MACALINTAL v.

COMELEC f) Overseas Absentee Voter refers to a citizen of the Philippines who is qualified to register
FACTS: and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections.
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise
R.A. No. 9189: An Act Providing for A System of Overseas Absentee Voting by disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for
Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and president, vice-president, senators and party-list representatives.
for Other Purposes, appropriates funds under Section 29 thereof. In relation to Sections 1 and 2, Article V of the Constitution which read:
Taxpayers, such as herein petitioner, have the right to restrain officials from wasting SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by
public funds through the enforcement of an unconstitutional statute. The Court has held law, who are at least eighteen years of age, and who shall have resided in the Philippines for at
that they may assail the validity of a law appropriating public funds because least one year and in the place wherein they propose to vote for at least six months immediately
expenditure of public funds by an officer of the State for the purpose of executing an preceding the election. No literacy, property, or other substantive requirement shall be imposed
unconstitutional act constitutes a misapplication of such funds. on the exercise of suffrage.
This involves a public right that affects a great number of citizens. The Court has SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot
adopted the policy of taking jurisdiction over cases whenever the petitioner has as well as a system for absentee voting by qualified Filipinos abroad.
seriously and convincingly presented an issue of transcendental significance to the Section 1, Article V of the Constitution specifically provides that suffrage may be exercised
Filipino people. This has been explicitly pronounced by (1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen
in KapatiranngmgaNaglilingkodsaPamahalaanngPilipinas, Inc. vs. Tan, where the years of age, (4) who are residents in the Philippines for at least one year and in the place where
Court held:Objections to taxpayers suit for lack of sufficient personality standing, or they propose to vote for at least six months immediately preceding the election. Under Section
interest are, however, in the main procedural matters. Considering the importance to 5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or permanent resident
the public of the cases at bar, and in keeping with the Courts duty, under the 1987 who is recognized as such in the host country unless he/she executes an affidavit declaring that
Constitution, to determine whether or not the other branches of government have he/she shall resume actual physical permanent residence in the Philippines not later than three
kept themselves within the limits of the Constitution and the laws and that they years from approval of his/her registration under said Act.
have not abused the discretion given to them, the Court has brushed aside Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the
technicalities of procedure and has taken cognizance of these petitions. Filipinos abroad who are immigrants or permanent residents, to vote. He focuses solely on
Petitioner assails: Sec. 5. Disqualifications. The following shall be disqualified from Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A.
voting under this Act:d) An immigrant or a permanent resident who is recognized as No. 9189, totally ignoring the provisions of Section 2 empowering Congress to provide a system
such in the host country, unless he/she executes, upon registration, an affidavit for absentee voting by qualified Filipinos abroad.
prepared for the purpose by the Commission declaring that he/she shall resume actual A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression
physical permanent residence in the Philippines not later than three (3) years from that it contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent
approval of his/her registration under this Act. Such affidavit shall also state that he/she residents overseas are perceived as having left and abandoned the Philippines to live
has not applied for citizenship in another country. Failure to return shall be cause for permanently in their host countries and therefore, a provision in the law enfranchising those who
the removal of the name of the immigrant or permanent resident from the National do not possess the residency requirement of the Constitution by the mere act of executing an
Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. affidavit expressing their intent to return to the Philippines within a given period, risks a
Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, declaration of unconstitutionality. However, the risk is more apparent than real.
Article V of the 1987 Constitution which requires that the voter must be a As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves
resident in the Philippines for at least one year and in the place where he the Court to take a holistic view of the pertinent provisions of both the Constitution and R.A. No.
proposes to vote for at least six months immediately preceding an election. 9189. It is a basic rule in constitutional construction that the Constitution should be construed as
Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals to support his a whole. In Chiongbian vs. De Leon,the Court held that a constitutional provision should
claim. In that case, the Court held that a green card holder immigrant to the United function to the full extent of its substance and its terms, not by itself alone, but in conjunction with
States is deemed to have abandoned his domicile and residence in the all other provisions of that great document. Constitutional provisions are mandatory in character
Philippines. unless, either by express statement or by necessary implication, a different intention is manifest.
[27]
Petitioner further argues that Section 1, Article V of the Constitution does not allow The intent of the Constitution may be drawn primarily from the language of the document
provisional registration or a promise by a voter to perform a condition to be itself. Should it be ambiguous, the Court may consider the intent of its framers through their
qualified to vote in a political exercise; that the legislature should not be allowed debates in the constitutional convention.
to circumvent the requirement of the Constitution on the right of suffrage by R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2,
providing a condition thereon which in effect amends or alters the aforesaid Article V of the Constitution that Congress shall provide a system for voting by qualified Filipinos
residence requirement to qualify a Filipino abroad to vote.He claims that the right abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of
of suffrage should not be granted to anyone who, on the date of the election, does not legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is
possess the qualifications provided for by Section 1, Article V of the Constitution. presumed to have duly exercised its function as defined in Article VI (The Legislative Department)
of the Constitution.
The seed of the present controversy is the interpretation that is given to the phrase, qualified To put matters in their right perspective, it is necessary to dwell first on the significance of
citizens of the Philippines abroad as it appears in R.A. No. 9189, to wit: absentee voting. The concept of absentee voting is relatively new. It is viewed thus:
SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest and The method of absentee voting has been said to be completely separable and distinct from the
orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot. Towards this regular system of voting, and to be a new and different manner of voting from that previously
end, the State ensures equal opportunity to all qualified citizens of the Philippines abroad in known, and an exception to the customary and usual manner of voting. The right of absentee and
the exercise of this fundamental right. disabled voters to cast their ballots at an election is purely statutory; absentee voting was
SEC. 3. Definition of Terms. For purposes of this Act: unknown to, and not recognized at, the common law.
a) Absentee Voting refers to the process by which qualified citizens of the Philippines Absentee voting is an outgrowth of modern social and economic conditions devised to
abroad, exercise their right to vote; accommodate those engaged in military or civil life whose duties make it impracticable for them
to attend their polling places on the day of election, and the privilege of absentee voting may
flow from constitutional provisions or be conferred by statutes, existing in some jurisdictions, So, they are here registered as voters as he has the qualifications to be one, and is not
which provide in varying terms for the casting and reception of ballots by soldiers and sailors or willing to give up or lose the opportunity to choose the officials who are to run the government
other qualified voters absent on election day from the district or precinct of their residence. especially in national elections. Despite such registration, the animus revertendi to his home, to
Such statutes are regarded as conferring a privilege and not a right, or an absolute his domicile or residence of origin has not forsaken him.
right. When the legislature chooses to grant the right by statute, it must operate with This may be the explanation why the registration of a voter in a place other than his
equality among all the class to which it is granted; but statutes of this nature may be residence of origin has not been deemed sufficient to consider abandonment or loss of such
limited in their application to particular types of elections. The statutes should be residence of origin.
construed in the light of any constitutional provisions affecting registration and In other words, residence in this provision refers to two residence qualifications: residence
elections, and with due regard to their texts prior to amendment and to predecessor statutes and in the Philippines and residence in the place where he will vote. As far as residence in the
the decisions thereunder; they should also be construed in the light of the circumstances Philippines is concerned, the word residence means domicile, but as far as residence in the place
under which they were enacted; and so as to carry out the objects thereof, if this can be done where he will actually cast his ballot is concerned, the meaning seems to be different. He could
without doing violence to their provisions and mandates. Further, in passing on statutes have a domicile somewhere else and yet he is a resident of a place for six months and he is
regulating absentee voting, the court should look to the whole and every part of the allowed to vote there. So that there may be serious constitutional obstacles to absentee
election laws, the intent of the entire plan, and reasons and spirit of their adoption, and try voting, unless the vote of the person who is absent is a vote which will be considered as
to give effect to every portion thereof. cast in the place of his domicile.
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same It gives me scant comfort thinking of about two million Filipinos who should enjoy the right
time, both a resident and an absentee. However, under our election laws and the countless of suffrage, at least a substantial segment of these overseas Filipino communities. The
pronouncements of the Court pertaining to elections, an absentee remains attached to Committee, of course, is aware that when this Article of the Constitution explicitly and
his residence in the Philippines as residence is considered synonymous withdomicile. unequivocally extends the right of effective suffrage to Filipinos abroad, this will call for a logistical
Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this exercise of global proportions. In effect, this will require budgetary and administrative
country, the framers of the Constitution considered the circumstances that impelled them to commitments on the part of the Philippine government, mainly through the COMELEC and the
require Congress to establish a system for overseas absentee voting, thus: Ministry of Foreign Affairs, and perhaps, a more extensive elaboration of this mechanism that will
MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has be put in place to make effective the right to vote. Therefore, seeking shelter in some wise
a residential restriction, is not denied to citizens temporarily residing or working abroad. Based on jurisprudence of the past may not be sufficient to meet the demands of the right of
the statistics of several government agencies, there ought to be about two million such Filipinos suffrage for Filipinos abroad that I have mentioned. But I want to thank the Committee for
at this time. Commissioner Bernas had earlier pointed out that these provisions are really lifted saying that an amendment to this effect may be entertained at the proper time. . . . . . . . . .
from the two previous Constitutions of 1935 and 1973, with the exception of the last paragraph. Thus, the Constitutional Commission recognized the fact that while millions of Filipinos
They could not therefore have foreseen at that time the phenomenon now described as the reside abroad principally for economic reasons and hence they contribute in no small measure to
Filipino labor force explosion overseas. the economic uplift of this country, their voices are marginal insofar as the choice of this countrys
According to government data, there are now about 600,000 contract workers and leaders is concerned.
employees, and although the major portions of these expatriate communities of workers are to be The Constitutional Commission realized that under the laws then existing and considering
found in the Middle East, they are scattered in 177 countries in the world. the novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the
In a previous hearing of the Committee on Constitutional Commissions and Agencies, the right to vote would spawn constitutional problems especially because the Constitution itself
Chairman of the Commission on Elections, Ramon Felipe, said that there was no insuperable provides for the residency requirement of voters:
obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term
to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a more absentee voting also includes transient voting; meaning, those who are, let us say, studying in
convenient foreign citizenship. And those who on their own or under pressure of economic Manila need not go back to their places of registration, for instance, in Mindanao, to cast their
necessity here, find that they have to detach themselves from their families to work in other votes.
countries with definite tenures of employment. Many of them are on contract employment for one, MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.
two, or three years. They have no intention of changing their residence on a permanent basis, but MR. REGALADO. How about those people who cannot go back to the places where they are
are technically disqualified from exercising the right of suffrage in their countries of destination by registered?
the residential requirement in Section 1 which says: MR. MONSOD. Under the present Election Code, there are provisions for allowing students and
Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who military people who are temporarily in another place to register and vote. I believe that those
are eighteen years of age or over, and who shall have resided in the Philippines for at least one situations can be covered by the Omnibus Election Code. The reason we want absentee voting
year and in the place wherein they propose to vote for at least six months preceding the election. to be in the Constitution as a mandate to the legislature is that there could be
I, therefore, ask the Committee whether at the proper time they might entertain an inconsistency on the residence rule if it is just a question of legislation by Congress. So,
amendment that will make this exercise of the right to vote abroad for Filipino citizens an by allowing it and saying that this is possible, then legislation can take care of the rest.
effective, rather than merely a nominal right under this proposed Constitution. Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the
FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that
would like to make a comment on the meaning of residence in the Constitution because I think it could impede the implementation of its pursuit to enfranchise the largest number of qualified
is a concept that has been discussed in various decisions of the Supreme Court, particularly in Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated
the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of Congress to provide a system for overseas absentee voting.
residence in the Election Law. Allow me to quote: The discussion of the Constitutional Commission on the effect of the residency requirement
A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to prescribed by Section 1, Article V of the Constitution on the proposed system of absentee voting
improve his lot and that, of course, includes study in other places, practice of his avocation, for qualified Filipinos abroad is enlightening:
reengaging in business. When an election is to be held, the citizen who left his birthplace to MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the
improve his lot may decide to return to his native town, to cast his ballot, but for professional or exercise of the right of suffrage like having resided in the Philippines for at least one year and in
business reasons, or for any other reason, he may not absent himself from the place of his the place where they propose to vote for at least six months preceding the elections. What is the
professional or business activities. effect of these mandatory requirements on the matter of the exercise of the right of suffrage by
the absentee voters like Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer? MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez
MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the that this envisions Filipinos residing abroad. The understanding in the amendment is that
domicile requirements as well as the qualifications and disqualifications would be the same. the Filipino is temporarily abroad. He may not be actually residing abroad; he may just be
THE PRESIDENT. Are we leaving it to the legislature to devise the system? there on a business trip. It just so happens that the day before the elections he has to fly to
FR. BERNAS. I think there is a very legitimate problem raised there. the United States, so he could not cast his vote. He is temporarily abroad, but not residing
THE PRESIDENT. Yes. there. He stays in a hotel for two days and comes back. This is not limited only to
MR. BENGZON. I believe Commissioner Suarez is clarified. Filipinos temporarily residing abroad. But as long as he is temporarily abroad on the
FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or date of the elections, then he can fall within the prescription of Congress in that
the place where they vote in practice; the understanding is that it is flexible. For instance, one situation.
might be a resident of Naga or domiciled therein, but he satisfies the requirement of residence in MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this
Manila, so he is able to vote in Manila. clarification on record.
MR. TINGSON. Madam President, may I then suggest to the Committee to change the word MR. MONSOD. Madam President, to clarify what we mean by temporarily abroad, it
Filipinos to QUALIFIED FILIPINO VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it need not be on very short trips. One can be abroad on a treaty traders visa. Therefore,
should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS LIVING when we talk about registration, it is possible that his residence is in Angeles and he would
ABROAD, would that not satisfy the requirement? be able to vote for the candidates in Angeles, but Congress or the Assembly may
THE PRESIDENT. What does Commissioner Monsod say? provide the procedure for registration, like listing ones name, in a registry list in the
MR. MONSOD. Madam President, I think I would accept the phrase QUALIFIED FILIPINOS embassy abroad. That is still possible under the system.
ABROAD because QUALIFIED would assume that he has the qualifications and none of the FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with
disqualifications to vote. this.
MR. TINGSON. That is right. So does the Committee accept? Suppose we have a situation of a child of a diplomatic officer who reaches the voting age
FR. BERNAS. QUALIFIED FILIPINOS ABROAD? while living abroad and he has never registered here. Where will he register? Will he be a
THE PRESIDENT. Does the Committee accept the amendment? registered voter of a certain locality in the Philippines?
MR. REGALADO. Madam President. MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the
THE PRESIDENT. Commissioner Regalado is recognized. registration requirements in an embassy in the United States and his name is then entered
MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I in the official registration book in Angeles City, for instance.
specifically stated that the National Assembly shall prescribe a system which will enable qualified FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered
citizens, temporarily absent from the Philippines, to vote. According to Commissioner Monsod, voter of a locality here.
the use of the phrase absentee voting already took that into account as its meaning. That is MR. MONSOD. That is right. He does not have to come home to the Philippines to comply
referring to qualified Filipino citizens temporarily abroad. with the registration procedure here.
MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will FR. BERNAS. So, he does not have to come home.
leave it up to the legislative assembly, for example, to require where the registration is. If it is, say, MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more
members of the diplomatic corps who may be continuously abroad for a long time, perhaps, there clarifications needed from the body.
can be a system of registration in the embassies. However, we do not like to preempt the Also, the Floor Leader is happy to announce that there are no more registered
legislative assembly. Commissioners to propose amendments. So I move that we close the period of amendments.
THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a It is clear from these discussions of the members of the Constitutional Commission that
system. they intended to enfranchise as much as possible all Filipino citizens abroad who have not
MR. MONSOD. Yes. abandoned their domicile of origin. The Commission even intended to extend to young Filipinos
THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for who reach voting age abroad whose parents domicile of origin is in the Philippines, and consider
these absentee voters. them qualified as voters for the first time.
MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications. It is in pursuance of that intention that the Commission provided for Section 2 immediately
THE PRESIDENT. It is just to devise a system by which they can vote. after the residency requirement of Section 1. By the doctrine of necessary implication in statutory
MR. MONSOD. That is right, Madam President.[35] (Emphasis supplied) construction, which may be applied in construing constitutional provisions,[37] the strategic location
Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the of Section 2 indicates that the Constitutional Commission provided for an exception to the actual
responsibility of devising a system of absentee voting. The qualifications of voters as stated in residency requirement of Section 1 with respect to qualified Filipinos abroad. The same
Section 1 shall remain except for the residency requirement. This is in fact the reason why the Commission has in effect declared that qualified Filipinos who are not in the Philippines may be
Constitutional Commission opted for the term qualified Filipinos abroadwith respect to the system allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V
of absentee voting that Congress should draw up. As stressed by Commissioner Monsod, by the of the Constitution.
use of the adjective qualified with respect to Filipinos abroad, the assumption is that they have That Section 2 of Article V of the Constitution is an exception to the residency requirement
the qualifications and none of the disqualifications to vote. In fine-tuning the provision on found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No.
absentee voting, the Constitutional Commission discussed how the system should work: 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus:
MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case of Senator Arroyo. Mr. President, this bill should be looked into in relation to the
qualified Filipino citizens residing abroad and exercising their right of suffrage, they can cast their constitutional provisions. I think the sponsor and I would agree that the Constitution is
votes for the candidates in the place where they were registered to vote in the Philippines. So as supreme in any statute that we may enact.
to avoid any complications, for example, if they are registered in Angeles City, they could not vote Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It says:
for a mayor in Naga City. Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified
In other words, if that qualified voter is registered in Angeles City, then he can vote only for by law, who are at least eighteen years of age, and who shall have resided in the Philippines for
the local and national candidates in Angeles City. I just want to make that clear for the record. at least one year and in the place wherein they propose to vote for at least six months
MR. REGALADO. Madam President. immediately preceding the election.
THE PRESIDENT. What does Commissioner Regalado say? Now, Mr. President, the Constitution says, who shall have resided in the Philippines. They
are permanent immigrants. They have changed residence so they are barred under the
Constitution. This is why I asked whether this committee amendment which in fact does not b) Those who have expressly renounced their Philippine citizenship and who have pledged
alter the original text of the bill will have any effect on this? allegiance to a foreign country;
Senator Angara. Good question, Mr. President. And this has been asked in various c) Those who have committed and are convicted in a final judgment by a court or tribunal of an
fora. This is in compliance with the Constitution. One, the interpretation here of residence is offense punishable by imprisonment of not less than one (1) year, including those who have
synonymous with domicile. committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal
As the gentleman and I know, Mr. President, domicile is the intent to return to ones Code, such disability not having been removed by plenary pardon or
home. And the fact that a Filipino may have been physically absent from the amnesty: Provided, however, That any person disqualified to vote under this subsection shall
Philippines and may be physically a resident of the United States, for example, but automatically acquire the right to vote upon expiration of five (5) years after service of
has a clear intent to return to the Philippines, will make him qualified as a resident of sentence; Provided, further, That the Commission may take cognizance of final judgments issued
the Philippines under this law. by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and
This is consistent, Mr. President, with the constitutional mandate that we that Congress processes prescribed by the Rules of Court on execution of judgments;
must provide a franchise to overseas Filipinos. d) An immigrant or a permanent resident who is recognized as such in the host country, unless
If we read the Constitution and the suffrage principle literally as demanding physical he/she executes, upon registration, an affidavit prepared for the purpose by the Commission
presence, then there is no way we can provide for offshore voting to our declaring that he/she shall resume actual physical permanent residence in the Philippines not
offshore kababayan, Mr. President. later than three (3) years from approval of his/her registration under this Act. Such affidavit shall
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it also state that he/she has not applied for citizenship in another country. Failure to return shall be
reads: The Congress shall provide a system for securing the secrecy and sanctity of the cause for the removal of the name of the immigrant or permanent resident from the National
ballot as well as a system for absentee voting by qualified Filipinos abroad. Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.
The key to this whole exercise, Mr. President, is qualified. In other words, anything e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent
that we may do or say in granting our compatriots abroad must be anchored on the authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or
proposition that they are qualified. Absent the qualification, they cannot vote. And foreign service establishments concerned, unless such competent authority subsequently
residents (sic) is a qualification. certifies that such person is no longer insane or incompetent.
I will lose votes here from permanent residents so-called green-card holders, but the As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies
Constitution is the Constitution. We cannot compromise on this. The Senate cannot be a an immigrant or permanent resident who is recognized as such in the host country because
party to something that would affect or impair the Constitution. immigration or permanent residence in another country implies renunciation of ones residence in
Look at what the Constitution says In the place wherein they propose to vote for at least six his country of origin. However, same Section allows an immigrant and permanent resident abroad
months immediately preceding the election. to register as voter for as long as he/she executes an affidavit to show that he/she has not
Mr. President, all of us here have run (sic) for office. abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of
I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated Article V that all citizens of the Philippines not otherwise disqualified by law must be entitled to
only by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in exercise the right of suffrage and, that Congress must establish a system for absentee voting; for
Pateros for six months. That is how restrictive our Constitution is. I am not talking even otherwise, if actual, physical residence in the Philippines is required, there is no sense for the
about the Election Code. I am talking about the Constitution. framers of the Constitution to mandate Congress to establish a system for absentee voting.
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or
must do so, make the transfer six months before the election, otherwise, he is not qualified enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the
to vote. immigrant or permanent resident to go back and resume residency in the Philippines, but more
That is why I am raising this point because I think we have a fundamental difference here. significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of
Senator Angara. It is a good point to raise, Mr. President. But it is a point already well- origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates
debated even in the constitutional commission of 1986. And the reason Section 2 of the Constitution that proscribes provisional registration or a promise by a voter to perform a
Article V was placed immediately after the six-month/one-year residency condition to be qualified to vote in a political exercise.
requirement is to demonstrate unmistakably that Section 2 which authorizes To repeat, the affidavit is required of immigrants and permanent residents abroad because
absentee voting is an exception to the six-month/one-year residency by their status in their host countries, they are presumed to have relinquished their intent to return
requirement. That is the first principle, Mr. President, that one must remember. to this country; thus, without the affidavit, the presumption of abandonment of Philippine domicile
The second reason, Mr. President, is that under our jurisprudence and I think this is so well- shall remain.
entrenched that one need not argue about it residency has been interpreted as Further perusal of the transcripts of the Senate proceedings discloses another reason why
synonymous with domicile. the Senate required the execution of said affidavit. It wanted the affiant to exercise the option to
But the third more practical reason, Mr. President, is, if we follow the interpretation return or to express his intention to return to his domicile of origin and not to preempt that choice
of the gentleman, then it is legally and constitutionally impossible to give a franchise by legislation. Thus:
to vote to overseas Filipinos who do not physically live in the country, which is quite Senator Villar. Yes, we are going back.
ridiculous because that is exactly the whole point of this exercise to enfranchise It states that: For Filipino immigrants and those who have acquired permanent resident
them and empower them to vote. status abroad, a requirement for the registration is the submission of a Sworn Declaration
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting of Intent to Return duly sworn before any Philippine embassy or consulate official
process, to wit: authorized to administer oath
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn
law, at least eighteen (18) years of age on the day of elections, may vote for president, vice- Declaration to include only those who have the intention of returning to be qualified to
president, senators and party-list representatives. exercise the right of suffrage? What if the Filipino immigrant has no purpose of returning? Is
which does not require physical residency in the Philippines; and Section 5 of the assailed law he automatically disbarred from exercising this right to suffrage?
which enumerates those who are disqualified, to wit: Senator Angara. The rationale for this, Mr. President, is that we want to be expansive
SEC. 5. Disqualifications. The following shall be disqualified from voting under this Act: and all-inclusive in this law. That as long as he is a Filipino, no matter whether he is
a) Those who have lost their Filipino citizenship in accordance with Philippine laws; a green-card holder in the U.S. or not, he will be authorized to vote. But if he is
already a green-card holder, that means he has acquired permanent residency in the
United States, then he must indicate an intention to return. This is what makes for Philippines. Therefore, under the law, he must be given the opportunity to express that he has not
the definition of domicile. And to acquire the vote, we thought that we would require the actually abandoned his domicile in the Philippines by executing the affidavit required by Sections
immigrants and the green-card holders . . . Mr. President, the three administration senators 5(d) and 8(c) of the law.
are leaving, maybe we may ask for a vote [Laughter]. Petitioners speculative apprehension that the implementation of Section 5(d) would affect
Senator Villar. For a merienda, Mr. President. the credibility of the elections is insignificant as what is important is to ensure that all those who
Senator Angara. Mr. President, going back to the business at hand. The rationale for the possess the qualifications to vote on the date of the election are given the opportunity and
requirement that an immigrant or a green-card holder should file an affidavit that he will go permitted to freely do so. The COMELEC and the Department of Foreign Affairs have enough
back to the Philippines is that, if he is already an immigrant or a green-card holder, that resources and talents to ensure the integrity and credibility of any election conducted pursuant to
means he may not return to the country any more and that contradicts the definition of R.A. No. 9189.
domicile under the law. As to the eventuality that the Filipino abroad would renege on his undertaking to return to
But what we are trying to do here, Mr. President, is really provide the choice to the the Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would
voter. The voter, after consulting his lawyer or after deliberation within the family, may suffice to serve as deterrence to non-compliance with his/her undertaking under the affidavit.
decide No, I think we are risking our permanent status in the United States if we file an Petitioner argues that should a sizable number of immigrants renege on their promise to
affidavit that we want to go back. But we want to give him the opportunity to make that return, the result of the elections would be affected and could even be a ground to contest the
decision. We do not want to make that decision for him. proclamation of the winning candidates and cause further confusion and doubt on the integrity of
The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are the results of the election. Indeed, the probability that after an immigrant has exercised the right
disqualified to run for any elective office finds no application to the present case because to vote, he shall opt to remain in his host country beyond the third year from the execution of the
the Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos who affidavit, is not farfetched. However, it is not for this Court to determine the wisdom of a legislative
are immigrants and permanent residents in their host countries. exercise. As expressed in Taada vs. Tuvera,the Court is not called upon to rule on the wisdom of
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be the law or to repeal it or modify it if we find it impractical.
considered as a qualified citizen of the Philippines abroad upon fulfillment of the requirements of Congress itself was conscious of said probability and in fact, it has addressed the expected
registration under the new law for the purpose of exercising their right of suffrage. problem. Section 5(d) itself provides for a deterrence which is that the Filipino who fails to return
It must be emphasized that Section 5(d) does not only require an affidavit or a promise to as promised stands to lose his right of suffrage. Under Section 9, should a registered overseas
resume actual physical permanent residence in the Philippines not later than three years from absentee voter fail to vote for two consecutive national elections, his name may be ordered
approval of his/her registration, the Filipinos abroad must also declare that they have not applied removed from the National Registry of Overseas Absentee Voters.
for citizenship in another country. Thus, they must return to the Philippines; otherwise, their failure Other serious legal questions that may be raised would be: what happens to the votes cast
to return shall be cause for the removal of their names from the National Registry of Absentee by the qualified voters abroad who were not able to return within three years as promised? What
Voters and his/her permanent disqualification to vote in absentia. is the effect on the votes cast by the non-returnees in favor of the winning candidates? The votes
Thus, Congress crafted a process of registration by which a Filipino voter permanently cast by qualified Filipinos abroad who failed to return within three years shall not be invalidated
residing abroad who is at least eighteen years old, not otherwise disqualified by law, who has not because they were qualified to vote on the date of the elections, but their failure to return shall be
relinquished Philippine citizenship and who has not actually abandoned his/her intentions to cause for the removal of the names of the immigrants or permanent residents from the National
return to his/her domicile of origin, the Philippines, is allowed to register and vote in the Philippine Registry of Absentee Voters and their permanent disqualification to vote in absentia.
embassy, consulate or other foreign service establishments of the place which has jurisdiction In fine, considering the underlying intent of the Constitution, the Court does not find Section
over the country where he/she has indicated his/her address for purposes of the elections, while 5(d) of R.A. No. 9189 as constitutionally defective.
providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:SEC. 11. Procedure for Application to Vote in
Absentia.11.1. Every qualified citizen of the Philippines abroad whose application for registration
has been approved, including those previously registered under Republic Act No. 8189, shall, in
every national election, file with the officer of the embassy, consulate or other foreign service
establishment authorized by the Commission, a sworn written application to vote in a form
prescribed by the Commission. The authorized officer of such embassy, consulate or other
foreign service establishment shall transmit to the Commission the said application to vote within
five (5) days from receipt thereof. The application form shall be accomplished in triplicate and
submitted together with the photocopy of his/her overseas absentee voter certificate of
registration.
11.2. Every application to vote in absentia may be done personally at, or by mail to, the embassy,
consulate or foreign service establishment, which has jurisdiction over the country where he/she
has indicated his/her address for purposes of the elections.
11.3. Consular and diplomatic services rendered in connection with the overseas absentee voting
processes shall be made available at no cost to the overseas absentee voter.
Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress
enacted the law prescribing a system of overseas absentee voting in compliance with the
constitutional mandate. Such mandate expressly requires that Congress provide a system
of absentee voting that necessarily presupposes that the qualified citizen of the Philippines
abroad is not physically present in the country. The provisions of Sections 5(d) and 11 are
components of the system of overseas absentee voting established by R.A. No. 9189. The
qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the
Philippines. He is presumed not to have lost his domicile by his physical absence from this
country. His having become an immigrant or permanent resident of his host country does not
necessarily imply an abandonment of his intention to return to his domicile of origin, the