On November 11, 2009, the Comelec Second Division promulgated its decision denying the petition for registration of the ANG LADLAD LGBT Party for the Party List System of Representation in the House of Representatives. The decision denied the petition on moral grounds, stating:
“Petitioner [Ladlad] defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:
‘xxx a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity.’
and proceeded to define sexual orientation as that which:
‘xxx refer to a person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender.’
“This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs.” (Emphasis supplied)
Reacting to the COMELEC ruling, the Chairperson of the Commission on Human Rights, Atty. Leila M. De Lima said, “Homosexuality is not a counterculture. It is part of the diversity of Philippine culture. Homosexuals are part of the Filipino family and unavoidably must be part of our politics.”
The decision smacks of prejudice and discrimination wherein it relied upon the COMELEC Law Department in its Comment dated October 2, 2008, to wit:
“The ‘ANG LADLAD’ apparently advocates sexual immorality as indicated in the Petition’s par. 6F: ‘Consensual partnerships or relationships by gays and
“(2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals and good customs, established policies, lawful orders, decrees and edicts;
“(3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. (As amended by PD Nos. 960 and 969).”
The attributions of the Law Department to ANG LADLAD are incredible and do not appear to be supported by any evidence recognized by the COMELEC Second Division. It is not decipherable which acts carried out by ANG LADLAD as an organization constitute any of these attributions, nor which in particular are immoral. And yet, it seems that the COMELEC Second Division adopted the finding in the Comment in toto.
“There is no governmental policy which characterizes homosexuality as illegal nor immoral,” De Lima added. “There is or can be no basis in law to deny the registration of the party, directly or indirectly, on the grounds of homosexuality, much less on homosexuality equated to immorality. To make assertions based on their homosexuality is patently discriminatory.”
The Universal Declaration on Human Rights (UDHR), states that, “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination (Article 7, UDHR).”
The International Covenant on Civil and Political Rights (ICCPR) provides, “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 (Article 26, ICCPR)”.
These two instruments are looked upon and provide the principle and standards that must be demonstrated by the COMELEC in its mandate under the Constitution, the Omnibus Election Code and the Party List Law. The UDHR and ICCPR also prescribe the normative direction that States must practice in line with the rights laid out in the instruments. The norm of non-discrimination of persons running for elections is at issue in this instance.
The CHR Chairperson explained that ANG LADLAD is discriminated against in their right to participate as an organization in the party list elections, thereby violating the right against discrimination and their right to be voted for. Both the UDHR and the ICCPR declare:
# Article 21. UDHR
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
# Article 25, ICCPR
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;
xxx”
“We do not think that ANG LADLAD seeks accreditation to promote immorality in the country, but to give a voice to a marginalized sector to push for further protection of their rights. It is a fact that gays are often objects of discrimination through ridicule, contempt and various forms of violence. Just as this decision clearly illustrates,” De Lima remarked. “COMELEC has exhibited, at the very least, a retrogressive not progressive way of thinking. Our views on homosexuality must be in accordance with progressive human rights thought. In an age of growing, rather than receding, tolerance and promotion of human rights, this Decision appears to be a misplaced edifice of arcane views on homosexuality,” she added.
On the Division’s choice of basis for its argument on immorality, De Lima added, “There is a clear breach of the secular-religious divide, which is enshrined in our Constitution. Citing both Christian and Islamic doctrines [as the basis to justify the Decision] are certainly beyond the scope of authorities which the COMELEC may employ in resolving the petition.”
Moreover, the CHR Chairperson explained that the reference to Art. 201 of the Revised Penal Code as the only statutory ground to support the finding of immorality begs the question – is there in fact a secular, governmental policy against homosexuality? “And if this test were to be rightfully applied for ANG LADLAD, shouldn’t this be equally applied to each and every candidate running for public office?”
“The CHR will support the ANG LADLAD Party’s plea for reconsideration most probably through a Motion for Intervention so that we can formally present our own views, insights and position on the issue as a premier national human rights institution in the country. The rights of LGBTs are a human rights issue” de Lima said.
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