Republic of the Philippines Ang Ladlad is an organization composed of men and women who identify themselves as

SUPREME COURT lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang
Baguio City Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation
was denied on the ground that the organization had no substantial membership base. On August
17, 2009, Ang Ladlad again filed a Petition5 for registration with the COMELEC.
EN BANC

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-
G.R. No. 190582 April 8, 2010
represented sector that is particularly disadvantaged because of their sexual orientation and
gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON of negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and
REMOTO, Petitioner, that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong
vs. Bayani-OFW Labor Party v. Commission on Elections.6 Ang Ladlad laid out its national
COMMISSION ON ELECTIONS Respondent. membership base consisting of individual members and organizational supporters, and outlined
its platform of governance.7
DECISION
On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second
Division) dismissed the Petition on moral grounds, stating that:
DEL CASTILLO, J.:

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay,
... [F]reedom to differ is not limited to things that do not matter much. That would be a mere
Bisexual and Transgender (LGBT) Community, thus:
shadow of freedom. The test of its substance is the right to differ as to things that touch the heart
of the existing order.
x x x a marginalized and under-represented sector that is particularly disadvantaged because of
their sexual orientation and gender identity.
Justice Robert A. Jackson

and proceeded to define sexual orientation as that which:

West Virginia State Board of Education v. Barnette1

x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to,
One unavoidable consequence of everyone having the freedom to choose is that others may and intimate and sexual relations with, individuals of a different gender, of the same gender, or
make different choices – choices we would not make for ourselves, choices we may disapprove
more than one gender."
of, even choices that may shock or offend or anger us. However, choices are not to be legally
prohibited merely because they are different, and the right to disagree and debate about
important questions of public policy is a core value protected by our Bill of Rights. Indeed, our This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which
democracy is built on genuine recognition of, and respect for, diversity and difference in opinion. offends religious beliefs. In Romans 1:26, 27, Paul wrote:

Since ancient times, society has grappled with deep disagreements about the definitions and For this cause God gave them up into vile affections, for even their women did change the
demands of morality. In many cases, where moral convictions are concerned, harmony among natural use into that which is against nature: And likewise also the men, leaving the natural use
those theoretically opposed is an insurmountable goal. Yet herein lies the paradox – of the woman, burned in their lust one toward another; men with men working that which is
philosophical justifications about what is moral are indispensable and yet at the same time unseemly, and receiving in themselves that recompense of their error which was meet.
powerless to create agreement. This Court recognizes, however, that practical solutions are
preferable to ideological stalemates; accommodation is better than intransigence; reason more
In the Koran, the hereunder verses are pertinent:
worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not
harmoniously, then, at least, civilly.
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
Factual Background
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).
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ
of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the
As correctly pointed out by the Law Department in its Comment dated October 2, 2008:
Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009 2 (the First
Assailed Resolution) and December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-
228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELEC’s The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par. 6F:
refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, ‘Consensual partnerships or relationships by gays and lesbians who are already of age’. It is
otherwise known as the Party-List System Act.4 further indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex
with Men or MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of
Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First
Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando
the requirement to be complied with for accreditation. Velasco), while three commissioners voted to deny Ang Ladlad’s Motion for Reconsideration
(Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC
Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act,
First Assailed Resolution, stating that:
omission, establishment, business, condition of property, or anything else which x x x (3) shocks,
defies; or disregardsdecency or morality x x x
I. The Spirit of Republic Act No. 7941
It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem convenient, provided they are not Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming
contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code that it has properly proven its under-representation and marginalization, it cannot be said that
provides that ‘Contracts whose cause, object or purpose is contrary to law, morals, good Ladlad’s expressed sexual orientations per se would benefit the nation as a whole.
customs, public order or public policy’ are inexistent and void from the beginning.
Section 2 of the party-list law unequivocally states that the purpose of the party-list system of
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as electing congressional representatives is to enable Filipino citizens belonging to marginalized
amended, penalizes ‘Immoral doctrines, obscene publications and exhibitions and indecent and under-represented sectors, organizations and parties, and who lack well-defined political
shows’ as follows: 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.
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The
penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both
such imprisonment and fine, shall be imposed upon: If entry into the party-list system would depend only on the ability of an organization to represent
its constituencies, then all representative organizations would have found themselves into the
party-list race. But that is not the intention of the framers of the law. The party-list system is not a
1. Those who shall publicly expound or proclaim doctrines openly contrary to public
tool to advocate tolerance and acceptance of misunderstood persons or groups of persons.
morals;
Rather, the party-list system is a tool for the realization of aspirations of marginalized
individuals whose interests are also the nation’s – only that their interests have not been brought
2. (a) The authors of obscene literature, published with their knowledge in any form; to the attention of the nation because of their under representation. Until the time comes when
the editors publishing such literature; and the owners/operators of the establishment Ladlad is able to justify that having mixed sexual orientations and transgender identities is
selling the same; beneficial to the nation, its application for accreditation under the party-list system will remain
just that.
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit
indecent or immoral plays, scenes, acts or shows, it being understood that II. No substantial differentiation
the obscene literature or indecent or immoral plays, scenes, acts or shows,
whether live or in film, which are prescribed by virtue hereof, shall include
In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts
those which: (1) glorify criminals or condone crimes; (2) serve no other
do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of
purpose but to satisfy the market for violence, lust or pornography; (3)
individuals. x x x Significantly, it has also been held that homosexuality is not a constitutionally
offend any race or religion; (4) tend to abet traffic in and use of prohibited
protected fundamental right, and that "nothing in the U.S. Constitution discloses a comparable
drugs; and (5) are contrary to law, public order, morals, good
intent to protect or promote the social or legal equality of homosexual relations," as in the case
customs,established policies, lawful orders, decrees and edicts.
of race or religion or belief.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or
xxxx
literature which are offensive to morals.

Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there
Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but
can be no denying that Ladlad constituencies are still males and females, and they will remain
likewise for not being truthful when it said that it "or any of its nominees/party-list representatives
either male or female protected by the same Bill of Rights that applies to all citizens alike.
have not violated or failed to comply with laws, rules, or regulations relating to the elections."

xxxx
Furthermore, should this Commission grant the petition, we will be exposing our youth to an
environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible
teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a IV. Public Morals
threat to the youth." As an agency of the government, ours too is the State’s avowed duty under
Section 13, Article II of the Constitution to protect our youth from moral and spiritual
x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices.
degradation.8
Neither is there any attempt to any particular religious group’s moral rules on Ladlad. Rather,
what are being adopted as moral parameters and precepts are generally accepted public morals. The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in denying
They are possibly religious-based, but as a society, the Philippines cannot ignore its more than petitioner’s application for registration since there was no basis for COMELEC’s allegations of
500 years of Muslim and Christian upbringing, such that some moral precepts espoused by said immorality. It also opined that LGBTs have their own special interests and concerns which
religions have sipped [sic] into society and these are not publicly accepted moral norms. should have been recognized by the COMELEC as a separate classification. However, insofar
as the purported violations of petitioner’s freedom of speech, expression, and assembly were
concerned, the OSG maintained that there had been no restrictions on these rights.
V. Legal Provisions

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine
But above morality and social norms, they have become part of the law of the land. Article 201 of
national political agenda to benefit the nation and that the petition was validly dismissed on
the Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly
moral grounds. It also argued for the first time that the LGBT sector is not among the sectors
expound or proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines,
enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in
obscene publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under
its petition when it alleged its national existence contrary to actual verification reports by
these legal provisions. This is clear from its Petition’s paragraph 6F: "Consensual partnerships
COMELEC’s field personnel.
or relationships by gays and lesbians who are already of age’ It is further indicated in par. 24 of
the Petition which waves for the record: ‘In 2007, Men Having Sex with Men or MSMs in the
Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines Our Ruling
"nuisance" as any act, omission x x x or anything else x x x which shocks, defies or disregards
decency or morality x x x." These are all unlawful.10
We grant the petition.

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed
Compliance with the Requirements of the Constitution and Republic Act No. 7941
Resolutions and direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang
Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the
COMELEC, which had previously announced that it would begin printing the final ballots for the The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT
May 2010 elections by January 25, 2010. sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or related
to any of the sectors in the enumeration.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on
behalf of COMELEC not later than 12:00 noon of January 11, 2010. 11 Instead of filing a Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition
Comment, however, the OSG filed a Motion for Extension, requesting that it be given until that only those sectors specifically enumerated in the law or related to said sectors (labor,
January 16, 2010 to Comment.12 Somewhat surprisingly, the OSG later filed a Comment in peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
support of petitioner’s application.13 Thus, in order to give COMELEC the opportunity to fully youth, veterans, overseas workers, and professionals) may be registered under the party-list
ventilate its position, we required it to file its own comment.14 The COMELEC, through its Law system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on
Department, filed its Comment on February 2, 2010.15 Elections,20 "the enumeration of marginalized and under-represented sectors is not exclusive".
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.
In the meantime, due to the urgency of the petition, we issued a temporary restraining order on
January 12, 2010, effective immediately and continuing until further orders from this Court,
directing the COMELEC to cease and desist from implementing the Assailed Resolutions.16 Respondent also argues that Ang Ladlad made untruthful statements in its petition when it
alleged that it had nationwide existence through its members and affiliate organizations. The
COMELEC claims that upon verification by its field personnel, it was shown that "save for a few
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene
isolated places in the country, petitioner does not exist in almost all provinces in the country."21
or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR
opined that the denial of Ang Ladlad’spetition on moral grounds violated the standards and
principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the This argument that "petitioner made untruthful statements in its petition when it alleged its
International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted national existence" is a new one; previously, the COMELEC claimed that petitioner was "not
the CHR’s motion to intervene. being truthful when it said that it or any of its nominees/party-list representatives have not
violated or failed to comply with laws, rules, or regulations relating to the elections." Nowhere
was this ground for denial of petitioner’s accreditation mentioned or even alluded to in the
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was
Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioner’s
granted on February 2, 2010.19
alleged non-existence were already available to the COMELEC prior to the issuance of the First
Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a
The Parties’ Arguments change in respondent’s theory, and a serious violation of petitioner’s right to procedural due
process.
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using
religious dogma, violated the constitutional guarantees against the establishment of religion. Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang
Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to Ladlad’s initial petition shows that it never claimed to exist in each province of the Philippines.
privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted Rather, petitioner alleged that the LGBT community in the Philippines was estimated to
violations of the Philippines’ international obligations against discrimination based on sexual constitute at least 670,000 persons; that it had 16,100 affiliates and members around the country,
orientation. and 4,044 members in its electronic discussion group.22 Ang Ladlad also represented itself to be
"a national LGBT umbrella organization with affiliates around the Philippines composed of the § Order of St. Aelred (OSAe) – Metro Manila
following LGBT networks:"
§ PUP LAKAN
§ Abra Gay Association
§ RADAR PRIDEWEAR
§ Aklan Butterfly Brigade (ABB) – Aklan
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila
§ Albay Gay Association
§ San Jose del Monte Gay Association – Bulacan
§ Arts Center of Cabanatuan City – Nueva Ecija
§ Sining Kayumanggi Royal Family – Rizal
§ Boys Legion – Metro Manila
§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila
§ Cagayan de Oro People Like Us (CDO PLUS)
§ Soul Jive – Antipolo, Rizal
§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
§ The Link – Davao City
§ Cebu Pride – Cebu City
§ Tayabas Gay Association – Quezon
§ Circle of Friends
§ Women’s Bisexual Network – Metro Manila
§ Dipolog Gay Association – Zamboanga del Norte
§ Zamboanga Gay Association – Zamboanga City23
§ Gay, Bisexual, & Transgender Youth Association (GABAY)
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is
§ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro Manila no surprise that they found that petitioner had no presence in any of these regions. In fact, if
COMELEC’s findings are to be believed, petitioner does not even exist in Quezon City, which is
registered as Ang Ladlad’s principal place of business.
§ Gay Men’s Support Group (GMSG) – Metro Manila

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with
§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
the legal requirements for accreditation. Indeed, aside from COMELEC’s moral objection and the
belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled
§ Iloilo City Gay Association – Iloilo City that Ang Ladlad is not qualified to register as a party-list organization under any of the requisites
under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies
in Ang Ladlad’s morality, or lack thereof.
§ Kabulig Writer’s Group – Camarines Sur

Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration
§ Lesbian Advocates Philippines, Inc. (LEAP)

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an
§ LUMINA – Baguio City establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-
establishment clause calls for is "government neutrality in religious matters."24 Clearly,
§ Marikina Gay Association – Metro Manila "governmental reliance on religious justification is inconsistent with this policy of neutrality." 25 We
thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize
the Bible and the Koran to justify the exclusion of Ang Ladlad.
§ Metropolitan Community Church (MCC) – Metro Manila

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend,
§ Naga City Gay Association – Naga City instead, on whether the COMELEC is able to advance some justification for its rulings beyond
mere conformity to religious doctrine. Otherwise stated, government must act for secular
§ ONE BACARDI purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor: 26
x x x The morality referred to in the law is public and necessarily secular, not religious as the The Assailed Resolutions have not identified any specific overt immoral act performed by Ang
dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may Ladlad. Even the OSG agrees that "there should have been a finding by the COMELEC that the
influence the civil public order but public moral disputes may be resolved only on grounds group’s members have committed or are committing immoral acts."30 The OSG argues:
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
x x x A person may be sexually attracted to a person of the same gender, of a different gender,
some might regard as religious programs or agenda. The non-believers would therefore be
or more than one gender, but mere attraction does not translate to immoral acts. There is a great
compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a
divide between thought and action. Reduction ad absurdum. If immoral thoughts could be
"compelled religion," anathema to religious freedom. Likewise, if government based its actions
penalized, COMELEC would have its hands full of disqualification cases against both the
upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
"straights" and the gays." Certainly this is not the intendment of the law.31
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.1avvphi1 Respondent has failed to explain what societal ills are sought to be prevented, or why special
protection is required for the youth. Neither has the COMELEC condescended to justify its
position that petitioner’s admission into the party-list system would be so harmful as to
In other words, government action, including its proscription of immorality as expressed in
irreparably damage the moral fabric of society. We, of course, do not suggest that the state is
criminal law like concubinage, must have a secular purpose. That is, the government proscribes
wholly without authority to regulate matters concerning morality, sexuality, and sexual relations,
this conduct because it is "detrimental (or dangerous) to those conditions upon which depend
and we recognize that the government will and should continue to restrict behavior considered
the existence and progress of human society" and not because the conduct is proscribed by the
detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with
beliefs of one religion or the other. Although admittedly, moral judgments based on religion might
the loftiest of intentions, situate morality on one end of an argument or another, without
have a compelling influence on those engaged in public deliberations over what actions would
bothering to go through the rigors of legal reasoning and explanation. In this, the notion of
be considered a moral disapprobation punishable by law. After all, they might also be adherents
morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an
of a religion and thus have religious opinions and moral codes with a compelling influence on
issue from our scrutiny.
them; the human mind endeavors to regulate the temporal and spiritual institutions of society in
a uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or
Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and We also find the COMELEC’s reference to purported violations of our penal and civil laws flimsy,
discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act,
Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, omission, establishment, condition of property, or anything else which shocks, defies, or
however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent disregards decency or morality," the remedies for which are a prosecution under the Revised
neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings. 32 A
interests but at the same time strive to uphold religious liberty to the greatest extent possible violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond
within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere
benevolent neutrality could allow for accommodation of morality based on religion, provided it allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot
does not offend compelling state interests.27 replace the institution of civil or criminal proceedings and a judicial determination of liability or
culpability.
Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration
As such, we hold that moral disapproval, without more, is not a sufficient governmental interest
to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang
Respondent suggests that although the moral condemnation of homosexuality and homosexual
Ladlad’s registration on purely moral grounds amounts more to a statement of dislike and
conduct may be religion-based, it has long been transplanted into generally accepted public
disapproval of homosexuals, rather than a tool to further any substantial public interest.
morals. The COMELEC argues:
Respondent’s blanket justifications give rise to the inevitable conclusion that the COMELEC
targets homosexuals themselves as a class, not because of any particular morally reprehensible
Petitioner’s accreditation was denied not necessarily because their group consists of LGBTs but act. It is this selective targeting that implicates our equal protection clause.
because of the danger it poses to the people especially the youth. Once it is recognized by the
government, a sector which believes that there is nothing wrong in having sexual relations with
Equal Protection
individuals of the same gender is a bad example. It will bring down the standard of morals we
cherish in our civilized society. Any society without a set of moral precepts is in danger of losing
its own existence.28 Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any
person be denied equal protection of the laws," courts have never interpreted the provision as an
absolute prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of
We are not blind to the fact that, through the years, homosexual conduct, and perhaps
similar persons."33 The equal protection clause guarantees that no person or class of persons
homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to
shall be deprived of the same protection of laws which is enjoyed by other persons or other
imagine the reasons behind this censure – religious beliefs, convictions about the preservation
classes in the same place and in like circumstances. 34
of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and
their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize
homosexual conduct. Evidently, therefore, these "generally accepted public morals" have not Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a
been convincingly transplanted into the realm of law.29 suspect class, we will uphold the classification as long as it bears a rational relationship to some
legitimate government end.35 In Central Bank Employees Association, Inc. v. Banko Sentral ng
Pilipinas,36 we declared that "[i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x 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 Freedom of expression constitutes one of the essential foundations of a democratic society, and
and unequivocal breach of the Constitution."37 this freedom applies not only to those that are favorably received but also to those that offend,
shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate
aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to
The COMELEC posits that the majority of the Philippine population considers homosexual
impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to
conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the
interfere with speech for no better reason than promoting an approved message or discouraging
petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such
a disfavored one.
belief. No law exists to criminalize homosexual behavior or expressions or parties about
homosexual behavior. Indeed, even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here – that is, moral disapproval of an This position gains even more force if one considers that homosexual conduct is not illegal in
unpopular minority – is not a legitimate state interest that is sufficient to satisfy rational basis this country. It follows that both expressions concerning one’s homosexuality and the activity of
review under the equal protection clause. The COMELEC’s differentiation, and its forming a political association that supports LGBT individuals are protected as well.
unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that
would benefit the nation, furthers no legitimate state interest other than disapproval of or dislike
Other jurisdictions have gone so far as to categorically rule that even overwhelming public
for a disfavored group.
perception that homosexual conduct violates public morality does not justify criminalizing same-
sex conduct.41 European and United Nations judicial decisions have ruled in favor of gay rights
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have claimants on both privacy and equality grounds, citing general privacy and equal protection
the same interest in participating in the party-list system on the same basis as other political provisions in foreign and international texts.42 To the extent that there is much to learn from other
parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly
general application should apply with equal force to LGBTs, and they deserve to participate in illuminating. These foreign authorities, while not formally binding on Philippine courts, may
the party-list system on the same basis as other marginalized and under-represented sectors. nevertheless have persuasive influence on the Court’s analysis.

It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from In the area of freedom of expression, for instance, United States courts have ruled that existing
heterosexuals insofar as the party-list system is concerned does not imply that any other law free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the
distinguishing between heterosexuals and homosexuals under different circumstances would prohibition of a particular expression of opinion, public institutions must show that their actions
similarly fail. We disagree with the OSG’s position that homosexuals are a class in themselves were caused by "something more than a mere desire to avoid the discomfort and
for the purposes of the equal protection clause.38 We are not prepared to single out unpleasantness that always accompany an unpopular viewpoint."43
homosexuals as a separate class meriting special or differentiated treatment. We have not
received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling
With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with
today. Petitioner itself has merely demanded that it be recognized under the same basis as all
its vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly
other groups similarly situated, and that the COMELEC made "an unwarranted and
stated that a political party may campaign for a change in the law or the constitutional structures
impermissible classification not justified by the circumstances of the case."
of a state if it uses legal and democratic means and the changes it proposes are consistent with
democratic principles. The ECHR has emphasized that political ideas that challenge the existing
Freedom of Expression and Association order and whose realization is advocated by peaceful means must be afforded a proper
opportunity of expression through the exercise of the right of association, even if such ideas may
seem shocking or unacceptable to the authorities or the majority of the population. 44 A political
Under our system of laws, every group has the right to promote its agenda and attempt to
group should not be hindered solely because it seeks to publicly debate controversial political
persuade society of the validity of its position through normal democratic means.39 It is in the
issues in order to find solutions capable of satisfying everyone concerned. 45 Only if a political
public square that deeply held convictions and differing opinions should be distilled and
party incites violence or puts forward policies that are incompatible with democracy does it fall
deliberated upon. As we held in Estrada v. Escritor:40
outside the protection of the freedom of association guarantee.46

In a democracy, this common agreement on political and moral ideas is distilled in the public
We do not doubt that a number of our citizens may believe that homosexual conduct is
square. Where citizens are free, every opinion, every prejudice, every aspiration, and every
distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the
moral discernment has access to the public square where people deliberate the order of their life
other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that
together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious
relationships between individuals of the same sex are morally equivalent to heterosexual
belief, and these citizens have equal access to the public square. In this representative
relationships. They, too, are entitled to hold and express that view. However, as far as this Court
democracy, the state is prohibited from determining which convictions and moral judgments may
is concerned, our democracy precludes using the religious or moral views of one part of the
be proposed for public deliberation. Through a constitutionally designed process, the people
community to exclude from consideration the values of other members of the community.
deliberate and decide. Majority rule is a necessary principle in this democratic governance. Thus,
when public deliberation on moral judgments is finally crystallized into law, the laws will largely
reflect the beliefs and preferences of the majority, i.e., the mainstream or median Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It
groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it well may be that this Decision will only serve to highlight the discrepancy between the rigid
specifies – including protection of religious freedom "not only for a minority, however small – not constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We do
only for a majority, however large – but for each of us" – the majority imposes upon itself a self- not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus
denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions
dissenting minorities. of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor subsequent punishment sex, language, religion, political or other opinion, national or social origin, property, birth or other
imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily status.
associate, then there has been no restriction on their freedom of expression or association. The
OSG argues that:
In this context, the principle of non-discrimination requires that laws of general application
relating to elections be applied equally to all persons, regardless of sexual orientation. Although
There was no utterance restricted, no publication censored, or any assembly denied. sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article
[COMELEC] simply exercised its authority to review and verify the qualifications of petitioner as 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in
a sectoral party applying to participate in the party-list system. This lawful exercise of duty Article 26 should be construed to include "sexual orientation."48Additionally, a variety of United
cannot be said to be a transgression of Section 4, Article III of the Constitution. Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited
under various international agreements.49
xxxx
The UDHR provides:
A denial of the petition for registration x x x does not deprive the members of the petitioner to
freely take part in the conduct of elections. Their right to vote will not be hampered by said denial. Article 21.
In fact, the right to vote is a constitutionally-guaranteed right which cannot be limited.
(1) Everyone has the right to take part in the government of his country, directly or through freely
As to its right to be elected in a genuine periodic election, petitioner contends that the denial of chosen representatives.
Ang Ladlad’s petition has the clear and immediate effect of limiting, if not outrightly nullifying the
capacity of its members to fully and equally participate in public life through engagement in the
Likewise, the ICCPR states:
party list elections.

Article 25
This argument is puerile. The holding of a public office is not a right but a privilege subject to
limitations imposed by law. x x x47
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned
in article 2 and without unreasonable restrictions:
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in
the party-list system, and – as advanced by the OSG itself – the moral objection offered by the
COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has (a) To take part in the conduct of public affairs, directly or through freely chosen
been precluded, because of COMELEC’s action, from publicly expressing its views as a political representatives;
party and participating on an equal basis in the political process with other equally-qualified
party-list candidates, we find that there has, indeed, been a transgression of petitioner’s
fundamental rights. (b) To vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free
expression of the will of the electors;
Non-Discrimination and International Law
(c) To have access, on general terms of equality, to public service in his country.
In an age that has seen international law evolve geometrically in scope and promise,
international human rights law, in particular, has grown dynamically in its attempt to bring about
a more just and humane world order. For individuals and groups struggling with inadequate As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral
structural and governmental support, international human rights norms are particularly significant, participation is elaborated by the Human Rights Committee in its General Comment No. 25
and should be effectively enforced in domestic legal systems so that such norms may become (Participation in Public Affairs and the Right to Vote) as follows:
actual, rather than ideal, standards of conduct.
1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the
Our Decision today is fully in accord with our international obligations to protect and promote conduct of public affairs, the right to vote and to be elected and the right to have access to public
service. Whatever form of constitution or government is in force, the Covenant requires States to
human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates
to the right to electoral participation, enunciated in the UDHR and the ICCPR. adopt such legislative and other measures as may be necessary to ensure that citizens have an
effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic
government based on the consent of the people and in conformity with the principles of the
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows: Covenant.

Article 26 xxxx

All persons are equal before the law and are entitled without any discrimination to the equal 15. The effective implementation of the right and the opportunity to stand for elective office
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the
persons equal and effective protection against discrimination on any ground such as race, colour, right to stand for election, such as minimum age, must be justifiable on objective and reasonable
criteria. Persons who are otherwise eligible to stand for election should not be excluded by PUNO, C.J.:
unreasonable or discriminatory requirements such as education, residence or descent, or by
reason of political affiliation. No person should suffer discrimination or disadvantage of any kind
I concur with the groundbreaking ponencia of my esteemed colleague, Mr. Justice Mariano C.
because of that person's candidacy. States parties should indicate and explain the legislative
del Castillo. Nonetheless, I respectfully submit this separate opinion to underscore some points
provisions which exclude any group or category of persons from elective office. 50
that I deem significant.

We stress, however, that although this Court stands willing to assume the responsibility of giving
FIRST. The assailed Resolutions of the Commission on Elections (COMELEC) run afoul of the
effect to the Philippines’ international law obligations, the blanket invocation of international law
non-establishment clause1 of the Constitution. There was cypher effort on the part of the
is not the panacea for all social ills. We refer now to the petitioner’s invocation of the Yogyakarta
COMELEC to couch its reasoning in legal – much less constitutional – terms, as it denied Ang
Principles (the Application of International Human Rights Law In Relation to Sexual Orientation
Ladlad’s petition for registration as a sectoral party principally on the ground that it "tolerates
and Gender Identity),51 which petitioner declares to reflect binding principles of international law.
immorality which offends religious (i.e., Christian2 and Muslim3) beliefs." To be sure, the
COMELEC’s ruling is completely antithetical to the fundamental rule that "[t]he public morality
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that expressed in the law is necessarily secular[,] for in our constitutional order, the religion clauses
are obligatory on the Philippines. There are declarations and obligations outlined in said prohibit the state from establishing a religion, including the morality it sanctions."4 As we
Principles which are not reflective of the current state of international law, and do not find basis explained in Estrada v. Escritor,5 the requirement of an articulable and discernible secular
in any of the sources of international law enumerated under Article 38(1) of the Statute of the purpose is meant to give flesh to the constitutional policy of full religious freedom for all, viz.:
International Court of Justice.52 Petitioner has not undertaken any objective and rigorous
analysis of these alleged principles of international law to ascertain their true status.
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
We also hasten to add that not everything that society – or a certain segment of society – wants Establishment Clause puts a negative bar against establishment of this morality arising from one
or demands is automatically a human right. This is not an arbitrary human intervention that may religion or the other, and implies the affirmative "establishment" of a civil order for the resolution
be added to or subtracted from at will. It is unfortunate that much of what passes for human of public moral disputes. This agreement on a secular mechanism is the price of ending the "war
rights today is a much broader context of needs that identifies many social desires as rights in of all sects against all"; the establishment of a secular public moral order is the social contract
order to further claims that international law obliges states to sanction these innovations. This produced by religious truce.
has the effect of diluting real human rights, and is a result of the notion that if "wants" are
couched in "rights" language, then they are no longer controversial.1avvphi1
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
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration "morals" in the New Civil Code, or "moral character" in the Constitution, the distinction between
formulated by various international law professors, are – at best – de lege ferenda – and do not public and secular morality on the one hand, and religious morality, on the other, should be kept
constitute binding obligations on the Philippines. Indeed, so much of contemporary international in mind. The morality referred to in the law is public and necessarily secular, not religious as the
law is characterized by the "soft law" nomenclature, i.e., international law is full of principles that dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may
promote international cooperation, harmony, and respect for human rights, most of which influence the civil public order but public moral disputes may be resolved only on grounds
amount to no more than well-meaning desires, without the support of either State practice or articulable in secular terms." Otherwise, if government relies upon religious beliefs in formulating
opinio juris.53 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
As a final note, we cannot help but observe that the social issues presented by this case are
"compelled religion;" anathema to religious freedom. Likewise, if government based its actions
emotionally charged, societal attitudes are in flux, even the psychiatric and religious
upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
communities are divided in opinion. This Court’s role is not to impose its own view of acceptable
disapprove contrary religious or non-religious views that would not support the policy. As a result,
behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public
government will not provide full religious freedom for all its citizens, or even make it appear that
opinion, and confident in the knowledge that our democracy is resilient enough to withstand
those whose beliefs are disapproved are second-class citizens. Expansive religious freedom
vigorous debate.
therefore requires that government be neutral in matters of religion; governmental reliance upon
religious justification is inconsistent with this policy of neutrality.6 (citations omitted and italics
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on supplied)
Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are
hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioner’s application
Consequently, the assailed resolutions of the COMELEC are violative of the constitutional
for party-list accreditation.
directive that no religious test shall be required for the exercise of civil or political rights. 7 Ang
Ladlad’s right of political participation was unduly infringed when the COMELEC, swayed by the
SO ORDERED. private biases and personal prejudices of its constituent members, arrogated unto itself the role
of a religious court or worse, a morality police.
MARIANO C. DEL CASTILLO
Associate Justice The COMELEC attempts to disengage itself from this "excessive entanglement"8 with religion by
arguing that we "cannot ignore our strict religious upbringing, whether Christian or
Muslim"9 since the "moral precepts espoused by [these] religions have slipped into society
SEPARATE CONCURRING OPINION
and … are now publicly accepted moral norms."10 However, as correctly observed by Mr. Justice
del Castillo, the Philippines has not seen fit to disparage homosexual conduct as to actually meaning, of the universe, and of the mystery of human life.25 Beliefs about these matters could
criminalize it. Indeed, even if the State has legislated to this effect, the law is vulnerable to not define the attributes of personhood were they formed under compulsion of the
constitutional attack on privacy grounds.11 These alleged "generally accepted public morals" State.26Lawrence v. Texas27 is again instructive:
have not, in reality, crossed over from the religious to the secular sphere.
To say that the issue in Bowers was simply the right to engage in certain sexual conduct
Some people may find homosexuality and bisexuality deviant, odious, and offensive. demeans the claim the individual put forward, just as it would demean a married couple were it
Nevertheless, private discrimination, however unfounded, cannot be attributed or ascribed to the to be said marriage is simply about the right to have sexual intercourse. The laws involved in
State. Mr. Justice Kennedy, speaking for the United States (U.S.) Supreme Court in the Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular
landmark case of Lawrence v. Texas,12 opined: 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
It must be acknowledged, of course, that the Court in Bowers was making the broader point that
entitled to formal recognition in the law, is within the liberty of persons to choose without being
for centuries there have been powerful voices to condemn homosexual conduct as immoral. The
punished as criminals.
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 This, as a general rule, should counsel against attempts by the State, or a court, to define the
and which thus determine the course of their lives. These considerations do not answer the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an
question before us, however. The issue is whether the majority may use the power of the State institution the law protects. It suffices for us to acknowledge that adults may choose to enter
to enforce these views on the whole society through operation of the …law. "Our obligation is to upon this relationship in the confines of their homes and their own private lives and still retain
define the liberty of all, not to mandate our own moral code." 13 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
SECOND. The COMELEC capitalized on Ang Ladlad’s definition of the term "sexual
choice. (italics supplied)
orientation,"14 as well as its citation of the number of Filipino men who have sex with men, 15 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 THIRD. The ponencia of Mr. Justice del Castillo refused to characterize homosexuals and
identity and a legitimate exercise of personal liberty. For, the "ability to [independently] define bisexuals as a class in themselves for purposes of the equal protection clause. Accordingly, it
one’s identity that is central to any concept of liberty" cannot truly be exercised in a vacuum; we struck down the assailed Resolutions using the most liberal basis of judicial scrutiny, the rational
all depend on the "emotional enrichment from close ties with others."16 As Mr. Justice Blackmun basis test, according to which government need only show that the challenged classification is
so eloquently said in his stinging dissent in Bowers v. Hardwick 17 (overturned by the United rationally related to serving a legitimate state interest.
States Supreme Court seventeen years later in Lawrence v. Texas18):
I humbly submit, however, that a classification based on gender or sexual orientation is a quasi-
Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key suspect classification, as to trigger a heightened level of review.
relationship of human existence, central to family life, community welfare, and the development
of human personality[.]"19 The fact that individuals define themselves in a significant way through
Preliminarily, in our jurisdiction, the standard and analysis of equal protection challenges in the
their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there
main have followed the rational basis test, coupled with a deferential attitude to legislative
may be many "right" ways of conducting those relationships, and that much of the richness of a
classifications and a reluctance to invalidate a law unless there is a showing of a clear and
relationship will come from the freedom an individual has to choose the form and nature of these
unequivocal breach of the Constitution.28 However, Central Bank Employees Association, Inc. v.
intensely personal bonds.20
Bangko Sentral ng Pilipinas,29 carved out an exception to this general rule, such that prejudice to
persons accorded special protection by the Constitution requires stricter judicial scrutiny than
In a variety of circumstances we have recognized that a necessary corollary of giving individuals mere rationality, viz.:
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
Congress retains its wide discretion in providing for a valid classification, and its policies should
public education should give way to a competing claim by the Amish to the effect that extended
be accorded recognition and respect by the courts of justice except when they run afoul of the
formal schooling threatened their way of life, the Court declared: "There can be no assumption
Constitution. The deference stops where the classification violates a fundamental right, or
that today's majority is ‘right’ and the Amish and others like them are ‘wrong.’ A way of life that is
prejudices persons accorded special protection by the Constitution. When these violations arise,
odd or even erratic but interferes with no rights or interests of others is not to be condemned
this Court must discharge its primary role as the vanguard of constitutional guaranties, and
because it is different."21 The Court claims that its decision today merely refuses to recognize a
require a stricter and more exacting adherence to constitutional limitations. Rational basis should
fundamental right to engage in homosexual sodomy; what the Court really has refused to
not suffice. (citations omitted and italics supplied)
recognize is the fundamental interest all individuals have in controlling the nature of their
intimate associations with others. (italics supplied)
Considering thus that labor enjoys such special and protected status under our fundamental law,
22 the Court ruled in favor of the Central Bank Employees Association, Inc. in this wise:
It has been said that freedom extends beyond spatial bounds. Liberty presumes an autonomy
of self that includes freedom of thought, belief, expression, and certain intimate conduct.23 These
matters, involving the most intimate and personal choices a person may make in a lifetime, While R.A. No. 7653 started as a valid measure well within the legislature's power, we hold that
choices central to personal dignity and autonomy, are central to the liberty protected by the due the enactment of subsequent laws exempting all rank-and-file employees of other GFIs leeched
process clause.24 At the heart of liberty is the right to define one’s own concept of existence, of all validity out of the challenged proviso.
 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
According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also
SEC getting one). The distinction made by the law is not only superficial, but also arbitrary. It is
violative of the equal protection clause because after it was enacted, the charters of the GSIS,
not based on substantial distinctions that make real differences between the BSP rank-and-file
LBP, DBP and SSS were also amended, but the personnel of the latter GFIs were all exempted
and the seven other GFIs.
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.
xxxx
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 The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven
GFIs, from 1995 to 2004, viz.: 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
xxxx
are being treated as unalikes without any rational basis.

It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs
xxxx
share this common proviso: a blanket exemption of all their employees from the coverage of the
SSL, expressly or impliedly...
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
xxxx
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
The abovementioned subsequent enactments, however, constitute significant changes in conceivable irrational discrimination in our society. Indeed, the social justice imperatives in the
circumstance that considerably alter the reasonability of the continued operation of the last Constitution, coupled with the special status and protection afforded to labor, compel this
proviso of Section 15(c), Article II of Republic Act No. 7653, thereby exposing the proviso to approach.
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 —
Apropos the special protection afforded to labor under our Constitution and international law, we
between the rank-and-file of the BSP and the seven other GFIs. The classification must not only
held in International School Alliance of Educators v. Quisumbing:
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. 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
Stated differently, the second level of inquiry deals with the following questions: Given that
protect and enhance the right of all people to human dignity, reduce social, economic, and
Congress chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the
political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the
exclusion of the rank-and-file employees of the BSP stand constitutional scrutiny in the light of
exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his
the fact that Congress did not exclude the rank-and-file employees of the other GFIs? Is
due, and observe honesty and good faith."
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 International law, which springs from general principles of law, likewise proscribes discrimination.
protection of the law bounded in time and space that: (a) the right can only be invoked against a General principles of law include principles of equity, i.e., the general principles of fairness and
classification made directly and deliberately, as opposed to a discrimination that arises indirectly, justice, based on the test of what is reasonable. The Universal Declaration of Human Rights, the
or as a consequence of several other acts; and (b) is the legal analysis confined to determining International Covenant on Economic, Social, and Cultural Rights, the International Convention
the validity within the parameters of the statute or ordinance (where the inclusion or exclusion is on the Elimination of All Forms of Racial Discrimination, the Convention against Discrimination in
articulated), thereby proscribing any evaluation vis-à-vis the grouping, or the lack thereof, among Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and
several similar enactments made over a period of time? 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 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 In the workplace, where the relations between capital and labor are often skewed in favor of
those that have been declared to contravene the Constitution. Verily, if this could serve as a capital, inequality and discrimination by the employer are all the more reprehensible.
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
The Constitution specifically provides that labor is entitled to "humane conditions of work." These
made by Congress or by the Executive; it cannot run riot and overrun the ramparts of protection
conditions are not restricted to the physical workplace — the factory, the office or the field — but
of the Constitution.
include as well the manner by which employers treat their employees.

xxxx
The Constitution also directs the State to promote "equality of employment opportunities for all." they — and not the officers — who have the real economic and financial need for the adjustment.
Similarly, the Labor Code provides that the State shall "ensure equal work opportunities This is in accord with the policy of the Constitution "to free the people from poverty, provide
regardless of sex, race or creed." It would be an affront to both the spirit and letter of these adequate social services, extend to them a decent standard of living, and improve the quality of
provisions if the State, in spite of its primordial obligation to promote and ensure equal life for all." Any act of Congress that runs counter to this constitutional desideratum deserves
employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of strict scrutiny by this Court before it can pass muster. (citations omitted and italics supplied)
employment.
Corollarily, American case law provides that a state action questioned on equal protection
xxx xxx xxx grounds is subject to one of three levels of judicial scrutiny. The level of review, on a sliding
scale basis, varies with the type of classification utilized and the nature of the right affected.30
Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7 thereof,
provides: 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
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of
compelling governmental interest.31 Over the years, the United States Supreme Court has
just and [favorable] conditions of work, which ensure, in particular:
determined that suspect classes for equal protection purposes include classifications based on
race, religion, alienage, national origin, and ancestry.32 The underlying rationale of this theory is
a. Remuneration which provides all workers, as a minimum, with: that where legislation affects discrete and insular minorities, the presumption of constitutionality
fades because traditional political processes may have broken down. 33 In such a case, the State
bears a heavy burden of justification, and the government action will be closely scrutinized in
i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in
light of its asserted purpose.34
particular women being guaranteed conditions of work not inferior to those enjoyed by men, with
equal pay for equal work;
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
xxx xxx xxx will be treated under intermediate or heightened review.35 To survive intermediate scrutiny, the
law must not only further an important governmental interest and be substantially related to that
The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal interest, but the justification for the classification must be genuine and must not depend on broad
truism of "equal pay for equal work." Persons who work with substantially equal qualifications, generalizations.36 Noteworthy, and of special interest to us in this case, quasi-suspect classes
skill, effort and responsibility, under similar conditions, should be paid similar salaries. include classifications based on gender or illegitimacy. 37

xxxx If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for mere
rationality.38 This is a relatively relaxed standard reflecting the Court’s awareness that the
drawing of lines which creates distinctions is peculiarly a legislative task and an unavoidable
Under most circumstances, the Court will exercise judicial restraint in deciding questions of one.39 The presumption is in favor of the classification, of the reasonableness and fairness of
constitutionality, recognizing the broad discretion given to Congress in exercising its legislative state action, and of legitimate grounds of distinction, if any such grounds exist, on which the
power. Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion State acted.40
would be given deferential treatment.

Instead of adopting a rigid formula to determine whether certain legislative classifications

But if the challenge to the statute is premised on the denial of a fundamental right, or the warrant more demanding constitutional analysis, the United States Supreme Court has looked to
perpetuation of prejudice against persons favored by the Constitution with special protection, four factors,41 thus:
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 (1) The history of invidious discrimination against the class burdened by the
private person or the government itself or one of its instrumentalities. Oppressive acts will be legislation;42
struck down regardless of the character or nature of the actor.
(2) Whether the characteristics that distinguish the class indicate a typical class
In the case at bar, the challenged proviso operates on the basis of the salary grade or officer- member's ability to contribute to society;43
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 (3) Whether the distinguishing characteristic is "immutable" or beyond the class
now receive higher compensation packages that are competitive with the industry, while the members' control;44 and
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 (4) The political power of the subject class.45
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
These factors, it must be emphasized, are not constitutive essential elements of a suspect or
whose status and rank in life are less and limited, especially in terms of job marketability, it is
quasi-suspect class, as to individually demand a certain weight.46 The U.S. Supreme Court has
applied the four factors in a flexible manner; it has neither required, nor even discussed, every (h) Young gays and lesbians are forcibly subjected to psychiatric counseling
factor in every case.47 Indeed, no single talisman can define those groups likely to be the target and therapy to cure them[,] despite the de-listing (sic) of homosexuality and
of classifications offensive to the equal protection clause and therefore warranting heightened or lesbianism as a mental disorder by the American Psychiatric Association;
strict scrutiny; experience, not abstract logic, must be the primary guide. 48
(i) Transgenders, or individuals who were born mail but who self-identity as
In any event, the first two factors – history of intentional discrimination and relationship of women and dress as such, are denied entry or services in certain
classifying characteristic to a person's ability to contribute – have always been present when restaurants and establishments; and
heightened scrutiny has been applied.49 They have been critical to the analysis and could be
considered as prerequisites to concluding a group is a suspect or quasi-suspect
(j) Several murders from the years 2003-3006 were committed against gay
class.50 However, the last two factors – immutability of the characteristic and political
men, but were not acknowledged by police as hate crimes or violent acts of
powerlessness of the group – are considered simply to supplement the analysis as a means to
bigotry.
discern whether a need for heightened scrutiny exists.51

7. In the recent May 2009 US asylum case of Philip Belarmino, he testified that as a
Guided by this framework, and considering further that classifications based on sex or gender –
young gay person in the Philippines, he was subjected to a variety of sexual abuse
albeit on a male/female, man/woman basis – have been previously held to trigger heightened
and violence, including repeated rapes[,] which he could not report to [the] police [or
scrutiny, I respectfully submit that classification on the basis of sexual orientation (i.e.,
speak of] to his own parents.
homosexuality and/or bisexuality) is a quasi-suspect classification that prompts intermediate
review.
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
The first consideration is whether homosexuals have suffered a history of purposeful unequal
legislative rationality in pursuit of some legitimate objective."54
treatment because of their sexual orientation.52 One cannot, in good faith, dispute that gay and
lesbian persons historically have been, and continue to be, the target of purposeful and
pernicious discrimination due solely to their sexual orientation. 53 Paragraphs 6 and 7 of Ang A second relevant consideration is whether the character-in-issue is related to the person’s
Ladlad’s Petition for Registration for party-list accreditation in fact state: ability to contribute to society.55 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 stereotypes and prejudice.56 Insofar as sexual orientation is concerned, it is gainful
6. There have been documented cases of discrimination and violence perpetuated
to repair to Kerrigan v. Commissioner of Public Health,57 viz.:
against the LGBT Community, among which are:

The defendants also concede that sexual orientation bears no relation to a person's ability to
(a) Effeminate or gay youths being beaten up by their parents and/or
participate in or contribute to society, a fact that many courts have acknowledged, as well. x x x
guardians to make them conform to standard gender norms of behavior;
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
(b) Fathers and/or guardians who allow their daughters who are butch not exist; their impediment would betray their status. x x x In this critical respect, gay persons
lesbians to be raped[, so as] to "cure" them into becoming straight women; 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
(c) Effeminate gays and butch lesbians are kicked out of school, NGOs, and
certain responsibilities in society.58
choirs because of their identity;

Unlike the characteristics unique to those groups, however, "homosexuality bears no relation at
(d) Effeminate youths and masculine young women are refused admission
all to [an] individual's ability to contribute fully to society."59 Indeed, because an individual's
from (sic) certain schools, are suspended or are automatically put on
homosexual orientation "implies no impairment in judgment, stability, reliability or general social
probation;
or vocational capabilities";60 the observation of the United States Supreme Court that race,
alienage and national origin -all suspect classes entitled to the highest level of constitutional
(e) Denial of jobs, promotions, trainings and other work benefits once one’s protection- "are so seldom relevant to the achievement of any legitimate state interest that laws
sexual orientation and gender identity is (sic) revealed; grounded in such considerations are deemed to reflect prejudice and antipathy" 61 is no less
applicable to gay persons. (italics supplied)
(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- Clearly, homosexual orientation is no more relevant to a person's ability to perform and
kidnapping [L]aw; contribute to society than is heterosexual orientation.62

(g) Pray-overs, exorcisms, and other religious cures are performed on gays A third factor that courts have considered in determining whether the members of a class are
and lesbians to "reform" them; entitled to heightened protection for equal protection purposes is whether the attribute or
characteristic that distinguishes them is immutable or otherwise beyond their control. 63 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 narrative) of persecution, discrimination, and pathos. In my humble view, marginalization for
and legal ostracism, namely, their attraction to persons of the same sex. 64 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
Immutability is a factor in determining the appropriate level of scrutiny because the inability of a
representative democracy] in the enactment of laws designed to benefit them."83 The party-list
person to change a characteristic that is used to justify different treatment makes the
system could not have been conceptualized to perpetuate this injustice.
discrimination violative of the rather "‘basic concept of our system that legal burdens should bear
some relationship to individual responsibility.’"65 However, the constitutional relevance of the
immutability factor is not reserved to those instances in which the trait defining the burdened Accordingly, I vote to grant the petition.
class is absolutely impossible to change.66 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
REYNATO S. PUNO
would be abhorrent for government to penalize a person for refusing to change [it]." 67
Chief Justice

Prescinding from these premises, it is not appropriate to require a person to repudiate or change
DISSENTING OPINION
his or her sexual orientation in order to avoid discriminatory treatment, because a person's
sexual orientation is so integral an aspect of one's identity.68 Consequently, because sexual
orientation "may be altered [if at all] only at the expense of significant damage to the individual’s CORONA, J.:
sense of self," classifications based thereon "are no less entitled to consideration as a suspect
or quasi-suspect class than any other group that has been deemed to exhibit an immutable
characteristic."69 Stated differently, sexual orientation is not the type of human trait that allows 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
courts to relax their standard of review because the barrier is temporary or susceptible to self-
help.70 Constitution and RA 7941, as a marginalized and underrepresented sector in the party-list
system?

The final factor that bears consideration is whether the group is "a minority or politically
powerless."71 However, the political powerlessness factor of the level-of-scrutiny inquiry does not The relevant facts are likewise relatively uncomplicated. Petitioner seeks accreditation by the
require a showing of absolute political powerlessness.72 Rather, the touchstone of the analysis 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
should be "whether the group lacks sufficient political strength to bring a prompt end to the
prejudice and discrimination through traditional political means."73 sector under RA 7941, the Commission on Elections denied its petition.

A System For Marginalized

Applying this standard, it would not be difficult to conclude that gay persons are entitled to
heightened constitutional protection despite some recent political progress. 74 The discrimination
that they have suffered has been so pervasive and severe – even though their sexual orientation And Underrepresented Sectors
has no bearing at all on their ability to contribute to or perform in society – that it is highly unlikely
that legislative enactments alone will suffice to eliminate that discrimination. 75 Furthermore,
insofar as the LGBT community plays a role in the political process, it is apparent that their The party-list system is an innovation of the 1987 Constitution. It is essentially a tool for the
numbers reflect their status as a small and insular minority.76 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
It is therefore respectfully submitted that any state action singling lesbians, gays, bisexuals and of the marginalized sectors contributes to the advancement of the common good and of our
trans-genders out for disparate treatment is subject to heightened judicial scrutiny to ensure that nation’s democratic ideals.
it is not the product of historical prejudice and stereotyping.77
But who are the marginalized and underrepresented sectors for whom the party-list system was
In this case, the assailed Resolutions of the COMELEC unmistakably fail the intermediate level designed?
of review. Regrettably, they betray no more than bigotry and intolerance; they raise the
inevitable inference that the disadvantage imposed is born of animosity toward the class of
persons affected78 (that is, lesbian, gay, bisexual and trans-gendered individuals). In our The Texts of the Constitution
constitutional system, status-based classification undertaken for its own sake cannot survive. 79
And of RA1 7941
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 The resolution of a constitutional issue primarily requires that the text of the fundamental law be
Constitution80 or Republic Act No. (RA) 7941.81 However, this position is belied by our ruling in consulted. Section 5(2), Article VI of the Constitution directs the course of our present inquiry. It
Ang Bagong Bayani-OFW Labor Party v. COMELEC,82 where we clearly held that the provides:
enumeration of marginalized and underrepresented sectors in RA 7941 is not exclusive.
SEC. 5. x x x
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
(2) The party-list representatives shall constitute twenty per centum of the total number of (4) It is receiving support from any foreign government, foreign political party,
Representatives including those under the party-list. For three consecutive terms after the foundation, organization, whether directly or through any of its officers or members or
ratification of this Constitution, one-half of the seats allocated to party-list representatives shall indirectly through third parties for partisan election purposes;
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
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
provided by law, except the religious sector. (emphasis supplied)

(6) It declares untruthful statements in its petition;

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

Section 2. Declaration of policy. — The State shall promote proportional representation in the (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least
election of representatives to the House of Representatives through a party-list system of two per centum (2%) of the votes cast under the party-list system in the two (2)
registered national, regional and sectoral parties or organizations or coalitions thereof, which will preceding elections for the constituency in which it has registered. (emphasis supplied)
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
The Court’s Previous Pronouncements
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 As the oracle of the Constitution, this Court divined the intent of the party-list system and defined
representation of party, sectoral or group interests in the House of Representatives by its meaning in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections:2
enhancing their chances to compete for and win seats in the legislature, and shall provide the
simplest scheme possible.
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
xxx xxx xxx 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
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 The Marginalized and Underrepresented to Become Lawmakers Themselves
(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 [Section 2 of RA 7941] mandates a state policy of promoting proportional representation by
program of government, list of officers, coalition agreement and other relevant information as the means of the Filipino-style party-list system, which will "enable" the election to the House of
COMELEC may require: Provided, That the sectors shall include labor, peasant, fisherfolk, Representatives of Filipino citizens,
urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals. 1. who belong to marginalized and underrepresented sectors, organizations and
parties; and
The COMELEC shall publish the petition in at least two (2) national newspapers of general
circulation. 2. who lack well-defined constituencies; but

The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15) days 3. who could contribute to the formulation and enactment of appropriate legislation
from the date it was submitted for decision but in no case not later than sixty (60) days before that will benefit the nation as a whole.
election.
The key words in this policy are "proportional representation," "marginalized and
Section 6. Refusal and/or Cancellation of Registration. — The COMELEC may, motu propio or underrepresented," and "lack [of] well-defined constituencies."
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: "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
(1) It is a religious sect or denomination, organization or association, organized for underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor,
religious purposes; peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals."
(2) It advocates violence or unlawful means to seek its goal;
However, it is not enough for the candidate to claim representation of the marginalized and
(3) It is a foreign party or organization; 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 It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority
constituencies mentioned in Section 5. Concurrently, the persons nominated by the party-list who wallow in poverty, destitution and infirmity. It was for them that the party-list system was
candidate-organization must be "Filipino citizens belonging to marginalized and enacted -- to give them not only genuine hope, but genuine power; to give them the opportunity
underrepresented sectors, organizations and parties." 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,
Finally, "lack of well-defined constituenc[y]" refers to the absence of a traditionally identifiable
it invites those marginalized and underrepresented in the past – the farm hands, the fisher folk,
electoral group, like voters of a congressional district or territorial unit of government. Rather, it
the urban poor, even those in the underground movement – to come out and participate, as
points again to those with disparate interests identified with the "marginalized or
indeed many of them came out and participated during the last elections. The State cannot now
underrepresented."
disappoint and frustrate them by disabling and desecrating this social justice vehicle.

In the end, the role of the Comelec is to see to it that only those Filipinos who are "marginalized
xxx xxx xxx
and underrepresented" become members of Congress under the party-list system, Filipino-style.

Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under
The intent of the Constitution is clear: to give genuine power to the people, not only by giving
the party-list system would not only dilute, but also prejudice the chance of the marginalized and
more law to those who have less in life, but more so by enabling them to become veritable
underrepresented, contrary to the intention of the law to enhance it. The party-list system is a
lawmakers themselves. Consistent with this intent, the policy of the implementing law, we repeat,
tool for the benefit of the underprivileged; the law could not have given the same tool to others,
is likewise clear: "to enable Filipino citizens belonging to marginalized and underrepresented
to the prejudice of the intended beneficiaries.
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.
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
The marginalized and underrepresented sectors to be represented under the party-list system
out. The clear state policy must permeate every discussion of the qualification of political parties
are enumerated in Section 5 of RA 7941, which states:
and other organizations under the party-list system. (emphasis and underscoring supplied)

"SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or
Hence, in Ang Bagong Bayani-OFW Labor Party, the Court stressed that the party-list system is
coalition for purposes of the party-list system by filing with the COMELEC not later than ninety
reserved only for those sectors marginalized and underrepresented in the past (e.g., labor,
(90) days before the election a petition verified by its president or secretary stating its desire to
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
participate in the party-list system as a national, regional or sectoral party or organization or a
youth, veterans, overseas workers, professionals and even those in the underground movement
coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or
who wish to come out and participate). They are those sectors traditionally and historically
program of government, list of officers, coalition agreement and other relevant information as the
marginalized and deprived of an opportunity to participate in the formulation of national policy
COMELEC may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban
although their sectoral interests are also traditionally and historically regarded as vital to the
poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
national interest. That is why Section 2 of RA 7941 speaks of "marginalized and under-
workers, and professionals."
represented sectors, organizations and parties, and who lack well-defined political
constituencies but who could contribute to the formulation and enactment of appropriate
While the enumeration of marginalized and underrepresented sectors is not exclusive, it legislation that will benefit the nation as a whole."
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
How should the matter of whether a particular sectoral interest is vital to national interest (and
statute are interpreted in connection with, and their meaning is ascertained by reference to, the
therefore beneficial to the nation as a whole) be determined? Chief Justice Reynato S. Puno’s
words and the phrases with which they are associated or related. Thus, the meaning of a term in
opinion3 in Barangay Association for National Advancement and Transparency (BANAT) v.
a statute may be limited, qualified or specialized by those in immediate association.
Commission on Elections4 offers valuable insight:

xxx xxx xxx

… 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
Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot mandate to "reduce social, economic, and political inequalities, and remove cultural inequalities
be appropriated by the mansion owners of Forbes Park. The interests of these two sectors are by equitably diffusing wealth and political power for the common good"; the right of the people
manifestly disparate; hence, the OSG’s position to treat them similarly defies reason and and their organizations to effective and reasonable participation at all levels of social, political,
common sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan admitted and economic decision-making; the right of women to opportunities that will enhance their
during the Oral Argument that a group of bankers, industrialists and sugar planters could not join welfare and enable them to realize their full potential in the service of the nation; the right of
the party-list system as representatives of their respective sectors. 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,
While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are
traditions and institutions in the formulation of national plans and policies, and the indispensable
neither marginalized nor underrepresented, for the stark reality is that their economic clout role of the private sector in the national economy.
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.
As such, the interests of marginalized sectors are by tradition and history vital to national interest sudden waves of flux and tipped by shifting winds of change in societal attitudes towards certain
and therefore beneficial to the nation as a whole because the Constitution declares a national groups. Surely, the Constitution and RA 7941 did not envision such kind of a system.
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
Indeed, the significance of the enumeration in Section 5(2), Article VI of the Constitution and
refined by concrete examples involving sectors deemed to be significant in our legal tradition.
Section 5 of RA 7941 is clearly explained in Ang Bagong Bayani-OFW Labor Party:
They are essentially sectors with a constitutional bond, that is, specific sectors subject of specific
provisions in the Constitution, namely, labor,5 peasant,6 urban poor,7 indigenous cultural
communities,8women,9 youth,10 veterans,11 fisherfolk,12 elderly,13 handicapped,14 overseas "Proportional representation" here does not refer to the number of people in a particular district,
workers15 and professionals.16 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,
The premise is that the advancement of the interests of these important yet traditionally and
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
historically marginalized sectors promotes the national interest. The Filipino people as a whole
youth, veterans, overseas workers, and professionals."
are benefited by the empowerment of these sectors.

However, it is not enough for the candidate to claim representation of the marginalized and
The long-muffled voices of marginalized sectors must be heard because their respective
underrepresented, because representation is easy to claim and to feign. The party-list
interests are intimately and indispensably woven into the fabric of the national democratic
organization or party must factually and truly represent the marginalized and underrepresented
agenda. The social, economic and political aspects of discrimination and marginalization should
constituencies mentioned in Section 5. Concurrently, the persons nominated by the party-list
not be divorced from the role of a particular sector or group in the advancement of the collective
candidate-organization must be "Filipino citizens belonging to marginalized and
goals of Philippine society as a whole. In other words, marginalized sectors should be given a
underrepresented sectors, organizations and parties."
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. xxx xxx xxx

A Unifying Thread The marginalized and underrepresented sectors to be represented under the party-list system
are enumerated in Section 5 of RA 7941, which states:
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 "SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or
means that it is safer to construe the Constitution from what appears upon its face. 17 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
With regard to the matter of what qualifies as marginalized and underrepresented sectors under
coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or
the party-list system, Section 5(2), Article VI of the Constitution mentions "the labor, peasant,
program of government, list of officers, coalition agreement and other relevant information as the
urban poor, indigenous cultural communities, women, youth, and such other sectors as may be
COMELEC may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban
provided by law, except the religious sector." On the other hand, the law speaks of "labor,
poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
workers, and professionals."
youth, veterans, overseas workers, and professionals."18

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

Surely, the enumeration of sectors considered as marginalized and underrepresented in the
demonstrates the clear intent of the law that not all sectors can be represented under the party-
fundamental law and in the implementing law (RA 7941) cannot be without significance. To
list system. It is a fundamental principle of statutory construction that words employed in a
ignore them is to disregard the texts of the Constitution and of RA 7941. For, indeed, the very
statute are interpreted in connection with, and their meaning is ascertained by reference to, the
first of Ang Bagong Bayani-OFW Labor Party’s eight guidelines for screening party-list
words and the phrases with which they are associated or related. Thus, the meaning of a term in
participants is this: the parties, sectors or organizations "must represent the marginalized and
a statute may be limited, qualified or specialized by those in immediate association.20(emphasis
underrepresented groups identified in Section 5 of RA 7941." 19
and underscoring supplied)

For this reason, I submit the majority’s decision is cryptic and wanting when it makes short shrift
More importantly, in defining the concept of a "sectoral party," Section 3(d) of RA 7941 limits
of the issue of whether petitioner is a marginalized and underrepresented sector in the following
"marginalized and underrepresented sectors" and expressly refers to the list in Section 5 thereof:
manner:

Section 3. Definition of Terms. — x x x

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.
(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
The resolution of petitions for accreditation in the party-list system on a case-to-case basis not
concerns of their sector, x x x. (emphasis supplied)
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
Petitioner does not question the constitutionality of Sections 2, 3(d) and 5 of RA 7941. (Its In this case, petitioner asserts that it is entitled to accreditation as a marginalized and
charges of violation of non-establishment of religion, equal protection, free speech and free underrepresented sector under the party-list system. However, the Commission on Elections
association are all leveled at the assailed resolutions of the Commission on Elections.) Thus, disagrees.
petitioner admits and accepts that its case must rise or fall based on the aforementioned
provisions of RA 7941.
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
Following the texts of the Constitution and of RA 7941, and in accordance with established rules the petition, the majority effectively rules that petitioner is a qualified marginalized and
of statutory construction and the Court’s pronouncement in Ang Bagong Bayani-OFW Labor underrepresented sector, thereby allowing its accreditation and participation in the party-list
Party, the meaning of "marginalized sectors" under the party list system is limited and qualified. system.
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
I disagree.
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 Even assuming that petitioner was able to show that the community of lesbians, gays, bisexuals
similar sectors. 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
This interpretation is faithful to and deeply rooted in the language of the fundamental law and of
interpretation is resorted to, the LGBT sector cannot establish a close connection to any of the
its implementing statute. It is coherent with the mandate of the Constitution that marginalized
said sectors. Indeed, petitioner does not even try to show its link to any of the said sectors.
sectors qualified to participate in the party-list system but not mentioned in Section 5(2), Article
Rather, it represents itself as an altogether distinct sector with its own peculiar interests and
VI are "such other sectors as may be provided by law" duly enacted by Congress. It is also
agenda.
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, Second, petitioner’s interest as a sector, which is basically the legal recognition of its members’
things or cases, akin to, resembling, or of the same kind or class as those specifically sexual orientation as a right, cannot be reasonably considered as an interest that is traditionally
mentioned.21 Moreover, it reins in the subjective elements of passion and prejudice that and historically considered as vital to national interest. At best, petitioner may cite an emergent
accompany discussions of issues with moral or religious implications as it avoids the need for awareness of the implications of sexual orientation on the national human rights agenda.
complex balancing and undue policy-making. However, an emergent awareness is but a confirmation of lack of traditional and historical
recognition.24 Moreover, even the majority admits that there is no "clear cut consensus favorable
to gay rights claims."25
What is the unifying thread that runs through the marginalized and underrepresented sectors
under the party-list system? What are the family resemblances that would characterize them?22
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
Based on the language of the Constitution and of RA 7941 and considering the pronouncements
constitutional bond, a provision in the fundamental law that specifically recognizes the LGBT
of this Court in Ang Bagong Bayani-OFW Labor Party and BANAT, the following factors are
sector as specially significant to the national interest. This standard, implied in BANAT, is
significant:
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.
(a) they must be among, or closely connected with or similar to, the sectors mentioned
in 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
(b) they must be sectors whose interests are traditionally and historically regarded as at best. Even the majority (aside from extensively invoking foreign practice and international
vital to the national interest but they have long been relegated to the fringes of society conventions rather than Philippine laws) states:
and deprived of an opportunity to participate in the formulation of national policy;
We do not suggest that public opinion, even at its most liberal, reflect a clear cut strong
(c) the vinculum that will establish the close connection with or similarity of sectors to consensus favorable to gay rights claims….26
those expressly mentioned in Section 5 of RA 7941 is a constitutional provision
specifically recognizing the special significance of the said sectors (other than
This is so unlike the significance of the interests of the sectors in Section 5 of RA 7941 which are,
people’s organizations, unless such people’s organizations represent sectors
without doubt, indisputable.
mentioned in Section 5 of RA 7941)23 to the advancement of the national interest and

Regardless of the personal beliefs and biases of its individual members, this Court can only
(d) while lacking in well-defined political constituencies, they must have regional or
apply and interpret the Constitution and the laws. Its power is not to create policy but to
national presence to ensure that their interests and agenda will be beneficial not only
recognize, review or reverse the policy crafted by the political departments if and when a proper
to their respective sectors but, more importantly, to the nation as a whole.
case is brought before it. Otherwise, it will tread on the dangerous grounds of judicial legislation.

For Purposes of the Party-List System,

Petitioner is Not a Marginalized Sector
In this instance, Congress, in the exercise of its authority under Section 5(2), Article VI of the I have to concur only in the result set forth in the well-written ponencia of Justice Mariano C. Del
Constitution, enacted RA 7941. Sections 2, 3(d) and (5) of the said law instituted a policy when it Castillo because I arrived at the same conclusion following a different path.
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
I also felt that the Court needs, in resolving the issues in this case, to say more about what the
government require us to declare that only sectors expressly mentioned or closely related to
Constitution and Republic Act (R.A.) 7941 intends in the case of the party-list system to abate
those sectors mentioned in Section 5 of RA 7941 are qualified to participate in the party-list
the aggravations and confusion caused by the alarming overnight proliferation of sectoral parties.
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 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 land. In Ang Bagong Bayani-OFW Labor Party v. Commission on Elections
The Court is called upon to exercise judicial restraint in this case by strictly adhering to, rather
(COMELEC),1 the Court laid down guidelines for accreditation, but these seem to leave the
than expanding, legislative policy on the matter of marginalized sectors as expressed in the
COMELEC like everyone else even more perplexed and dumbfounded about what organizations,
enumeration in Section 5 of RA 7941. The Court has no power to amend and expand Sections 2,
clubs, or associations can pass for sectoral parties with a right to claim a seat in the House of
3(d) and 5 of RA 7941 in the guise of interpretation. The Constitution expressly and exclusively
Representatives. The Court can, in adjudicating this case, unravel some of the difficulties.
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 Here, I fully agree that the COMELEC erred when it denied Ang Ladlad’s petition for sectoral
matter is proper. 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.
A Final Word

What I am more concerned about is COMELEC’s claim in its comment on the petition that the
To be succinctly clear about it, I do not say that there is no truth to petitioner’s claim of
Ang Ladlad sectoral party was not marginalized and underrepresented since it is not among, or
discriminatory and oppressive acts against its members. I am in no position to make that claim.
even associated with, the sectors specified in the Constitution and in R.A. 7941. 2 Ang Ladlad, it
Nor do I claim that petitioner has no right to speak, to assemble or to access our political
claims, did not qualify as a marginalized and underrepresented group of people like those
departments, particularly the legislature, to promote the interests of its constituency. Social
representing labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
perceptions of sexual and other moral issues may change over time, and every group has the
handicapped, women, youth, veterans, overseas workers, and professionals. This is effectively
right to persuade its fellow citizens that its view of such matters is the best. 27 But persuading
the COMELEC’s frame of mind in adjudicating applications for accreditation.
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 But, the COMELEC’s proposition imposes an unwarranted restriction which is inconsistent with
political agenda. 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
While bigotry, social stereotyping and other forms of discrimination must be given no place in a
case that the list in R.A. 7941 is not exclusive. Thus, while the party-list system is not meant for
truly just, democratic and libertarian society, the party-list system has a well-defined purpose.
all sectors of society, it was envisioned as a social justice tool for the marginalized and
The party-list system was not designed as a tool to advocate tolerance and acceptance of any
underrepresented in general.
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 As it happened, the only clue that the Constitution provides respecting the identity of the sectors
sectors’ underrepresentation. 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:
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, (2) The party-list representative shall constitute twenty per centum of the total number of
we will be dabbling in policy-making, an act of political will and not of judicial judgment. 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
Accordingly, I respectfully vote to dismiss the petition.
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
RENATO C. CORONA supplied.)
Associate Justice
Getting its bearing from the examples given above, the Congress provided in Section 2 of R.A.
SEPARATE OPINION 7941 a broad standard for screening and identifying those who may qualify for the party-list
system. Thus:
ABAD, J.:
Sec. 2. Declaration of policy. The State shall promote proportional representation in the interests. The group should be characterized by a shared advocacy for genuine issues affecting
election of representatives to the House of Representatives through a party-list system of basic human rights as these apply to their groups. This is in keeping with the statutory objective
registered regional and sectoral parties or organizations or coalitions thereof, which will of sharing with them seats in the House of Representatives so they can take part in enacting
enable Filipino citizens belonging to marginalized and underrepresented sectors, beneficial legislation.
organizations and parties, and who lack well defined political constituencies but who
could contribute to the formulation and enactment of appropriate legislation that will
It should be borne in mind, however, that both the Constitution and R.A. 7941 merely provide by
benefit the nation as a whole, to become members of the House of Representatives.
examples a sense of what the qualified organizations should look like. As the Court
Towards this end, the State shall develop and guarantee a full, free and open party
acknowledged in Ang Bagong Bayani, these examples are not exclusive. For instance, there are
system or group interests in the House of Representatives by enhancing their chances to
groups which are pushed to the margin because they advocate an extremist political ideology,
compete for and win seats in the legislature, and shall provide the simplest scheme
such as the extreme right and the extreme left of the political divide. They may be regarded, if
possible. (Underscoring supplied.)
the evidence warrants, as qualified sectors.

The above speaks of "marginalized and underrepresented sectoral parties or organizations x x x

Further, to qualify, a party applying for accreditation must represent a narrow rather than a
lack well defined political constituencies x x x who could contribute to the formulation and
specific definition of the class of people they seek to represent. For example, the Constitution
enactment of appropriate legislation." But, as the Court said in Ang Bagong Bayani, the whole
uses the term "labor," a narrower definition than the broad and more abstract term, "working
thing boils down to ascertaining whether the party seeking accreditation belongs to the
class," without slipping down to the more specific and concrete definition like "carpenters,"
"marginalized and underrepresented."3
"security guards," "microchips factory workers," "barbers," "tricycle drivers," and similar sub-
groupings in the "labor" group. See the other illustrations below.
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, Broad *Narrow Specifically Defined Groups
Congress crafted that term—marginalized and underrepresented—from its reading of the Definition Definition
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, Working Class Labor Carpenters, security guards, microchip
the women, and the youth sectors. Fortunately, quite often ideas are best described by factory workers, barbers, tricycle drivers
examples of what they are, which was what those who drafted the 1987 Constitution did, rather
Economically Urban Informal settlers, the jobless, persons displaced by domest
than by an abstract description of them.
Deprived Poor

For Congress it was much like looking at a gathering of "a dog, a cat, a horse, an elephant, and The Vulnerable Women Working women, battered women,
a tiger" and concluding that it is a gathering of "animals." Here, it looked at the samples of victims of slavery
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 Work Impaired Handi- Deaf and dumb, the blind, people on wheelchairs
groups belonged to the "marginalized and underrepresented." Capped

So what is the meaning of the term "marginalized and underrepresented?" The examples given *The definition that the Constitution and R.A. 7941 use by their examples.
(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, the handicapped, the veterans, the overseas workers, and the professionals. 4 Thus, Obviously, the level of representation desired by both the Constitution and R.A. 7941 for the
the pertinent portion of Section 5 of R.A. 7941 provides: 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
Sec. 5. Registration. – x x x Provided, that the sector shall include labor, drivers in the example) within the sector desires to apply for accreditation as a party-list group, it
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, must compete with other sub-groups for the seat allotted to the "labor sector" in the House of
women, youth, veterans, overseas workers, andprofessionals. Representatives. This is the apparent intent of the Constitution and the law.

If one were to analyze these Constitutional and statutory examples of qualified parties, it should An interpretation that will allow concretely or specifically defined groups to seek election as a
be evident that they represent the working class (labor, peasant, fisherfolk, overseas workers), separate party-list sector by itself will result in riot and redundancy in the mix of sectoral parties
the service class(professionals), the economically deprived (urban poor), the social grabbing seats in the House of Representatives. It will defeat altogether the objectives of the
outcasts (indigenous cultural minorities), the vulnerable (women, youth) and the work party-list system. If they can muster enough votes, the country may have a party-list of pedicab
impaired (elderly, handicapped, veterans). This analysis provides some understanding of who, drivers and another of tricycle drivers. There will be an irrational apportionment of party-list seats
in the eyes of Congress, are marginalized and underrepresented. in the legislature.

The parties of the marginalized and underrepresented should be more than just lobby or interest In addition, Section 5 of R.A. 7941 provides that parties interested in taking part in the party-list
groups. They must have an authentic identity that goes beyond mere similarities in background system must state if they are to be considered as national, regional, or sectoral parties. Thus:
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
Sec. 5. Registration. – Any organized group of persons may register as a party, Ang Ladlad claims that many cases of intolerance and violence against LGBTs have been
organization or coalition for purposes of the party-list system by filing with the COMELEC documented. At home, effeminate or gay youths are subjected to physical abuse by parents or
not later than ninety (90) days before the election a petition verified by its president or guardians to make them conform to standard gender norms of behavior, while lesbian youths
secretary stating its desire to participate in the party-list system as are raped to cure them of their perceived affliction. LGBTs are refused admission from certain
a national, regional or sectoral party or organization or a coalition of such parties or schools, or are suspended and put on probation. Meanwhile, in the workplace, they are denied
organizations, x x x. promotions or benefits which are otherwise available to heterosexuals holding the same
positions. There is bigotry for their group.
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 Ang Ladlad has amply proved that it meets the requirements for sectoral party accreditation.
inherently regional presence(indigenous cultural minorities) or a national presence (all the Their members are in the vulnerable class like the women and the youth. Ang Ladlad represents
rest). 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 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 The lesbians, gays, bisexuals, and trans-gendered persons in our communities are our brothers,
labor sector. 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
Finally, as the Court held in Ang Bagong Bayani, it is not enough for a party to claim that it
have a direct involvement in crafting legislations that impact on their lives and existence. It is an
represents the marginalized and underrepresented. That is easy to do. The party must factually
opportunity for true and effective representation which is the very essence of our party-list
and truly represent the marginalized and underrepresented. It must present to the COMELEC
system.
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 For the above reasons, I vote to GRANT the petition.
a seat in a regular legislative district.
ROBERTO A. ABAD
In sum, to qualify for accreditation: Associate Justice

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