can demonstrate that the classification has been precisely tailored to serve a compelling
31
governmental interest. Over the years, the United States Supreme Court has determined that
suspect classes for equal protection purposes include classifications based on race, religion,
32
alienage, national origin, and ancestry. The underlying rationale of this theory is that where
legislation affects discrete and insular minorities, the presumption of constitutionality fades because
33
traditional political processes may have broken down. In such a case, the State bears a heavy
burden of justification, and the government action will be closely scrutinized in light of its asserted
34
purpose.

On the other hand, if the classification, while not facially invidious, nonetheless gives rise to recurring
constitutional difficulties, or if a classification disadvantages a "quasi-suspect class," it will be treated
35
under intermediate or heightened review. To survive intermediate scrutiny, the law must not only
further an important governmental interest and be substantially related to that interest, but the
36
justification for the classification must be genuine and must not depend on broad generalizations.
Noteworthy, and of special interest to us in this case, quasi-suspect classes include classifications
37
based on gender or illegitimacy.

If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for mere
38
rationality. This is a relatively relaxed standard reflecting the Court’s awareness that the drawing of
39
lines which creates distinctions is peculiarly a legislative task and an unavoidable one. The
presumption is in favor of the classification, of the reasonableness and fairness of state action, and
40
of legitimate grounds of distinction, if any such grounds exist, on which the State acted.

Instead of adopting a rigid formula to determine whether certain legislative classifications warrant
more demanding constitutional analysis, the United States Supreme Court has looked to four
41
factors, thus:

42
(1) The history of invidious discrimination against the class burdened by the legislation;

(2) Whether the characteristics that distinguish the class indicate a typical class member's ability to
43
contribute to society;

44
(3) Whether the distinguishing characteristic is "immutable" or beyond the class members' control;
and
 45
(4) The political power of the subject class.

These factors, it must be emphasized, are not constitutive essential elements of a suspect or
46
quasi-suspect class, as to individually demand a certain weight. The U.S. Supreme Court has
applied the four factors in a flexible manner; it has neither required, nor even discussed, every factor
47
in every case. Indeed, no single talisman can define those groups likely to be the target of
classifications offensive to the equal protection clause and therefore warranting heightened or strict
48
scrutiny; experience, not abstract logic, must be the primary guide.

In any event, the first two factors – history of intentional discrimination and relationship of classifying
characteristic to a person's ability to contribute – have always been present when heightened
49
scrutiny has been applied. They have been critical to the analysis and could be considered as
50
prerequisites to concluding a group is a suspect or quasi-suspect class. However, the last two
factors – immutability of the characteristic and political powerlessness of the group – are considered
simply to supplement the analysis as a means to discern whether a need for heightened scrutiny
51
exists.

Guided by this framework, and considering further that classifications based on sex or gender –
albeit on a male/female, man/woman basis – have been previously held to trigger heightened
scrutiny, I respectfully submit that classification on the basis of sexual orientation (i.e., homosexuality
and/or bisexuality) is a quasi-suspect classification that prompts intermediate review.

The first consideration is whether homosexuals have suffered a history of purposeful unequal
52
treatment because of their sexual orientation. One cannot, in good faith, dispute that gay and
lesbian persons historically have been, and continue to be, the target of purposeful and pernicious
53
discrimination due solely to their sexual orientation. Paragraphs 6 and 7 of Ang Ladlad’s Petition
for Registration for party-list accreditation in fact state:

6. There have been documented cases of discrimination and violence perpetuated against the LGBT
Community, among which are:

(a) Effeminate or gay youths being beaten up by their parents and/or guardians to make them
conform to standard gender norms of behavior;

(b) Fathers and/or guardians who allow their daughters who are butch lesbians to be raped[, so as]
to "cure" them into becoming straight women;

(c) Effeminate gays and butch lesbians are kicked out of school, NGOs, and choirs because of their
identity;

(d) Effeminate youths and masculine young women are refused admission from (sic) certain schools,
are suspended or are automatically put on probation;

(e) Denial of jobs, promotions, trainings and other work benefits once one’s sexual orientation and
gender identity is (sic) revealed;
(f) Consensual partnerships or relationships by gays and lesbians who are already of age, are
broken up by their parents or guardians using the [A]nti-kidnapping [L]aw;

(g) Pray-overs, exorcisms, and other religious cures are performed on gays and lesbians to "reform"
them;

(h) Young gays and lesbians are forcibly subjected to psychiatric counseling and therapy to cure
them[,] despite the de-listing (sic) of homosexuality and lesbianism as a mental disorder by the
American Psychiatric Association;

(i) Transgenders, or individuals who were born mail but who self-identity as women and dress as
such, are denied entry or services in certain restaurants and establishments; and

(j) Several murders from the years 2003-3006 were committed against gay men, but were not
acknowledged by police as hate crimes or violent acts of bigotry.

7. In the recent May 2009 US asylum case of Philip Belarmino, he testified that as a young gay
person in the Philippines, he was subjected to a variety of sexual abuse and violence, including
repeated rapes[,] which he could not report to [the] police [or speak of] to his own parents.

Accordingly, this history of discrimination suggests that any legislative burden placed on lesbian and
gay people as a class is "more likely than others to reflect deep-seated prejudice rather than
54
legislative rationality in pursuit of some legitimate objective."

A second relevant consideration is whether the character-in-issue is related to the person’s ability to
55
contribute to society. Heightened scrutiny is applied when the classification bears no relationship
to this ability; the existence of this factor indicates the classification is likely based on irrelevant
56
stereotypes and prejudice. Insofar as sexual orientation is concerned, it is gainful to repair to
57
Kerrigan v. Commissioner of Public Health, viz.:

The defendants also concede that sexual orientation bears no relation to a person's ability to
participate in or contribute to society, a fact that many courts have acknowledged, as well. x x x If
homosexuals were afflicted with some sort of impediment to their ability to perform and to contribute
to society, the entire phenomenon of ‘staying in the [c]loset’ and of ‘coming out’ would not exist; their
impediment would betray their status. x x x In this critical respect, gay persons stand in stark
contrast to other groups that have been denied suspect or quasi-suspect class recognition, despite a
history of discrimination, because the distinguishing characteristics of those groups adversely affect
their ability or capacity to perform certain functions or to discharge certain responsibilities in
58
society.

Unlike the characteristics unique to those groups, however, "homosexuality bears no relation at all to
59
[an] individual's ability to contribute fully to society." Indeed, because an individual's homosexual
orientation "implies no impairment in judgment, stability, reliability or general social or vocational
60
capabilities"; the observation of the United States Supreme Court that race, alienage and national
origin -all suspect classes entitled to the highest level of constitutional protection- "are so seldom
relevant to the achievement of any legitimate state interest that laws grounded in such
61
considerations are deemed to reflect prejudice and antipathy" is no less applicable to gay persons.
(italics supplied)

Clearly, homosexual orientation is no more relevant to a person's ability to perform and contribute to
62
society than is heterosexual orientation.

A third factor that courts have considered in determining whether the members of a class are entitled
to heightened protection for equal protection purposes is whether the attribute or characteristic that
63
distinguishes them is immutable or otherwise beyond their control. Of course, the characteristic
that distinguishes gay persons from others and qualifies them for recognition as a distinct and
discrete group is the characteristic that historically has resulted in their social and legal ostracism,
64
namely, their attraction to persons of the same sex.

Immutability is a factor in determining the appropriate level of scrutiny because the inability of a
person to change a characteristic that is used to justify different treatment makes the discrimination
violative of the rather "‘basic concept of our system that legal burdens should bear some relationship
65
to individual responsibility.’" However, the constitutional relevance of the immutability factor is not
reserved to those instances in which the trait defining the burdened class is absolutely impossible to
66
change. That is, the immutability prong of the suspectness inquiry surely is satisfied when the
identifying trait is "so central to a person's identity that it would be abhorrent for government to
67
penalize a person for refusing to change [it]."

Prescinding from these premises, it is not appropriate to require a person to repudiate or change his
or her sexual orientation in order to avoid discriminatory treatment, because a person's sexual
68
orientation is so integral an aspect of one's identity. Consequently, because sexual orientation
"may be altered [if at all] only at the expense of significant damage to the individual’s sense of self,"
classifications based thereon "are no less entitled to consideration as a suspect or quasi-suspect
69
class than any other group that has been deemed to exhibit an immutable characteristic." Stated
differently, sexual orientation is not the type of human trait that allows courts to relax their standard
70
of review because the barrier is temporary or susceptible to self-help.

The final factor that bears consideration is whether the group is "a minority or politically
71
powerless." However, the political powerlessness factor of the level-of-scrutiny inquiry does not
72
require a showing of absolute political powerlessness. Rather, the touchstone of the analysis
should be "whether the group lacks sufficient political strength to bring a prompt end to the prejudice
73
and discrimination through traditional political means."

Applying this standard, it would not be difficult to conclude that gay persons are entitled to
74
heightened constitutional protection despite some recent political progress. The discrimination that
they have suffered has been so pervasive and severe – even though their sexual orientation has no
bearing at all on their ability to contribute to or perform in society – that it is highly unlikely that
 75
legislative enactments alone will suffice to eliminate that discrimination. Furthermore, insofar as
the LGBT community plays a role in the political process, it is apparent that their numbers reflect
76
their status as a small and insular minority.

It is therefore respectfully submitted that any state action singling lesbians, gays, bisexuals and
trans-genders out for disparate treatment is subject to heightened judicial scrutiny to ensure that it is
77
not the product of historical prejudice and stereotyping.

In this case, the assailed Resolutions of the COMELEC unmistakably fail the intermediate level of
review. Regrettably, they betray no more than bigotry and intolerance; they raise the inevitable
78
inference that the disadvantage imposed is born of animosity toward the class of persons affected
(that is, lesbian, gay, bisexual and trans-gendered individuals). In our constitutional system,
79
status-based classification undertaken for its own sake cannot survive.

FOURTH. It has been suggested that the LGBT community cannot participate in the party-list system
because it is not a "marginalized and underrepresented sector" enumerated either in the
80 81
Constitution or Republic Act No. (RA) 7941. However, this position is belied by our ruling in Ang
82
Bagong Bayani-OFW Labor Party v. COMELEC, where we clearly held that the enumeration of
marginalized and underrepresented sectors in RA 7941 is not exclusive.

I likewise see no logical or factual obstacle to classifying the members of the LGBT community as
marginalized and underrepresented, considering their long history (and indeed, ongoing narrative) of
persecution, discrimination, and pathos. In my humble view, marginalization for purposes of party-list
representation encompasses social marginalization as well. To hold otherwise is tantamount to
trivializing socially marginalized groups as "mere passive recipients of the State’s benevolence" and
denying them the right to "participate directly [in the mainstream of representative democracy] in the
83
enactment of laws designed to benefit them." The party-list system could not have been
conceptualized to perpetuate this injustice.

Accordingly, I vote to grant the petition.

REYNATO S. PUNO​
Chief Justice

Footnotes

1
Section 5, Article III of the 1987 Constitution states: "No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political rights."
2
The November 11, 2009 Resolution of the COMELEC cited the following passage from the Bible to
support its holding: "For this cause God gave them up into vile affections: for even their women did
change the natural use into that which is against nature: And likewise also the men, leaving the
natural use of the woman, burned in their lust one toward another; men with men working that which
is unseemly, and receiving in themselves that recompense of their error which was meet." (Romans
1:26-27)

3
The November 11, 2009 Resolution of the COMELEC cited the following passages from the Koran
to support its holding:

"For ye practice your lusts on men in preference to women: ye are indeed a people transgressing
beyond bounds." (7:81)
"And we rained down on them a shower (of brimstone): Then see what was the end of those who
indulged in sin and crime!" (7.84)
"He said: "O my Lord! Help Thou me against people who do mischief!" (29:30)

4
Estrada v. Escritor, 455 Phil. 411 (2003).

5
Id.

6
Id.

7
Section 5, Article III of the 1987 Constitution.

8
Lemon v. Kurtzman, 403 U.S. 602 (1971).

9
COMELEC’s Comment, p. 13.

10
Id.

11
See Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472.

12
Id.

13
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850, 112 S.Ct. 2791, 120
L.Ed.2d 674 (1992).

14
Ang Ladlad defined "sexual orientation" as a person’s capacity for profound emotional, affectional
and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of
the same gender, or more than one gender." (italics supplied)

15
Paragraph 24 of Ang Ladlad’s Petition for Registration stated, in relevant part: "In 2007, Men
Having Sex with Men or MSMs in the Philippines were estimated at 670,000."
16
Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, as cited in the Dissenting
Opinion of Mr. Justice Blackmun in Bowers v. Hardwick, infra.

17
478 U.S. 186, 106 S.Ct. 2841.

18
Supra note 11.

19
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S.Ct. 2628, 2638, 37 L.Ed.2d 446 (1973); See
also Carey v. Population Services International, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d
675 (1977).

20
See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 637 (1980); cf. Eisenstadt v.
Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972); Roe v. Wade, 410 U.S., at
153, 93 S.Ct., at 726.

21
Wisconsin v. Yoder, 406 U.S. 205, 223-224, 92 S.Ct. 1526, 1537, 32 L.Ed.2d 15 (1972).

22
Lawrence v. Texas, supra note 11.

23
Id.

24
Planned Parenthood of Southeastern Pa. v. Casey, supra note 13.

25
Id.

26
Id.

27
Supra note 11.

28
Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531, 583
(2004).

29
Id.

30
Pace Membership Warehouse, Div. of K-Mart Corp. v. Axelson, 938 P.2d 504.

31
16B Am. Jur. 2d Constitutional Law § 857, citing Clark v. Jeter, 486 U.S. 456, 108 S. Ct. 1910,
100 L. Ed. 2d 465 (1988); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct.
948, 74 L. Ed. 2d 794, 9 Ed. Law Rep. 23 (1983); Christie v. Coors Transp. Co., 933 P.2d 1330
(Colo. 1997); Baker v. City of Ottumwa, 560 N.W.2d 578 (Iowa 1997); Zempel v. Uninsured
Employers' Fund, 282 Mont. 424, 938 P.2d 658 (1997); Hovland v. City of Grand Forks, 1997 ND 95,
563 N.W.2d 384 (N.D. 1997).
32
Murray v. State of Louisiana, 2010 WL 334537. See Burlington N. R.R. Co. v. Ford, 112 S.Ct.
2184, 2186 (1992) (holding classification based on religion is a suspect classification); Graham v.
Richardson, 91 S.Ct. 1848, 1852 (1971) (holding classification based on alienage is a suspect
classification); Loving v. Virginia, 87 S.Ct. 1817, 1823 (1967) (holding classification based on race is
a suspect classification); Oyama v. California, 68 S.Ct. 269, 274-74 (1948) (holding classification
based on national origin is a suspect classification); Hirabayashi v. U.S., 63 S.Ct. 1375 (1943)
(holding classification based on ancestry is a suspect classification).

33
Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974).

34
Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); Hunter v. Erickson, 393
U.S. 385, 89 S. Ct. 557, 21 L. Ed. 2d 616 (1969); McLaughlin v. State of Fla., 379 U.S. 184, 85 S. Ct.
283, 13 L. Ed. 2d 222 (1964).

35
Supra note 31.

36
United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 2275, 135 L.Ed.2d 735, 751 (1996).

37
Murray v. State of Louisiana, supra note 32. See Mississippi University for Women v. Hogan, 102
S.Ct. 3331, 3336 (1982) (holding classifications based on gender calls for heightened standard of
review); Trimble v. Gordon, 97 S.Ct. 1459, 1463 (1977) (holding illegitimacy is a quasi-suspect
classification).

38
Supra note 31.

39
Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S. Ct. 1898, 52 L. Ed. 2d 513
(1977); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520
(1976); Costner v. U.S., 720 F.2d 539 (8th Cir. 1983).

40
Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996); Cornerstone Christian Schools v. University
Interscholastic League, 563 F.3d 127, 243 Ed. Law Rep. 609 (5th Cir. 2009); Independent Charities
of America, Inc. v. State of Minn., 82 F.3d 791 (8th Cir. 1996); Bah v. City of Atlanta, 103 F.3d 964
(11th Cir. 1997).

41
Varnum v. Brien, 763 N.W.2d 862 (2009) citing the following passage from Plyler v. Doe, 457 U.S.
202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786, 799 (1982):

Several formulations might explain our treatment of certain classifications as "suspect." Some
classifications are more likely than others to reflect deep-seated prejudice rather than legislative
rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily
recognized as incompatible with the constitutional understanding that each person is to be judged
individually and is entitled to equal justice under the law. Classifications treated as suspect tend to
be irrelevant to any proper legislative goal. Finally, certain groups, indeed largely the same groups,
have historically been "relegated to such a position of political powerlessness as to command
extraordinary protection from the majoritarian political process." The experience of our Nation has
shown that prejudice may manifest itself in the treatment of some groups. Our response to that
experience is reflected in the Equal Protection Clause of the Fourteenth Amendment. Legislation
imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control
suggests the kind of "class or caste" treatment that the Fourteenth Amendment was designed to
abolish.

42
See United States v. Virginia, 518 U.S. at 531-32, 116 S.Ct. at 2274-75, 135 L.Ed.2d at 750
(observing ‘long and unfortunate history of sex discrimination" (quoting Frontiero v. Richardson, 411
U.S. 677, 684, 93 S.Ct. 1764, 1769, 36 L.Ed.2d 583, 590 (1973) (Brennan, J., plurality opinion)));
Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527, 533 (1986) (noting
subject class had "not been subjected to discrimination"); City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 at 443, 105 S.Ct. at 3256, 87 L.Ed.2d at 332 (mentally retarded not victims of
"continuing antipathy or prejudice"); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562,
2567, 49 L.Ed.2d 520, 525 (1976) (considering "history of purposeful unequal treatment" (quoting
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16, 40
(1973))).

43
See Cleburne Living Ctr., 473 U.S. at 440, 105 S.Ct. at 3254, 87 L.Ed.2d at 320 (certain
classifications merely "reflect prejudice and antipathy"); Miss. Univ. for Women v. Hogan, 458 U.S.
718, 725, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090, 1098 (1982) ("Care must be taken in ascertain-ing
whether the statutory objective itself reflects archaic and stereotypic notions."); Murgia, 427 U.S. at
313, 96 S.Ct. at 2566, 49 L.Ed.2d at 525 (considering whether aged have "been subjected to unique
disabilities on the basis of stereotyped characteristics not truly indicative of their abilities"); Frontiero,
411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d at 591 (Brennan, J., plurality opinion) ("[T]he sex
characteristic frequently bears no relation to ability to perform or contribute to society.").

44
Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close relatives "do not exhibit
obvious, immutable, or distinguishing characteristics that define them as a discrete group");
Cleburne Living Ctr., 473 U.S. at 442, 105 S.Ct. at 3255-56, 87 L.Ed.2d at 322 (mentally retarded
people are different from other classes of people, "immutably so, in relevant respects"); Plyler, 457
U.S. at 220, 102 S.Ct. at 2396, 72 L.Ed.2d at 801 (children of illegal aliens, unlike their parents, have
"legal characteristic[s] over which children can have little control"); Mathews v. Lucas, 427 U.S. 495,
505, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651, 660 (1976) (status of illegitimacy "is, like race or national
origin, a characteristic determined by causes not within the control of the illegitimate individual");
Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d at 591 (Brennan, J., plurality opinion)
("[S]ex, like race and national origin, is an immutable characteristic determined solely by the accident
of birth....").

45
Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close relatives of primary household
are "not a minority or politically powerless"); Cleburne Living Ctr., 473 U.S. at 445, 105 S.Ct. at 3257,
87 L.Ed.2d at 324 (refusing to find "that the mentally retarded are politically powerless"); San Antonio
Indep. Sch. Dist., 411 U.S. at 28, 93 S.Ct. at 1294, 36 L.Ed.2d at 40 (considering whether minority
and poor school children were "relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process").
46
Varnum v. Brien, supra note 41; Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957
A.2d 407 (2008).

47
Varnum v. Brien, id., citing, among others, Palmore v. Sidoti, 466 U.S. 429, 433-34, 104 S.Ct.
1879, 1882-83, 80 L.Ed.2d 421, 426 (1984) (foregoing analysis of political power); Nyquist v.
Mauclet, 432 U.S. 1, 9 n. 11, 97 S.Ct. 2120, 2125 n. 11, 53 L.Ed.2d 63, 71 n. 11 (1977) (jettisoning
immutability requirement and scrutinizing classification of resident aliens closely despite aliens'
voluntary status as residents); Mathews, 427 U.S. at 505-06, 96 S.Ct. at 2762-63, 49 L.Ed.2d at
660-61 (according heightened scrutiny to classifications based on illegitimacy despite mutability and
political power of illegitimates); Murgia, 427 U.S. at 313-14, 96 S.Ct. at 2567, 49 L.Ed.2d at 525
(omitting any reference to immutability); San Antonio Indep. Sch. Dist., 411 U.S. at 25, 93 S.Ct. at
1292, 36 L.Ed.2d at 38 (omitting any reference to immutability); Frontiero, 411 U.S. at 685-88, 93
S.Ct. at 1770-71, 36 L.Ed.2d at 591-92 (Brennan, J., plurality opinion) (scrutinizing classification
based on gender closely despite political power of women); Graham v. Richardson, 403 U.S. 365,
371-72, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534, 541-42 (1971) (foregoing analysis of immutability);
see also Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (referring to whether members
of the class "exhibit obvious, immutable, or distinguishing characteristics that define them as a
discrete group").

48
Concurring and Dissenting Opinion of Mr. Justice Thurgood Marshall in Cleburne v. Cleburne
Living Center, Inc., infra.

49
Varnum v. Brien, supra note 41.

50
Id.

51
Id.

52
Id.; Kerrigan v. Commissioner of Public Health, supra note 46.

53
Kerrigan v. Commissioner of Public Health, id.

54
Varnum v. Brien, supra note 41.

55
Id.

56
Id.

57
Supra note 46.

58
See, e.g., Cleburne v. Cleburne Living Center, Inc., 473 U.S. at 442, 105 S.Ct. 3249 (for purposes
of federal constitution, mental retardation is not quasi-suspect classification because, inter alia, "it is
undeniable ... that those who are mentally retarded have a reduced ability to cope with and function
in the everyday world"); Massachusetts Board of Retirement v. Murgia, 427 U.S. at 315, 96 S.Ct.
2562 (age is not suspect classification because, inter alia, "physical ability generally declines with
age"); see also Gregory v. Ashcroft, 501 U.S. 452, 472, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) ("[i]t
is an unfortunate fact of life that physical [capacity] and mental capacity sometimes diminish with
age").

59
L. Tribe, American Constitutional Law (2d Ed. 1988) § 16-33, p. 1616.

60
Jantz v. Muci, 759 F.Supp. 1543, 1548 (D.Kan.1991) (quoting 1985 Resolution of the American
Psychological Association), 976 F.2d 623 (10th Cir.1992), cert. denied, 508 U.S. 952, 113 S.Ct.
2445, 124 L.Ed.2d 662 (1993).

61
Cleburne v. Cleburne Living Center, Inc., 473 U.S. at 440, 105 S.Ct. 3249.

62
Kerrigan v. Commissioner of Public Health, supra note 46.

63
Id.

64
Id.

65
Varnum v. Brien, supra note 41.

66
Id.

67
Id. citing Kerrigan v. Commissioner of Public Health, supra note 46.

68
Id. citing In re Marriage Cases, 183 P.3d at 442.

69
Id. citing Kerrigan v. Commissioner of Public Health, supra note 46.

70
Id.

71
Kerrigan v. Commissioner of Public Health, supra note 46.

72
Varnum v. Brien, supra note 41, citing Kerrigan v. Commissioner of Public Health, supra note 46.

73
Id.

74
Kerrigan v. Commissioner of Public Health, supra note 46.

75
Id.
76
Id.

77
Id.

78
Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620.

79
Id.

80
Section 5(2), Article VI of the 1987 Constitution states, in relevant part:

SECTION 5. x x x x

(2) The party-list representatives 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. (italics supplied)

81
On the other hand, Section 5 of RA 7941 provides:

SECTION 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, attaching thereto its constitution, by-laws, platform or
program of government, list of officers, coalition agreement and other relevant information as the
COMELEC may require: Provided, That the sectors shall include labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals. (italics supplied)

82
G.R. No. 147589, June 26, 2001, 359 SCRA 698.

83
Id.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CORONA, J.:
Stripped of the complicated and contentious issues of morality and religion, I believe the basic issue
here is simple: does petitioner Ang Ladlad LGBT Party qualify, under the terms of the Constitution
and RA 7941, as a marginalized and underrepresented sector in the party-list system?

The relevant facts are likewise relatively uncomplicated. Petitioner seeks accreditation by the
respondent Commission on Elections as a political organization of a marginalized and
underrepresented sector under the party-list system. Finding that petitioner is not a marginalized
sector under RA 7941, the Commission on Elections denied its petition.

A System For Marginalized

And Underrepresented Sectors

The party-list system is an innovation of the 1987 Constitution. It is essentially a tool for the
advancement of social justice with the fundamental purpose of affording opportunity to marginalized
and underrepresented sectors to participate in the shaping of public policy and the crafting of
national laws. It is premised on the proposition that the advancement of the interests of the
marginalized sectors contributes to the advancement of the common good and of our nation’s
democratic ideals.

But who are the marginalized and underrepresented sectors for whom the party-list system was
designed?

The Texts of the Constitution

1
And of RA 7941

The resolution of a constitutional issue primarily requires that the text of the fundamental law be
consulted. Section 5(2), Article VI of the Constitution directs the course of our present inquiry. It
provides:

SEC. 5. x x x

(2) The party-list representatives 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. (emphasis supplied)

The Constitution left the matter of determining the groups or sectors that may qualify as
"marginalized" to the hands of Congress. Pursuant to this constitutional mandate, RA 7941 or the
Party-List System Act was enacted in 1995. The law provides:

Section 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
national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino
citizens belonging to marginalized and under-represented 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 in order to attain the broadest possible representation of party, sectoral 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.

xxx xxx xxx

Section 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, attaching thereto its constitution, by-laws, platform or program of
government, list of officers, coalition agreement and other relevant information as the COMELEC
may require: Provided, That the sectors shall include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers,
and professionals.

The COMELEC shall publish the petition in at least two (2) national newspapers of general
circulation.

The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15) days from
the date it was submitted for decision but in no case not later than sixty (60) days before election.

Section 6. Refusal and/or Cancellation of Registration. — The COMELEC may, motu propio or upon
verified complaint of any interested party, refuse or cancel, after due notice and hearing, the
registration of any national, regional or sectoral party, organization or coalition on any of the following
grounds:

(1) It is a religious sect or denomination, organization or association, organized for religious

purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through third
parties for partisan election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per
centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the
constituency in which it has registered. (emphasis supplied)

The Court’s Previous Pronouncements

As the oracle of the Constitution, this Court divined the intent of the party-list system and defined its
2
meaning in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections:

That political parties may participate in the party-list elections does not mean, however, that any
political party -- or any organization or group for that matter -- may do so. The requisite character of
these parties or organizations must be consistent with the purpose of the party-list system, as laid
down in the Constitution and RA 7941. x x x

The Marginalized and Underrepresented to Become Lawmakers Themselves

[Section 2 of RA 7941] mandates a state policy of promoting proportional representation by means

of the Filipino-style party-list system, which will "enable" the election to the House of Representatives
of Filipino citizens,

1. who belong to marginalized and underrepresented sectors, organizations and parties; and

2. who lack well-defined constituencies; but

3. who could contribute to the formulation and enactment of appropriate legislation that will benefit
the nation as a whole.

The key words in this policy are "proportional representation," "marginalized and underrepresented,"
and "lack [of] well-defined constituencies."

"Proportional representation" here does not refer to the number of people in a particular district,
because the party-list election is national in scope. Neither does it allude to numerical strength in a
distressed or oppressed group. Rather, it refers to the representation of the "marginalized and
underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals."

However, it is not enough for the candidate to claim representation of the marginalized and
underrepresented, because representation is easy to claim and to feign. The party-list organization
or party must factually and truly represent the marginalized and underrepresented constituencies
mentioned in Section 5. Concurrently, the persons nominated by the party-list candidate-organization
must be "Filipino citizens belonging to marginalized and underrepresented sectors, organizations
and parties."

Finally, "lack of well-defined constituenc[y]" refers to the absence of a traditionally identifiable

electoral group, like voters of a congressional district or territorial unit of government. Rather, it
points again to those with disparate interests identified with the "marginalized or underrepresented."
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.

The intent of the Constitution is clear: to give genuine power to the people, not only by giving more
law to those who have less in life, but more so by enabling them to become veritable lawmakers
themselves. Consistent with this intent, the policy of the implementing law, we repeat, is likewise
clear: "to enable Filipino citizens belonging to marginalized and underrepresented sectors,
organizations and parties, x x x, to become members of the House of Representatives." Where the
language of the law is clear, it must be applied according to its express terms.

The marginalized and underrepresented sectors to be represented under the party-list system are
enumerated in Section 5 of RA 7941, which states:

"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, attaching thereto its constitution, by-laws, platform or program of
government, list of officers, coalition agreement and other relevant information as the COMELEC
may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals."

While the enumeration of marginalized and underrepresented sectors is not exclusive, it

demonstrates the clear intent of the law that not all sectors can be represented under the party-list
system. It is a fundamental principle of statutory construction that words employed in a statute are
interpreted in connection with, and their meaning is ascertained by reference to, the words and the
phrases with which they are associated or related. Thus, the meaning of a term in a statute may be
limited, qualified or specialized by those in immediate association.

xxx xxx xxx

Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be
appropriated by the mansion owners of Forbes Park. The interests of these two sectors are
manifestly disparate; hence, the OSG’s position to treat them similarly defies reason and common
sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan admitted during the Oral
Argument that a group of bankers, industrialists and sugar planters could not join the party-list
system as representatives of their respective sectors.

While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are
neither marginalized nor underrepresented, for the stark reality is that their economic clout
engenders political power more awesome than their numerical limitation. Traditionally, political power
does not necessarily emanate from the size of one’s constituency; indeed, it is likely to arise more
directly from the number and amount of one’s bank accounts.

It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who
wallow in poverty, destitution and infirmity. It was for them that the party-list system was enacted -- to
give them not only genuine hope, but genuine power; to give them the opportunity to be elected and
to represent the specific concerns of their constituencies; and simply to give them a direct voice in
Congress and in the larger affairs of the State. In its noblest sense, the party-list system truly
empowers the masses and ushers a new hope for genuine change. Verily, it invites those
marginalized and underrepresented in the past – the farm hands, the fisher folk, the urban poor,
even those in the underground movement – to come out and participate, as indeed many of them
came out and participated during the last elections. The State cannot now disappoint and frustrate
them by disabling and desecrating this social justice vehicle.

xxx xxx xxx

Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the
party-list system would not only dilute, but also prejudice the chance of the marginalized and
underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for
the benefit of the underprivileged; the law could not have given the same tool to others, to the
prejudice of the intended beneficiaries.

This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who
are neither marginalized nor underrepresented. It cannot let that flicker of hope be snuffed out. The
clear state policy must permeate every discussion of the qualification of political parties and other
organizations under the party-list system. (emphasis and underscoring supplied)

Hence, in Ang Bagong Bayani-OFW Labor Party, the Court stressed that the party-list system is
reserved only for those sectors marginalized and underrepresented in the past (e.g., labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth,
veterans, overseas workers, professionals and even those in the underground movement who wish
to come out and participate). They are those sectors traditionally and historically marginalized and
deprived of an opportunity to participate in the formulation of national policy although their sectoral
interests are also traditionally and historically regarded as vital to the national interest. That is why
Section 2 of RA 7941 speaks of "marginalized and under-represented 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."

How should the matter of whether a particular sectoral interest is vital to national interest (and
therefore beneficial to the nation as a whole) be determined? Chief Justice Reynato S. Puno’s
3
opinion in Barangay Association for National Advancement and Transparency (BANAT) v.
4
Commission on Elections offers valuable insight:

… Similarly, limiting the party-list system to the marginalized and excluding the major political parties
from participating in the election of their representatives is aligned with the constitutional mandate to
"reduce social, economic, and political inequalities, and remove cultural inequalities by equitably
diffusing wealth and political power for the common good"; the right of the people and their
organizations to effective and reasonable participation at all levels of social, political, and economic
decision-making; the right of women to opportunities that will enhance their welfare and enable them
to realize their full potential in the service of the nation; the right of labor to participate in policy and
decision-making processes affecting their rights and benefits in keeping with its role as a primary
social economic force; the right of teachers to professional advancement; the rights of indigenous
cultural communities to the consideration of their cultures, traditions and institutions in the
formulation of national plans and policies, and the indispensable role of the private sector in the
national economy.

As such, the interests of marginalized sectors are by tradition and history vital to national interest
and therefore beneficial to the nation as a whole because the Constitution declares a national policy
recognizing the role of these sectors in the nation’s life. In other words, the concept of marginalized
and underrepresented sectors under the party-list scheme has been carefully refined by concrete
examples involving sectors deemed to be significant in our legal tradition. They are essentially
sectors with a constitutional bond, that is, specific sectors subject of specific provisions in the
5 6 7 8 9
Constitution, namely, labor, peasant, urban poor, indigenous cultural communities, women,
10 11 12 13 14 15 16
youth, veterans, fisherfolk, elderly, handicapped, overseas workers and professionals.

The premise is that the advancement of the interests of these important yet traditionally and
historically marginalized sectors promotes the national interest. The Filipino people as a whole are
benefited by the empowerment of these sectors.

The long-muffled voices of marginalized sectors must be heard because their respective interests
are intimately and indispensably woven into the fabric of the national democratic agenda. The social,
economic and political aspects of discrimination and marginalization should not be divorced from the
role of a particular sector or group in the advancement of the collective goals of Philippine society as
a whole. In other words, marginalized sectors should be given a say in governance through the
party-list system, not simply because they desire to say something constructive but because they
deserve to be heard on account of their traditionally and historically decisive role in Philippine
society.

A Unifying Thread

Fidelity to the Constitution requires commitment to its text. Thus, in the exercise of its function as
official interpreter of the Constitution, the Court should always bear in mind that judicial prudence
17
means that it is safer to construe the Constitution from what appears upon its face.

With regard to the matter of what qualifies as marginalized and underrepresented sectors under the
party-list system, Section 5(2), Article VI of the Constitution mentions "the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by
law, except the religious sector." On the other hand, the law speaks of "labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans,
18
overseas workers, and professionals."

Surely, the enumeration of sectors considered as marginalized and underrepresented in the

fundamental law and in the implementing law (RA 7941) cannot be without significance. To ignore
them is to disregard the texts of the Constitution and of RA 7941. For, indeed, the very first of Ang
Bagong Bayani-OFW Labor Party’s eight guidelines for screening party-list participants is this: the
parties, sectors or organizations "must represent the marginalized and underrepresented groups
19
identified in Section 5 of RA 7941."
For this reason, I submit the majority’s decision is cryptic and wanting when it makes short shrift of
the issue of whether petitioner is a marginalized and underrepresented sector in the following
manner:

The crucial element is not whether a sector is specifically enumerated, but whether a particular
organization complies with the requirements of the Constitution and RA 7941.

The resolution of petitions for accreditation in the party-list system on a case-to-case basis not
tethered to the enumeration of the Constitution and of RA 7941 invites the exercise of unbridled
discretion. Unless firmly anchored on the fundamental law and the implementing statute, the
party-list system will be a ship floating aimlessly in the ocean of uncertainty, easily tossed by sudden
waves of flux and tipped by shifting winds of change in societal attitudes towards certain groups.
Surely, the Constitution and RA 7941 did not envision such kind of a system.

Indeed, the significance of the enumeration in Section 5(2), Article VI of the Constitution and Section
5 of RA 7941 is clearly explained in Ang Bagong Bayani-OFW Labor Party:

"Proportional representation" here does not refer to the number of people in a particular district,
because the party-list election is national in scope. Neither does it allude to numerical strength in a
distressed or oppressed group. Rather, it refers to the representation of the "marginalized and
underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals."

However, it is not enough for the candidate to claim representation of the marginalized and
underrepresented, because representation is easy to claim and to feign. The party-list organization
or party must factually and truly represent the marginalized and underrepresented constituencies
mentioned in Section 5. Concurrently, the persons nominated by the party-list candidate-organization
must be "Filipino citizens belonging to marginalized and underrepresented sectors, organizations
and parties."

xxx xxx xxx

The marginalized and underrepresented sectors to be represented under the party-list system are
enumerated in Section 5 of RA 7941, which states:

"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, attaching thereto its constitution, by-laws, platform or program of
government, list of officers, coalition agreement and other relevant information as the COMELEC
may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals."

While the enumeration of marginalized and underrepresented sectors is not exclusive, it

demonstrates the clear intent of the law that not all sectors can be represented under the party-list
system. It is a fundamental principle of statutory construction that words employed in a statute are
interpreted in connection with, and their meaning is ascertained by reference to, the words and the
phrases with which they are associated or related. Thus, the meaning of a term in a statute may be
20
limited, qualified or specialized by those in immediate association. (emphasis and underscoring
supplied)

More importantly, in defining the concept of a "sectoral party," Section 3(d) of RA 7941 limits
"marginalized and underrepresented sectors" and expressly refers to the list in Section 5 thereof:

Section 3. Definition of Terms. — x x x

(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors
enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and
concerns of their sector, x x x. (emphasis supplied)

Petitioner does not question the constitutionality of Sections 2, 3(d) and 5 of RA 7941. (Its charges of
violation of non-establishment of religion, equal protection, free speech and free association are all
leveled at the assailed resolutions of the Commission on Elections.) Thus, petitioner admits and
accepts that its case must rise or fall based on the aforementioned provisions of RA 7941.

Following the texts of the Constitution and of RA 7941, and in accordance with established rules of
statutory construction and the Court’s pronouncement in Ang Bagong Bayani-OFW Labor Party, the
meaning of "marginalized sectors" under the party list system is limited and qualified. Hence, other
sectors that may qualify as marginalized and underrepresented should have a close connection to
the sectors mentioned in the Constitution and in the law. In other words, the marginalized and
underrepresented sectors qualified to participate in the party-list system refer only to the labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, professionals and other related or similar sectors.

This interpretation is faithful to and deeply rooted in the language of the fundamental law and of its
implementing statute. It is coherent with the mandate of the Constitution that marginalized sectors
qualified to participate in the party-list system but not mentioned in Section 5(2), Article VI are "such
other sectors as may be provided by law" duly enacted by Congress. It is also consistent with
the basic canon of statutory construction, ejusdem generis, which requires that a general word or
phrase that follows an enumeration of particular and specific words of the same class, the general
word or phrase should be construed to include, or to be restricted to persons, things or cases, akin
21
to, resembling, or of the same kind or class as those specifically mentioned. Moreover, it reins in
the subjective elements of passion and prejudice that accompany discussions of issues with moral
or religious implications as it avoids the need for complex balancing and undue policy-making.

What is the unifying thread that runs through the marginalized and underrepresented sectors under
22
the party-list system? What are the family resemblances that would characterize them?

Based on the language of the Constitution and of RA 7941 and considering the pronouncements of
this Court in Ang Bagong Bayani-OFW Labor Party and BANAT, the following factors are significant:
(a) they must be among, or closely connected with or similar to, the sectors mentioned in Section 5
of RA 7941;

(b) they must be sectors whose interests are traditionally and historically regarded as vital to the
national interest but they have long been relegated to the fringes of society and deprived of an
opportunity to participate in the formulation of national policy;

(c) the vinculum that will establish the close connection with or similarity of sectors to those
expressly mentioned in Section 5 of RA 7941 is a constitutional provision specifically recognizing the
special significance of the said sectors (other than people’s organizations, unless such people’s
23
organizations represent sectors mentioned in Section 5 of RA 7941) to the advancement of the
national interest and

(d) while lacking in well-defined political constituencies, they must have regional or national
presence to ensure that their interests and agenda will be beneficial not only to their respective
sectors but, more importantly, to the nation as a whole.

For Purposes of the Party-List System,​

Petitioner is Not a Marginalized Sector

In this case, petitioner asserts that it is entitled to accreditation as a marginalized and

underrepresented sector under the party-list system. However, the Commission on Elections
disagrees.

The majority reverses the Commission on Elections. While it focuses on the contentious issues of
morality, religion, equal protection, and freedom of expression and association, by granting the
petition, the majority effectively rules that petitioner is a qualified marginalized and underrepresented
sector, thereby allowing its accreditation and participation in the party-list system.

I disagree.

Even assuming that petitioner was able to show that the community of lesbians, gays, bisexuals and
transsexuals (LGBT) is underrepresented, it cannot be properly considered as marginalized under
the party-list system. First, petitioner is not included in the sectors mentioned in Section 5(2), Article
VI of the Constitution and Section 5 of RA 7941. Unless an overly strained interpretation is resorted
to, the LGBT sector cannot establish a close connection to any of the said sectors. Indeed, petitioner
does not even try to show its link to any of the said sectors. Rather, it represents itself as an
altogether distinct sector with its own peculiar interests and agenda.

Second, petitioner’s interest as a sector, which is basically the legal recognition of its members’
sexual orientation as a right, cannot be reasonably considered as an interest that is traditionally and
historically considered as vital to national interest. At best, petitioner may cite an emergent
awareness of the implications of sexual orientation on the national human rights agenda. However,
24
an emergent awareness is but a confirmation of lack of traditional and historical recognition.
Moreover, even the majority admits that there is no "clear cut consensus favorable to gay rights
25
claims."
Third, petitioner is cut off from the common constitutional thread that runs through the marginalized
and underrepresented sectors under the party-list system. It lacks the vinculum, a constitutional
bond, a provision in the fundamental law that specifically recognizes the LGBT sector as specially
significant to the national interest. This standard, implied in BANAT, is required to create the
necessary link of a particular sector to those sectors expressly mentioned in Section 5(2), Article VI
of the Constitution and Section 5 of RA 7941.

Finally, considering our history and tradition as a people, to consider the promotion of the LGBT
agenda and "gay rights" as a national policy as beneficial to the nation as a whole is debatable at
best. Even the majority (aside from extensively invoking foreign practice and international
conventions rather than Philippine laws) states:

We do not suggest that public opinion, even at its most liberal, reflect a clear cut strong consensus
26
favorable to gay rights claims….

This is so unlike the significance of the interests of the sectors in Section 5 of RA 7941 which are,
without doubt, indisputable.

Regardless of the personal beliefs and biases of its individual members, this Court can only apply
and interpret the Constitution and the laws. Its power is not to create policy but to recognize, review
or reverse the policy crafted by the political departments if and when a proper case is brought before
it. Otherwise, it will tread on the dangerous grounds of judicial legislation.

In this instance, Congress, in the exercise of its authority under Section 5(2), Article VI of the
Constitution, enacted RA 7941. Sections 2, 3(d) and (5) of the said law instituted a policy when it
enumerated certain sectors as qualified marginalized and underrepresented sectors under the
party-list system. Respect for that policy and fidelity to the Court’s duty in our scheme of government
require us to declare that only sectors expressly mentioned or closely related to those sectors
mentioned in Section 5 of RA 7941 are qualified to participate in the party-list system. That is the
tenor of the Court’s rulings in Ang Bagong Bayani-OFW Labor Party and BANAT. As there is no
strong reason for the Court to rule otherwise, stare decisis compels a similar conclusion in this case.

The Court is called upon to exercise judicial restraint in this case by strictly adhering to, rather than
expanding, legislative policy on the matter of marginalized sectors as expressed in the enumeration
in Section 5 of RA 7941. The Court has no power to amend and expand Sections 2, 3(d) and 5 of
RA 7941 in the guise of interpretation. The Constitution expressly and exclusively vests the authority
to determine "such other [marginalized] sectors" qualified to participate in the party-list system to
Congress. Thus, until and unless Congress amends the law to include the LGBT and other sectors
in the party-list system, deference to Congress’ determination on the matter is proper.

A Final Word

To be succinctly clear about it, I do not say that there is no truth to petitioner’s claim of discriminatory
and oppressive acts against its members. I am in no position to make that claim. Nor do I claim that
petitioner has no right to speak, to assemble or to access our political departments, particularly the
legislature, to promote the interests of its constituency. Social perceptions of sexual and other moral
issues may change over time, and every group has the right to persuade its fellow citizens that its
 27
view of such matters is the best. But persuading one’s fellow citizens is one thing and insisting on
a right to participate in the party-list system is something else. Considering the facts, the law and
jurisprudence, petitioner cannot properly insist on its entitlement to use the party-list system as a
vehicle for advancing its social and political agenda.

While bigotry, social stereotyping and other forms of discrimination must be given no place in a truly
just, democratic and libertarian society, the party-list system has a well-defined purpose. The
party-list system was not designed as a tool to advocate tolerance and acceptance of any and all
socially misunderstood sectors. Rather, it is a platform for the realization of the aspirations of
marginalized sectors whose interests are, by nature and history, also the nation’s but which interests
have not been sufficiently brought to public attention because of these sectors’ underrepresentation.

Congress was given by the Constitution full discretion to determine what sectors may qualify as
marginalized and underrepresented. The Court’s task is to respect that legislative determination by
strictly adhering to it. If we effectively and unduly expand such congressional determination, we will
be dabbling in policy-making, an act of political will and not of judicial judgment.

Accordingly, I respectfully vote to dismiss the petition.

RENATO C. CORONA​
Associate Justice

Footnotes

1
Republic Act.

2
412 Phil. 308 (2001).

3
The Chief Justice’s stance is the official stance of the Court on the matter because majority of the
members of the Court sided with him on the issue of disallowing major political parties from
participating in the party-list elections, directly or indirectly.

4
G.R. No. 179271, 21 April 2009, 586 SCRA 210, 258-259.

5
Section 18, Article II; Section 3, Article XIII.

6
Section 21, Article II; Section 4, Article XIII.

7
Section 9, Article II; Section 10, Article XIII.

8
Section 22, Article II; Section 5, Article XII.

9
Section 14, Article II; Section 14, Article XIII.
10
Section 13, Article II; Section 3(2), Article XV.

11
Section 7, Article XVI.

12
Paragraph three of Section 2, Article XII, Section 7, Article XIII.

13
Section 11, Article XIII.

14
Sections 11 and 13 XIII.

15
Section 18, Article II; Section 3, Article XIII.

16
Section 14, Article XII.

17
Civil Liberties Union v. Executive Secretary, G.R. No.83896, 22 February 1991, 194 SCRA 317,
337.

18
See proviso of the first paragraph of Section 5, RA 7941.

19
Supra note 2 at 342.

20
Supra note 2.

21
Miranda v. Abaya, 370 Phil. 642, 658 (1999).

22
The notion of family resemblances (familienähnlichkeit) was introduced by the leading analytic
philosopher, Ludwig Wittgenstein, in his book Philosophical Investigations. As used in this opinion,
however, family resemblances specifically refer to the DNA, the basic component unit, that identifies
a sector as a member of the family of marginalized and underrepresented sectors enumerated in
Section 5(2), Article VI of the Constitution and Section 5 of RA 7941.

23
The reason behind this exception is obvious. If all people’s organizations are automatically
considered as marginalized and underrepresented, then no sector or organization may be
disqualified on the grounds of non-marginalization and lack of underrepresentation. The Court’s
guidelines in Ang Bagong Bayani-OFW Labor Party would have been unnecessary after all and,
worse, the constitutional requirement that the sectors qualified to participate in the party-list system
be determined by law would have been merely superfluous and pointless.

24
Lawrence v. Texas, 539 U.S. 558 (2003), (Scalia, J., dissenting).

25
Decision, p. 23.
26
Id.

27
Lawrence v. Texas, supra note 29 (J. Scalia, dissenting).

The Lawphil Project - Arellano Law Foundation

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
1
land. In Ang Bagong Bayani-OFW Labor Party v. Commission on Elections (COMELEC), 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
2
associated with, the sectors specified in the Constitution and in R.A. 7941. 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
3
underrepresented."

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,
4
the handicapped, the veterans, the overseas workers, and the professionals. 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 *Narrow Specifically Defined Groups

Definition Definition

Working Class Labor Carpenters, security guards, microchip

factory workers, barbers, tricycle drivers
 Economically Urban Informal settlers, the jobless, persons displaced by domestic wars
Deprived Poor

The Vulnerable Women Working women, battered women,

victims of slavery

Work Impaired Handi- Deaf and dumb, the blind, people on wheelchairs
Capped

*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
5
out of every 10 persons is an LGBT of a certain kind, 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

Footnotes

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.

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http://www.aglbical.org/2STATS.htm