ChanRobles Virtual law Library
SUPREME COURT DECISIONS
Search for www.chanrobles.comPLEASE CLICK HERE FOR THE LATEST ➔ SUPREME COURT DECISIONS
SEPARATE OPINION
CARPIO-MORALES, J.:
In the assault against the validity of certain provisions of the newly enacted Republic Act No. 9189 or The Overseas Absentee Voting Act of 2003, the pivotal issue centers on the constitutionality of the grant, under Section 5(d) of the law, of voting rights to Filipino immigrants or permanent residents in foreign countries, conditioned on their execution of an affidavit declaring that they shall resume actual physical permanent residence in the Philippines within three years from the approval of their registration as absentee voters.
The controversy arises because the Constitution prescribes, among other requirements for the exercise of suffrage, that a Filipino citizen must have resided in the Philippines for at least one year and in the place where he is to vote for at least six months immediately preceding the election.1cräläwvirtualibräry
Residence for purposes of ascertaining the right to vote and be voted for in public office has been jurisprudentially interpreted to mean domicile which is an individuals permanent home or the place to which, whenever absent for business or pleasure, one intends to return, the domicile of a person being dependent on facts and circumstances disclosing intent.2cräläwvirtualibräry
While there is no question that Filipinos who are temporarily abroad for various reasons are still qualified to vote for they still retain their domicile in the Philippines, immigrants are generally deemed to be permanent settlers of the country where they are such,[3 thereby giving rise to the conclusion that they have relocated their domicile elsewhere.
Republic Act No. 9189 was passed by mandate of the Constitution that 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 abroad4 but this did not exempt the mechanics for absentee voting from the reach of the basic requirements imposed by the Constitution on suffrage. It is clear from the deliberations of the members of the Constitutional Commission that their intent was to limit absentee voting to Filipinos abroad who have all the qualifications and none of the disqualifications of a voter, including the residency requirement.
A Filipino who is or has already become an immigrant or permanent resident in another country can, I am convinced, by a mere sworn undertaking to return to the Philippines for the purpose of establishing permanent residence here within the statutorily fixed three-year period, be allowed by law to vote in Philippine elections without transgressing the rules laid down by the Constitution on suffrage. For a Filipino immigrant or permanent resident of a foreign country unquestionably has the Philippines as his domicile of origin, that which he acquires at birth and is the domicile of his parents or of the person or persons upon whom he was legally dependent at the time of his birth.[5 A domicile, once acquired, whether by origin or choice, continues until a new domicile is actually acquired.[6 And to acquire a new domicile by choice, the following must concur: (1) residence or bodily presence in the new locality; (2) an intention to remain there (animus manendi); and (3) an intention to abandon the old domicile (animus non revertendi).[7cräläwvirtualibräry
It is my view that the affidavit executed in accordance with Section 5(d) of R.A. 9189 by a Filipino immigrant or permanent resident of another country expressing his intent to resume physical permanent residence in the Philippines is an eloquent proof of his intention not to abandon his domicile of origin in the Philippines. It is a statement under oath of what a Filipino seeks to do for the future of his membership in a political community. Why should this affidavit be discredited on the mere speculation that the immigrant might not fulfill his undertaking to return to the Philippines for good? If Filipinos who are temporarily residing in foreign countries are accorded full faith and credit as to their domiciliary ties no matter how indefinite their absence from the Philippines, what more in the case of Filipino immigrants who have formally declared their intent to settle in their homeland?
While he may have stayed on a more or less permanent basis in the host country which conferred on him the status of an immigrant and may be animated with all the desire to remain there, until and unless a Filipino immigrant had categorically expressed by words or by deeds his intent to no longer return to his domicile of origin, no conclusion can be reached as to a change in domicile from one of origin to one of choice, hence, the old domicile subsists. For at the core of every Filipino immigrants being is the fact of his Philippine citizenship. He is, after all, still a Filipino.
The acquisition of a new domicile must be completely perfected by a concurrence of the factum of removal to a new locality, the animus to remain there, and abandonment of and intent not to return to the former domicile, for if there is a purpose to return, whether secret or open, no loss or change of domicile will result.[8cräläwvirtualibräry
Two types of Filipino immigrants must then be distinguished. The first, a Filipino who has opted not to execute the required affidavit under Section 5(d) of R.A. 9189, is clearly disqualified to exercise suffrage for he has manifested the animus non revertendi with respect to his domicile in the Philippines, thereby effectuating his acquisition of a new domicile. The second, a Filipino who declares his wish to be reunited with his homeland has, without doubt, shown that his residence of origin remained unchanged and so he is entitled to vote under the Overseas Absentee Voting Law. Therefore, until that opportunity to execute the affidavit has been totally foregone by a Filipino immigrant, in the absence of any conclusive evidence of his acquisition of a new domicile, the Filipino immigrants domicile of origin is intact, his presence abroad and his desire to remain therein notwithstanding.
I, therefore, vote in favor of the constitutionality of Section 5(d) of R.A. 9189. I vote to declare as unconstitutional parts of Section 18.5 of the subject law insofar as they authorize COMELEC to proclaim presidential and vice-presidential winners; and of Sections 17.1, 19 and 25 insofar as they are subject to congressional oversight, review and approval the implementation of voting by mail and the Implementing Rules and Regulations of COMELEC.
