EN BANC application or interpretation of constitutional provision is raised before this

[G.R. No. 157013. July 10, 2003] Court (as in the instant case), it becomes a legal issue which the Court is
ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON bound by constitutional mandate to decide.
ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as Executive
Secretary, and HON. EMILIA T. BONCODIN, Secretary of the Department of In another case of paramount impact to the Filipino people, it has been
Budget and Management, respondents. expressed that it is illogical to await the adverse consequences of the
law in order to consider the controversy actual and ripe for judicial
DECISION resolution.[8] In yet another case, the Court said that:

AUSTRIA-MARTINEZ, J.: . . . 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
Before the Court is a petition for certiorari and prohibition filed by is convinced that this must be done. In arriving at this conclusion, its only
Romulo B. Macalintal, a member of the Philippine Bar, seeking a criterion will be the Constitution and God as its conscience gives it in the light
declaration that certain provisions of Republic Act No. 9189 (The to probe its meaning and discover its purpose. Personal motives and political
Overseas Absentee Voting Act of 2003)[1] suffer from constitutional considerations are irrelevancies that cannot influence its decisions.
infirmity. Claiming that he has actual and material legal interest in the Blandishment is as ineffectual as intimidation, for all the awesome power of
subject matter of this case in seeing to it that public funds are properly the Congress and Executive, the Court will not hesitate to make the hammer
and lawfully used and appropriated, petitioner filed the instant petition fall heavily, where the acts of these departments, or of any official, betray the
as a taxpayer and as a lawyer. peoples will as expressed in the Constitution . . .[9]

The Court upholds the right of petitioner to file the present

The need to consider the constitutional issues raised before the
petition.
Court is further buttressed by the fact that it is now more than fifteen
R.A. No. 9189, entitled, An Act Providing for A System of years since the ratification of the 1987 Constitution requiring Congress
Overseas Absentee Voting by Qualified Citizens of the Philippines to provide a system for absentee voting by qualified Filipinos
Abroad, Appropriating Funds Therefor, and for Other abroad.Thus, strong reasons of public policy demand that the Court
Purposes, appropriates funds under Section 29 thereof which provides resolves the instant petition[10] and determine whether Congress has
that a supplemental budget on the General Appropriations Act of the acted within the limits of the Constitution or if it had gravely abused the
year of its enactment into law shall provide for the necessary amount discretion entrusted to it.[11]
to carry out its provisions. Taxpayers, such as herein petitioner, have
The petitioner raises three principal questions:
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 A. Does Section 5(d) of Rep. Act No. 9189 allowing the
funds[3] because expenditure of public funds by an officer of the State registration of voters who are immigrants or permanent
for the purpose of executing an unconstitutional act constitutes a residents in other countries by their mere act of executing an
misapplication of such funds.[4] affidavit expressing their intention to return to the Philippines,
violate the residency requirement in Section 1 of Article V of
The challenged provision of law involves a public right that the Constitution?
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 B. Does Section 18.5 of the same law empowering the
the Filipino people. This has been explicitly pronounced in Kapatiran COMELEC to proclaim the winning candidates for national
ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, [5] where offices and party list representatives including the President and
the Court held: the Vice-President violate the constitutional mandate under
Section 4, Article VII of the Constitution that the winning
candidates for President and the Vice-President shall be
Objections to taxpayers suit for lack of sufficient personality standing, or proclaimed as winners by Congress?
interest are, however, in the main procedural matters. Considering the
importance to the public of the cases at bar, and in keeping with the Courts
duty, under the 1987 Constitution, to determine whether or not the other C. May Congress, through the Joint Congressional Oversight
branches of government have kept themselves within the limits of the Committee created in Section 25 of Rep. Act No. 9189, exercise
Constitution and the laws and that they have not abused the discretion given to the power to review, revise, amend, and approve the
them, the Court has brushed aside technicalities of procedure and has taken Implementing Rules and Regulations that the Commission on
cognizance of these petitions.[6] Elections shall promulgate without violating the independence
of the COMELEC under Section 1, Article IX-A of the
Constitution?
Indeed, in this case, the Court may set aside procedural rules as
the constitutional right of suffrage of a considerable number of Filipinos
is involved. The Court will resolve the questions in seriatim.

The question of propriety of the instant petition which may A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1,
appear to be visited by the vice of prematurity as there are no ongoing Article V of the 1987 Constitution of the Republic of the
proceedings in any tribunal, board or before a government official Philippines?
exercising judicial, quasi-judicial or ministerial functions as required by
Section 5(d) provides:
Rule 65 of the Rules of Court, dims in light of the importance of the
constitutional issues raised by the petitioner. In Taada vs.
Angara,[7] the Court held: Sec. 5. Disqualifications. The following shall be disqualified from voting
under this Act:
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 d) An immigrant or a permanent resident who is recognized as such in the host
rather than political. The duty (to adjudicate) remains to assure that the country, unless he/she executes, upon registration, an affidavit prepared for
supremacy of the Constitution is upheld. Once a controversy as to the the purpose by the Commission declaring that he/she shall resume actual

1
physical permanent residence in the Philippines not later than three (3) years Article V of the Constitution upon approval of their registration,
from approval of his/her registration under this Act. Such affidavit shall also conformably with R.A. No. 9189.[22]
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 The seed of the present controversy is the interpretation that is
permanent resident from the National Registry of Absentee Voters and his/her given to the phrase, qualified citizens of the Philippines abroad as it
permanent disqualification to vote in absentia. appears in R.A. No. 9189, to wit:

Petitioner posits that Section 5(d) is unconstitutional because it violates SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a
Section 1, Article V of the 1987 Constitution which requires that the system of honest and orderly overseas absentee voting that upholds the
voter must be a resident in the Philippines for at least one year and in secrecy and sanctity of the ballot. Towards this end, the State ensures equal
the place where he proposes to vote for at least six months opportunity to all qualified citizens of the Philippines abroad in the exercise
immediately preceding an election. Petitioner cites the ruling of the of this fundamental right.
Court in Caasi vs. Court of Appeals[12] to support his claim. In that
case, the Court held that a green card holder immigrant to the United SEC. 3. Definition of Terms. For purposes of this Act:
States is deemed to have abandoned his domicile and residence in the
Philippines.
a) Absentee Voting refers to the process by which qualified citizens of the
Petitioner further argues that Section 1, Article V of the Philippines abroad, exercise their right to vote;
Constitution does not allow provisional registration or a promise by a
voter to perform a condition to be qualified to vote in a political
. . . (Emphasis supplied)
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 f) Overseas Absentee Voter refers to a citizen of the Philippines who is
residence requirement to qualify a Filipino abroad to vote.[14] He claims qualified to register and vote under this Act, not otherwise disqualified by
that the right of suffrage should not be granted to anyone who, on the law, who is abroad on the day of elections. (Emphasis supplied)
date of the election, does not possess the qualifications provided for by
Section 1, Article V of the Constitution.
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not
Respondent COMELEC refrained from commenting on this otherwise disqualified by law, at least eighteen (18) years of age on the day
issue.[15] of elections, may vote for president, vice-president, senators and party-list
representatives. (Emphasis supplied)

In compliance with the Resolution of the Court, the Solicitor in relation to Sections 1 and 2, Article V of the Constitution which read:
General filed his comment for all public respondents. He contraposes
that the constitutional challenge to Section 5(d) must fail because of SEC. 1. Suffrage may be exercised by all citizens of the Philippines not
the absence of clear and unmistakable showing that said provision of otherwise disqualified by law, who are at least eighteen years of age, and who
law is repugnant to the Constitution. He stresses: All laws are shall have resided in the Philippines for at least one year and in the place
presumed to be constitutional; by the doctrine of separation of powers, wherein they propose to vote for at least six months immediately preceding
a department of government owes a becoming respect for the acts of the election. No literacy, property, or other substantive requirement shall be
the other two departments; all laws are presumed to have adhered to imposed on the exercise of suffrage.
constitutional limitations; the legislature intended to enact a valid,
sensible, and just law.
SEC. 2. The Congress shall provide a system for securing the secrecy and
In addition, the Solicitor General points out that Section 1, Article sanctity of the ballot as well as a system for absentee voting by qualified
V of the Constitution is a verbatim reproduction of those provided for in Filipinos abroad.
the 1935 and the 1973 Constitutions. Thus, he cites Co vs. Electoral
Tribunal of the House of Representatives[16] wherein the Court held
. . . . . . . . . (Emphasis supplied)
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 Section 1, Article V of the Constitution specifically provides that
permanent (the domicile) and the other temporary; [17] and that the suffrage may be exercised by (1) all citizens of the Philippines, (2) not
definition and meaning given to the term residence likewise applies to otherwise disqualified by law, (3) at least eighteen years of age, (4)
absentee voters. Invoking Romualdez-Marcos vs. COMELEC[18] which who are residents in the Philippines for at least one year and in the
reiterates the Courts ruling in Faypon vs. Quirino,[19] the Solicitor place where they propose to vote for at least six months immediately
General maintains that Filipinos who are immigrants or permanent preceding the election. Under Section 5(d) of R.A. No. 9189, one of
residents abroad may have in fact never abandoned their Philippine those disqualified from voting is an immigrant or permanent resident
domicile.[20] who is recognized as such in the host country unless he/she executes
an affidavit declaring that he/she shall resume actual physical
Taking issue with the petitioners contention that green card permanent residence in the Philippines not later than three years from
holders are considered to have abandoned their Philippine domicile, approval of his/her registration under said Act.
the Solicitor General suggests that the Court may have to discard its
ruling in Caasi vs. Court of Appeals[21] in so far as it relates to Petitioner questions the rightness of the mere act of execution of
immigrants and permanent residents in foreign countries who have an affidavit to qualify the Filipinos abroad who are immigrants or
executed and submitted their affidavits conformably with Section 5(d) permanent residents, to vote. He focuses solely on Section 1, Article V
of R.A. No. 9189. He maintains that through the execution of the of the Constitution in ascribing constitutional infirmity to Section 5(d) of
requisite affidavits, the Congress of the Philippines with the R.A. No. 9189, totally ignoring the provisions of Section 2 empowering
concurrence of the President of the Republic had in fact given these Congress to provide a system for absentee voting by qualified Filipinos
immigrants and permanent residents the opportunity, pursuant abroad.
to Section 2, Article V of the Constitution, to manifest that they had in
fact never abandoned their Philippine domicile; that indubitably, they A simple, cursory reading of Section 5(d) of R.A. No. 9189 may
would have formally and categorically expressed the requisite indeed give the impression that it contravenes Section 1, Article V of
intentions, i.e., animus manendi and animus revertendi; that Filipino the Constitution. Filipino immigrants and permanent residents
immigrants and permanent residents abroad possess the overseas are perceived as having left and abandoned the Philippines
unquestionable right to exercise the right of suffrage under Section 1, to live permanently in their host countries and therefore, a provision in
the law enfranchising those who do not possess the residency
2
requirement of the Constitution by the mere act of executing an Such statutes are regarded as conferring a privilege and not a right, or an
affidavit expressing their intent to return to the Philippines within a absolute right. When the legislature chooses to grant the right by statute, it
given period, risks a declaration of unconstitutionality. However, the must operate with equality among all the class to which it is granted; but
risk is more apparent than real. 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
The Constitution is the fundamental and paramount law of the constitutional provisions affecting registration and elections, and with due
nation to which all other laws must conform and in accordance with regard to their texts prior to amendment and to predecessor statutes and the
which all private rights must be determined and all public authority decisions thereunder; they should also be construed in the light of the
administered.[23] Laws that do not conform to the Constitution shall be circumstances under which they were enacted; and so as to carry out the
stricken down for being unconstitutional. objects thereof, if this can be done without doing violence to their provisions
and mandates. Further, in passing on statutes regulating absentee voting, the
Generally, however, all laws are presumed to be
court should look to the whole and every part of the election laws, the intent
constitutional. In Peralta vs. COMELEC, the Court said:
of the entire plan, and reasons and spirit of their adoption, and try to give
effect to every portion thereof.[29] (Emphasis supplied)
. . . An act of the legislature, approved by the executive, is presumed to be
within constitutional limitations. The responsibility of upholding the
Ordinarily, an absentee is not a resident and vice versa; a
Constitution rests not on the courts alone but on the legislature as well. The
person cannot be at the same time, both a resident and an
question of the validity of every statute is first determined by the legislative
absentee.[30]However, under our election laws and the countless
department of the government itself.[24]
pronouncements of the Court pertaining to elections, an absentee
remains attached to his residence in the Philippines as residence is
Thus, presumption of constitutionality of a law must be overcome considered synonymous with domicile.
convincingly:
In Romualdez-Marcos,[31] the Court enunciated:

. . . 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 Article 50 of the Civil Code decrees that [f]or the exercise of civil rights and
attainment of some public good, no infringement of constitutional rights is the fulfillment of civil obligations, the domicile of natural persons is their
allowed. To strike down a law there must be a clear showing that what the place of habitual residence. In Ong vs. Republic, this court took the concept of
fundamental law condemns or prohibits, the statute allows it to be done. [25] domicile to mean an individuals 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
As the essence of R.A. No. 9189 is to enfranchise overseas foregoing, domicile includes the twin elements of the fact of residing or
qualified Filipinos, it behooves the Court to take a holistic view of the physical presence in a fixed place and animus manendi, or the intention of
pertinent provisions of both the Constitution and R.A. No. 9189. It is a returning there permanently.
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 Residence, in its ordinary conception, implies the factual relationship of an
substance and its terms, not by itself alone, but in conjunction with all individual to a certain place. It is the physical presence of a person in a given
other provisions of that great document. Constitutional provisions are area, community or country. The essential distinction between residence and
mandatory in character unless, either by express statement or by domicile in law is that residence involves the intent to leave when the purpose
necessary implication, a different intention is manifest.[27] The intent of for which the resident has taken up his abode ends. One may seek a place for
the Constitution may be drawn primarily from the language of the purposes such as pleasure, business, or health. If a persons intent be to remain,
document itself. Should it be ambiguous, the Court may consider the it becomes his domicile; if his intent is to leave as soon as his purpose is
intent of its framers through their debates in the constitutional established it is residence. It is thus, quite perfectly normal for an individual to
convention.[28] have different residences in various places. However, a person can only have
a single domicile, unless, for various reasons, he successfully abandons his
R.A. No. 9189 was enacted in obeisance to the mandate of the domicile in favor of another domicile of choice. In Uytengsu vs. Republic, we
first paragraph of Section 2, Article V of the Constitution that Congress laid this distinction quite clearly:
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 There is a difference between domicile and residence. Residence is used to
exercise of legislative authority in enacting said law. Hence, in the indicate a place of abode, whether permanent or temporary; domicile denotes
absence of restrictions, Congress is presumed to have duly exercised a fixed permanent residence to which, when absent, one has the intention of
its function as defined in Article VI (The Legislative Department) of the returning. A man may have a residence in one place and a domicile in
Constitution. another. Residence is not domicile, but domicile is residence coupled with the
To put matters in their right perspective, it is necessary to dwell intention to remain for an unlimited time. A man can have but one domicile
first on the significance of absentee voting. The concept of absentee for the same purpose at any time, but he may have numerous places of
voting is relatively new. It is viewed thus: 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.
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 For political purposes the concepts of residence and domicile are dictated by
customary and usual manner of voting. The right of absentee and disabled the peculiar criteria of political laws. As these concepts have evolved in our
voters to cast their ballots at an election is purely statutory; absentee voting election law, what has clearly and unequivocally emerged is the fact that
was unknown to, and not recognized at, the common law. residence for election purposes is used synonymously with
domicile.[32](Emphasis supplied)

Absentee voting is an outgrowth of modern social and economic conditions

devised to accommodate those engaged in military or civil life whose duties Aware of the domiciliary legal tie that links an overseas Filipino
make it impracticable for them to attend their polling places on the day of to his residence in this country, the framers of the Constitution
election, and the privilege of absentee voting may flow from constitutional considered the circumstances that impelled them to require Congress
provisions or be conferred by statutes, existing in some jurisdictions, which to establish a system for overseas absentee voting, thus:
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 MR. OPLE. With respect to Section 1, it is not clear whether the right of
precinct of their residence. suffrage, which here has a residential restriction, is not denied to citizens

3
temporarily residing or working abroad. Based on the statistics of several is absent is a vote which will be considered as cast in the place of his
government agencies, there ought to be about two million such Filipinos at domicile.
this time. Commissioner Bernas had earlier pointed out that these provisions
are really lifted from the two previous Constitutions of 1935 and 1973, with
MR. OPLE. Thank you for citing the jurisprudence.
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. 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
According to government data, there are now about 600,000 contract workers
Article of the Constitution explicitly and unequivocally extends the right of
and employees, and although the major portions of these expatriate
effective suffrage to Filipinos abroad, this will call for a logistical exercise of
communities of workers are to be found in the Middle East, they are scattered
global proportions. In effect, this will require budgetary and administrative
in 177 countries in the world.
commitments on the part of the Philippine government, mainly through the
COMELEC and the Ministry of Foreign Affairs, and perhaps, a more
In a previous hearing of the Committee on Constitutional Commissions and extensive elaboration of this mechanism that will be put in place to make
Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said effective the right to vote. Therefore, seeking shelter in some wise
that there was no insuperable obstacle to making effective the right of suffrage jurisprudence of the past may not be sufficient to meet the demands of the
for Filipinos overseas. Those who have adhered to their Filipino citizenship right of suffrage for Filipinos abroad that I have mentioned. But I want to
notwithstanding strong temptations are exposed to embrace a more convenient thank the Committee for saying that an amendment to this effect may be
foreign citizenship. And those who on their own or under pressure of entertained at the proper time. . . . . . . . . .
economic necessity here, find that they have to detach themselves from their
families to work in other countries with definite tenures of employment. Many [33]
(Emphasis supplied)
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 Thus, the Constitutional Commission recognized the fact that
technically disqualified from exercising the right of suffrage in their countries while millions of Filipinos reside abroad principally for economic
of destination by the residential requirement in Section 1 which says: reasons and hence they contribute in no small measure to the
economic uplift of this country, their voices are marginal insofar as the
Suffrage shall be exercised by all citizens of the Philippines not otherwise choice of this countrys leaders is concerned.
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 The Constitutional Commission realized that under the laws then
propose to vote for at least six months preceding the election. 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
I, therefore, ask the Committee whether at the proper time they might Constitution itself provides for the residency requirement of voters:
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. 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
FR. BERNAS. Certainly, the Committee will consider that. But more than just of registration, for instance, in Mindanao, to cast their votes.
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
MR. MONSOD. I think our provision is for absentee voting by Filipinos
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 abroad.
the Election Law. Allow me to quote:
MR. REGALADO. How about those people who cannot go back to the places
A citizen may leave the place of his birth to look for greener pastures, as the where they are registered?
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 MR. MONSOD. Under the present Election Code, there are provisions for
to be held, the citizen who left his birthplace to improve his lot may decide to allowing students and military people who are temporarily in another place to
return to his native town, to cast his ballot, but for professional or business register and vote. I believe that those situations can be covered by the
reasons, or for any other reason, he may not absent himself from the place of Omnibus Election Code. The reason we want absentee voting to be in the
his professional or business activities. 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
So, they are here registered as voters as he has the qualifications to be one, Congress.So, by allowing it and saying that this is possible, then legislation
and is not willing to give up or lose the opportunity to choose the officials can take care of the rest.[34] (Emphasis supplied)
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 Thus, Section 2, Article V of the Constitution came into being to
origin has not forsaken him. 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
This may be the explanation why the registration of a voter in a place other implementation of its pursuit to enfranchise the largest number of
than his residence of origin has not been deemed sufficient to consider qualified Filipinos who are not in the Philippines that the Constitutional
abandonment or loss of such residence of origin. Commission explicitly mandated Congress to provide a system for
overseas absentee voting.

In other words, residence in this provision refers to two residence The discussion of the Constitutional Commission on the effect of
qualifications: residence in the Philippines and residence in the place where he the residency requirement prescribed by Section 1, Article V of the
will vote. As far as residence in the Philippines is concerned, the word Constitution on the proposed system of absentee voting for qualified
residence means domicile, but as far as residence in the place where he will Filipinos abroad is enlightening:
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 MR. SUAREZ. May I just be recognized for a clarification. There are certain
six months and he is allowed to vote there. So that there may be serious qualifications for the exercise of the right of suffrage like having resided in
constitutional obstacles to absentee voting, unless the vote of the person who 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
4
mandatory requirements on the matter of the exercise of the right of suffrage THE PRESIDENT. The Commissioner is not stating here that he wants new
by the absentee voters like Filipinos abroad? qualifications for these absentee voters.

THE PRESIDENT. Would Commissioner Monsod care to answer? MR. MONSOD. That is right. They must have the qualifications and none of
the disqualifications.
MR. MONSOD. I believe the answer was already given by Commissioner
Bernas, that the domicile requirements as well as the qualifications and THE PRESIDENT. It is just to devise a system by which they can vote.
disqualifications would be the same.
MR. MONSOD. That is right, Madam President.[35] (Emphasis supplied)
THE PRESIDENT. Are we leaving it to the legislature to devise the system?
Clearly therefrom, the intent of the Constitutional Commission is
FR. BERNAS. I think there is a very legitimate problem raised there. 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
THE PRESIDENT. Yes.
reason why the Constitutional Commission opted for the term qualified
Filipinos abroad with respect to the system of absentee voting that
MR. BENGZON. I believe Commissioner Suarez is clarified. 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
FR. BERNAS. But I think it should be further clarified with regard to the
disqualifications to vote. In fine-tuning the provision on absentee
residence requirement or the place where they vote in practice; the
voting, the Constitutional Commission discussed how the system
understanding is that it is flexible. For instance, one might be a resident of
should work:
Naga or domiciled therein, but he satisfies the requirement of residence in
Manila, so he is able to vote in Manila.
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
MR. TINGSON. Madam President, may I then suggest to the Committee to
their right of suffrage, they can cast their votes for the candidates in the place
change the word Filipinos to QUALIFIED FILIPINO VOTERS. Instead of where they were registered to vote in the Philippines. So as to avoid any
VOTING BY FILIPINOS ABROAD, it should be QUALIFIED FILIPINO complications, for example, if they are registered in Angeles City, they could
VOTERS. If the Committee wants QUALIFIED VOTERS LIVING
not vote for a mayor in Naga City.
ABROAD, would that not satisfy the requirement?

In other words, if that qualified voter is registered in Angeles City, then he can
THE PRESIDENT. What does Commissioner Monsod say?
vote only for the local and national candidates in Angeles City. I just want to
make that clear for the record.
MR. MONSOD. Madam President, I think I would accept the phrase
QUALIFIED FILIPINOS ABROAD because QUALIFIED would assume that
MR. REGALADO. Madam President.
he has the qualifications and none of the disqualifications to vote.
THE PRESIDENT. What does Commissioner Regalado
MR. TINGSON. That is right. So does the Committee accept? say?

MR. REGALADO. I just want to make a note on the

FR. BERNAS. QUALIFIED FILIPINOS ABROAD? statement of Commissioner Suarez that this
envisions Filipinos residing abroad. The
understanding in the amendment is that the Filipino
THE PRESIDENT. Does the Committee accept the amendment?
is temporarily abroad. He may not be actually
residing abroad; he may just be there on a business
MR. REGALADO. Madam President. 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
THE PRESIDENT. Commissioner Regalado is recognized. not residing there. He stays in a hotel for two days
and comes back. This is not limited only to
MR. REGALADO. When Commissioner Bengzon asked me to read my Filipinos temporarily residing abroad. But as
proposed amendment, I specifically stated that the National Assembly shall long as he is temporarily abroad on the date of
prescribe a system which will enable qualified citizens, temporarily absent the elections, then he can fall within the
from the Philippines, to vote. According to Commissioner Monsod, the use of prescription of Congress in that situation.
the phrase absentee voting already took that into account as its meaning. That
is referring to qualified Filipino citizens temporarily abroad. MR. SUAREZ. I thank the Commissioner for his further
clarification. Precisely, we need this clarification on
record.
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 MR. MONSOD. Madam President, to clarify what we
require where the registration is. If it is, say, members of the diplomatic corps mean by temporarily abroad, it need not be on
who may be continuously abroad for a long time, perhaps, there can be a very short trips. One can be abroad on a treaty
system of registration in the embassies. However, we do not like to preempt traders visa. Therefore, when we talk about
the legislative assembly. 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
THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is Assembly may provide the procedure for
only to provide a system. registration, like listing ones name, in a registry
list in the embassy abroad. That is still possible
MR. MONSOD. Yes. under the system.

5
 FR. BERNAS. Madam President, just one clarification if immigrants. They have changed residence so they
Commissioner Monsod agrees with this. are barred under the Constitution. This is why I
asked whether this committee amendment which in
Suppose we have a situation of a child of a diplomatic fact does not alter the original text of the bill will
officer who reaches the voting age while living have any effect on this?
abroad and he has never registered here. Where will
he register? Will he be a registered voter of a certain Senator Angara. Good question, Mr. President. And this
locality in the Philippines? has been asked in various fora. This is in
compliance with the Constitution. One, the
MR. MONSOD. Yes, it is possible that the system will interpretation here of residence is synonymous with
enable that child to comply with the registration domicile.
requirements in an embassy in the United States
and his name is then entered in the official As the gentleman and I know, Mr. President, domicile is
registration book in Angeles City, for instance. the intent to return to ones home. And the fact that
a Filipino may have been physically absent from
FR. BERNAS. In other words, he is not a registered voter the Philippines and may be physically a resident
of Los Angeles, but a registered voter of a locality of the United States, for example, but has a clear
here. intent to return to the Philippines, will make him
qualified as a resident of the Philippines under
MR. MONSOD. That is right. He does not have to come this law.
home to the Philippines to comply with the
registration procedure here. This is consistent, Mr. President, with the constitutional
mandate that we that Congress must provide a
FR. BERNAS. So, he does not have to come home. franchise to overseas Filipinos.
MR. BENGZON. Madam President, the Floor Leader If we read the Constitution and the suffrage principle
wishes to inquire if there are more clarifications
literally as demanding physical presence, then
needed from the body. there is no way we can provide for offshore
Also, the Floor Leader is happy to announce that there are no voting to our offshore kababayan, Mr. President.
more registered Commissioners to propose amendments. So I move Senator Arroyo. Mr. President, when the Constitution
that we close the period of amendments. says, in Section 2 of Article V, it reads: The
[36]
(Emphasis supplied) Congress shall provide a system for securing the
secrecy and sanctity of the ballot as well as a
It is clear from these discussions of the members of the system for absentee voting by qualified Filipinos
Constitutional Commission that they intended to enfranchise as much abroad.
as possible all Filipino citizens abroad who have not abandoned their
domicile of origin. The Commission even intended to extend to young The key to this whole exercise, Mr. President, is
Filipinos who reach voting age abroad whose parents domicile of origin qualified. In other words, anything that we may
is in the Philippines, and consider them qualified as voters for the first do or say in granting our compatriots abroad
time. must be anchored on the proposition that they
are qualified. Absent the qualification, they
It is in pursuance of that intention that the Commission provided cannot vote. And residents(sic) is a qualification.
for Section 2 immediately after the residency requirement of Section
1.By the doctrine of necessary implication in statutory construction, I will lose votes here from permanent residents so-called
which may be applied in construing constitutional provisions,[37] the green-card holders, but the Constitution is the
strategic location of Section 2 indicates that the Constitutional Constitution. We cannot compromise on this. The
Commission provided for an exception to the actual residency Senate cannot be a party to something that would
requirement of Section 1 with respect to qualified Filipinos abroad. The affect or impair the Constitution.
same Commission has in effect declared that qualified Filipinos who
Look at what the Constitution says In the place wherein
are not in the Philippines may be allowed to vote even though they do they propose to vote for at least six months
not satisfy the residency requirement in Section 1, Article V of the immediately preceding the election.
Constitution.
Mr. President, all of us here have run (sic) for office.
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 I live in Makati. My neighbor is Pateros where Senator
in fact the subject of debate when Senate Bill No. 2104, which became Cayetano lives. We are separated only by a
R.A. No. 9189, was deliberated upon on the Senate floor, thus: creek. But one who votes in Makati cannot vote in
Pateros unless he resides in Pateros for six months.
Senator Arroyo. Mr. President, this bill should be looked
That is how restrictive our Constitution is. I am not
into in relation to the constitutional provisions. I think
talking even about the Election Code. I am talking
the sponsor and I would agree that the Constitution about the Constitution.
is supreme in any statute that we may enact.
As I have said, if a voter in Makati would want to vote in
Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It Pateros, yes, he may do so. But he must do so,
says: make the transfer six months before the election,
otherwise, he is not qualified to vote.

Section 1. Suffrage may be exercised by all citizens of the Philippines not That is why I am raising this point because I think we have
otherwise disqualified by law, who are at least eighteen years of age, and who a fundamental difference here.
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 Senator Angara. It is a good point to raise, Mr.
the election. 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
Now, Mr. President, the Constitution says, who shall have immediately after the six-month/one-year
resided in the Philippines. They are permanent residency requirement is to demonstrate
6
 unmistakably that Section 2 which authorizes As finally approved into law, Section 5(d) of R.A. No. 9189
absentee voting is an exception to the six- specifically disqualifies an immigrant or permanent resident who is
month/one-year residency requirement. That is recognized as such in the host country because immigration or
the first principle, Mr. President, that one must permanent residence in another country implies renunciation of ones
remember. residence in his country of origin. However, same Section allows an
immigrant and permanent resident abroad to register as voter for as
The second reason, Mr. President, is that under our long as he/she executes an affidavit to show that he/she has not
jurisprudence and I think this is so well-entrenched abandoned his domicile in pursuance of the constitutional intent
that one need not argue about itresidency has been expressed in Sections 1 and 2 of Article V that all citizens of the
interpreted as synonymous with domicile. Philippines not otherwise disqualified by law must be entitled to
exercise the right of suffrage and, that Congress must establish a
But the third more practical reason, Mr. President, is, if
system for absentee voting; for otherwise, if actual, physical residence
we follow the interpretation of the gentleman,
in the Philippines is required, there is no sense for the framers of the
then it is legally and constitutionally impossible
Constitution to mandate Congress to establish a system for absentee
to give a franchise to vote to overseas Filipinos
voting.
who do not physically live in the country, which
is quite ridiculous because that is exactly the Contrary to the claim of petitioner, the execution of the affidavit
whole point of this exercise to enfranchise them itself is not the enabling or enfranchising act. The affidavit required in
and empower them to vote. Section 5(d) is not only proof of the intention of the immigrant or
[38] permanent resident to go back and resume residency in the
(Emphasis supplied)
Philippines, but more significantly, it serves as an explicit expression
Accordingly, Section 4 of R.A. No. 9189 provides for the that he had not in fact abandoned his domicile of origin. Thus, it is not
coverage of the absentee voting process, to wit: 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
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not political exercise.
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 To repeat, the affidavit is required of immigrants and permanent
representatives. 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
which does not require physical residency in the Philippines; and Philippine domicile shall remain.
Section 5 of the assailed law which enumerates those who are
disqualified, to wit: Further perusal of the transcripts of the Senate proceedings
discloses another reason why the Senate required the execution of
SEC. 5. Disqualifications. The following shall be disqualified from voting said affidavit. It wanted the affiant to exercise the option to return or to
under this Act: express his intention to return to his domicile of origin and not to
preempt that choice by legislation. Thus:

a) Those who have lost their Filipino citizenship in accordance with Senator Villar. Yes, we are going back.
Philippine laws;
It states that: For Filipino immigrants and those who have
acquired permanent resident status abroad, a
b) Those who have expressly renounced their Philippine citizenship and who requirement for the registration is the submission of
have pledged allegiance to a foreign country; a Sworn Declaration of Intent to Return duly sworn
before any Philippine embassy or consulate official
c) Those who have committed and are convicted in a final judgment by a court authorized to administer oath
or tribunal of an offense punishable by imprisonment of not less than one (1)
Mr. President, may we know the rationale of this
year, including those who have committed and been found guilty of Disloyalty
provision? Is the purpose of this Sworn Declaration
as defined under Article 137 of the Revised Penal Code, such disability not
to include only those who have the intention of
having been removed by plenary pardon or amnesty: Provided, however, That
returning to be qualified to exercise the right of
any person disqualified to vote under this subsection shall automatically
suffrage? What if the Filipino immigrant has no
acquire the right to vote upon expiration of five (5) years after service of
purpose of returning? Is he automatically disbarred
sentence; Provided, further, That the Commission may take cognizance of
from exercising this right to suffrage?
final judgments issued by foreign courts or tribunals only on the basis of
reciprocity and subject to the formalities and processes prescribed by Senator Angara. The rationale for this, Mr. President,
the Rules of Court on execution of judgments; is that we want to be expansive and all-inclusive
in this law. That as long as he is a Filipino, no
d) An immigrant or a permanent resident who is recognized as such in the host matter whether he is a green-card holder in the
country, unless he/she executes, upon registration, an affidavit prepared for U.S. or not, he will be authorized to vote. But if
the purpose by the Commission declaring that he/she shall resume actual he is already a green-card holder, that means he
physical permanent residence in the Philippines not later than three (3) years has acquired permanent residency in the United
from approval of his/her registration under this Act. Such affidavit shall also States, then he must indicate an intention to
state that he/she has not applied for citizenship in another country. Failure to return. This is what makes for the definition of
return shall be cause for the removal of the name of the immigrant or domicile. And to acquire the vote, we thought that
permanent resident from the National Registry of Absentee Voters and his/her we would require the immigrants and the green-card
permanent disqualification to vote in absentia. holders . . . Mr. President, the three administration
senators are leaving, maybe we may ask for a
vote [Laughter].
e) Any citizen of the Philippines abroad previously declared insane or
incompetent by competent authority in the Philippines or abroad, as verified Senator Villar. For a merienda, Mr. President.
by the Philippine embassies, consulates or foreign service establishments
concerned, unless such competent authority subsequently certifies that such Senator Angara. Mr. President, going back to the
person is no longer insane or incompetent. 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
7
 that, if he is already an immigrant or a green-card system of absentee voting that necessarily presupposes that the
holder, that means he may not return to the country qualified citizen of the Philippines abroad is not physically present in
any more and that contradicts the definition of the country. The provisions of Sections 5(d) and 11 are components of
domicile under the law. the system of overseas absentee voting established by R.A. No.
9189. The qualified Filipino abroad who executed the affidavit is
But what we are trying to do here, Mr. President, is deemed to have retained his domicile in the Philippines. He is
really provide the choice to the voter. The voter, presumed not to have lost his domicile by his physical absence from
after consulting his lawyer or after deliberation within this country. His having become an immigrant or permanent resident of
the family, may decide No, I think we are risking our his host country does not necessarily imply an abandonment of his
permanent status in the United States if we file an intention to return to his domicile of origin, the Philippines. Therefore,
affidavit that we want to go back. But we want to under the law, he must be given the opportunity to express that he has
give him the opportunity to make that decision. not actually abandoned his domicile in the Philippines by executing the
We do not want to make that decision for affidavit required by Sections 5(d) and 8(c) of the law.
him. [39](Emphasis supplied)
Petitioners speculative apprehension that the implementation of
The jurisprudential declaration in Caasi vs. Court of Appeals that Section 5(d) would affect the credibility of the elections is insignificant
green card holders are disqualified to run for any elective office finds as what is important is to ensure that all those who possess the
no application to the present case because the Caasi case did not, for qualifications to vote on the date of the election are given the
obvious reasons, consider the absentee voting rights of Filipinos who opportunity and permitted to freely do so. The COMELEC and the
are immigrants and permanent residents in their host countries. Department of Foreign Affairs have enough resources and talents to
ensure the integrity and credibility of any election conducted pursuant
In the advent of The Overseas Absentee Voting Act of 2003 or to R.A. No. 9189.
R.A. 9189, they may still be considered as a qualified citizen of the
Philippines abroad upon fulfillment of the requirements of registration As to the eventuality that the Filipino abroad would renege on his
under the new law for the purpose of exercising their right of suffrage. undertaking to return to the Philippines, the penalty of perpetual
disenfranchisement provided for by Section 5(d) would suffice to serve
It must be emphasized that Section 5(d) does not only require an as deterrence to non-compliance with his/her undertaking under the
affidavit or a promise to resume actual physical permanent residence
affidavit.
in the Philippines not later than three years from approval of his/her
registration, the Filipinos abroad must also declare that they have not Petitioner argues that should a sizable number of immigrants
applied for citizenship in another country. Thus, they must return to the renege on their promise to return, the result of the elections would be
Philippines; otherwise, their failure to return shall be cause for the affected and could even be a ground to contest the proclamation of the
removal of their names from the National Registry of Absentee Voters winning candidates and cause further confusion and doubt on the
and his/her permanent disqualification to vote in absentia. 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
Thus, Congress crafted a process of registration by which a his host country beyond the third year from the execution of the
Filipino voter permanently residing abroad who is at least eighteen
affidavit, is not farfetched. However, it is not for this Court to determine
years old, not otherwise disqualified by law, who has not relinquished the wisdom of a legislative exercise. As expressed in Taada vs.
Philippine citizenship and who has not actually abandoned his/her Tuvera,[40] the Court is not called upon to rule on the wisdom of the law
intentions to return to his/her domicile of origin, the Philippines, is
or to repeal it or modify it if we find it impractical.
allowed to register and vote in the Philippine embassy, consulate or
other foreign service establishments of the place which has jurisdiction Congress itself was conscious of said probability and in fact, it
over the country where he/she has indicated his/her address for has addressed the expected problem. Section 5(d) itself provides for a
purposes of the elections, while providing for safeguards to a clean deterrence which is that the Filipino who fails to return as promised
election. stands to lose his right of suffrage. Under Section 9, should a
registered overseas absentee voter fail to vote for two consecutive
Thus, Section 11 of R.A. No. 9189 provides:
national elections, his name may be ordered removed from the
National Registry of Overseas Absentee Voters.
SEC. 11. Procedure for Application to Vote in Absentia.
Other serious legal questions that may be raised would be: what
happens to the votes cast by the qualified voters abroad who were not
11.1. Every qualified citizen of the Philippines abroad whose application for able to return within three years as promised? What is the effect on the
registration has been approved, including those previously registered under votes cast by the non-returnees in favor of the winning candidates?The
Republic Act No. 8189, shall, in every national election, file with the officer votes cast by qualified Filipinos abroad who failed to return within three
of the embassy, consulate or other foreign service establishment authorized by years shall not be invalidated because they were qualified to vote on
the Commission, a sworn written application to vote in a form prescribed by the date of the elections, but their failure to return shall be cause for
the Commission. The authorized officer of such embassy, consulate or other the removal of the names of the immigrants or permanent residents
foreign service establishment shall transmit to the Commission the said from the National Registry of Absentee Voters and their permanent
application to vote within five (5) days from receipt thereof. The application disqualification to vote in absentia.
form shall be accomplished in triplicate and submitted together with the
photocopy of his/her overseas absentee voter certificate of registration. 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.
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 B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the
jurisdiction over the country where he/she has indicated his/her address for same Act in contravention of Section 4, Article VII of the
purposes of the elections. Constitution?

Section 4 of R.A. No. 9189 provides that the overseas absentee

11.3. Consular and diplomatic services rendered in connection with the
voter may vote for president, vice-president, senators and party-list
overseas absentee voting processes shall be made available at no cost to the
representatives.
overseas absentee voter.
Section 18.5 of the same Act provides:
Contrary to petitioners claim that Section 5(d) circumvents the
Constitution, Congress enacted the law prescribing a system of SEC. 18. On-Site Counting and Canvassing.
overseas absentee voting in compliance with the constitutional
mandate. Such mandate expressly requires that Congress provide a
8
 ......... President and Vice-President shall be certified by the board of
canvassers to Congress.
18. 5 The canvass of votes shall not cause the delay of the proclamation of a Congress could not have allowed the COMELEC to usurp a
winning candidate if the outcome of the election will not be affected by the power that constitutionally belongs to it or, as aptly stated by petitioner,
results thereof. Notwithstanding the foregoing, the Commission is to encroach on the power of Congress to canvass the votes for
empowered to order the proclamation of winning candidates despite the president and vice-president and the power to proclaim the winners for
fact that the scheduled election has not taken place in a particular country or the said positions. The provisions of the Constitution as the
countries, if the holding of elections therein has been rendered impossible by fundamental law of the land should be read as part of The Overseas
events, factors and circumstances peculiar to such country or countries, in Absentee Voting Act of 2003 and hence, the canvassing of the votes
which events, factors and circumstances are beyond the control or influence of and the proclamation of the winning candidates for president and vice-
the Commission. (Emphasis supplied) 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

Petitioner claims that the provision of Section 18.5 of R.A. No.
1, Article IX-A of the Constitution?
9189 empowering the COMELEC to order the proclamation of winning
candidates insofar as it affects the canvass of votes and proclamation Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate
of winning candidates for president and vice-president, is Article IX-A (Common Provisions) of the Constitution, to wit:
unconstitutional because it violates the following provisions of
paragraph 4, Section 4 of Article VII of the Constitution:
Section 1. The Constitutional Commissions, which shall be independent, are
the Civil Service Commission, the Commission on Elections, and the
SEC. 4 . . . Commission on Audit. (Emphasis supplied)

The returns of every election for President and Vice-President, duly certified He submits that the creation of the Joint Congressional Oversight
by the board of canvassers of each province or city, shall be transmitted to the Committee with the power to review, revise, amend and approve the
Congress, directed to the President of the Senate. Upon receipt of the Implementing Rules and Regulations promulgated by the COMELEC,
certificates of canvass, the President of the Senate shall, not later than thirty R.A. No. 9189 intrudes into the independence of the COMELEC which,
days after the day of the election, open all the certificates in the presence of as a constitutional body, is not under the control of either the executive
the Senate and the House of Representatives in joint public session, and the or legislative departments of government; that only the COMELEC
Congress, upon determination of the authenticity and due execution thereof in itself can promulgate rules and regulations which may be changed or
the manner provided by law, canvass the votes. 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 person having the highest number of votes shall be proclaimed elected, the power to review the same via the petition of any interested party,
but in case two or more shall have an equal and highest number of votes, one including the legislators.
of them shall forthwith be chosen by the vote of a majority of all the Members
of both Houses of the Congress, voting separately. 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
The Congress shall promulgate its rules for the canvassing of the certificates. 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
which gives to Congress the duty to canvass the votes and proclaim that the power of the COMELEC to formulate rules and regulations is
the winning candidates for president and vice-president. implicit in its power to implement regulations under Section 2(1) of
Article IX-C[43] of the Constitution. COMELEC joins the petitioner in
The Solicitor General asserts that this provision must be asserting that as an independent constitutional body, it may not be
harmonized with paragraph 4, Section 4, Article VII of the Constitution subject to interference by any government instrumentality and that only
and should be taken to mean that COMELEC can only proclaim the this Court may review COMELEC rules and only in cases of grave
winning Senators and party-list representatives but not the President abuse of discretion.
and Vice-President.[41]
The COMELEC adds, however, that another provision, vis--
Respondent COMELEC has no comment on the matter. vis its rule-making power, to wit:
Indeed, the phrase, proclamation of winning candidates, in
Section 18.5 of R.A. No. 9189 is far too sweeping that it necessarily SEC. 17. Voting by Mail.
includes the proclamation of the winning candidates for the presidency
and the vice-presidency.
17.1. For the May, 2004 elections, the Commission shall authorize voting by
Section 18.5 of R.A. No. 9189 appears to be repugnant to mail in not more than three (3) countries, subject to the approval of the
Section 4, Article VII of the Constitution only insofar as said Section Congressional Oversight Committee. Voting by mail may be allowed in
totally disregarded the authority given to Congress by the Constitution countries that satisfy the following conditions:
to proclaim the winning candidates for the positions of president and
vice-president. a) Where the mailing system is fairly well-developed and secure to prevent
occasion for fraud;
In addition, the Court notes that Section 18.4 of the law, to wit:

b) Where there exists a technically established identification system that

18.4. . . . Immediately upon the completion of the canvass, the chairman of the would preclude multiple or proxy voting; and
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 c) Where the system of reception and custody of mailed ballots in the
supplied] embassies, consulates and other foreign service establishments concerned are
adequate and well-secured.
clashes with paragraph 4, Section 4, Article VII of the
Constitution which provides that the returns of every election for
9
Thereafter, voting by mail in any country shall be allowed only upon review constitutional commissions such as the COMELEC shall be
and approval of the Joint Congressional Oversight Committee. independent.

Interpreting Section 1, Article X of the 1935 Constitution

. . . . . . . . . (Emphasis supplied) providing that there shall be an independent COMELEC, the Court has
held that [w]hatever may be the nature of the functions of the
is likewise unconstitutional as it violates Section 1, Article IX-A Commission on Elections, the fact is that the framers of the
mandating the independence of constitutional commissions. Constitution wanted it to be independent from the other departments of
the Government.[44] In an earlier case, the Court elucidated:
The Solicitor General takes exception to his prefatory statement
that the constitutional challenge must fail and agrees with the petitioner
The Commission on Elections is a constitutional body. It is intended to play a
that Sections 19 and 25 are invalid and unconstitutional on the ground
distinct and important part in our scheme of government. In the discharge of
that there is nothing in Article VI of the Constitution on Legislative
its functions, it should not be hampered with restrictions that would be fully
Department that would as much as imply that Congress has concurrent
warranted in the case of a less responsible organization. The Commission may
power to enforce and administer election laws with the COMELEC; and
err, so may this court also. It should be allowed considerable latitude in
by the principles of exclusio unius est exclusio alterius and expressum
devising means and methods that will insure the accomplishment of the great
facit cessare tacitum, the constitutionally enumerated powers of
objective for which it was created free, orderly and honest elections. We may
Congress circumscribe its authority to the exclusion of all others.
not agree fully with its choice of means, but unless these are clearly illegal or
The parties are unanimous in claiming that Sections 19, 25 and constitute gross abuse of discretion, this court should not interfere. Politics is a
portions of Section 17.1 are unconstitutional. Thus, there is no actual practical matter, and political questions must be dealt with realistically not
issue forged on this question raised by petitioner. from the standpoint of pure theory. The Commission on Elections, because of
its fact-finding facilities, its contacts with political strategists, and its
However, the Court finds it expedient to expound on the role of knowledge derived from actual experience in dealing with political
Congress through the Joint Congressional Oversight Committee controversies, is in a peculiarly advantageous position to decide complex
(JCOC) vis--vis the independence of the COMELEC, as a political questions.
constitutional body.
[45]
R.A. No. 9189 created the JCOC, as follows: (Emphasis supplied)

The Court has no general powers of supervision over COMELEC

SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional which is an independent body except those specifically granted by the
Oversight Committee is hereby created, composed of the Chairman of the Constitution, that is, to review its decisions, orders and rulings. [46] In the
Senate Committee on Constitutional Amendments, Revision of Codes and same vein, it is not correct to hold that because of its recognized
Laws, and seven (7) other Senators designated by the Senate President, and extensive legislative power to enact election laws, Congress may
the Chairman of the House Committee on Suffrage and Electoral Reforms, intrude into the independence of the COMELEC by exercising
and seven (7) other Members of the House of Representatives designated by supervisory powers over its rule-making authority.
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 By virtue of Section 19 of R.A. No. 9189, Congress has
from the majority and the remaining three (3) from the minority. 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 Joint Congressional Oversight Committee shall have the power to the usual procedure in drafting rules and regulations to implement a
monitor and evaluate the implementation of this Act. It shall review, law the legislature grants an administrative agency the authority to
revise, amend and approve the Implementing Rules and Regulations craft the rules and regulations implementing the law it has enacted, in
promulgated by the Commission. (Emphasis supplied) recognition of the administrative expertise of that agency in its
particular field of operation.[47] Once a law is enacted and approved,
SEC. 19. Authority of the Commission to Promulgate Rules. The Commission the legislative function is deemed accomplished and complete. The
shall issue the necessary rules and regulations to effectively implement the legislative function may spring back to Congress relative to the same
provisions of this Act within sixty (60) days from the effectivity of this law only if that body deems it proper to review, amend and revise the
Act. The Implementing Rules and Regulations shall be submitted to the law, but certainly not to approve, review, revise and amend the IRR of
Joint Congressional Oversight Committee created by virtue of this Act the COMELEC.
for prior approval.
By vesting itself with the powers to approve, review, amend, and
revise the IRR for The Overseas Absentee Voting Act of
. . . . . . . . . (Emphasis supplied) 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
Composed of Senators and Members of the House of Representatives, option but to withdraw from its usual reticence in declaring a provision
the Joint Congressional Oversight Committee (JCOC) is a purely of law unconstitutional.
legislative body. There is no question that the authority of Congress to
monitor and evaluate the implementation of R.A. No. 9189 is geared The second sentence of the first paragraph of Section 19 stating
towards possible amendments or revision of the law itself and thus, that [t]he Implementing Rules and Regulations shall be submitted to
may be performed in aid of its legislation. the Joint Congressional Oversight Committee created by virtue of this
Act for prior approval, and the second sentence of the second
However, aside from its monitoring and evaluation functions, paragraph of Section 25 stating that [i]t shall review, revise, amend and
R.A. No. 9189 gives to the JCOC the following functions: (a) to review, approve the Implementing Rules and Regulations promulgated by the
revise, amend and approve the Implementing Rules and Regulations Commission, whereby Congress, in both provisions, arrogates unto
(IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) itself a function not specifically vested by the Constitution, should be
subject to the approval of the JCOC [Section 17.1], the voting by mail stricken out of the subject statute for constitutional infirmity. Both
in not more than three countries for the May 2004 elections and in any provisions brazenly violate the mandate on the independence of the
country determined by COMELEC. COMELEC.
The ambit of legislative power under Article VI of the Constitution Similarly, the phrase, subject to the approval of the
is circumscribed by other constitutional provisions. One such provision Congressional Oversight Committee in the first sentence of Section
is Section 1 of Article IX-A of the 1987 Constitution ordaining that 17.1 which empowers the Commission to authorize voting by mail in
not more than three countries for the May, 2004 elections; and the

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

During the deliberations, all the members of the Court agreed to

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

WHEREFORE, the petition is partly GRANTED. The following

portions of R.A. No. 9189 are declared VOID for being
UNCONSTITUTIONAL:

a) The phrase in the first sentence of the first paragraph of

Section 17.1, to wit: subject to the approval of the Joint
Congressional Oversight Committee;

b) The portion of the last paragraph of Section 17.1, to wit: only

upon review and approval of the Joint Congressional
Oversight Committee;

c) The second sentence of the first paragraph of Section 19, to

wit: The Implementing Rules and Regulations shall be
submitted to the Joint Congressional Oversight Committee
created by virtue of this Act for prior approval; and

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

for being repugnant to Section 1, Article IX-A of the Constitution

mandating the independence of constitutional commission, such as
COMELEC.

The constitutionality of Section 18.5 of R.A. No. 9189

is UPHELD with respect only to the authority given to the COMELEC
to proclaim the winning candidates for the Senators and party-list
representatives but not as to the power to canvass the votes and
proclaim the winning candidates for President and Vice-President
which is lodged with Congress under Section 4, Article VII of the
Constitution.

The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the rest of the

provisions of said law continues to be in full force and effect.

SO ORDERED.

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