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SEPARATE OPINION

VITUG, J.:

Indeed, the mandate of the Constitution is explicit - one must be a resident in order to vote in the countrys elections.1 But, equally compelling is its other provision that directs Congress to adopt a system that would allow absentee voting by qualified Filipinos abroad.[2 The deliberations by members of the Constitutional Commission on the subject are instructive.3

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 elections. 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 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 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. (emphasis supplied)

In election cases, the Court, more than once, has treated residence and domicile as being synonymous terms. In Romualdez vs. Regional Trial Court of Tacloban,4 this Court has said:

"The term residence as used in the election law is synonymous with domicile, which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. . . . . Residence thus acquired, however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.

The instant controversy primarily revolves on the issue of whether or not an immigrant or a permanent resident in another country should be considered to have lost his status as a Philippine resident and must thus be barred from participating in the national elections. It is well to recall that, in acquiring a new domicile, there must be a concurrence of animus manendi and animus non revertendi. Intention is always crucial. Thus, the Court, in Romualdez vs. Regional Trial Court of Tacloban5 and Romualdez-Marcos vs. Commission on Elections (COMELEC),6 has delved in detail into the intention of the parties to determine the question of domicile.

It is to be conceded that for quite sometime now, economic crises have forced millions of Filipinos to leave their homes to work and live in foreign shores. To most, it has not been a decision to uproot themselves, let alone completely sever their ties, from the country of birth. It is not at all farfetched for emigrating countrymen, when conditions warrant, to get right back home. I am not prepared to say that their immigrant status abroad is necessarily proof of an intention to discard and to abandon the domicile of origin.

Caasi vs. Court of Appeals,7 disqualifying a green card holder (an immigrant of the United States) from running for a local public office, was predicated on Section 68 of the Omnibus Election Code of the Philippines. This law disallows any person who is a permanent resident of, or an immigrant to, a foreign country to run for an elective public office, unless he shall have waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. No such express disqualification, however, exists for the exercise of the right to vote. The reason for the disqualification with respect to elective officials, I take it, proceeds from an assumption that resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for, with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof.8 The danger does not hold true with respect to immigrants abroad who would simply be discharging their right and duty to cast a vote for their candidate of choice.

The law must have recognized that animus manendi and animus non revertendi, being processes of the mind and incapable of a definitive determination, could only be discerned from perceivable circumstances. So also, Republic Act No. 9189 or the Overseas Absentee Voting Act of 2003, disqualifies an immigrant or a permanent resident who is recognized as such in the host country to vote under the Act9 on the premise that such a circumstance can be a cogent indication of the holders intention to abandon his old domicile and establish a new one. But, in much the same vein, the law acknowledges that the immigrant or permanent resident may still be qualified to vote, provided he executes, upon registration, an affidavit prepared for the purpose by the Commission on Elections declaring that he shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his registration under (the) Act. The affidavit shall additionally confirm that he has not applied for citizenship in another country.10 I am convinced that these indicators used by the legislature are reasonable gauges to establish the intention of the immigrant not to abandon his Philippine domicile. The fact that he has not relinquished his Philippine citizenship should help remove any lingering doubt on his preferred status. After all, the right of suffrage, now widely considered to be an innate right of every national, is a basic and perhaps the most outstanding mark of citizenship.

Section 4 of the Act allows all qualified Filipinos abroad to vote for President, Vice-President, Senators and party-list representatives. In relation to this, Section 18.5 empowers the Commission on Election to order the proclamation of winning candidates.[11 Since it is Congress which has been granted by the Constitution[12 the authority and duty to canvass the votes and proclaim the winning candidates for president and vice-president, I echo the sentiment of my colleagues that the power given to COMELEC by Section 18.5 of R.A. 9189 should be understood to be limited only to the proclamation of winning candidates for the positions of senators and party-list representatives. The election returns for the positions of president and vice-president should then be certified by the Board of Canvassers to Congress and not to COMELEC as provided for in Section 18.4 of the Act.[13cräläwvirtualibräry

R.A. 9189 creates a Joint Congressional Oversight Committee (JCOC) composed of Senators and Members of the House of Representatives, empowered to review, revise, amend and approve the Implementing Rules and Regulations (IRR) promulgated by the COMELEC,[14 and to approve the voting by mail in not more than three (3) countries for the May 2004 elections and in any country determined by COMELEC.[15 The Court here finds unanimity in holding that Congress, by vesting itself with the aforesaid powers, has gone beyond the scope of its constitutional authority. It is a pronouncement that, in my view, can hardly be susceptible to challenge. The Constitution ordains that constitutional commissions such as the COMELEC shall be independent.[16 The COMELEC has the constitutional authority to enforce and administer all laws and regulations relative to the conduct of an election[17 and to promulgate its rules of procedure.[18 The role therefore of the JCOC must be understood as being limited only to the monitoring and evaluation of the implementation of the Act[19 pursuant to the power of Congress to conduct inquiries in aid of legislation.[20cräläwvirtualibräry

In view whereof, I vote to uphold the constitutionality of Republic Act No. 9189 allowing absentee voting in the manner expressed therein, but that, as regards Sections 17.1, 19 and 25, I share the unanimous conclusion reached by my colleagues declaring portions thereof as being unconstitutional.



Endnotes:

1 Section 1, Article V of the 1987 Constitution provides:

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.

2 Section 2, Article V, of the 1987 Constitution.

3 II Record of the Constitutional Commission, pp. 34-35.

4 G.R. No. 104960, 14 September 1993, 226 SCRA 408.

5 Supra.

6 318 Phil 329

7 G.R. No. 88831, 8 November 1990, 191 SCRA 229.

8 Caasi v. Court of Appeals, supra, p. 236.

9 Section 5 (d), R.A. No. 9189.

[10 Id.

[11 Section 18. On-Site Counting and Canvassing

X x x

18.5 The canvass of votes shall not cause delay of the proclamation of a winning candidate if the outcome of the election will not be affected by the results thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamation of winning candidates despite the fact that the scheduled election has not taken place in a particular country or countries, if the holding of elections 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.

[12 Section 4, Article VII of the 1987 Constitution

[13 Section 18.4 X x x. Immediately upon the completion of the canvass, the chairman of the Special Board of Canvassers shall transmit via facsimile, electronic mail, or any other means of transmission equally safe and reliable the Certificates of Canvass and the Statements of Votes to the Commission x x x.

[14 Sections 19 and 25, R.A. 9189.

[15 Section 17.1, R.A. 9189.

[16 Section 1, Article IX-A of the 1987 Constitution

[17 Section 2 (1), Article IX-C of the 1987 Constitution

[18 Section 3, Article IX-C of the 1987 Constitution

[19 Section 25, R.A. 9189

X x x

The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the implementation of this Act. X x x.

[20 Section 21, Article VI of the 1987 Constitution




























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