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CONCURRING AND DISSENTING OPINION

CALLEJO, SR., J.:

I concur with the majority opinion and the concurring and dissenting opinion of Mr. Justice Reynato S. Puno that Sections 18.5, 19 and 25 of Republic Act No. 9189 are unconstitutional; hence, null and void. However, I dissent with the majority opinion that Section 5(d) of Republic Act No. 9189 is constitutional.

The present petition assails the constitutionality of certain provisions of Republic Act No. 9189 (otherwise known as AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES), which was enacted to implement the first paragraph of Section 2, Article V of our Constitution, to wit:

SEC. 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.

. . .

Foremost among the assailed provisions of the aforesaid act is Section 5(d):

SEC. 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 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.

. . .

The petitioner posits the view that the provision is in direct contravention of Section 1, Article V of our Constitution, which reads:

SEC. 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.

I agree with the petitioner.

Section 1, Article V which prescribes the qualifications of voters as to citizenship, age and residence is clear and unambiguous. On the other hand, Section 2 of the same article authorizes Congress to provide a system to facilitate absentee voting by qualified Filipinos abroad. I do not subscribe to the view that Section 2 was intended by the framers to be an exception to the residence qualification requirement prescribed in the section immediately preceding it. Basic is the rule in statutory construction that the Constitution should be construed in such a manner as to give effect to each and every part of the entire instrument. Courts should lean in favor of a construction that will harmonize every provision of the Constitution rather than one which raises conflict between its provisions, or render inutile any portion thereof.¹ Section 2 can and must be construed to contemplate within its terms the enfranchisement only of Filipinos who possess all the prerequisite qualifications specified under Section 1, but who are abroad and cannot exercise their right to vote in the Philippines on the day of the election. Even from a cursory examination of the proceedings of the Constitutional Commission which drafted the 1987 Constitution, the foregoing intendment is made crystal clear. Thus:

MR. RODRIGO. Before we vote, Madam President, I just want to ask if the word Filipinos is a general term. Does this refer to Filipinos who are qualified voters?

THE PRESIDENT. Yes, of course.

FR. BERNAS. Yes, that is the understanding.

MR. RODRIGO. Should we not spell it out in the provision or is it already understood?

FR. BERNAS. It is already understood.

THE PRESIDENT. Is there any objection to the proposed amendments on lines 15 and 16?

FR. BERNAS. In other words, these Filipinos must at least be domiciled in the Philippines.

MR. MONSOD. Yes.

FR. BERNAS. That is why we do not use the word ABROAD because they must be domiciled in the Philippines.

MR. MONSOD. That is why we are not repeating many of the basic things such as qualifications, disqualifications and domicile requirements.

MR. SUAREZ. Madam President.

THE PRESIDENT. Commissioner Suarez is recognized.

MR. SUAREZ : May I just be recognized for a clarification. There are certain qualifications for the exercise of the right of suffrage like having resided in the Philippines for at least one year and in the place where they propose to vote for at least six months preceding the election. 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?

THE PRESIDENT. Would Commissioner Monsod care to answer?

MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile requirements as well as the qualifications and disqualifications would be the same.

THE PRESIDENT. Are we leaving it to the legislature to devise the system?

FR. BERNAS. I think there is a very legitimate problem raised there.

THE PRESIDENT. Yes.

MR. BENGZON. I believe Commissioner Suarez is clarified.

FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the place where they vote in practice; the understanding is that it is flexible. For instance, one might be a resident of Naga or domiciled therein, but he satisfies the requirement of residence in Manila, so he is able to vote in Manila.

MR. TINGSON. Madam President, may I then suggest to the Committee to change the word Filipinos to QUALIFIED FILIPINO VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the requirement?

THE PRESIDENT. What does Commissioner Monsod say?

MR. MONSOD. Madam President, I think I would accept the phrase QUALIFIED FILIPINOS ABROAD because QUALIFIED would assume that he has the qualifications and none of the disqualifications to vote.

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

FR. BERNAS. QUALIFIED FILIPINOS ABROAD?

THE PRESIDENT. Does the Committee accept the amendment?

MR. REGALADO. Madam President.

THE PRESIDENT. Commissioner Regalado is recognized.

MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I specifically stated that the National Assembly shall prescribe a system which will enable qualified 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 meaning. That is referring to qualified Filipino citizens temporarily abroad.

MR. MONSOD. 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, 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 to preempt the legislative assembly.

THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a system.

MR. MONSOD. Yes.

THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these absentee voters.

MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications.

THE PRESIDENT. It is just to devise a system by which they can vote.

MR. MONSOD. That is right, Madam President.²

It is irrefragable from the foregoing deliberations of the members of the Constitutional Commission that Section 2, Article V encompasses within its terms Filipino citizens who, during election time, are temporarily abroad but who possess all the mandatory qualifications for enfranchisement outlined under Section 1, Article V of the 1987 Constitution. It is also clear that Section 2, Article V was enacted merely to allow Congress to devise a system by which this class of Filipinos abroad may be allowed to exercise their political right to vote in their homeland on the day of the election.

From a reading of Section 1, Article V of the 1987 Constitution, it is very explicit that the requirements therein prescribed is enjoined to be possessed by a voter immediately preceding the election. In other words, the right of suffrage can not be granted to anyone who, on the date of the election, does not possess any of the qualifications as provided therein.

In light of the issue raised in the present controversy, it becomes necessary to look into the denotation of residence and/or domicile as a voting qualification.

For many legal purposes, there is a clear distinction between residence and domicile. Residence means living in a particular locality, and simply requires bodily presence as an inhabitant in a given place, while domicile means living in that locality with intent to make it a fixed and permanent home.³ Residence denotes that a person dwells in a given place but domicile is a persons legal home, or a place where the law presumes a person has the intention of permanently residing although he may be absent from it.⁴ Domicile then is a matter of intention while residence is a physical fact.⁵ Hence, a person may have two places of residence but only one domicile.⁶cräläwvirtualibräry

Residence, however, for the purpose of voting, is to be understood not in its common acceptation as referring to dwelling or habitation, but rather to domicile or legal residence, that is, the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi).⁷ In determining a persons residence for voting purposes, the following rules are well-established:

(a) A person must have a residence or domicile somewhere;

(b) Where once established, it remains until a new one is acquired; and,

(c) A person can have but one domicile at a time.⁸cräläwvirtualibräry

Clearly, for voting purposes, one cannot have a residence or be domiciled in two places at the same time,⁹ for the right to vote in a certain place or precinct requires the concurrence of two things: the act of residing coupled with the intention to do so.¹⁰ Accordingly, in order to work a change of residence for voting, there must be an actual removal, an actual change of domicile, corresponding with a bona fide intention of abandoning the former place of residence and establishing a new one.¹¹ Hence, an absence for months or even years, if all the while the party intended it as a mere temporary arrangement, to be followed by a resumption of his former residence, will not be an abandonment of such residence or deprive him of his right to vote thereat, the test being the presence or absence of the animus revertendi.¹² Such is the case of overseas Filipino workers who, on account of the nature or exigencies of their work, fail to be physically present for some time in the Philippines but are not deemed to have abandoned their Philippine domicile by virtue of their intent to resume residency in the Philippines upon the termination of their employment contracts.

However, the same cannot be said of Filipinos who, while maintaining their Filipino citizenship, have in the meantime acquired the status of immigrants or permanent residents of their respective host countries. An immigrant, as defined in law, is a person who removes into a country for the purpose of permanent residence.¹³ Therefore, a Filipino immigrant or permanent resident, as the very designation of his status clearly implies, is a Filipino who has abandoned his Philippine residence or domicile, with the intention of residing permanently in his host country. Thenceforward, he acquires a new residence in his host country and is deemed to have abandoned his Philippine domicile. It has been held that where a voter abandons his residence in a state and acquires one in another state, although he afterward changes his intention and returns, he cannot again vote in the state of his former residence or domicile until he has regained his residence by remaining in the jurisdiction for the statutory period.¹⁴cräläwvirtualibräry

With due respect to the majority, I do not subscribe to the view that the execution of the affidavit required under Section 5(d) is eloquent proof of the fact that the Filipino immigrant has not abandoned his Philippine domicile, as evinced by his intention to go back and resume residency in the Philippines, which thus entitles him to exercise the right of suffrage pursuant to the constitutional intent expressed in Section 2, in relation to Section 1, Article V of our Constitution. The majority view, I humbly submit, is non-sequitur for it is well-entrenched that while intention is an important factor to be considered in determining whether or not a residence has been acquired, intention alone is insufficient to establish a residence for voting purposes.¹⁵ Hence, a mere intention to remove, not consummated, can neither forfeit the partys old domicile nor enable him to acquire a new one.¹⁶ And the fact that a person intends to remove at a future time does not of itself defeat his residence before he actually does remove.¹⁷cräläwvirtualibräry

I am in complete accord with the petitioners position that Section 5(d) of Rep. Act No. 9189 virtually enfranchises a voter who, on the date of the election, does not possess the residency requirement as ordained under Section 1, Article V of the 1987 Constitution. Indeed, the undertaking required of an immigrant/permanent resident under the aforesaid section, that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from the approval of his/her registration, is ipso facto an admission that he/she is not an actual resident of the Philippines and does not, therefore, possess the residency requirement on the date of the election but merely promises to possess the same within three (3) years from registration. Consequently, Section 5(d), which in effect attempts to permit non-residents to exercise the right of suffrage, in direct contravention of the constitutional prescription in Section 1, Article V, must be stricken from Rep. Act No. 9189 as an invalid and unconstitutional provision.¹⁸cräläwvirtualibräry

Section 5(d) is vulnerable for another cogent reason. I believe that the provision is violative of the equal protection clause of the Constitution. While it allows a Filipino permanently residing in a foreign country to vote on the mere pledge that he will again permanently reside in this country within three years from his voting in the elections, a Filipino permanently residing in the Philippines but for less than one year or, in the place where he proposes to vote, for less than six months is not allowed to vote.¹⁹ The voter classification sought to be effected by Section 5(d) does not rest on substantial distinctions²⁰ for it unduly favors and extends the privilege of the elective franchise to Filipino citizens who do not in any way comply with the residency requirement prescribed by our Constitution, while withholding the same privilege to those who are and have been permanent residents of the Philippines, albeit not in the locality or precinct where they intend to vote.

While it is to be conceded that every law has in its favor the presumption of constitutionality,²¹ this presumption is not by any means conclusive and in fact may be rebutted, as in the instant case where Section 5(d) has been sufficiently shown to be in utter disregard of a specific provision of the Constitution. This Court once held that courts should not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe the issue more deeply, to relieve the abscess and so heal the wound or excise the affliction. Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court. ²²cräläwvirtualibräry

I concur with the majority opinion that Section 18.5 of Rep. Act No. 9189 does not pass the test of constitutionality.

The assailed provision empowers the COMELEC to order the proclamation of winning candidates presumably including the President and Vice-President despite the fact that the scheduled elections has not taken place in a particular country or countries, if the holding of election therein has been rendered impossible by events, factors and circumstances peculiar to such country or countries, and which events, factors and circumstances are beyond the control or influence of the Commission. However, according to Article VII, Section 4, paragraph 4 of the 1987 Constitution:

The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all 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 due execution thereof in the manner provided by law, canvass the votes (Emphasis supplied).

It is clear from the foregoing that the power to canvass the votes of the electorate for president and vice-president is lodged with Congress. This includes, by express mandate of the Constitution, the duty to proclaim the winning candidates in such election.

As pointed out in the majority opinion the phrase proclamation of winning candidates used in the assailed statute is a sweeping statement, which thus includes even the winning candidates for the presidency and vice-presidency.²³ Following a basic principle in statutory construction, generali dictum genaliter est interpretandum (a general statement is understood in a general sense), the said phrase cannot be construed otherwise. To uphold the assailed provision of Rep. Act No. 9189 would in effect be sanctioning the grant of a power to the COMELEC, which under the Constitution, is expressly vested in Congress; it would validate a course of conduct that the fundamental law of the land expressly forbids.

It has been said that in determining the constitutionality of the exercise of power by a department, the question to be asked is not whether the power is essentially legislative, executive or judicial, but whether it has been specifically vested in it by the Constitution, or properly incidental to the performance of the functions of that department.²⁴ In this case, the power sought to be granted to the COMELEC is expressly granted to Congress, and Congress alone. It could not have been the intention of our legislators to abdicate their constitutionally-mandated duty to the COMELEC. Congress could not have meant to allow the COMELEC to arrogate a power that rightly belongs to it under the Constitution.

WHEREFORE, in the light of the foregoing, I vote to GRANT the petition to declare NULL AND VOID for being UNCONSTITUTIONAL:

a. Section 5(d) of Republic Act No. 9189 for violation of Section 1, Article V of the Constitution which allows an immigrant or permanent resident in a foreign country, to vote for President, Vice-President, Senators and Party Lists representatives after executing the required affidavit;

b. That portion of Section 18.5 of Republic Act No. 9189 empowering the COMELEC to order the proclamation of winning candidates without qualification as it pertains or affects the canvass of votes and proclamation of winning candidates for president and vice-president for being violative of paragraph 4, Section VII of the 1987 Constitution; and,

c. Sections 19 and 25 of Republic Act No. 9189 for violation of Section 1, Article IX-A of the 1987 Constitution in relation to Section 2, Article IX-C of the same Charter.

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Endnotes:

¹ Lambeen v. Bell, 18 Colo. 346.

² Record of the Constitutional Commission, Volume II, 19 July 1986, pp. 34-35.

³ 37 Words and Phrases 339 citing Foote v. Foote, 77 N.Y.S.2d 60, 65, 192 Misc. 270.

⁴ Ibid., citing Carlson v. District Court or City and County of Denver, 180 P.2d 525, 529, 116 Colo. 330.

⁵ Ibid., citing Robinson v. Robinson, 67 A.2d 273, 275, 362 Pa. 128.

⁶ Ibid., citing Foote v. Foote, 77 N.Y.S.2d 60, 65, 192 Misc. 270.

⁷ Coquilla v. COMELEC, G.R. No. 151914, July 31, 2002.

⁸ 29 C.J.S. 19; Alcantara v. The Secretary of the Interior, 61 Phil. 459, 465 (1935).

⁹ Anderson v. Pifer, 315 Ill 164; 146 N.E. 171.

¹⁰ 29 C.J.S. 19 citing Ind. Brownlee v. Duguid, 178 N.E. 174, 93 Ind. App. 266.

¹¹ 25 Am. Jur. 2d 69 citing People v. Turpin, 49 Colo 234, 112 P 539; State ex rel. Parker v. Corcoran, 155 Kan 714, 128 P2d 999, 142 ALR 423.

¹² 29 C.J.S. 21 citing Mitchell v. Kinney, 5 So.2d 788, 242 Ala. 196.

¹³ 3 C.J.S. 75; Caasi v. Court of Appeals, 191 SCRA 229, 234 (1990).

¹⁴ 29 C.J.S. 21, citing Woods v. Blair, 300 S.W. 597, 222 Ky. 201; Siler v. Brown, 284 S.W. 997, 215 Ky. 199.

¹⁵ 25 Am. Jur. 2d 67 citing Felker v. Henderson, 78 NH 509, 102 A 623; Nelson v. Gass, 27 ND 357, 146 NW 537.

¹⁶ 25 Am. Jur. 2d 69 citing People v. Turpin, 49 Colo. 234, 112 P 539.

¹⁷ Ibid., Kreitz v. Behrensmeyer, 125 Ill 141, 17 NE 232; White v. Slama, 89 Neb. 65, 130 N.W. 978.

¹⁸ 29 C.J.S. 19; Thomas v. Macklen, 195 S.E. 539, 186 S.C. 290.

¹⁹ Section 1, Article V of the 1987 Philippine Constitution.

Section 9 of R.A. 8189, otherwise known as AN ACT PROVIDING FOR A GENERAL REGISTRATION OF VOTERS, ADOPTING A SYSTEM OF CONTINUING REGISTRATION, PRESCRIBING THE PROCEDURES THEREOF AND AUTHORIZING THE APPROPRIATION OF FUNDS THEREFOR, provides that :

SEC. 9. Who May Register. All citizens of the Philippines not otherwise disqualified by law who are at least eighteen (18) years of age and who shall have resided in the Philippines for at least one (1) year and in the place wherein they propose to vote for at least six (6) months immediately preceding the election, may register as a voter.

²⁰ Tiu v. Court of Appeals, 301 SCRA 278, 289 (1999).

²¹ Estrada v. Sandiganbayan, 369 SCRA 394, 430-431 (2001).

²² Ynot v. Intermediate Appellate Court, 148 SCRA 659, 666 (1987).

²³ Decision, p. 34.

²⁴ Luzon Stevedoring Corporation v. Social Security Commission, 34 SCRA 178 (1970). (Emphasis supplied).