Party-list system: Mathematical absurdity

By Oscar Franklin B. Tan

Inquirer
MANILA, Philippines?Imagine a land without meaningful
elections. The people, ?singing the songs of angry men,?
throw off a dictator?s yoke, with nuns holding flowers and
rosaries leading a peaceful stand against tanks. Euphoric as
democracy returns and basking in global admiration, the
people proclaim that they shall never again be stripped of
their sacred right of suffrage. In fact, they constitutionalize a
radical new system that fills one-fifth of the House of
Representatives with marginalized sectors? representatives.
Imagine, however, that when the fanfare ends and the votes
are tallied, over half the seats in this special block of one-fifth
are left mysteriously empty. This allegory describes the
Philippine party-list system, and every unfilled seat
represents a damning disenfranchisement and a dastardly
blow to the great spirit of social justice immortalized in the
1987 Constitution.
Our Constitution?s Article VI, Section 5 mandates that 20
percent of the House, currently 55 seats, shall be composed
of representatives ?elected through a party-list system of
registered national, regional, and sectoral parties or
organizations.? After the 2004 elections, however, only 23
party-list representatives were seated, or 10 percent of the
House.
Reconciling conflicting visions in the 1986 Constitutional
Commission (Concom), the Supreme Court in its 2001 Ang
Bagong Bayani decision ruled: ?The party-list system is a
social justice tool designed not only to give more law to the
great masses of our people who have less in life, but also to
enable them to become veritable lawmakers themselves.?
Thus, the system must cater solely to national, regional and
sectoral parties of the marginalized and underrepresented.
Ang Bagong Bayani warned: ?[T]he law crafted to address the
peculiar disadvantages of Payatas hovel dwellers cannot be
appropriated by the mansion owners of Forbes Park.?
This unifying constitutional philosophy, however, does not
cure the Party-List Act?s (Republic Act No. 7941)
incomparably vague implementing formula. Section 11 reads:
?[Parties] receiving at least two percent of the total votes cast
for the party-list system shall be entitled to one seat each:
Provided, That those garnering more than two percent of the
votes shall be entitled to additional seats in proportion to
their total number of votes.? In addition, no party may
receive more than three seats, a rule that limits the House
influence a party may gain without fielding candidates in the
regular district elections.
Impossible 2-percent threshold
The Commission on Elections soon discovered that it could not
fill the required 20 percent of House seats. The culprit is the
Party-List Act?s 2-percent threshold.
A party must receive at least 2 percent of the votes to qualify
for a seat. However, 55 seats multiplied by 2 percent is 110
percent of the vote, clearly an impossible figure only Garci
could meet.
The 2-percent threshold appears based on the original 250
seats of the House?20 percent of 250 is 50, and 100 percent
divided by 50 seats is 2 percent per seat.

However, even 50 seats will be filled only in the idealized

scenario in which exactly 50 parties each receive exactly 2
percent of the vote. The moment a 51st party enters and
receives 0.01 percent of the vote (or if one of the 50 parties
receives 2.01 percent), the 50th seat will be left empty
because the last 2 percent block cannot be completed. The 2
percent threshold?s mathematical absurdity is increasingly
obvious because the House expands to match population
growth.
German system
Some Concom delegates discussed the German parliamentary
electoral system, which has a similar threshold designed to
ensure that winning parties have sufficiently large
constituencies. This system, however, allocates seats for the
entire parliament and deals with a handful of the country?s
largest parties. This is completely different from the Philippine
party-list system, which deals with a large number of very
small parties.
Further, while the German system also features a second vote
at the national level, the German formula connects results
from this second vote to the regular district elections, and
assigns additional seats to parties that receive a higher
proportion of second votes at the national level than first
votes at the district level, which empowers dispersed
constituencies. Lacking this crucial connection and given the
completely different scale of parties involved, the Philippine
formula has little in common with the German formula,
contrary to the myth perpetuated in existing legal scholarship.
Supreme Court confusion
Thus, the imported concept of a 2-percent threshold must be
viewed with trepidation, especially given how the Supreme
Court has treated the three-seat cap, which has no equivalent
in the German system.
The Supreme Court soon found itself caught between the
Scylla of the Party-List Act?s 2-percent threshold and the
Charybdis of the Constitution?s 20-percent requirement.
Appallingly, it ruled in its 2000 Veterans Federation Party
decision that the 20-percent requirement was merely a
maximum figure. This disregarded the Constitution, the
supreme law, and upheld the Party-List Act, an ordinary law.
Worse, the Veterans decision promulgated an electoral
formula riddled with baseless mathematical errors that drive
down the total party-list seats allocated.
Errors
The Veterans formula begins by allocating seats to the party
with the highest vote. It allocates one seat for each 2 percent
of the vote this first party has obtained, up to the three-seat
cap. This is its first error, as Veterans fails to explain why the
first party is subject to a separate formula, and fails to even
explain the rationale for this separate formula (which appears
to be the mathematically absurd 2 percent per seat ratio).
The Veterans formula then allocates seats to each other
qualifying party. It assigns one seat each then allocates
additional seats by dividing each party?s vote by the first
party?s vote, then multiplying the result by the first party?s
additional seats beyond its first (usually two). In its second
error and contrary to the Party-List Act requirement, the
Veterans formula is not proportional and does not form a
rough straight line when graphed.

(Using Buhay?s present 8.10 percent, the formula would

allocate no seats to parties with 0-1.99 percent, one to those
with 2.00-4.04 percent, and two to those with 4.05-8.09
percent.)
The Veterans formula allows only the first party to receive the
maximum number of seats, its third error. Even if the second
party obtains just one vote less, it will still receive one seat
less. This breaks proportionality because such results are
practically equal, since one cannot allocate fractions of seats.
Worse, the strongest parties are irrationally forced to compete
because only one will be allotted the three-seat maximum no
matter how high their percentages.
Inconsistent
Further, the Veterans formula produces inconsistent results
that depend solely on the first party?s votes.
Its fourth error is that it continues to count the first party?s
votes in excess of 6 percent, the maximum considered by the
separate first-party formula. That is, it allocates three seats
to the first party whether it has received 6 percent, 20
percent or 50 percent of the votes.
However, the higher the first party?s votes, the less seats the
Veterans formula allocates to all other parties, and we are
only beginning to observe the catastrophic results now that
very strong parties with disproportionately high percentages
are emerging. For example, if the first party obtains 20
percent of the votes, other parties will be allocated two seats
only if they obtain at least 10 percent.
Finally, as the Veterans formula?s fifth error, its two
subformulas are inconsistent. If the first party obtains exactly
6 percent, other parties will receive two seats if they obtain at
least 3 percent, which contradicts the first-party formula
(which requires 4 percent for two seats). At present, Buhay
leads with 8.10 percent and the Veterans formula would
allocate only two seats to second placer Bayan Muna despite
its very high 6.59 percent, or enough for three seats under
the separate first-party formula.
Further, were Buhay?s percentage lower, say 6 percent, the
inconsistent formula would allocate two seats instead of one
to Apec, with 3.50 percent.
Proposed formula
A proper party-list formula need only fulfill two simple goals:
1) It must fill up 20 percent of House seats; and 2) Seat
allocation must be proportional, including allocations to losing
parties.
In this proposed formula, one selects a party, then divides
each party?s votes by the chosen party?s votes. One then
drops decimals from the resulting ratios, and assigns that
many seats to each party, up to the three-seat maximum. If
the total number of seats assigned exceeds 55, one chooses
another party with less votes, and vice-versa.
If no divisor yields exactly 55 seats, one assigns the empty
seats to parties with the highest decimal components in their

ratios, ignoring the seats already allocated. This remains

proportional because ?excess? votes represented in each
party?s decimal component still give that party an equal
chance to obtain an additional seat. (This tiebreaker function
is similar to the German system?s Niemeyer tiebreaker, which
cannot be used whenever the 2-percent threshold is used, as
the number of empty seats is so high that there are simply no
ties to break and the result becomes absurd.)
This proposed formula creates an implicit threshold based on
how parties? votes are distributed. Should one wish to add a
fixed threshold (say, 100,000 votes), one simply does not
assign seats to parties below this threshold. Similarly, the
three-seat cap may be increased and the formula works the
same way.
Solving the problem
Applying the formula, one chooses Agham and divides all
parties? percentages by its 1.03 percent. This yields 53 seats,
plus two assigned to Akbayan and An Waray because of their
very high decimal components of 0.97 and 0.91, respectively.
(Dividing all parties? votes by 135,000 yields the same
result.)
This result is proportional because each party receives one
seat for each 1.03 percent, and the formula ignores the
strongest parties? votes beyond the three-seat cap so as not
to drive down other parties? allocations.
The Veterans formula, in contrast, will allocate only a piddling
20 seats, with only Buhay receiving the full three seats. Note
that although the proposed formula assigns seats to parties
with only 1 percent, this is because it factors the vote
dispersal unique to the Philippine system and its large number
of small parties.
It is imperative that the mathematically absurd 2-percent
threshold be struck down, whether by the Supreme Court or
by legislators, and the Veterans formula abandoned given
how its flaws are all the more evident with a first party such
as Buhay obtaining far more votes than the others.
This threshold aside, it is clearly possible to allocate the full
20 percent of the House promised by the Constitution in a
proportional manner. We bewail ?bogus? party-list groups and
confused listings of parties at the precincts, but we must also
reform the electoral formula itself to enable party-list
representatives to actually sit in Congress. Our Constitution
must be protected from a dictator?s lust for power and our
laws? mathematical shortcomings.
(Oscar Franklin B. Tan graduated from Harvard Law School on
June 7, where he was chosen to speak at the commencement
ceremony, and from the UP College of Law in 2005, where he
chaired the Philippine Law Journal. He graduated from the
Ateneo de Manila in 2001, majoring in Management
Engineering and Economics. This article is adapted from ?The
Philippine Party-List Experiment: A Tragedy of Flawed
Mathematics and Policy? (Philippine Law Journal, Volume 78,
page 735), his 76-page-freshman-year article informally
supervised by Dean Pacifico Agabin and awarded UP Law?s
first Justice Vicente V. Mendoza legal writing prize