ANG
LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner, vs. COMMISSION ON ELECTIONS Respondent.
Facts: 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 Resolutions of the Commission on Elections (COMELEC) dated November
11, 20092 (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 refusal to accredit Ang
Ladlad as a party-list organization under Republic Act (RA) No. 7941,
otherwise known as the Party-List System Act.4
Ang Ladlad is
an organization composed of men and women who identify themselves as lesbians,
gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in
2003, Ang 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.
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-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 of negative societal
attitudes, LGBTs are constrained to hide their sexual orientation; and
that Ang Ladlad complied with the 8-point guidelines
enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections.6 Ang
Ladlad laid out its national membership base consisting of individual
members and organizational supporters, and outlined its platform of governance.7
Petitioner should likewise be denied accreditation not only for
advocating immoral doctrines but likewise for not 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."
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 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 degradation.8
When Ang Ladlad sought
reconsideration,9 three
commissioners voted to overturn the First Assailed Resolution (Commissioners
Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando 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 First Assailed Resolution, stating
that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the
party-list system. Even assuming that it has properly proven its
under-representation and marginalization, it cannot be said that Ladlad’s
expressed sexual orientations per se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of
the party-list system of electing congressional representatives is to enable
Filipino citizens belonging to marginalized and under-represented sectors,
organizations and parties, and who lack well-defined political constituencies
but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the
House of Representatives.
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
tool to advocate tolerance and acceptance of misunderstood persons or groups of
persons. 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 to the
attention of the nation because of their under representation. Until
the time comes when Ladlad is able to justify that having mixed sexual
orientations and transgender identities is beneficial to the nation, its
application for accreditation under the party-list system will remain just
that.
II. No substantial
differentiation
Thus, even if society’s understanding, tolerance, and acceptance of
LGBT’s is elevated, there can be no denying that Ladlad constituencies are
still males and females, and they will remain either male or female
protected by the same Bill of Rights that applies to all citizens alike.
issue:
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. Petitioner also claimed that the Assailed
Resolutions contravened its constitutional rights to privacy, freedom of speech
and assembly, and equal protection of laws, as well as constituted violations
of the Philippines’ international obligations against discrimination based on
sexual orientation.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act
No. 7941
The COMELEC denied Ang Ladlad’s application for
registration on the ground that the LGBT 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.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands
for the proposition that only those sectors specifically enumerated in the law
or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals) may be registered under the party-list system. As
we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission
on 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.
Against this backdrop, we find that Ang Ladlad has
sufficiently demonstrated its compliance with 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 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.
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for
Registration
Our Constitution provides in Article III, Section 5 that "[n]o law
shall be made respecting an 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,
"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.
. x x x Recognizing the religious nature of the
Filipinos and the elevating influence of religion in society, however, the
Philippine constitution's religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that government must
pursue its secular goals and interests but at the same time strive to uphold
religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws is
secular, benevolent neutrality could allow for accommodation of morality based
on religion, provided it does not offend compelling state interests.27
Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration
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 irreparably damage the moral
fabric of society. We, of course, do not suggest that the state is wholly
without authority to regulate matters concerning morality, sexuality, and
sexual relations, and we recognize that the government will and should continue
to restrict behavior considered detrimental to society. Nonetheless, we cannot
countenance advocates who, undoubtedly with the loftiest of intentions, situate
morality on one end of an argument or another, without bothering to go through
the rigors of legal reasoning and explanation. In this, the notion of morality
is robbed of all value. Clearly then, the bare invocation of morality will not
remove an issue from our scrutiny.
We also find the COMELEC’s reference to purported violations of our
penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of
the Civil Code defines a nuisance as "any act, omission, establishment,
condition of property, or anything else which shocks, defies, or disregards
decency or morality," the remedies for which are a prosecution under the
Revised Penal Code or any local ordinance, a civil action, or abatement without
judicial proceedings.32 A
violation of Article 201 of the Revised Penal Code, on the other hand, requires
proof beyond reasonable doubt to support a criminal conviction. It hardly needs
to be emphasized that mere allegation of violation of laws is not proof, and a
mere blanket invocation of public morals cannot replace the institution of
civil or criminal proceedings and a judicial determination of liability or
culpability.
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 Ladlad’s registration
on purely moral grounds amounts more to a statement of dislike and disapproval
of homosexuals, rather than a tool to further any substantial public interest.
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 act. It is this selective targeting that
implicates our equal protection clause.
Equal Protection
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 similar persons."33 The
equal protection clause guarantees that no person or class of persons shall be
deprived of the same protection of laws which is enjoyed by other persons or
other classes in the same place and in like circumstances.34
Freedom of Expression and Association
Under our system of laws, every group has the
right to promote its agenda and attempt to persuade society of the validity of
its position through normal democratic means.39 It
is in the public square that deeply held convictions and differing opinions
should be distilled and deliberated upon. As we held in Estrada v. Escritor:40
In a democracy, this common agreement on
political and moral ideas is distilled in the public square. Where citizens are
free, every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people deliberate the order
of their life together. Citizens are the bearers of opinion, including opinion
shaped by, or espousing religious belief, and these citizens have equal access
to the public square. In this representative democracy, the state is prohibited
from determining which convictions and moral judgments may be proposed for
public deliberation. Through a constitutionally designed process, the people
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 groups. Nevertheless,
in the very act of adopting and accepting a constitution and the limits it specifies
– including protection of religious freedom "not only for a minority,
however small – not only for a majority, however large – but for each of
us" – the majority imposes upon itself a self-denying ordinance. It
promises not to do what it otherwise could do: to ride roughshod over the
dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a
democratic society, and 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 impose its views on the populace. Otherwise stated, the COMELEC is
certainly not free to interfere with speech for no better reason than promoting
an approved message or discouraging a disfavored one.
We do not doubt that a number of our citizens may believe that
homosexual conduct is distasteful, offensive, or even defiant. They are
entitled to hold and express that view. On the other hand, LGBTs and their
supporters, in all likelihood, believe with equal fervor that relationships
between individuals of the same sex are morally equivalent to heterosexual
relationships. They, too, are entitled to hold and express that view. However,
as far as this Court is concerned, our democracy precludes using the religious
or moral views of one part of the community to exclude from consideration the
values of other members of the community.
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
been precluded, because of COMELEC’s action, from publicly expressing its views
as a political 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.
Non-Discrimination and International Law
Our Decision today is fully in accord with
our international obligations to protect and promote 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.
The principle of non-discrimination is laid
out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are
entitled without any discrimination to the equal protection of the law. In this
respect, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground such as
race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
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 sexual
orientation is not specifically enumerated as a status or ratio for
discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has
opined that the reference to "sex" in Article 26 should be construed
to include "sexual orientation."48Additionally,
a variety of United Nations bodies have declared discrimination on the basis of
sexual orientation to be prohibited under various international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in
the government of his country, directly or through freely chosen
representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the
opportunity, without any of the distinctions mentioned in article 2 and without
unreasonable restrictions:
(a) To take
part in the conduct of public affairs, directly or through freely chosen
representatives;
(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;
(c) To have
access, on general terms of equality, to public service in his country.
As stated by the CHR in its
Comment-in-Intervention, the scope of the right to electoral participation is
elaborated by the Human Rights Committee in its General Comment No. 25
(Participation in Public Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and
protects the right of every citizen to take part in the 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 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
Covenant.
x x x x
15. The effective implementation of the right
and the opportunity to stand for elective office ensures that persons entitled
to vote have a free choice of candidates. Any restrictions on the 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 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 because of that
person's candidacy. States parties should indicate and explain the legislative
provisions which exclude any group or category of persons from elective office.50
We stress, however, that although this Court
stands willing to assume the responsibility of giving effect to the Philippines’
international law obligations, the blanket invocation of international law is
not the panacea for all social ills. We refer now to the petitioner’s
invocation of the
As a final note, we cannot help but observe
that the social issues presented by this case are emotionally charged, societal
attitudes are in flux, even the psychiatric and religious communities are
divided in opinion. This Court’s role is not to impose its own view of
acceptable behavior. Rather, it is to apply the Constitution and laws as best
as it can, uninfluenced by public opinion, and confident in the knowledge that
our democracy is resilient enough to withstand vigorous debate.
WHEREFORE, the Petition is
hereby GRANTED. The
Resolutions of the Commission on 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
for party-list accreditation.
SO
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