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CONCURRING OPINION

CARPIO, J.:

The case before this Court is historic and momentous. Historic because the right of suffrage, which through the centuries painstakingly evolved into universal right,1 stands at the crossroads in this country. Should the right of suffrage continue its march forward and reach overseas Filipinos, or should this Court turn back this historic march here at our gates?

Momentous because the core issue is the enfranchisement or disenfranchisement of some 7 million overseas Filipinos. The annual contribution of these overseas Filipinos to the national economy, in terms of hard-earned foreign exchange remitted through the banking system, equals almost 50 percent of the countrys national budget.2 The total remittances, recorded and unrecorded, of overseas Filipinos may even reach 18 percent of GNP, almost the same percentage that agriculture at 20 percent contributes to the GNP.3cräläwvirtualibräry

The nation has hailed the overseas Filipinos as the modern-day heroes and saviors of the economy. Their blood, toil, tears and sweat have propped up the Philippine peso through all the recurring financial crises that have battered the nation. Although scattered in foreign lands across the globe, these overseas Filipinos keep abreast with developments in the Philippines through the Internet,4 cable and satellite TV, and even texting.

In recognition of the immense contribution of overseas Filipinos to the nation, the framers of the 1987 Constitution introduced the absentee voting system, novel in this country, purposely to enfranchise the overseas Filipinos. Commissioner Blas Ople, the former Minister of Labor who started deploying abroad large numbers of Filipino workers, triggered the introduction of the absentee voting with this discourse during the deliberations of the Constitutional Commission:

MR. OPLE: x x x

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 insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own or under pressure of economic necessity here, find that they have to detach themselves from their families to work in other countries with definite tenures of 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 technically disqualified from exercising the right of suffrage in their countries of destination by the residential requirement in Section 1 which says:

Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, 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 preceding the election.

I, therefore, ask the Committee whether at the proper time they might entertain an 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.

x x x

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 Committee, of course, is aware that when this Article of the Constitution explicitly and unequivocally extends the right of effective suffrage to Filipinos abroad, this will call for a logistical exercise of global proportions. In effect, this will require budgetary and administrative commitments on the part of the Philippine government, mainly through the COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive 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 sufficient to meet the demands of the right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the Committee for saying that an amendment to this effect may be entertained at the proper time.5 (Emphasis supplied)

From the start, the framers of the Constitution knew that the absentee voting system for overseas Filipinos would have to be an exception to the double residency requirement in Section 1, Article V of the Constitution. This was the basic premise for introducing an express provision on absentee voting in the Constitution. Unless there is such an exception in the Constitution itself, overseas Filipinos could never vote as absentee voters in view of the double residency requirement in Section 1. Because of this double residency requirement, Congress could not enfranchise through ordinary legislation overseas Filipinos who do not comply with the double residency requirement.

Thus, the framers of the Constitution, by an overwhelming vote of 28 in favor and only one against, approved Section 2, Article V of the Constitution, as follows:

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. (Emphasis supplied)

After sixteen long years of debates, Congress finally enacted RA No. 9189 (the Overseas Absentee Voting Act of 2003), precisely to implement the constitutional mandate to enfranchise overseas Filipinos. Petitioner now asks the Court to strike down this law as unconstitutional mainly because it enfranchises overseas Filipinos who do not comply with the double residency requirement in Section 1, Article V of the 1987 Constitution, as follows:

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. (Emphasis supplied)

Like the 1973 Constitution, Section 1, Article V of the 1987 Constitution imposes a double residency requirement before a Filipino 18 years or over may exercise the right to vote, namely: (1) one year residence in the Philippines; and (2) six months residence in the locality in the Philippines where he proposes to vote.

The threshold issue is whether overseas Filipinos should comply with the double residency requirement in Section 1 of Article V to vote under the absentee voting system in Section 2 of the same Article. Stated another way, the issue is whether overseas Filipinos, many of whom are not registered voters in the Philippines, should come home twice to the Philippines just so they could vote in a foreign country as absentee Filipino voters. The first time they should come home is one year before the elections to establish residence in the Philippines. The second time is six months before the elections to establish residence in the locality in the Philippines where they propose to vote.

Did the framers of the 1987 Constitution intend to inflict on overseas Filipinos such a burdensome requirement as an essential feature of the absentee voting system in Section 2 of Article V? To require absentee voters to comply with the double residency requirement is to impose an impractical and even an impossible condition to the exercise of the constitutional right to vote. In the first place, the second residency requirement of establishing residence in a locality in the Philippines where the voters propose to vote is impossible to comply since overseas Filipinos will obviously not vote in any locality in the Philippines. Imposing the double residency requirement makes the absentee voting an empty right of overseas Filipinos. Certainly, the wise framers of the Constitution were incapable of such absurd scheme.

If the framers of the Constitution did not intend such an absurd requirement, should this Court now impose such absurdity on overseas Filipinos? How many overseas Filipinos would comply with the double residency requirement just to vote in Presidential and Senatorial elections? How much will overseas Filipinos spend just to come home twice within 12 months just so they could vote when they go back abroad?

The concept of absentee voting negates a residency requirement in the country of citizenship of the voter. By definition, an absentee voter is a non-resident voter. Obviously, the double residency requirement in Section 1 of Article V applies only to resident or non-absentee Filipino voters. To impose the double residency requirement on absentee Filipino voters is an egregious anomaly for it will require absentee Filipino voters to comply with the same residency requirement imposed on resident or non-absentee Filipino voters. If absentee Filipino voters are required to reside in the Philippines just like resident or non-absentee Filipino voters, why create an absentee voting system for overseas Filipinos in the first place? Applying the double residency requirement on absentee voters will render the provision on absentee voting in Section 2 a surplusage, a constitutional mandate devoid of meaning.

Even without the absentee voting provision in Section 1, Congress can validly enact a law allowing resident or non-absentee Filipino voters - those who comply with the double residency requirement - to vote abroad in Philippine embassies or consulates. There is no constitutional prohibition on registered Filipino voters who comply with the double residency requirement to cast their ballots at a Philippine embassy or consulate abroad where they happen to be on election day. If the absentee voting system in Section 2 were for the benefit only of resident or non-absentee Filipinos, then there would be no need to provide for it in the Constitution.

The framers of the 1987 Constitution specifically introduced the absentee voting provision in Section 2 precisely to enfranchise overseas Filipinos who do not comply with the double residency requirement in Section 1. Without the absentee voting provision in Section 2, Congress could not validly enact a law enfranchising overseas Filipinos who do not comply with the double residency requirement. As succinctly explained by Commissioner Christian Monsod during the deliberations in the Constitutional Commission:

MR. MONSOD: x x x The reason we want absentee voting to be in the Constitution as a mandate to the legislature is that there 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 care of the rest.6cräläwvirtualibräry

Evidently, the framers of the Constitution intended the absentee voting provision as an exception to the double residency requirement.

The question of how a Filipino, who has become a permanent resident or immigrant in a foreign country, may reacquire his domicile or residence in the Philippines is a matter for ordinary legislation. The reacquisition of the Philippine domicile or residence that a Filipino had lost is within the power of Congress to legislate. The Constitution does not define what domicile or residence means. There is also no constitutional prohibition against the enactment of legislation prescribing the reacquisition of domicile or residence in the Philippines, just as there is no constitutional prohibition against the enactment of legislation prescribing the reacquisition of Philippine citizenship.

Thus, RA No. 81717 allows a former natural-born Filipino who became a foreigner to reacquire Philippine citizenship by filing a simplified administrative petition and taking an oath of allegiance to the Philippines. Section 5(d) of RA No. 9189, which prescribes the reacquisition of residence by a Filipino through the execution of an affidavit stating he is resuming residence in the Philippines, is similarly well within the power of Congress to enact and is thus constitutional.

While the absentee voting system is new in this country, it is well established in other countries. In the United States, all U.S. citizens 18 years or over who reside outside the United States during an election are eligible to vote as absentee voters.8 The trend in the United States is to allow no-excuse absentee voting,9 that is, a qualified or registered voter may avail of absentee voting for any reason. Absentee voting is understood in other jurisdictions as voting by a qualified or registered voter without any residency requirement. In the present case, petitioner wants a double residency requirement imposed on absentee Filipino voters.

The right of suffrage is the cornerstone of a representative government like that established in the 1987 Constitution. A representative government is legitimate when those represented elect their representatives in government. The consent of the governed is what stamps legitimacy on those who govern. This consent is expressed through the right of suffrage. It is a precious right for which many have fought and died so that others may freely exercise it. A government that denies such right on flimsy or meaningless grounds does so at its peril.

The International Covenant on Civil and Political Rights, to which the Philippines is a signatory, requires the Philippines to respect the peoples right of suffrage without unreasonable restrictions. Thus, Article 25 of the Covenant provides:

Article 25. Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

x x x. (Emphasis supplied)

The Philippines is duty bound under international law to comply in good faith with its treaty obligations under the Covenant. To require overseas Filipinos to return to the Philippines twice within 12 months so they may vote abroad as absentee voters is plainly an unreasonable restriction outlawed by the Covenant.

When the framers of the Constitution introduced absentee voting in Section 2 of Article V, they were aware of the countrys obligations under the Covenant. In their discussions on the death penalty, human rights and the Bill of Rights, the framers of the Constitution often referred to the countrys obligations under the Covenant.10 It is inconceivable that the framers intended overseas Filipinos to comply with the double residency requirement, an unreasonable restriction that would patently violate Article 25 of the Covenant and practically negate the overseas Filipinos right of suffrage.

There are some 40 countries in the world, including our ASEAN neighbors Indonesia and Thailand, which grant their overseas citizens the right to vote while residing abroad.11 The inexorable direction of history is to bestow on every person the right to vote wherever he may be in this global village. Modern technology and telecommunications are making this happen even now.12 Those who insist on the double residency requirement as an essential condition for absentee voting by overseas Filipinos are turning back in vain the clock of history.

The framers of the Constitution expressly mandated Congress to enact an absentee voting law to enfranchise overseas Filipinos. Congress has enacted such a law after a long and difficult struggle by overseas Filipinos who patiently waited for 16 years for the enactment of the law. That struggle is now part of the world history of the evolution of the right of suffrage as a universal right. No frivolous, absurd or impractical conditions should stand in the way of enfranchising overseas Filipinos whose contribution to the national economy is immeasurable.

Like the framers of the 1987 Constitution and the members of Congress, I vote to enfranchise our 7 million overseas Filipinos. This is an explicit constitutional mandate that the Court, like Congress, must honor and respect. I therefore concur entirely with the ponencia of Justice Ma. Alicia Austria-Martinez.



Endnotes:

1 Article 25, International Covenant on Civil and Political Rights.

2 In 2002, overseas Filipino workers officially remitted US$7.17 billion to the Philippines (www.bsp.gov.ph/statistics/spei/tab11.php). At P53 to US$1, this is equivalent to P380 billion, almost 50 percent of the 2002 national budget of P780.8 billion (RA No. 9162).

3 Rep. Loretta Ann P. Rosales, Empowering Seven Million Migrant Filipinos for the Next Millennium, 10 May 1999, www.philsol.nl/F-Rosales-may99.php.

4 All the major newspapers in the Philippines are posted daily in the Internet.

5 Record of the Constitutional Commission, Vol II, pp. 11-12 (19 July 1986).

6 Record of the Constitutional Commission, Vol. II, p. 33 (19 July 1986).

7 An Act Providing for the Repatriation of Filipino Women Who Have Lost their Philippine Citizenship by Marriage to Aliens and of Natural-Born Filipinos.

8 FAQs on Uniformed and Overseas Citizens Absentee Voting Act, www.fvap.gov/quest.php.

9 A Guide to Absentee Voting in Maine, www.state.me.us/sos/cec/elec/absentee03.hm; Absentee Voting in Florida, www.bayvotes.org/absentee.php; Voting Absentee in North Dakota, www.state.nd.us/sec/voting absentee.php; No Excuse Absentee Voting in North Carolina, www.msweb03.co.wake.nc.us/bordelec/absentee.php.

10 Record of the Constitutional Commission, Vol. 1, No. 32, 17 July 1986; Vol. 2, No. 43, 30 July 1986; Vol. 3, No. 66, 26 August 1986; Vol. 3, No. 67, 27 August 1986; Vol. 4, No. 68, 28 August 1986; Vol. 4, No. 69, 29 August 1986.

11 Petition Letter of Overseas Filipinos to the Philippine Government on the Right to Vote, www.philsol.nl/ofw/pettion.php.

12 In the 2004 U.S. Presidential elections, there will be voting through the Internet under the initiative called SERVE (Secure Electronic Registration and Voting Experiment). This will allow an eligible U.S. citizen to vote from any Windows-based computer with Internet access, anywhere in the world. www.servusa.gov/public/aqca.aspx.




























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