EN
BANC
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LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA, ALEJANDRO A. ESCLAMADO,
ARMANDO B. HEREDIA, REUBEN S. SEGURITAN, ERIC LACHICA FURBEYRE, TERESITA A.
CRUZ, JOSEFINA OPENA DISTERHOFT, MERCEDES V. OPENA, CORNELIO R. NATIVIDAD, EVELYN
D. NATIVIDAD, Petitioners, - versus
- COMMISSION ON ELECTIONS, Respondent. |
G.R. No. 162759
Present: PANGANIBAN,
C.J., PUNO, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CARPIO-MORALES, CALLEJO,
SR., AZCUNA, TINGA, CHICO-NAZARIO,
GARCIA,
and VELASCO,
JR., JJ. Promulgated: |
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D E C I S I O N
GARCIA, J.:
In this petition for certiorari and mandamus, petitioners, referring to themselves as "duals" or dual citizens, pray that they and
others who retained or reacquired Philippine citizenship under Republic Act (R.A.)
No. 9225, the Citizenship Retention and
Re‑Acquisition Act of 2003, be allowed to avail themselves of the
mechanism provided under the Overseas
Absentee Voting Act of 2003[1] (R.A. 9189) and
that the Commission on Elections (COMELEC) accordingly be ordered to allow them
to vote and register as absentee voters under the aegis of R.A. 9189.
The facts:
Petitioners are successful
applicants for recognition of Philippine citizenship under R.A. 9225 which
accords to such applicants the right of suffrage, among others. Long before the
May 2004 national and local elections, petitioners sought registration and certification
as "overseas absentee voter" only to be advised by the
Philippine Embassy in the United States that, per a COMELEC letter to the
Department of Foreign Affairs dated September 23, 2003[2],
they have yet no right to vote in such elections owing to their lack of the
one-year residence requirement prescribed by the Constitution. The same letter, however, urged the different Philippine
posts abroad not to discontinue their campaign for voter’s registration, as the
residence restriction adverted to would contextually affect merely certain
individuals who would likely be eligible to vote in future elections.
Prodded for clarification by
petitioner Loida Nicolas-Lewis in the light of the ruling
in Macalintal vs. COMELEC [3]
on the residency requirement, the COMELEC wrote in
response:
Although
R.A. 9225 enjoys the presumption of constitutionality …, it is the Commission's
position that those who have availed of the law cannot exercise the right of
suffrage given under the OAVL for the reason that the OAVL was not enacted for
them. Hence, as Filipinos who have
merely re-acquired their citizenship on
Faced with the prospect of not being able to vote in the May
2004 elections owing to the COMELEC's refusal to
include them in the National Registry of Absentee Voters, petitioner
Nicolas-Lewis et al., [5] filed on
A little over a week before the
On May 20, 2004, the Office of
the Solicitor General (OSG) filed a Manifestation
(in Lieu of Comment), therein stating that “all qualified overseas Filipinos,
including dual citizens who care to exercise the right of suffrage, may do so” , observing,
however, that the conclusion of the 2004 elections had rendered the petition moot
and academic.[7]
The holding of the 2004 elections had, as the OSG
pointed out, indeed rendered the
petition moot and academic, but insofar
only as petitioners’ participation in
such political exercise is concerned. The broader and transcendental issue
tendered or subsumed in the petition, i.e.,
the propriety of allowing “duals” to participate and vote as absentee voter in
future elections, however, remains unresolved.
Observing the petitioners’ and the COMELEC’s respective formulations of the issues, the same may be reduced into the question of
whether or not petitioners and others who might have meanwhile retained and/or
reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee
voter under R.A. 9189.
The Court resolves the poser in the
affirmative, and thereby accords merit to the petition.
In esse, this case
is all about suffrage. A quick look at the governing provisions on the right of
suffrage is, therefore, indicated.
We start
off with Sections 1 and 2 of Article V of the Constitution, respectively reading
as follows:
SECTION 1. Suffrage may be exercised by all citizens of the
SEC 2. The
Congress shall provide … a system for absentee voting by qualified Filipinos
abroad.
In a nutshell, the aforequoted Section 1 prescribes residency requirement as a
general eligibility factor for the right to vote. On the other hand, Section 2
authorizes Congress to devise a system wherein an absentee may vote, implying
that a non‑resident may, as an exception to the residency prescription in
the preceding section, be allowed to vote.
In response to its above mandate,
Congress enacted R.A. 9189 - the OAVL[8]
- identifying in its Section 4 who can vote under it and in the following
section who cannot, as follows:
Section
4. Coverage. – All citizens of the
Section
5. Disqualifications.
– The following shall be disqualified from voting under this Act:
(a) Those who have lost their Filipino
citizenship in accordance with Philippine laws;
(b) Those who have expressly renounced their
Philippine citizenship and who have pledged allegiance to a foreign country;
(c) Those who have … [been] convicted in a
final judgment by a court or tribunal of an offense punishable by imprisonment
of not less than one (1) year, including those who have … been found guilty of
Disloyalty as defined under Article 137 of the Revised Penal Code, ….;
(d) An immigrant or a permanent resident who
is recognized as such in the host country, 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 the Philippines
not later than three (3) years from approval of his/her registration under this
Act. Such affidavit shall also state
that he/she has not applied for citizenship in another country. Failure to return shall be the cause for the
removal of the name of the immigrant or permanent resident from the National
Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.
(e)
Any citizen of
the
Notably,
Section 5 lists those who cannot avail themselves of the absentee voting mechanism.
However, Section 5(d) of the enumeration respecting Filipino immigrants and
permanent residents in another country opens an exception and qualifies the
disqualification rule. Section 5(d) would, however, face a constitutional challenge
on the ground that, as narrated in Macalintal, it -
…
violates Section 1, Article V of the 1987 Constitution which requires that the
voter must be a resident in the
[The
challenger] further argues that Section 1, Article V of the Constitution does
not allow provisional registration or a promise by a voter to perform a
condition to be qualified to vote in a political exercise; that the legislature
should not be allowed to circumvent 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 Filipino abroad to vote. He claims that the right of suffrage should
not be granted to anyone who, on the date of the election, does not possess the
qualifications provided for by Section 1, Article V of the Constitution.[10]
(Words in bracket added.)
As may
be recalled, the Court upheld the constitutionality of Section 5(d) of R.A.
9189 mainly on the strength of the following premises:
As
finally approved into law, Section 5(d) of R.A. No. 9189 specifically
disqualifies an immigrant or permanent resident who is “recognized as
such in the host country” 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
permanent resident abroad to register as voter for as long as he/she executes
an affidavit to show that he/she has not abandoned his domicile in pursuance of
the constitutional intent expressed in Sections 1 and 2 of Article V that “all citizens of the Philippines not
otherwise disqualified by law” must be entitled to exercise the right of
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 voting.
Contrary
to the claim of [the challenger], 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 intention of the
immigrant or permanent resident to go back and resume residency in the
Philippines, but more significantly, it serves as an explicit expression that
he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the
execution of the affidavit under Section 5(d) violates the Constitution that
proscribes “provisional registration or a promise by a voter to perform a
condition to be qualified to vote in a political exercise.” [11]
Soon after
Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress enacted
R.A. 9225 the
relevant portion of which reads:
SEC. 2. Declaration of Policy. – It is hereby
declared the policy of the State that all Philippine citizens who become
citizens of another country shall be deemed not to have lost their Philippine
citizenship under the conditions of this Act.
SEC. 3. Retention of Philippine Citizenship. – Any
provision of law to the contrary notwithstanding, natural-born citizens of the
Philippines who have lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country are hereby deemed to have
re-acquired Philippine citizenship upon taking the following oath of allegiance
to the Republic:
xxx xxx xxx
Natural-born
citizens of the
SEC. 4. Derivative Citizenship. – The unmarried
child, whether legitimate, illegitimate or adopted, below eighteen (18) years
of age, of those who re-acquire Philippine citizenship upon effectivity of this
Act shall be deemed citizens of the Philippines.
SEC. 5. Civil and Political Rights and Liabilities.
– Those who retain or re-acquire Philippine citizenship under this Act shall
enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the
(1) Those intending to exercise their
right of suffrage must meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as “The Overseas Absentee
Voting Act of 2003” and other existing laws;
(2) Those seeking elective public office in
the Philippines shall meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time of the filing
of the certificate of candidacy, make a personal and sworn renunciation of any
and all foreign citizenship …;
3) xxx xxx xxx.
(4) xxx xxx xxx;
(5) That right to vote or be elected or
appointed to any public office in the Philippines cannot be exercised by, or
extended to, those who:
(a) are candidates for or are occupying any
public office in the country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or
non-commissioned officers in the armed forces of the country which they are
naturalized citizens.
After what appears to be a successful
application for recognition of Philippine citizenship under R.A. 9189, petitioners
now invoke their right to enjoy … political rights, specifically
the right of suffrage, pursuant to Section 5 thereof.
Opposing the petitioners’ bid, however, respondent COMELEC invites
attention to the same Section 5 (1) providing that “duals” can enjoy their
right to vote, as an adjunct to political rights, only if they meet the requirements of Section 1, Article V of the Constitution,
R.A. 9189 and other existing laws. Capitalizing on what at first blush is the
clashing provisions of the aforecited provision of
the Constitution, which, to repeat, requires residency in the Philippines for a
certain period, and R.A. 9189 which grants a Filipino non-resident absentee voting
rights,[12] COMELEC argues:
4. ‘DUALS’ MUST FIRST ESTABLISH THEIR DOMICILE/
RESIDENCE IN THE
4.01. The
inclusion of such additional and specific requirements in RA 9225 is logical. The ‘duals,’ upon renouncement of their
Filipino citizenship and acquisition of foreign citizenship, have practically
and legally abandoned their domicile and severed their legal ties to the
homeland as a consequence. Having
subsequently acquired a second citizenship (i.e.,
Filipino) then, ‘duals’ must, for purposes of voting, first of all, decisively
and definitely establish their domicile through positive acts; [13]
The Court disagrees.
As may be noted, there is no provision
in the dual citizenship law - R.A. 9225 - requiring "duals" to actually
establish residence and physically stay in the
It is clear from these discussions
of the … Constitutional Commission that [it] intended to enfranchise as much as
possible all Filipino citizens abroad
who have 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
It is in pursuance of that intention
that the Commission provided for Section 2 [Article V] immediately after the
residency requirement of Section 1. By
the doctrine of necessary implication in statutory construction, …, the
strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual
residency requirement of Section 1 with respect to qualified Filipinos
abroad. The same Commission has in
effect declared that qualified Filipinos who are not in the
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 when Senate Bill No. 2104,
which became R.A. No. 9189, was deliberated upon on the Senate floor, thus:
Senator
Arroyo. Mr. President, this bill should be
looked into in relation to the constitutional provisions. I think the sponsor and I would agree that the
Constitution is supreme in any statute that we may enact.
Let me read Section 1, Article V, of
the Constitution ….
xxx xxx xxx
Now, Mr. President, the Constitution
says, “who shall have resided in the
Senator
Angara. 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
synonymous with “domicile.”
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 and may be physically a resident of the
United States, for example, but has a clear intent to return to the
Philippines, will make him qualified as a resident of the Philippines under
this law.
This is consistent, Mr. President,
with the constitutional mandate that we – that Congress – must provide a
franchise to overseas Filipinos.
If we read the Constitution and the suffrage
principle literally as demanding physical presence, then there is no way we can
provide for offshore voting to our offshore kababayan, Mr. President.
Senator
Arroyo. 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 system for
absentee voting by qualified Filipinos abroad.”
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 proposition that they are qualified. Absent the qualification, they cannot vote. And “residents” (sic) is a
qualification.
xxx xxx xxx
Look at what the Constitution says –
“In the place wherein they propose to vote for at least six months immediately
preceding the election.”
Mr. President, all of us here have
run (sic) for office.
I live in
As I have said, if a voter in
xxx xxx xxx
Senator
Angara. 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 immediately after the six-month/one-year residency requirement is to
demonstrate unmistakably that Section 2 which authorizes absentee voting is an
exception to the six-month/one-year residency requirement. That is the first principle, Mr. President,
that one must remember.
The second reason, Mr. President, is
that under our jurisprudence … – “residency” has been interpreted as synonymous
with “domicile.”
But
the third more
practical reason, … is, if we follow the
interpretation of the gentleman, then it is legally and constitutionally
impossible to give a franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite ridiculous because that is
exactly the whole
point of this exercise – to enfranchise them and empower them to vote. [14] (Emphasis and words in bracket added; citations
omitted)
Lest it be overlooked, no
less than the COMELEC itself admits that the Citizenship Retention and Re‑Acquisition Act expanded the coverage of overseas absentee
voting. According to the poll body:
1.05 With the passage of
RA 9225 the scope of overseas absentee voting has been consequently expanded so
as to include Filipinos who are also citizens of other countries, subject,
however, to the strict prerequisites indicated in the pertinent provisions of
RA 9225; [15]
Considering
the unison intent of the Constitution and R.A. 9189 and the expansion of the
scope of that law with the passage of R.A.
9225, the irresistible conclusion is that "duals" may now exercise the right of suffrage thru
the absentee voting scheme and as overseas absentee voters. R.A. 9189
defines the terms adverted to in the following wise:
“Absentee
Voting” refers to the process by which qualified citizens of the
“Overseas
Absentee Voter” refers to a citizen of the
While perhaps not determinative
of the issue
tendered herein, we note that the expanded thrust of R.A. 9189 extends also to what might be tag as the next generation
of "duals". This may be
deduced from the inclusion of the provision on derivative citizenship in R.A.
9225 which reads:
SEC. 4. Derivative Citizenship. – The unmarried
child, whether legitimate, illegitimate or adopted, below eighteen (18) years
of age, of those who re-acquire Philippine citizenship upon effectivity of this
Act shall be deemed citizens of the Philippines.
It is very likely
that a considerable
number of those
unmarried
children below eighteen (18) years of age
had never set
foot in the Philippines. Now then, if the next generation of "duals" may nonetheless avail themselves the right to enjoy full civil and political rights under Section 5 of the
Act, then there is neither no rhyme nor reason why the petitioners and other present
day "duals," provided
they meet the requirements under Section 1, Article V of the Constitution in
relation to R.A. 9189, be denied the right of suffrage as an overseas absentee
voter. Congress could not have plausibly intended such absurd situation.
WHEREFORE, the instant petition is GRANTED.
Accordingly, the Court
rules and so holds that those who retain or re‑acquire Philippine
citizenship under Republic Act No. 9225,
the Citizenship Retention and Re‑Acquisition
Act of 2003, may exercise the right to vote under the system of absentee
voting in Republic Act No. 9189, the
Overseas Absentee Voting Act of 2003.
SO
ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
|
REYNATO S.
PUNO Associate Justice
|
LEONARDO A. QUISUMBING
Associate
Justice
|
CONSUELO YNARES-SANTIAGO
Associate
Justice
|
ANGELINA
SANDOVAL-GUTIERREZ Associate
Justice
|
|
ANTONIO T.
CARPIO Associate
Justice
|
MA. ALICIA
AUSTRIA-MARTINEZ Associate
Justice
|
|
RENATO C.
CORONA Associate Justice |
CONCHITA
CARPIO MORALES
Associate Justice |
|
ROMEO J.
CALLEJO, SR. Associate
Justice
|
ADOLFO S.
AZCUNA Associate
Justice
|
|
DANTE O.
TINGA Associate Justice |
MINITA V.
CHICO-NAZARIO Associate Justice |
PRESBITERO J. VELASCO, JR.
Associate Justice
C E R T I F
I C A T I O N
Pursuant to Section 13, Article VIII
of the Constitution, it is hereby certified that the conclusions in the above
decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court.
ARTEMIO
V. PANGANIBAN
Chief Justice
[1] Also
known as Overseas Absentee Voting Law or “OAVL” for short.
[2] Signed
by Florentino A. Tuason Jr., as then COMELEC Committee Chairman on Overseas
Absentee Voting ; Rollo, p. 33.
[3] G.R.
No. 157013,
[4] Concluding
paragraph of letter dated
[5] The
other petitioners executed deeds of Special Power of Attorney
(SPA), therein authorizing Loida Nicolas
Lewis to file the Petition; Rollo, pp. 92-112.
[6] Rollo,
pp. 53-67.
[7] Rollo,
pp. 77-78.
[8] Published
in the
[9] G.R.
No. 88831,
[10] Macalintal v. COMELEC, supra.
[11]
[12] Constitution,
Article V, Section 1: … … … at least one
year and in the place wherein they propose to vote for at least six months immediately preceding the
election ….
[13] COMELEC's
Memorandum, p. 6, appended to the Rollo.
[14] Macalintal v. COMELEC, supra, at pp. 641-644.
[15] COMELEC's
Memorandum, p. 4, appended to the Rollo