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CONCURRING and DISSENTING OPINION

SANDOVAL-GUTIERREZ, J.:

No person has more than one domicile at a time.¹ A Filipino immigrant, by his permanent residency in the host country, loses the Philippines as his domicile.² He cannot reacquire it by the mere act of executing an affidavit expressing his intention to return to the Philippines at some future time. Residence for voting is not wholly a question of intention, but it is a question of fact and intention.[3]Unless his intention is fortified by the concurrent act of reestablishing the Philippines as his domicile, he cannot be considered a qualified voter under the Philippine Constitution.

With the foregoing premise in mind, I find myself unable to agree with the majoritys ruling that Section 5(d) of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003) is constitutional. For easy reference, let me quote the assailed provision, thus:

SEC. 5. Disqualifications. The following shall be disqualified from voting under this Act:

x x 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.

R.A. No. 9189 has been enacted pursuant to Section 2, Article V of the 1987 Constitution requiring Congress to provide a system for absentee voting by qualified Filipinos abroad. In enacting the law, Congress granted the right of suffrage to Filipino immigrants or permanent residents of foreign countries on the condition that they shall execute an affidavit declaring their intention to resume permanent residency in the Philippines. The rationale, according to Senator Edgardo Angara, is that Congress wants the law to be expansive and all-inclusive.

The validity of the above-quoted provision depends on whether it conforms faithfully to the mandate of the Constitution. Does it carry out the true intent of the Constitution? In various jurisdictions where absentee laws exist, statutes are construed in the light of constitutional provisions affecting elections and registrations.⁴ In said jurisdictions, the constitutionality of absentee voting laws has been upheld or denied based on constitutional requirements relating to the residence of voters, the necessity of their personal appearance at the polls, the mechanics of voting, including the place and method of casting the ballot and the counting and canvassing and other treatment of the ballots by the election officials.⁵cräläwvirtualibräry

There is no dispute that the 1987 Constitution denies to Filipino immigrants the right of suffrage. The Framers had no choice, they had to maintain consistency among the provisions of the Constitution. Section 1, Article V prescribes residency in the Philippines as one of the qualifications for the exercise of the right of suffrage. Initially, this was perceived as an obstacle to the incorporation of the constitutional provision requiring Congress to provide for a system of absentee voting by qualified Filipinos abroad.⁶ However, the Framers resorted to the legal connotation of the term residence. They emphasized that residence is to be understood not in its common acceptance 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.⁷ Thus, as long as the Filipino abroad maintains his domicile in the Philippines, he is considered a qualified voter under the Constitution. Significantly, at the early stage of the deliberation, the Framers made it clear that the term qualified Filipinos abroad refers only to those whose presence in the foreign country is only temporary and whose domicile is still the Philippines thus, definitely excluding immigrants or permanent residents of a foreign country. Let me quote the Records of the Constitutional Commission, thus:

MR. RODRIGO. Before we vote, Madame 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 amendment 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. Madame 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 here 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. Madame 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. Madame 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.

x x x x x x

MR. SUAREZ. Madame President, may I be recognized for clarification.

THE PRESIDENT. Commissioner Suarez is recognized.

MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case of qualified Filipino citizens residing abroad and exercising their right of suffrage, they can cast their votes for the candidates in the place where they were registered to vote in the Philippines. So as to avoid any complications, for example, if they are registered in Angeles City, they could not vote for a mayor in Naga City.

In other words, if that qualified voter is registered in Angeles City, then he can vote only for the local and national candidates in Angeles City. I just want to make that clear for the record.

MR. REGALADO. Madame President.

THE PRESIDENT. What does Commissioner Regalado say?

MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this envisions Filipinos residing abroad. The understanding in the amendment is that the Filipino is temporarily abroad. He may not be actually residing abroad; he may just be there on a business trip. It just so happens that the day before the elections he has to fly to the United States, so he could not cast his vote. He is temporarily abroad but not residing there. He stays in a hotel for two days and comes back. This is not limited only to Filipinos temporarily residing abroad. But as long as he is temporarily abroad on the date of the elections, then he can fall within the prescription of Congress in that situation.[8]

The intention of the Framers to limit the phrase qualified Filipinos abroad to Filipinos temporarily residing abroad is clear and unmistakable. Therefore, a law, such as R.A. No. 9189, which expands the meaning as to include those otherwise not covered (such as Filipino immigrants or permanent residents of foreign countries), through the mere imposition of certain requirements, risks a declaration of unconstitutionality.

My reservation to join the majority springs from my negative stand to the query Is the mere execution of an affidavit by a Filipino immigrant declaring that he shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his registration under R.A. No. 9189 sufficient to consider him a resident or domiciliary of the Philippines?

It is a fundamental legal rule that all persons must always have a domicile somewhere.⁹ Equally fundamental is the principle that no person has more than one domicile at a time.¹⁰ A person is considered to have abandoned his domicile if he chooses a new domicile, actually resides in the place chosen, and intends that it be the principal and permanent residence.¹¹ In Caasi vs. Court of Appeals,[12] we ruled that the immigration of a Filipino to the United States by virtue of a green card, which entitles him to reside permanently in that country, constitutes abandonment of domicile in the Philippines, thus:

Despite his vigorous disclaimer, Miguels immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered in the United States with the intention to live there permanently as evidenced by his application for an immigrants (not a visitors or tourists) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently.

Immigration is the removing into one place from another; the act of immigrating; the entering into a country with the intention of residing in it.

An immigrant is a person who moves into a country for the purpose of permanent residence. x x x.

There being an abandonment of the Philippine domicile, the only way for an immigrant to satisfy the residency requirement to enable him to exercise his right of suffrage is to reacquire or reestablish his domicile in this country. It is an established rule that where a voter abandons his residence in a state and acquires one in another state, he cannot again vote in the state of his former residence until he has qualified by a new period of residence.[13]In short, for an immigrant to reestablish his domicile in the Philippines, he must again reside in this country with the intention to remain here and abandon his old domicile in the foreign land. The waiver of his immigrant status should be as indubitable as his application for it.

Mere declaration that he intends to resume actual physical permanent residence in the Philippines does not have the effect of conferring upon the immigrant the necessary qualification of residency here. To reiterate, residence for voting is not wholly a question of intention, it is a question of fact and intention.¹⁴ A voters statements, declarations, or testimony with respect to his intention is not controlling, but must be taken in connection with his acts and conduct.[15]Hence, the right to vote in a certain place or precinct requires the occurrence of two things, the act of residing coupled with the intention to do so.¹⁶ In order to constitute a residence for voting purposes, there must be the intention to reside there for voting purposes, and that intention must be accompanied by acts of living, dwelling, lodging, or residing reasonably sufficient to establish that it is the real and actual residence of the voter. To rule that a sworn declaration of intention is sufficient to acquire a voting residence is to establish a bad precedent considering that voters can choose the place where they want to vote simply by swearing that they intend to permanently reside therein.

Perhaps the majority would assert that such intention is accompanied by the immigrants act of resuming actual physical permanent residence in the Philippines not later than three (3) years from the approval of his registration under R.A. No. 9189. Such future act cannot change the immigrants present domicile. Not only because it is yet to happen, hence, doubtful and uncertain, but also because it is a settled principle that a voter must posses all the qualifications to vote at least on the date of the election. Only persons who possess or will possess on the day of the election the constitutional and statutory qualifications of voters are entitled to apply to the registrars for the registration of their names in the voting lists.[17]To say otherwise is to authorize a person to vote in an election subject to future acquisition of the necessary qualifications for the exercise of the right of suffrage. To be granted such right before one can even qualify as a voter contravenes one of the most basic principles in election law.

The majority rules that the affidavit required in Section 5 (d) serves as an explicit expression that the immigrant had not in fact abandoned his domicile of origin.¹⁸ Again, I cannot subscribe to this view. An immigrants plain declaration of his intention cannot prevail over the actual facts surrounding his residency. Conduct has greater evidential value than a declaration. The fact that a person obtains an immigrants visa, and not a visitors or tourists visa, plainly shows that his entrance in the foreign country is for a permanent purpose. Indeed, declarations are always subject to the infirmity of any self-serving declaration and maybe contradicted by inconsistent acts.¹⁹ When in conflict with the facts, a declared intention to acquire a domicile (or to maintain the domicile of origin) has little weight.²⁰cräläwvirtualibräry

Besides, to admit the immigrants representation that he has not abandoned his Philippine domicile despite his immigrant status is to tolerate what we proscribed in Caasi vs. Court of Appeals,[21] thus:

In other words, he would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, this Court will not allow itself to be a party to his duplicity by permitting him to benefit from it and giving him the best of both worlds so to speak.

Honoring our countrymens sworn declarations to resume permanent residency in the Philippines, notwithstanding their immigrant status and the host countrys continuous recognition of them as such, does not speak well of Filipino values. In effect, it encourages duplicitous or deceptive conduct among our countrymen. We should not allow such acts to be done behind the host countrys back.

Another ground why I cannot join the majority is the great probability that the assailed provision may only be an avenue for election fraud. Reality wise, our country is yet to achieve a truly clean and honest election. To grant the right of suffrage to the vast number of immigrants in foreign countries where we cannot enforce our laws with the same efficacy as within our territory, is to endanger our citizens constitutional right to an undefiled suffrage.

Paramount in the preservation of the principles of democratic government is the observance of precautionary requirements designed to insure the sanctity of the ballot. Consequently, it is imperative that our elections are not tainted with fraud. This cannot be achieved unless we impose stricter terms on the grant of the right of suffrage to absentee citizens. Significantly, the only sanction imposed by Section 5(d) upon an immigrant who fails to perform his promise to resume permanent residency in the Philippines within the prescribed period is that his name will be stricken from the National Registry of Absentee Voters and he will be permanently disqualified to vote in absentia. What a punishment for someone who made a mockery of the election process! This punitive measure is virtually meaningless. It cannot undo the result of an election nor can it discipline or daunt immigrant voters.

While the policy behind absentee voting is unquestionably good, statutes governing it should comply with the constitutional requirement that they should secure the purity of elections and the guarding against abuses of the elective franchise. Indeed, the vital considerations of the absentee voting legislations are the preservation of the enfranchisement of qualified voters and the secrecy of the ballot, together with the prevention of fraud and the achievement of a reasonably prompt determination of the election results. Unless such considerations are fully taken into account by the legislative body, the absentee voting statute will definitely be vulnerable to being declared unconstitutional.

In fine, let it be stressed that where the Constitution fixes the qualifications of voters, these qualifications cannot be increased, diminished, or changed by legislative enactment, unless the power to do so is expressly granted, or necessarily implied.²² The inclusion of the residency requirement in the Constitution is not without reason. It constitutes an invaluable protection against fraud and further affords some surety that the elector has in fact become a member of the community and that, as such, he has a common interest in all matters pertaining to its government, and is therefore more likely to exercise his right intelligently.²³ The specification in the Constitution is an implied prohibition against interference.²⁴ It is not competent for Congress to diminish or alter such qualification.

Section 5(d) of R.A. No. 9189 is unconstitutional for it diminishes the residency requirement of the Constitution by including within the phrase qualified Filipinos abroad immigrants and permanent residents of foreign countries. It defies the clear intent of the Constitution to limit the application of the absentee voting law to Filipinos who are temporarily abroad. Thus, as statutes which purport to modify constitutionally fixed qualifications are void,²⁵ so must Section 5(d) of R.A. No. 9189 suffer the same fate.

WHEREFORE, I vote to grant the petition. I dissent insofar as the majority declared Section 5(d) of R.A. No. 9189 CONSTITUTIONAL. However, I concur with its pronouncement that portions of Sections 17.1, 18.5, 19 and 25 of R.A. No. 9189 are UNCONSTITUTIONAL.

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Endnotes:

¹ 25 Am Jur 2d 8 citing In re Marriage of Tucker (4^th Dist) 226 Cal App 3d 1249, 277 Cal Rptr 403, 91 CDOS 572, 91 Daily Journal DAR 843 review den (Cal) 1991 Cal LEXIS 1415; Wilson vs. Butler (La App 1^st Cir) 513 So 2d 304: George H. &. & Irene L. Walker Home for Children vs. town of Franklin, 416 Mass 291.621 NE2d 376.

² Caasi vs. Court of Appeals, G.R. No. 88831, November 8, 1990, 191 SCRA 229.

³ Pope vs. Howle, 149 So 222, 227 Ala. 154; Bullington vs. Grabow, 88 Colo. 561; Barret vs. Parks, 180 S.W. 2d 665, 352 Mo. 974.

⁴ State ex rel v. Whitley vs. Rinehart, 192 So. 819, 140 Fla. 645; Maddox vs. Board of State Canvasser, 149 P. 2d 112, 116 Mont. 217.

⁵ 26 Am Jur 2d 356.

⁶ Section 2, Article V of the 1987 Constitution reads:

SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballots as well as a system for absentee voting by qualified Filipinos abroad.

⁷ Coquilla vs. Commission on Elections, G.R. No. 151914, July 31, 2002.

⁸ RECORDS OF THE CONSTITUTIONAL COMMISSION, VOL. II, July 19, 1986 at 34-35.

⁹ 25 Am Jur 2d 8.

¹⁰ Id.

¹¹ Perito vs. Perito, (Alaska) 756 P2d 895.

¹² Supra.

¹³ Nuval vs. Guray, G.R. No. 30241, December 29, 1928 52 Phil. 645.

Since Norberto Guray abandoned his first residence in the municipality of Luna and acquired another in Balaoan, in order to vote and be a candidate in the municipality of Luna, he needed to reacquire residence in the latter municipality for the length of time prescribed by the law, and for such purpose, he needed not only the intention to do so, but his personal presence in said municipality.

An intention to return to a former domicile developed after a new domicile has been acquired does not, in itself, affect the acquisition of a new domicile, since the same principles outlined in the preceding sections apply to the reacquisition of the old domicile after abandonment or removal. (25 Am Jur 19)

¹⁴ Supra.

¹⁵ 29 C.J.S 19, citing People v. ex rel. Moran vs. Teolis, 169 N.E. 2d 232, 20 Ill. 2d 95; Coffey vs. Board of Election Comrs of East St Louis, 31 N.E. 2d 588, 375 Ill. 385; Park vs. Hood, 27 N.E. 2d 838, 374 ill. 36; Brownlee vs. Duguid, 178 N.E. 174, 93 Ind. App. 266.

¹⁶ Brownlee vs. Duguid, id.

¹⁷ Mitchell vs. Wright, D.C. Ala., 69 F. Supp. 698; Cornelius vs. Pruet, 85 So. 430, 204 Ala. 189; In re Ray, 56 A. 2d 761, 26 N.J. Misc. 56; Appeal of Stokes, 16 Pa. Dist. & Co. 486; State ex rel. Willhide vs. King, 30 S.E. 2d 234, 126 W. Va. 785.

¹⁸ Decision at 26.

¹⁹ District of Columbia vs. Murphy, 314 US 441, 86 L Ed 329, 62 S CT 303.

²⁰ Texas vs. Florida, 306 US 398, 83 L Ed 817, 59 S Ct 563, 121 ALR 1179; Penn Mut. Life Ins. Co. vs. Fields (DC Cal) 81 F Supp 54; Ashton vs. Ashton, 197 Okla 241, 169 P 2d 565; Stalmaker vs. State, 186 W Va 233, 412 SE2d 231.

²¹ Supra.

²² 29 C.J. S. 13.

²³ New York Election Law, Abrahams, 1950 at 27.

²⁴ De Leon, De Leon, Jr. The Law on Public Officers and Election Law, 2000 Ed., at 488.

²⁵ State ex rel. Palagi vs. Regan, 126 P. 2d 818, 113 Mont. 343.