Can former natural-born Filipino citizens who have retained and/or
reacquired their status as such citizens pursuant to Republic Act No. 9225 or the Citizenship Retention and Re‑Acquisition Act of 2003 vote despite the fact that they are
not actual residents of the Philippines?
Yes, they can vote through the absentee voting scheme and as overseas absentee voters pursuant to R.A. 9189 or the Overseas Absentee Voting Law.
The Supreme Court had the occasion to rule on this matter in the case
of Nicolas-Lewisv. COMELEC, G.R. No. 162759, August 4, 2006. The relevant portions of
the decision are as follows:
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 disqualified by law, who are at least eighteen years of age, and who
shall have resided in thePhilippines for at least one year and in the
place wherein they propose to vote for at least six months immediately
preceding the election. xxx.
SEC
2. The Congress shall provide … a system for absentee voting by qualified
Filipinos abroad.
In a nutshell, the aforequoted Section 1 prescribes
residency requirement as a general eligibility factor for the right to vote. On
the other hand, Section 2 authorizes Congress to devise a system wherein
an absentee may vote, implying that a non‑resident may, as an exception to
the residency prescription in the preceding section, be allowed to vote.
In response to its above
mandate, Congress enacted R.A. 9189 - the OAVL [Overseas Absentee Voting Law] - identifying in its
Section 4 who can vote under it and in the following section who cannot, as
follows:
Section
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.
Section
5. Disqualifications. – The following shall be disqualified
from voting under this Act:
xxxx
(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 the 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.
xxx
xxx 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 qualifies the disqualification rule.
Xxx
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
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 [the challenger], 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.” xxxx
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:
xxx
SEC. 5. Civil and Political Rights and Liabilities. – Those who
retain or re-acquire Philippine citizenship under this Act shall enjoy full
civil and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the
following conditions:
(1) Those
intending to exercise their right of suffrage must meet the requirements under
Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise
known as “The Overseas Absentee Voting Act of 2003” and other existing laws;
xxx
xxx As may be noted, there is no
provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually establish residence and
physically stay in the Philippines
xxx Considering the unison
intent of the Constitution and R.A. 9189 and the expansion of 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. xxx
No comments:
Post a Comment