Ang Ladlad v. Commission on Elections, Supreme Court of the Philippines (8 April 2010)
The Commission on Elections denied the petitioner, Ang Ladlad, registration as a political organisation in 2009. Ang Ladlad petitioned the Supreme Court for certiorari review, which was granted. The Commission on Human Rights (CHR) intervened on behalf of Ang Ladlad in this case before the Supreme Court.
Ang Ladlad was a political organisation composed of members of the Filipino LGBT community. In 2006, in accordance with Filipino law, Ang Ladlad applied for registration with the Commission on Elections. The application was denied because the Commission on Elections found that the organisation lacked a substantial membership base. The group applied again in 2009, but the Commission on Elections again dismissed the application, this time on moral and religious grounds.
The Commission on Elections found that Ang Ladlad, as an LGBT organisation, “tolerate[d] immorality which offends religious beliefs”. It cited the Bible and the Koran as proof that homosexual activity violated standards of morality, and held that it could only recognise law-abiding parties.
The Commission believed that Ang Ladlad’s support of LGBT issues violated several statutes (including Articles 201, 695 and 1306 of the Civil Code of the Republic of the Philippines) that referred to concepts such as “morality,” “mores, good customs,” “public morals,” and “morals”. Additionally, the Commission believed that approving Ang Ladlad would violate the constitutional duty to “promote and protect [the youth’s] physical, moral, spiritual, intellectual, and social well-being”.
Whether the Commission on Elections’ refusal to register Ang Ladlad violated the right of the organisation and its members to freedom of association, freedom of expression, and political participation.
Civil Code of the Philippines, Articles 201 (immoral doctrines, obscene publications and exhibitions, and indecent shows), 695 and 1306.
1987 Constitution of the Philippines, Article II, 13 (State protection of youth), Article III, Section 1 (equal protection), and Section 5 (freedom of religion).
Constitution of the United States, 14th Amendment (Equal Protection).
Fricke v. Lynch, United States District Court of Rhode Island, 1980 (holding that LGBT groups could not be denied the right of freedom of association; limiting government’s involvement in that right).
Lawrence v. Texas, United States Supreme Court, 2003 (affirming that same-sex sexual conduct between consenting adults was part of the liberty protected by the substantive due process clause of the 14th Amendment to the federal Constitution, and striking down Texas’ sodomy law).
International Covenant on Civil and Political Rights, Article 25 (rights to take part in the conduct of public affairs, to vote and to be elected, to have access on general terms of equality to public service); and Article 26 (rights of equality before the law, equal protection of the law, and non-discrimination).
Universal Declaration of Human Rights, Article 21 (1) (right to take part in the government either directly or through freely chosen representatives).
United Macedonian Organisation Ilinden and Others v. Bulgaria, ECtHR, 2006 (holding that seemingly radical or shocking political and social ideas are protected through the exercise of the right of association).
Toonen v. Australia, United Nations Human Rights Committee, 1994 (holding that Article 26 of the ICCPR prohibits discrimination based on sex, which includes sexual orientation).
Reasoning of the Court
The Supreme Court rejected all the reasons given by the Commission on Elections (COMELEC). Philippine case law clearly interpreted Article III, Section 5 of the Constitution as a call for “government neutrality in religious matters”. The Commission on Elections’ use of the Bible and the Koran was thus a significant constitutional violation.
The Court also rejected any public morals argument. While it recognised prejudice and discrimination against homosexuals were widespread, it refused to acknowledge that public sentiment was a source of law, stating: “We recall that the Philippines has not seen fit to criminalise homosexual conduct. Evidently, therefore, these ‘generally accepted public morals’ have not been convincingly transplanted into the realm of law.” The Commission on Elections had provided no evidence to show that the government had a secular, as opposed to religious or moral, interest in prohibiting the formation of an LGBT political party.
Further, the Court found that the accusation of unlawful activity by Ang Ladlad was “flimsy, at best; disingenuous, at worst”. The Commission on Elections’ selective targeting of Ang Ladlad provided grounds for a claim under the Constitution’s Equal Protection Clause.
While the Court refused to identify homosexuals as a separate class in need of special or differentiated treatment, it nonetheless held that the Commission on Elections’ decision violated the Equal Protection Clause. Philippine jurisprudence affirmed that any government intervention, even one that did not burden a suspect class or breach a fundamental right, must reflect a rational interest of government. The Court stated that the asserted interest in this case, the “moral disapproval of an unpopular minority”, was “not a legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause”. The only interest favoured by the Commission on Elections’ differentiation was “disapproval of or dislike for a disfavoured group”.
The Court also found that the Commission on Elections ruling violated the Philippine doctrine of freedom of expression. While the Constitution placed power in the hands of the majority, it also limited the power of that majority to “ride roughshod over the dissenting minorities”. According to the Court, freedom of expression could be limited only by restrictions that were “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 disfavoured one. This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning one’s homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well.
The Court supported its reasoning with references to international and comparative constitutional decisions. Constitutionally, when it infringed on the freedom of association of an individual or group, the government’s actions must involve “more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint”. Even radical or shocking political and social ideas were protected through the exercise of the right of association.
The Court recognised that many Philippine citizens disapproved of homosexuality and Ang Ladlad’s agenda. Nonetheless, the Court held, Philippine democracy “precludes using the religious or moral views of part of the community to exclude from consideration the values of other members of the community”.
Finally, the Court ruled that international law required the Commission on Elections to recognise Ang Ladlad. According to the Human Rights Committee’s decision in Toonen v. Australia, Article 26 of the ICCPR prohibited discrimination based on sex, including sexual orientation. Reading the right to participate in government under Article 21 of the UDHR in light of Toonen, the Court held that international law protected the right of LGBT organisations to participate in the political process and that the Commission on Elections’ decision contravened that right.
Based on constitutional and international law, the Court held that Ang Ladlad must be recognised by the Commission on Elections as a political party in the Philippines.
Ang Ladlad v. Commission on Elections, Supreme Court of the Philippines (full text of judgment, PDF)
Ang Ladlad v. Commission on Elections, Supreme Court of the Philippines – concurring opinion (full text of concurring opinion, PDF)