Aksyon Magsasaka-Partido Tinig ng Masa (AKMA-PTM) vs. Commission on Elections

The COMELEC may proclaim party-list winners and allocate additional seats on the basis of an incomplete canvass where the remaining uncanvassed election returns will not materially affect the results; party-list groups garnering less than 2% of the party-list votes may still be entitled to an additional seat depending on their ranking under the BANAT formula.

AKMA-PTM was an accredited party-list candidate in the May 13, 2013 national and local elections. The COMELEC, sitting en banc as the National Board of Canvassers, is tasked under R.A. No. 7941 with tallying party-list votes and allocating guaranteed and additional seats. The governing allocation formula had been laid down in BANAT vs. COMELEC, which declared the two-percent threshold unconstitutional and prescribed a two-step allocation of additional seats. The dispute concerned the COMELEC’s authority to make initial proclamations and allocate seats before the canvass was complete.

AKMA-PTM was an accredited party-list candidate in the May 13, 2013 national and local elections. The COMELEC, sitting en banc as the National Board of Canvassers (NBOC), conducted the canvass for the party-list system. On May 24, 2013, under NBOC Resolution No. 0006-13, the NBOC proclaimed fourteen party-list groups that obtained at least 2% of the total votes cast for the party-list system and were thus entitled to one guaranteed seat each under Section 11 of R.A. No. 7941.

On May 28, 2013, COMELEC promulgated the assailed NBOC Resolution No. 0008-13. The resolution recited that the COMELEC had considered the cancellation of registration of several party-list groups final and executory, and that the votes cast for those groups were considered stray and would not be included in the total votes cast for party-list. On the basis of Party-List Canvass Report No. 10, there was a total of 26,722,131 votes cast for party-list, with fifty-eight available seats. In view of remaining uncanvassed results and special elections in some areas, not all of the fifty-eight available party-list seats were allocated in order not to prejudice the proclamation of other parties, organizations, or coalitions that might later be established to be entitled to a seat or additional seats. The resolution proclaimed party-list groups as initial winners involving a total of fifty-three guaranteed and/or additional seats, without prejudice to later proclamations.

The petition was filed with the Supreme Court on May 30, 2013. The Court did not issue a temporary restraining order. The Court subsequently admitted the petition-in-intervention filed by Abante Katutubo (ABANTE KA), Froilan M. Bacungan, and Hermenegildo Dumlao, who claimed a demonstrable, legal, moral, and compelling interest in the outcome of the case and the controversy.

Petitioner alleged that the proclamation of initial winners with additional seats on the second round was hasty and premature because at the time the canvassing for party-list was still ongoing, there were still uncanvassed and untransmitted results from Mindanao, as well as uncanvassed overseas and local absentee votes, and the results from special elections in several areas had yet to be transmitted. A copy of Canvass Report No. 8, COMELEC’s tally sheet, showed that as of May 23, 2013 petitioner had garnered 155,131 votes. Petitioner also assailed COMELEC’s projected figures, such as the maximum total votes cast for party-list, as difficult and impractical, citing breakdown, malfunctioning, or glitches of the PCOS machines during the May 13, 2013 elections. Petitioner asserted that the proclamation was invalid because it was based on an incomplete canvass or consolidation of only 110 Certificates of Canvass (COCs), some of which were not electronically transmitted in alleged violation of Section 27, R.A. No. 8436, as amended by Section 22, R.A. No. 9369. National Canvass Report No. 10 likewise did not state the total votes cast for party-list.

Petitioners-in-intervention joined petitioner in the foregoing arguments. They reiterated that an incomplete canvass of votes is illegal and cannot be the basis of a proclamation, citing Utto vs. COMELEC, and noted that only 110 out of 301 COCs had been canvassed or reported when COMELEC proclaimed the party-list winners. They also deplored COMELEC’s alleged lack of transparency in the factual basis of the party-list election results, and claimed that the proclamation contravened Section 231 of the Omnibus Election Code, Section 21 of R.A. No. 8436, and Section 28 of the General Instructions for Special Board of Canvassers in the May 13, 2013 elections (COMELEC Resolution No. 9648). They expressed concern over the alleged irregularities or malfunctioning of the PCOS machines and the removal of security features under R.A. No. 9369, an issue subject of G.R. No. 201413. They also noted the Atong Paglaum consolidated cases, which had been remanded for determination of bona fide status under new guidelines. They believed that ABANTE KA and AKMA-PTM would get enough votes since AKMA-PTM had 155,090 votes and ABANTE KA had 110,690 votes as reflected in the National Canvass Report, and asked what happened to their votes.

COMELEC’s national canvass reports showed that as of May 28, 2013, AKMA-PTM garnered 164,980 votes and ABANTE KA had 111,429 votes. In Party-List Canvass Report No. 11 as of July 18, 2013, AKMA-PTM’s total votes slightly increased to 165,784 while ABANTE KA had a total of 111,625 votes. COMELEC had reserved five buffer seats to accommodate possible changes in ranking; three were distributed to ANAC-IP, AGBIAG!, and APPEND, while the other two were reserved pursuant to the Court’s directive in Senior Citizen’s Party-List vs. COMELEC.

• Premature Proclamation and Incomplete Canvass: Petitioner argued that COMELEC’s allocation of additional seats was hasty and premature because canvassing was ongoing, with uncanvassed and untransmitted results from Mindanao, overseas and local absentee votes, and special elections still pending; only 110 COCs had been canvassed or consolidated, some not electronically transmitted, violating Section 27, R.A. No. 8436, as amended by Section 22, R.A. No. 9369; and National Canvass Report No. 10 did not state the total votes cast for party-list.
• PCOS Irregularities: Petitioner assailed COMELEC’s projected figures as impractical, citing breakdown, malfunctioning, or glitches of PCOS machines during the May 13, 2013 elections; it alleged there was no guarantee the machines read and counted votes properly, and that Smartmatic, Inc. did away with security features under R.A. No. 9369, an issue subject of G.R. No. 201413.
• Misapplication of BANAT and Fractional Seats: Petitioner argued that the allocation of additional seats did not conform to Section 11, R.A. No. 7941, and BANAT vs. COMELEC, because the product of the percentage of votes obtained and the additional seats available was not an integer, citing figures such as 0.961, 0.932, and 0.89; COMELEC therefore erred in computing values and interpreting results.
• Petitioners-in-Intervention — Incomplete Canvass: Petitioners-in-intervention joined the petition and reiterated that an incomplete canvass is illegal and cannot be the basis of a proclamation, citing Utto vs. COMELEC; only 110 out of 301 COCs had been canvassed or reported when COMELEC proclaimed the party-list winners.
• Petitioners-in-Intervention — Transparency and Disqualified Candidates: Petitioners-in-intervention deplored COMELEC’s alleged lack of transparency; raised concerns about PCOS machines and Smartmatic; noted the Atong Paglaum consolidated cases had been remanded for determination of bona fide status; and claimed AKMA-PTM had 155,090 votes and ABANTE KA had 110,690 votes in the National Canvass Report, asking what happened to their votes.

• Compliance with BANAT: The Solicitor General asserted that COMELEC faithfully adhered to BANAT: 14 guaranteed seats were first allocated to groups obtaining 2% of total votes, and 44 additional seats were completely distributed; groups with products less than one were still allocated seats depending on rank and availability.
• Buffer Seats: COMELEC reserved five buffer seats to accommodate possible changes in ranking; three were distributed to ANAC-IP, AGBIAG!, and APPEND, while two were reserved pursuant to Senior Citizen’s Party-List vs. COMELEC.
• No Material Effect from Uncanvassed Votes: The Solicitor General contended that the proclamation of initial winners under NBOC Resolution No. 0008-13 was valid because the votes yet to be canvassed did not materially affect the results; National Canvass Report No. 11 as of July 18, 2013 showed minimal change, with AKMA-PTM at 165,784 (0.58%) and ABANTE KA at 111,625 (0.39%), still insufficient for an additional seat in the second round.

• Grave Abuse of Discretion in Party-List Seat Allocation: Whether the COMELEC gravely abused its discretion in allocating the additional seats for the 38 party-list candidates proclaimed as winners in the May 13, 2013 elections.

• Grave Abuse of Discretion in Party-List Seat Allocation: No. COMELEC did not commit grave abuse of discretion. It was authorized to proclaim winners where the remaining uncanvassed returns would not affect the results under Section 233 of the Omnibus Election Code, and its allocation of additional seats followed the BANAT formula, which permits groups with less than 2% of the votes to receive an additional seat depending on ranking.

• Grave Abuse of Discretion in Party-List Seat Allocation: The Court first addressed the incomplete canvass. An incomplete canvass is illegal and cannot be the basis of a subsequent proclamation because a canvass is not reflective of the true vote unless all returns are considered. However, this rule applies only where the missing or uncounted election returns will affect the result. Section 233 of the Omnibus Election Code authorizes the board of canvassers to terminate the canvass and proclaim candidates elected on the basis of available returns if the missing returns will not affect the results. In Barbers vs. COMELEC, the Court dismissed a petition to annul NBOC resolutions affirming a proclamation because the uncanvassed returns and special election results would not materially affect the election results. Here, COMELEC based its ruling on national canvass reports. As of May 28, 2013, AKMA-PTM had 164,980 votes and ABANTE KA had 111,429 votes. In Party-List Canvass Report No. 11 as of July 18, 2013, AKMA-PTM’s total slightly increased to 165,784 while ABANTE KA had 111,625. There was no significant change in rankings, so COMELEC had sufficient basis to proclaim initial winners on May 28, 2013 and reserve five buffer seats. On the alleged PCOS irregularities, no competent evidence was presented; mere allegation is not evidence, and the factual question of uncanvassed votes should have been raised before COMELEC because the Court is not a trier of facts. COMELEC enjoys the presumption of good faith and regularity in the performance of official duty. As to allocation, Section 12 of R.A. No. 7941 provides that COMELEC shall tally all votes nationwide, rank the parties, and allocate seats proportionately. In BANAT vs. COMELEC, the Court laid down the procedure: rank the parties; those receiving at least 2% get one guaranteed seat each; those with sufficient votes according to ranking get additional seats in proportion to their total votes until all additional seats are allocated; and no party may have more than three seats. In computing additional seats, guaranteed seats are no longer included; remaining available seats are the maximum seats less the guaranteed seats; fractional seats are disregarded absent a rounding-off provision. BANAT also declared the two-percent threshold unconstitutional and did not limit additional-seat allocation to two-percenters. The second round has two steps: first, the percentage is multiplied by the remaining available seats, and the whole integer corresponds to a party’s share; second, one seat is assigned to each party next in rank until all available seats are distributed. The three-seat cap is then applied. As shown in BANAT’s Table 3, the product of the percentage and remaining available seats for all parties ranked nine and below is less than one, yet they may still qualify for a seat depending on ranking. Petitioner’s interpretation that groups with a product less than one are not entitled to a seat would leave remaining party-list seats unfilled. BANAT declared the two-percent threshold unconstitutional because it was an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevented the broadest possible representation. Petitioner mistakenly assumed that the disallowance of fractional seats for two-percenters in the second round also applied to groups with less than 2% of the votes. Thus, COMELEC did not commit grave abuse of discretion in allocating the party-list seats and proclaiming the winners after distributing guaranteed and additional seats in accordance with BANAT.

• Incomplete Canvass and Proclamation — An incomplete canvass is illegal and cannot be the basis of a subsequent proclamation because a canvass is not reflective of the true vote unless all returns are considered. The rule applies only where the missing or uncounted election returns will affect the result. Section 233 of the Omnibus Election Code authorizes the board of canvassers to terminate the canvass and proclaim candidates elected on the basis of available returns if the missing returns will not affect the results. The Court applied this qualification in upholding COMELEC’s May 28, 2013 proclamation because the uncanvassed votes did not materially affect the party-list results.
• BANAT Party-List Seat Allocation Formula — Under BANAT vs. COMELEC, the allocation of party-list seats follows: (1) parties are ranked from highest to lowest based on votes; (2) parties receiving at least 2% of total party-list votes are entitled to one guaranteed seat each; (3) those with sufficient votes according to ranking are entitled to additional seats in proportion to their total votes until all additional seats are allocated; and (4) no party may have more than three seats. In the second round, guaranteed seats are excluded; the remaining available seats are the maximum seats less the guaranteed seats; the percentage of votes is multiplied by the remaining available seats, and the whole integer corresponds to a party’s share; then one seat is assigned to each party next in rank until all available seats are distributed; fractional seats are disregarded absent a rounding-off provision. The two-percent threshold was declared unconstitutional, and allocation is not limited to two-percenters. The Court applied this formula to uphold COMELEC’s allocation, including seats to groups with less than 2% of the votes.
• Two-Percent Threshold Unconstitutional — The continued operation of the two-percent threshold in R.A. No. 7941 was declared unconstitutional in BANAT because it was an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the 1987 Constitution and prevented the attainment of the broadest possible representation of party, sectoral, or group interests in the House of Representatives. The Court relied on this ruling to reject petitioner’s argument that only two-percenters could receive additional seats.
• Presumption of Regularity and Mere Allegation Not Evidence — COMELEC enjoys the presumption of good faith and regularity in the performance of official duty. A party must prove affirmative allegations, and mere allegation is not evidence. The Court applied these principles to reject petitioner’s allegations of PCOS irregularities and uncanvassed votes, which were unsupported by competent evidence.
• Court Not a Trier of Facts — The factual question of the number of still uncanvassed votes at the time of proclamation should have been raised before COMELEC because the Supreme Court is not a trier of facts. The Court applied this to decline resolving petitioner’s factual challenge.

• "An incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation. A canvass is not reflective of the true vote of the electorate unless the board of canvassers considers all returns and omits none. However, this is true only where the election returns missing or not counted will affect the results of the election." — States the general rule and its qualification, which was decisive in upholding the COMELEC’s incomplete-canvass proclamation.
• "In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as 'additional seats' are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats." — From BANAT, quoted by the Court, defines the second-round computation and the treatment of fractional seats.
• "In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats in Table 3 below to the two-percenters." — Clarifies that additional seats may be allocated to parties with less than 2%, a key point rejecting petitioner’s interpretation.
• "In sum, we hold that COMELEC did not commit grave abuse of discretion in allocating the party-list seats in the 2013 elections and proclaiming the winners after distributing the guaranteed and additional seats in accordance with our ruling in BANAT." — The Court’s ultimate conclusion on the sole issue.

• Barangay Association for National Advancement and Transparency (BANAT) vs. COMELEC, 604 Phil. 131 (2009) — Controlling precedent. The Court applied the BANAT procedure for allocating party-list seats, including the two-step second-round allocation, the three-seat cap, and the ruling that the two-percent threshold is unconstitutional and that additional seats are not limited to two-percenters.
• Barbers vs. COMELEC, 499 Phil. 570 (2005) — Followed. The Court cited it to uphold a proclamation made despite uncanvassed returns and special elections because those would not materially affect the results, and to support the presumption of regularity in COMELEC’s official acts.
• Utto vs. COMELEC, 426 Phil. 225, 241 (2002) — Cited by petitioners-in-intervention for the rule that an incomplete canvass is illegal and cannot be the basis of a proclamation. The Court applied the qualification that the missing returns must affect the result for the rule to invalidate the proclamation.
• Caruncho III vs. Commission on Elections, 374 Phil. 308, 324 (1999) — Cited for the incomplete-canvass rule and for the principle that the Supreme Court is not a trier of facts; factual questions on uncanvassed votes should be raised before the COMELEC.
• Senior Citizen’s Party-List vs. COMELEC, G.R. Nos. 206844-45 & 206982, Resolution dated June 5, 2013 — Cited by the Solicitor General as the basis for reserving two buffer seats.
• Aklan Electric Cooperative Inc. vs. National Labor Relations Commission, 380 Phil. 225, 245 (2000) and Luxuria Homes, Inc. vs. Court of Appeals, 361 Phil. 989, 1000 (1999) — Cited for the rule that each party must prove affirmative allegations and that mere allegation is not evidence, applied against petitioner’s PCOS irregularity claims.

• Section 11, Republic Act No. 7941 — Provides for the party-list system, including the two-percent threshold and guaranteed seat for parties receiving at least 2% of total votes, and the three-seat cap. The Court interpreted it consistently with BANAT, which declared the two-percent threshold unconstitutional.
• Section 12, Republic Act No. 7941 — Requires COMELEC to tally all party-list votes nationwide, rank parties by votes received, and allocate party-list representatives proportionately according to percentage of votes obtained. The Court cited this as the statutory basis for the allocation procedure.
• Section 233, Omnibus Election Code (Batas Pambansa Blg. 881) — Authorizes the board of canvassers to terminate the canvass and proclaim candidates elected on the basis of available election returns if the missing returns will not affect the results. The Court applied this to uphold COMELEC’s May 28, 2013 proclamation.
• Section 27, Republic Act No. 8436, as amended by Section 22, Republic Act No. 9369 — Petitioner alleged violation because some COCs were not electronically transmitted. The Court found no competent evidence to support the allegation.
• Section 231, Omnibus Election Code — Cited by petitioners-in-intervention to require a COC supported by a statement of votes for each polling place. The Court did not rely on it to invalidate the proclamation.
• Section 21, Republic Act No. 8436 — Cited by petitioners-in-intervention to require a completed canvass before printing COCs and proclaiming elected officials. The Court did not rely on it to invalidate the proclamation.
• Section 28, COMELEC Resolution No. 9648 — Cited by petitioners-in-intervention to require receipt and consolidation of all expected results before generating and printing COCs. The Court did not rely on it to invalidate the proclamation.
• Section 5(2), Article VI, 1987 Constitution — Provides for party-list representation and the broadest possible representation of party, sectoral, or group interests. The Court cited BANAT’s ruling that the two-percent threshold was an unwarranted obstacle to its full implementation.

Maria Lourdes P.A. Sereno (Chief Justice), Antonio T. Carpio, Presbitero J. Velasco, Jr., Teresita J. Leonardo-de Castro, Arturo D. Brion, Lucas P. Bersamin, Mariano C. del Castillo, Jose Portugal Perez, Jose Catral Mendoza, Bienvenido L. Reyes, and Estela M. Perlas-Bernabe. Diosdado M. Peralta and Marvic M.V.F. Leonen were on official leave; Francis H. Jardeleza took no part.