B.
Registration of Voters Indeed, in this case, the Court may set aside procedural rules as the
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.
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 funds3 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
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 petition10 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
1
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 Appeals12 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 Representatives16 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. COMELEC18 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 Appeals21 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)
2
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.
3
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.
4

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?
5
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
6
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."
7

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.
8

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
9
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
10
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-C43 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.
11
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.
12
 Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of
Similarly, the phrase, "subject to the approval of the said law continues to be in full force and effect.
Congressional Oversight Committee" in the first sentence of
Section 17.1 which empowers the Commission to authorize SO ORDERED.
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.
G.R. No. 134015 July 19, 1999
The constitutionality of Section 18.5 of R.A. No. 9189 is
UPHELD with respect only to the authority given to the JUAN DOMINO, petitioner,
COMELEC to proclaim the winning candidates for the vs.
Senators and party-list representatives but not as to the COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR.,
power to canvass the votes and proclaim the winning EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO SAMSON
candidates for President and Vice-President which is lodged and DIONISIO P. LIM, SR., respondent, LUCILLE
with Congress under Section 4, Article VII of the CHIONGBIAN-SOLON, intervenor.
Constitution.

The constitutionality of Section 5(d) is UPHELD.

DAVIDE, JR., CJ.:

13
Challenged in this case for certiorari with a prayer for
preliminary injunction are the Resolution of 6 May 19981 of
the Second Division of the Commission on Elections
(hereafter COMELEC), declaring petitioner Juan Domino
(hereafter DOMINO) disqualified as candidate for
representative of the Lone Legislative District of the
Province of Sarangani in the 11 May 1998 elections, and the
Decision of 29 May 19982 of the COMELEC en banc denying
DOMINO's motion for reconsideration.
The antecedents are not disputed.1âwphi1.nêt
On 25 March 1998, DOMINO filed his certificate of
candidacy for the position of Representative of the Lone
Legislative District of the Province of Sarangani indicating in
item nine (9) of his certificate that he had resided in the
constituency where he seeks to be elected for one (1) year
and two (2) months immediately preceding the election.3
On 30 March 1998, private respondents Narciso Ra. Grafilo,
Jr., Eddy B. Java, Juan P. Bayonito, Jr., Rosario Samson and
Dionisio P. Lim, Sr., fied with the COMELEC a Petition to
Deny Due Course to or Cancel Certificate of Candidacy,
which was docketed as SPA No. 98-022 and assigned to the
Second Division of the COMELEC. Private respondents
alleged that DOMINO, contrary to his declaration in the
certificate of candidacy, is not a resident, much less a
registered voter, of the province of Sarangani where he
seeks election. To substantiate their allegations, private
respondents presented the following evidence:
1. Annex "A" — the Certificate of Candidacy of
respondent for the position of Congressman of the Lone
District of the Province of Sarangani filed with the Office of
the Provincial Election Supervisor of Sarangani on March 25,
1998, where in item 4 thereof he wrote his date of birth as
December 5, 1953; in item 9, he claims he have resided in
the constituency where he seeks election for one (1) year
and two (2) months; and, in item 10, that he is registered
voter of Precinct No. 14A-1, Barangay Poblacion, Alabel,
Sarangani;
2. Annex "B" — Voter's Registration Record with SN
31326504 dated June 22, 1997 indicating respondent's
registration at Precinct No. 4400-A, Old Balara, Quezon City;
3. Annex "C" — Respondent's Community Tax Certificate
No. 11132214C dated January 15, 1997;
4. Annex "D" — Certified true copy of the letter of Herson
D. Dema-ala, Deputy Provincial & Municipal Treasurer of
Alabel, Sarangani, dated February 26, 1998, addressed to
Mr. Conrado G. Butil, which reads:
In connection with your letter of even date, we are
furnishing you herewith certified xerox copy of the triplicate
copy of COMMUNITY TAX CERTIFICATE NO. 11132214C in
the name of Juan Domino.
Furthermore, Community Tax Certificate No. 11132212C of
the same stub was issued to Carlito Engcong on September
5, 1997, while Certificate No. 11132213C was also issued to
Mr. Juan Domino but was cancelled and serial no.
11132215C was issued in the name of Marianita Letigio on
September 8, 1997.
5. Annex "E" — The triplicate copy of the Community Tax
Certificate No. 11132214C in the name of Juan Domino dated
September 5, 1997;
6. Annex "F" — Copy of the letter of Provincial Treasurer Lourdes
P. Riego dated March 2, 1998 addressed to Mr. Herson D. Dema-ala,
Deputy Provincial Treasurer and Municipal Treasurer of Alabel,
Sarangani, which states:
For easy reference, kindly turn-over to the undersigned for
safekeeping, the stub of Community Tax Certificate containing Nos.
11132201C-11132250C issued to you on June 13, 1997 and paid
under Official Receipt No. 7854744.
Upon request of Congressman James L. Chiongbian.
7. Annex "G" — Certificate of Candidacy of respondent for the
position of Congressman in the 3rd District of Quezon City for the
1995 elections filed with the Office of the Regional Election Director,
National Capital Region, on March 17, 1995, where, in item 4
thereof, he wrote his birth date as December 22, 1953; in item 8
thereof his "residence in the constituency where I seek to be elected
immediately preceding the election" as 3 years and 5 months; and,
in item 9, that he is a registered voter of Precinct No. 182, Barangay
Balara, Quezon City;
8. Annex "H" — a copy of the APPLICATION FOR TRANSFER OF
REGISTRATION RECORDS DUE TO CHANGE OF RESIDENCE of
respondent dated August 30, 1997 addressed to and received by
Election Officer Mantil Alim, Alabel, Sarangani, on September 22,
1997, stating among others, that "[T]he undersigned's previous
residence is at 24 Bonifacio Street, Ayala Heights, Quezon City, III
District, Quezon City; wherein he is a registered voter" and "that for
business and residence purposes, the undersigned has transferred
and conducts his business and reside at Barangay Poblacion, Alabel,
Province of Sarangani prior to this application;"
9. Annex "I" — Copy of the SWORN APPLICATION FOR OF
CANCELLATION OF THE VOTER'S [TRANSFER OF] PREVIOUS
REGISTRATION of respondent subscribed and sworn to on 22
October 1997 before Election Officer Mantil Allim at Alabel,
Sarangani. 4
For his defense, DOMINO maintains that he had complied with the
one-year residence requirement and that he has been residing in
Sarangani since January 1997. In support of the said contention,
DOMINO presented before the COMELEC the following exhibits, to
wit:
1. Annex "1" — Copy of the Contract of Lease between Nora
Dacaldacal as Lessor and Administrator of the properties of
deceased spouses Maximo and Remedios Dacaldacal and respondent
as Lessee executed on January 15, 1997, subscribed and sworn to
before Notary Public Johnny P. Landero;
2. Annex "2" — Copy of the Extra-Judicial Settlement of Estate
with Absolute Deed of sale executed by and between the heirs of
deceased spouses Maximo and Remedios Dacaldacal, namely: Maria
Lourdes, Jupiter and Beberlie and the respondent on November 4,
1997, subscribed and sworn to before Notary Public Jose A.
Alegario;
14
3. Annex "3" — True Carbon Xerox copy of the Decision
dated January 19, 1998, of the Metropolitan Trial Court of
Metro Manila, Branch 35, Quezon City, in Election Case NO.
725 captioned as "In the Matter of the Petition for the
Exclusion from the List of voters of Precinct No. 4400-A
Brgy. Old Balara, Quezon City, Spouses Juan and Zorayda
Domino, Petitioners, -versus- Elmer M. Kayanan, Election
Officer, Quezon City, District III, and the Board of Election
Inspectors of Precinct No. 4400-A, Old Balara, Quezon City,
Respondents." The dispositive portion of which reads:
1. Declaring the registration of petitioners as voters of
Precinct No. 4400-A, Barangay Old Balara, in District III
Quezon City as completely erroneous as petitioners were no
longer residents of Quezon City but of Alabel, Sarangani
where they have been residing since December 1996;
2. Declaring this erroneous registration of petitioners in
Quezon City as done in good faith due to an honest mistake
caused by circumstances beyond their control and without
any fault of petitioners;
3. Approving the transfer of registration of voters of
petitioners from Precint No. 4400-A of Barangay Old Balara,
Quezon City to Precinct No. 14A1 of Barangay Poblacion of
Alabel, Sarangani; and
4. Ordering the respondents to immediately transfer and
forward all the election/voter's registration records of the
petitioners in Quezon City to the Election Officer, the
Election Registration Board and other Comelec Offices of
Alabel, Sarangani where the petitioners are obviously
qualified to excercise their respective rights of suffrage.
4. Annex "4" — Copy of the Application for Transfer of
Registration Records due to Change of Residence addressed
to Mantil Alim, COMELEC Registrar, Alabel, Sarangani, dated
August 30, 1997.
5. Annex "5" — Certified True Copy of the Notice of
Approval of Application, the roster of applications for
registration approved by the Election Registration Board on
October 20, 1997, showing the spouses Juan and Zorayda
Bailon Domino listed as numbers 111 and 112 both under
Precinct No. 14A1, the last two names in the slate indicated
as transferees without VRR numbers and their application
dated August 30, 1997 and September 30, 1997,
respectively.
6. Annex "6" — same as Annex "5"
7. Annex "6-a" — Copy of the Sworn Application for
Cancellation of Voter's Previous Registration (Annex "I",
Petition);
8. Annex "7" — Copy of claim card in the name of
respondent showing his VRR No. 31326504 dated October
20, 1997 as a registered voter of Precinct No. 14A1,
Barangay Poblacion, Alabel, Sarangani;
9. Annex "7-a" — Certification dated April 16, 1998,
issued by Atty. Elmer M. Kayanan, Election Officer IV,
District III, Quezon City, which reads:
This is to certify that the spouses JUAN and ZORAYDA DOMINO are
no longer registered voters of District III, Quezon City. Their
registration records (VRR) were transferred and are now in the
possession of the Election Officer of Alabel, Sarangani.
This certification is being issued upon the request of Mr. JUAN
DOMINO.
10. Annex "8" — Affidavit of Nora Dacaldacal and Maria Lourdes
Dacaldacal stating the circumstances and incidents detailing their
alleged acquaintance with respondent.
11. Annexes "8-a", "8-b", "8-c" and "8-d" — Copies of the uniform
affidavits of witness Myrna Dalaguit, Hilario Fuentes, Coraminda
Lomibao and Elena V. Piodos subscribed and sworn to before Notary
Public Bonifacio F. Doria, Jr., on April 18, 1998, embodying their
alleged personal knowledge of respondent's residency in Alabel,
Sarangani;
12. Annex "8-e" — A certification dated April 20, 1998, subscribed
and sworn to before Notary Public Bonifacio, containing a listing of
the names of fifty-five (55) residents of Alabel, Sarangani, declaring
and certifying under oath that they personally know the respondent
as a permanent resident of Alabel, Sarangani since January 1997 up
to present;
13. Annexes "9", "9-a" and "9-b" — Copies of Individual Income
Tax Return for the year 1997, BIR form 2316 and W-2, respectively,
of respondent; and,
14. Annex "10" — The affidavit of respondent reciting the
chronology of events and circumstances leading to his relocation to
the Municipality of Alabel, Sarangani, appending Annexes "A", "B",
"C", "D", "D-1", "E", "F", "G" with sub-markings "G-1" and "G-2" and
"H" his CTC No. 111`32214C dated September 5, 1997, which are
the same as Annexes "1", "2", "4", "5", "6-a", "3", "7", "9" with sub-
markings "9-a" and "9-b" except Annex "H".5
On 6 May 1998, the COMELEC 2nd Division promulgated a resolution
declaring DOMINO disqualified as candidate for the position of
representative of the lone district of Sarangani for lack of the one-
year residence requirement and likewise ordered the cancellation of
his certificate of candidacy, on the basis of the following findings:
What militates against respondent's claim that he has met the
residency requirement for the position sought is his own Voter's
Registration Record No. 31326504 dated June 22, 1997 [Annex "B",
Petition] and his address indicated as 24 Bonifacio St., Ayala
Heights, Old Balara, Quezon City. This evidence, standing alone,
negates all his protestations that he established residence at
Barangay Poblacion, Alabel, Sarangani, as early as January 1997. It
is highly improbable, nay incredible, for respondent who previously
ran for the same position in the 3rd Legislative District of Quezon
City during the elections of 1995 to unwittingly forget the residency
requirement for the office sought.
Counting, therefore, from the day after June 22, 1997 when
respondent registered at Precinct No. 4400-A, up to and until the
day of the elections on May 11, 1998, respondent clearly lacks the
one (1) year residency requirement provided for candidates for
Member of the House of Representatives under Section 6, Article VI
of the Constitution.
15
All told, petitioner's evidence conspire to attest to
respondent's lack of residence in the constituency where he
seeks election and while it may be conceded that he is a
registered voter as contemplated under Section 12 of R.A.
8189, he lacks the qualification to run for the position of
Congressman for the Lone District of the Province of
Sarangani.6
On 11 May 1998, the day of the election, the COMELEC
issued Supplemental Omnibus Resolution No. 3046,
ordering that the votes cast for DOMINO be counted but to
suspend the proclamation if winning, considering that the
Resolution disqualifying him as candidate had not yet
become final and executory.7
The result of the election, per Statement of Votes certified
by the Chairman of the Provincial Board of Canvassers,8
shows that DOMINO garnered the highest number of votes
over his opponents for the position of Congressman of the
Province of Sarangani.
On 15 May 1998, DOMINO filed a motion for reconsideration
of the Resolution dated 6 May 1998, which was denied by
the COMELEC en banc in its decision dated 29 May 1998.
Hence, the present Petition for Certiorari with prayer for
Preliminary Mandatory Injunction alleging, in the main, that
the COMELEC committed grave abuse of discretion
amounting to excess or lack of jurisdiction when it ruled
that he did not meet the one-year residence requirement.
On 14 July 1998, acting on DOMINO's Motion for Issuance
of Temporary Restraining Order, the Court directed the
parties to maintain the status quo prevailing at the time of
the filing of the instant petition.9
On 15 September 1998, Lucille L. Chiongbian-Solon,
(hereafter INTERVENOR), the candidate receiving the
second highest number of votes, was allowed by the Court
to Intervene.10 INTERVENOR in her Motion for Leave to
Intervene and in her Comment in Intervention 11 is asking
the Court to uphold the disqualification of petitioner Juan
Domino and to proclaim her as the duly elected
representative of Sarangani in the 11 May 1998 elections.
Before us DOMINO raised the following issues for
resolution, to wit:
a. Whether or not the judgment of the Metropolitan Trial
Court of Quezon City declaring petitioner as resident of
Sarangani and not of Quezon City is final, conclusive and
binding upon the whole world, including the Commission on
Elections.
b. Whether or not petitioner herein has resided in the
subject congressional district for at least one (1) year
immediately preceding the May 11, 1998 elections; and
c. Whether or not respondent COMELEC has jurisdiction
over the petition a quo for the disqualification of
petitioner.12
The first issue.
The contention of DOMINO that the decision of the Metropolitan
Trial Court of Quezon City in the exclusion proceedings declaring
him a resident of the Province of Sarangani and not of Quezon City
is final and conclusive upon the COMELEC cannot be sustained.
The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the
Omnibus Election Code, over a petition to deny due course to or
cancel certificate of candidacy. In the exercise of the said
jurisdiction, it is within the competence of the COMELEC to
determine whether false representation as to material facts was
made in the certificate of candidacy, that will include, among others,
the residence of the candidate.
The determination of the Metropolitan Trial Court of Quezon City in
the exclusion proceedings as to the right of DOMINO to be included
or excluded from the list of voters in the precinct within its territorial
jurisdicton, does not preclude the COMELEC, in the determination of
DOMINO's qualification as a candidate, to pass upon the issue of
compliance with the residency requirement.
The proceedings for the exclusion or inclusion of voters in the list of
voters are summary in character. Thus, the factual findings of the
trial court and its resultant conclusions in the exclusion proceedings
on matters other than the right to vote in the precinct within its
territorial jurisdiction are not conclusive upon the COMELEC.
Although the court in inclusion or exclusion proceedings may pass
upon any question necessary to decide the issue raised including the
questions of citizenship and residence of the challenged voter, the
authority to order the inclusion in or exclusion from the list of voters
necessarily caries with it the power to inquire into and settle all
matters essential to the exercise of said authority. However, except
for the right to remain in the list of voters or for being excluded
therefrom for the particular election in relation to which the
proceedings had been held, a decision in an exclusion or inclusion
proceeding, even if final and unappealable, does not acquire the
nature of res judicata.13 In this sense, it does not operate as a bar
to any future action that a party may take concerning the subject
passed upon in the proceeding.14 Thus, a decision in an exclusion
proceeding would neither be conclusive on the voter's political
status, nor bar subsequent proceedings on his right to be registered
as a voter in any other election.15
Thus, in Tan Cohon v. Election Registrar16 we ruled that:
. . . It is made clear that even as it is here held that the order of the
City Court in question has become final, the same does not
constitute res adjudicata as to any of the matters therein contained.
It is ridiculous to suppose that such an important and intricate
matter of citizenship may be passed upon and determined with
finality in such a summary and peremptory proceeding as that of
inclusion and exclusion of persons in the registry list of voters. Even
if the City Court had granted appellant's petition for inclusion in the
permanent list of voters on the allegation that she is a Filipino citizen
qualified to vote, her alleged Filipino citizenship would still have
been left open to question.
Moreover, the Metropolitan Trial Court of Quezon City in its 18
January decision exceeded its jurisdiction when it declared DOMINO
a resident of the Province of Sarangani, approved and ordered the
transfer of his voter's registration from Precinct No. 4400-A of
Barangay Old Balara, Quezon City to precinct 14A1 of Barangay
Poblacion, Alabel, Sarangani. It is not within the competence of the
trial court, in an exclusion proceedings, to declare the challenged
voter a resident of another municipality. The jurisdiction of the lower
16
court over exclusion cases is limited only to determining the
right of voter to remain in the list of voters or to declare
that the challenged voter is not qualified to vote in the
precint in which he is registered, specifying the ground of
the voter's disqualification. The trial court has no power to
order the change or transfer of registration from one place
of residence to another for it is the function of the election
Registration Board as provided under Section 12 of R.A. No.
8189. 17 The only effect of the decision of the lower court
excluding the challenged voter from the list of voters, is for
the Election Registration Board, upon receipt of the final
decision, to remove the voter's registration record from the
corresponding book of voters, enter the order of exclusion
therein, and thereafter place the record in the inactive
file.18
Finally, the application of the rule on res judicata is
unavailing. Identity of parties, subject matter and cause of
action are indispensable requirements for the application of
said doctrine. Neither herein Private Respondents nor
INTERVENOR, is a party in the exclusion proceedings. The
Petition for Exclusion was filed by DOMINDO himself and his
wife, praying that he and his wife be excluded from the
Voter's List on the ground of erroneous registration while
the Petition to Deny Due Course to or Cancel Certificate of
Candidacy was filed by private respondents against
DOMINO for alleged false representation in his certificate of
candidacy. For the decision to be a basis for the dismissal
by reason of res judicata, it is essential that there must be
between the first and the second action identity of parties,
identity of subject matter and identity of causes of action.19
In the present case, the aforesaid essential requisites are
not present. In the case of Nuval v. Guray, et al., 20 the
Supreme Court in resolving a similar issue ruled that:
The question to be solved under the first assignment of
error is whether or not the judgment rendered in the case
of the petition for the exclusion of Norberto Guray's name
from the election list of Luna, is res judicata, so as to
prevent the institution and prosecution of an action in quo
warranto, which is now before us.
The procedure prescribed by section 437 of the
Administrative Code, as amended by Act No. 3387, is of a
summary character and the judgment rendered therein is
not appealable except when the petition is tried before the
justice of the peace of the capital or the circuit judge, in
which case it may be appealed to the judge of first instance,
with whom said two lower judges have concurrent
jurisdiction.
The petition for exclusion was presented by Gregorio Nuval
in his dual capacity as qualified voter of the municipality of
Luna, and as a duly registered candidate for the office of
president of said municipality, against Norberto Guray as a
registered voter in the election list of said municipality. The
present proceeding of quo warranto was interposed by
Gregorio Nuval in his capacity as a registered candidate
voted for the office of municipal president of Luna, against
Norberto Guray, as an elected candidate for the same
office. Therefore, there is no identity of parties in the two
cases, since it is not enough that there be an identity of
persons, but there must be an identity of capacities in which
said persons litigate. (Art. 1259 of the Civil Code; Bowler vs. Estate
of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165)
In said case of the petition for the exclusion, the object of the
litigation, or the litigious matter was the exclusion of Norberto Guray
as a voter from the election list of the municipality of Luna, while in
the present que warranto proceeding, the object of the litigation, or
the litigious matter is his exclusion or expulsion from the office to
which he has been elected. Neither does there exist, then, any
identity in the object of the litigation, or the litigious matter.
In said case of the petition for exclusion, the cause of action was
that Norberto Guray had not the six months' legal residence in the
municipality of Luna to be a qualified voter thereof, while in the
present proceeding of quo warranto, the cause of action is that
Norberto Guray has not the one year's legal residence required for
eligibility to the office of municipal president of Luna. Neither does
there exist therefore, identity of causes of action.
In order that res judicata may exist the following are necessary: (a)
identity of parties; (b) identity of things; and (c) identity of issues
(Aquino v. Director of Lands, 39 Phil. 850). And as in the case of the
petition for excluision and in the present quo warranto proceeding,
as there is no identity of parties, or of things or litigious matter, or
of issues or causes of action, there is no res judicata.
The Second Issue.
Was DOMINO a resident of the Province of Sarangani for at least
one year immediately preceding the 11 May 1998 election as stated
in his certificate of candidacy?
We hold in the negative.
It is doctrinally settled that the term "residence," as used in the law
prescribing the qualifications for suffrage and for elective office,
means the same thing as "domicile," which imports not only an
intention to reside in a fixed place but also personal presence in that
place, coupled with conduct indicative of such intention.21
"Domicile" denotes a fixed permanent residence to which, whenever
absent for business, pleasure, or some other reasons, one intends to
return.22 "Domicile" is a question of intention and circumstances. In
the consideration of circumstances, three rules must be borne in
mind, namely: (1) that a man must have a residence or domicile
somewhere; (2) when once established it remains until a new one is
acquired; and (3) a man can have but one residence or domicile at a
time.23
Records show that petitioner's domicile of origin was Candon, Ilocos
Sur 24 and that sometime in 1991, he acquired a new domicile of
choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as
shown by his certificate of candidacy for the position of
representative of the 3rd District of Quezon City in the May 1995
election. Petitioner is now claiming that he had effectively
abandoned his "residence" in Quezon City and has established a new
"domicile" of choice at the Province of Sarangani.
A person's "domicile" once established is considered to continue and
will not be deemed lost until a new one is established. 25 To
successfully effect a change of domicile one must demonstrate an
actual removal or an actual change of domicile; a bona fide intention
of abandoning the former place of residence and establishing a new
one and definite acts which correspond with the
17
purpose. 26 In other words, there must basically be animus
manendi coupled with animus non revertendi. The purpose
to remain in or at the domicile of choice must be for an
indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the
new domicile must be actual.27
It is the contention of petitioner that his actual physical
presence in Alabel, Sarangani since December 1996 was
sufficiently established by the lease of a house and lot
located therein in January 1997 and by the affidavits and
certifications under oath of the residents of that place that
they have seen petitioner and his family residing in their
locality.
While this may be so, actual and physical is not in itself
sufficient to show that from said date he had transferred his
residence in that place. To establish a new domicile of
choice, personal presence in the place must be coupled with
conduct indicative of that intention. While "residence"
simply requires bodily presence in a given place, "domicile"
requires not only such bodily presence in that place but also
a declared and probable intent to make it one's fixed and
permanent place of abode, one's home.28
As a general rule, the principal elements of domicile,
physical presence in the locality involved and intention to
adopt it as a domicile, must concur in order to establish a
new domicile. No change of domicile will result if either of
these elements is absent. Intention to acquire a domicile
without actual residence in the locality does not result in
acquisition of domicile, nor does the fact of physical
presence without intention.29
The lease contract entered into sometime in January 1997,
does not adequately support a change of domicile. The
lease contract may be indicative of DOMINO's intention to
reside in Sarangani but it does not engender the kind of
permanency required to prove abandonment of one's
original domicile. The mere absence of individual from his
permanent residence, no matter how long, without the
intention to abandon it does not result in loss or change of
domicile. 30 Thus the date of the contract of lease of a
house and lot located in the province of Sarangani, i.e., 15
January 1997, cannot be used, in the absence of other
circumstances, as the reckoning period of the one-year
residence requirement.
Further, Domino's lack of intention to abandon his residence
in Quezon City is further strengthened by his act of
registering as voter in one of the precincts in Quezon City.
While voting is not conclusive of residence, it does give rise
to a strong presumption of residence especially in this case
where DOMINO registered in his former barangay.
Exercising the right of election franchise is a deliberate
public assertion of the fact of residence, and is said to have
decided preponderance in a doubtful case upon the place
the elector claims as, or believes to be, his residence.31 The
fact that a party continously voted in a particular locality is a
strong factor in assisting to determine the status of his
domicile.32
His claim that his registration in Quezon City was erroneous
and was caused by events over which he had no control
cannot be sustained. The general registration of voters for purposes
of the May 1998 elections was scheduled for two (2) consecutive
weekends, viz.: June 14, 15, 21, and 22.33
While, Domino's intention to establish residence in Sarangani can be
gleaned from the fact that be bought the house he was renting on
November 4, 1997, that he sought cancellation of his previous
registration in Qezon City on 22 October 1997,34 and that he
applied for transfer of registration from Quezon City to Sarangani by
reason of change of residence on 30 August 1997,35 DOMINO still
falls short of the one year residency requirement under the
Constitution.
In showing compliance with the residency requirement, both intent
and actual presence in the district one intends to represent must
satisfy the length of time prescribed by the fundamental law.36
Domino's failure to do so rendered him ineligible and his election to
office null and void.37
The Third Issue.
DOMINO's contention that the COMELEC has no jurisdiction in the
present petition is bereft of merit.
As previously mentioned, the COMELEC, under Sec. 78, Art. IX of
the Omnibus Election Code, has jurisdiction over a petition to deny
due course to or cancel certificate of candidacy. Such jurisdiction
continues even after election, if for any reason no final judgment of
disqualification is rendered before the election, and the candidate
facing disqualification is voted for and receives the highest number
of votes38 and provided further that the winning candidate has not
been proclaimed or has taken his oath of office.39
It has been repeatedly held in a number of cases, that the House of
Representatives Electoral Tribunal's sole and exclusive jurisdiction
over all contests relating to the election, returns and qualifications of
members of Congress as provided under Section 17 of Article VI of
the Constitution begins only after a candidate has become a
member of the House of Representatives. 40
The fact of obtaining the highest number of votes in an election
does not automatically vest the position in the winning candidate.41
A candidate must be proclaimed and must have taken his oath of
office before he can be considered a member of the House of
Representatives.
In the instant case, DOMINO was not proclaimed as Congressman-
elect of the Lone Congressional District of the Province of Sarangani
by reason of a Supplemental Omnibus Resolution issued by the
COMELEC on the day of the election ordering the suspension of
DOMINO's proclamation should he obtain the winning number of
votes. This resolution was issued by the COMELEC in view of the
non-finality of its 6 May 1998 resolution disqualifying DOMINO as
candidate for the position.
Cosidering that DOMINO has not been proclaimed as Congressman-
elect in the Lone Congressional District of the Province of Sarangani
he cannot be deemed a member of the House of Representatives.
Hence, it is the COMELEC and not the Electoral Tribunal which has
jurisdiction over the issue of his ineligibility as a candidate.42
Issue raised by INTERVENOR.
18
After finding that DOMINO is disqualified as candidate for
the position of representative of the province of Sarangani,
may INTERVENOR, as the candidate who received the next
highest number of votes, be proclaimed as the winning
candidate?
It is now settled doctrine that the candidate who obtains the
second highest number of votes may not be proclaimed
winner in case the winning candidate is disqualified.43 In
every election, the people's choice is the paramount
consideration and their expressed will must, at all times, be
given effect. When the majority speaks and elects into office
a candidate by giving the highest number of votes cast in
the election for that office, no one can be declared elected
in his place.44
eligible candidate obtaining the next higher number of votes may be
deemed elected, is misplaced.
Contrary to the claim of INTERVENOR, petitioner was not notoriously
known by the public as an ineligible candidate. Although the
resolution declaring him ineligible as candidate was rendered before
the election, however, the same is not yet final and executory. In
fact, it was no less than the COMELEC in its Supplemental Omnibus
Resolution No. 3046 that allowed DOMINO to be voted for the office
and ordered that the votes cast for him be counted as the
Resolution declaring him ineligible has not yet attained finality. Thus
the votes cast for DOMINO are presumed to have been cast in the
sincere belief that he was a qualified candidate, without any
intention to misapply their franchise. Thus, said votes can not be
treated as stray, void, or meaningless.53

It would be extremely repugnant to the basic concept of the WHEREFORE, the instant petition is DISMISSED. The resolution
constitutionally guaranteed right to suffrage if a candidate dated 6 May 1998 of the COMELEC 2nd Division and the decision
who has not acquired the majority or plurality of votes is dated 29 May 1998 of the COMELEC En Banc, are hereby
proclaimed a winner and imposed as the representative of a AFFIRMED.1âwphi1.nêt
constituency, the majority of which have positively declared
through their ballots that they do not choose him.45 To SO ORDERED.
simplistically assume that the second placer would have
received the other votes would be to substitute our
judgment for the mind of the voters. He could not be
considered the first among qualified candidates because in a
field which excludes the qualified candidate, the conditions
would have substantially changed.46

Sound policy dictates that public elective offices are filled by

those who have received the highest number of votes cast
in the election for that office, and it is fundamental idea in
all republican forms of government that no one can be
declared elected and no measure can be declared carried
unless he or it receives a majority or plurality of the legal
votes cast in the election.47

The effect of a decision declaring a person ineligible to hold

an office is only that the election fails entirely, that the
wreath of victory cannot be transferred48 from the
disqualified winner to the repudiated loser because the law
then as now only authorizes a declaration of election in
favor of the person who has obtained a plurality of votes49
and does not entitle the candidate receiving the next
highest number of votes to be declared elected. In such
case, the electors have failed to make a choice and the
election is a nullity.50 To allow the defeated and repudiated
candidate to take over the elective position despite his
rejection by the electorate is to disenfranchise the G.R. No. 180088 January 19, 2009
electorate without any fault on their part and to undermine
the importance and meaning of democracy and the people's MANUEL B. JAPZON, Petitioner,
right to elect officials of their choice.51 vs.
COMMISSION ON ELECTIONS and JAIME S. TY,
INTERVENOR's plea that the votes cast in favor of DOMINO Respondents.
be considered stray votes cannot be sustained.
INTERVENOR's reliance on the opinion made in the Labo, Jr. DECISION
case52 to wit: if the electorate, fully aware in fact and in
law of a candidate's disqualification so as to bring such CHICO-NAZARIO, J.:
awareness within the realm of notoriety, would nevertheless
cast their votes in favor of the ineligible candidate, the This is a Petition for Review on Certiorari under Rules 641 and 652
electorate may be said to have waived the validity and of the Revised Rules of Court seeking to annul and set aside the
efficacy of their votes by notoriously misapplying their Resolution3 dated 31 July 2007 of the First Division of public
franchise or throwing away their votes, in which case, the respondent Commission on Elections (COMELEC) and the
Resolution4 dated 28 September 2007 of COMELEC en banc, in SPA
19
No. 07-568, for having been rendered with grave abuse of
discretion, amounting to lack or excess of jurisdiction.
Both petitioner Manuel B. Japzon (Japzon) and private
respondent Jaime S. Ty (Ty) were candidates for the Office
of Mayor of the Municipality of General Macarthur, Eastern
Samar, in the local elections held on 14 May 2007.
On 15 June 2007, Japzon instituted SPA No. 07-568 by filing
before the COMELEC a Petition5 to disqualify and/or cancel
Ty’s Certificate of Candidacy on the ground of material
misrepresentation. Japzon averred in his Petition that Ty
was a former natural-born Filipino, having been born on 9
October 1943 in what was then Pambujan Sur, Hernani
Eastern Samar (now the Municipality of General Macarthur,
Easter Samar) to spouses Ang Chim Ty (a Chinese) and
Crisanta Aranas Sumiguin (a Filipino). Ty eventually
migrated to the United States of America (USA) and became
a citizen thereof. Ty had been residing in the USA for the
last 25 years. When Ty filed his Certificate of Candidacy on
28 March 2007, he falsely represented therein that he was a
resident of Barangay 6, Poblacion, General Macarthur,
Eastern Samar, for one year before 14 May 2007, and was
not a permanent resident or immigrant of any foreign
country. While Ty may have applied for the reacquisition of
his Philippine citizenship, he never actually resided in
Barangay 6, Poblacion, General Macarthur, Eastern Samar,
for a period of one year immediately preceding the date of
election as required under Section 39 of Republic Act No.
7160, otherwise known as the Local Government Code of
1991. In fact, even after filing his application for
reacquisition of his Philippine citizenship, Ty continued to
make trips to the USA, the most recent of which was on 31
October 2006 lasting until 20 January 2007. Moreover,
although Ty already took his Oath of Allegiance to the
Republic of the Philippines, he continued to comport himself
as an American citizen as proven by his travel records. He
had also failed to renounce his foreign citizenship as
required by Republic Act No. 9225, otherwise known as the
Citizenship Retention and Reacquisition Act of 2003, or
related laws. Hence, Japzon prayed for in his Petition that
the COMELEC order the disqualification of Ty from running
for public office and the cancellation of the latter’s
Certificate of Candidacy.
In his Answer6 to Japzon’s Petition in SPA No. 07-568, Ty
admitted that he was a natural-born Filipino who went to
the USA to work and subsequently became a naturalized
American citizen. Ty claimed, however, that prior to filing
his Certificate of Candidacy for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, on 28
March 2007, he already performed the following acts: (1)
with the enactment of Republic Act No. 9225, granting dual
citizenship to natural-born Filipinos, Ty filed with the
Philippine Consulate General in Los Angeles, California, USA,
an application for the reacquisition of his Philippine
citizenship; (2) on 2 October 2005, Ty executed an Oath of
Allegiance to the Republic of the Philippines before Noemi T.
Diaz, Vice Consul of the Philippine Consulate General in Los
Angeles, California, USA; (3) Ty applied for a Philippine
passport indicating in his application that his residence in
the Philippines was at A. Mabini St., Barangay 6, Poblacion,
General Macarthur, Eastern Samar. Ty’s application was
approved and he was issued on 26 October 2005 a
Philippine passport; (4) on 8 March 2006, Ty personally secured and
signed his Community Tax Certificate (CTC) from the Municipality of
General Macarthur, in which he stated that his address was at
Barangay 6, Poblacion, General Macarthur, Eastern Samar; (5)
thereafter, on 17 July 2006, Ty was registered as a voter in Precinct
0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar;
(6) Ty secured another CTC dated 4 January 2007 again stating
therein his address as Barangay 6, Poblacion, General Macarthur,
Eastern Samar; and (7) finally, Ty executed on 19 March 2007 a
duly notarized Renunciation of Foreign Citizenship. Given the
aforementioned facts, Ty argued that he had reacquired his
Philippine citizenship and renounced his American citizenship, and he
had been a resident of the Municipality of General Macarthur,
Eastern Samar, for more than one year prior to the 14 May 2007
elections. Therefore, Ty sought the dismissal of Japzon’s Petition in
SPA No. 07-568.
Pending the submission by the parties of their respective Position
Papers in SPA No. 07-568, the 14 May 2007 elections were already
held. Ty acquired the highest number of votes and was declared
Mayor of the Municipality of General Macarthur, Eastern Samar, by
the Municipal Board of Canvassers on 15 May 2007.7
Following the submission of the Position Papers of both parties, the
COMELEC First Division rendered its Resolution8 dated 31 July 2007
in favor of Ty.
The COMELEC First Division found that Ty complied with the
requirements of Sections 3 and 5 of Republic Act No. 9225 and
reacquired his Philippine citizenship, to wit:
Philippine citizenship is an indispensable requirement for holding an
elective public office, and the purpose of the citizenship qualification
is none other than to ensure that no alien, i.e., no person owing
allegiance to another nation, shall govern our people and our
country or a unit of territory thereof. Evidences revealed that [Ty]
executed an Oath of Allegiance before Noemi T. Diaz, Vice Consul of
the Philippine Consulate General, Los Angeles, California, U.S.A. on
October 2, 2005 and executed a Renunciation of Foreign Citizenship
on March 19, 2007 in compliance with R.A. [No.] 9225. Moreover,
neither is [Ty] a candidate for or occupying public office nor is in
active service as commissioned or non-commissioned officer in the
armed forces in the country of which he was naturalized citizen.9
The COMELEC First Division also held that Ty did not commit
material misrepresentation in stating in his Certificate of Candidacy
that he was a resident of Barangay 6, Poblacion, General Macarthur,
Eastern Samar, for at least one year before the elections on 14 May
2007. It reasoned that:
Although [Ty] has lost his domicile in [the] Philippines when he was
naturalized as U.S. citizen in 1969, the reacquisition of his Philippine
citizenship and subsequent acts thereof proved that he has been a
resident of Barangay 6, Poblacion, General Macarthur, Eastern
Samar for at least one (1) year before the elections held on 14 May
2007 as he represented in his certificate of candidacy[.]
As held in Coquilla vs. Comelec:
"The term ‘residence’ is to be understood not in its common
acceptation as referring to ‘dwelling’ or ‘habitation,’ but rather to
‘domicile’ or legal residence, that is, ‘the place where a party actually
or constructively has his permanent home, where he, no matter
where he may be found at any given time, eventually intends to
20
return and remain (animus manendi).’ A domicile of origin is
acquired by every person at birth. It is usually the place
where the child’s parents reside and continues until the
same is abandoned by acquisition of new domicile (domicile
of choice).
In the case at bar, petitioner lost his domicile of origin in
Oras by becoming a U.S. citizen after enlisting in the U.S.
Navy in 1965. From then on and until November 10, 2000,
when he reacquired Philippine citizenship, petitioner was an
alien without any right to reside in the Philippines save as
our immigration laws may have allowed him to stay as a
visitor or as a resident alien.
Indeed, residence in the United States is a requirement for
naturalization as a U.S. citizen. Title 8, §1427(a) of the
United States Code provides:
Requirements of naturalization: Residence
(a) No person, except as otherwise provided in this
subchapter, shall be naturalized unless such applicant, (1)
year immediately preceding the date of filing his application
for naturalization has resided continuously, after being
lawfully admitted for permanent residence, within the
United States for at least five years and during the five
years immediately preceding the date of filing his petition
has been physically present therein for periods totaling at
least half of that time, and who has resided within the State
or within the district of the Service in the United States in
which the applicant filed the application for at least three
months, (2) has resided continuously within the United
States from the date of the application up to the time of
admission to citizenship, and (3) during all period referred
to in this subsection has been and still is a person of good
moral character, attached to the principles of the
Constitution of the United States, and well disposed to the
good order and happiness of the United States. (Emphasis
added)
In Caasi v. Court of Appeals, this Court ruled that
immigration to the United States by virtue of a ‘greencard,’
which entitles one to reside permanently in that country,
constitutes abandonment of domicile in the Philippines. With
more reason then does naturalization in a foreign country
result in an abandonment of domicile in the Philippines.
Records showed that after taking an Oath of Allegiance
before the Vice Consul of the Philippine Consulate General
on October 2, 2005, [Ty] applied and was issued a
Philippine passport on October 26, 2005; and secured a
community tax certificate from the Municipality of General
Macarthur on March 8, 2006. Evidently, [Ty] was already a
resident of Barangay 6, Poblacion, General Macarthur,
Eastern Samar for more than one (1) year before the
elections on May 14, 2007.10 (Emphasis ours.)
The dispositive portion of the 31 July 2007 Resolution of the
COMELEC First Division, thus, reads:
WHEREFORE, premises considered, the petition is DENIED
for lack of merit.11
Japzon filed a Motion for Reconsideration of the foregoing
Resolution of the COMELEC First Division. On 28 September 2007,
the COMELEC en banc issued its Resolution12 denying Japzon’s
Motion for Reconsideration and affirming the assailed Resolution of
the COMELEC First Division, on the basis of the following
ratiocination:
We have held that a Natural born Filipino who obtains foreign
citizenship, and subsequently spurns the same, is by clear acts of
repatriation a Filipino Citizen and hence qualified to run as a
candidate for any local post.
xxxx
It must be noted that absent any showing of irregularity that
overturns the prevailing status of a citizen, the presumption of
regularity remains. Citizenship is an important aspect of every
individual’s constitutionally granted rights and privileges. This is
essential in determining whether one has the right to exercise pre-
determined political rights such as the right to vote or the right to be
elected to office and as such rights spring from citizenship.
Owing to its primordial importance, it is thus presumed that every
person is a citizen of the country in which he resides; that
citizenship once granted is presumably retained unless voluntarily
relinquished; and that the burden rests upon who alleges a change
in citizenship and allegiance to establish the fact.
Our review of the Motion for Reconsideration shows that it does not
raise any new or novel issues. The arguments made therein have
already been dissected and expounded upon extensively by the first
Division of the Commission, and there appears to be no reason to
depart from the wisdom of the earlier resolution. We thus affirm that
[Ty] did not commit any material misrepresentation when he
accomplished his Certificate of Candidacy. The only ground for
denial of a Certificate of Candidacy would be when there was
material misrepresentation meant to mislead the electorate as to the
qualifications of the candidate. There was none in this case, thus
there is not enough reason to deny due course to the Certificate of
Candidacy of Respondent James S. Ty.13
Failing to obtain a favorable resolution from the COMELEC, Japzon
proceeded to file the instant Petition for Certiorari, relying on the
following grounds:
A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY AND
WANTONLY DISREGARDED THE PARAMETERS SET BY LAW AND
JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF
CHOICE AND RESIDENCE.14
B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY AND
WANTONLY REFUSED TO CANCEL [TY’S] CERTIFICATE OF
CANDIDACY, AND CONSEQUENTLY DECLARE [JAPZON] AS THE
DULY ELECTED MAYOR OF GEN. MACARTHUR, EASTERN SAMAR.15
Japzon argues that when Ty became a naturalized American citizen,
he lost his domicile of origin. Ty did not establish his residence in
the Municipality of General Macarthur, Eastern Samar, Philippines,
just because he reacquired his Philippine citizenship. The burden
falls upon Ty to prove that he established a new domicile of choice
21
in General Macarthur, Eastern Samar, a burden which he
failed to discharge. Ty did not become a resident of General
Macarthur, Eastern Samar, by merely executing the Oath of
Allegiance under Republic Act No. 9225.
Therefore, Japzon asserts that Ty did not meet the one-year
residency requirement for running as a mayoralty candidate
in the 14 May 2007 local elections. The one-year residency
requirement for those running for public office cannot be
waived or liberally applied in favor of dual citizens.
Consequently, Japzon believes he was the only remaining
candidate for the Office of Mayor of the Municipality of
General Macarthur, Eastern Samar, and is the only placer in
the 14 May 2007 local elections.
Japzon prays for the Court to annul and set aside the
Resolutions dated 31 July 2007 and 28 September 2007 of
the COMELEC First Division and en banc, respectively; to
issue a new resolution denying due course to or canceling
Ty’s Certificate of Candidacy; and to declare Japzon as the
duly elected Mayor of the Municipality of General Macarthur,
Eastern Samar.
As expected, Ty sought the dismissal of the present
Petition. According to Ty, the COMELEC already found
sufficient evidence to prove that Ty was a resident of the
Municipality of General Macarthur, Eastern Samar, one year
prior to the 14 May 2007 local elections. The Court cannot
evaluate again the very same pieces of evidence without
violating the well-entrenched rule that findings of fact of the
COMELEC are binding on the Court. Ty disputes Japzon’s
assertion that the COMELEC committed grave abuse of
discretion in rendering the assailed Resolutions, and avers
that the said Resolutions were based on the evidence
presented by the parties and consistent with prevailing
jurisprudence on the matter. Even assuming that Ty, the
winning candidate for the Office of Mayor of the Municipality
of General Macarthur, Eastern Samar, is indeed disqualified
from running in the local elections, Japzon as the second
placer in the same elections cannot take his place.
The Office of the Solicitor General (OSG), meanwhile, is of
the position that Ty failed to meet the one-year residency
requirement set by law to qualify him to run as a mayoralty
candidate in the 14 May 2007 local elections. The OSG
opines that Ty was unable to prove that he intended to
remain in the Philippines for good and ultimately make it his
new domicile. Nonetheless, the OSG still prays for the
dismissal of the instant Petition considering that Japzon,
gathering only the second highest number of votes in the
local elections, cannot be declared the duly elected Mayor of
the Municipality of General Macarthur, Eastern Samar, even
if Ty is found to be disqualified from running for the said
position. And since it took a position adverse to that of the
COMELEC, the OSG prays from this Court to allow the
COMELEC to file its own Comment on Japzon’s Petition. The
Court, however, no longer acted on this particular prayer of
the COMELEC, and with the submission of the Memoranda
by Japzon, Ty, and the OSG, it already submitted the case
for decision.
The Court finds no merit in the Petition at bar.
There is no dispute that Ty was a natural-born Filipino. He was born
and raised in the Municipality of General Macarthur, Eastern Samar,
Philippines. However, he left to work in the USA and eventually
became an American citizen. On 2 October 2005, Ty reacquired his
Philippine citizenship by taking his Oath of Allegiance to the Republic
of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine
Consulate General in Los Angeles, California, USA, in accordance
with the provisions of Republic Act No. 9225.16 At this point, Ty still
held dual citizenship, i.e., American and Philippine. It was only on 19
March 2007 that Ty renounced his American citizenship before a
notary public and, resultantly, became a pure Philippine citizen
again.
It bears to point out that Republic Act No. 9225 governs the manner
in which a natural-born Filipino may reacquire or retain17 his
Philippine citizenship despite acquiring a foreign citizenship, and
provides for his rights and liabilities under such circumstances. A
close scrutiny of said statute would reveal that it does not at all
touch on the matter of residence of the natural-born Filipino taking
advantage of its provisions. Republic Act No. 9225 imposes no
residency requirement for the reacquisition or retention of Philippine
citizenship; nor does it mention any effect of such reacquisition or
retention of Philippine citizenship on the current residence of the
concerned natural-born Filipino. Clearly, Republic Act No. 9225
treats citizenship independently of residence. This is only logical and
consistent with the general intent of the law to allow for dual
citizenship. Since a natural-born Filipino may hold, at the same time,
both Philippine and foreign citizenships, he may establish residence
either in the Philippines or in the foreign country of which he is also
a citizen.
Residency in the Philippines only becomes relevant when the
natural-born Filipino with dual citizenship decides to run for public
office.
Section 5(2) of Republic Act No. 9225 reads:
SEC. 5. Civil and Political Rights and Liabilities. – Those who retain
or reacquire 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:
xxxx
(2) Those seeking elective public office in the Philippines shall meet
the qualifications for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of
any and all foreign citizenship before any public officer authorized to
administer an oath.
Breaking down the afore-quoted provision, for a natural born
Filipino, who reacquired or retained his Philippine citizenship under
Republic Act No. 9225, to run for public office, he must: (1) meet
the qualifications for holding such public office as required by the
Constitution and existing laws; and (2) make a personal and sworn
renunciation of any and all foreign citizenships before any public
officer authorized to administer an oath.
That Ty complied with the second requirement is beyond question.
On 19 March 2007, he personally executed a Renunciation of
Foreign Citizenship before a notary public. By the time he filed his
Certificate of Candidacy for the Office of Mayor of the Municipality of
22
General Macarthur, Eastern Samar, on 28 March 2007, he
had already effectively renounced his American citizenship,
keeping solely his Philippine citizenship.
The other requirement of Section 5(2) of Republic Act No.
9225 pertains to the qualifications required by the
Constitution and existing laws.
Article X, Section 3 of the Constitution left it to Congress to
enact a local government code which shall provide, among
other things, for the qualifications, election, appointment
and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to the
organization and operation of the local units.
Pursuant to the foregoing mandate, Congress enacted
Republic Act No. 7160, the Local Government Code of 1991,
Section 39 of which lays down the following qualifications
for local elective officials:
SEC. 39. Qualifications. – (a) An elective local official must
be a citizen of the Philippines; a registered voter in the
barangay, municipality, city or province or, in the case of a
member of the sangguniang panlalawigan, sangguniang
panlungsod, or sanggunian bayan, the district where he
intends to be elected; a resident therein for at least one (1)
year immediately preceding the day of the election; and
able to read and write Filipino or any other local language or
dialect.
xxxx
(c) Candidates for the position of mayor or vice mayor of
independent component cities, component cities, or
municipalities must be at least twenty-one (21) years of age
on election day.
The challenge against Ty’s qualification to run as a
candidate for the Office of Mayor of the Municipality of
General Macarthur, Eastern Samar, centers on his purported
failure to meet the one-year residency requirement in the
said municipality.
The term "residence" is to be understood not in its common
acceptation as referring to "dwelling" or "habitation," but
rather to "domicile" or legal residence, that is, "the place
where a party actually or constructively has his permanent
home, where he, no matter where he may be found at any
given time, eventually intends to return and remain (animus
manendi)."18
A domicile of origin is acquired by every person at birth. It
is usually the place where the child’s parents reside and
continues until the same is abandoned by acquisition of new
domicile (domicile of choice). In Coquilla,19 the Court
already acknowledged that for an individual to acquire
American citizenship, he must establish residence in the
USA. Since Ty himself admitted that he became a
naturalized American citizen, then he must have necessarily
abandoned the Municipality of General Macarthur, Eastern
Samar, Philippines, as his domicile of origin; and transferred
to the USA, as his domicile of choice.
As has already been previously discussed by this Court herein, Ty’s
reacquisition of his Philippine citizenship under Republic Act No.
9225 had no automatic impact or effect on his residence/domicile.
He could still retain his domicile in the USA, and he did not
necessarily regain his domicile in the Municipality of General
Macarthur, Eastern Samar, Philippines. Ty merely had the option to
again establish his domicile in the Municipality of General Macarthur,
Eastern Samar, Philippines, said place becoming his new domicile of
choice. The length of his residence therein shall be determined from
the time he made it his domicile of choice, and it shall not retroact
to the time of his birth.
How then could it be established that Ty indeed established a new
domicile in the Municipality of General Macarthur, Eastern Samar,
Philippines?
In Papandayan, Jr. v. Commission on Elections,20 the Court
provided a summation of the different principles and concepts in
jurisprudence relating to the residency qualification for elective local
officials. Pertinent portions of the ratio in Papandayan are
reproduced below:
Our decisions have applied certain tests and concepts in resolving
the issue of whether or not a candidate has complied with the
residency requirement for elective positions. The principle of animus
revertendi has been used to determine whether a candidate has an
"intention to return" to the place where he seeks to be elected.
Corollary to this is a determination whether there has been an
"abandonment" of his former residence which signifies an intention
to depart therefrom. In Caasi v. Court of Appeals, this Court set
aside the appealed orders of the COMELEC and the Court of Appeals
and annulled the election of the respondent as Municipal Mayor of
Bolinao, Pangasinan on the ground that respondent’s immigration to
the United States in 1984 constituted an abandonment of his
domicile and residence in the Philippines. Being a green card holder,
which was proof that he was a permanent resident or immigrant of
the United States, and in the absence of any waiver of his status as
such before he ran for election on January 18, 1988, respondent
was held to be disqualified under §68 of the Omnibus Election Code
of the Philippines (Batas Pambansa Blg. 881).
In Co v. Electoral Tribunal of the House of Representatives,
respondent Jose Ong, Jr. was proclaimed the duly elected
representative of the 2nd District of Northern Samar. The House of
Representatives Electoral Tribunal (HRET) upheld his election
against claims that he was not a natural born Filipino citizen and a
resident of Laoang, Northern Samar. In sustaining the ruling of the
HRET, this Court, citing Faypon v. Quirino, applied the concept of
animus revertendi or "intent to return," stating that his absence
from his residence in order to pursue studies or practice his
profession as a certified public accountant in Manila or his
registration as a voter other than in the place where he was elected
did not constitute loss of residence. The fact that respondent made
periodical journeys to his home province in Laoag revealed that he
always had animus revertendi.
In Abella v. Commission on Elections and Larrazabal v. Commission
on Elections, it was explained that the determination of a person’s
legal residence or domicile largely depends upon the intention that
may be inferred from his acts, activities, and utterances. In that
case, petitioner Adelina Larrazabal, who had obtained the highest
number of votes in the local elections of February 1, 1988 and who
had thus been proclaimed as the duly elected governor, was
disqualified by the COMELEC for lack of residence and registration
23
qualifications, not being a resident nor a registered voter of
Kananga, Leyte. The COMELEC ruled that the attempt of
petitioner Larrazabal to change her residence one year
before the election by registering at Kananga, Leyte to
qualify her to run for the position of governor of the
province of Leyte was proof that she considered herself a
resident of Ormoc City. This Court affirmed the ruling of the
COMELEC and held that petitioner Larrazabal had
established her residence in Ormoc City, not in Kananga,
Leyte, from 1975 up to the time that she ran for the
position of Provincial Governor of Leyte on February 1,
1988. There was no evidence to show that she and her
husband maintained separate residences, i.e., she at
Kananga, Leyte and her husband at Ormoc City. The fact
that she occasionally visited Kananga, Leyte through the
years did not signify an intention to continue her residence
after leaving that place.
In Romualdez v. RTC, Br. 7, Tacloban City, the Court held
that "domicile" and "residence" are synonymous. The term
"residence," as used in the election law, imports not only an
intention to reside in a fixed place but also personal
presence in that place, coupled with conduct indicative of
such intention. "Domicile" denotes a fixed permanent
residence to which when absent for business or pleasure, or
for like reasons, one intends to return. In that case,
petitioner Philip G. Romualdez established his residence
during the early 1980’s in Barangay Malbog, Tolosa, Leyte.
It was held that the sudden departure from the country of
petitioner, because of the EDSA People’s Power Revolution
of 1986, to go into self-exile in the United States until
favorable conditions had been established, was not
voluntary so as to constitute an abandonment of residence.
The Court explained that in order to acquire a new domicile
by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain
there, and (3) an intention to abandon the old domicile.
There must be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of
choice must be for an indefinite period of time; the change
of residence must be voluntary; and the residence at the
place chosen for the new domicile must be actual.
Ultimately, the Court recapitulates in Papandayan, Jr. that it
is the fact of residence that is the decisive factor in
determining whether or not an individual has satisfied the
residency qualification requirement.
As espoused by Ty, the issue of whether he complied with
the one-year residency requirement for running for public
office is a question of fact. Its determination requires the
Court to review, examine and evaluate or weigh the
probative value of the evidence presented by the parties
before the COMELEC.
The COMELEC, taking into consideration the very same
pieces of evidence presently before this Court, found that
Ty was a resident of the Municipality of General Macarthur,
Eastern Samar, one year prior to the 14 May 2007 local
elections. It is axiomatic that factual findings of
administrative agencies, such as the COMELEC, which have
acquired expertise in their field are binding and conclusive
on the Court. An application for certiorari against actions of
the COMELEC is confined to instances of grave abuse of
discretion amounting to patent and substantial denial of due
process, considering that the COMELEC is presumed to be most
competent in matters falling within its domain.21
The Court even went further to say that the rule that factual findings
of administrative bodies will not be disturbed by courts of justice,
except when there is absolutely no evidence or no substantial
evidence in support of such findings, should be applied with greater
force when it concerns the COMELEC, as the framers of the
Constitution intended to place the COMELEC—created and explicitly
made independent by the Constitution itself—on a level higher than
statutory administrative organs. The factual finding of the COMELEC
en banc is therefore binding on the Court.22
The findings of facts of quasi-judicial agencies which have acquired
expertise in the specific matters entrusted to their jurisdiction are
accorded by this Court not only respect but even finality if they are
supported by substantial evidence. Only substantial, not
preponderance, of evidence is necessary. Section 5, Rule 133 of the
Rules of Court provides that in cases filed before administrative or
quasi-judicial bodies, a fact may be deemed established if it is
supported by substantial evidence, or that amount of relevant
evidence which a reasonable mind might accept as adequate to
justify a conclusion.23
The assailed Resolutions dated 31 July 2007 and 28 September 2007
of the COMELEC First Division and en banc, respectively, were both
supported by substantial evidence and are, thus, binding and
conclusive upon this Court.
Ty’s intent to establish a new domicile of choice in the Municipality
of General Macarthur, Eastern Samar, Philippines, became apparent
when, immediately after reacquiring his Philippine citizenship on 2
October 2005, he applied for a Philippine passport indicating in his
application that his residence in the Philippines was at A. Mabini St.,
Barangay 6, Poblacion, General Macarthur, Eastern Samar. For the
years 2006 and 2007, Ty voluntarily submitted himself to the local
tax jurisdiction of the Municipality of General Macarthur, Eastern
Samar, by paying community tax and securing CTCs from the said
municipality stating therein his address as A. Mabini St., Barangay 6,
Poblacion, General Macarthur, Eastern Samar. Thereafter, Ty applied
for and was registered as a voter on 17 July 2006 in Precinct 0013A,
Barangay 6, Poblacion, General Macarthur, Eastern Samar.
In addition, Ty has also been bodily present in the Municipality of
General Macarthur, Eastern Samar, Philippines, since his arrival on 4
May 2006, inarguably, just a little over a year prior to the 14 May
2007 local elections. Japzon maintains that Ty’s trips abroad during
said period, i.e., to Bangkok, Thailand (from 14 to 18 July 2006),
and to the USA (from 31 October 2006 to 19 January 2007), indicate
that Ty had no intention to permanently reside in the Municipality of
General Macarthur, Eastern Samar, Philippines. The COMELEC First
Division and en banc, as well as this Court, however, view these
trips differently. The fact that Ty did come back to the Municipality
of General Macarthur, Eastern Samar, Philippines, after said trips, is
a further manifestation of his animus manendi and animus
revertendi.
There is no basis for this Court to require Ty to stay in and never
leave at all the Municipality of General Macarthur, Eastern Samar,
for the full one-year period prior to the 14 May 2007 local elections
so that he could be considered a resident thereof. To the contrary,
the Court has previously ruled that absence from residence to
pursue studies or practice a profession or registration as a voter
24
other than in the place where one is elected, does not
constitute loss of residence.24 The Court also notes, that
even with his trips to other countries, Ty was actually
present in the Municipality of General Macarthur, Eastern
Samar, Philippines, for at least nine of the 12 months
preceding the 14 May 2007 local elections. Even if length of
actual stay in a place is not necessarily determinative of the
fact of residence therein, it does strongly support and is
only consistent with Ty’s avowed intent in the instant case
to establish residence/domicile in the Municipality of General
Macarthur, Eastern Samar.

Japzon repeatedly brings to the attention of this Court that

Ty arrived in the Municipality of General Macarthur, Eastern
Samar, on 4 May 2006 only to comply with the one-year
residency requirement, so Ty could run as a mayoralty
candidate in the 14 May 2007 elections. In Aquino v.
COMELEC,25 the Court did not find anything wrong in an
individual changing residences so he could run for an
elective post, for as long as he is able to prove with
reasonable certainty that he has effected a change of
residence for election law purposes for the period required
by law. As this Court already found in the present case, Ty
has proven by substantial evidence that he had established
residence/domicile in the Municipality of General Macarthur,
Eastern Samar, by 4 May 2006, a little over a year prior to
the 14 May 2007 local elections, in which he ran as a
candidate for the Office of the Mayor and in which he
garnered the most number of votes.

Finally, when the evidence of the alleged lack of residence

qualification of a candidate for an elective position is weak
or inconclusive and it clearly appears that the purpose of
the law would not be thwarted by upholding the victor’s
right to the office, the will of the electorate should be
respected. For the purpose of election laws is to give effect
to, rather than frustrate, the will of the voters.26 To
successfully challenge Ty’s disqualification, Japzon must
clearly demonstrate that Ty’s ineligibility is so patently
antagonistic to constitutional and legal principles that G.R. No. 162759 August 4, 2006
overriding such ineligibility and thereby giving effect to the
apparent will of the people would ultimately create greater LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA,
prejudice to the very democratic institutions and juristic ALEJANDRO A. ESCLAMADO, ARMANDO B. HEREDIA,
traditions that our Constitution and laws so zealously REUBEN S. SEGURITAN, ERIC LACHICA FURBEYRE,
protect and promote. In this case, Japzon failed to TERESITA A. CRUZ, JOSEFINA OPENA DISTERHOFT,
substantiate his claim that Ty is ineligible to be Mayor of the MERCEDES V. OPENA, CORNELIO R. NATIVIDAD, EVELYN D.
Municipality of General Macarthur, Eastern Samar, NATIVIDAD, Petitioners,
Philippines. vs.
COMMISSION ON ELECTIONS, Respondent.
WHEREFORE, premises considered, the instant Petition for
Certiorari is DISMISSED. DECISION

SO ORDERED. GARCIA, J.:

In this petition for certiorari and mandamus, petitioners, referring to

themselves as "duals" or dual citizens, pray that they and others
who retained or reacquired Philippine citizenship under Republic Act
(R.A.) No. 9225, the Citizenship Retention and Re-Acquisition Act of
2003, be allowed to avail themselves of the mechanism provided
under the Overseas Absentee Voting Act of 2003 1 (R.A. 9189) and
that the Commission on Elections (COMELEC) accordingly be ordered
to allow them to vote and register as absentee voters under the
aegis of R.A. 9189.

25
The facts:
Petitioners are successful applicants for recognition of
Philippine citizenship under R.A. 9225 which accords to such
applicants the right of suffrage, among others. Long before
the May 2004 national and local elections, petitioners
sought registration and certification as "overseas absentee
voter" only to be advised by the Philippine Embassy in the
United States that, per a COMELEC letter to the Department
of Foreign Affairs dated September 23, 2003 2, they have
yet no right to vote in such elections owing to their lack of
the one-year residence requirement prescribed by the
Constitution. The same letter, however, urged the different
Philippine posts abroad not to discontinue their campaign
for voter’s registration, as the residence restriction adverted
to would contextually affect merely certain individuals who
would likely be eligible to vote in future elections.
Prodded for clarification by petitioner Loida Nicolas-Lewis in
the light of the ruling in Macalintal vs. COMELEC 3 on the
residency requirement, the COMELEC wrote in response:
Although R.A. 9225 enjoys the presumption of
constitutionality …, it is the Commission's position that those
who have availed of the law cannot exercise the right of
suffrage given under the OAVL for the reason that the OAVL
was not enacted for them. Hence, as Filipinos who have
merely re-acquired their citizenship on 18 September 2003
at the earliest, and as law and jurisprudence now stand,
they are considered regular voters who have to meet the
requirements of residency, among others under Section 1,
Article 5 of the Constitution. 4
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 filed on April 1, 2004 this petition for
certiorari and mandamus.
A little over a week before the May 10, 2004 elections, or on
April 30, 2004, the COMELEC filed 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 Office of the Solicitor General (OSG)
filed a Manifestation (in Lieu of Comment), therein stating
that "all qualified 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 affirmative, 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 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. 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 8 - 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:
(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 … [been] 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 … been found
guilty of Disloyalty as defined under Article 137 of the Revised Penal
Code, ….;
(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.
26
(e) Any citizen of the Philippines abroad previously declared
insane or incompetent by competent authority …. (Words in
bracket added.)
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. 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 qualified 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. 10 (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 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." 11
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.
SEC. 3. Retention of Philippine Citizenship. – Any provision of law to
the contrary notwithstanding, natural-born citizens of the Philippines
who have lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country are hereby deemed to
have re-acquired Philippine citizenship upon taking the following
oath of allegiance to the Republic:
xxx xxx xxx
Natural-born citizens of the Philippines who, after the effectivity of
this Act, become citizens of a foreign country shall retain their
Philippine citizenship upon taking the aforesaid oath.
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.
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;
(2) Those seeking elective public office in the Philippines shall meet
the qualifications for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of
any and all foreign citizenship …;
3) xxx xxx xxx.
(4) xxx xxx xxx;
(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 office in the
country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned
officers in the armed forces of the country which they are
naturalized citizens.
27
After what appears to be a successful application for
recognition of Philippine citizenship under R.A. 9189,
petitioners now invoke their right to enjoy … political rights,
specifically the right of suffrage, pursuant to Section 5
thereof.
Opposing the petitioners’ bid, however, respondent
COMELEC invites attention to the same Section 5 (1)
providing that "duals" can enjoy their right to vote, as an
adjunct to political rights, only if they meet the
requirements of Section 1, Article V of the Constitution, R.A.
9189 and other existing laws. Capitalizing on what at first
blush is the clashing provisions of the aforecited provision of
the Constitution, which, to repeat, requires residency in the
Philippines for a certain period, and R.A. 9189 which grants
a Filipino non-resident absentee voting rights, 12 COMELEC
argues:
4. ‘DUALS’ MUST FIRST ESTABLISH THEIR DOMICILE/
RESIDENCE IN THE PHILIPPINES
4.01. The inclusion of such additional and specific
requirements in RA 9225 is logical. The ‘duals,’ upon
renouncement of their Filipino citizenship and acquisition of
foreign citizenship, have practically and legally abandoned
their domicile and severed their legal ties to the homeland
as a consequence. Having subsequently acquired a second
citizenship (i.e., Filipino) then, ‘duals’ must, for purposes of
voting, first of all, decisively and definitely establish their
domicile through positive acts; 13
The Court disagrees.
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 first
before they can exercise their right to vote. On the contrary,
R.A. 9225, in implicit acknowledgment that "duals" are most
likely non-residents, grants under its Section 5(1) the same
right of suffrage as that granted an absentee voter under
R.A. 9189. It cannot be overemphasized that R.A. 9189
aims, in essence, to enfranchise as much as possible all
overseas Filipinos who, save for the residency requirements
exacted of an ordinary voter under ordinary conditions, are
qualified to vote. Thus, wrote the Court in Macalintal:
It is clear from these discussions of the … Constitutional
Commission that [it] 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 [Article V] immediately after the
residency requirement of Section 1. By the doctrine of
necessary implication in statutory construction, …, 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 ….
xxx xxx xxx
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.
xxx xxx xxx
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 …. We are separated only by
a creek. But one who votes in Makati cannot vote in Pateros unless
28
he resides in Pateros for six months. That is how restrictive
our Constitution is. ….
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.
xxx xxx xxx
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 … – "residency" has been interpreted as
synonymous with "domicile."
But the third more practical reason, … 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. 14 (Emphasis and words in bracket added;
citations omitted)
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:
1.05 With the passage of RA 9225 the scope of overseas
absentee voting has been consequently expanded so as to
include Filipinos who are also citizens of other countries,
subject, however, to the strict prerequisites indicated in the
pertinent provisions of RA 9225; 15
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.
R.A. 9189 defines the terms adverted to in the following
wise:
"Absentee Voting" refers to the process by which qualified
citizens of the Philippines abroad exercise their right to
vote;
"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;
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.
It is very likely that a considerable number of those unmarried
children below eighteen (18) years of age had never set foot in the
Philippines. Now then, if the next generation of "duals" may
nonetheless avail themselves the right to enjoy full civil and political
rights under Section 5 of the Act, then there is neither no rhyme nor
reason why the petitioners and other present day "duals," provided
they meet the requirements under Section 1, Article V of the
Constitution in relation to R.A. 9189, be denied the right of suffrage
as an overseas absentee voter. Congress could not have plausibly
intended such absurd situation.
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.
G.R. No. 160869 May 11, 2007
AASJS (ADVOCATES AND ADHERENTS OF SOCIAL JUSTICE
FOR SCHOOL TEACHERS AND ALLIED WORKERS) MEMBER -
HECTOR GUMANGAN CALILUNG, Petitioner,
vs.
THE HONORABLE SIMEON DATUMANONG, in his official
capacity as the Secretary of Justice, Respondent.
DECISION
QUISUMBING, J.:
This is an original action for prohibition under Rule 65 of the 1997
Revised Rules of Civil Procedure.
Petitioner filed the instant petition against respondent, then
Secretary of Justice Simeon Datumanong, the official tasked to
implement laws governing citizenship.1 Petitioner prays that a writ
of prohibition be issued to stop respondent from implementing
Republic Act No. 9225, entitled "An Act Making the Citizenship of
Philippine Citizens Who Acquire Foreign Citizenship Permanent,
Amending for the Purpose Commonwealth Act No. 63, As Amended,
and for Other Purposes." Petitioner avers that Rep. Act No. 9225 is
unconstitutional as it violates Section 5, Article IV of the 1987
29
Constitution that states, "Dual allegiance of citizens is
inimical to the national interest and shall be dealt with by
law."
Rep. Act No. 9225, signed into law by President Gloria M.
Arroyo on August 29, 2003, reads:
SECTION 1. Short Title.-This Act shall be known as the
"Citizenship Retention and Reacquisition Act of 2003."
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.
SEC. 3. Retention of Philippine Citizenship.-Any provision of
law to the contrary notwithstanding, natural-born citizens of
the Philippines who have lost their Philippine citizenship by
reason of their naturalization as citizens of a foreign country
are hereby deemed to have reacquired Philippine citizenship
upon taking the following oath of allegiance to the Republic:
"I ___________________________, solemnly swear (or
affirm) that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal
orders promulgated by the duly constituted authorities of
the Philippines; and I hereby declare that I recognize and
accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I
impose this obligation upon myself voluntarily without
mental reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the
effectivity of this Act, become citizens of a foreign country
shall retain their Philippine citizenship upon taking the
aforesaid oath.
SEC. 4. Derivative Citizenship. - The unmarried child,
whether legitimate, illegitimate or adopted, below eighteen
(18) years of age, of those who reacquire Philippine
citizenship upon effectivity of this Act shall be deemed
citizens of the Philippines.
SEC. 5. Civil and Political Rights and Liabilities. - Those who
retain or reacquire 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;
(2) Those seeking elective public office in the Philippines
shall meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the
time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer
an oath;
(3) Those appointed to any public office shall subscribe and swear to
an oath of allegiance to the Republic of the Philippines and its duly
constituted authorities prior to their assumption of office: Provided,
That they renounce their oath of allegiance to the country where
they took that oath;
(4) Those intending to practice their profession in the Philippines
shall apply with the proper authority for a license or permit to
engage in such practice; and
(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 office in the
country of which they are naturalized citizens; and/or
(b) are in the active service as commissioned or noncommissioned
officers in the armed forces of the country which they are
naturalized citizens.
SEC. 6. Separability Clause. - If any section or provision of this Act is
held unconstitutional or invalid, any other section or provision not
affected thereby shall remain valid and effective.
SEC. 7. Repealing Clause. - All laws, decrees, orders, rules and
regulations inconsistent with the provisions of this Act are hereby
repealed or modified accordingly.
SEC. 8. Effectivity Clause. - This Act shall take effect after fifteen
(15) days following its publication in the Official Gazette or two (2)
newspapers of general circulation.
In this petition for prohibition, the following issues have been raised:
(1) Is Rep. Act No. 9225 unconstitutional? (2) Does this Court have
jurisdiction to pass upon the issue of dual allegiance?
We shall discuss these issues jointly.
Petitioner contends that Rep. Act No. 9225 cheapens Philippine
citizenship. He avers that Sections 2 and 3 of Rep. Act No. 9225,
together, allow dual allegiance and not dual citizenship. Petitioner
maintains that Section 2 allows all Filipinos, either natural-born or
naturalized, who become foreign citizens, to retain their Philippine
citizenship without losing their foreign citizenship. Section 3 permits
dual allegiance because said law allows natural-born citizens of the
Philippines to regain their Philippine citizenship by simply taking an
oath of allegiance without forfeiting their foreign allegiance.2 The
Constitution, however, is categorical that dual allegiance is inimical
to the national interest.
The Office of the Solicitor General (OSG) claims that Section 2
merely declares as a state policy that "Philippine citizens who
become citizens of another country shall be deemed not to have lost
their Philippine citizenship." The OSG further claims that the oath in
Section 3 does not allow dual allegiance since the oath taken by the
former Filipino citizen is an effective renunciation and repudiation of
his foreign citizenship. The fact that the applicant taking the oath
recognizes and accepts the supreme authority of the Philippines is
an unmistakable and categorical affirmation of his undivided loyalty
to the Republic.3
In resolving the aforecited issues in this case, resort to the
deliberations of Congress is necessary to determine the intent of the
30
legislative branch in drafting the assailed law. During the
deliberations, the issue of whether Rep. Act No. 9225 would
allow dual allegiance had in fact been the subject of debate.
The record of the legislative deliberations reveals the
following:
xxxx
Pursuing his point, Rep. Dilangalen noted that under the
measure, two situations exist - - the retention of foreign
citizenship, and the reacquisition of Philippine citizenship. In
this case, he observed that there are two citizenships and
therefore, two allegiances. He pointed out that under the
Constitution, dual allegiance is inimical to public interest. He
thereafter asked whether with the creation of dual
allegiance by reason of retention of foreign citizenship and
the reacquisition of Philippine citizenship, there will now be
a violation of the Constitution…
Rep. Locsin underscored that the measure does not seek to
address the constitutional injunction on dual allegiance as
inimical to public interest. He said that the proposed law
aims to facilitate the reacquisition of Philippine citizenship
by speedy means. However, he said that in one sense, it
addresses the problem of dual citizenship by requiring the
taking of an oath. He explained that the problem of dual
citizenship is transferred from the Philippines to the foreign
country because the latest oath that will be taken by the
former Filipino is one of allegiance to the Philippines and not
to the United States, as the case may be. He added that this
is a matter which the Philippine government will have no
concern and competence over.
Rep. Dilangalen asked why this will no longer be the
country's concern, when dual allegiance is involved.
Rep. Locsin clarified that this was precisely his objection to
the original version of the bill, which did not require an oath
of allegiance. Since the measure now requires this oath, the
problem of dual allegiance is transferred from the
Philippines to the foreign country concerned, he explained.
xxxx
Rep. Dilangalen asked whether in the particular case, the
person did not denounce his foreign citizenship and
therefore still owes allegiance to the foreign government,
and at the same time, owes his allegiance to the Philippine
government, such that there is now a case of dual
citizenship and dual allegiance.
Rep. Locsin clarified that by swearing to the supreme
authority of the Republic, the person implicitly renounces his
foreign citizenship. However, he said that this is not a
matter that he wishes to address in Congress because he is
not a member of a foreign parliament but a Member of the
House.
xxxx
Rep. Locsin replied that it is imperative that those who have
dual allegiance contrary to national interest should be dealt
with by law. However, he said that the dual allegiance
problem is not addressed in the bill. He then cited the
Declaration of Policy in the bill which states that "It is hereby
declared the policy of the State that all citizens who become citizens
of another country shall be deemed not to have lost their Philippine
citizenship under the conditions of this Act." He stressed that what
the bill does is recognize Philippine citizenship but says nothing
about the other citizenship.
Rep. Locsin further pointed out that the problem of dual allegiance is
created wherein a natural-born citizen of the Philippines takes an
oath of allegiance to another country and in that oath says that he
abjures and absolutely renounces all allegiance to his country of
origin and swears allegiance to that foreign country. The original Bill
had left it at this stage, he explained. In the present measure, he
clarified, a person is required to take an oath and the last he utters
is one of allegiance to the country. He then said that the problem of
dual allegiance is no longer the problem of the Philippines but of the
other foreign country.4 (Emphasis supplied.)
From the above excerpts of the legislative record, it is clear that the
intent of the legislature in drafting Rep. Act No. 9225 is to do away
with the provision in Commonwealth Act No. 635 which takes away
Philippine citizenship from natural-born Filipinos who become
naturalized citizens of other countries. What Rep. Act No. 9225 does
is allow dual citizenship to natural-born Filipino citizens who have
lost Philippine citizenship by reason of their naturalization as citizens
of a foreign country. On its face, it does not recognize dual
allegiance. By swearing to the supreme authority of the Republic,
the person implicitly renounces his foreign citizenship. Plainly, from
Section 3, Rep. Act No. 9225 stayed clear out of the problem of dual
allegiance and shifted the burden of confronting the issue of
whether or not there is dual allegiance to the concerned foreign
country. What happens to the other citizenship was not made a
concern of Rep. Act No. 9225.
Petitioner likewise advances the proposition that although Congress
has not yet passed any law on the matter of dual allegiance, such
absence of a law should not be justification why this Court could not
rule on the issue. He further contends that while it is true that there
is no enabling law yet on dual allegiance, the Supreme Court,
through Mercado v. Manzano,6 already had drawn up the guidelines
on how to distinguish dual allegiance from dual citizenship.7
For its part, the OSG counters that pursuant to Section 5, Article IV
of the 1987 Constitution, dual allegiance shall be dealt with by law.
Thus, until a law on dual allegiance is enacted by Congress, the
Supreme Court is without any jurisdiction to entertain issues
regarding dual allegiance.8
To begin with, Section 5, Article IV of the Constitution is a
declaration of a policy and it is not a self-executing provision. The
legislature still has to enact the law on dual allegiance. In Sections 2
and 3 of Rep. Act No. 9225, the framers were not concerned with
dual citizenship per se, but with the status of naturalized citizens
who maintain their allegiance to their countries of origin even after
their naturalization.9 Congress was given a mandate to draft a law
that would set specific parameters of what really constitutes dual
allegiance.10 Until this is done, it would be premature for the judicial
department, including this Court, to rule on issues pertaining to dual
allegiance.
Neither can we subscribe to the proposition of petitioner that a law
is not needed since the case of Mercado had already set the
guidelines for determining dual allegiance. Petitioner misreads
Mercado. That case did not set the parameters of what constitutes
31
dual allegiance but merely made a distinction between dual
allegiance and dual citizenship.

Moreover, in Estrada v. Sandiganbayan,11 we said that the

courts must assume that the legislature is ever conscious of
the borders and edges of its plenary powers, and passed
laws with full knowledge of the facts and for the purpose of
promoting what is right and advancing the welfare of the
majority. Hence, in determining whether the acts of the
legislature are in tune with the fundamental law, we must
proceed with judicial restraint and act with caution and
forbearance.12 The doctrine of separation of powers
demands no less. We cannot arrogate the duty of setting
the parameters of what constitutes dual allegiance when the
Constitution itself has clearly delegated the duty of
determining what acts constitute dual allegiance for study
and legislation by Congress.

WHEREFORE, the petition is hereby DISMISSED for lack of

merit.

SO ORDERED.

32