LOIDA NICOLAS-LEWIS, et. al, v.

COMELEC
G.R. No. 162759 | August 4, 2006

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, they have yet no right to vote in such elections
owing to their lack of the one-year residence requirement prescribed by the Constitution.

Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling in Macalintal vs. COMELEC 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 18
September 2003 at the earliest, and as law and jurisprudence now stand, they are considered regular voters who have to meet
the requirements of residency, among others under Section 1, Article 5 of the Constitution. 

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., filed this petition for certiorari and mandamus. The
COMELEC filed a Comment, therein praying for the denial of the petition. As may be expected, petitioners were not able to
register let alone vote in said elections.

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. 

ISSUE: 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?

RULING: YES. The Court granted the petition.

Section 1 of Article V of the Constitution, 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  - 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 Philippines abroad, who are not otherwise 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.

Section 5. Disqualifications. – The following shall be disqualified from voting under this Act:
(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.
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 Philippines for
at least one year and in the place where he proposes to vote for at least six months immediately preceding an election. [The
challenger] cites … Caasi vs. Court of Appeals 9 to support his claim [where] the Court held that a "green card" holder immigrant
to the [US] is deemed to have abandoned his domicile and residence in the Philippines.
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

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 Philippines
and the following conditions:

(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;

Respondent COMELEC invites attention to the same Section 5 (1) providing that "duals" can enjoy their right to vote, only if they
meet the requirements of Section 1, Article V of the Constitution, R.A. 9189 and other existing laws.

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 Philippines first before they can exercise their right to vote. On the contrary, R.A.
9225, in implicit acknowledgment that "duals" are most likely non-residents, grants under its Section 5(1) the same right of
suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to
enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter
under ordinary conditions, are qualified to vote. Thus, wrote the Court in Macalintal:

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 Philippines, and consider them qualified as
voters for the first time.

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
Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the
Constitution.

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

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; 
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 Philippines abroad exercise their right to vote;

"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 day of elections;

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.