2006 Nicolas Lewis v. Commission On Elections20180323 1159 Cmem5v
2006 Nicolas Lewis v. Commission On Elections20180323 1159 Cmem5v
2006 Nicolas Lewis v. Commission On Elections20180323 1159 Cmem5v
DECISION
GARCIA , J : p
Faced with the prospect of not being able to vote in the May 2004 elections owing
to the COMELEC's refusal to include them in the National Registry of Absentee Voters,
petitioner Nicolas-Lewis et al., 5 led on April 1, 2004 this petition for certiorari and
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mandamus. DHACES
A little over a week before the May 10, 2004 elections, or on April 30, 2004, the
COMELEC led a Comment, 6 therein praying for the denial of the petition. As may be
expected, petitioners were not able to register let alone vote in said elections.
On May 20, 2004, the O ce of the Solicitor General (OSG) led a Manifestation (in
Lieu of Comment), therein stating that "all quali ed overseas Filipinos, including dual
citizens who care to exercise the right of suffrage, may do so", observing, however, that the
conclusion of the 2004 elections had rendered the petition moot and academic. 7
The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the
petition moot and academic, but insofar only as petitioners' participation in such political
exercise is concerned. The broader and transcendental issue tendered or subsumed in the
petition, i.e., the propriety of allowing "duals" to participate and vote as absentee voter in
future elections, however, remains unresolved.
Observing the petitioners' and the COMELEC's respective formulations of the issues,
the same may be reduced into the question of whether or not petitioners and others who
might have meanwhile retained and/or reacquired Philippine citizenship pursuant to R.A.
9225 may vote as absentee voter under R.A. 9189.
The Court resolves the poser in the a rmative, and thereby accords merit to the
petition.
In esse, this case is all about suffrage. A quick look at the governing provisions on
the right of suffrage is, therefore, indicated.
We start off with Sections 1 and 2 of Article V of the Constitution, respectively
reading as follows:
SECTION 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disquali ed 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. . .
..
(a) Those who have lost their Filipino citizenship in accordance with
Philippine laws;
Notably, Section 5 lists those who cannot avail themselves of the absentee voting
mechanism. However, Section 5(d) of the enumeration respecting Filipino immigrants and
permanent residents in another country opens an exception and quali es the
disquali cation rule. Section 5(d) would, however, face a constitutional challenge on the
ground that, as narrated in Macalintal, it —
. . . violates Section 1, Article V of the 1987 Constitution which requires that
the voter must be a resident in the Philippines for at least one year and in the
place where he proposes to vote for at least six months immediately preceding an
election. [The challenger] cites . . . Caasi vs. Court of Appeals 9 to support his
claim [where] the Court held that a "green card" holder immigrant to the [US] is
deemed to have abandoned his domicile and residence in the Philippines.
[The challenger] further argues that Section 1, Article V of the Constitution
does not allow provisional registration or a promise by a voter to perform a
condition to be quali ed to vote in a political exercise; that the legislature should
not be allowed to circumvent the requirement of the Constitution on the right of
suffrage by providing a condition thereon which in effect amends or alters the
aforesaid residence requirement to qualify a Filipino abroad to vote. He claims
that the right of suffrage should not be granted to anyone who, on the date of the
election, does not possess the qualifications provided for by Section 1, Article V of
the Constitution. 1 0 (Words in bracket added.)
As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A.
9189 mainly on the strength of the following premises:
As nally approved into law, Section 5(d) of R.A. No. 9189 speci cally
disquali es an immigrant or permanent resident who is "recognized as such in
the host country" because immigration or permanent residence in another country
implies renunciation of one's residence in his country of origin. However, same
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Section allows an immigrant and permanent resident abroad to register as voter
for as long as he/she executes an a davit to show that he/she has not
abandoned his domicile in pursuance of the constitutional intent expressed in
Sections 1 and 2 of Article V that "all citizens of the Philippines not otherwise
disquali ed by law" must be entitled to exercise the right of suffrage and, that
Congress must establish a system for absentee voting; for otherwise, if actual,
physical residence in the Philippines is required, there is no sense for the framers
of the Constitution to mandate Congress to establish a system for absentee
voting. aEHIDT
Contrary to the claim of [the challenger], the execution of the a davit itself
is not the enabling or enfranchising act. The a davit required in Section 5(d) is
not only proof of the intention of the immigrant or permanent resident to go back
and resume residency in the Philippines, but more signi cantly, it serves as an
explicit expression that he had not in fact abandoned his domicile of origin. Thus,
it is not correct to say that the execution of the a davit under Section 5(d)
violates the Constitution that proscribes "provisional registration or a promise by
a voter to perform a condition to be qualified to vote in a political exercise." 1 1
Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress
enacted R.A. 9225 the relevant portion of which reads:
SEC. 2. Declaration of Policy. — It is hereby declared the policy of the
State that all Philippine citizens who become citizens of another country shall be
deemed not to have lost their Philippine citizenship under the conditions of this
Act.
(4) ...;
(5) That right to vote or be elected or appointed to any public
office in the Philippines cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public o ce in the
country of which they are naturalized citizens; and/or
Look at what the Constitution says — "In the place wherein they
propose to vote for at least six months immediately preceding the
election." acHDTA
Lest it be overlooked, no less than the COMELEC itself admits that the Citizenship
Retention and Re-Acquisition Act expanded the coverage of overseas absentee voting.
According to the poll body:
Considering the unison intent of the Constitution and R.A. 9189 and the expansion of
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the scope of that law with the passage of R.A. 9225, the irresistible conclusion is that
"duals" may now exercise the right of suffrage thru the absentee voting scheme and as
overseas absentee voters. R.A. 9189 defines the terms adverted to in the following wise:
"Absentee Voting" refers to the process by which quali ed citizens of the
Philippines abroad exercise their right to vote;
"Overseas Absentee Voter" refers to a citizen of the Philippines who is
quali ed to register and vote under this Act, not otherwise disquali ed by law,
who is abroad on the day of elections;
While perhaps not determinative of the issue tendered herein, we note that the
expanded thrust of R.A. 9189 extends also to what might be tag as the next generation of
"duals". This may be deduced from the inclusion of the provision on derivative citizenship in
R.A. 9225 which reads:
SEC. 4. Derivative Citizenship. — The unmarried child, whether
legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who
re-acquire Philippine citizenship upon effectivity of this Act shall be deemed
citizens of the Philippines.
WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules and so
holds that those who retain or re-acquire Philippine citizenship under Republic Act No.
9225 , the Citizenship Retention and Re-Acquisition Act of 2003 , may exercise the right to
vote under the system of absentee voting in Republic Act No. 9189 , the Overseas
Absentee Voting Act of 2003.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario and
Velasco, Jr., JJ., concur.
Footnotes
1. Also known as Overseas Absentee Voting Law or "OAVL " for short.
2. Signed by Florentino A. Tuason Jr., as then COMELEC Committee Chairman on Overseas
Absentee Voting; Rollo, p. 33.