file:macalintal vs comelec 157013 july 10, 2003 j_ austria-mar.htm

EN BANC

[G.R. No. 157013.
July 10, 2003]

ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS, HON. ALBERTO
ROMULO, in his official capacity as Executive Secretary, and HON. EMILIA T. BONCODIN,
Secretary of the Department of Budget and Management, respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for certiorari and
prohibition filed by Romulo B. Macalintal, a member of the Philippine Bar,
seeking a declaration that certain provisions of Republic Act No. 9189 (The
Overseas Absentee Voting Act of 2003)[1]
suffer from constitutional infirmity. 
Claiming that he has actual and material legal interest in the subject
matter of this case in seeing to it that public funds are properly and lawfully
used and appropriated, petitioner filed the instant petition as a taxpayer and
as a lawyer.

The Court upholds the right of petitioner to file the present
petition.

R.A. No. 9189, entitled, “An Act Providing for A System of Overseas Absentee Voting by Qualified
Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other
Purposes,” appropriates funds under Section 29
thereof which provides that a supplemental budget on the General Appropriations
Act of the year of its enactment into law shall provide for the necessary
amount to carry out its provisions. 
Taxpayers, such as herein petitioner, have the right to restrain
officials from wasting public funds through the enforcement of an
unconstitutional statute.[2]  The Court has held that they may assail the
validity of a law appropriating public funds[3]
because expenditure of public funds by an officer of the State for the purpose
of executing an unconstitutional act constitutes a misapplication of such
funds.[4]

The challenged provision of law involves a public right that
affects a great number of citizens. The Court has adopted the policy of taking
jurisdiction over cases whenever the petitioner has seriously and convincingly
presented an issue of transcendental significance to the Filipino people.  This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan
ng Pilipinas, Inc. vs. Tan,[5]
where the Court held:

Objections to taxpayers’ suit for lack of sufficient personality
standing, or interest are, however, in the main procedural matters. Considering
the importance to the public of the cases at bar, and in keeping with the
Court’s duty, under the 1987 Constitution, to determine whether or not the
other branches of government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to
them, the Court has brushed aside technicalities of procedure and has taken
cognizance of these petitions.[6]

Indeed, in this case, the Court may set aside procedural rules as
the constitutional right of suffrage of a considerable number of Filipinos is
involved.

The question of propriety of the instant petition which may
appear to be visited by the vice of prematurity as there are no ongoing
proceedings in any tribunal, board or before a government official exercising
judicial, quasi-judicial or ministerial functions as required by Rule 65 of the
Rules of Court, dims in light of the
importance of the constitutional issues raised by the petitioner.  In Tañada
vs. Angara,[7]
the Court held:

In seeking to nullify an act of the Philippine Senate on the ground
that it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but
in fact the duty of the judiciary to settle the dispute. “The question thus
posed is judicial rather than political. The duty (to adjudicate) remains to
assure that the supremacy of the Constitution is upheld.” Once a “controversy
as to the application or interpretation of constitutional provision is raised
before this Court (as in the instant case), it becomes a legal issue which the
Court is bound by constitutional mandate to decide.”

In another case of paramount impact to
the Filipino people, it has been expressed that it is illogical to await the
adverse consequences of the law in order to consider the controversy actual and
ripe for judicial resolution.[8]  In yet another case, the Court said that:

. . . despite the inhibitions pressing upon the Court when
confronted with constitutional issues, it will not hesitate to declare a law or
act invalid when it is convinced that this must be done. In arriving at this
conclusion, its only criterion will be the Constitution and God as its
conscience gives it in the light to probe its meaning and discover its purpose.
Personal motives and political considerations are irrelevancies that cannot
influence its decisions. Blandishment is as ineffectual as intimidation, for
all the awesome power of the Congress and Executive, the Court will not
hesitate “to make the hammer fall heavily,” where the acts of these
departments, or of any official, betray the people’s will as expressed in the
Constitution . . .[9]

The need to consider the constitutional issues raised before the
Court is further buttressed by the fact that it is now more than fifteen years
since the ratification of the 1987 Constitution requiring Congress to provide a
system for absentee voting by qualified Filipinos abroad.  Thus, strong reasons of public policy demand
that the Court resolves the instant petition[10]
and determine whether Congress has acted within the limits of the Constitution
or if it had gravely abused the discretion entrusted to it.[11]

The petitioner raises three principal questions:

A.      Does Section 5(d) of Rep. Act No. 9189
allowing the registration of voters who are immigrants or permanent residents
in other countries by their mere act of executing an affidavit expressing their
intention to return to the Philippines, violate the residency requirement in
Section 1 of Article V of the Constitution?

B.      Does Section 18.5 of the same law
empowering the COMELEC to proclaim the winning candidates for national offices
and party list representatives including the President and the Vice-President
violate the constitutional mandate under Section 4, Article VII of the
Constitution that the winning candidates for President and the Vice-President
shall be proclaimed as winners by Congress?

C.      May Congress, through the Joint
Congressional Oversight Committee created in Section 25 of Rep. Act No. 9189,
exercise the power to review, revise, amend, and approve the Implementing Rules
and Regulations that the Commission on Elections shall promulgate without
violating the independence of the COMELEC under Section 1, Article IX-A of the
Constitution?

The Court will resolve the questions in seriatim.

A.        Does
Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987
Constitution of the Republic of the Philippines?

Section 5(d) provides:

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

. . .     . . .       . . .

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.

Petitioner posits that Section 5(d) is
unconstitutional because 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. Petitioner cites the
ruling of the Court in Caasi vs. Court of Appeals[12]
to support his claim.  In that case,
the Court held that a “green card” holder immigrant to the United States is
deemed to have abandoned his domicile and residence in the Philippines.

Petitioner 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 qualified to vote in a political exercise;[13]  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.[14]  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.

Respondent COMELEC refrained from commenting on this issue.[15]

 

In compliance with the Resolution of the Court, the Solicitor
General filed his comment for all public respondents.  He contraposes that the constitutional
challenge to Section 5(d) must fail because of the absence of clear and
unmistakable showing that said provision of law is repugnant to the
Constitution.  He stresses:  All laws are presumed to be constitutional;
by the doctrine of separation of powers, a department of government owes a
becoming respect for the acts of the other two departments; all laws are
presumed to have adhered to constitutional limitations;  the legislature intended to enact a valid,
sensible, and just law.

In addition, the Solicitor General points out that Section 1,
Article V of the Constitution is a verbatim
reproduction of those provided for in the 1935 and the 1973 Constitutions.  Thus, he cites Co vs. Electoral Tribunal
of the House of Representatives[16]
wherein the Court held that the term “residence” has been understood to be
synonymous with “domicile” under both Constitutions.  He further argues that a person can have only
one “domicile” but he can have two residences, one permanent (the domicile) and
the other temporary;[17]
and that the definition and meaning given to the term residence likewise applies to absentee voters.  Invoking Romualdez-Marcos
vs. COMELEC[18]
which reiterates the Court’s ruling in Faypon
vs. Quirino,[19]
the Solicitor General maintains that Filipinos who are immigrants or permanent
residents abroad may have in fact never abandoned their Philippine domicile.[20]

Taking issue with the petitioner’s contention that “green card”
holders are considered to have abandoned their Philippine domicile, the
Solicitor General suggests that the Court may have to discard its ruling in Caasi vs. Court of Appeals[21] in so far as it relates to immigrants
and permanent residents in foreign countries who have executed and submitted
their affidavits conformably with Section 5(d) of  R.A. No. 9189.  He maintains that through the execution of
the requisite affidavits, the Congress of the Philippines with the concurrence
of the President of the Republic had in fact given these immigrants and
permanent residents the opportunity, pursuant to Section 2, Article V of the Constitution, to manifest that they
had in fact never abandoned their Philippine domicile; that indubitably, they
would have formally and categorically expressed the requisite intentions, i.e.,
“animus manendi” and “animus revertendi;” that Filipino immigrants and
permanent residents abroad possess the unquestionable right to exercise the
right of suffrage under Section 1, Article V of the Constitution upon approval
of their registration, conformably with R.A. No. 9189.[22]

The seed of the present controversy is the interpretation that is
given to the phrase, “qualified citizens of the Philippines abroad” as it
appears in R.A. No. 9189, to wit:

SEC. 2.  Declaration of
Policy. – It is the prime duty of the State to provide a system of honest
and orderly overseas absentee voting that upholds the secrecy and sanctity of
the ballot.  Towards this end, the State
ensures equal opportunity to all qualified citizens of the Philippines
abroad in the exercise of this fundamental right.

SEC. 3.  Definition of
Terms. – For purposes of this Act:

a)      “Absentee Voting”
refers to the process by which qualified citizens of the Philippines abroad,
exercise their right to vote;

. . .  (Emphasis supplied)

f)       “Overseas Absentee
Voter” refers to a citizen of the Philippines who is qualified to
register and vote under this Act, not otherwise disqualified by law, who is
abroad on the day of elections. 
(Emphasis supplied)

SEC. 4.  Coverage. – All
citizens of the Philippines abroad, who are not otherwise disqualified by law,
at least eighteen (18) years of age on the day of elections, may vote for
president, vice-president, senators and party-list representatives.  (Emphasis supplied)

in relation to Sections 1 and 2, Article
V of the Constitution which read:

SEC. 1.  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.

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.

. . .     . . .       . . . (Emphasis supplied)

Section 1, Article V of the Constitution specifically provides
that suffrage may be exercised by (1) all citizens of the Philippines, (2) not
otherwise disqualified by law, (3) at least eighteen years of age, (4) who are
residents in the Philippines for at least one year and in the place where they
propose to vote for at least six months immediately preceding the
election.  Under Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an
immigrant or permanent resident who is recognized as such in the host country
unless he/she executes an affidavit declaring that he/she shall resume actual
physical permanent residence in the Philippines not later than three years from
approval of his/her registration under said Act. 

Petitioner questions the rightness of the mere act of execution
of an affidavit to qualify the Filipinos abroad who are immigrants or permanent
residents, to vote.  He focuses solely on
Section 1, Article V of the Constitution in ascribing constitutional infirmity
to Section 5(d) of R.A. No. 9189, totally ignoring the
provisions of Section 2 empowering Congress to provide a system for absentee
voting by qualified Filipinos abroad.

A simple, cursory reading of Section 5(d) of R.A.
No. 9189 may indeed give the impression that it contravenes Section 1, Article
V of the Constitution. Filipino immigrants and permanent residents overseas are
perceived as having left and abandoned the Philippines to live permanently in
their host countries and therefore, a provision in the law enfranchising those
who do not possess the residency requirement of the Constitution by the mere
act of executing an affidavit expressing their intent to return to the
Philippines within a given period, risks a declaration of
unconstitutionality.  However, the risk
is more apparent than real. 

The Constitution is the fundamental and paramount law of the
nation to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered.[23]
Laws that do not conform to the Constitution shall be stricken down for being
unconstitutional.

Generally, however, all laws are presumed to be
constitutional.  In Peralta vs. COMELEC, the Court said:

. . . An act of the legislature, approved by the executive, is
presumed to be within constitutional limitations. The responsibility of
upholding the Constitution rests not on the courts alone but on the legislature
as well. The question of the validity of every statute is first determined by
the legislative department of the government itself.[24]

Thus, presumption of constitutionality of
a law must be overcome convincingly:

. . . To declare a law unconstitutional, the repugnancy of that law
to the Constitution must be clear and unequivocal, for even if a law is aimed
at the attainment of some public good, no infringement of constitutional rights
is allowed. To strike down a law there must be a clear showing that what the
fundamental law condemns or prohibits, the statute allows it to be done.[25]

As the essence of R.A. No. 9189 is to
enfranchise overseas qualified Filipinos, it behooves the Court to take a
holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189.  It is a
basic rule in constitutional construction that the Constitution should be
construed as a whole.  In Chiongbian vs. De Leon,[26]
the Court held that a constitutional provision should function to the full
extent of its substance and its terms, not by itself alone, but in conjunction
with all other provisions of that great document.  Constitutional provisions are mandatory in
character unless, either by express statement or by necessary implication, a
different intention is manifest.[27]  The intent of the Constitution may be drawn
primarily from the language of the document itself.  Should it be ambiguous, the Court may
consider the intent of its framers through their debates in the constitutional
convention.[28]

R.A. No. 9189 was enacted in obeisance to the
mandate of the first paragraph of Section 2, Article V of the Constitution that
Congress shall provide a system for voting by qualified Filipinos abroad.  It must be stressed that Section 2 does not
provide for the parameters of the exercise of legislative authority in enacting
said law.  Hence, in the absence of
restrictions, Congress is presumed to have duly exercised its function as
defined in Article VI (The Legislative Department) of the Constitution.

To put matters in their right perspective, it is necessary to
dwell first on the significance of absentee voting.  The concept of absentee voting is relatively
new.  It is viewed thus:

The method of absentee voting has been said to be completely
separable and distinct from the regular system of voting, and to be a new and
different manner of voting from that previously known, and an exception to the
customary and usual manner of voting. The
right of absentee and disabled voters to cast their ballots at an election is purely statutory; absentee voting
was unknown to, and not recognized at, the common law.

Absentee voting is an outgrowth of modern social and economic
conditions devised to accommodate those engaged in military or civil life whose
duties make it impracticable for them to attend their polling places on the day
of election, and the privilege of absentee voting may flow from constitutional
provisions or be conferred by
statutes, existing in some jurisdictions, which provide in varying terms
for the casting and reception of ballots by soldiers and sailors or other
qualified voters absent on election day from the district or precinct of their
residence.

Such statutes are regarded as conferring a privilege and not a
right, or an absolute right. When the legislature chooses to grant the right
by statute, it must operate with equality among all the class to which it is
granted; but statutes of this nature may be limited in their application to
particular types of elections. The
statutes should be construed in the light of any constitutional provisions
affecting registration and elections, and with due regard to their
texts prior to amendment and to predecessor statutes and the decisions
thereunder; they should also be
construed in the light of the circumstances under which they were enacted;
and so as to carry out the objects thereof, if this can be done without doing
violence to their provisions and mandates. Further, in passing on statutes regulating absentee voting, the court should
look to the whole and every part of the election laws, the intent of the entire
plan, and reasons and spirit of their adoption, and try to give effect to every
portion thereof.[29]
(Emphasis supplied)

Ordinarily, an absentee is not a resident and vice versa; a
person cannot be at the same time, both a resident and an absentee.[30]
However, under our election laws and the countless pronouncements of the Court
pertaining to elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with domicile.

In Romualdez-Marcos,[31] the Court enunciated:

Article 50 of the Civil Code decrees that “[f]or the exercise of
civil rights and the fulfillment of civil obligations, the domicile of natural
persons is their place of habitual residence.” 
In Ong vs. Republic, this
court took the concept of domicile to mean an individual’s “permanent home,” “a
place to which, whenever absent for business or for pleasure, one intends to
return, and depends on facts and circumstances in the sense that they disclose
intent.”  Based on the foregoing,
domicile includes the twin elements of “the fact of residing or physical
presence in a fixed place” and animus
manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual
relationship of an individual to a certain place.  It is the physical presence of a person in a
given area, community or country.  The
essential distinction between residence and domicile in law is that residence
involves the intent to leave when the purpose for which the resident has taken
up his abode ends.  One may seek a place
for purposes such as pleasure, business, or health.  If a person’s intent be to remain, it becomes
his domicile; if his intent is to leave as soon as his purpose is established
it is residence. It is thus, quite perfectly normal for an individual to have
different residences in various places. 
However, a person can only have a
single domicile, unless, for various reasons, he successfully abandons his
domicile in favor of another domicile of choice.  In Uytengsu
vs. Republic, we laid this distinction quite clearly:

“There is a difference between domicile and residence.  ‘Residence’ is used to indicate a place of
abode, whether permanent or temporary; ‘domicile’ denotes a fixed permanent
residence to which, when absent, one has the 
intention of returning.  A man may
have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the
intention to remain for an unlimited time. A man can have but one domicile
for the same purpose at any time, but he may have numerous places of residence.
His place of residence is generally his place of domicile, but it is not by any
means necessarily so since no length of residence without intention of
remaining will constitute domicile.”

For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws.  As these concepts have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election purposes is used
synonymously with domicile.[32]  (Emphasis
supplied)

Aware of the domiciliary legal tie that links an overseas
Filipino to his residence in this country, the framers of the Constitution
considered the circumstances that impelled them to require Congress to
establish a system for overseas absentee voting, thus:

MR. OPLE. With respect to Section 1, it is not clear whether the
right of suffrage, which here has a residential restriction, is not denied to
citizens temporarily residing or working abroad. Based on the statistics of
several government agencies, there ought to be about two million such Filipinos
at this time. Commissioner Bernas had earlier pointed out that these provisions
are really lifted from the two previous Constitutions of 1935 and 1973, with
the exception of the last paragraph. They could not therefore have foreseen at
that time the phenomenon now described as the Filipino labor force explosion
overseas.

According to government data, there are now about 600,000 contract
workers and employees, and although the major portions of these expatriate
communities of workers are to be found in the Middle East, they are scattered
in 177 countries in the world.

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 which says:

Suffrage shall be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or over, 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 preceding the election.

I, therefore, ask the Committee whether at the proper time they
might entertain an amendment that will make this exercise of the right to vote
abroad for Filipino citizens an effective, rather than merely a nominal right
under this proposed Constitution.

FR. BERNAS. Certainly, the Committee will consider that.  But more than just saying that, I would like
to make a comment on the meaning of “residence” in the Constitution because I
think it is a concept that has been discussed in various decisions of the
Supreme Court, particularly in the case of Faypon
vs. Quirino, a 1954 case which dealt precisely with the meaning of
“residence” in the Election Law.  Allow
me to quote:

A citizen may leave the place of his birth to look for greener
pastures, as the saying goes, to improve his lot and that, of course, includes
study in other places, practice of his avocation, reengaging in business.  When an election is to be held, the citizen
who left his birthplace to improve his lot may decide to return to his native
town, to cast his ballot, but for professional or business reasons, or for any
other reason, he may not absent himself from the place of his professional or
business activities.

So, they are here registered as voters as he has the qualifications
to be one, and is not willing to give up or lose the opportunity to choose the
officials who are to run the government especially in national elections.  Despite such registration, the animus revertendi to his home, to his
domicile or residence of origin has not forsaken him.

This may be the explanation why the registration of a voter in a
place other than his residence of origin has not been deemed sufficient to
consider abandonment or loss of such residence of origin.

In other words, “residence” 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 a 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.

MR. OPLE.  Thank you for
citing the jurisprudence.

It gives me scant comfort thinking of about two million Filipinos
who should enjoy the right of suffrage, at least a substantial segment of these
overseas Filipino communities.  The
Committee, of course, is aware that when this Article of the Constitution
explicitly and unequivocally extends the right of effective suffrage to
Filipinos abroad, this will call for a logistical exercise of global
proportions.  In effect, this will require
budgetary and administrative commitments on the part of the Philippine
government, mainly through the COMELEC and the Ministry of Foreign Affairs, and
perhaps, a more extensive elaboration of this mechanism that will be put in
place to make effective the right to vote. 
Therefore, seeking shelter in
some wise jurisprudence of the past may not be sufficient to meet the demands
of the right of suffrage for Filipinos abroad that I have
mentioned.  But I want to thank the
Committee for saying that an amendment to this effect may be entertained at the
proper time.  . . .     . . .    
. . .  [33]
(Emphasis supplied)

Thus, the Constitutional Commission recognized the fact that
while millions of Filipinos reside abroad principally for economic reasons and
hence they contribute in no small measure to the economic uplift of this
country, their voices are marginal insofar as the choice of this country’s
leaders is concerned.

The Constitutional Commission realized that under the laws then
existing and considering the novelty of the system of absentee voting in this
jurisdiction, vesting overseas Filipinos with the right to vote would spawn
constitutional problems especially because the Constitution itself provides for
the residency requirement of voters:

MR. REGALADO.  Before I act
on that, may I inquire from Commissioner Monsod if the term “absentee voting”
also includes transient voting; meaning, those who are, let us say, studying in
Manila need not go back to their places of registration, for instance, in
Mindanao, to cast their votes.

MR. MONSOD.  I think our
provision is for absentee voting by Filipinos abroad.

MR. REGALADO.  How about
those people who cannot go back to the places where they are registered?

MR. MONSOD.  Under the
present Election Code, there are provisions for allowing students and military
people who are temporarily in another place to register and vote. I believe
that those situations can be covered by the Omnibus Election Code. The
reason we want absentee voting to be in the Constitution as a mandate to the
legislature is that there could be inconsistency on the residence rule if it is
just a question of legislation by Congress. So, by allowing it and saying that this is possible, then legislation
can take care of the rest.[34]
(Emphasis supplied)

Thus, Section 2, Article V of the
Constitution came into being to remove any doubt as to the inapplicability of
the residency requirement in Section 1. 
It is precisely to avoid any problems that could impede the implementation
of its pursuit to enfranchise the largest number of qualified Filipinos who are
not in the Philippines that the Constitutional Commission explicitly mandated
Congress to provide a system for overseas absentee voting.

The discussion of the Constitutional Commission on the effect of the
residency requirement prescribed by Section 1, Article V of the Constitution on
the proposed system of absentee voting for qualified Filipinos abroad is
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 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 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.  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 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.

THE PRESIDENT.  Just to
clarify, Commissioner Monsod’s 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.[35]  (Emphasis supplied)

Clearly therefrom, the intent of the Constitutional Commission is
to entrust to Congress the responsibility of devising a system of absentee
voting.  The qualifications of voters as
stated in Section 1 shall remain except for the residency requirement. This is
in fact the reason why the Constitutional Commission opted for the term qualified Filipinos abroad with respect
to the system of absentee voting that Congress should draw up.  As stressed by Commissioner Monsod, by the
use of the adjective qualified with
respect to Filipinos abroad, the assumption is that they have the
“qualifications and none of the disqualifications to vote.”  In fine-tuning the provision on absentee
voting, the Constitutional Commission discussed how the system should work:

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.  Madam
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.

MR. SUAREZ. I thank the Commissioner for his further clarification.
Precisely, we need this clarification on record.

MR. MONSOD.  Madam President,
to clarify what we mean by “temporarily abroad,” it need not be on very
short trips. One can be 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 one’s name, in a registry list in the
embassy abroad. That is still possible under the system.

FR. BERNAS. Madam President, just one clarification if Commissioner
Monsod agrees with this.

Suppose we have a situation of a child of a diplomatic officer who
reaches the voting age while living abroad and he has never registered here.
Where will he register? Will he be a registered voter of a certain locality in
the Philippines?

MR. MONSOD.  Yes, it is
possible that the system will enable that child to comply with the registration
requirements in an embassy in the United States and his name is then entered in
the official registration book in Angeles City, for instance.

FR. BERNAS.  In other words,
he is not a registered voter of Los Angeles, but a registered voter of a
locality here.

MR. MONSOD.  That is right.
He does not have to come home to the Philippines to comply with the
registration procedure here.

FR. BERNAS.  So, he does not
have to come home.

MR. BENGZON.  Madam
President, the Floor Leader wishes to inquire if there are more clarifications
needed from the body.

Also, the Floor Leader is happy to announce that there are no
more registered Commissioners to propose amendments.  So I move that we close the period of
amendments.  [36]  (Emphasis supplied)

It is clear from these discussions of the members of the
Constitutional Commission that they intended to enfranchise as much as possible
all Filipino citizens abroad who have
not abandoned their domicile of origin. 
The Commission even intended to extend to young Filipinos who reach
voting age abroad whose parents’ domicile of origin is in the Philippines, and
consider them qualified as voters for the first time.

It is in pursuance of that intention that the Commission provided
for Section 2 immediately after the residency requirement of Section 1.  By the doctrine of necessary implication in
statutory construction, which may be applied in construing constitutional provisions,[37]
the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual
residency requirement of Section 1 with respect to qualified Filipinos
abroad.  The same Commission has in
effect declared that qualified Filipinos who are not in the Philippines may be
allowed to vote even though they do not satisfy the residency requirement in
Section 1, Article V of the Constitution.

That Section 2 of Article V of the Constitution is an exception
to the residency requirement found in Section 1 of the same Article was in fact
the subject of debate when Senate Bill No. 2104, which became R.A.
No. 9189, was deliberated upon on the Senate floor, thus:

Senator Arroyo. Mr.
President, this bill should be looked into in relation to the constitutional
provisions. I think the sponsor and I would agree that the Constitution is
supreme in any statute that we may enact.

Let me read Section 1, Article V, of the Constitution entitled,
“Suffrage.” It says:

Section 1.  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.

Now, Mr. President, the Constitution says, “who shall have resided
in the Philippines.”  They are permanent
immigrants.  They have changed residence
so they are barred under the Constitution. 
This is why I asked whether this committee amendment which in fact does
not alter the original text of the bill will have any effect on this?

Senator Angara. Good
question, Mr. President.  And this has
been asked in various fora.  This is in
compliance with the Constitution.  One,
the interpretation here of “residence” is synonymous with “domicile.”

As the gentleman and I know, Mr. President, “domicile” is the
intent to return to one’s home. And
the fact that a Filipino may have been physically absent from the Philippines
and may be physically a resident of the United States, for example, but has a
clear intent to return to the Philippines, will make him qualified as a
resident of the Philippines under this law.

This is consistent, Mr. President, with the constitutional mandate
that we – that Congress – must provide a franchise to overseas Filipinos.

If we read the Constitution and the suffrage principle
literally as demanding physical presence, then there is no way we can provide
for offshore voting to our offshore kababayan, Mr. President.

Senator Arroyo.  Mr. President, when the Constitution says, in
Section 2 of Article V, it reads: “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.”

The key to this whole exercise, Mr. President, is
“qualified.” In other words, anything that we may do or say in granting our
compatriots abroad must be anchored on the proposition that they are qualified.
Absent the qualification, they cannot vote. And “residents” (sic) is a
qualification.

I will lose votes here from permanent residents so-called
“green-card holders”, but the Constitution is the Constitution.  We cannot compromise on this. The Senate
cannot be a party to something that would affect or impair the Constitution.

Look at what the Constitution says – “In the place wherein they
propose to vote for at least six months immediately preceding the election.”

Mr. President, all of us here have run (sic) for office.

I live in Makati.  My
neighbor is Pateros where Senator Cayetano lives. We are separated only by a
creek.  But one who votes in Makati
cannot vote in Pateros unless he resides in Pateros for six months. That is how
restrictive our Constitution is.  I am
not talking even about the Election Code. I am talking about the Constitution.

As I have said, if a voter in Makati would want to vote in Pateros,
yes, he may do so. But he must do so, make the transfer six months before the
election, otherwise, he is not qualified to vote.

That is why I am raising this point because I think we have a
fundamental difference here.

Senator Angara.  It is a good point to raise, Mr.
President.  But it is a point already
well-debated even in the constitutional commission of 1986.  And
the reason Section 2 of Article V was placed immediately after the
six-month/one-year residency requirement is to demonstrate unmistakably that
Section 2 which authorizes absentee voting is an exception to the
six-month/one-year residency requirement.  That is the first principle, Mr. President,
that one must remember.

The second reason, Mr. President, is that under our jurisprudence –
and I think this is so well-entrenched that one need not argue about it – “residency”
has been interpreted as synonymous with “domicile.”

But the third more practical reason, Mr. President, is, if we
follow the interpretation of the gentleman, then it is legally and
constitutionally impossible to give a franchise to vote to overseas Filipinos
who do not physically live in the country, which is quite ridiculous because
that is exactly the whole point of this exercise – to enfranchise them and
empower them to vote.  [38]  (Emphasis supplied)

Accordingly, Section 4 of R.A. No. 9189
provides for the coverage of the absentee voting process, to wit:

SEC. 4.  Coverage. –
All citizens of the Philippines abroad, who are not otherwise disqualified by
law, at least eighteen (18) years of age on the day of elections, may vote for
president, vice-president, senators and party-list representatives.

which does not require physical residency
in the Philippines;  and Section 5 of the
assailed law which enumerates those who are disqualified, to wit:

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

a)      Those who have lost
their Filipino citizenship in accordance with Philippine laws;

b)      Those who have
expressly renounced their Philippine citizenship and who have pledged
allegiance to a foreign country;

c)      Those who have
committed and are convicted in a final judgment by a court or tribunal of an
offense punishable by imprisonment of not less than one (1) year, including
those who have committed and been found guilty of Disloyalty as defined under
Article 137 of the Revised Penal Code, such disability not having been
removed by plenary pardon or amnesty: Provided, however, That any
person disqualified to vote under this subsection shall automatically acquire
the right to vote upon expiration of five (5) years after service of sentence; Provided,
further, That the Commission may take cognizance of final judgments
issued by foreign courts or tribunals only on the basis of reciprocity and
subject to the formalities and processes prescribed by the Rules of Court
on  execution of judgments;

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.

e)      Any citizen of the
Philippines abroad previously declared insane or incompetent by competent
authority in the Philippines or abroad, as verified by the Philippine
embassies, consulates or foreign service establishments concerned, unless such
competent authority subsequently certifies that such person is no longer insane
or incompetent.

As finally approved into law, Section 5(d) of R.A.
No. 9189 specifically disqualifies 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 Section allows an immigrant and permanent
resident abroad to register as voter for as long as he/she executes an
affidavit 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 disqualified 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. 

Contrary to the claim of petitioner, the execution of the
affidavit itself is not the enabling or enfranchising act. The affidavit
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
significantly, 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 affidavit 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.”

To repeat, the affidavit is required of immigrants and permanent
residents abroad because by their status in
their host countries, they are presumed to have relinquished their intent
to return to this country; thus, without the affidavit, the presumption of
abandonment of Philippine domicile shall remain.

Further perusal of the transcripts of the Senate proceedings
discloses another reason why the Senate required the execution of said
affidavit.  It wanted the affiant to
exercise the option to return or to express his intention to return to his
domicile of origin and not to preempt that choice by legislation.  Thus:

Senator Villar.  Yes, we are going back.

It states that: “For Filipino immigrants and those who have
acquired permanent resident status abroad,” a requirement for the registration
is the submission of “a Sworn Declaration of Intent to Return duly sworn before
any Philippine embassy or consulate official authorized to administer oath…”

Mr. President, may we know the rationale of this provision? Is the
purpose of this Sworn Declaration to include only those who have the intention
of returning to be qualified to exercise the right of suffrage? What if the
Filipino immigrant has no purpose of returning? Is he automatically disbarred
from exercising this right to suffrage?

Senator Angara.  The rationale for this, Mr. President, is
that we want to be expansive and all-inclusive in this law. That as long as
he is a Filipino, no matter whether he is a green-card holder in the U.S. or
not, he will be authorized to vote. 
But if he is already a green-card holder, that means he has acquired
permanent residency in the United States, then he must indicate an intention to
return. This is what makes for the definition of “domicile.”   And to acquire the vote, we thought that we
would require the immigrants and the green-card holders . . . Mr. President,
the three administration senators are leaving, maybe we may ask for a vote [Laughter].

Senator Villar.  For a merienda, Mr. President.

Senator Angara.  Mr. President, going back to the business
at hand.  The rationale for the requirement that an immigrant or a green-card
holder should file an affidavit that he will go back to the Philippines is
that, if he is already an immigrant or a green-card holder, that means he may
not return to the country any more and that contradicts the definition of
“domicile” under the law.

But what we are
trying to do here, Mr. President, is really provide the choice to the voter.  The voter, after consulting his lawyer or
after deliberation within the family, may decide “No, I think we are risking
our permanent status in the United States if we file an affidavit that we want
to go back.”  But we want to give him the opportunity to make that decision.
We do not want to make that decision for him. [39]  (Emphasis supplied)

The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified
to run for any elective office finds no application to the present case because
the Caasi case did not, for obvious reasons, consider the absentee
voting rights of Filipinos who are immigrants and permanent residents in their
host countries.

In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be considered as a “qualified citizen
of the Philippines abroad” upon fulfillment of the requirements of registration
under the new law for the purpose of exercising their right of suffrage.

It must be emphasized that Section 5(d) does not only require an
affidavit or a promise to “resume actual physical permanent residence in the
Philippines not later than three years from approval of his/her registration,”
the Filipinos abroad must also declare that they have not applied for
citizenship in another country.  Thus,
they must return to the Philippines; otherwise, their
failure to return “shall be cause for the removal” of their names “from
the National Registry of Absentee Voters and his/her permanent disqualification
to vote in absentia.”

Thus, Congress crafted a process of registration by which a
Filipino voter permanently residing abroad who is at least eighteen years old,
not otherwise disqualified by law, who
has not relinquished Philippine citizenship and who has not actually
abandoned his/her intentions to return to his/her domicile of origin, the
Philippines, is allowed to register and vote in the Philippine embassy,
consulate or other foreign service establishments of the place which has
jurisdiction over the country where he/she has indicated his/her address for
purposes of the elections, while providing for safeguards to a clean election.

Thus, Section 11 of R.A. No. 9189 provides:

SEC. 11.  Procedure for
Application to Vote in Absentia. –

11.1.  Every qualified citizen
of the Philippines abroad whose application for registration has been approved,
including those previously registered under Republic Act No. 8189, shall, in
every national election, file with the officer of the embassy, consulate or
other foreign service establishment authorized by the Commission, a sworn
written application to vote in a form prescribed by the Commission.  The authorized officer of such embassy,
consulate or other foreign service establishment shall transmit to the
Commission the said application to vote within five (5) days from receipt
thereof.  The application form shall be
accomplished in triplicate and submitted together with the photocopy of his/her
overseas absentee voter certificate of registration.

11.2.  Every application to
vote in absentia may be done personally at, or by mail to, the embassy,
consulate or foreign service establishment, which has jurisdiction over the
country where he/she has indicated his/her address for purposes of the
elections.

11.3.  Consular and diplomatic
services rendered in connection with the overseas absentee voting processes
shall be made available at no cost to the overseas absentee voter.

Contrary to petitioner’s claim that Section 5(d) circumvents the
Constitution, Congress enacted the law prescribing a system of overseas
absentee voting in compliance with the constitutional mandate.  Such mandate expressly requires that Congress
provide a system of absentee voting that necessarily presupposes that
the “qualified citizen of the Philippines abroad” is not physically present in
the country.  The provisions of Sections
5(d) and 11 are components of the system of overseas absentee voting
established by R.A. No. 9189. 
The qualified Filipino abroad who executed the affidavit is deemed to
have retained his domicile in the Philippines. 
He is presumed not to have lost his domicile by his physical absence
from this country.  His having become an
immigrant or permanent resident of his host country does not necessarily imply
an abandonment of his intention to return to his domicile of origin, the
Philippines. Therefore, under the law, he must be given the opportunity to
express that he has not actually abandoned his domicile in the Philippines by
executing the affidavit required by Sections 5(d) and 8(c) of the law.

Petitioner’s speculative apprehension that the implementation of
Section 5(d) would affect the credibility of the elections is insignificant as
what is important is to ensure that all those who possess the qualifications to
vote on the date of the election are given the opportunity and permitted to
freely do so.  The COMELEC and the
Department of Foreign Affairs have enough resources and talents to ensure the
integrity and credibility of any election conducted pursuant to R.A.
No. 9189.

As to the eventuality that the Filipino abroad would renege on
his undertaking to return to the Philippines, the penalty of perpetual
disenfranchisement provided for by Section 5(d) would suffice to serve as
deterrence to non-compliance with his/her undertaking under the affidavit.

Petitioner argues that
should a sizable number of “immigrants” renege on their promise to return, the
result of the elections would be affected and could even be a ground to contest
the proclamation of the winning candidates and cause further confusion and
doubt on the integrity of the results of the election.  Indeed, the probability that after an
immigrant has exercised the right to vote, he shall opt to remain in his host
country beyond the third year from the execution of the affidavit, is not
farfetched.  However, it is not for this
Court to determine the wisdom of a legislative exercise.  As expressed in Tañada vs. Tuvera,[40]
the Court is not called upon to rule on the wisdom of the law or to repeal it
or modify it if we find it impractical.

Congress itself was conscious of said probability and in fact, it
has addressed the expected problem. 
Section 5(d) itself provides for a deterrence which is that the Filipino
who fails to return as promised stands to lose his right of suffrage.  Under Section 9, should a registered overseas
absentee voter fail to vote for two consecutive national elections, his name
may be ordered removed from the National Registry of Overseas Absentee Voters.

Other serious legal questions that may be raised would be: what
happens to the votes cast by the qualified voters abroad who were not able to
return within three years as promised? 
What is the effect on the votes cast by the non-returnees in favor of
the winning candidates?  The votes cast
by qualified Filipinos abroad who failed to return within three years shall not
be invalidated because they were qualified to vote on the date of the
elections, but their failure to return shall be cause for the removal of the
names of the immigrants or permanent residents from the National Registry of
Absentee Voters and their permanent disqualification to vote in absentia.

In fine, considering the underlying intent of the Constitution,
the Court does not find Section 5(d) of R.A. No. 9189 as
constitutionally defective.

B.        Is
Section 18.5 of R.A. No. 9189 in relation to Section 4 of the
same Act in contravention of Section 4, Article VII of the Constitution?

Section 4 of R.A. No. 9189 provides that the
overseas absentee voter may vote for president, vice-president, senators and
party-list representatives.

Section 18.5 of the same Act provides:

SEC. 18.  On-Site Counting
and Canvassing. –

. . .     . . .       . . .

18. 5  The canvass of votes
shall not cause the 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, in which events,
factors and circumstances are beyond the control or influence of the
Commission.  (Emphasis supplied)

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to order the proclamation
of winning candidates insofar as it affects the canvass of votes and
proclamation of winning candidates for president and vice-president, is
unconstitutional because it violates the following provisions of paragraph 4,
Section 4 of Article VII of the Constitution:

SEC. 4 . . .

The returns of every election for President and Vice-President,
duly certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate.  Upon receipt of the certificates of canvass,
the President of the Senate shall, not later than thirty days after the day of
the election, open all the certificates in the presence of the Senate and the
House of Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the manner
provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed
elected, but in case two or more shall have an equal and highest number of
votes, one of them shall forthwith be chosen by the vote of a majority of all
the Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the
certificates.

. . .

which gives to Congress the duty to
canvass the votes and proclaim the winning candidates for president and
vice-president.

The Solicitor General asserts that this provision must be harmonized
with paragraph 4, Section 4, Article VII of the Constitution and should be
taken to mean that COMELEC can only proclaim the winning Senators and
party-list representatives but not the President and Vice-President.[41]

Respondent COMELEC has no comment on the matter.

Indeed, the phrase, proclamation
of winning candidates, in Section 18.5 of R.A. No. 9189
is far too sweeping that it necessarily includes the proclamation of the
winning candidates for the presidency and the vice-presidency.

Section 18.5 of R.A. No. 9189 appears to be
repugnant to Section 4, Article VII of the Constitution only insofar as said
Section totally disregarded the authority given to Congress by the Constitution
to proclaim the winning candidates for the positions of president and
vice-president.

In addition, the Court notes that Section 18.4 of the law, to
wit:

18.4.  . . .  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,  . . . [Emphasis
supplied]

clashes with paragraph 4, Section 4,
Article VII of the Constitution  which
provides that the returns of every election for President and Vice-President
shall be certified by the board of canvassers to Congress.

Congress could not have allowed the COMELEC to usurp a power that
constitutionally belongs to it or, as aptly stated by petitioner, to encroach
“on the power of Congress to canvass the votes for president and vice-president
and the power to proclaim the winners for the said positions.”  The provisions of the Constitution as the
fundamental law of the land should be read as part of The Overseas Absentee Voting Act of 2003 and
hence, the canvassing of the votes and the proclamation of the winning
candidates for president and vice-president for the entire nation must remain
in the hands of Congress.

C.        Are
Sections 19 and 25 of R.A. No. 9189 in violation of Section
1, Article IX-A of the Constitution?

Petitioner avers that Sections 19 and 25 of R.A.
No. 9189 violate Article IX-A (Common Provisions) of the Constitution, to wit:

Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission on Audit.  (Emphasis supplied)

He submits that the creation of the Joint
Congressional Oversight Committee with the power to review, revise, amend and
approve the Implementing Rules and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC
which, as a constitutional body, is not under the control of either the
executive or legislative departments of government; that only the COMELEC
itself can promulgate rules and regulations which may be changed or revised
only by the majority of its members; and that should the rules promulgated by
the COMELEC violate any law, it is the Court that has the power to review the
same via the petition of any interested party, including the legislators.

It is only on this question that respondent COMELEC submitted its
Comment.  It agrees with the petitioner
that Sections 19 and 25 of R.A. No. 9189 are
unconstitutional.  Like the petitioner,
respondent COMELEC anchors its claim of unconstitutionality of said Sections
upon Section 1, Article IX-A of the Constitution providing for the independence
of the constitutional commissions such as the COMELEC.  It asserts that its power to formulate rules
and regulations has been upheld in Gallardo
vs. Tabamo, Jr.[42]
where this Court held that the power of the COMELEC to formulate rules and
regulations is implicit in its power to implement regulations under Section
2(1) of Article IX-C[43]
of the Constitution.  COMELEC joins the
petitioner in asserting that as an independent constitutional body, it may not
be subject to interference by any government instrumentality and that only this
Court may review COMELEC rules and only in cases of grave abuse of discretion.

The COMELEC adds, however, that another provision, vis-à-vis its rule-making power, to wit:

SEC. 17.  Voting by Mail. –

17.1.  For the May, 2004
elections, the Commission shall authorize voting by mail in not more than three
(3) countries, subject to the approval
of the Congressional Oversight Committee. 
Voting by mail may be allowed in countries that satisfy the following
conditions:

a)           Where the mailing
system is fairly well-developed and secure to prevent occasion for fraud;

b)           Where there
exists a technically established identification system that would preclude
multiple or proxy voting; and

c)           Where the system
of reception and custody of mailed ballots in the embassies, consulates and
other foreign service establishments concerned are adequate and well-secured.

Thereafter, voting by mail in any country shall be allowed only
upon review and approval of the Joint Congressional Oversight Committee.

. . .     . . .       . . . (Emphasis supplied)

is likewise unconstitutional as it
violates Section 1, Article IX-A mandating the independence of constitutional
commissions.

The Solicitor General takes exception to his prefatory statement
that the constitutional challenge must fail and agrees with the petitioner that
Sections 19 and 25 are invalid and unconstitutional on the ground that there is
nothing in Article VI of the Constitution on Legislative Department that would
as much as imply that Congress has concurrent power to enforce and administer
election laws with the COMELEC; and by the principles of exclusio unius est exclusio alterius and expressum facit cessare tacitum, the constitutionally enumerated
powers of Congress circumscribe its authority to the exclusion of all others.

The parties are unanimous in claiming that Sections 19, 25 and
portions of Section 17.1 are unconstitutional.  Thus, there is no actual issue forged on this
question raised by petitioner.

However, the Court finds it expedient to expound on the role of
Congress through the Joint Congressional Oversight Committee (JCOC) vis-à-vis
the independence of the COMELEC, as a constitutional body.

R.A. No. 9189 created the JCOC, as follows:

SEC. 25. Joint Congressional
Oversight Committee. – A Joint Congressional Oversight Committee is hereby
created, composed of the Chairman of the Senate Committee on Constitutional
Amendments, Revision of Codes and Laws, and seven (7) other Senators designated
by the Senate President, and the Chairman of the House Committee on Suffrage
and Electoral Reforms, and seven (7) other Members of the House of
Representatives designated by the Speaker of the House of Representatives: Provided, That, of the seven (7) members
to be designated by each House of Congress, four (4) should come from the
majority and the remaining three (3) from the minority.

The Joint Congressional Oversight Committee shall have the power
to monitor and evaluate the implementation of this Act. It shall review,
revise, amend and approve the Implementing Rules and Regulations promulgated by
the Commission.  (Emphasis supplied)

SEC. 19.  Authority of the Commission to Promulgate Rules.
– The Commission shall issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty (60) days from the
effectivity of this Act.  The Implementing Rules and Regulations
shall be submitted to the Joint Congressional Oversight Committee created by
virtue of this Act for prior approval.

. . .     . . .       . . . 
(Emphasis supplied)

Composed of Senators and Members of the
House of Representatives, the Joint Congressional Oversight Committee (JCOC) is
a purely legislative body.  There is no
question that the authority of Congress to “monitor and evaluate the
implementation” of R.A. No. 9189 is geared towards possible
amendments or revision of the law itself and thus, may be performed in aid of
its legislation.

However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the following functions: (a) to
“review, revise, amend and approve the Implementing Rules and Regulations”
(IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to the
approval of the JCOC [Section 17.1], the voting by mail in not more than three
countries for the May 2004 elections and in any country determined by COMELEC.

The ambit of legislative power under Article VI of the
Constitution is circumscribed by other constitutional provisions.  One such provision is Section 1 of Article
IX-A of the 1987 Constitution ordaining that constitutional commissions such as
the COMELEC shall be “independent.”

Interpreting Section 1, Article X of the 1935 Constitution
providing that there shall be an independent
COMELEC, the Court has held that “[w]hatever may be the nature of the
functions of the Commission on Elections, the fact is that the framers of the
Constitution wanted it to be independent from the other departments of the Government.”[44]
In an earlier case, the Court elucidated:

The Commission on Elections is a constitutional body. It is
intended to play a distinct and important part in our scheme of government. In
the discharge of its functions, it should not be hampered with restrictions
that would be fully warranted in the case of a less responsible
organization.  The Commission may err, so
may this court also. It should be allowed
considerable latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was created – free, orderly
and honest elections.  We may not
agree fully with its choice of means, but unless these are clearly illegal or
constitute gross abuse of discretion, this court should not interfere. Politics
is a practical matter, and political questions must be dealt with realistically
– not from the standpoint of pure theory. 
The Commission on Elections, because of its fact-finding facilities, its
contacts with political strategists, and its knowledge derived from actual
experience in dealing with political controversies, is in a peculiarly
advantageous position to decide complex political questions.  [45]  (Emphasis supplied)

The Court has no general powers of supervision over COMELEC which
is an independent body “except those specifically granted by the Constitution,”
that is, to review its decisions, orders and rulings.[46]  In the same vein, it is not correct to hold
that because of its recognized extensive legislative power to enact election
laws, Congress may intrude into the independence of the COMELEC by exercising
supervisory powers over its rule-making authority.

By virtue of Section 19 of R.A. No. 9189,
Congress has empowered the COMELEC to “issue the necessary rules and
regulations to effectively implement the provisions of this Act within sixty
days from the effectivity of this Act.” 
This provision of law follows the usual procedure in drafting rules and
regulations to implement a law – the legislature grants an administrative
agency the authority to craft the rules and regulations implementing the law it
has enacted, in recognition of the administrative expertise of that agency in
its particular field of operation.[47]  Once a law is enacted and approved, the
legislative function is deemed accomplished and complete.  The legislative function may spring back to
Congress relative to the same law only if that body deems it proper to review,
amend and revise the law, but certainly not to approve, review, revise and
amend the IRR of the COMELEC.

By vesting itself with the powers to approve, review, amend, and
revise the IRR for The Overseas
Absentee Voting Act of 2003, Congress went beyond the scope of its
constitutional authority. Congress trampled upon the constitutional mandate of
independence of the COMELEC.  Under such
a situation, the Court is left with no option but to withdraw from its usual
reticence in declaring a provision of law unconstitutional.

The second sentence of the first paragraph of Section 19 stating
that “[t]he Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for prior
approval,” and the second sentence of the second paragraph of Section 25
stating that “[i]t shall review, revise, amend and approve the Implementing
Rules and Regulations promulgated by the Commission,” whereby Congress, in both
provisions, arrogates unto itself a function not specifically vested by the
Constitution, should be stricken out of the subject statute for constitutional
infirmity.  Both provisions brazenly
violate the mandate on the independence of the COMELEC.

Similarly, the phrase, “subject to the approval of the
Congressional Oversight Committee” in the first sentence of Section 17.1 which
empowers the Commission to authorize voting by mail in not more than three
countries for the May, 2004 elections; and the phrase, “only upon review and
approval of the Joint Congressional Oversight Committee” found in the second
paragraph of the same section are unconstitutional as they require review and
approval of voting by mail in any country after the 2004 elections.  Congress may not confer upon itself the
authority to approve or disapprove the countries wherein voting by mail shall
be allowed, as determined by the COMELEC pursuant to the conditions provided
for in Section 17.1 of R.A. No. 9189.[48]  Otherwise, Congress would overstep the bounds
of its constitutional mandate and intrude into the independence of the COMELEC.

During the deliberations, all the members of the Court agreed to adopt
the separate opinion of Justice Reynato S. Puno as part of the ponencia on the
unconstitutionality of Sections 17.1, 19 and 25 of R.A. No.
9189 insofar as they relate to the creation of and the powers given to the
Joint Congressional Oversight Committee.

WHEREFORE, the petition is partly GRANTED.  The following portions of R.A.
No. 9189 are declared VOID for being UNCONSTITUTIONAL:

a)      The phrase in the first sentence of the
first paragraph of Section 17.1, to wit: 
“subject to the approval of the Joint Congressional Oversight
Committee;”

b)      The portion of the last paragraph of
Section 17.1, to wit:  “only upon
review and approval of the Joint Congressional Oversight Committee;”

c)      The second sentence of the first paragraph
of Section 19, to wit:  “The Implementing
Rules and Regulations shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval;” and

d)      The second sentence in
the second paragraph of Section 25, to wit: 
“It shall review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the Commission” of the same law;

for being repugnant to Section 1, Article IX-A of the
Constitution mandating the independence of constitutional commission, such as
COMELEC.

The constitutionality of Section 18.5 of R.A.
No. 9189 is UPHELD with respect only to the authority given to
the COMELEC to proclaim the winning candidates for the Senators and party-list
representatives but not as to the power to canvass the votes and proclaim the
winning candidates for President and Vice-President which is lodged with
Congress under Section 4, Article VII of the Constitution.

The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the
rest of the provisions of said law continues to be in full force and effect.

SO ORDERED.

Davide, Jr., C.J., and Corona,
JJ., concur.

Quisumbing, J., on leave.

Tinga, J., no part.

Bellosillo,
and Carpio,
JJ., see concurring opinion.

Puno,
Ynares-Santiago,
and Callejo,
Sr., JJ., see concurring and dissenting
opinion.

Sandoval-Gutierrez,
J., see concurring and dissenting opinion. On
official leave.

Vitug,
and Panganiban,
JJ., see separate opinion.

Carpio-Morales,
and Azcuna,
JJ., see separate (concurring) opinion.