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CONCURRING AND DISSENTING OPINION

YNARES-SANTIAGO, J.:

R.A. 9189, otherwise known as the Overseas Absentee Voting Act of 2003, has spurred quite a debate among various sectors of Philippine society, both locally and abroad. Scholarly arguments on the fine legal points of the issues presented by this disputed law have been presented by sides both for and against it, saddled, unfortunately, with a heavy dose of bitter emotion.

The paramount consideration in any legal debate over this contentious piece of legislation is its constitutional validity. Significantly, the short article on suffrage in the Constitution concentrates on who may exercise the right to vote.¹ The Constitution underscores three categories on the qualifications required of voters citizenship, age and residence.² Congress is authorized to limit the number of citizens who may exercise the right to vote by prescribing reasonable disqualifications. It is elementary, however, that Congress cannot expand the right of suffrage by including those who do not possess the constitutional requirements. To do so would defeat the very purpose why qualifications are singled out for constitutional attention. The sovereign will has determined that only those with the requisite citizenship, age, and residence may vote. Congress cannot water down or change the constitutional requirements.

The controversial issue in this case revolves around the constitutional provision on absentee voting which states:

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.³cräläwvirtualibräry

I am constrained to dissent from the majority opinion because R.A. 9189 grants the right of suffrage to a category of voters who do not possess the constitutional requirement of residence. These are men and women who are still Filipino citizens but who have voluntarily and unambiguously chosen actual, physical, and permanent residence in a foreign country. In other words, the questioned law allows non-residents to vote.

As phrased, Section 5 (d) of R.A. 9189 grants to Filipinos who are immigrants or permanent residents of another country, and who are considered as such by their host country, the option to exercise their right of suffrage. This would be accomplished by the mere expedient of:

1. Registering as voters.

2. Execution of an affidavit declaring that:

a. She shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of her registration;

b. She has not applied for citizenship in another country.

Proponents of R.A. 9189 are trying to construe Section 2 of Article V of the Constitution as a proviso which expands and enlarges the scope of the preceding section. They overlook the fact that while Section 2 provides a system for absentee voting, any absentee who votes must first meet the qualifications found in Section 1 of the same article.

As stated by the petitioner,⁴ if the framers of the Constitution intended to make Section 2 of Article V a proviso or exception to its first section, they should have added it to the latter.

Section 1 would have incorporated as its last clause the following proviso:

Provided, the Congress shall provide a system for absentee voting by Filipino citizens who are residing abroad.

The Constitution does not make the absentee voting provision a mere proviso of the first section on residence qualifications. Together with the system which secures the secrecy and sanctity of the ballot, the provision on absentee voting is an entirely distinct and separate section which allows only those qualified under Section 1 to take advantage of the privilege under Section 2.

The office of a proviso is to limit the application of a section or provision or to qualify or restrain its generality.⁵ However, a proviso may also enlarge what otherwise is a phrase of limited import had there been no proviso qualifying it.⁶cräläwvirtualibräry

Since the provision on absentee voting in R.A. 9189 neither limits nor enlarges a provision of which it is a part, the phrase qualified Filipinos abroad can be interpreted only to mean that those who are qualified to vote under the preceding section may become absentee voters. They must possess on election day the constitutional requirements as to citizenship, age, and residence.

Proponents of R.A. 9189 try to go around the statutes constitutional infirmity by giving the word resident or resided a labored and far-fetched meaning. They use the fanciful interpretation that immigrants who have moved lock, stock, and barrel to permanently live in another country are still domiciled in the Philippines.

The tens, if not hundreds of millions of overseas Chinese who have migrated to other lands may be cited as examples. Even after living in their countries of choice for two or three generations, they maintain their Chinese identities through clannishness and language. They take pride in the slow emergence of the old country into a democratic and powerful economic force in world affairs. By no stretch of legal fiction, however, can they be deemed residents of mainland China. They have chosen to live in adopted homelands, have become integral and, many times, leading members of their communities, and will be buried there when the time comes. Unless the Chinese basic law allows non-residents to vote in China, they cannot vote there. A similar diaspora caused by economic, population, and other pressures has led millions of Filipinos to move to other countries. Considering the constitutional provision on who may vote in Philippine elections, a distinction has to be made between those temporarily living and working abroad and those who have opted to permanently reside there. This Court must hew to reality. It should not engage in fanciful or strained interpretations to try to pass off as Philippine residents the more than 2,000,000 immigrants who have chosen to permanently reside in other countries. Only a constitutional amendment, not an enactment of Congress, can lift the consequences of the distinction.

It is well-settled that in election law, the terms residence and domicile are used interchangeably.⁷ Having in mind the meaning of these terms as they are understood in jurisprudence, we can close our eyes and easily conclude that the exercise of the right of suffrage by Filipinos who are immigrants and permanent residents abroad is warranted and that the process provided for in R.A. 9189 is sound. Unfortunately, such a conclusion would be erroneous.

Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return.⁸ On the other hand, we have held that the residence of a person must be his personal, actual or physical habitation or his actual residence or abode. It does not mean fixed permanent residence to which when absent, one has the intention of returning.⁹ This last, of course, refers to the animus revertendi which is determinative of domicile.

We must define another term: immigrant. According to Caasi v. CA,¹⁰ an immigrant is a person who removes into a country for the purpose of permanent residence.¹¹ This is why it was held therein that, having taken up such permanent residence in a country other than the Philippines, the immigrant abandons his domicile and residence in the Philippines.

In its common usage immigrant is one who comes to settle in a country which is not ones own. Immigration is entrance into a country for the purpose of settling there. Migrate means to move from one place of abode to another; to leave ones country to settle in another.¹²cräläwvirtualibräry

There is always the concept of permanent movement inherent in the word immigration. From as early as 1572 to the present, the meaning of settle has been to fix or establish permanently ones abode, residence, etc.¹³cräläwvirtualibräry

Taking these definitions into account, we must now turn to the first tool we have to aid us in our quest to understand this vague provision of our fundamental law: the proceedings and debates of the 1986 Constitutional Commission. It can be seen from the records thereof that only Filipino citizens temporarily residing abroad can avail of the option to vote as absentee voters.

With all due respect, it is not accurate to conclude that the debates, interpellations, and opinions on absentee voting expressed in the records of the Constitution Commission easily and unequivocally show that Congress is empowered to enact a law allowing immigrants to continue to vote in Philippine elections. Much less is there any room for interpretation that an immigrant who makes the facile promise to return and permanently reside in the Philippines not later than three years from voting, may be deemed a permanent resident or domiciled both in this country and in the city or municipality where he will vote.

During the deliberations on the subject provision, Commissioner Blas Ople had this to say:

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 (Emphasis supplied)¹⁴cräläwvirtualibräry

In response to an interpellation by Commissioner Ople, Commissioner Joaquin Bernas, S.J., made the following remarks:

In other words, residency in this provision refers to two residence qualifications: residence in the Philippines and residence in the place where he will vote. As far as residence in the Philippines is concerned, the word residence means domicile, but as far as residence in the place where he will actually cast his ballot is concerned, the meaning seems to be different. He could have domicile somewhere else and yet he is a resident of a place for six months and he is allowed to vote there. So that there may be serious constitutional obstacles to absentee voting, unless the vote of the person who is absent is a vote which will be considered as cast in the place of his domicile. (Emphasis supplied)¹⁵cräläwvirtualibräry

When Commissioner Christian Monsod and several others proposed amendments, Commissioner Bernas made a clarification as to whom the term Filipinos referred to in the draft provision on absentee voting, applies:

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.¹⁶cräläwvirtualibräry

When the term absentee voting was introduced into the provision, Commissioner Florenz Regalado made sure that the provisions intended meaning was not lost:

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. (Emphasis supplied)¹⁷cräläwvirtualibräry

Ultimately, the Commissioners deliberations and debates left little doubt as to who will be allowed to exercise the option to vote as an absentee voter. We can glean as much from the following exchange:

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.

MR. SUAREZ: I thank the Commissioner for his further clarification on record.

MR. MONSOD: Madam President, to clarify what we mean by temporarily abroad on a treaty traders visa. Therefore, when we talk about registration, it is possible that his residence is in Angeles and he would be able to vote for the candidates in Angeles, but Congress or the Assembly may provide the procedure for registration, like listing ones name, in a registry list in the embassy abroad. That is still possible under this system. (Emphasis supplied)¹⁸cräläwvirtualibräry

To my mind, the Constitutional Commission envisioned two different groups of people as the beneficiaries of this provision:

1. Qualified Filipinos temporarily residing abroad citizens who belong to this category reside abroad for extended periods of time without intending to make their host countries their permanent residence. This would include Overseas Filipino Workers (OFWs) with fixed periods of employment, students studying abroad, holders of treaty traders visas, or seamen away from the Philippines for extended periods. The Department of Foreign Affairs has tabulated the majority of the 5,488,167 Filipinos living abroad as falling under this category.¹⁹cräläwvirtualibräry

2. Qualified Filipinos temporarily abroad, but not residing therein this contemplates a situation wherein the temporary absence from the Philippines is not coupled with any temporary residence in a foreign country at all. This would include Filipinos who just so happen to be absent from the Philippines for brief periods of time, but including election day itself, usually because they have flown to foreign countries for short trips.

It is submitted that a valid and very real distinction exists between either of these two groups of Filipinos, on the one hand, and those Filipinos who are permanent residents or immigrants in their host countries, on the other. The key difference lies in the change of permanent residence or lack thereof, for the framers of our Constitution clearly intended that Filipinos who had taken up permanent residence in their host countries would be excluded from the benefits of absentee voting. No other interpretation can be supported by the records at hand.

It is clear that the Constitutional Commission did not intend to make absentee voters an exception to the general rule on residence in the exercise of the right of suffrage. We do not agree with the majoritys belief that the position of Article V, Section 2 of the Constitution is indicative of an intent to make it appear to be an exception to the residence requirement provided for in the section immediately preceding it. As earlier stated, Section 2 is not a proviso of Section 1. The following discussions are enlightening:

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.

x x x

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. ²⁰cräläwvirtualibräry

It is patent from the foregoing excerpts that the Commissioners took pains to ensure that the reasoning behind Article V, Section 2 of the Constitution would not be misunderstood. They never intended to accord a special status nor give special consideration to Filipinos who have become permanent residents of their host countries. These necessarily include immigrants.

Juxtaposing these definitions found in our jurisprudence with the evident intent of the framers of our Constitution, it is plain to see that Section 5 (d) of R.A. 9189, in its current form is unconstitutional. It seeks to grant the benefits of absentee voting to those for whom it was never intended: Filipinos who are permanent residents, necessarily including immigrants, of countries other than their own.

The majority claims that striking down Section 5 (d) of R.A. 9189 would deprive Filipinos abroad of a very important choice. On the one hand, they can waive their right to vote and continue to enjoy their status as immigrants or permanent residents of their host country. On the other, they can manifest their intent to return to the Philippines in a sworn statement within 3 years from the approval of their registration as absentee voters. This is, of course, a superfluous exercise. What needs to be decided? These immigrants and permanent resident of their host countries have already made their choice. They decided to move on to greener pastures rather than to cast their lot here with their countrymen.

The long lines of applicants patiently and meekly waiting for months or years to be granted immigrant visas by foreign embassies is strongly indicative of their determination to permanently reside abroad. Granted, they had very good reasons, even downright pressing or urgent ones, to leave their homes for cold, far-off lands. However, they made their choices willingly and, undoubtedly, with full knowledge that they sacrifice some of their rights and privileges as citizens and residents of our republic.

We know all too well the sacrifices our overseas brothers and sisters have endured to make better lives for themselves and their families, and if they are happy where they are, then we are genuinely happy for them. The sincerity of their concern for the motherland, as well as the nobility of their sentiments, have never been in question. However, if they feel they have to manifest such concern for the welfare of their country by casting their votes in our countrys elections, then they should do what the Constitution commands. They should come home.

I also take issue with the majoritys claim that the threat of disenfranchisement will be a sufficient deterrent against the possibility of any absentee voter reneging on his promise to return to the Philippines within 3 years from registration as an absentee voter. However, as I mentioned above, is it not conceivable that these immigrants or permanent residents of their host countries knew fully well that they would never again be able to exercise the right of suffrage when they sought permanent residence abroad? If they were willing to sacrifice the exercise of this right then, what is to stop them from doing so in the future? Not much, for if they register as absentee voters and participate in our electoral process, they have nothing to lose. They can decide to hold true to their oath and come home to permanently reside here within three years of their registration as absentee voters. Alternatively, they can vote during the elections and never set foot on Philippine soil ever again. What will they lose by exercising this second option? They risk losing the right to vote in Philippine elections; a right which they forfeited a long time ago.

It is unfortunate that R.A. 9189, in its present form, is saddled with so many infirmities. Sadder still is the fact these problems could have been avoided at the drafting stage. Evidently, these issues were brought to the attention of the Senate by Senator Joker Arroyo, as far back as the period for committee amendments. Although the eminent Senators remarks were originally in response to the proposal to provide for voter registration by mail, his parting words on the subject for his colleagues in the Senate capture the true intent behind the Constitutional provision on absentee voting. Fortunately, the Record of Senate has chronicled them for posterity, thus:

Now my concern here is this; that while we would like absentee voting, we do not want the process to be used by some enterprising people to alter the vote. What am I trying to say? All our compatriots abroad, well, they cannot be bought. They will vote honestly. The question is, just like here, after casting their votes, will the results be honest and reflective of the honest vote made by the absentee voters? That is really the question.

x x x

In our overeagerness to follow the Constitutional provision, we may find gaps in the process. So I agree with Senator Angara when I say that the registration must be here, they must first register, and it is not really that difficult because they come home every now and then. These are Filipinos who come every now and then. But for Filipinos, for instance, who have lived 20 years abroad, is that difficult to figure out?

Must we really solicit and ask them to vote when they have lived there already for 20 years? We have dual citizenship. While we grant them the dual citizenship, fine. But for a person who has been there for 20 years and has not even come back here, that is too much.

It is like that. How can we grant the right to vote to those who do not care to come home and visit? Come home and visit, then they get the right to vote. But if they do not even visit and then they will say they will file their application to vote, having grown up all these years in the United States, how is that? I mean, these are the things that we have to consider because I, for one, cannot go against the Constitutional command because that is what the Constitution says we must provide for absentee voting.

So, the proposition that I have offered is that when they come home, it is very easy. They just go up to the election registrar: they register there. They do not even have to ask so many questions. But at least, they are thumbmarked, their signatures are there, then the details are there.

These are the things. Because, Mr. President, if some of our overseas brothers commit election crimes abroad, they cannot be prosecuted in the Philippines. Let us face that. Why? Because all they have to do is not come home. Then we will have another Mark Jimenez, perhaps. I do not know. But when they come here and register, there is a certain attachment to us, and it is not too difficult.

Look at our overseas workers, for instance, in the Middle East. Everyday, we go to the airport and we see their groups of overseas workers coming home.

So, all we are telling them is: All right, you go to your respective towns. When you go there, just spend 15 minutes.

Mr. President, if these overseas workers or compatriots of ours do not want to go there and spend 15 minutes, how can we give them the right to vote? I mean, there must also be some external manifestation on the part of our overseas friends that they do want to vote. And they do so because they take time, they take pains to register. If they do not want to take time and pains to register, they just say: Oh, no. We give you money there, so you better give us the ballots. I mean, it is not fair.

What we want is to fashion a bill that would also show that the overseas voter has some attachment to the Philippines. (Emphasis supplied).²¹cräläwvirtualibräry

Jurisprudence has developed the concepts of residence and domicile in situations where the two are in different places but both are within the Philippines.²² A young man leaves his hometown to study in the city. He sets up a residence for education purposes. When he gets married and raises a family, he may build his residence in another place. His work may take him to different places and he establishes a new residence each time he and his family move. He may have cast his vote in any of the various places where he has resided. However, in later life he decides to run for public office in his hometown where he has not resided for forty (40) years. His hometown is still deemed to be his domicile or permanent residence. The key element in determining ones domicile or permanent residence is the declared and provable or easily proved intent to make it ones fixed and permanent place of abode or home.²³cräläwvirtualibräry

For immigrants, the manifest intent is the will, animus, volition, plan, and intendment to establish permanent residence in another country. The process a man goes through before he is given immigrant status is so arduous and formidable that there can be no doubt as to his animus. The fact that he is leaving the Philippines, with all the emotional connotations of departure, to settle in another country proves intent. Far from returning to the Philippines, his more likely and provable intent is a desire to eventually get citizenship papers in his adopted country.

Conversely, the cases where Filipinos may have resided in foreign countries but whose domicile was still somewhere in the Philippines clearly show not only the intent to return home, but the likelihood or inevitably of having to come home and not stay permanently in any adopted country.

The decisions in Philip G. Romualdez v. Regional Trial Court et al.²⁴ and Imelda Romualdez-Marcos v. Commission on Elections, et al.²⁵ illustrate the distinction between temporary residence in a foreign country and domicile in ones homeland.

The petitioners in the Romualdez cases never chose to be residents in the United States. They were forced to flee because of the political upheaval known as EDSA I. Philip Romualdez tried to return around one year after his forced flight abroad. He had already booked a flight but it was aborted because he was not welcome at that time in the Philippines. On September 25, 1991, he received a letter from the U.S. Immigration and Naturalization Service that he must leave that country on or before August 23, 1992 or be deported. The concepts of residence, domicile and animus manendi coupled with animus non revertendi are discussed in these cases, but there can be no mistaking the facts of the cases as entirely different from those of immigrants.

Mrs. Marcos and her family were also forced to flee. Throughout their residence abroad, they strove to return to the Philippines. They filed a case against the Secretary of Foreign Affairs, the Executive Secretary and other top officials to compel the issuance of new passports and permission to come home.²⁶cräläwvirtualibräry

The rulings on domicile and residence in the above and similar cases cannot be used to justify the validity of R.A. 9189. They do not refer to immigrants.

I also disagree with the majority view that perhaps it is time to reconsider the doctrine in Caasi v. Court of Appeals²⁷ and reverse it. It is sound doctrine and should be strengthened instead of being overturned.

I beg to differ from the conclusion in the majority opinion which states that an absentee remains attached to his residence in the Philippines because residence is synonymous with domicile.

Absentee has to be qualified. It refers only to those people residing abroad whose intent to return home and forsake the foreign country is clear. It cannot refer to immigrants. A mere promise to return home within three years from voting is no proof of intent to return to a permanent residence. The sanction for its enforcement is so feeble that the promise will be an empty one. As earlier stated, an immigrant gives up many things, including the right or opportunity of voting in the Philippines, when he moves with his family abroad. A sanction of future disenfranchisement would not bother him in the least bit. In the meantime, the immigrant vote in closely contested cases may have elected the President, a Senator or a Congressman. Unqualified voters will have swung the elections. In the same way that a counterfeit coin drives away or results in the hoarding of genuine or good coins,²⁸ the votes of non-qualified persons will not only weaken or nullify the value of the good votes but may make an election itself sham and meaningless.

The majority opinion cites the case of Romualdez-Marcos v. COMELEC²⁹ as an example of an absentee abroad whose permanent residence is her hometown in Leyte. Mrs. Marcos never chose to live abroad. She was compelled by over-powering circumstances to flee to Hawaii. She and her family showed clearly the intent to return home. Her case would be the weakest precedent for allowing immigrants to vote in the Philippines. She was not an immigrant.

With all due respect, the argument voiced in Congress that the affidavit-promise to return home within three years gives the immigrant that choice without Congress making the decision for him is deceptive and unsound. As earlier stated, the immigrant has already made his choice to change domicile when he migrated abroad. If he later returns to the Philippines, the choice is an entirely new one. It assumes force and effect only when the immigrant actually comes back home, tears up his green card and sets up domicile anew in the Philippines.

However, I agree with the majority opinion that certain provisions of R.A. 9189 are unconstitutional, to wit:

1. Section 17.1 of R.A. 9189, insofar as it provides that voting by mail shall be subject to the review and approval of the Joint Congressional Oversight Committee.

2. Section 18.5 of R.A. 9189, insofar as it empowers COMELEC to order the proclamation of the winning candidates for President and Vice-President where delays in the canvass of overseas votes will not affect the results of the election, considering that only Congress can proclaim the winning President and Vice-President.³⁰cräläwvirtualibräry

3. Sections 19 and 25 of R.A. 9189, insofar as they provide that the Implementing Rules and Regulations to be issued by the COMELEC are subject to the review, revision, amendment and approval of the Joint Congressional Oversight Committee.

I have discussed at length the invalidity of the provision which converts a disqualified immigrant into a qualified overseas voter by the simple expedient of executing an affidavit promising to return to the Philippines within three years from voting. It is beyond comprehension how a mere promise of a future act, which is more likely to be violated than obeyed, transforms a disqualification into a qualification.

Ascertaining, after three years, who complied with the promise and who violated it presents an administrative nightmare. I submit that the valid system is to allow overseas voting only for those Filipinos who have to return home or most probably return home because of the nature of their work abroad.

In the debates over specific provisions of R.A. 9189, we tend to overlook that the entire law has been hurriedly drafted in a form which violates the principal mandate of the Constitution on suffrage. The sovereign people have ordered Congress to provide a system which secures the sanctity and secrecy of the ballot.³¹ Instead of securing the sanctity and secrecy of the ballot, R.A. 9189 does the opposite.

The unconstitutional sections of the law have been discussed at length. The majority opinion calls for a holistic view of the law.

Careful observers of R.A. 9189 indicate that such a holistic view strengthens the invalid and highly unrealistic aspects of the entire statute.³² It does not make sense and it is highly improbable that permanent residents abroad will visit our embassies to execute affidavits promising to return here simply to exercise the right to vote in absentia in Philippine elections.

How will our embassies and consulates in the one hundred seventy eight (178) countries, island nations, and city states in the DFA list comply with their election duties within the impossibly short period provided by the law.³³cräläwvirtualibräry

How will the identities of millions of overseas Filipinos be ascertained, the temporary separated from permanent residents, their passports be examined, and their affidavits of promise to return be verified and transmitted to the thousands of precincts where the sanctions on violated promises have to be enforced. How can embassies and consulates publicize the requirements for registration at least six months before October 31, 2003 in the one hundred seventy eight (178) countries, island nations, and city states where overseas Filipinos are found?³⁴ How can they conduct exclusion and inclusion proceedings?

Despite all-out efforts of COMELEC, it has not solved the serious problem of dagdag bawas within the Philippines. Under the loose provisions of R.A. 9189, dagdag bawas is encouraged without fear of discovery, correction, and punishment of guilty parties residing abroad.

A new and entirely efficient system for ferreting out and punishing election offenses must go with the law. Only a few obvious offenses have to be cited. Among them are padded registration lists, accreditation of unqualified voters, vote-buying and vote-selling, bribery, wagering on the results of elections, double registration and multiple voting by one person, appreciation of torn, defaced, or invalid ballots, solicitation of votes and unlawful electioneering, rigging or tampering with the canvass and transmission of results, and a long list of other violations of election laws.

As observed by Professor Belinda A. Aquino,³⁵ to rush this experiment simply to keep up with the May 2003 elections, with some political calculations of its advantages to certain candidates would be creating a disservice to the Filipino overseas communities which the Voting Act has empowered to become full participants in the electoral process.

In closing, I invite attention to the exchange between Senator Joker Arroyo and Senator Edgardo Angara on the Senate Floor, where Senator Arroyo asked: Who could possibly take advantage of the expeditious handling of Senate Bill No. 2104, what we now know as R.A. 9189? Evidently, the two senators agreed that it was the administration that stood to gain the most.³⁶ It is hoped that this perceived benefit was not the reason behind the hasty enactment of the law in its current, constitutionally infirm state. However, one cannot help but wonder if the concerns and aspirations of millions of our brothers and sisters abroad were truly served by the passage of the Overseas Absentee Voting Act of 2003. The entirety of R.A. 9189 has to be re-examined. For purposes of this petition, however, I limit my opinion to the five sections of the law outlined above.

WHEREFORE, I view of the foregoing, I DISSENT from the majority opinion insofar as it upholds the constitutionality of Section 5 (d) of Republic Act No. 9189, and I vote that said Section 5(d) be declared UNCONSTITUTIONAL. However, I CONCUR with the majority opinion insofar as it declares UNCONSTITUTIONAL the portion of Section 17.1 which empowers the Joint Congressional Oversight Committee to review and approve voting by mail; and the portions of Sections 19 and 25 which empower the Joint Congressional Oversight Committee to review, revise, amend and approve the Implementing Rules and Regulations to be promulgated by the Commission on Elections. I also CONCUR with the majority opinion that Section 18.5, insofar as it empowers the Commission on Elections to proclaim the winning candidates for President and Vice-President, is UNCONSTITUTIONAL.

---

Endnotes:

¹ Constitution, Art. V, Secs. 1 and 2. In addition to qualifications, Article V also calls for a system which insures the secrecy and sanctity of the ballot.

² Constitution, Art. V, Sec. 1 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.

³ Constitution, Art. V, Sec. 2, first paragraph.

⁴ Memorandum for Petitioner, p. 6.

⁵ U.S. v. Sto. Nio, 13 Phil. 141 (1909); Arenas v. City of San Carlos, G.R. No. L-34024, 5 April 1978, 82 SCRA 318.

⁶ U.S. v. Sto. Nio, supra; Commissioner of Internal Revenue v. Filipinas Compania de Seguros, 107 Phil. 1055 (1960).

⁷ Romualdez-Marcos v. COMELEC, G.R. No. 119976, 18 September 1995, 248 SCRA 300.

⁸ Romualdez v. Regional Trial Court, G.R. No. 104960, 14 September 1993, 226 SCRA 408, cited in Papandayan v. COMELEC, G.R. No. 147909, 16 April 2002.

⁹ Baritua v. Court of Appeals, G.R. No. 100748, 3 February 1997, 267 SCRA 331.

¹⁰ G.R. No. 88831, 8 November 1990, 191 SCRA 229.

¹¹ Citing 3 C.J.S. 76.

¹² Oxford Universal Dictionary, Vol. I, pp. 961 and 1249.

¹³ Id., at p. 1855, Vol. II.

¹⁴ II Record of the Constitutional Commission: Proceedings and Debates, p. 11.

¹⁵ Id.

¹⁶ Id., at 34.

¹⁷ Id., at 35.

¹⁸ Id.; emphasis supplied.

¹⁹ Estimated Number of Overseas Filipino Workers (OFWs) and Overseas Filipinos, Memorandum for the Petitioner, Annex B.

²⁰ II Record of the Constitutional Commission: Proceedings and Debates, pp. 34-35.

²¹ S. No. 2104 on Second Reading, October 9, 2002, Records of the Senate, pp. 90-92.

²² Faypon v. Quirino, 96 Phil. 294 (1954); Nuval v. Guray, 52 Phil. 645 (1928); Koh v. Court of Appeals, G.R. No. L-40428, 17 December 1975, 70 SCRA 305; Caraballo v. Republic, 114 Phil. 991 (1962); Fule v. Court of Appeals, G.R. Nos. L-40502 & 42670, 29 November 1976, 74 SCRA 199.

²³ Id.

²⁴ Supra, note 8.

²⁵ Supra, note 7.

²⁶ Marcos, et al. v. Hon. Raul Manglapus et al., G.R. No. 88211, 15 September 1989, 177 SCRA 668.

²⁷ Supra, note 10.

²⁸ Greshams Law, Websters Seventh New Collegiate Dictionary, p. 367.

²⁹ Supra.

³⁰ Constitution, Art. VII, Sec. 4 (4).

³¹ Constitution, Art. V, Sec. 2.

³² Belinda A. Aquino, Professor of Political Science and Asian Studies at the University of Hawaii and Director of its Center for Philippine Studies has published her observations in the Philippine Inquirer, June 8, 2003 issue, page A-9.

³³ Memorandum for Petitioner, Annex B.

³⁴ Id.

³⁵ Supra, note 32.

³⁶ Supra, note 21.