Right to Vote / Take Part in Government

An election was held. After the election, it was contended that there had been irregularities in the voting process at various polling places, including ballot stuffing, early closure of polling stations, and intimidation. The Supreme Court of Sri Lanka held that the irregularities would have affected the result of the election and that there therefore should have been a re-poll at those polling stations. It said, “The right to a free, equal and secret ballot is an integral part of the citizen's freedom of expression, when he exercises that freedom through his right to vote . . . That right is an essential part of the freedom of expression recognized by Article 14(1)(a) of the Constitution, especially in view of Sri Lanka's obligations under Article 25 of the International Covenant on Civil and Political Rights and Article 27(15) of the Constitution . . . The citizen's right to vote includes the right to freely choose his representatives, through a genuine election which guarantees the free expression of the will of the electors: not just his own. Therefore not only is a citizen entitled himself to vote at a free, equal and secret poll, but he also has a right to a genuine election guaranteeing the free expression of the will of the entire electorate to which he belongs." The Court then held that because the respondent had not ensured a fair election process, and subsequently had not annulled the polling at stations with irregularities, the right of the petitioners under the Sri Lankan constitution had been infringed. However, as nearly two years had passed in the interim, the Court held that it would not be feasible to declare the results of the respective polling stations invalid nor to order a re-poll. It did, however, award the petitioners their costs, even though they had not asked for compensation.


The person elected by resident voters to the Provincial Council subsequently resigned, creating a vacant seat on the Council. The government then selected a person who was not on the ballot at election time to fill the seat. This was challenged in the Sri Lankan Supreme Court, which ruled that such action was invalid. It also held that only people who had been on the ballot at election time could be selected to fill a vacant seat on the Provincial Council. The Court said, “What is involved is the right of the electorate to be represented by persons who have faced the voters and obtained their support . . . That is wholly consistent with Article 25 of the International Covenant on Economic, Social and Cultural Rights, which recognizes that every citizen shall have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representative.” (emphasis in original).


(Papua New Guinea ratified the ICCPR on July 21, 2008. (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en) Since then, it has been cited at least once by the Supreme Court, in July 2010. Though the Papua New Guinea Supreme Court citation of international human rights norms as a whole is limited compared to countries in the region such as New Zealand and Fiji, it will be interesting to see if the recent ratification of the ICCPR leads to more ICCPR and human rights norms citations, as the July 2010 case would suggest.)

The Supreme Court of Papua New Guinea decided on an issue concerning the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC), a law which put restrictions on elected officials switching parties, ostensibly to avoid a “musical chairs” of political party membership. Under OLIPPAC, a candidate could not be endorsed by more than one political party, and after the election, the elected official had to remain a member of his or her chosen political party for a given amount of time. He or she would then be subject to investigation if he or she did switch. Thus, there was concern that this would force elected officials to go along with the party and become yes men or women, lacking freedom to vote their conscience rather than with their party, and also the freedom to switch parties when they felt that their own views had become convergent with those of the party.

The Supreme Court of Papua New Guinea called this a “draconian” law. “A person’s right to hold political beliefs and to enjoy that right individually or in association with likeminded persons, ought not be restricted or prohibited in any democracy. This right, amongst other human rights, is recognised as an inherent and unalienable right under the International Bill of Human Rights (1978) and the United Nations International Covenant on Civil and Political Rights (1966), both of which PNG has ratified.” The Court then struck down the relevant provisions of OLIPPAC. The Court seemed to do so mostly on grounds that OLIPPAC was unconstitutional, but nevertheless, the ICCPR was cited for support.


Two people who had lived in the villages of the New Territories of Hong Kong all their lives could not prove that their ancestors had been in Hong Kong since before 1898. Such proof was necessary for them to be considered members of the indigenous community. Since this could not be proved, the two either could not vote and/or could not stand as candidates in certain elections, even though the relevant law had been amended in 1988 to rectify this shortcoming. There were also sex discrimination issues present, as the relevant law especially disfavored women. The Court of Final Appeal cited the ICCPR and held that these civic restrictions were not reasonable, and therefore inconsistent with the Bill of Rights.

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 Petition[5] for registration with the COMELEC.

On November 11, 2009, after admitting the petitioner's evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating that:

    x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:

        x x x 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:

    x x x refers 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."

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang Ladlad's application for accreditation.

Court ruling

We grant the petition.

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.
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Equal Protection

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors.

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Freedom of Expression

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.

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.

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From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors.

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure - religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally accepted public morals" have not been convincingly transplanted into the realm of law.[29]
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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...

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."[48] Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements.[49]
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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 Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity),[51] which petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.[52] Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status.

We also hasten to add that not everything that society - or a certain segment of society - wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are no longer controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are - at best - de lege ferenda - and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the "soft law" nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris.[53]