Elias Yusoph

Ladlad gets nod from Supreme Court

Ladlad gets nod from Supreme Court
By Edu Punay
The Philippine Star

MANILA, Philippines – Saying what is immoral may not necessarily be illegal, the Supreme Court (SC) overturned yesterday a Commission on Elections (Comelec) decision barring a gay rights group from contesting national elections in May and recognized it as a legitimate political party for the first time.

In a decision handed down during the SC’s summer session in Baguio City, the magistrates voted 13-2 to grant the petition of Ang Ladlad and nullify resolution of the Comelec disqualifying the group on the basis of “immorality.”

“We hold that moral disapproval… is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system,” declared the ruling penned by Associate Justice Mariano del Castillo.

“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,” the SC stressed.

Ang Ladlad, an organization of lesbians, gays, bisexuals and transgenders (LGBT), was earlier disqualified by Comelec because “although the group presented the proper documents and evidence, they cannot be accredited because their definition of LGBT makes it crystal clear that the petitioner tolerates immorality which offends religious beliefs.”

But the SC ruled that Comelec erred since it failed to explain “what societal ills are sought to be prevented, or why special protection is required for the youth” to justify the denial of accreditation of Ang Ladlad.

Citing Article III Section 5 of the Constitution, which provides that “no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof,” the SC said Comelec violated this clause when it used the Bible and Koran to justify the exclusion of the group.

It stressed that Ang Ladlad has satisfied all legal requirements to qualify as a party-list organization under Republic Act 7941 (Party-list System Act), including “proofs of past subordination or discrimination suffered by the group, immutable or distinguishing characteristic, attribute or experience that define them as a discrete group, and present political or economic powerlessness.”

Upholding equal protection, the court said that LGBTs have the same interest in participating in the party-list system as other marginalized and underrepresented sectors.

Issue emotionally charged

The SC also found a violation in Ang Ladlad’s right of freedom of expression since the group was precluded from publicly expressing its views as a political party and participating on an equal basis in the political process with other party-list candidates.

“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,” the court said.

“I felt vindicated,” said the group’s leader Danton Remoto, an English professor at the Jesuit-run Ateneo de Manila University.

He said Ang Ladlad had struggled for recognition and accreditation for the past seven years.

Other magistrates who concurred in the ruling were Chief Justice Reynato Puno, Senior Justice Antonio Carpio, and Associate Justices Conchita Carpio-Morales, Presbitero Velasco Jr., Antonio Eduardo Nachura, Teresita Leonardo-de Castro, Diosdado Peralta, Lucas Bersamin, Martin Villarama Jr., Jose Perez, and Jose Mendoza.

In his separate concurring opinion, Puno said “Ang Ladlad’s right of political participation was unduly infringed when the Comelec, swayed by the private biases and personal prejudices of its constituent members, arrogated unto itself the role of a religious court or worse, a morality police.”

Two magistrates – Senior Justice Renato Corona and Associate Justice Arturo Brion – dissented in the ruling.

In his separate opinion, Corona said “even assuming (Ang Ladlad) was able to show that the community of lesbians, gays, bisexuals, and transsexuals is underrepresented, it cannot be properly considered as marginalized under the party-list system.”

The court earlier granted temporary relief to Ang Ladlad by ordering Comelec to include the group in the ballots for the polls pending resolution of the petition.

Unsupported records

In its 26-page petition last Jan. 26, the group asked the high court to reverse the decision of Comelec denying their accreditation as a sectoral party because of “immorality.”

Petitioner argued that Comelec “made conclusions unsupported by records” when it ruled that Ang Ladlad “goes against teachings of certain religions” and that it “advocates sexual immorality.”

The group lamented how Comelec invoked Article 201 of the Revised Penal Code (RPC), dealing with the glorification of criminals, violence in shows, obscene publications, lustful or pornographic exhibitions, to support its determination that Ang Ladlad espouses doctrines contrary to public morals.

“It may not be amiss to say that the principle of ejusdem generis (of the same kind) suffices to declare that homosexuality per se does not fall within the ambit of the penal law. That one’s affections towards people of the same sex easily translate to lust and immorality is obviously a non sequitur (it does not follow),” they stressed.

They also told the court that being gay or lesbian is “neither a sin nor a sickness,” and therefore should be respected under Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) 44, a treaty to which the Philippines is a signatory.

“Each State party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,” the group said.

“Among these rights that must be respected and ensured, ‘without distinction of any kind’ are the right ‘to take part in the conduct of public affairs, directly or through freely chosen representatives’ and the right ‘to vote and be elected at genuine periodic elections,’ both of which are guaranteed under Article 25 of the ICCPR,” the group said.

Comelec committed discriminatory act

With this, Ang Ladlad claimed that Comelec committed a discriminatory act under ICCPR in disqualifying them from the party-list race.

It assailed the Comelec resolution of the second division composed of Commissioners Nicodemo Ferrer, Lucenito Tagle and Elias Yusoph.

In its ruling, the second division said Ang Ladlad advocates same-sex relationship that offends religious beliefs.

Upon appeal of Ang Ladlad in December, the first division of the poll body, composed of Commissioners Gregorio Larrazabal, Rene Sarmiento, and Armando Velasco, voted to grant Ang Ladlad’s appeal to get accredited.

Ang Ladlad, in its motion for reconsideration, cited the 2003 SC ruling on Estrada vs Escritor case. The court explained that the terms “immorality” or “morals” referred to in the law, including those in the Civil Code and the Revised Penal Code, are not of religious nature, but of public and secular sort.

But Chairman Jose Melo sided with the second division to junk Ang Ladlad’s appeal.

Melo countered the group’s argument that the Nov. 12 ruling of the poll body applied religious beliefs instead of using public or secular morals in deciding the gay group’s application for accreditation.

Melo said what the second division members used were “moral parameters and precepts that are generally accepted.”

Though the morals applied are religion-based, Melo said the hundred years of influence of Muslim and Christian beliefs had become an accepted norm in society.

He also stressed that the community of lesbians, gays, bisexuals, and transgenders is not a “special class,” and is therefore not marginalized or underrepresented.

“Thus, even if society’s understanding, tolerance, and acceptance of LGBT is elevated, there can be no denying that Ang Ladlad constituencies are still males and females, and they will be protected by the same Bill of Rights that applies to all citizens alike who are amply represented also by the males and females who compromise our legislature,” he said.

The poll chief said homosexuality is not a protected right under the law.

Since gays enjoy the same rights as other citizens, Melo said that their officials could also seek other elective posts, as long as they meet the requisites for the position.

The group has received support from Leila de Lima, head of the independent Commission on Human Rights, who denounced the Comelec’s November ruling as “retrogressive” and smacking of “discrimination and prejudice.”

Ang Ladlad is one of over 100 parties seeking to win 50 of the 286 seats in House of Representatives allocated for marginalized sectors. – With AP