[G.R. No. 157013. July 10, 2003.] the Constitution, the petition no doubt raises a justiciable controversy.

tion, the petition no doubt raises a justiciable controversy. Where an action

of the legislative branch is seriously alleged to have infringed the Constitution, it
ATTY. ROMULO B. MACALINTAL, Petitioner, v. COMMISSION ON ELECTIONS, HON. ALBERTO becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The
ROMULO, in his official capacity as Executive Secretary, and HON. EMILIA T. BONCODIN, question thus posed is judicial rather than political. The duty (to adjudicate) remains to
Secretary of the Department of Budget and Management, Respondents. assure that the supremacy of the Constitution is upheld." Once a "controversy as to the
application or interpretation of constitutional provision is raised before this Court (as in
DECISION the instant case), it becomes a legal issue which the Court is bound by constitutional
AUSTRIA-MARTINEZ, J.: mandate to decide."cralaw virtua1aw library
Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal,
a member of the Philippine Bar, seeking a declaration that certain provisions of In another case of paramount impact to the Filipino people, it has been expressed that
Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003) 1 suffer from it is illogical to await the adverse consequences of the law in order to consider the
constitutional infirmity. Claiming that he has actual and material legal interest in the controversy actual and ripe for judicial resolution. 8 In yet another case, the Court said
subject matter of this case in seeing to it that public funds are properly and lawfully used that:chanrob1es virtual 1aw library
and appropriated, petitioner filed the instant petition as a taxpayer and as a
lawyer.chanrob1es virtua1 1aw 1ibrary . . . despite the inhibitions pressing upon the Court when confronted with constitutional
issues, it will not hesitate to declare a law or act invalid when it is convinced that this
The Court upholds the right of petitioner to file the present petition. must be done. In arriving at this conclusion, its only criterion will be the Constitution and
God as its conscience gives it in the light to probe its meaning and discover its purpose.
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee Voting by Personal motives and political considerations are irrelevancies that cannot influence its
Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other decisions. Blandishment is as ineffectual as intimidation, for all the awesome power of
Purposes," appropriates funds under Section 29 thereof which provides that a the Congress and Executive, the Court will not hesitate "to make the hammer fall
supplemental budget on the General Appropriations Act of the year of its enactment heavily," where the acts of these departments, or of any official, betray the people’s will
into law shall provide for the necessary amount to carry out its provisions. Taxpayers, as expressed in the Constitution . . . 9
such as herein petitioner, have the right to restrain officials from wasting public funds
through the enforcement of an unconstitutional statute. 2 The Court has held that they The need to consider the constitutional issues raised before the Court is further
may assail the validity of a law appropriating public funds 3 because expenditure of buttressed by the fact that it is now more than fifteen years since the ratification of the
public funds by an officer of the State for the purpose of executing an unconstitutional 1987 Constitution requiring Congress to provide a system for absentee voting by
act constitutes a misapplication of such funds. 4 qualified Filipinos abroad. Thus, strong reasons of public policy demand that the Court
resolves the instant petition 10 and determine whether Congress has acted within the
The challenged provision of law involves a public right that affects a great number of limits of the Constitution or if it had gravely abused the discretion entrusted to it. 11
citizens. The Court has adopted the policy of taking jurisdiction over cases whenever the
petitioner has seriously and convincingly presented an issue of transcendental The petitioner raises three principal questions:chanrob1es virtual 1aw library
significance to the Filipino people. This has been explicitly pronounced in Kapatiran ng
mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 5 where the Court A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are
held:chanrob1es virtual 1aw library immigrants or permanent residents in other countries by their mere act of executing an
affidavit expressing their intention to return to the Philippines, violate the residency
Objections to taxpayers’ suit for lack of sufficient personality standing, or interest are, requirement in Section 1 of Article V of the Constitution?
however, in the main procedural matters. Considering the importance to the public of
the cases at bar, and in keeping with the Court’s duty, under the 1987 Constitution, to B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the
determine whether or not the other branches of government have kept themselves winning candidates for national offices and party list representatives including the
within the limits of the Constitution and the laws and that they have not abused the President and the Vice-President violate the constitutional mandate under Section 4,
discretion given to them, the Court has brushed aside technicalities of procedure and Article VII of the Constitution that the winning candidates for President and the Vice-
has taken cognizance of these petitions. 6 President shall be proclaimed as winners by Congress?

Indeed, in this case, the Court may set aside procedural rules as the constitutional right C. May Congress, through the Joint Congressional Oversight Committee created in
of suffrage of a considerable number of Filipinos is involved. Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and
approve the Implementing Rules and Regulations that the Commission on Elections shall
The question of propriety of the instant petition which may appear to be visited by the promulgate without violating the independence of the COMELEC under Section 1,
vice of prematurity as there are no ongoing proceedings in any tribunal, board or Article IX-A of the Constitution?
before a government official exercising judicial, quasi-judicial or ministerial functions as
required by Rule 65 of the Rules of Court, dims in light of the importance of the The Court will resolve the questions in seriatim.
constitutional issues raised by the petitioner. In Tañada v. Angara, 7 the Court
held:chanrob1es virtual 1aw library A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987
Constitution of the Republic of the Philippines?
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes
Section 5(d) provides:chanrob1es virtual 1aw library Filipinos who are immigrants or permanent residents abroad may have in fact never
abandoned their Philippine domicile. 20
Sec. 5. Disqualifications. — The following shall be disqualified from voting under this
Act:chanrob1es virtual 1aw library Taking issue with the petitioner’s contention that "green card" holders are considered to
have abandoned their Philippine domicile, the Solicitor General suggests that the Court
x x x may have to discard its ruling in Caasi v. Court of Appeals 21 in so far as it relates to
immigrants and permanent residents in foreign countries who have executed and
submitted their affidavits conformably with Section 5(d) of R.A. No. 9189. He maintains
d) An immigrant or a permanent resident who is recognized as such in the host country, that through the execution of the requisite affidavits, the Congress of the Philippines with
unless he/she executes, upon registration, an affidavit prepared for the purpose by the the concurrence of the President of the Republic had in fact given these immigrants
Commission declaring that he/she shall resume actual physical permanent residence in and permanent residents the opportunity, pursuant to Section 2, Article V of the
the Philippines not later than three (3) years from approval of his/her registration under Constitution, to manifest that they had in fact never abandoned their Philippine
this Act. Such affidavit shall also state that he/she has not applied for citizenship in domicile; that indubitably, they would have formally and categorically expressed the
another country. Failure to return shall be cause for the removal of the name of the requisite intentions, i.e., "animus manendi" and "animus revertendi;" that Filipino
immigrant or permanent resident from the National Registry of Absentee Voters and immigrants and permanent residents abroad possess the unquestionable right to
his/her permanent disqualification to vote in absentia. exercise the right of suffrage under Section 1, Article V of the Constitution upon
approval of their registration, conformably with R.A. No. 9189. 22
Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article
V of the 1987 Constitution which requires that the voter must be a resident in the The seed of the present controversy is the interpretation that is given to the phrase,
Philippines for at least one year and in the place where he proposes to vote for at least "qualified citizens of the Philippines abroad" as it appears in R.A. No. 9189, to
six months immediately preceding an election. Petitioner cites the ruling of the Court in wit:chanrob1es virtual 1aw library
Caasi v. Court of Appeals 12 to support his claim. In that case, the Court held that a
"green card" holder immigrant to the United States is deemed to have abandoned his SEC. 2. Declaration of Policy. — It is the prime duty of the State to provide a system of
domicile and residence in the Philippines. honest and orderly overseas absentee voting that upholds the secrecy and sanctity of
the ballot. Towards this end, the State ensures equal opportunity to all qualified citizens
Petitioner further argues that Section 1, Article V of the Constitution does not allow of the Philippines abroad in the exercise of this fundamental right.
provisional registration or a promise by a voter to perform a condition to be qualified to
vote in a political exercise; 13 that the legislature should not be allowed to circumvent SEC. 3. Definition of Terms. — For purposes of this Act:chanrob1es virtual 1aw library
the requirement of the Constitution on the right of suffrage by providing a condition
thereon which in effect amends or alters the aforesaid residence requirement to qualify a) "Absentee Voting" refers to the process by which qualified citizens of the Philippines
a Filipino abroad to vote. 14 He claims that the right of suffrage should not be granted abroad, exercise their right to vote;
to anyone who, on the date of the election, does not possess the qualifications
provided for by Section 1, Article V of the Constitution. . . . (Emphasis supplied)

Respondent COMELEC refrained from commenting on this issue. 15 f) "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to
register and vote under this Act, not otherwise disqualified by law, who is abroad on the
In compliance with the Resolution of the Court, the Solicitor General filed his comment day of elections. (Emphasis supplied)
for all public respondents. He contraposes that the constitutional challenge to Section
5(d) must fail because of the absence of clear and unmistakable showing that said SEC. 4. Coverage. — All citizens of the Philippines abroad, who are not otherwise
provision of law is repugnant to the Constitution. He stresses: All laws are presumed to be disqualified by law, at least eighteen (18) years of age on the day of elections, may
constitutional; by the doctrine of separation of powers, a department of government vote for president, vice-president, senators and party-list representatives. (Emphasis
owes a becoming respect for the acts of the other two departments; all laws are supplied)
presumed to have adhered to constitutional limitations; the legislature intended to
enact a valid, sensible, and just law. in relation to Sections 1 and 2, Article V of the Constitution which read:chanrob1es
virtual 1aw library
In addition, the Solicitor General points out that Section 1, Article V of the Constitution is
a verbatim reproduction of those provided for in the 1935 and the 1973 Constitutions. SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
Thus, he cites Co v. Electoral Tribunal of the House of Representatives 16 wherein the disqualified by law, who are at least eighteen years of age, and who shall have resided
Court held that the term "residence" has been understood to be synonymous with in the Philippines for at least one year and in the place wherein they propose to vote for
"domicile" under both Constitutions. He further argues that a person can have only one at least six months immediately preceding the election. No literacy, property, or other
"domicile" but he can have two residences, one permanent (the domicile) and the substantive requirement shall be imposed on the exercise of suffrage.
other temporary; 17 and that the definition and meaning given to the term residence
likewise applies to absentee voters. Invoking Romualdez-Marcos v. COMELEC 18 which SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the
reiterates the Court’s ruling in Faypon v. Quirino, 19 the Solicitor General maintains that ballot as well as a system for absentee voting by qualified Filipinos abroad.
. . . (Emphasis supplied) Constitutional provisions are mandatory in character unless, either by express statement
or by necessary implication, a different intention is manifest. 27 The intent of the
Section 1, Article V of the Constitution specifically provides that suffrage may be Constitution may be drawn primarily from the language of the document itself. Should it
exercised by (1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3) at be ambiguous, the Court may consider the intent of its framers through their debates in
least eighteen years of age, (4) who are residents in the Philippines for at least one year the constitutional convention. 28
and in the place where they propose to vote for at least six months immediately
preceding the election. Under Section 5(d) of R.A. No. 9189, one of those disqualified R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of
from voting is an immigrant or permanent resident who is recognized as such in the host Section 2, Article V of the Constitution that Congress shall provide a system for voting by
country unless he/she executes an affidavit declaring that he/she shall resume actual qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the
physical permanent residence in the Philippines not later than three years from approval parameters of the exercise of legislative authority in enacting said law. Hence, in the
of his/her registration under said Act. absence of restrictions, Congress is presumed to have duly exercised its function as
defined in Article VI (The Legislative Department) of the Constitution.
Petitioner questions the rightness of the mere act of execution of an affidavit to qualify
the Filipinos abroad who are immigrants or permanent residents, to vote. He focuses To put matters in their right perspective, it is necessary to dwell first on the significance of
solely on Section 1, Article V of the Constitution in ascribing constitutional infirmity to absentee voting. The concept of absentee voting is relatively new. It is viewed
Section 5(d) of R.A. No. 9189, totally ignoring the provisions of Section 2 empowering thus:chanrob1es virtual 1aw library
Congress to provide a system for absentee voting by qualified Filipinos abroad.
The method of absentee voting has been said to be completely separable and distinct
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the from the regular system of voting, and to be a new and different manner of voting from
impression that it contravenes Section 1, Article V of the Constitution. Filipino immigrants that previously known, and an exception to the customary and usual manner of voting.
and permanent residents overseas are perceived as having left and abandoned the The right of absentee and disabled voters to cast their ballots at an election is purely
Philippines to live permanently in their host countries and therefore, a provision in the statutory; absentee voting was unknown to, and not recognized at, the common law.
law enfranchising those who do not possess the residency requirement of the
Constitution by the mere act of executing an affidavit expressing their intent to return to Absentee voting is an outgrowth of modern social and economic conditions devised to
the Philippines within a given period, risks a declaration of unconstitutionality. However, accommodate those engaged in military or civil life whose duties make it impracticable
the risk is more apparent than real. 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,
The Constitution is the fundamental and paramount law of the nation to which all other existing in some jurisdictions, which provide in varying terms for the casting and
laws must conform and in accordance with which all private rights must be determined reception of ballots by soldiers and sailors or other qualified voters absent on election
and all public authority administered. 23 Laws that do not conform to the Constitution day from the district or precinct of their residence.
shall be stricken down for being unconstitutional.chanrob1es virtua1 1aw 1ibrary
Such statutes are regarded as conferring a privilege and not a right, or an absolute
Generally, however, all laws are presumed to be constitutional. In Peralta v. COMELEC, right. When the legislature chooses to grant the right by statute, it must operate with
the Court said:chanrob1es virtual 1aw library equality among all the class to which it is granted; but statutes of this nature may be
limited in their application to particular types of elections. The statutes should be
. . . An act of the legislature, approved by the executive, is presumed to be within construed in the light of any constitutional provisions affecting registration and elections,
constitutional limitations. The responsibility of upholding the Constitution rests not on the and with due regard to their texts prior to amendment and to predecessor statutes and
courts alone but on the legislature as well. The question of the validity of every statute is the decisions thereunder; they should also be construed in the light of the
first determined by the legislative department of the government itself. 24 circumstances under which they were enacted; and so as to carry out the objects
thereof, if this can be done without doing violence to their provisions and mandates.
Thus, presumption of constitutionality of a law must be overcome Further, in passing on statutes regulating absentee voting, the court should look to the
convincingly:chanrob1es virtual 1aw library whole and every part of the election laws, the intent of the entire plan, and reasons and
spirit of their adoption, and try to give effect to every portion thereof. 29 (Emphasis
. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution supplied)
must be clear and unequivocal, for even if a law is aimed at the attainment of some
public good, no infringement of constitutional rights is allowed. To strike down a law Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the
there must be a clear showing that what the fundamental law condemns or prohibits, same time, both a resident and an absentee. 30 However, under our election laws and
the statute allows it to be done.25cralaw:red the countless pronouncements of the Court pertaining to elections, an absentee
remains attached to his residence in the Philippines as residence is considered
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves synonymous with domicile.
the Court to take a holistic view of the pertinent provisions of both the Constitution and
R.A. No. 9189. It is a basic rule in constitutional construction that the Constitution should In Romualdez-Marcos, 31 the Court enunciated:chanrob1es virtual 1aw library
be construed as a whole. In Chiongbian v. De Leon, 26 the Court held that a
constitutional provision should function to the full extent of its substance and its terms, Article 50 of the Civil Code decrees that" [f]or the exercise of civil rights and the
not by itself alone, but in conjunction with all other provisions of that great document. fulfillment of civil obligations, the domicile of natural persons is their place of habitual
residence." In Ong v. Republic, this court took the concept of domicile to mean an insuperable obstacle to making effective the right of suffrage for Filipinos overseas.
individual’s "permanent home," "a place to which, whenever absent for business or for Those who have adhered to their Filipino citizenship notwithstanding strong temptations
pleasure, one intends to return, and depends on facts and circumstances in the sense are exposed to embrace a more convenient foreign citizenship. And those who on their
that they disclose intent." Based on the foregoing, domicile includes the twin elements own or under pressure of economic necessity here, find that they have to detach
of "the fact of residing or physical presence in a fixed place" and animus manendi, or themselves from their families to work in other countries with definite tenures of
the intention of returning there permanently. employment. Many of them are on contract employment for one, two, or three years.
They have no intention of changing their residence on a permanent basis, but are
Residence, in its ordinary conception, implies the factual relationship of an individual to technically disqualified from exercising the right of suffrage in their countries of
a certain place. It is the physical presence of a person in a given area, community or destination by the residential requirement in Section 1 which says:chanrob1es virtual
country. The essential distinction between residence and domicile in law is that 1aw library
residence involves the intent to leave when the purpose for which the resident has
taken up his abode ends. One may seek a place for purposes such as pleasure, Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by
business, or health. If a person’s intent be to remain, it becomes his domicile; if his intent law, who are eighteen years of age or over, and who shall have resided in the
is to leave as soon as his purpose is established it is residence. It is thus, quite perfectly Philippines for at least one year and in the place wherein they propose to vote for at
normal for an individual to have different residences in various places. However, a least six months preceding the election.
person can only have a single domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of choice. In Uytengsu v. Republic, I, therefore, ask the Committee whether at the proper time they might entertain an
we laid this distinction quite clearly:jgc:chanrobles.com.ph amendment that will make this exercise of the right to vote abroad for Filipino citizens
an effective, rather than merely a nominal right under this proposed Constitution.
"There is a difference between domicile and residence.’Residence’ is used to indicate a
place of abode, whether permanent or temporary; ‘domicile’ denotes a fixed FR. BERNAS.
permanent residence to which, when absent, one has the intention of returning. A man
may have a residence in one place and a domicile in another. Residence is not Certainly, the Committee will consider that. But more than just saying that, I would like to
domicile, but domicile is residence coupled with the intention to remain for an unlimited make a comment on the meaning of "residence" in the Constitution because I think it is
time. A man can have but one domicile for the same purpose at any time, but he may a concept that has been discussed in various decisions of the Supreme Court,
have numerous places of residence. His place of residence is generally his place of particularly in the case of Faypon v. Quirino, a 1954 case which dealt precisely with the
domicile, but it is not by any means necessarily so since no length of residence without meaning of "residence" in the Election Law. Allow me to quote:chanrob1es virtual 1aw
intention of remaining will constitute domicile."cralaw virtua1aw library library

For political purposes the concepts of residence and domicile are dictated by the A citizen may leave the place of his birth to look for greener pastures, as the saying
peculiar criteria of political laws. As these concepts have evolved in our election law, goes, to improve his lot and that, of course, includes study in other places, practice of
what has clearly and unequivocally emerged is the fact that residence for election his avocation, reengaging in business. When an election is to be held, the citizen who
purposes is used synonymously with domicile. 32 (Emphasis supplied) left his birthplace to improve his lot may decide to return to his native town, to cast his
ballot, but for professional or business reasons, or for any other reason, he may not
Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this absent himself from the place of his professional or business activities.
country, the framers of the Constitution considered the circumstances that impelled
them to require Congress to establish a system for overseas absentee voting, So, they are here registered as voters as he has the qualifications to be one, and is not
thus:chanrob1es virtual 1aw library willing to give up or lose the opportunity to choose the officials who are to run the
government especially in national elections. Despite such registration, the animus
MR. OPLE. revertendi to his home, to his domicile or residence of origin has not forsaken him.

With respect to Section 1, it is not clear whether the right of suffrage, which here has a This may be the explanation why the registration of a voter in a place other than his
residential restriction, is not denied to citizens temporarily residing or working abroad. residence of origin has not been deemed sufficient to consider abandonment or loss of
Based on the statistics of several government agencies, there ought to be about two such residence of origin.
million such Filipinos at this time. Commissioner Bernas had earlier pointed out that these
provisions are really lifted from the two previous Constitutions of 1935 and 1973, with the In other words, "residence" in this provision refers to two residence qualifications:
exception of the last paragraph. They could not therefore have foreseen at that time "residence" in the Philippines and "residence" in the place where he will vote. As far as
the phenomenon now described as the Filipino labor force explosion overseas. residence in the Philippines is concerned, the word "residence" means domicile, but as
far as residence in the place where he will actually cast his ballot is concerned, the
According to government data, there are now about 600,000 contract workers and meaning seems to be different. He could have a domicile somewhere else and yet he is
employees, and although the major portions of these expatriate communities of workers a resident of a place for six months and he is allowed to vote there. So that there may
are to be found in the Middle East, they are scattered in 177 countries in the world. be serious constitutional obstacles to absentee voting, unless the vote of the person
who is absent is a vote which will be considered as cast in the place of his domicile.
In a previous hearing of the Committee on Constitutional Commissions and Agencies,
the Chairman of the Commission on Elections, Ramon Felipe, said that there was no MR. OPLE.
 number of qualified Filipinos who are not in the Philippines that the Constitutional
Thank you for citing the jurisprudence. Commission explicitly mandated Congress to provide a system for overseas absentee
voting.
It gives me scant comfort thinking of about two million Filipinos who should enjoy the
right of suffrage, at least a substantial segment of these overseas Filipino communities. The discussion of the Constitutional Commission on the effect of the residency
The Committee, of course, is aware that when this Article of the Constitution explicitly requirement prescribed by Section 1, Article V of the Constitution on the proposed
and unequivocally extends the right of effective suffrage to Filipinos abroad, this will call system of absentee voting for qualified Filipinos abroad is enlightening:chanrob1es
for a logistical exercise of global proportions. In effect, this will require budgetary and virtual 1aw library
administrative commitments on the part of the Philippine government, mainly through
the COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive MR. SUAREZ.
elaboration of this mechanism that will be put in place to make effective the right to
vote. Therefore, seeking shelter in some wise jurisprudence of the past may not be May I just be recognized for a clarification. There are certain qualifications for the
sufficient to meet the demands of the right of suffrage for Filipinos abroad that I have exercise of the right of suffrage like having resided in the Philippines for at least one year
mentioned. But I want to thank the Committee for saying that an amendment to this and in the place where they propose to vote for at least six months preceding the
effect may be entertained at the proper time. . . . 33 (Emphasis Supplied) elections. What is the effect of these mandatory requirements on the matter of the
exercise of the right of suffrage by the absentee voters like Filipinos abroad?
Thus, the Constitutional Commission recognized the fact that while millions of Filipinos
reside abroad principally for economic reasons and hence they contribute in no small THE PRESIDENT.
measure to the economic uplift of this country, their voices are marginal insofar as the
choice of this country’s leaders is concerned. Would Commissioner Monsod care to answer?

The Constitutional Commission realized that under the laws then existing and MR. MONSOD.
considering the novelty of the system of absentee voting in this jurisdiction, vesting
overseas Filipinos with the right to vote would spawn constitutional problems especially I believe the answer was already given by Commissioner Bernas, that the domicile
because the Constitution itself provides for the residency requirement of requirements as well as the qualifications and disqualifications would be the same.
voters:chanrob1es virtual 1aw library
THE PRESIDENT.
MR. REGALADO.
Are we leaving it to the legislature to devise the system?
Before I act on that, may I inquire from Commissioner Monsod if the term "absentee
voting" also includes transient voting; meaning, those who are, let us say, studying in FR. BERNAS.
Manila need not go back to their places of registration, for instance, in Mindanao, to
cast their votes. I think there is a very legitimate problem raised there.

MR. MONSOD. THE PRESIDENT.

I think our provision is for absentee voting by Filipinos abroad. Yes.

MR. REGALADO. MR. BENGZON.

How about those people who cannot go back to the places where they are registered? I believe Commissioner Suarez is clarified.

MR. MONSOD. FR. BERNAS.

Under the present Election Code, there are provisions for allowing students and military But I think it should be further clarified with regard to the residence requirement or the
people who are temporarily in another place to register and vote. I believe that those place where they vote in practice; the understanding is that it is flexible. For instance,
situations can be covered by the Omnibus Election Code. The reason we want one might be a resident of Naga or domiciled therein, but he satisfies the requirement
absentee voting to be in the Constitution as a mandate to the legislature is that there of residence in Manila, so he is able to vote in Manila.
could be inconsistency on the residence rule if it is just a question of legislation by
Congress. So, by allowing it and saying that this is possible, then legislation can take MR. TINGSON.
care of the rest. 34 (Emphasis supplied)
Madam President, may I then suggest to the Committee to change the word "Filipinos"
Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to to QUALIFIED FILIPINO VOTERS. Instead of "VOTING BY FILIPINOS ABROAD," it should be
the inapplicability of the residency requirement in Section 1. It is precisely to avoid any QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD,
problems that could impede the implementation of its pursuit to enfranchise the largest would that not satisfy the requirement?
 THE PRESIDENT.
THE PRESIDENT.
The Commissioner is not stating here that he wants new qualifications for these
What does Commissioner Monsod say? absentee voters.

MR. MONSOD. MR. MONSOD.

Madam President, I think I would accept the phrase "QUALIFIED FILIPINOS ABROAD" That is right. They must have the qualifications and none of the disqualifications.
because "QUALIFIED" would assume that he has the qualifications and none of the
disqualifications to vote. THE PRESIDENT.

MR. TINGSON. It is just to devise a system by which they can vote.

That is right. So does the Committee accept? MR. MONSOD.

FR. BERNAS. That is right, Madam President. 35 (Emphasis supplied)

"QUALIFIED FILIPINOS ABROAD" ? Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress
the responsibility of devising a system of absentee voting. The qualifications of voters as
THE PRESIDENT. stated in Section 1 shall remain except for the residency requirement. This is in fact the
reason why the Constitutional Commission opted for the term qualified Filipinos abroad
Does the Committee accept the amendment? with respect to the system of absentee voting that Congress should draw up. As stressed
by Commissioner Monsod, by the use of the adjective qualified with respect to Filipinos
MR. REGALADO. abroad, the assumption is that they have the "qualifications and none of the
disqualifications to vote." In fine-tuning the provision on absentee voting, the
Madam President. Constitutional Commission discussed how the system should work:chanrob1es virtual
1aw library
THE PRESIDENT.
MR. SUAREZ.
Commissioner Regalado is recognized.
For clarification purposes, we just want to state for the record that in the case of
MR. REGALADO. qualified Filipino citizens residing abroad and exercising their right of suffrage, they can
cast their votes for the candidates in the place where they were registered to vote in
When Commissioner Bengzon asked me to read my proposed amendment, I specifically the Philippines. So as to avoid any complications, for example, if they are registered in
stated that the National Assembly shall prescribe a system which will enable qualified Angeles City, they could not vote for a mayor in Naga City.
citizens, temporarily absent from the Philippines, to vote. According to Commissioner
Monsod, the use of the phrase "absentee voting" already took that into account as its In other words, if that qualified voter is registered in Angeles City, then he can vote only
meaning. That is referring to qualified Filipino citizens temporarily abroad. for the local and national candidates in Angeles City. I just want to make that clear for
the record.
MR. MONSOD.
MR. REGALADO.
Yes, we accepted that. I would like to say that with respect to registration we will leave
it up to the legislative assembly, for example, to require where the registration is. If it is, Madam President.
say, members of the diplomatic corps who may be continuously abroad for a long time,
perhaps, there can be a system of registration in the embassies. However, we do not like THE PRESIDENT.
to preempt the legislative assembly.
What does Commissioner Regalado say?
THE PRESIDENT.
MR. REGALADO.
Just to clarify, Commissioner Monsod’s amendment is only to provide a system.
I just want to make a note on the statement of Commissioner Suarez that this envisions
MR. MONSOD. Filipinos residing abroad. The understanding in the amendment is that the Filipino is
temporarily abroad. He may not be actually residing abroad; he may just be there on a
Yes. business trip. It just so happens that the day before the elections he has to fly to the
United States, so he could not cast his vote. He is temporarily abroad, but not residing
there. He stays in a hotel for two days and comes back. This is not limited only to Filipinos It is clear from these discussions of the members of the Constitutional Commission that
temporarily residing abroad. But as long as he is temporarily abroad on the date of the they intended to enfranchise as much as possible all Filipino citizens abroad who have
elections, then he can fall within the prescription of Congress in that situation. not abandoned their domicile of origin. The Commission even intended to extend to
young Filipinos who reach voting age abroad whose parents’ domicile of origin is in the
MR. SUAREZ. Philippines, and consider them qualified as voters for the first time.

I thank the Commissioner for his further clarification. Precisely, we need this clarification It is in pursuance of that intention that the Commission provided for Section 2
on record. immediately after the residency requirement of Section 1. By the doctrine of necessary
implication in statutory construction, which may be applied in construing constitutional
MR. MONSOD. provisions, 37 the strategic location of Section 2 indicates that the Constitutional
Commission provided for an exception to the actual residency requirement of Section 1
Madam President, to clarify what we mean by "temporarily abroad," it need not be on with respect to qualified Filipinos abroad. The same Commission has in effect declared
very short trips. One can be abroad on a treaty traders visa. Therefore, when we talk that qualified Filipinos who are not in the Philippines may be allowed to vote even
about registration, it is possible that his residence is in Angeles and he would be able to though they do not satisfy the residency requirement in Section 1, Article V of the
vote for the candidates in Angeles, but Congress or the Assembly may provide the Constitution.
procedure for registration, like listing one’s name, in a registry list in the embassy abroad.
That is still possible under the system. That Section 2 of Article V of the Constitution is an exception to the residency
requirement found in Section 1 of the same Article was in fact the subject of debate
FR. BERNAS. when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the
Senate floor, thus:chanrob1es virtual 1aw library
Madam President, just one clarification if Commissioner Monsod agrees with this.
Senator Arroyo.
Suppose we have a situation of a child of a diplomatic officer who reaches the voting
age while living abroad and he has never registered here. Where will he register? Will he Mr. President, this bill should be looked into in relation to the constitutional provisions. I
be a registered voter of a certain locality in the Philippines? think the sponsor and I would agree that the Constitution is supreme in any statute that
we may enact.
MR. MONSOD.
Let me read Section 1, Article V, of the Constitution entitled, “Suffrage.” It
Yes, it is possible that the system will enable that child to comply with the registration says:chanrob1es virtual 1aw library
requirements in an embassy in the United States and his name is then entered in the
official registration book in Angeles City, for instance. Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided
FR. BERNAS. in the Philippines for at least one year and in the place wherein they propose to vote for
at least six months immediately preceding the election.
In other words, he is not a registered voter of Los Angeles, but a registered voter of a
locality here. 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
MR. MONSOD. Constitution. This is why I asked whether this committee amendment which in fact does
not alter the original text of the bill will have any effect on this?
That is right. He does not have to come home to the Philippines to comply with the
registration procedure here. Senator Angara.

FR. BERNAS. Good question, Mr. President. And this has been asked in various fora. This is in
compliance with the Constitution. One, the interpretation here of "residence" is
So, he does not have to come home. synonymous with "domicile."cralaw virtua1aw library

MR. BENGZON. As the gentleman and I know, Mr. President, "domicile" is the intent to return to one’s
home. And the fact that a Filipino may have been physically absent from the Philippines
Madam President, the Floor Leader wishes to inquire if there are more clarifications and may be physically a resident of the United States, for example, but has a clear
needed from the body. intent to return to the Philippines, will make him qualified as a resident of the Philippines
under this law.
Also, the Floor Leader is happy to announce that there are no more registered
Commissioners to propose amendments. So I move that we close the period of This is consistent, Mr. President, with the constitutional mandate that we – that Congress
amendments. 36 (Emphasis supplied) – must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as demanding physical Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee
presence, then there is no way we can provide for offshore voting to our offshore voting process, to wit:chanrob1es virtual 1aw library
kababayan, Mr. President.
SEC. 4. Coverage. — All citizens of the Philippines abroad, who are not otherwise
Senator Arroyo. disqualified by law, at least eighteen (18) years of age on the day of elections, may
vote for president, vice-president, senators and party-list representatives.
Mr. President, when the Constitution says, in Section 2 of Article V, it reads: "The Congress
shall provide a system for securing the secrecy and sanctity of the ballot as well as a which does not require physical residency in the Philippines; and Section 5 of the
system for absentee voting by qualified Filipinos abroad."cralaw virtua1aw library assailed law which enumerates those who are disqualified, to wit:chanrob1es virtual
1aw library
The key to this whole exercise, Mr. President, is “qualified.” In other words, anything that
we may do or say in granting our compatriots abroad must be anchored on the SEC. 5. Disqualifications. — The following shall be disqualified from voting under this
proposition that they are qualified. Absent the qualification, they cannot vote. And Act:chanrob1es virtual 1aw library
“residents” (sic) is a qualification.
a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
I will lose votes here from permanent residents so-called "green-card holders", but the
Constitution is the Constitution. We cannot compromise on this. The Senate cannot be a b) Those who have expressly renounced their Philippine citizenship and who have
party to something that would affect or impair the Constitution. pledged allegiance to a foreign country;

Look at what the Constitution says — "In the place wherein they propose to vote for at c) Those who have committed and are convicted in a final judgment by a court or
least six months immediately preceding the election."cralaw virtua1aw library tribunal of an offense punishable by imprisonment of not less than one (1) year,
including those who have committed and been found guilty of Disloyalty as defined
Mr. President, all of us here have run (sic) for office. under Article 137 of the Revised Penal Code, such disability not having been removed
by plenary pardon or amnesty: Provided, however, That any person disqualified to vote
I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated under this subsection shall automatically acquire the right to vote upon expiration of five
only by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in (5) years after service of sentence; Provided, further, That the Commission may take
Pateros for six months. That is how restrictive our Constitution is. I am not talking even cognizance of final judgments issued by foreign courts or tribunals only on the basis of
about the Election Code. I am talking about the Constitution. reciprocity and subject to the formalities and processes prescribed by the Rules of Court
on execution of judgments;
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But
he must do so, make the transfer six months before the election, otherwise, he is not d) An immigrant or a permanent resident who is recognized as such in the host country,
qualified to vote. unless he/she executes, upon registration, an affidavit prepared for the purpose by the
Commission declaring that he/she shall resume actual physical permanent residence in
That is why I am raising this point because I think we have a fundamental difference the Philippines not later than three (3) years from approval of his/her registration under
here. this Act. Such affidavit shall also state that he/she has not applied for citizenship in
another country. Failure to return shall be cause for the removal of the name of the
Senator Angara. immigrant or permanent resident from the National Registry of Absentee Voters and
his/her permanent disqualification to vote in absentia.
It is a good point to raise, Mr. President. But it is a point already well-debated even in the
constitutional commission of 1986. And the reason Section 2 of Article V was placed e) Any citizen of the Philippines abroad previously declared insane or incompetent by
immediately after the six-month/one-year residency requirement is to demonstrate competent authority in the Philippines or abroad, as verified by the Philippine
unmistakably that Section 2 which authorizes absentee voting is an exception to the six- embassies, consulates or foreign service establishments concerned, unless such
month/one-year residency requirement. That is the first principle, Mr. President, that one competent authority subsequently certifies that such person is no longer insane or
must remember. incompetent.

The second reason, Mr. President, is that under our jurisprudence — and I think this is so As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an
well-entrenched that one need not argue about it — "residency" has been interpreted immigrant or permanent resident who is "recognized as such in the host country"
as synonymous with "domicile."cralaw virtua1aw library because immigration or permanent residence in another country implies renunciation of
one’s residence in his country of origin. However, same Section allows an immigrant and
But the third more practical reason, Mr. President, is, if we follow the interpretation of the permanent resident abroad to register as voter for as long as he/she executes an
gentleman, then it is legally and constitutionally impossible to give a franchise to vote to affidavit to show that he/she has not abandoned his domicile in pursuance of the
overseas Filipinos who do not physically live in the country, which is quite ridiculous constitutional intent expressed in Sections 1 and 2 of Article V that "all citizens of the
because that is exactly the whole point of this exercise — to enfranchise them and Philippines not otherwise disqualified by law" must be entitled to exercise the right of
empower them to vote. 38 (Emphasis supplied) suffrage and, that Congress must establish a system for absentee voting; for otherwise, if
actual, physical residence in the Philippines is required, there is no sense for the framers
of the Constitution to mandate Congress to establish a system for absentee Philippines is that, if he is already an immigrant or a green-card holder, that means he
voting.chanrob1es virtua1 1aw 1ibrary may not return to the country any more and that contradicts the definition of "domicile"
under the law.
Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling
or enfranchising act. The affidavit required in Section 5(d) is not only proof of the But what we are trying to do here, Mr. President, is really provide the choice to the voter.
intention of the immigrant or permanent resident to go back and resume residency in The voter, after consulting his lawyer or after deliberation within the family, may decide
the Philippines, but more significantly, it serves as an explicit expression that he had not “No, I think we are risking our permanent status in the United States if we file an affidavit
in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution that we want to go back." But we want to give him the opportunity to make that
of the affidavit under Section 5(d) violates the Constitution that proscribes "provisional decision. We do not want to make that decision for him. 39 (Emphasis supplied)
registration or a promise by a voter to perform a condition to be qualified to vote in a
political exercise."cralaw virtua1aw library The jurisprudential declaration in Caasi v. Court of Appeals that green card holders are
disqualified to run for any elective office finds no application to the present case
To repeat, the affidavit is required of immigrants and permanent residents abroad because the Caasi case did not, for obvious reasons, consider the absentee voting
because by their status in their host countries, they are presumed to have relinquished rights of Filipinos who are immigrants and permanent residents in their host countries.
their intent to return to this country; thus, without the affidavit, the presumption of
abandonment of Philippine domicile shall remain. In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still
be considered as a "qualified citizen of the Philippines abroad" upon fulfillment of the
Further perusal of the transcripts of the Senate proceedings discloses another reason requirements of registration under the new law for the purpose of exercising their right of
why the Senate required the execution of said affidavit. It wanted the affiant to exercise suffrage.
the option to return or to express his intention to return to his domicile of origin and not
to preempt that choice by legislation. Thus:chanrob1es virtual 1aw library It must be emphasized that Section 5(d) does not only require an affidavit or a promise
to "resume actual physical permanent residence in the Philippines not later than three
Senator Villar. years from approval of his/her registration," the Filipinos abroad must also declare that
they have not applied for citizenship in another country. Thus, they must return to the
Yes, we are going back. Philippines; otherwise, their failure to return "shall be cause for the removal" of their
names "from the National Registry of Absentee Voters and his/her permanent
It states that: "For Filipino immigrants and those who have acquired permanent resident disqualification to vote in absentia."cralaw virtua1aw library
status abroad," a requirement for the registration is the submission of "a Sworn
Declaration of Intent to Return duly sworn before any Philippine embassy or consulate Thus, Congress crafted a process of registration by which a Filipino voter permanently
official authorized to administer oath. . ."cralaw virtua1aw library residing abroad who is at least eighteen years old, not otherwise disqualified by law,
who has not relinquished Philippine citizenship and who has not actually abandoned
Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn his/her intentions to return to his/her domicile of origin, the Philippines, is allowed to
Declaration to include only those who have the intention of returning to be qualified to register and vote in the Philippine embassy, consulate or other foreign service
exercise the right of suffrage? What if the Filipino immigrant has no purpose of returning? establishments of the place which has jurisdiction over the country where he/she has
Is he automatically disbarred from exercising this right to suffrage? indicated his/her address for purposes of the elections, while providing for safeguards to
a clean election.
Senator Angara.
Thus, Section 11 of R.A. No. 9189 provides:chanrob1es virtual 1aw library
The rationale for this, Mr. President, is that we want to be expansive and all-inclusive in
this law. That as long as he is a Filipino, no matter whether he is a green-card holder in SEC. 11. Procedure for Application to Vote in Absentia. —
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 11.1. Every qualified citizen of the Philippines abroad whose application for registration
indicate an intention to return. This is what makes for the definition of "domicile." And to has been approved, including those previously registered under Republic Act No. 8189,
acquire the vote, we thought that we would require the immigrants and the green-card shall, in every national election, file with the officer of the embassy, consulate or other
holders . . . Mr. President, the three administration senators are leaving, maybe we may foreign service establishment authorized by the Commission, a sworn written application
ask for a vote [Laughter]. 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
Senator Villar. 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
For a merienda, Mr. President. his/her overseas absentee voter certificate of registration.

Senator Angara. 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
Mr. President, going back to the business at hand. The rationale for the requirement that country where he/she has indicated his/her address for purposes of the elections.
an immigrant or a green-card holder should file an affidavit that he will go back to the
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 In fine, considering the underlying intent of the Constitution, the Court does not find
absentee voter. Section 5(d) of R.A. No. 9189 as constitutionally defective.

Contrary to petitioner’s claim that Section 5(d) circumvents the Constitution, Congress B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in
enacted the law prescribing a system of overseas absentee voting in compliance with contravention of Section 4, Article VII of the Constitution?
the constitutional mandate. Such mandate expressly requires that Congress provide a
system of absentee voting that necessarily presupposes that the "qualified citizen of the Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for
Philippines abroad" is not physically present in the country. The provisions of Sections 5(d) president, vice-president, senators and party-list representatives.
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 Section 18.5 of the same Act provides:chanrob1es virtual 1aw library
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 SEC. 18. On-Site Counting and Canvassing. —
resident of his host country does not necessarily imply an abandonment of his intention
to return to his domicile of origin, the Philippines. Therefore, under the law, he must be x x x
given the opportunity to express that he has not actually abandoned his domicile in the
Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law.
18.5 The canvass of votes shall not cause the delay of the proclamation of a winning
Petitioner’s speculative apprehension that the implementation of Section 5(d) would candidate if the outcome of the election will not be affected by the results thereof.
affect the credibility of the elections is insignificant as what is important is to ensure that Notwithstanding the foregoing, the Commission is empowered to order the
all those who possess the qualifications to vote on the date of the election are given the proclamation of winning candidates despite the fact that the scheduled election has
opportunity and permitted to freely do so. The COMELEC and the Department of not taken place in a particular country or countries, if the holding of elections therein
Foreign Affairs have enough resources and talents to ensure the integrity and credibility has been rendered impossible by events, factors and circumstances peculiar to such
of any election conducted pursuant to R.A. No. 9189. country or countries, in which events, factors and circumstances are beyond the control
or influence of the Commission. (Emphasis supplied)
As to the eventuality that the Filipino abroad would renege on his undertaking to return
to the Philippines, the penalty of perpetual disenfranchisement provided for by Section Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the
5(d) would suffice to serve as deterrence to non-compliance with his/her undertaking COMELEC to order the proclamation of winning candidates insofar as it affects the
under the affidavit. canvass of votes and proclamation of winning candidates for president and vice-
president, is unconstitutional because it violates the following provisions of paragraph 4,
Petitioner argues that should a sizable number of “immigrants” renege on their promise Section 4 of Article VII of the Constitution:chanrob1es virtual 1aw library
to return, the result of the elections would be affected and could even be a ground to
contest the proclamation of the winning candidates and cause further confusion and SEC. 4. . . .
doubt on the integrity of the results of the election. Indeed, the probability that after an
immigrant has exercised the right to vote, he shall opt to remain in his host country The returns of every election for President and Vice-President, duly certified by the
beyond the third year from the execution of the affidavit, is not farfetched. However, it is board of canvassers of each province or city, shall be transmitted to the Congress,
not for this Court to determine the wisdom of a legislative exercise. As expressed in directed to the President of the Senate. Upon receipt of the certificates of canvass, the
Tañada v. Tuvera, 40 the Court is not called upon to rule on the wisdom of the law or to President of the Senate shall, not later than thirty days after the day of the election,
repeal it or modify it if we find it impractical. open all the certificates in the presence of the Senate and the House of Representatives
in joint public session, and the Congress, upon determination of the authenticity and
Congress itself was conscious of said probability and in fact, it has addressed the due execution thereof in the manner provided by law, canvass the votes.
expected problem. Section 5(d) itself provides for a deterrence which is that the Filipino
who fails to return as promised stands to lose his right of suffrage. Under Section 9, should The person having the highest number of votes shall be proclaimed elected, but in case
a registered overseas absentee voter fail to vote for two consecutive national elections, two or more shall have an equal and highest number of votes, one of them shall
his name may be ordered removed from the National Registry of Overseas Absentee forthwith be chosen by the vote of a majority of all the Members of both Houses of the
Voters. Congress, voting separately.

Other serious legal questions that may be raised would be: what happens to the votes The Congress shall promulgate its rules for the canvassing of the certificates.
cast by the qualified voters abroad who were not able to return within three years as
promised? What is the effect on the votes cast by the non-returnees in favor of the
x x x
winning candidates? The votes cast by qualified Filipinos abroad who failed to return
within three years shall not be invalidated because they were qualified to vote on the
date of the elections, but their failure to return shall be cause for the removal of the
which gives to Congress the duty to canvass the votes and proclaim the winning
names of the immigrants or permanent residents from the National Registry of Absentee
candidates for president and vice-president.
Voters and their permanent disqualification to vote in absentia.
 interested party, including the legislators.
The Solicitor General asserts that this provision must be harmonized with paragraph 4,
Section 4, Article VII of the Constitution and should be taken to mean that COMELEC It is only on this question that respondent COMELEC submitted its Comment. It agrees
can only proclaim the winning Senators and party-list representatives but not the with the petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the
President and Vice-President. 41 petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections
upon Section 1, Article IX-A of the Constitution providing for the independence of the
Respondent COMELEC has no comment on the matter. constitutional commissions such as the COMELEC. It asserts that its power to formulate
rules and regulations has been upheld in Gallardo v. Tabamo, Jr. 42 where this Court
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. held that the power of the COMELEC to formulate rules and regulations is implicit in its
9189 is far too sweeping that it necessarily includes the proclamation of the winning power to implement regulations under Section 2(1) of Article IX-C 43 of the Constitution.
candidates for the presidency and the vice-presidency. COMELEC joins the petitioner in asserting that as an independent constitutional body, it
may not be subject to interference by any government instrumentality and that only this
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Court may review COMELEC rules and only in cases of grave abuse of discretion.
Constitution only insofar as said Section totally disregarded the authority given to
Congress by the Constitution to proclaim the winning candidates for the positions of The COMELEC adds, however, that another provision, vis-à-vis its rule-making power, to
president and vice-president. wit:chanrob1es virtual 1aw library

In addition, the Court notes that Section 18.4 of the law, to wit:chanrob1es virtual 1aw SEC. 17. Voting by Mail. —
library
17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not
18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special more than three (3) countries, subject to the approval of the Congressional Oversight
Board of Canvassers shall transmit via facsimile, electronic mail, or any other means of Committee. Voting by mail may be allowed in countries that satisfy the following
transmission equally safe and reliable the Certificates of Canvass and the Statements of conditions:chanrob1es virtual 1aw library
Votes to the Commission, . . . [Emphasis supplied]
a) Where the mailing system is fairly well-developed and secure to prevent occasion for
clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that fraud;
the returns of every election for President and Vice-President shall be certified by the
board of canvassers to Congress.chanrob1es virtua1 1aw 1ibrary b) Where there exists a technically established identification system that would preclude
multiple or proxy voting; and
Congress could not have allowed the COMELEC to usurp a power that constitutionally
belongs to it or, as aptly stated by petitioner, to encroach “on the power of Congress to c) Where the system of reception and custody of mailed ballots in the embassies,
canvass the votes for president and vice-president and the power to proclaim the consulates and other foreign service establishments concerned are adequate and well-
winners for the said positions.” The provisions of the Constitution as the fundamental law secured.
of the land should be read as part of The Overseas Absentee Voting Act of 2003 and
hence, the canvassing of the votes and the proclamation of the winning candidates for Thereafter, voting by mail in any country shall be allowed only upon review and
president and vice-president for the entire nation must remain in the hands of Congress. approval of the Joint Congressional Oversight Committee.
(Emphasis supplied)
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the
Constitution? is likewise unconstitutional as it violates Section 1, Article IX-A mandating the
independence of constitutional commissions.
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common
Provisions) of the Constitution, to wit:chanrob1es virtual 1aw library The Solicitor General takes exception to his prefatory statement that the constitutional
challenge must fail and agrees with the petitioner that Sections 19 and 25 are invalid
Section 1. The Constitutional Commissions, which shall be independent, are the Civil and unconstitutional on the ground that there is nothing in Article VI of the Constitution
Service Commission, the Commission on Elections, and the Commission on Audit. on Legislative Department that would as much as imply that Congress has concurrent
(Emphasis supplied) power to enforce and administer election laws with the COMELEC; and by the principles
of exclusio unius est exclusio alterius and expressum facit cessare tacitum, the
He submits that the creation of the Joint Congressional Oversight Committee with the constitutionally enumerated powers of Congress circumscribe its authority to the
power to review, revise, amend and approve the Implementing Rules and Regulations exclusion of all others.
promulgated by the COMELEC, R.A. No. 9189 intrudes into the independence of the
COMELEC which, as a constitutional body, is not under the control of either the The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1
executive or legislative departments of government; that only the COMELEC itself can are unconstitutional. Thus, there is no actual issue forged on this question raised by
promulgate rules and regulations which may be changed or revised only by the petitioner.
majority of its members; and that should the rules promulgated by the COMELEC violate
any law, it is the Court that has the power to review the same via the petition of any However, the Court finds it expedient to expound on the role of Congress through the
Joint Congressional Oversight Committee (JCOC) vis-à-vis the independence of the allowed considerable latitude in devising means and methods that will insure the
COMELEC, as a constitutional body. accomplishment of the great objective for which it was created — free, orderly and
honest elections. We may not agree fully with its choice of means, but unless these are
R.A. No. 9189 created the JCOC, as follows:chanrob1es virtual 1aw library clearly illegal or constitute gross abuse of discretion, this court should not interfere.
Politics is a practical matter, and political questions must be dealt with realistically – not
SEC. 25. Joint Congressional Oversight Committee. — A Joint Congressional Oversight from the standpoint of pure theory. The Commission on Elections, because of its fact-
Committee is hereby created, composed of the Chairman of the Senate Committee on finding facilities, its contacts with political strategists, and its knowledge derived from
Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators actual experience in dealing with political controversies, is in a peculiarly advantageous
designated by the Senate President, and the Chairman of the House Committee on position to decide complex political questions. 45 (Emphasis supplied)
Suffrage and Electoral Reforms, and seven (7) other Members of the House of
Representatives designated by the Speaker of the House of Representatives: Provided, The Court has no general powers of supervision over COMELEC which is an independent
That, of the seven (7) members to be designated by each House of Congress, four (4) body “except those specifically granted by the Constitution,” that is, to review its
should come from the majority and the remaining three (3) from the minority. decisions, orders and rulings. 46 In the same vein, it is not correct to hold that because
of its recognized extensive legislative power to enact election laws, Congress may
The Joint Congressional Oversight Committee shall have the power to monitor and intrude into the independence of the COMELEC by exercising supervisory powers over
evaluate the implementation of this Act. It shall review, revise, amend and approve the its rule-making authority.
Implementing Rules and Regulations promulgated by the Commission. (Emphasis
supplied) By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to
"issue the necessary rules and regulations to effectively implement the provisions of this
SEC. 19. Authority of the Commission to Promulgate Rules. — The Commission shall issue Act within sixty days from the effectivity of this Act." This provision of law follows the usual
the necessary rules and regulations to effectively implement the provisions of this Act procedure in drafting rules and regulations to implement a law – the legislature grants
within sixty (60) days from the effectivity of this Act. The Implementing Rules and an administrative agency the authority to craft the rules and regulations implementing
Regulations shall be submitted to the Joint Congressional Oversight Committee created the law it has enacted, in recognition of the administrative expertise of that agency in its
by virtue of this Act for prior approval. particular field of operation. 47 Once a law is enacted and approved, the legislative
function is deemed accomplished and complete. The legislative function may spring
. . . (Emphasis supplied) back to Congress relative to the same law only if that body deems it proper to review,
amend and revise the law, but certainly not to approve, review, revise and amend the
Composed of Senators and Members of the House of Representatives, the Joint IRR of the COMELEC.
Congressional Oversight Committee (JCOC) is a purely legislative body. There is no
question that the authority of Congress to "monitor and evaluate the implementation" of By vesting itself with the powers to approve, review, amend, and revise the IRR for The
R.A. No. 9189 is geared towards possible amendments or revision of the law itself and Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its
thus, may be performed in aid of its legislation. constitutional authority. Congress trampled upon the constitutional mandate of
independence of the COMELEC. Under such a situation, the Court is left with no option
However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the but to withdraw from its usual reticence in declaring a provision of law unconstitutional.
JCOC the following functions: (a) to "review, revise, amend and approve the
Implementing Rules and Regulations" (IRR) promulgated by the COMELEC [Sections 25 The second sentence of the first paragraph of Section 19 stating that" [t]he
and 19]; and (b) subject to the approval of the JCOC [Section 17.1], the voting by mail Implementing Rules and Regulations shall be submitted to the Joint Congressional
in not more than three countries for the May 2004 elections and in any country Oversight Committee created by virtue of this Act for prior approval," and the second
determined by COMELEC. sentence of the second paragraph of Section 25 stating that" [i]t shall review, revise,
amend and approve the Implementing Rules and Regulations promulgated by the
The ambit of legislative power under Article VI of the Constitution is circumscribed by Commission," whereby Congress, in both provisions, arrogates unto itself a function not
other constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 specifically vested by the Constitution, should be stricken out of the subject statute for
Constitution ordaining that constitutional commissions such as the COMELEC shall be constitutional infirmity. Both provisions brazenly violate the mandate on the
"independent."cralaw virtua1aw library independence of the COMELEC.

Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an Similarly, the phrase, "subject to the approval of the Congressional Oversight
independent COMELEC, the Court has held that" [w]hatever may be the nature of the Committee" in the first sentence of Section 17.1 which empowers the Commission to
functions of the Commission on Elections, the fact is that the framers of the Constitution authorize voting by mail in not more than three countries for the May, 2004 elections;
wanted it to be independent from the other departments of the Government." 44 In an and the phrase, "only upon review and approval of the Joint Congressional Oversight
earlier case, the Court elucidated:chanrob1es virtual 1aw library Committee" found in the second paragraph of the same section are unconstitutional as
they require review and approval of voting by mail in any country after the 2004
The Commission on Elections is a constitutional body. It is intended to play a distinct and elections. Congress may not confer upon itself the authority to approve or disapprove
important part in our scheme of government. In the discharge of its functions, it should the countries wherein voting by mail shall be allowed, as determined by the COMELEC
not be hampered with restrictions that would be fully warranted in the case of a less pursuant to the conditions provided for in Section 17.1 of R.A. No. 9189. 48 Otherwise,
responsible organization. The Commission may err, so may this court also. It should be Congress would overstep the bounds of its constitutional mandate and intrude into the
independence of the COMELEC. (2) Whether or not Section 18.5 of the same law violates the constitutional mandate
under Section 4, Article VII of the Constitution that the winning candidates for President
During the deliberations, all the members of the Court agreed to adopt the separate and the Vice-President shall be proclaimed as winners by Congress.
opinion of Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of
Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the
(3) Whether or not Congress may, through the Joint Congressional Oversight Committee
powers given to the Joint Congressional Oversight Committee.
created in Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend,
WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are and approve the Implementing Rules and Regulations that the Commission on Elections,
declared VOID for being UNCONSTITUTIONAL:chanrob1es virtual 1aw library promulgate without violating the independence of the COMELEC under Section 1,
Article IX-A of the Constitution.
a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: "subject
to the approval of the Joint Congressional Oversight Committee;" HELD:

b) The portion of the last paragraph of Section 17.1, to wit: “only upon review and (1) No. Section 5 of RA No. 9189 enumerates those who are disqualified voting under this
approval of the Joint Congressional Oversight Committee;”
Act. It disqualifies an immigrant or a permanent resident who is recognized as such in
c) The second sentence of the first paragraph of Section 19, to wit: "The Implementing the host country. However, an exception is provided i.e. unless he/she executes, upon
Rules and Regulations shall be submitted to the Joint Congressional Oversight registration, an affidavit prepared for the purpose by the Commission declaring that
Committee created by virtue of this Act for prior approval;" and he/she shall resume actual physical permanent residence in the Philippines not later
than 3 years from approval of registration. Such affidavit shall also state that he/she has
d) The second sentence in the second paragraph of Section 25, to wit: "It shall review, not applied for citizenship in another country. Failure to return shall be cause for the
revise, amend and approve the Implementing Rules and Regulations promulgated by
removal of the name of the immigrant or permanent resident from the National Registry
the Commission" of the same law;
of Absentee Voters and his/her permanent disqualification to vote in absentia.
for being repugnant to Section 1, Article IX-A of the Constitution mandating the
independence of constitutional commission, such as COMELEC. Petitioner claims that this is violative of the residency requirement in Section 1 Article V of
the Constitution which requires the voter must be a resident in the Philippines for at least
The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the one yr, and a resident in the place where he proposes to vote for at least 6 months
authority given to the COMELEC to proclaim the winning candidates for the Senators immediately preceding an election.
and party-list representatives but not as to the power to canvass the votes and proclaim
the winning candidates for President and Vice-President which is lodged with Congress However, OSG held that ruling in said case does not hold water at present, and that the
under Section 4, Article VII of the Constitution.
Court may have to discard that particular ruling. Panacea of the controversy: Affidavit
The constitutionality of Section 5(d) is UPHELD. Pursuant to Section 30 of R.A. No. 9189, for without it, the presumption of abandonment of Phil domicile shall remain. The
the rest of the provisions of said law continues to be in full force and effect.chanrob1es qualified Filipino abroad who executed an affidavit is deemed to have retained his
virtua1 1aw 1ibrary domicile in the Philippines and presumed not to have lost his domicile by his physical
GR No. 157013, July 10 2003 absence from this country. Section 5 of RA No. 9189 does not only require the promise to
resume actual physical permanent residence in the Philippines not later than 3 years
FACTS: after approval of registration but it also requires the Filipino abroad, WON he is a green
card holder, a temporary visitor or even on business trip, must declare that he/she has
Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal,
not applied for citizenship in another country. Thus, he/she must return to the Philippines
a member of the Philippine Bar, seeking a declaration that certain provisions of
otherwise consequences will be met according to RA No. 9189.
Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003) suffer from
constitutional infirmity. Claiming that he has actual and material legal interest in the Although there is a possibility that the Filipino will not return after he has exercised his
subject matter of this case in seeing to it that public funds are properly and lawfully used right to vote, the Court is not in a position to rule on the wisdom of the law or to repeal
and appropriated, petitioner filed the instant petition as a taxpayer and as a lawyer. or modify it if such law is found to be impractical. However, it can be said that the
Congress itself was conscious of this probability and provided for deterrence which is
ISSUES: that the Filipino who fails to return as promised stands to lose his right of suffrage.
Accordingly, the votes he cast shall not be invalidated because he was qualified to
(1) Whether or not Section 5(d) of Republic Act No. 9189 violates the residency
vote on the date of the elections.
requirement in Section 1 of Article V of the Constitution.
Expressum facit cessare tacitum: where a law sets down plainly its whole meaning, the
Court is prevented from making it mean what the Court pleases. In fine, considering that
underlying intent of the Constitution, as is evident in its statutory construction and intent
of the framers, which is to grant Filipino immigrants and permanent residents abroad the
unquestionable right to exercise the right of suffrage (Section 1 Article V) the Court finds
that Section 5 of RA No. 9189 is not constitutionally defective.

(2) Yes. Congress should not have allowed COMELEC to usurp a power that
constitutionally belongs to it. The canvassing of the votes and the proclamation of the
winning candidates for President and Vice President for the entire nation must remain in
the hands of Congress as its duty and power under Section 4 of Article VII of the
Constitution. COMELEC has the authority to proclaim the winning candidates only for
Senators and Party-list Reps.

(3) No. By vesting itself with the powers to approve, review, amend and revise the
Implementing Rules & Regulations for RA No. 9189, Congress went beyond the scope of
its constitutional authority. Congress trampled upon the constitutional mandate of
independence of the COMELEC. Under such a situation, the Court is left with no option
but to withdraw from its usual silence in declaring a provision of law unconstitutional.