G.R. No. 257610 - Dissenting Opinion

G.R. No. 257610, January 24, 2023,
♦ Decision, Lopez, [J]
♦ Concurring Opinion, Gesmundo, [CJ]
♦ Concurring Opinion, Caguioa, [J]
♦ Dissenting Opinion, Leonen, [J]
♦ Dissenting Opinion, Lazaro-Javier, [J]

CATALINA G. LEONEN-PIZARRO, PETITIONER, VS. COMMISSION ON ELECTIONS, RESPONDENT.

I vote to sustain the constitutionality of the pertinent portion of Section 8, Republic Act No. 7941 (1995), The Party-List System Act, viz.:

SECTION 8. Nomination of Party-List Representatives. — Each registered party, organization or coalition shall submit to the COMELEC not later than forty-five (45) days before the election a list of names, not less than five (5) from which party-list representatives shall be chosen in case it obtains the required number of votes.

A person may be nominated in one (1) list only. Only persons who have given their consent in writing may be named in the list. The list shall not include any candidate for any elective office or a person who has lost his bid for an elective office in the immediately preceding election. xxx

One. Generally, controversies involving equal protection right center on two primary questions.

The first is how far, or in relation to what rights, does the command of equality intend to apply? We ask, equal as to what, or what rights are we all supposed to be equal at? Does it entail any or all of civil, political, social, or economic equality? For instance, if my neighbor earns more than I do because the government prescribed wage rate allows this individual to earn more than I would ever in my lifetime, would the equal protection right compel economic equality between us?

The second is what does it mean to treat persons equally? In other words, what is equal treatment? In the same illustration, supposing I am entitled to be economically equal with my neighbor, that is, we ought to have economic equality, how would this equal treatment be achieved? Must the neighbor's pay be reduced, or should mine be increased, or do I get other perks to compensate for the inequality?

In our legal system, the main test for deciding these and other equal protection challenges is:

The equal protection clause means that no person or class of persons shall be deprived of the same protection of laws enjoyed by other persons or other classes in the same place in like circumstances. Thus, the guarantee of the equal protection of laws is not violated if there is reasonable classification. It must be shown, therefore, that the classification (1) rests on substantial distinctions; (2) is germane to the purpose of the law; (3) is not limited to existing conditions only; and (4) applies equally to all members of the same class.1

Under this test, the scope of equal protection is as broad as any governmental action. The command to treat persons equally extends to all actions by the government. Thus, as expressed in the test, our concept of the equal protection right is that it is not per se an anti-discrimination rule though it encompasses anti-discrimination as well. Thus, in Sameer Overseas Placement Agency Inc. v. Cabiles,2 the Court said:

Equal protection of the law is a guarantee that persons under like circumstances and falling within the same class are treated alike, in terms of "privileges conferred and liabilities enforced." It is a guarantee against "undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality."

By discrimination, I mean treating someone differently based on specific characteristics protected by law, where this treatment has a negative effect on that person. This has been generally referred to as suspect classifications.

Examples of these characteristics include ancestry (including color and perceived race); nationality or national origin; religion or creed; ethnic background or origin; age; sex (including sex-determined characteristics such as pregnancy); gender identity; sexual orientation; marital or family status; source and level of income; political belief, physical or mental disability; social or historical disadvantage; and other characteristics subjected to prejudice or group stereotypes, such as criminal record.

Prejudicial treatment, when based on those specific characteristics, is considered discrimination, as is failing to reasonably accommodate the special needs of a person or group. Often, individuals or classes having these specific characteristics are accorded special protection by our Constitution.3 Discrimination is prohibited by law because it offends the dignity of a person.

Under our main test, as indicated by its use of the phrase reasonable classification, the standard analysis of equal protection challenges has followed the rational basis test. This is coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law. The exception is where there is a showing of a clear and unequivocal breach of the Constitution.4

But Samahan ng mga Progresibong Kabataan v. Quezon City,5 Serrano v. Gallant Maritime Services Inc.,6 White Light Corporation v. City of Manila,7 Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,8 among others, carved out an exception to this general rule, such that prejudice to persons accorded special protection by the Constitution requires stricter judicial scrutiny than mere rationality. The Court referred to it as a strict scrutiny of the classifications to determine if they do or do not rest on any real or substantial distinctions that would justify different treatments. This standard and its overarching analytical framework were developed in American jurisprudence in accordance with its historical and state interests in mind.

The above strict scrutiny standard and its overarching analysis were not followed in some of the subsequent cases.9 Sameer Overseas Placement Agency Inc.10 appears to have abandoned this line of analysis in Serrano when the former, despite citing the latter, held:

We do not need strict scrutiny to conclude that these classifications do not rest on any real or substantial distinctions that would justify different treatments in terms of the computation of money claims resulting from illegal termination.

Disini v. Secretary of Justice11 did not also see the need to apply strict scrutiny since no suspect classifications were involved, and more tellingly, universally condemnable act or conduct was targeted and therefore should be immediately classified and quarantined for being such.

I perceive some well-meaning reluctance to accept the strict scrutiny standard and its overarching analysis because of its alien overtures that may not befit our own values and circumstances. Further, it appears to be intuitive to accept the rational basis test as our sole main test for equal protection. The reason is that its premise of invalidating classifications that clearly and unequivocally breach the Constitution is a simple reiteration of the fundamental and straightforward legal doctrine that the Constitution is the supreme law and anything that violates it is void. This choice of the rational basis test does away with the confusing nuanced and tiered tests in American jurisprudence on equal protection.

Under the rational basis test, we determine whether the classification is reasonable. To do this, we must establish:

If the answer is yes to both questions, we must then inform the reasons for the affirmative answers with responses to: (i) whether there are substantial distinctions between or among the classes; (ii) whether the classification is germane to the purpose of the law, not limited to existing conditions, and applies equally to all members of the same class; and (iii) whether the classification clearly and unequivocally breaches the Constitution. These questions constitute the rational basis test. The affirmative answers to these questions in turn constitute the hallmarks of a reasonable classification.

In this test, there is generally little second-guessing as to whether the law works. The analysis of alternatives is irrelevant. The starting point is that the law that imposes the classification is presumptively constitutional. The burden is on the complaining party to show that the only purpose of the legislation was entirely arbitrary, irrational, or invidiously discriminatory.

Here, the underlying classification in the assailed portion of Section 8, Republic Act No. 7941 has nothing to do with discriminatory or suspect classifications. No persons especially accorded protection by the Constitution are involved. The classification does not distinguish between historically or socially disadvantaged individuals or groups or others whose immutable characteristics are subjected to prejudice or group stereotypes, on one hand, and normal persons, on the other. Hence, the appropriate standard of review for Section 8 is the rational basis test.

Two. It is obvious from the test of equal protection that comparison plays a role throughout the equal protection guarantee. Equality is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others. This basic right requires an inherently comparative analysis. Thus, the threshold is to determine that one group is unequally treated as against another. When we say unequal treatment, however, we mean substantive equality as opposed to formal equality. There is no greater inequality than the equal treatment of unequals. Ironically, it is unfair and bad law to treat everyone equally because not everyone is equal.

Critical in every equal protection analysis is the identification of the proper comparator groups. A court must identify differential treatment as compared to one or more other persons or groups. These are the ones against whom the classified group in the assailed law is measured against. Locating the appropriate comparator is necessary in identifying differential treatment. To establish that indeed a classification has been made by the assailed law, we ask:

This threshold distinction or classification stage of the analysis should immediately bar claims that are not intended to be prohibited by the equal protection right because no classifications have actually been made.

Caution must be taken in this stage of analysis – this means that the analysis must examine every contextual impact of intersecting grounds of differential treatment. In this stage, we must account for adverse consequences of the assailed law. This is done to determine whether indeed the assailed law establishes a classification and whether this classification truly imposes a burden or denies a benefit.

From the threshold test of distinctions and classifications and moving forward to the main test of equal protection, to arrive at whether the impugned law infringes the equal protection guarantee, it must be viewed as a whole. What is required is an approach that takes account of the full context of the claimant group's situation. That context will include the legislative, political and social contexts as well as the actual impact of the law on that situation.

More, we must also examine the object of the assailed law in the context of its broader legislative scheme, taking into account the universe of potential beneficiaries vis-à-vis the universe of potentially encumbered or disadvantaged targets. A law must necessarily draw distinctions to achieve certain policy goals while properly allocating resources or opportunities.

What must be asked is whether the purpose of the assailed law corresponds to the needs of the claimant groups when considered in the context of the whole scheme, or does it force them to carry a burden that others do not? The analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation.

Three. The assailed provision is a part of Section 8 and specifically states: "Nomination of Party-List Representatives.... The list shall not include any candidate for any elective office or a person who has lost his bid for an elective office in the immediately preceding election...."

Applying the test of equal protection to this assailed provision, I note the following comparator groups:

1. Candidates of any elective office running in the current elections vis-à-vis nominees of party-list organizations running in the current elections.

2. Political parties of candidates and candidates themselves of any elective office running in the current elections vis-à-vis registered party-list organization or coalition running in the current elections.

3. Winning candidates of any elective post in the immediately preceding elections vis-à-vis losing candidates of any elective post in the immediately preceding elections.

First, does the challenged provision, on its face or in its impact (i.e., since the equal protection right may be infringed not only by the legislation itself, but by the actions of a delegated decision-maker applying it), create a distinction?

Candidates of any elective office running in the current elections are treated differently from nominees of party-list organizations running in the current elections. Candidates do not lose their status as candidates, or they are not disqualified as candidates in the current elections, though they are included as nominees of a party-list organization or lost in the immediately preceding elections. Nominees lose their status as nominees if they are candidates in the current elections or were candidates who lost in the immediately preceding elections.

Political parties of candidates and candidates themselves of any elective office running in the current elections are treated differently from registered party-list organizations or coalitions running in the current elections. Political parties are not burdened by the rules under the assailed portion of Section 8, while registered party-list organizations or coalitions are. The same differential treatment exists between the candidates themselves of any other elective office and every registered party-list organization or coalition. The assailed portion of Section 8 applies only to the latter.

Winning candidates of any elective post in the immediately preceding elections are treated differently from losing candidates of any elective post in the immediately preceding elections, in that the former qualify as nominees of party-list organizations running in the current elections while the latter do not qualify as such nominees.

The answer is yes. There are burdens imposed upon nominees of party-list organizations running in the current elections, registered party-list organizations or coalitions running in the current elections, and losing candidates of any elective post in the immediately preceding elections.

The answer is yes. As the ponencia admits, the legitimate government interest is to protect the integrity of the party-list system of electing representatives by disallowing or discouraging the traditional elective officials from crowding, monopolizing or abusing the party-list system of representation to perpetuate themselves in power. It may also be said that the legitimate government interest is to prevent traditional politicians from abusing the party-list system as a backdoor to entrench themselves in power, thereby defeating the purpose of the party-list system as a means to give legislative voice to the marginalized and underrepresented sectors of our country.

Is the classification rationally related to this legitimate government interest?

The answer is also yes. By placing an embargo upon the qualifications of nominees of party-list organizations that are not imposed upon political parties of candidates of other elective offices and candidates themselves of other elective offices, and by treating losing candidates in the immediately preceding elections from winning candidates of the same elections, the assailed provision is able to limit, discourage or disallow the abuse of the party-list system as a backdoor for these traditional politicians. The objective is also to promote and strengthen the capacities of organizations who have no machinery to match those candidates in other elective posts, to have voices in and bring their platforms to Congress. The classifications may be under-inclusive but they are nonetheless reasonably related to the government interest articulated above.

In this regard, there are substantial distinctions between political parties of candidates of any other elective offices and candidates themselves of any other elective offices running in the current elections and registered party-list organization or coalition and nominees of party-list organizations running in the current elections, and between winning candidates of any elective post in the immediately preceding elections and losing candidates of any elective post in the immediately preceding elections. These substantial distinctions make for a reasonable relation between these classifications and the legitimate government interest.

Candidates are the ones being voted into office. Nominees are not candidates – they are not voted into office. So are the political parties of candidates in other elective offices. But in a party-list system, the candidates are the party-list organizations. The nominees are intended to be the mere agents of the candidate party-list organization. Even in victory, while candidates hold a piece of the sovereignty by their election to office, neither the political party nor the nominees wield this piece of the sovereignty since for the nominees it is their principal, the registered party-list organization or coalition, that does carry this piece of the sovereignty.

Losing candidates in the immediately preceding elections are different from winning candidates in the immediately preceding elections in that they have the slightest probability of winning in the traditional elective posts. Hence, the attraction and temptation to test the party-list system would be stronger among these losing candidates than it would be for winning candidates. The idea is to avoid the party-list system from becoming a dumping ground of losers in the traditional elective posts and usurping the party-list system to regain power when this system is supposed to have the marginalized and underrepresented in mind as beneficiaries.

The classifications are germane to the purpose of the assailed portion of Section 8. They are not alien to it. They are reasonably tailored to achieve the legitimate government interest mentioned above. The classifications too are not limited to existing conditions.1aшphi1 They are perpetually imposed so long as Section 8 is in effect. They also apply equally to all members of the same class – each registered party-list organization or coalition, all party-list nominees and all losing candidates in the immediately preceding elections.

Contextual impact of intersecting grounds of differential treatment and adverse consequences

Nominees of party-list organizations running in the current elections and losing candidates for any elective post in the immediately preceding elections have no social or historical disadvantage or other characteristics subjected to prejudice or group stereotypes. By imposing an added burden of additional qualifications or grounds of disqualification upon them, not otherwise imposed on candidates in elective offices running in the current elections and winning candidates in the immediately preceding elections, we are not perpetuating any social or historical disadvantage; neither are we subjecting them to prejudice or group stereotypes – simply because there is no contextual impact of intersecting grounds of differential treatment, and adverse consequences upon them. Nominees and losing candidates were never before prejudiced or disadvantaged; the assailed portion of Section 8 does not make them now.

Registered party-list organizations or coalitions may have had experienced social or historical disadvantage or other characteristics subjected to prejudice or group stereotypes. They represent, if not themselves are, marginalized and underrepresented causes and constituencies. It was precisely for this reason that the party-list system was put into place.

But the assailed portion of Section 8 does not aggravate or perpetuate these social or historical disadvantages, prejudice or stereotypes. On the contrary, the purpose of the assailed portion of Section 8 corresponds exactly to the needs of the claimant groups (i.e., registered party-list organizations or coalitions, nominees and losing candidates) when considered in the context of the whole scheme. While this provision does force them to carry a burden that others do not, the burden is necessary and reasonably related to protect and promote the integrity of the party-list system and the party-list organizations themselves that are essentially the intended beneficiaries of Republic Act No. 7941.

The claimant groups in the assailed portion of Section 8 are not especially accorded protection by the Constitution. This classification is not even mentioned in the Constitution. They are purely statutory constructs pursuant to Section 5 (1) and (2)13 of the Constitution. The imposition of burdens upon them not shared with others is in fact authorized by the aforementioned constitutional provisions.

To conclude, the assailed portion of Section 8 has the hallmarks of a reasonable classification.

Four. In accordance with the distinction between candidates and party-list nominees, petitioners have no standing to commence this judicial review. The nominees do not have the right to nominate themselves. The right belongs to the party-list organizations. Section 5 (1) of the Constitution speaks of the "party-list system of registered national, regional, and sectoral parties or organizations." Section 8 of Republic Act No. 7941 identifies the right-holder to nominate as each of the registered party, organization or coalition:

Nomination of Party-List Representatives. — Each registered party, organization or coalition shall submit to the COMELEC not later than forty-five (45) days before the election a list of names, not less than five (5) from which party-list representatives shall be chosen in case it obtains the required number of votes. A person may be nominated in one (1) list only. Only persons who have given their consent in writing may be named in the list.

The nominees are mere persons. They are the objects of the decision-making done by each registered party, organization or coalition. They have no rights except the right to consent to the nomination. But the nomination right itself does not belong to the nominee. The nominees hold no right to be nominated.

Here, the equal protection challenge to the assailed portion of Section 8 properly belongs to registered party-list organizations or coalitions since it is their right to nominate that is alleged to have been infringed by the classification that is not imposed upon the other comparator groups. Petitioners have no standing to bring this suit since they have not been injured by the assailed provision or more precisely the reasonable classification made therein. Hence, I cannot agree to grant relief to petitioners.1aшphi1

Five. We cannot allow the Court to be Congress' carte-blanche supervisor when it comes to what are reasonable classifications. It is in the nature of things that all laws classify, and all laws make distinctions, leading to a virtually unlimited number of potential equal protection challenges. Close judicial review of all classifications to ensure equal protection of the laws is a practical impossibility. Although the clause protects all persons, the Court, as a practical matter, cannot give close scrutiny to all classifications that governmental action may create among persons.

Thus, so long as the classification has a rational basis in relation to a legitimate government objective, and the complainant is not able to show that the only purpose of the legislation was entirely arbitrary, irrational, or invidiously discriminatory, the Court cannot second-guess Congress as to what the proper allocation of resources, opportunities, burdens and obligations and the proper classification of the universes of beneficiaries and burdened targets, should be. This rule is mandated by the doctrine of separation of powers. Congress enacts policies into binding legal orders and policies necessarily imply making choices. The Court has to respect this role of Congress, even if the allocation and classification are on hindsight believed by us to be imperfect or under-inclusive.

ALL TOLD, I vote to DENY the Petitions for Certiorari and Prohibition and confirm the constitutionality of the assailed portion of Section 8 of Republic Act No. 7941 and Sections 5(d) and 10 of COMELEC Resolution No. 10717.