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SEPARATE CONCURRING OPINION

BELLOSILLO, J.:

The concept of absentee voting exudes an arresting charm of novelty and importance. For the first time in our checkered political history, we are expanding the frontiers of our electoral process warily treading into a veritable terra incognita. The Absentee Voting Law1 empowers citizens, hitherto outside the reaches of the ballot, to assert their sovereign will and dictate the national destiny. It caters to their fundamental yearning for some measure of participation in the process of reaching fateful decisions for their country, although they may be at some distant shores.

I concur with the collective wisdom of the majority. I wish however to express my views on the pivotal issue of whether Sec. 5, par. (d), of the Absentee Voting Law - allowing the registration of voters who are immigrants or permanent residents in other countries by their mere act of executing an affidavit expressing their intention to return to the Philippines - violates the residency requirement in Sec. 1, Art. V, 1987 Constitution.

The fundamental law mandates -

ARTICLE V

SUFFRAGE

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 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. No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage.

Section 2. 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 x x x x (underscoring supplied).

On the other hand, Sec. 5, par. (d), of the Absentee Voting Law, the restless battleground of passionate advocacy, provides -

Sec. 5. Disqualifications. The following shall be disqualified from voting under this Act: x x x x 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 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 (underscoring supplied).

It has been suggested by certain quarters that all Filipino citizens who are immigrants and permanent residents abroad are considered to have abandoned their Philippine domicile and therefore cannot vote in Philippine elections, since they are not within the constitutional contemplation of qualified Filipinos abroad who are eligible to vote.

In this jurisdiction, it is well settled that domicile and residence as used in election laws are synonymous terms which import not only an intention to reside in a fixed place but also personal presence in that place coupled with conduct indicative of that intention.2 Domicile is a question of intention and circumstances. There are three (3) rules that must be observed in the consideration of circumstances: first, that a man must have a residence or domicile somewhere; second, domicile is not easily lost, once established it is retained until a new one is acquired; and third, a man can have but one residence or domicile at a time.3 The principal elements of domicile, i.e., physical presence in the locality involved and intention to adopt it as a domicile, must concur in order to establish a new domicile. No change of domicile will result if either of these elements is absent. Intention to acquire a domicile without actual residence in the locality does not result in the acquisition of domicile, nor does the fact of physical presence without intention.4cräläwvirtualibräry

The mere acquisition of an immigrant or permanent resident status by a Filipino citizen in a foreign country does not ipso jure result in the automatic severance of his domiciliary link to the Philippines, nor the acquisition of a new domicile of choice.

Different jurisdictions vary in their legal characterization of the terms immigrant and permanent resident, with dissimilar requirements, conditions and restrictions for the acquisition and maintenance of those statuses. Territories with conservative policies on immigration tend to be restrictive and exclusive, especially on matters relating to residency (or domiciliary); while more open societies tend to be liberal and inclusive.

To illustrate: In the United States, an overwhelming majority of our compatriots are now enjoying the rights and privileges of permanent residents and immigrants. The U.S. Immigration and Nationality Act defines the term permanent as a relationship of continuing and lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law;5 and residence as a place of general abode; and the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.6cräläwvirtualibräry

Thus, considering that intent is not necessary in establishing permanent residency in the U.S., it is entirely possible for a Filipino citizen to be a permanent resident in the U.S., i.e., the U.S. may be his general place of abode, his principal, actual dwelling place in fact, for an indefinite period of time, without however abandoning his Philippine domicile to which he intends to return later.

Immigrants, on the other hand, have been loosely defined as referring to every alien in the United States, except an alien who is within one of the non-immigrant aliens enumerated in the Immigration and Nationality Act of the United States.7 They are classified into the non-quota immigrants and the quota immigrants. The quota immigrants may fall in either of two (2) categories: the family-based preferences and the employment-based preferences.

Particularly interesting is the last mentioned category, the employment-based preferences. These immigrants are conferred the status as such on the basis of their occupational skills and the employment demands in the host country. To this class belongs the professionals, investors, managers and executives, skilled workers, health workers, professors and researchers. Many Filipino citizens fall under this category, and most of them opt for immigrant status solely for the purpose of securing permanent employment in the U.S., and intend to return to the Philippines after their purpose is accomplished.

The diaspora of Filipinos in foreign lands started in the wake of the bludgeoning economic crisis in the 80s and its resulting acute shortage of employment opportunities. This phenomenon has continued to the present day as the steadily rising cost of living and intermittent economic crises - worldwide in their effects - weighed most heavily on the ordinary Filipino. He does not have much choice: leave or starve. The lure of the proverbial greener pastures in foreign lands is certainly a potent incentive for an exodus.

In most cases, the decision to migrate is borne out of the dire necessities of life rather than a conscious desire to abandon the land of birth. Most immigrants and permanent residents remain bound very strongly by intimate ties of filial, racial, cultural and social relationships with the Philippines. They travel back periodically to be with their friends and loved ones; some even own, maintain and manage their properties here; and, they continue to show keen interest in, and keep themselves abreast with, political and social developments in the country through the mass media. They make significant contributions to the nation, through their regular dollar remittances that have tremendously shored up our sagging national economy.

In the face of these realities, I am convinced more than ever that actual and physical residence abroad should not automatically be equated with abandonment of Philippine domicile. The circumstances enumerated in the immediately preceding paragraph are valid indicia of animus manendi (intent to remain) and animus revertendi (intent to return), which should not simply be brushed aside in determining whether the right to vote should be denied the immigrants and permanent residents. Indeed, there is no rhyme nor reason to unduly marginalize this class of Filipinos.

It is significant to stress, however, that Sec. 5, par. (d), of the Absentee Voting Law in fact disqualifies immigrants and permanent residents from voting as a general rule. This is precisely in recognition of the fact that their status as such may indeed be a badge of their intent to abandon their Philippine domicile and settle permanently in their host country. But at the same time, the legislature provided for a mechanism in the law for ascertaining real intent: an immigrant or permanent resident who wishes to exercise his right of suffrage is required as a condition sine qua non to execute an affidavit declaring that he shall resume actual, physical and permanent residence in the Philippines not later than three (3) years from his registration under the law; and that he has not applied for citizenship in another country.

The law in effect draws a distinction between two (2) classes of immigrants or permanent residents - those who have renounced their old domicile in the Philippines, and those who still consider the Philippines as their domicile of origin. The execution of the affidavit is an affirmation on the part of the immigrant or permanent resident that his stay abroad should not be construed as a relinquishment of his old domicile.

I am not unaware of the possibility that the immigrant or permanent resident may renege on his undertaking in the affidavit to resume actual, physical and permanent residence in the Philippines. But the law contains proper and adequate safeguards against the misuse or abuse of this privilege, i.e., his name will be purged from the National Registry of Absentee Voters and he will be permanently disqualified from voting in absentia.

As a closing observation, I wish to emphasize that the absolute disqualification of Filipino immigrants and permanent residents, without distinction, from participating in the Philippine electoral process would invariably result, as in the past, in a massive disenfranchisement of qualified voters. It would be self-defeating in the extreme if the Absentee Voting Law would founder on the rock by reason of an unduly restrictive and decidedly unrealistic interpretation given by the minority on the residency requirement in the Constitution.

I vote to sustain the constitutionality of Sec. 5, par. (d), of RA 9189, and on the other hand, to declare unconstitutional Sec. 18.5 of the same law insofar as it authorizes COMELEC to proclaim the winning candidates for President and Vice-President it being clearly violative of Sec. 4, Art. VII, of the Constitution, as well as Secs. 17.1, 19 and 25 of RA 9189 insofar as they subject COMELEC implementing rules and regulations to review and approval by the Joint Congressional Oversight Committee for being likewise violative of Sec. 1, Art. IX-A of the Constitution.



Endnotes:

[1 RA 9189, An Act Providing for a System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes.

[2 Romualdez v. RTC-Br. 7 Tacloban City, G.R. No. 104960, 14 September 1993, 226 SCRA 408.

[3 Domino v. COMELEC, G.R. No. 134015, 19 July 1999, 310 SCRA 546, 568.

[4 Id., at p. 569.

[5 8 U.S.C. 1101(a)(31).

[6 8 U.S.C. 1101(a)(33).

[7 8 U.S.C. 1101(a)(15).




























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