[G.R. No. 118702. March 16, 1995.

CIRILO ROY G. MONTEJO, petitioner,vs. COMMISSION ON

ELECTIONS, respondent.SERGIO A.F. APOSTOL,intervenor.

SYLLABUS

1. POLITICAL LAW; CONSTITUTIONAL COMMISSIONS; COMMISSION ON ELECTIONS; POWERS;

REDISTRICTING MUNICIPALITIES BASED ON AN ORDINANCE APPORTIONING SEAT IN THE
CONGRESS TO DIFFERENT LEGISLATIVE DISTRICTS AS APPENDED IN THE 1987 CONSTITUTION,
NOT VALID; CASE AT BAR. Our first inquiry relates to the constitutional power of the respondent
COMELEC to transfer municipalities from one legislative district to another legislative district in the province of
Leyte. The basic powers of respondent COMELEC, as enforcer and administrator of our election laws, are
spelled out in black and white in Section 2(c), Article IX of the Constitution. Respondent COMELEC does not
invoke this provision but relies on the Ordinance appended to the 1987 Constitution as the source of its power
of redistricting which is traditionally regarded as part of the power to make laws. The Ordinance is entitled
"Apportioning the Seats of the House of Representatives of the Congress of the Philippines to the Different
Legislative Districts in Provinces and Cities and the Metropolitan Manila Area." The Ordinance was made
necessary because Proclamation No. 3 of President Corazon C. Aquino, ordaining the Provisional Constitution
of the Republic of the Philippines, abolished the Batasang Pambansa. She then exercised legislative powers
under the Provisional Constitution. The Ordinance was the principal handiwork of then Commissioner Hilario G.
Davide, Jr., now a distinguished member of this Court. The records reveal that the Constitutional Commission
had to resolve several prejudicial issues before authorizing the first congressional elections under the 1987
Constitution. Among the vital issues were: whether the members of the House of Representatives would be
elected by district or by province; who shall undertake the apportionment of the legislative districts;
and, how the apportionment should be made. Commissioner Davide, Jr., offered three (3) options for the
Commission to consider: (1) allow President Aquino to do the apportionment by law; (2) empower the
COMELEC to make the apportionment; or (3) let the Commission exercise the power by way of an Ordinance
appended to the Constitution. The different dimensions of the options were discussed by Commissioners
Davide, Felicitas S. Aquino and Blas F. Ople. On the basis of their extensive debate, the Constitutional
Commission denied to the COMELEC the major power of legislative apportionment as it itself exercised the
power. Section 2 of the Ordinance only empowered the COMELEC "to make minor adjustments of the
reapportionment herein made." The meaning of the phrase "minor adjustments" was again clarified in the
debates of the Commission. That consistent with the limits of its power to make minor adjustments, Section 3
of the Ordinance did not also give the respondent COMELEC any authority to transfer municipalities from one
legislative district to another district. The power granted by Section 3 to the respondent COMELEC is
toadjust the number of members (not municipalities) "apportioned to the province out of which such new
province was created. . . ." Prescinding from these premises, we hold that respondent COMELEC committed
grave abuse of discretion amounting to lack of jurisdiction when it promulgated Section 1 of its Resolution No.
2736 transferring the municipality of Capoocan of the Second District and the municipality of Palompon of the
Fourth District to the Third District of Leyte.
2. ID.; LEGISLATIVE DEPARTMENT; CONGRESS OF THE PHILIPPINES; POWER;
REAPPORTIONMENT OF LEGISLATIVE DISTRICTS. It may well be that the conversion of Biliran from
a sub-province to a regular province brought about an imbalance in the distribution of voters and
inhabitants in the five (5) legislative districts of the province of Leyte. This imbalance, depending on its
degree, could devalue a citizen's vote in violation of the equal protection clause of the Constitution. Be that
as it may, it is not proper at this time for petitioner to raise this issue using the case at bench as his legal
vehicle. The issue involves a problem of reapportionment of legislative districts and petitioner's remedy lies
with Congress. Section 5(4), Article VI of the Constitution categorically gives Congress the power to
reapportion, thus: "Within three (3) years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this section."
InMacias vs.COMELEC,(No. L-18684, September 14, 1961, 3 SCRA 1) we ruled that the validity of a
legislative apportionment is a justiciable question. But while this Court can strike down an unconstitutional
reapportionment, it cannot itself make the reapportionment as petitioner would want us to do by directing
 respondent COMELEC to transfer the municipality of Tolosa from the First District to the Second District of
the province of Leyte.

DECISION

PUNO,J p:

More than political fortunes are at stake in the case at bench. Petitioner Cirilo Roy G. Montejo,
representing the First District of Leyte, pleads for the annulment of Section 1 of Resolution No. 2736 of the
COMELEC, redistricting certain municipalities in Leyte, on the ground that it violates the principle of
equality of representation. To remedy the alleged inequity, petitioner seeks to transfer the municipality
of Tolosa from his district to the Second District of the province. Intervenor Sergio A.F. Apostol,
representing the Second District, vigorously opposed the inclusion of Tolosain his district. We gave due
course to the petition considering that, at bottom, it involves the validity of the unprecedented exercise by
the COMELEC of the legislative power of redistricting and reapportionment.
The province of Leyte with the cities of Tacloban and Ormoc is composed of five (5) legislative
districts. 1
The first district 2 covers Tacloban City and the municipalities of Alangalang, Babatngon, Palo, San
Miguel, Sta. Fe, Tanauan and Tolosa.
The second district 3 is composed of the municipalities of Barugo, Barauen, Capoocan, Carigara,
Dagami, Dulag, Jaro, Julita, La Paz, Mayorga, MacArthur, Pastrana, Tabontabon, and Tunga.
The third district 4 is composed of the municipalities of Almeria, Biliran,Cabucgayan, Caibiran,
Calubian, Culaba, Kawayan, Leyte, Maripipi, Naval, San Isidro, Tabango, and Villaba.
The fourth district 5 is composed of Ormoc City and the municipalities of Albuera, Isabel, Kananga,
Matagob, Merida, and Palompon.
The fifth district 6 is composed of the municipalities of Abuyog, Bato, Baybay, Hilongos, Hindang,
Inopacan, Javier, Mahaplag, and Matalom.
Biliran, located in the third district of Leyte, was made its sub-province by virtue of Republic Act No.
2141 enacted on April 8, 1959. 7 Section 1 of the law spelled out the municipalities comprising the sub-
province, viz:"Almeria, Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi and Naval and all the
territories comprised therein."
On January 1, 1992, the Local Government Code took effect. Pursuant to its Section 462, the sub-
province of Biliran became a regular province. It provides:
"Existing sub-provinces are hereby converted into regular provinces upon approval by a
majority of the votes cast in a plebiscite to be held in the sub-provinces and the original
provinces directly affected. The plebiscite shall be conducted by the COMELEC
simultaneously with the national elections following the effectivity of this code. The new
legislative districts created as a result of such conversion shall continue to be represented in
Congress by the duly-elected representatives of the original districts out of which said new
provinces or districts were created until their own representatives shall have been elected in
the next regular congressional elections and qualified."
The conversion of Biliran into a regular province was approved by a majority of the votes cast in a plebiscite
held on May 11, 1992. As a consequence of the conversion, eight (8) municipalities of the Third District
composed the new province of Biliran, i.e.,Almeria, Biliran, Cabucgayan, Caibiran, Culaba, Kawayan,
Maripipi, and Naval. A further consequence was to reduce the Third District to five (5) municipalities with a
total population of 145,067 as per the 1990 census. LLphil
To remedy the resulting inequality in the distribution of inhabitants, voters and municipalities in the
province of Leyte, respondent COMELEC held consultation meetings with the incumbent representatives of
the province and other interested parties. On December 29, 1994, it promulgated Resolution No.
2736 where, among others, it transferred the municipality of Capoocan of the Second District and the
municipality of Palompon of the Fourth District to the Third District of Leyte. The composition of the First
District which includes the municipality of Tolosa and the composition of the Fifth District were not
disturbed. After the movement of municipalities, the composition of the five (5) legislative districts appeared
as follows:
First District: Population Registered
Voters
(1990) (1994)

1. Tacloban City, 137,190 81,679

2. Alangalang, 33,375 20,543
3. Babatngon, 17,795 9,929
4. Palo, 38,100 20,816
5. San Miguel, 13,438 8,167
6. Sta. Fe, 12,119 7,497
7. Tanauan and, 38,033 22,357
8. Tolosa, 13,299 7,700

TOTAL 303,349 178,688

Second District: Population Registered

Voters
(1990) (1994)

1. Barugo, 23,817 13,237

2. Barauen, 46,029 23,307
3. Carigara, 38,863 22,036
4. Dagami, 25,606 16,519
5. Dulag, 33,020 19,375
6. Jaro, 31,727 17,139
7. Julita, 9,944 6,196
8. La Paz, 14,311 9,003
9. Mayorga, 10,530 5,868
10. Mac Arthur, 13,159 8,628
11. Pastrana, 12,565 7,348
12. Tabontabon, and 7,183 4,419
13. Tunga; 5,413 3,387

TOTAL 272,167 156,462

Third District: Population Registered

Voters
(1990) (1994).

1. Calubian, 25,968 16,649

2. Leyte, 32,575 16,415
3. San Isidro, 24,442 14,916
4. Tabango, 29,743 15,487
 5. Villaba, 32,339 21,227
6. Capoocan, and 23,687 13,595
7. Palompon; 45,745 27,474

TOTAL 214,499 125,763

Fourth District: Population Registered

Voters
(1990) (1994)

1. Ormoc City, 129,456 75,140

2. Albuera, 32,395 17,493
3. Isabel, 33,389 21,889
4. Kananga, 36,288 19,873
5. Matagob, and 15,474 9,407
6. Merida 22,345 12,474

TOTAL 269,347 155,995

Fifth District: Population Registered

Voters
(1990) (1994)

1. Abuyog, 47,265 28,682

2. Bato, 28,197 16,130
3. Baybay, 82,281 47,923
4. Hilongos, 48,617 26,871
5. Hindang, 16,272 9,659
6. Inopacan, 16,894 10,401
7. Javier, 18,658 11,713
8. Mahaplag, and 22,673 13,616
9. Matalom 28,291 16,247

TOTAL 309,148 181,242

Petitioner Montejo filed a motion for reconsideration calling the attention of respondent COMELEC,
among others, to the inequitable distribution of inhabitants and voters between the First and Second
Districts. He alleged that the First District has 178,688 registered voters while the Second District has
156,462 registered voters or a difference of 22,226 registered voters. To diminish the difference, he
proposed that the municipality of Tolosa with 7,700 registered voters be transferred from the First to the
Second District. The motion was opposed by intervenor, Sergio A.F. Apostol. Respondent Commission
denied the motion ruling that: (1) its adjustment of municipalities involved the least disruption of the
territorial composition of each district; and (2) said adjustment complied with the constitutional requirement
that each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent
territory. LibLex
In this petition, petitioner insists that Section 1 of Resolution No. 2736 violates the principle of
equality of representation ordained in theConstitution. Citing Wesberry v. Sanders, 8 he argues that
respondent COMELEC violated "the constitutional precept that as much as practicable one man's vote in a
congressional election is to be worth as much as another's." The Solicitor General, in his Comment,
concurred with the views of the petitioner. The intervenor, however, opposed the petition on two (2)
grounds: (1) COMELEC has no jurisdiction to promulgate Resolution No. 2736; and (2) assuming it has
jurisdiction, said Resolution is in accord with the Constitution. Respondent COMELEC filed its own
Comment alleging that it acted within the parameters of the Constitution.
We find Section 1 of Resolution No. 2736 void.
While the petition at bench presents a significant issue, our first inquiry will relate to the
constitutional power of the respondent COMELEC 9to transfer municipalities from one legislative district to
another legislative district in the province of Leyte. The basic powers of respondent COMELEC, as enforcer
and administrator of our election laws, are spelled out in black and white in Section 2(c), Article IX of
the Constitution. Rightly, respondent COMELEC does not invoke this provision but relies on the Ordinance
appended to the 1987 Constitution as the source of itspower of redistricting which is traditionally regarded
as part of the power to make laws.The Ordinance is entitled "Apportioning the Seats of the House of
Representatives of the Congress of the Philippines to the Different Legislative Districts in Provinces and
Cities and the Metropolitan Manila Area." Its substantive sections state:
"SECTION 1. For purposes of the election of Members of the House of Representatives of the
First Congress of the Philippines under theConstitution proposed by the 1986 Constitutional
Commission and subsequent elections, and until otherwise provided by law, the Members
thereof shall be elected from legislative districts apportioned among the provinces, cities, and
the Metropolitan Manila Area as follows:
xxx xxx xxx
"SECTION 2. The Commission on Elections is hereby empowered to make minor
adjustments of the reapportionment herein made.
"SECTION 3. Any province that may hereafter be created, or any city whose population may
hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately
following election to at least one Member or such number of Members as it may be entitled to
on the basis of the number of its inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the Constitution. Thenumber of Members apportioned
to the province out of which such new province was created or where the city, whose
population has so increased, is geographically located shall be correspondingly adjusted by
the Commission on Elections but such adjustment shall not be made within one hundred and
twenty days before the election." (Emphasis supplied)
The Ordinance was made necessary because Proclamation No. 3 10 of President Corazon C.
Aquino, ordaining the Provisional Constitution of the Republic of the Philippines, abolished the Batasang
Pambansa.11 She then exercised legislative powers under the Provisional Constitution. 12
The Ordinance was the principal handiwork of then Commissioner Hilario G. Davide, Jr., 13 now a
distinguished member of this Court. The records reveal that the Constitutional Commission had to resolve
several prejudicial issues before authorizing the first congressional elections under the 1987 Constitution.
Among the vital issues were: whether the members of the House of Representatives would be elected by
district or by province; who shall undertake the apportionment of the legislative districts; and, how the
apportionment should be made. 14 Commissioner Davide, Jr., offered three (3) options for the Commission
to consider: (1) allow President Aquino to do the apportionment by law; (2) empower the COMELEC to
make the apportionment; or (3) let the Commission exercise the power by way of an Ordinance appended
to the Constitution. 15 The different dimensions of the options were discussed by Commissioners Davide,
Felicitas S. Aquino and Blas F. Ople. We quote the debates inextenso,viz:16
xxx xxx xxx
"MR. PADILLA. Mr. Presiding Officer.
"THE PRESIDING OFFICER (Mr. Jamir).Commissioner Padilla is recognized.
"MR. PADILLA. I think I have filed a very simple motion by way of amendment by substitution
and this was, I believe, a prior or a proposed amendment. Also, the chairman of the
Committee on the Legislative said that he was proposing a vote first by the Chamber on the
concept of whether the election is by province and cities on the one hand, or by legislative
districts on the other. So I propose this simple formulation which reads: 'FOR THE FIRST
ELECTION UNDER THIS CONSTITUTION THE LEGISLATIVE DISTRICTS SHALL BE
APPORTIONED BY THE COMMISSION ON ELECTIONS.' I hope the chairman will accept
the proposed amendment.
SUSPENSION OF SESSION
"MR. DAVIDE. The effect is, more or less, the same insofar as the apportionment is
concerned, but the Bernas-Sarmiento, et al. proposal would also provide for a mandate for the
apportionment later, meaning after the first election, which will in effect embody what the
Commission had approved, reading as follows: 'Within three years following the return of
every census, the Congress shall make a reapportionment of legislative districts based on the
standards provided in this section.'
"So, Mr. Presiding Officer, may I request for a suspension of the session, so that all the
proponents can work together.
"THE PRESIDING OFFICER (Mr. Jamir).The session is suspended.
"It was 3:33 p.m.
RESUMPTION OF SESSION
"At 3:40 p.m., the session was resumed.
"THE PRESIDING OFFICER (Mr. Jamir).The session is resumed.
"Commissioner Davide is recognized.
"MR. DAVIDE. Mr. Presiding Officer, as a compromise, I wonder if the Commission will allow
this. We will just delete the proposed subparagraph (4) and all the capitalized words in
paragraph (5).So that in paragraph (5),what would be left would only be the following: 'Within
three years following the return of every census, the Congress shall make a reapportionment
of legislative districts based on the standards provided in this section.'
"But we shall have an ordinance appended to the new Constitution indicating specifically the
following: 'FOR PURPOSES OF THE ELECTION OF MEMBERS OF THE HOUSE OF
REPRESENTATIVES IN THE FIRST CONGRESSIONAL ELECTION IMMEDIATELY
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION PROPOSED BY THE 1986
CONSTITUTIONAL COMMISSION AND SUBSEQUENT ELECTIONS AND UNTIL
OTHERWISE PROVIDED BY LAW, THE MEMBERS OF THE HOUSE OF
REPRESENTATIVES SHALL BE ELECTED FROM LEGISLATIVE DISTRICTS
APPORTIONED AMONG THE PROVINCES, CITIES AND THE METROPOLITAN MANILA
AREA AS FOLLOWS.'
"And what will follow will be the allocation of seats to Metropolitan Manila Area, to the
provinces and to the cities, without indicating the municipalities comprising each of the
districts. Then, under Section 2, we will mandate the COMELEC to make the actual
apportionment on the basis of the number of seats provided for and allocated to each province
by us.
"MS. AQUINO. Mr. Presiding Officer.
"THE PRESIDING OFFICER (Mr. Jamir).Commissioner Aquino is recognized.
"MS. AQUINO. I have to object to the provision which will give mandate to COMELEC to do
the redistricting. Redistricting is vitally linked to the baneful practices of cutting up areas or
spheres of influence; in other words, gerrymandering. This Commission, being a nonpartisan,
a nonpolitical deliberative body, is in the best possible situation under the circumstances to
undertake that responsibility. We are not wanting in expertise and in time because in the first
place, the Committee on the Legislative has prepared the report on the basis of the
recommendation of the COMELEC.
"MR. OPLE. Mr. Presiding Officer.
"THE PRESIDING OFFICER (Mr. Jamir).Commissioner Ople is recognized.

"MR. OPLE. I would like to support the position taken by Commissioner Aquino in this respect.
We know that the reapportionment of provinces and cities for the purpose of redistricting is
generally inherent in the constituent power or in the legislative power. And I would feel very
uncertain about delegating this to a quasi-judicial body even if it is one of the constitutional
offices created under this Constitution. We have the assurance of Commissioner Davide, as
chairman of the Committee on the Legislative, that even given the very short time remaining in
the life of this Commission, there is no reason why we cannot complete the work of
reapportionment on the basis of the COMELEC plan which the committee has already
thoroughly studied and which remains available to the Constitutional Commission.
"So, I support the position taken by Commissioner Aquino, Mr. Presiding Officer. I think, it is
the safest, the most reasonable, and the most workable approach that is available to this
Commission.
"THE PRESIDING OFFICER (Mr. Jamir).What does Commissioner Davide say:
"MR. DAVIDE. The issue now is whether this body will make the apportionment itself or
whether we will leave it to the COMELEC. So, there arises, therefore, a prejudicial question
for the body to decide. I would propose that the Commission should now decide what body
should make the apportionment. Should it be the Commission or should it be the COMELEC?
And the Committee on the Legislative will act accordingly on the basis of the decision.
"MR. BENGZON. Mr. Presiding Officer.
"THE PRESIDING OFFICER (Mr. Jamir).Commissioner Bengzon is recognized.
"MR. BENGZON. Apropos of that, I would like to inform the body that I believe the Committee
on the Legislative has precisely worked on this matter and they are ready with a list of
apportionment. They have, in fact, apportioned the whole country into various districts based
on the recommendation of the COMELEC. So they are ready with the list and if this body
would wish to apportion the whole country by district itself, then I believe we have the time to
do it because the Committee on the Legislative is ready with that particular report which need
only to be appended to the Constitution. So if this body is ready to accept the work of the
Committee on the Legislative we would have no problem. I just would like to give that
information so that the people here would be guided accordingly when they vote.
"MR. RODRIGO. Mr. Presiding Officer.
"THE PRESIDING OFFICER (Mr. Jamir).Commissioner Rodrigo is recognized.
"MR. RODRIGO. I just would like to ask Commissioner Davide some questions.
"THE PRESIDING OFFICER (Mr. Jamir).Commissioner Davide may yield if he so desires.
"MR. DAVIDE. Gladly.
"MR. RODRIGO. Will this apportionment which we are considering apply only to the first
election after the enactment of the Constitution?
"MR. DAVIDE. On the basis of the Padilla proposal, it will be for the first election; on the basis
of the Sarmiento proposal, it will only apply to the first election.
"MR. RODRIGO. And after that, Congress will have the power to reapportion. LibLex
"MR. DAVIDE. Yes.
"MR. RODRIGO. So, if we attach this to the Constitution the reapportionment based on the
COMELEC study and between the approval of theConstitution and the first election the
COMELEC no longer has the power to change that even a bit.
xxx xxx xxx
"THE PRESIDING OFFICER (Mr. Jamir).Commissioner Regalado is recognized.
"MR. REGALADO. May I address a clarificatory question to Commissioner Davide?
"THE PRESIDING OFFICER (Mr. Jamir).The Gentleman will please proceed.
"MR. REGALADO. On the basis of the Commissioner's proposed apportionment and
considering the fact that there will be a corresponding reduction to 183 seats, would there be
instances of underrepresentation or non-representation?
"MR. DAVIDE. None at all, Mr. Presiding Officer. I can assure the Commission that there will
be no case of inequitable distribution. It will come out to be one for every 350 to 400,000
inhabitants.
"MR. REGALADO. And that would be within the standard that we refer to.
"MR. DAVIDE. Yes, Mr. Presiding Officer.
"MR. REGALADO. Thank you.
"MR. RAMA. Mr. Presiding Officer.
"THE PRESIDING OFFICER (Mr. Jamir).The Floor Leader is recognized.
"MR. RAMA. The parliamentary situation is that there was a motion by Commissioner
Sarmiento to mandate COMELEC to do the redistricting. This was also almost the same
motion by Commissioner Padilla and I think we have had some kind of meeting of minds. On
the other hand, there seems to be a prejudicial question, an amendment to the amendment as
suggested by Commissioner Aquino, that instead of the COMELEC, it should be this
Commission that shall make the redistricting. So may I ask Commissioner Aquino, if she
insists on that idea, to please formulate it into a motion so we can vote on that first as an
amendment to the amendment.
"THE PRESIDING OFFICER (Mr. Jamir).Commissioner Aquino is recognized.
"MS. AQUINO. The motion is for this Commission to undertake the apportionment of the
legislative districts instead of the proposal that COMELEC be given the mandate to undertake
the responsibility.
xxx xxx xxx
"MR. SARMIENTO. May I be clarified, Mr. Presiding Officer. Is it the motion or the proposed
amendment?
"THE PRESIDING OFFICER (Mr. Jamir).The proposed amendment.
"MR. SARMIENTO. May we move for the approval of this proposed amendment which we
substitute for paragraphs 4 and 5.
"MR. DAVIDE. May I request that it should be treated merely as a motion to be followed by a
deletion of paragraph 4 because that should not really appear as a paragraph in Section 5;
otherwise, it will appear very ugly in the Constitution where we mandate a Commission that
will becomefunctus officio to have the authority. As a matter of fact, we cannot exercise that
authority until after the ratification of the new Constitution.
"THE PRESIDING OFFICER (Mr. Jamir).What does Commissioner Sarmiento say?
"MR. SARMIENTO. It is accepted, Mr. Presiding Officer. So, may I move for the approval of
this proposed amendment. llcd
 "MS. AQUINO. Mr. Presiding Officer.
"THE PRESIDING OFFICER (Mr. Jamir).Commissioner Aquino is recognized.
"MS. AQUINO. Would that require a two-thirds vote or a simple plurality to adopt that motion?
"THE PRESIDING OFFICER (Mr. Jamir).That will require a two-thirds vote.
"MS. AQUINO. Thank you. Mr. Presiding Officer.
"MR. SARMIENTO. May I restate the motion, Mr. Presiding Officer.
"THE PRESIDING OFFICER (Mr. Jamir).The Gentleman may proceed.
"MR. SARMIENTO. May I move that this Commission do the reapportionment of the
legislative districts.
"MS. AQUINO. Mr. Presiding Officer.
"THE PRESIDING OFFICER (Mr. Jamir).What is the pleasure of Commissioner Aquino?
"MS. AQUINO. May I be clarified again on the motion. Is Commissioner Sarmiento, therefore,
adopting my motion? Would it not be right for him to move that the COMELEC be mandated?
"MR. SARMIENTO. No, we accepted the amendment. It is already the Commission that will
be mandated.
"MS. AQUINO. So, the Gentleman has accepted the amendment.
"Thank you.
"MR. SARMIENTO. I am voting that this Commission do the reapportionment.
VOTING
"THE PRESIDING OFFICER (Mr. Jamir).Let us proceed to vote.
"As many as are in favor, please raise their hand. (Several Members raised their hand.)
"As many as are against, please raise their hand. (No Member raised his hand.)
"The results show 30 votes in favor and none against; the motion is approved."
Clearly then, the Constitutional Commission denied to the COMELEC the major power of legislative
apportionment as it itself exercised the power. Section 2 of the Ordinance only empowered the COMELEC
"to make minor adjustments of the reapportionment herein made." The meaning of the phrase
"minor adjustments" was again clarified in the debates 17 of the Commission, viz:
xxx xxx xxx
"MR. GUINGONA. This is just clarificatory, Mr. Presiding Officer. In Section 2, the
Commission on Elections is empowered to make minor adjustments on the apportionment
made here.
"MR. DAVIDE. Yes, Mr. Presiding Officer.
"MR. GUINGONA. We have not set any time limit for this.
"MR. DAVIDE. We should not set a time limit unless during the period of amendments a
proposal is made. The authority conferred would be on minor corrections or
amendments, meaning to say, for instance, that we may have forgotten an intervening
municipality in the enumeration, which ought to be included in one district. That we shall
consider a minor amendment.
"MR. GUINGONA. Thank you.
xxx xxx xxx
 "THE PRESIDING OFFICER (Mr. Romulo).Commissioner de Castro is recognized.
"MR. DE CASTRO. Thank you.
I was about to ask the committee the meaning of minor adjustment. Can it be possible that
one municipality in a district be transferred to another district and call it a minor adjustment?
"MR. DAVIDE. That cannot be done. Mr. Presiding Officer. Minor, meaning, that there should
be no change in the allocations per district.However, it may happen that we have forgotten a
municipality in between, which is still in the territory of one assigned district, or there may
be an error in the correct name of a particular municipality because of changes made by the
interim Batasang Pambansa and the Regular Batasang Pambansa. There were many batas
pambansa enacted by both the interim and the Regular Batasang Pambansa changing the
names of municipalities.
"MR. DE CASTRO. So, the minor adjustment may be made only if one of the municipalities is
not mentioned in the ordinance appended to, and it will be up for the COMELEC now to adjust
or to put such municipality to a certain district.
"MR. DAVIDE. Yes, Mr. Presiding Officer. For instance, we may not have the data regarding a
division of a municipality by the interim Batasang Pambansa or the Regular Batasang
Pambansa into two municipalities, meaning, a mother municipality and the new municipality,
but still actually these are within the geographical district area.
"MR. DE CASTRO. So the minor adjustment which the COMELEC cannot do is that, if , for
example, my municipality is in the First District of Laguna,they cannot put that in any other
district.
"MR. DAVIDE. That is not even a minor correction. It is a substantive one. LexLib
"MR. DE CASTRO. Thank you.
Consistent with the limits of its power to make minor adjustments, Section 3 of the Ordinance did
not also give the respondent COMELEC any authority to transfer municipalities from one legislative district
to another district. The power granted by Section 3 to the respondent COMELEC is to adjust the number
of members (not municipalities) "apportioned to the province out of which such new province was
created. ..."
Prescinding from these premises, we hold that respondent COMELEC committed grave abuse of
discretion amounting to lack of jurisdiction when it promulgated Section 1 of its Resolution No.
2736 transferring the municipality of Capoocan of the Second District and the municipality of Palompon of
the Fourth District to the Third District of Leyte. cdrep
It may well be that the conversion of Biliran from a sub-province to a regular province brought about
an imbalance in the distribution of voters and inhabitants in the five (5) legislative districts of the province of
Leyte. This imbalance, depending on its degree, could devalue a citizen's vote in violation of the equal
protection clause of the Constitution. Be that as it may, it is not proper at this time for petitioner to raise this
issue using the case at bench as his legal vehicle. The issue involves a problem of reapportionment of
legislative districts and petitioner's remedy lies with Congress. Section 5(4), Article VI of
the Constitution categorically gives Congress the power to reapportion, thus: "Within three (3) years
following the return of every census, the Congress shall make a reapportionment of legislative districts
based on the standards provided in this section." In Macias v. COMELEC ,18 we ruled that the validity of a
legislative apportionment is a justiciable question. But while this Court can strike down an unconstitutional
reapportionment, it cannot itself make the reapportionment as petitioner would want us to do by directing
respondent COMELEC to transfer the municipality of Tolosa from the First District to the Second District of
the province of Leyte. prcd
IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred the municipality of
Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District
of the province of Leyte, is annulled and set aside. We also deny the Petition praying for the transfer of the
municipality of Tolosa from the First District to the Second District of the province of Leyte. No costs. SO
ORDERED.
||| (Montejo v. Commission on Elections, G.R. No. 118702, [March 16, 1995], 312 PHIL 492-513)

[G.R. No. 124521. January 29, 1998.]

MICHAEL O. MASTURA, petitioner, vs. COMMISSION ON ELECTIONS (Second Division),

THE NEW MUNICIPAL BOARD OF CANVASSERS OF MATANOG, MAGUINDANAO, THE
NEW PROVINCIAL BOARD OF CANVASSERS OF MAGUINDANAO and DIDAGEN P.
DILANGALEN, respondents.

SYNOPSIS

Petitioner Michael O. Mastura and private respondent Didagen Dilangalen were congressional
candidates for the first district of Maguindanao during the May 8, 1995 elections. In the canvassing of votes,
Dilangalen objected to the inclusion of the Certificate of Canvass of the Municipality of Matanog on the
ground that the same was allegedly tampered. Upon examination and comparison of the copies of the
election returns of the MTC Judge and the COMELEC, the COMELEC Second Division found that indeed,
the Certificate of Canvass of the Municipality of Matanog had been tampered with. Consequently,
the COMELEC Second Division declared the canvass conducted by the Municipal Board of Canvassers for
the position of Member of the House of Representatives annulled and set aside; and constituted a new
Municipal Board of Canvassers to conduct a new recanvassing and prepare a new Certificate of Canvass
using the COMELEC copy of the election returns.
In the instant petition, petitioner Mastura argues that the COMELEC Second Division should have
made use of the Municipal Board of Canvassers copy of the election returns for the simple reason that it is
the original copy. This is a misconception. All the seven (7) copies of the election returns are
all original copies, although the copy for the Municipal Board of Canvassers is designated as the first copy.
This designation is only for the purpose of distribution and does not in any way accord said copy the status
of being the only original copy. Consequently, it was properly within the exercise of its discretion
when COMELEC ordered the production and examination of the MTC Judge copy and the COMELECcopy
of the election returns. COMELEC is not required to retrieve and examine all the seven (7) copies of the
election returns. cDCIHT

SYLLABUS

1. POLITICAL LAW; ELECTIONS; COMELEC; CAN SUSPEND CANVASS OF VOTES PENDING

INQUIRY WHETHER THERE IS DISCREPANCY BETWEEN VARIOUS COPIES OF ELECTION
RETURNS. It is settled jurisprudence that COMELEC can suspend the canvass of votes pending its
inquiry whether there exists a discrepancy between the various copies of election returns from the disputed
voting centers. Corollarily, once the election returns were found to be falsified or tampered with,
the COMELEC can annul the illegal canvass and order the Board of Canvassers to reconvene and
proclaim the winners on the basis of the genuine returns or, if it should refuse, replace the members of the
board or proclaim the winners itself. IDcAHT
2. REMEDIAL LAW; EVIDENCE; FACTUAL FINDING OF THE COMMISSION ON ELECTION
GENERALLY UPHELD ON APPEAL. That the Certificate of Canvass of the Municipality of Matanog
was tampered with is a factual finding of the COMELEC. Absent any showing of abuse of discretion
amounting to lack of jurisdiction, this Court should refrain from reviewing the same, and must accord it
instead the respect it deserves. 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 COMELEC has broad
powers to ascertain the true results of the election by means available to it. For the attainment of that end,
it is not strictly bound by the rules of evidence.
 3. POLITICAL LAW; ELECTIONS; SYNCHRONIZED ELECTION AND ELECTORAL REFORMS
LAW OF 1991; SEVEN (7) COPIES OF ELECTION RETURNS ALL ORIGINAL COPIES; DESIGNATION
ONLY FOR PURPOSE OF DISTRIBUTION. In the instant petition, petitioner Mastura argues that
the COMELEC Second Division should have made use of the Municipal Board of Canvassers copy of the
election returns for the simple reason that it is the original copy. This is a misconception. All the seven (7)
copies of the election returns are all original copies, although the copy for the Municipal Board of
Canvassers is designated as the first copy. This designation is only for the purpose of distribution and does
not in any way accord said copy the status of being the only original copy. Consequently, it was properly
within the exercise of its discretion when COMELECordered the production and examination of the MTC
Judge copy and the COMELEC copy of the election returns. COMELEC is not required to retrieve and
examine all the seven (7) copies of the election returns.

DECISION

BELLOSILLO, J p:

This Petition for Certiorari, Prohibition and Mandamus with prayer for preliminary injunction and/or
restraining order seeks to reverse, annul or set aside: (a) the 29 February 1996 Order of public
respondent Commission on Elections (COMELEC) which annulled and set aside the canvass made by the
original Municipal Board of Canvassers of Matanog, Maguindanao, created a new set of municipal and
provincial boards of canvassers and directing them to recanvass the votes using the COMELEC copy of
the election returns and to proclaim the duly elected Member of the House of Representatives, First District
of Maguindanao; (b) the 5 March 1996 Order of the COMELEC Second Division which merely noted
theUrgent Motion to Examine and Verify the Canvassed MBC Copies of Election Returns, COMELEC Copy
of the Certificate of Canvass and the accompanying Statement of Votes; (c) the 14 March 1996 Order
denying the Urgent Motion to Defer Implementation of the 29 February 1996 Order; and, (d) the 20 March
1996 order denying Mastura's Motion for Reconsideration of the 29 February 1996 Order. LLjur
Petitioner Michael O. Mastura and private respondent Didagen P. Dilangalen were congressional
candidates for the first district of Maguindanao during the 8 May 1995 elections. In the canvassing of votes,
Dilangalen objected to the inclusion of the Certificate of Canvass of the Municipality of Matanog on the
ground that the same was allegedly tampered. Acting on the objection, the COMELEC Second Division
ordered the production and examination of the election returns of the Municipality of Matanog. In the
course of the examination four (4) ballot boxes were produced and opened. Ballot Box No. 1 contained the
MTC Judge copy of the election returns, Ballot Box No. 2 the Provincial Board of Canvassers copy of the
election returns, Ballot Box No. 3 the COMELEC copy of the election returns, and Ballot Box No. 4 the
Provincial Board of Canvassers copy of the municipal Certificate of Canvass of Matanog with its supporting
Statement of Votes.
Upon examination and comparison of the copies of the election returns of the MTC Judge and
the COMELEC, the COMELEC Second Division found that, indeed, the Certificate of Canvass of the
Municipality of Matanog had been tampered with. Consequently, the COMELEC Second Division issued
the herein assailed Order of 29 February 1996 annulling the Certificate of Canvass of Matanog thus
After comparing the fifty-seven (57) election returns, Municipal Trial Court copy (Judge copy)
with the Comelec copy as to the number of votes obtained by candidates Didagen P.
Dilangalen and Michael O. Mastura, both in words and figures and the taras . . . the Second
Division, finding that no inconsistencies exist between the two (2) copies of the election
returns, and finding further that the Statement of Votes submitted by the Municipal Board of
Canvassers of Matanog, Maguindanao is not reflective of the true votes obtained in the
election returns per verification, hereby annuls the canvass made by the Municipal Board of
Canvassers of Matanog, Maguindanao.
WHEREFORE, the canvass conducted by the Municipal Board of Canvassers for the position
of Member, House of Representatives (First District) is hereby ANNULLED and SET ASIDE.
 A new Municipal Board of Canvassers for the Municipality of Matanog, Maguindanao is
hereby constituted . . . to conduct a new recanvassing at theComelec Session Hall at
Intramuros, Manila, prepare a new Certificate of Canvass using the Comelec copy of the
election returns and, thereafter, to immediately submit the new Certificate of Canvass to the
new Provincial Board of Canvassers as herein constituted . . . 1
The following day, Mastura filed an Urgent Motion to Examine and Verify the Canvassed MBC
Copies of the Election Returns and theCOMELEC Copy of the Certificate of Canvass and Accompanying
Statement of Votes. The COMELEC Second Division merely noted the motion in view of the 29 February
1996 Order. 2
Thereafter Mastura filed an Urgent Motion to Defer Implementation of the 29 February 1996
Order. Mastura argued that the 29 February 1996 Order was issued precipitately and prematurely
considering that some other documents, particularly the Certificate of Canvass of Matanog which he
considered necessary for the resolution of the issue, was yet to be produced and examined.
The COMELEC Second Division denied the motion
. . . (I)t appearing that when the Commission opened the election returns for Matanog,
Maguindanao, particularly the Judge copy and the Comeleccopy and made comparison
thereof to ascertain the actual votes of candidates Didagen P. Dilangalen and Michael
O. Mastura per precinct which consists of fifty-seven (57) precincts, in compliance with the
Supreme Court resolution, the results thereof fully convinced the Commission of the manifest
irregularity committed in the Statement of Votes by precincts. Thus, it annuals the canvass
made by the Municipal Board of Canvassers of Matanog, Maguindanao.
Clearly, on the basis of the results of the primary documents, there is no need for the
examination and opening of other documents mentioned in the motion of private respondent.
Besides, the opening of other documents will entail more delay in the proclamation of the
rightful winner for the position of Member, House of Representatives, First District of
Maguindanao. 3
Meanwhile, the new Municipal Board of Canvassers convened and recanvassed the votes. During
the proceedings Mastura objected to the inclusion of fifty (50) out of the fifty-seven (57) election
returns on the ground that the COMELEC copy of the election returns was not reflective of the true results
unless compared with the copy of the original Municipal Board of Canvassers. But the new Municipal Board
of Canvassers believed otherwise; hence, it included in the canvass the fifty (50) election returns objected
to by Mastura who thereafter walked out while the new Municipal Board of Canvassers continued with the
Canvassing.
After the proceedings in the Municipal Board of Canvassers, the Provincial Board of Canvassers
convened and prepared the Certificate of Canvass and Statement of Votes of the Municipality of Matanog.
As a result, private respondent Dilangalen was proclaimed the duly elected member of the House of
Representatives, First District of Maguindanao.
Mastura now comes to us imputing to public respondent COMELEC Second Division grave abuse
of discretion amounting to lack of jurisdiction in issuing its Orders of 29 February 1996, 5 March 1996, 14
March 1996, and 20 March 1996.
We find no grave abuse of discretion on the part of respondent COMELEC. It is settled
jurisprudence that COMELEC can suspend the canvass of votes pending its inquiry whether there exists a
discrepancy between the various copies of election returns from the disputed voting centers. Corollarily,
once the election returns were found to be falsified or tampered with, the COMELEC can annul the illegal
canvass and order the Board of Canvassers to reconvene and proclaim the winners on the basis of the
genuine returns or, if it should refuse, replace the members of the board or proclaim the winners itself. 4
This was exactly what happened in the instant petition. Dilangalen objected to the inclusion of the
Certificate of Canvass of the Municipality of Matanog and, acting on the objection, COMELEC ordered the
production and examination of the MTC Judge copy and the COMELEC copy of the election returns.
Based on the comparison, the COMELEC Second Division found and concluded that indeed the Certificate
of Canvass of the Municipality of Matanog was tampered with. Consequently, it ordered its annulment and
created a new set of Municipal and Provincial Boards of Canvassers to recanvass the votes. After the
recanvassing, Dilangalen emerged as the winner and was thereafter proclaimed the duly elected member
of the House of Representatives, First District of Maguindanao.
That the Certificate of Canvass of the Municipality of Matanog was tampered with is a factual
finding of the COMELEC. Absent any showing of abuse of discretion amounting to lack of jurisdiction, this
Court should refrain from reviewing the same, and must accord it instead the respect it deserves. 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 COMELEC has broad powers to ascertain the true results of the
election by means available to it. For the attainment of that end, it is not strictly bound by the rules of
evidence. 5
Pursuant to its administrative functions, the COMELEC exercises direct supervision and control
over the proceedings before the Board of Canvassers. In Aratuc v. Commission on Elections 6 we held
While nominally, the procedure of bringing to the Commission objections to the actuations of
boards of canvassers has been quite loosely referred to in certain quarters, even by
the Commission and by this Court . . . as an appeal, the fact of the matter is that the authority
of the Commission in reviewing such actuations does not spring from any appellant jurisdiction
conferred by any specific provision of law, for there is none such provision anywhere in the
Election Code, but from the plenary prerogative of direct control and supervision endowed to it
by the above-quoted provisions of Section 168. And in administrative law, it is a too well
settled postulate to need any supporting citation here, that a superior body or office having
supervision and control over another may do directly what the latter is supposed to do or
ought to have done . . .
Also in Lucman v. Dimaporo 7 we ruled
The function of a canvassing board in the canvass of the returns is purely ministerial in nature.
Equally ministerial, therefore, is the function of theCommission on Elections, in the exercise of
its supervisory power over said Board, pursuant to our Constitution and laws. So long as the
election returns have been accomplished in due form, the Board, and on appeal therefrom,
the Commission on Elections must include said returns in the canvass. cdll
In Abes v. Commission on Elections 8 we emphasized
. . . (T)he board of canvassers is a ministerial body. It is enjoined by law to canvass all
votes on election returns submitted to it in due form. It has been said, and properly, that its
powers are limited generally to the mechanical or mathematical function of ascertaining and
declaring the apparent result of the election by adding or compiling the votes cast for each
candidate as shown on the face of the returns before them, and then declaring or certifying
the result so ascertained. Comelec is the constitutional body charged with the duty to enforce
all laws relative to elections, duty bound to see to it that the board of canvassers perform its
proper function.
Pertinent rulings of this Court have since defined Comelec's powers in pursuance of its
supervisory or administrative authority over officials charged with specific duties under the
election code. It is within the legitimate concerns of Comelec to annul a canvass or
proclamation based onincomplete returns, or on incorrect or tampered returns; annul a
canvass or proclamation made in an unauthorized meeting of the board of canvassers either
because it lacked a quorum or because the board did not meet at all. Neither Constitution nor
statute has granted Comelec or board of canvassers the power, in the canvass of election
returns, to look beyond the face thereof, once satisfied of their authenticity.
The assailed Orders having been issued pursuant to COMELEC's administrative powers and in the
absence of any finding of grave abuse of discretion, judicial interference is therefore unnecessary and
uncalled for. Consequently, the questioned Orders must perforce be upheld.
Additionally, Secs. 27, 28 and 29 of R.A. No. 7166 9 provide
 Sec. 27. Number of Copies of Election Returns and Their Distribution. The board of
election inspectors shall prepare in handwriting the election returns in their respective polling
places, in the number of copies herein provided and in the form to be prescribed and provided
by theCommission. The copies of the election returns shall be distributed as follows: (a) In the
election of . . . members of the House of Representatives: 1) The first copy shall be delivered
to the city or municipal board of canvassers; 2) The second copy, to the Congress, directed to
the President of the Senate; 3) The third copy, to the Commission; 4) The fourth copy, to the
provincial board of canvassers; 5) The fifth copy, to . . . the city or municipal treasurer; 6) The
sixth copy shall be given to the city or municipal trial court judge or in his absence to any
official who may be designated by theCommission. The city or municipal trial court judge or
the official designated by the Commission shall keep his copies of the election returns sealed
and unopened. Said copy may be opened only during the canvass upon order of the board of
canvassers for purposes of comparison with other copies of the returns whose authenticity is
in question; and, 7) The seventh copy shall be deposited inside the compartment of the ballot
box for valid ballots . . .
Sec. 28. Canvassing by Provincial, City, District and Municipal Boards of Canvassers. (a)
The city or municipal board of canvassers shall canvass the election returns for . . . members
of the House of Representatives and/or elective provincial and city or municipal officials. Upon
completion of the canvass, it shall prepare the certificate of canvass for . . . Members of the
House of Representatives. . .
Sec. 29. Number of Copies of Certificate of Canvass and their Distribution. (a) The
certificate of canvass for . . . Members of the House of Representatives . . . shall be prepared
in seven (7) copies by the city or municipal board of canvassers and distributed as follows: 1)
The first copy shall be delivered to the provincial board of canvassers . . .; 2) The second copy
shall be sent to the commission; 3) The third copy shall be kept by the chairman of the board;
4) The fourth copy shall be given to the citizens arm designated by the Commission to
conduct a media-based unofficial count; and, 5) The fifth, sixth and seventh copies shall be
given to the representatives of any three (3) of the six (6) major political parties in accordance
with the voluntary agreement of the parties . . .
In the instant petition, petitioner Mastura argues that the COMELEC Second Division should have
made use of the Municipal Board of Canvassers copy of the election returns for the simple reason that it is
the original copy. This is a misconception. All the seven (7) copies of the election returns are all original
copies, although the copy for the Municipal Board of Canvassers is designated as the first copy. This
designation is only for the purpose of distribution and does not in any way accord said copy the status of
being the only original copy. Consequently, it was properly within the exercise of its discretion
when COMELEC ordered the production and examination of the MTC Judge copy and the COMELECcopy
of the election returns. COMELEC is not required to retrieve and examine all the seven (7) copies of the
election returns.

Additionally, Sec. 15 of R.A. No. 7166 does not in any way specify that the COMELEC should use
the Municipal Board of Canvassers copy in correcting manifest error. COMELEC is in fact given enough
leeway in this regard
Sec. 15. Pre-Proclamation Cases Not Allowed in Elections for President, Vice-President,
Senator and Member of the House of Representatives. For purposes of the elections for
President, Vice-President, Senator and Member of the House of Representatives, no pre-
proclamation cases shall be allowed on matters relating to the preparation, transmission,
receipt, custody and appreciation of the election returns or the certificate of canvass, as the
case may be. However, this does not preclude the authority of the appropriate canvassing
body motu proprio or upon written complaint of an interested person to correct manifest errors
in the certificate of canvass or election returns before it . . . cdphil
There is another reason for denying the instant petition. When petitioner's motion for
reconsideration of the 29 February 1996 Order was denied for being interlocutory in nature, petitioner
 should have sought prior recourse from the COMELEC en banc before coming to this Court, pursuant
to Sec. 3, Art. IX-C, of the Constitution.
WHEREFORE, finding no grave abuse of discretion committed by public
respondent COMMISSION ON ELECTIONS Second Division, the instant petition is DISMISSED. The
assailed Orders of 29 February 1996, 5 March 1996, 14 March 1996 and 20 March 1996 of
the COMELEC Second Division are AFFIRMED. SO ORDERED.
||| (Mastura v. Commission on Elections, G.R. No. 124521, [January 29, 1998], 349 PHIL 423-433)

[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.

Pete Quirino-Cuadra and Sixto S. Brilliante, Jr. for petitioner.

Henry S. Rojas for Movant-Intervenor.

SYNOPSIS

Petitioner Romulo B. Macalintal, a member of the Philippine Bar, sought to declare certain provisions
of Republic Act 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" as unconstitutional.
Petitioner contended 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 cited the
ruling of the Court in Caasi vs. Court of Appeals 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.
The Supreme Court upheld the constitutionality of Section 5(d) of R.A. No. 9189. According to the Court,
Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the
same Article. Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time,
both a resident and an absentee. However, under existing 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. 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, 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
ConstitutionalCommission explicitly mandated Congress to provide a system for overseas absentee voting.
The Court, however, declared certain provisions of the law unconstitutional, namely, portions of Secs. 17.1, 19
and 25, as they trampled on the constitutional mandate of independence of the Commissionon Elections. The
Court also upheld Section 18.5 of R.A. No. 9189 with respect only to the authority given to the COMELEC to
proclaim the winning candidates for 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 Court likewise upheld Sec. 5 (d) of the law. It also declared
that pursuant to Sec. 30 of the law the rest of the provision of said law continues to be in full force and effect.

SYLLABUS
1. POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL REVIEW; RIGHT OF PETITIONER TO
FILE PRESENT PETITION, UPHELD; THE CHALLENGED PROVISION OF LAW INVOLVES A PUBLIC
RIGHT THAT AFFECTS A GREAT NUMBER OF CITIZENS AND AN ISSUE OF TRANSCENDENTAL
SIGNIFICANCE TO THE FILIPINO PEOPLE. 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. The Court has held that they may assail the validity of a law appropriating public
funds 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. 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, 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. 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.
2. ID.; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189);
ENACTED IN OBEISANCE TO THE MANDATE OFTHE CONSTITUTION THAT CONGRESS SHALL
PROVIDE A SYSTEM FOR VOTING BY QUALIFIED FILIPINOS ABROAD. 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, 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. 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 is framers through their debates in the constitutional convention. 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) ofthe Constitution.
3. ID.; ID.; ID.; SECTION 2, ARTICLE V OF THE CONSTITUTION CAME INTO BEING TO REMOVE DOUBT
AS TO THE INAPPLICABILITY OF THE RESIDENCY REQUIREMENT IN SECTION 1. Ordinarily, an
absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an
absentee. 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. 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, 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. 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.
4. ID.; ID.; ID.; SECTION 2 OF ARTICLE V OF THE CONSTITUTION IS AN EXCEPTION TO THE
RESIDENCY REQUIREMENT FOUND IN SECTION 1 OF THE SAME ARTICLE. 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, 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.

5. ID.; ID.; ID.; EXECUTION OF REQUIRED AFFIDAVIT IS NOT THE ENABLING OR ENFRANCHISING ACT;
AFFIDAVIT MERELY SERVES AS AN EXPLICIT EXPRESSION THAT QUALIFIED ABSENTEE HAD NOT IN
FACT ABANDONED HIS OR HER DOMICILE OF ORIGIN. Section 4 of R.A. No. 9189 provides for the
coverage of the absentee voting process. Which does not require physical residency in the Philippines; and
Section 5 of the assailed law which enumerates those who are disqualified. 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.
6. ID.; ID.; ID.; THE JURISPRUDENTIAL DECLARATION IN CAASI VS. COURT OF APPEALS FINDS NO
APPLICATION TO THE PRESENT CASE BECAUSE IT DID NOT, FOR OBVIOUS REASONS, CONSIDER
THE ABSENTEE VOTING RIGHTS OF FILIPINOS WHO ARE IMMIGRANTS AND PERMANENT
RESIDENTS IN THEIR HOST COUNTRIES. 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 votein absentia."
7. ID.; ID.; ID.; ABSENTEE VOTING PRESUPPOSES THAT THE "QUALIFIED CITIZEN OF THE
PHILIPPINES ABROAD" IS NOT PHYSICALLY PRESENT IN THE COUNTRY; REQUIRED AFFIDAVIT
GIVES THE ABSENTEE AN OPPORTUNITY TO EXPRESS THAT HE HAS NOT ACTUALLY ABANDONED
HIS DOMICILE IN THE PHILIPPINES. 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 ofabsentee
voting that necessarily presupposes that the "qualified citizen of the Philippines abroad" is not physically
present in the country. The provisions of Sections 5(d) and 11 are components of the system of overseas
absentee voting established by R.A. No. 9189. The qualified Filipino abroad who executed the affidavit is
deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his
physical absence from this country. His having become an immigrant or permanent resident of his host country
does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines.
Therefore, under the law, he must be given the opportunity to express that he has not actually abandoned his
domicile in the Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law.
8. ID.; ID.; ID.; BY VESTING ITSELF WITH THE POWERS TO APPROVE, REVIEW, AMEND AND REVISE
THE IMPLEMENTING RULES AND REGULATIONS FOR THE OVERSEAS ABSENTEE VOTING ACT OF
2003, CONGRESS WENT BEYOND THE SCOPE OF ITS CONSTITUTIONAL AUTHORITY AND TRAMPLED
UPON THE CONSTITUTIONAL MANDATE OF INDEPENDENCE OF THE COMMISSION ON ELECTIONS.
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. 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. 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.
9. ID.; ID.; ID.; PROVISION REQUIRING REVIEW AND APPROVAL BY JOINT CONGRESSIONAL
OVERSIGHT COMMITTEE OF VOTING BY MAIL IN ANY COUNTRY AFTER THE
2004 ELECTIONS DECLARED UNCONSTITUTIONAL; SAID POWER UNDERMINES THE INDEPENDENCE
OF THE COMMISSION ONELECTIONS. Similarly, the phrase, "subject to the approval of the
Congressional Oversight Committee" in the first sentence of Section 17.1 which empowers the Commission to
authorize voting by mail in not more than three countries for the May, 2004 elections; and the phrase, "only
upon review and approval of the Joint Congressional Oversight Committee" found in the second paragraph of
the same section are unconstitutional as they require review and approval of voting by mail in any country after
the 2004 elections. Congress may not confer upon itself the authority to approve or disapprove the countries
wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the conditions provided
for in Section 17.1 of R.A. No. 9189. Otherwise, Congress would overstep the bounds of its constitutional
mandate and intrude into the independence of theCOMELEC.
BELLOSILLO, J., separate concurring opinion:
1. POLITICAL LAW; ELECTION LAWS; OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC ACT
NO. 9189); MERE ACQUISITION OF AN IMMIGRANT OR PERMANENT RESIDENT STATUS BY A FILIPINO
CITIZEN IN A FOREIGN COUNTRY DOES NOT IPSO JURE RESULT IN THE AUTOMATIC SEVERANCE
OF HIS DOMICILIARY LINK TO THE PHILIPPINES, NOR THE ACQUISITION OF A NEW DOMICILE OF
CHOICE. It has been suggested by certain quarters that all Filipino citizens who
are immigrants and permanent residents abroad are considered to have abandoned their Philippine domicile
and therefore cannot vote in Philippine elections, since they are not within the constitutional contemplation of
"qualified Filipinos abroad" who are eligible to vote. In this jurisdiction, it is well settled that "domicile" and
"residence" as used in election laws are synonymous terms which import not only an intention to reside in a
fixed place but also personal presence in that place coupled with conduct indicative of that intention. Domicile
is a question of intention and circumstances. There are three (3) rules that must be observed in the
consideration of circumstances: first, that a man must have a residence or domicile somewhere; second,
domicile is not easily lost, once established it is retained until a new one is acquired; and third, a man can have
but one residence or domicile at a time. The principal elements of domicile, i.e., physical presence in the
locality involved and intentionto 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 the acquisition of domicile, nor does the fact of physical presence
without intention. The mere acquisition of an immigrant or permanent resident status by a Filipino citizen in a
foreign country does not ipso jure result in the automatic severance of his domiciliary link to the Philippines, nor
the acquisition of a new domicile of choice.

2. ID.; ID.; ID.; ACTUAL AND PHYSICAL RESIDENCE ABROAD SHOULD NOT AUTOMATICALLY BE
EQUATED WITH ABANDONMENT OF PHILIPPINE DOMICILE. The diaspora of Filipinos in foreign lands
started in the wake of the bludgeoning economic crisis in the 80's and its resulting acute shortage of
employment opportunities. This phenomenon has continued to the present day as the steadily rising cost of
living and intermittent economic crises worldwide in their effects weighed most heavily on the ordinary
Filipino. He does not have much choice: leave or starve. The lure of the proverbial greener pastures in foreign
lands is certainly a potent incentive for an exodus. In most cases, the decision to migrate is borne out of the
dire necessities of life rather than a conscious desire to abandon the land of birth.
Most immigrants and permanent residents remain bound very strongly by intimate ties of filial, racial, cultural
and social relationships with the Philippines. They travel back periodically to be with their friends and loved
ones; some even own, maintain and manage their properties here; and, they continue to show keen interest in,
and keep themselves abreast with, political and social developments in the country through the mass media.
They make significant contributions to the nation, through their regular dollar remittances that have
tremendously shored up our sagging national economy. In the face of these realities, I am convinced more
than ever that actual and physical residence abroad should not automatically be equated with abandonment of
Philippine domicile. The circumstances enumerated in the immediately preceding paragraph are
valid indicia of animus manendi (intent to remain) and animus revertendi (intent to return), which should not
simply be brushed aside in determining whether the right to vote should be denied
the immigrantsand permanent residents. Indeed, there is no rhyme nor reason to unduly marginalize this class
of Filipinos.
3. ID.; ID.; ID.; THE EXECUTION OF THE REQUIRED AFFIDAVIT IS AN AFFIRMATION ON THE PART OF
THE IMMIGRANT OR PERMANENT RESIDENT THAT HIS STAY ABROAD SHOULD NOT BE CONSTRUED
AS RELINQUISHMENT OF HIS OLD DOMICILE. It is significant to stress, however, that Sec. 5, par. (d), of
the Absentee Voting Law in fact disqualifies immigrants and permanent residents from voting as a general rule.
This is precisely in recognition of the fact that their status as such may indeed be a badge of their intent to
abandon their Philippine domicile and settle permanently in their host country. But at the same time, the
legislature provided for a mechanism in the law for ascertaining real intent: an immigrant or permanent
resident who wishes to exercise his right of suffrage is required as a condition sine qua non to execute an
affidavit declaring that he shall resume actual, physical and permanent residence in the Philippines not later
than three (3) years from his registration under the law; and that he has not applied for citizenship in another
country. The law in effect draws a distinction between two (2) classes of immigrants or permanent residents
those who have renounced their old domicile in the Philippines, and those who still consider the Philippines as
their domicile of origin. The execution of the affidavit is an affirmation on the part of the immigrant or
permanent resident that his stay abroad should not be construed as a relinquishment of his old domicile.
4. ID.; ID.; ID.; THE LAW CONTAINS PROPER AND ADEQUATE SAFEGUARDS AGAINST MISUSE OR
ABUSE OF THE PRIVILEGE; ABSOLUTE DISQUALIFICATION OF FILIPINO IMMIGRANTS AND
PERMANENT RESIDENTS, WITHOUT DISTINCTION, FROM PARTICIPATING IN THE PHILIPPINE
ELECTORAL PROCESS WOULD RESULT, AS IN THE PAST, IN A MASSIVE DISENFRANCHISEMENT OF
QUALIFIED VOTERS. I am not unaware of the possibility that the immigrant or permanent resident may
renege or his undertaking in the affidavit to resume actual, physical and permanent residence in the Philippines.
But the law contains proper and adequate safeguards against the misuse or abuse of this privilege, i.e., his
name will be purged from the National Registry of Absentee Voters and he will be permanently disqualified
from voting in absentia. As a closing observation, I wish to emphasize that the absolute disqualification of
Filipino immigrants and permanent residents, without distinction, from participating in the Philippine electoral
process would invariably result, as in the past, in a massive disenfranchisement of qualified voters. It would be
self-defeating in the extreme if the Absentee Voting Law would founder on the rock by reason of an unduly
restrictive and decidedly unrealistic interpretation given by the minority on the residency requirement in the
Constitution.
VITUG, J., separate opinion:
1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC
ACT NO. 9189); THE INDICATORS USED BY THE LEGISLATURE ARE REASONABLE GAUGES TO
ESTABLISH THE INTENTION OF THE IMMIGRANT NOT TO ABANDON HIS PHILIPPINE DOMICILE; THE
FACT THAT IMMIGRANT HAS NOT RELINQUISHED HIS PHILIPPINE CITIZENSHIP SHOULD HELP
REMOVE ANY LINGERING DOUBT ON HIS PREFERRED STATUS. The law must have recognized
that animus manendi and animus non revertendi, being processes of the mind and incapable of a definitive
determination, could only be discerned from perceivable circumstances. So also, Republic Act No. 9189 or the
"Overseas Absentee Voting Act of 2003," disqualifies an "immigrant or a permanent resident who is recognized
as such in the host country" to vote under the Act on the premise that such a circumstance can be a cogent
indication of the holder's intention to abandon his old domicile and establish a new one. But, in much the same
vein, the law acknowledges that the immigrant or permanent resident may still be qualified to vote, provided
"he executes, upon registration, an affidavit prepared for the purpose by
the Commission on Elections declaring that he shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his registration under (the) Act." The affidavit shall
additionally confirm that he has not applied for citizenship in another country. I am convinced that these
indicators used by the legislature are reasonable gauges to establish the intention of the immigrant not to
abandon his Philippine domicile. The fact that he has not relinquished his Philippine citizenship should help
remove any lingering doubt on his preferred status. After all, the right of suffrage, now widely considered to be
an innate right of every national, is a basic and perhaps the most outstanding mark of citizenship.
2. ID.; ID.; ID.; THE POWER GIVEN TO THE COMMISSION ON ELECTIONS BY SECTION 18.5 OF
THE REPUBLIC ACT NO. 9189 SHOULD BE UNDERSTOOD TO BE LIMITED ONLY TO THE
PROCLAMATION OF WINNING CANDIDATES FOR THE POSITIONS OF SENATORS AND PARTY-LIST
REPRESENTATIVES. Section 4 of the Act allows all qualified Filipinos abroad to vote for President, Vice-
President, Senators and party-list representatives. In relation to this, Section 18.5 empowers
the Commission on Election to order the proclamation of winning candidates. Since it is Congress which has
been granted by the Constitution the authority and duty to canvass the votes and proclaim the winning
candidates for president and vice-president, I echo the sentiment of my colleagues that the power given
to COMELEC by Section 18.5 of R.A. 9189 should be understood to be limited only to the proclamation of
winning candidates for the positions of senators and party-list representatives. The election returns for the
positions of president and vice-president should then be certified by the Board of Canvassers to Congress and
not to COMELEC as provided for in Section 18.4 of the Act.
3. ID.; ID.; ID.; THE ROLE OF THE JOINT CONGRESSIONAL OVERSIGHT COMMITTEE MUST BE
UNDERSTOOD AS BEING LIMITED ONLY TO THE MONITORING AND EVALUATION OF THE
IMPLEMENTATION OF THE ACT PURSUANT TO THE POWER OF CONGRESS TO CONDUCT INQUIRIES
IN AID OF LEGISLATION. R.A. 9189 creates a Joint Congressional Oversight Committee (JCOC)
composed of Senators and Members of the House of Representatives, empowered to "review, revise, amend
and approve the Implementing Rules and Regulations (IRR) promulgated by the COMELEC," and to approve
the voting by mail in not more than three (3) countries for the May 2004 elections and in any country
determined by COMELEC. The Court here finds unanimity in holding that Congress, by vesting itself with the
aforesaid powers, has gone beyond the scope of its constitutional authority. It is a pronouncement that, in my
view, can hardly be susceptible to challenge. The Constitution ordains that constitutional commissions such as
the COMELEC shall be independent. The COMELEC has the constitutional authority to "enforce and
administer all laws and regulations relative to the conduct of an election" and to promulgate its rules of
procedure. The role therefore of the JCOC must be understood as being limited only to the monitoring and
evaluation of the implementation of the Act pursuant to the power of Congress to conduct inquiries in aid of
legislation.
PANGANIBAN, J., separate opinion:
1. CONSTITUTIONAL LAW; SUFFRAGE; REASON FOR RESIDENCE REQUIREMENT. I believe that,
traditionally, the law requires residence because presence in a certain locality enables a person to know the
needs and the problems of that area. Equally important, it also makes one become acquainted with the
candidates their qualifications, suitability for a particular office and platform of government. Thus, the
fundamental law requires, not just that there be a minimum of one-year residence in the country, but also that
six months of that period be spent in the place where the ballot is to be cast. Such detailed requirement will
hopefully give the voters sufficient knowledge about a specific town as to help them choose its local officials
wisely, quite apart from understanding enough of the entire country so as to prepare to vote sagaciously for
national leaders. Although the foregoing discussions were used to justify the residence requirement vis-a-vis
candidates for elective public offices, I believe that their rationale can easily and analogically fit the needs
of voters as well.

2. ID.; ID.; ACTUAL PRESENCE IN THE PHILIPPINES IS NO LONGER INDISPENSABLE TO MAKE

DISCERNING FILIPINOS KNOW THE PROBLEMS OF THEIR COUNTRY AND TO DECIDE WHO AMONG
THE CANDIDATES FOR NATIONAL POSITIONS DESERVE THEIR MANDATE. The defining essence of
my position is this: in the midst of the now available e-age communications facilities, actual presence in the
Philippines is no longer indispensable to make discerning Filipinos know the problems of their country and to
decide who among candidates for national positions deserve their mandate. Indeed, the Information Age has
given overseas Filipinos convenient means to inform themselves of our country's needs, as well as of the
suitability of candidates for national offices. After all, many of them live abroad, not because they want to
abandon their land of birth, but because they have been constrained to do so by economic, professional,
livelihood and other pressing pursuits. Ineluctably, they remit their hard-earned money to help their relatives
here and their country as a whole. Verily, their easy access to Philippine mass media keep them constantly
aware of happenings in their native country. National dailies and other periodicals are sold regularly in Filipino
enclaves in foreign shores. Several local and community publications in these areas cater mainly to Filipino
expatriates, publishing news and opinions not only about their alien neighborhoods, but also quite extensively
about their homeland.
3. ID.; ID.; IT WOULD BE THOROUGHLY UNREASONABLE TO EXPECT FOREIGN-BASED FILIPINOS TO
COME BACK TO THE PHILIPPINES FOR ONE YEAR EVERY THREE YEARS AND ABANDON THEIR JOBS
JUST TO BE ABLE TO COMPLY LITERALLY WITH THE RESIDENTIAL REQUIREMENT OF SUFFRAGE.
The e-age has opened windows to the Philippines in a pervasive and thorough manner, such that actual
presence in the country is no longer needed to make an intelligent assessment of whom to vote for as our
national leaders. I make this emphasis on national officials, because the Absentee Voting Law allows overseas
voting only for President, Vice President, senators and party-list representatives. This distinction is important,
because the information available through websites and other modern media outlets is addressed mainly to
national concerns. To insist that only those who can demonstrate actual physical residence in the country for
one year or only those who have complied with the more difficult-to-understand concept of domicile
would be entitled to vote would be to cling adamantly and unreasonably to a literal interpretation of the
Constitution without regard for its more liberating spirit or rationale. Such insistence would result in rendering
inutile any meaningful effort to accord suffrage to Filipinos abroad. Such proposition would make the
constitutional interpretation anachronous in the face of the refreshing and pulsating realities of the world. In my
view, it would be thoroughly unreasonable to expect foreign-based Filipinos to come back here for one year
every three years and abandon their jobs just to be able to comply literally with the residential requirement of
suffrage.
CARPIO, J., concurring opinion:
1. CONSTITUTIONAL LAW; SUFFRAGE; TO REQUIRE ABSENTEE VOTERS TO COMPLY WITH THE
DOUBLE RESIDENCY REQUIREMENT IS TO IMPOSE AN IMPRACTICAL AND EVEN IMPOSSIBLE
CONDITION TO THE EXERCISE OF THE CONSTITUTIONAL RIGHT TO VOTE. To require absentee
voters to comply with the double residency requirement is to impose an impractical and even an impossible
condition to the exercise of the constitutional right to vote. In the first place, the second residency requirement
of establishing residence in a locality in the Philippines where the voters propose to vote is impossible to
comply since overseas Filipinos will obviously not vote in any locality in the Philippines. Imposing the double
residency requirement makes the absentee voting an empty right of overseas Filipinos. Certainly, the wise
framers of the Constitution were incapable of such absurd scheme.
2. ID.; ID.; THE CONCEPT OF ABSENTEE VOTING NEGATES A RESIDENCY REQUIREMENT IN THE
COUNTRY OF CITIZENSHIP OF THE VOTER; BY DEFINITION AN ABSENTEE VOTER IS A NON-
RESIDENT VOTER. The concept of absentee voting negates a residency requirement in the country of
citizenship of the voter. By definition, an absentee voter is a non-resident voter. Obviously, the double
residency requirement in Section 1 of Article Vapplies only to resident or non-absentee Filipino voters. To
impose the double residency requirement on absentee Filipino voters is an egregious anomaly for it will require
absentee Filipino voters to comply with the same residency requirement imposed on resident or non-absentee
Filipino voters. If absentee Filipino voters are required to reside in the Philippines just like resident or non-
absentee Filipino voters, why create an absentee voting system for overseas Filipinos in the first place?
Applying the double residency requirement on absentee voters will render the provision onabsentee voting in
Section 2 a surplusage, a constitutional mandate devoid of meaning. Even without the absentee voting
provision in Section 1, Congress can validly enact a law allowing resident or non-absentee Filipino voters
those who comply with the double residency requirement to vote abroad in Philippine embassies or
consulates. There is no constitutional prohibition on registered Filipino voters who comply with the double
residency requirement to cast their ballots at a Philippine embassy or consulate abroad where they happen to
be on election day. If the absentee voting system in Section 2 were for the benefit only of resident or non-
absentee Filipinos, then there would be no need to provide for it in the Constitution.
3. ID.; ID.; THE FRAMERS OF THE 1987 CONSTITUTION INTENDED THE ABSENTEE VOTING
PROVISION AS AN EXCEPTION TO THE DOUBLE RESIDENCY REQUIREMENT. The framers of
the 1987 Constitution specifically introduced the absentee voting provision in Section 2 precisely to enfranchise
overseas Filipinos who do not comply with the double residency requirement in Section 1. Without the
absentee voting provision in Section 2, Congress could not validly enact a law enfranchising overseas Filipinos
who do not comply with the double residency requirement. As succinctly explained by Commissioner Christian
Monsod during the deliberations in the Constitutional Commission. The framers of the Constitutionintended the
absentee voting provision as an exception to the double residency requirement.
4. ID.; ID.; THERE IS NO CONSTITUTIONAL PROVISION AGAINST THE ENACTMENT OF LEGISLATION
PRESCRIBING THE REACQUISITION OF DOMICILE OR RESIDENCE IN THE PHILIPPINES, JUST AS
THERE IS NO CONSTITUTIONAL PROVISION AGAINST THE ENACTMENT OF LEGISLATION
PRESCRIBING THE REACQUISITION OF PHILIPPINE CITIZENSHIP. The question of how a Filipino, who
has become a permanent resident or immigrant in a foreign country, may reacquire his domicile or residence in
the Philippines is a matter for ordinary legislation. The reacquisition of the Philippine domicile or residence that
a Filipino had lost is within the power of Congress to legislate. The Constitution does not define what domicile
or residence means. There is also no constitutional prohibition against the enactment of legislation prescribing
the reacquisition of domicile or residence in the Philippines, just as there is no constitutional prohibition against
the enactment of legislation prescribing the reacquisition of Philippine citizenship. Thus, RA No. 8171 allows a
former natural-born Filipino who became a foreigner to reacquire Philippine citizenship by filing a simplified
administrative petition and taking an oath of allegiance to the Philippines. Section 5(d) of RA No. 9189, which
prescribes the reacquisition of residence by a Filipino through the execution of an affidavit stating he is
resuming residence in the Philippines, is similarly well within the power of Congress to enact and is thus
constitutional. cdasiajur
5. ID.; ID.; THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS REQUIRES THE
PHILIPPINES TO RESPECT THE PEOPLE'S RIGHT OF SUFFRAGE "WITHOUT UNREASONABLE
RESTRICTIONS"; TO REQUIRE OVERSEAS FILIPINOS TO RETURN WITHIN 12 MONTHS SO THEY MAY
VOTE ABROAD AS ABSENTEE VOTERS IS PLAINLY AN UNREASONABLE RESTRICTION OUTLAWED
BY THE COVENANT. The right of suffrage is the cornerstone of a representative government like that
established in the 1987 Constitution. A representative government is legitimate when those represented elect
their representatives in government. The consent of the governed is what stamps legitimacy on those who
govern. This consent is expressed through the right of suffrage. It is a precious right for which many have
fought and died so that others may freely exercise it. A government that denies such right on flimsy or
meaningless grounds does so at its peril. The International Covenant on Civil and Political Rights, to which the
Philippines is a signatory, requires the Philippines to respect the people's right of suffrage "without
unreasonable restrictions." The Philippines is duty bound under international law to comply in good faith with
its treaty obligations under the Covenant. To require overseas Filipinos to return to the Philippines twice within
12 months so they may vote abroad as absentee voters is plainly an unreasonable restriction outlawed by the
Covenant. When the framers of the Constitution introduced absentee voting in Section 2 of Article V, they were
aware of the country's obligations under the Covenant. In their discussions on the death penalty, human rights
and the Bill of Rights, the framers of the Constitution often referred to the country's obligations under the
Covenant. It is inconceivable that the framers intended overseas Filipinos to comply with the double residency
requirement, an unreasonable restriction that would patently violate Article 25 of the Covenant and practically
negate the overseas Filipinos' right of suffrage.

CARPIO MORALES, J., separate opinion:

1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC
ACT NO. 9189); THE REQUIRED AFFIDAVIT EXECUTED IN ACCORDANCE WITH THE LAW BY A
FILIPINO IMMIGRANT OR PERMANENT RESIDENT OF ANOTHER COUNTRY EXPRESSING HIS INTENT
TO RESUME PHYSICAL PERMANENT RESIDENCE IN THE PHILIPPINES IS AN ELOQUENT PROOF OF
HIS INTENTION NOT TO ABANDON HIS DOMICILE OF ORIGIN IN THE PHILIPPINES. It is my view that
the affidavit executed in accordance with Section 5(d) of R.A. 9189 by a Filipino immigrant or permanent
resident of another country expressing his intent to resume physical permanent residence in the Philippines is
an eloquent proof of his intention not to abandon his domicile of origin in the Philippines. It is a statement under
oath of what a Filipino seeks to do for the future of his membership in a political community. Why should this
affidavit be discredited on the mere speculation that the immigrant might not fulfill his undertaking to return to
the Philippines for good? If Filipinos who are temporarily residing in foreign countries are accorded full faith
and credit as to their domiciliary ties no matter how indefinite their absence from the Philippines, what more in
the case of Filipino immigrants who have formally declared their intent to settle in their homeland? While he
may have stayed on a more or less permanent basis in the host country which conferredon him the status of
an immigrant and may be animated with all the desire to remain there, until and unless a Filipino immigrant had
categorically expressed by words or by deeds his intent to no longer return to his domicile of origin, no
conclusion can be reached as to a change in domicile from one of origin to one of choice, hence, the old
domicile subsists. For at the core of every Filipino immigrant's being is the fact of his Philippine citizenship. He
is, after all, still a Filipino.
2. ID.; ID.; ID.; UNTIL THE OPPORTUNITY TO EXECUTE THE REQUIRED AFFIDAVIT HAS BEEN
TOTALLY FOREGONE BY A FILIPINO IMMIGRANT, IN THE ABSENCE OF ANY CONCLUSIVE EVIDENCE
OF HIS ACQUISITION OF A NEW DOMICILE, THE FILIPINO IMMIGRANT'S DOMICILE OF ORIGIN IS
INTACT, HIS PRESENCE ABROAD AND HIS DESIRE TO REMAIN THEREIN NOTWITHSTANDING. The
acquisition of a new domicile must be completely perfected by a concurrence of the factum of removal to a new
locality, the animus to remain there, and abandonment of and intent not to return to the former domicile, for if
there is a purpose to return, whether secret or open, no loss or change of domicile will result. Two types of
Filipino immigrants must then be distinguished. The first, a Filipino who has opted not to execute the required
affidavit under Section 5(d) of R.A. 9189, is clearly disqualified to exercise suffrage for he has manifested
the animus non revertendi with respect to his domicile in the Philippines, thereby effectuating his acquisition of
a new domicile. The second, a Filipino who declares his wish to be reunited with his homeland has, without
doubt, shown that his residence of origin remained unchanged and so he is entitled to vote under the Overseas
Absentee Voting Law. Therefore, until that opportunity to execute the affidavit has been totally foregone by a
Filipino immigrant, in the absence of any conclusive evidence of his acquisition of a new domicile, the Filipino
immigrant's domicile of origin is intact, his presence abroad and his desire to remain therein notwithstanding.
AZCUNA, J., concurring opinion:
1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC
ACT NO. 9189); THE ABANDONMENT OF THE PRESENT DOMICILE OF CHOICE, BY THE EXECUTION
OF THE AFFIDAVIT, OPERATES TO REVIVE THE DOMICILE OF ORIGIN TO REPLACE IT BECAUSE OF
THE PRINCIPLE THAT NO PERSON CAN BE WITHOUT A DOMICILE AT ANYTIME. Petitioner contends
that Filipinos who establish permanent residence abroad have thereby abandoned their Philippine domicile of
origin and replaced it with a domicile of choice in a foreign country. This may indeed be true, but with the
execution of the affidavit provided for under Section 5 (d) aforementioned, the affiant expressly states an
abandonment of said domicile of choice. The legal effect of this expression is to revive the domicile of origin.
For unlike a domicile of choice, which requires both intention and physical presence to be established or
maintained, the domicile of origin can be revived by an intention properly expressed. Thus, the abandonment
of the present domicile of choice, by the execution of the affidavit, operates to revive the domicile of origin to
replace it, because of the principle that no person can be without a domicile at any time.
2. ID.; ID.; ID.; THROUGH THE EXECUTION OF THE REQUIRED AFFIDAVIT, THE AFFIANT
DOES THE OPERATIVE ACT THAT MAKES HIM ONCE MORE A PHILIPPINE DOMICILIARY; THE
REQUIREMENT OF RESUMING ACTUAL PHYSICAL PRESENCE WITHIN THREE (3) YEARS IS ONLY
TEST OF SUCH INTENTION, BUT IS NOT NEEDED TO EFFECT CHANGE OR REVERSION OF
DOMICILE. The moment a foreign domicile is abandoned, the native domicile is reacquired. When a
person abandons his domicile of choice, his domicile of origin immediately reverts and remains until a new
domicile of choice is established. On the abandonment of a domicile of choice, the domicile of origin
immediately reverts, without regard to any definite intent to return to such original domicile, provided there
is a definite intent finally to abandon the acquired domicile of choice. Through the execution of the affidavit,
the affiant does the operative act that makes said affiant once more a Philippine domiciliary. The
requirement of resuming actual physical presence within three (3) years is only a test of such intention, but
is not needed to effect the change or reversion of domicile. If the affiant does not resume the residence
physically within said period, then the intent expressed in the affidavit is defective and the law will deem it
inoperative, thereby allowing removal of affiant's name from the National Registry of Absentee Voters.
PUNO, J., concurring and dissenting opinion:
1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC
ACT NO. 9189); THE MAJORITY ERRED IN RULING THAT SECTION 2 OF ARTICLE V OF THE
CONSTITUTION DISPENSED WITH THE RESIDENCE REQUIREMENT'S PROVIDED UNDER SECTION 1
OF THE SAME ARTICLE. The intent of the members of the Constitutional Commission to apply the
residence requirements to absentee voters is evident from its deliberations. They precisely used the phrase
"QUALIFIED FILIPINOS ABROAD" to stress that the absentee voter must have all the qualifications in Section
1, Article VI of the Constitution. In the course of the deliberations, Fr. Bernas perceived a problem that may
arise from the meaning of the second residence requirement on the place of registration and voting. As noted,
a qualified voter normally registers and votes in the place where he is domiciled or has resided for six months.
Fr. Bernas feared that the second residence requirement may pose a constitutional obstacle 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." Following the observation of Father Bernas and to obviate the constitutional problem, the
members of the Constitutional Commission then discussed the system of registration of qualified
Filipinos abroad who will be allowed to vote. It was agreed that their registration abroad would be considered
as registration in a particular locality in the Philippines where he is domiciled, and the vote cast abroad would
be considered cast in that particular locality. It is crystal clear from the deliberations, that the majority erred in
ruling that Section 2 of Article V of the Constitution dispensed with the residence requirements provided under
Section 1 of the same Article.
2. ID.; ID.; ID.; AN "IMMIGRANT" OR A "PERMANENT RESIDENT" OF A FOREIGN COUNTRY IS DEEMED
TO HAVE ABANDONED HIS DOMICILE IN THE PHILIPPINES. In Romualdez-Marcos v. COMELEC, we
ruled that domicile of origin is not easily lost. 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 acts which correspond with purpose. This change of
domicile is effected by a Filipino who becomes an "immigrant" or a "permanent resident" of a foreign country.
Thus, we held in Caasi v. Court of Appeals, viz: Miguel's application for immigrant status and permanent
residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he
is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such
immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an
irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities
before he ran for mayor. . . The doctrine in Caasi is by no means new. Our election laws have continuously
regarded "immigrants" or "permanent residents" of a foreign country to have lost their domiciles in the
Philippines and hence are not qualified to run for public office. There is no reason not to apply the Caasi ruling
in disputes involving the qualification of voters. In essence, both cases concern fulfillment of the residence
requirements. Section 5(d) ofRep. Act No. 9189 itself reinforces the applicability of the Caasi doctrine. As
observed by the majority, Rep. Act No. 9189 disqualifies an immigrant or a permanent resident who is
recognized as such in another country "because immigration or permanent residence in another country
implies renunciation of one's residence in his country of origin."
3. ID.; ID.; ID.; THE MAJORITY RULING ON THE NATURE OF THE AFFIDAVIT TO BE EXECUTED BY AN
"IMMIGRANT" OR A "PERMANENT RESIDENT" IS INCONSISTENT. I submit that the majority
ruling on the nature of the affidavit to be executed by an "immigrant" or a "permanent resident"
isinconsistent. On one hand, it theorizes that the act "serves as an explicit expression that he had not in fact
abandoned his domicile of origin." This concedes that while an "immigrant" or a "permanent resident" has
acquired a new domicile in a foreign country by virtue of his status as such, Rep. Act No. 9189 would consider
him not to have abandoned his domicile in the Philippines. On the other hand, the majority also theorizes that
the affidavit constitutes an "express waiver of his status as an immigrant or permanent resident," and upon
fulfillment of the requirements of registration, "he may still be considered as a 'qualified citizen of the
Philippines abroad' for purposes of exercising his right of suffrage." This presupposes that the "immigrant" or
"permanent resident" abandoned his domicile in the Philippines, but seeks to reacquire this domicile by the
execution of the affidavit. The first theory is untenable. Its inevitable result would be the establishment of two
domiciles, i.e., domicile in the Philippines and domicile in a foreign country where he is considered an
"immigrant" or a "permanent resident." This ruling will contravene the principle in private international law that a
person can be domiciled only in one place at a given time. The second theory is equally untenable. A person
who has abandoned his domicile of origin by establishing a domicile of choice cannot just revert back to his
domicile of origin. He must satisfy the same requisites for acquiring a new domicile, i.e., 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 acts which correspond with the purpose. An existing domicile cannot be lost by
abandonment alone, even if there is an intent to acquire a new one; the existing domicile continues until a new
one is in fact gained. To abandon domicile, a person must choose a new domicile, actually reside in the place
chosen, and intend that it be the principal and permanent residence. That is, there can be no change of
domicile without the concurrence of act and intent.

4. ID.; ID.; ID.; THE REQUIRED AFFIDAVIT MERELY PROVES THE INTENT TO RETURN BUT NOT THE
OTHER REQUISITES FOR RE-ACQUIRING THE DOMICILE OF ORIGIN; WHAT MAKES THE INTENT
EXPRESSED IN THE AFFIDAVIT EFFECTIVE AND OPERATIVE IS THE FULFILLMENT OF THE PROMISE
TO RETURN TO THE PHILIPPINES AND UNTIL THEN, THE ABSENTEE DOES NOT POSSESS THE
NECESSARY REQUISITES AND THEREFORE, CANNOT BE CONSIDERED A QUALIFIED VOTER. With
due respect, I submit that the affidavit merely proves the intent to return but not the other requisites for
reacquiring the domicile of origin. Intent, which is not coupled with actual physical transfer, is not sufficient
either to abandon the former domicile or to establish a new domicile. Thus, the view that domicile could be
established as soon as the old is abandoned even though the person has not yet arrived at the new domicile,
has not been accepted. To stress, the burden of establishing a change in domicile is upon the party who
asserts it. A person's declarations as to what he considers his home, residence, or domicile are generally
admissible "as evidence of his attitude of mind." However, whatever the context, "their accuracy is suspect
because of their self-serving nature, particularly when they are made to achieve some legal objective." In the
case at bar, the burden rests on an "immigrant" or a "permanent resident" to prove that he has abandoned his
domicile in the foreign country and reestablished his domicile in the Philippines. A self-serving affidavit will not
suffice, especially when what is at stake is a very important privilege as the right of suffrage. I respectfully
submit that what makes the intent expressed in the affidavit effective and operative is the fulfillment of the
promise to return to the Philippines. Physical presence is not a mere test of intent but the "principal confirming
evidence of the intention of the person." Until such promise is fulfilled, he continues to be a domiciliary of
another country. Until then, he does not possess the necessary requisites and therefore, cannot be considered
a qualified voter.
5. ID.; ID.; ID.; COUNTING THE VOTES OF IMMIGRANTS OR PERMANENT RESIDENTS WHO FAIL TO
RETURN TO THE PHILIPPINES WILL DILUTE THE VALID VOTES OF FULLY QUALIFIED ELECTORS;
MAY RESULT IN THE ANOMALY WHERE THE HIGHEST PUBLIC OFFICIALS OF THE LAND WILL OWE
THEIR ELECTION TO "IMMIGRANTS" OR "PERMANENT RESIDENTS" WHO FAILED TO FULFILL THEIR
PROMISE TO RETURN TO THE COUNTRY OR WHO REPUDIATED THEIR DOMICILE HERE. The only
consequence imposed by Rep. Act No. 9189 to an "immigrant" or a "permanent resident" who does not fulfill
his promise to return to the Philippines is the removal of his name from the National Registry of Absentee
Voters and his permanent disqualification to vote in absentia. But his vote would be counted and accorded the
same weight as that cast by bona fide qualified Filipino voters. I respectfully submit that this scheme
diminishes the value of the right of suffrage as it dilutes the right of qualified voters to the proportionate value of
their votes. The one person, one vote principle is sacrosanct in a republican form of government. The
challenged provision which allows the value of the valid votes of qualified voters to be diminished by the invalid
votes of disqualified voters violates the sovereignty of our people. The validation by the majority of this
unconstitutional provision may result in the anomaly where the highest public officials of our land will owe their
election to "immigrants" or "permanent residents" who failed to fulfill their promise to return to our country or
who repudiated their domicile here.
6. ID.; ID.; ID.; SECTION 18.5 OF REPUBLIC ACT NO. 9189 EMPOWERING
THE COMMISSION ON ELECTIONS TO PROCLAIM THE WINNING CANDIDATES SHOULD BE
CONSTRUED AS LIMITED TO THE POSITIONS OF SENATORS AND PARTY LIST REPRESENTATIVES.
On its face, Section 18.5 of Rep. Act No. 9189 appears to be repugnant to Section 4, Article VII of the 1987
Constitution. It gives the impression that Congress abdicated toCOMELEC its constitutional duty to canvass
and proclaim the winning candidates for President and Vice-President. I agree with the majority that the
impugned provision should be given a reasonable interpretation that would save it from a constitutional infirmity.
To be sure, Congress could have not allowed the COMELEC to exercise a power exclusively bestowed upon it
by the Constitution. Thus, Section 18.5 of Rep. Act No. 9189 empowering the COMELEC to proclaim the
winning candidates should be construed as limited to the positions of Senators and party-list representatives.
7. ID.; ID.; ID.; THE LEGISLATIVE VETO POWER OR CONGRESSIONAL OVERSIGHT POWER OVER THE
AUTHORITY OF THE COMMISSION ONELECTIONS TO ISSUE RULES AND REGULATIONS IN ORDER
TO ENFORCE ELECTION LAWS IS UNCONSTITUTIONAL; THE POWER TO PROMULGATE RULES AND
REGULATIONS IN ORDER TO ADMINISTER ELECTION LAWS HAS BEEN VESTED EXCLUSIVELY BY
THE 1987 CONSTITUTION TO THECOMMISSION AND IT CANNOT BE TRENCHED UPON BY CONGRESS
IN THE EXERCISE OF ITS OVERSIGHT POWERS. The Constitution divided the powers of our
government into three categories, legislative, executive, and judicial. Although not "hermetically sealed" from
one another, the powers of the three branches are functionally identifiable. In this respect, legislative power is
generally exercised in the enactment of the law; executive power, in its execution; and judicial power, in its
interpretation. In the absence of specific provision in the Constitution, it is fundamental under the principle of
separation of powers that one branch cannot exercise or share the power of the other. In addition, our
Constitution created other officesaside from the executive, the legislative and the judiciary and defined their
powers and prerogatives. Among these bodies especially created by the Constitution itself is
the COMELEC. The COMELEC occupies a distinct place in our scheme of government. As the constitutional
body charged with the administration of our election laws, it is endowed with independence in the exercise
of some of its powers and the discharge of its responsibilities.The power to promulgate rules and regulations in
order to administer our election laws belongs to this category of powers as this has been vested exclusively by
the 1987 Constitution to the COMELEC. It cannot be trenched upon by Congress in the exercise of its
oversight powers.
8. ID.; ID.; ID.; SECTION 17.1 OF REPUBLIC ACT NO. 9189 IS UNCONSTITUTIONAL FOR IT ALLOWS
CONGRESS TO NEGATE THE EXCLUSIVE POWER OF THE COMMISSION ON ELECTIONS TO
ADMINISTER AND ENFORCE ELECTION LAWS AND REGULATIONS GRANTED BY THE
CONSTITUTION ITSELF; SAID POWER IS EXCLUSIVE AND IS NOT MEANT TO BE SHARED BY ANY
OTHER BRANCH OR AGENCY OF THE GOVERNMENT. I join the majority in holding that Section 17.1
of Rep. Act No. 9189 is unconstitutional for it allows Congress to negate the exclusive power of
the COMELEC to administer and enforce election laws and regulations granted by the Constitution itself. This
is not to maintain that the Implementing Rules and Regulations promulgated by the COMELEC, or the system
it devised to implement voting by mail cannot be challenged. If they are illegal or constitute grave abuse of
discretion, the courts can strike them down in an appropriate case. This power is vested to the courts under
Section 1, Article VIII of the Constitution defining the scope of judicial power, and more specifically under
Section 5, Article VIII empowering this Court to review, revise, reverse, modify or affirm on appeal or certiorari,
"all cases in which the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question." Again, this power
is exclusive and is not meant to be shared by any other branch or agency of the government.
YNARES-SANTIAGO, J., concurring and dissenting opinion:
1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC
ACT NO. 9189); GRANTS THE RIGHT OF SUFFRAGE TO A CATEGORY OF VOTERS WHO DO NOT
POSSESS THE CONSTITUTIONAL REQUIREMENT OF RESIDENCE; THE MAJORITY OPINION
OVERLOOKED THE FACT THAT WHILE SECTION 2, ARTICLE V OF THE CONSTITUTION PROVIDES A
SYSTEM FOR ABSENTEE VOTING, ANY ABSENTEE WHO VOTES MUST FIRST MEET THE
QUALIFICATIONS FOUND IN SECTION 1 OF THE SAME ARTICLE. I am constrained to dissent from the
majority opinion because R.A. 9189 grants the right of suffrage to a category of voters who do not possess the
constitutional requirement of residence. These are men and women who are still Filipino citizens but who have
voluntarily and unambiguously chosen actual, physical, and permanent residence in a foreign country. In other
words, the questioned law allows non-residents to vote. As phrased, Section 5 (d) of R.A. 9189 grants to
Filipinos who are immigrants or permanent residents of another country, and who are considered as such by
their host country, the option to exercise their right of suffrage. Proponents of R.A. 9189 are trying to construe
Section 2 of Article V of the Constitution as a proviso which expands and enlarges the scope of the preceding
section. They overlook the fact that while Section 2 provides a system for absentee voting, any absentee who
votes must first meet the qualifications found in Section 1 of the same article.
2. ID.; ID.; ID.; SINCE THE PROVISION ON ABSENTEE VOTING IN REPUBLIC ACT NO. 9189 NEITHER
LIMITS NOR ENLARGES A PROVISION OF WHICH IT IS A PART, THE PHRASE "QUALIFIED FILIPINOS
ABROAD" CAN BE INTERPRETED ONLY TO MEAN THAT THOSE WHO ARE QUALIFIED TO VOTE
UNDER SECTION 1, ARTICLE 4 OF THE CONSTITUTION MAY BECOME THE ABSENTEE VOTERS AND
MUST, THEREFORE, POSSESS ON ELECTION DAY THE CONSTITUTIONAL REQUIREMENTS AS TO
CITIZENSHIP, AGE AND RESIDENCE. As stated by the petitioner, if the framers of the
Constitutionintended to make Section 2 of Article V a proviso or exception to its first section, they should have
added it to the latter. The Constitution does not make the absentee voting provision a mere proviso of the first
section on residence qualifications. Together with the system which secures the secrecy and sanctity of the
ballot, the provision on absentee voting is an entirely distinct and separate section which allows only those
qualified under Section 1 to take advantage of the privilege under Section 2. The office of a proviso is to limit
the application of a section or provision or to qualify or restrain its generality. However, a proviso may also
enlarge what otherwise is a phrase of limited import had there been no proviso qualifying it. Since the
provision on absentee voting in R.A. 9189 neither limits nor enlarges a provision of which it is a part, the
phrase "qualified Filipinos abroad" can be interpreted only to mean that those who are qualified to vote under
the preceding section may become absentee voters. They must possess onelection day the constitutional
requirements as to citizenship, age and residence.

3. ID.; ID.; ID.; MADAM JUSTICE YNARES-SANTIAGO DOES NOT AGREE WITH THE MAJORITY'S BELIEF
THAT THE POSITION OF ARTICLE V, SECTION 2 OF THE CONSTITUTION IS INDICATIVE OF AN INTENT
TO MAKE IT APPEAR TO BE AN EXCEPTION TO THE RESIDENCE REQUIREMENT PROVIDED IN
SECTION 1 OF THE SAME ARTICLE. It is submitted that a valid and very real distinction exists between
either of these two groups of Filipinos, on the one hand, and those Filipinos who are permanent residents or
immigrants in their host countries, on the other. The key difference lies in the change of permanent residence
or lack thereof, for the framers of our Constitution clearly intended that Filipinos who had taken up permanent
residence in their host countries would be excluded from the benefits of absentee voting. No other
interpretation can be supported by the records at hand. It is clear that the Constitutional Commission did not
intend to make absentee voters an exception to the general rule on residence in the exercise of the right of
suffrage. We do not agree with the majority's belief that the position of Article V, Section 2 of the Constitution is
indicative of an intent to make it appear to be an exception to the residence requirement provided for in the
section immediately preceding it. As earlier stated, Section 2 is not a proviso of Section 1. It is patent from the
excerpts of the deliberations by members of the constitutional commissions that the Commissioners took pains
to ensure that the reasoning behind Article V, Section 2 of the Constitution would not be misunderstood. They
never intended to accord a special status nor give special consideration to Filipinos who have become
permanent residents of their host countries. These necessarily include immigrants.
4. ID.; ID.; ID.; "ABSENTEE" REFERS TO THOSE PEOPLE WHOSE INTENT TO RETURN HOME AND
FORSAKE THE FOREIGN COUNTRY IS CLEAR; IT CANNOT REFER TO IMMIGRANTS AND A MERE
PROMISE TO RETURN HOME WITHIN THREE YEARS FROM VOTING IS NO PROOF OF INTENT TO
RETURN TO A PERMANENT RESIDENCE. I beg to differ from the conclusion in the majority opinion which
states that an absentee remains attached to his residence in the Philippines because "residence" is
synonymous with "domicile." "Absentee" has to be qualified. It refers only to those people residing abroad
whose intent to return home and forsake the foreign country is clear. It cannot refer to immigrants. A mere
promise to return home within three years from voting is no proof of intent to return to a permanent residence.
The sanction for its enforcement is so feeble that the promise will be an empty one. As earlier stated, an
immigrant gives up many things, including the right or opportunity of voting in the Philippines, when he moves
with his family abroad. A sanction of future disenfranchisement would not bother him in the least bit. In the
meantime, the immigrant vote in closely contested cases may have elected the President, a Senator or a
Congressman. Unqualified voters will have swung the elections. In the same way that a counterfeit coin drives
away or results in the hoarding of genuine or good coins, the votes of non-qualified persons will not only
weaken or nullify the value of the good votes but may make an election itself sham and meaningless.
SANDOVAL-GUTIERREZ, J., concurring and dissenting opinion:
1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC
ACT NO. 9189); RESIDENCE FOR VOTING IS NOT WHOLLY A QUESTION OF INTENTION, BUT IS A
QUESTION OF FACT AND INTENTION. No person has more than one domicile at a time. A Filipino
immigrant, by his permanent residency in the host country, loses the Philippines as his domicile. He cannot
reacquire it by the mere act of executing an affidavit expressing his intention to return to the Philippines at
some future time. Residence for voting is not wholly a question of intention, but it is a question of fact and
intention. Unless his intention is fortified by the concurrent act of reestablishing the Philippines as his domicile,
he cannot be considered a qualified voter under the Philippine Constitution.
2. ID.; ID.; ID.; THE INTENTION OF THE FRAMERS TO LIMIT THE PHRASE "QUALIFIED FILIPINOS
ABROAD" TO FILIPINOS TEMPORARILY RESIDING ABROAD IS CLEAR AND UNMISTAKABLE; A LAW,
SUCH AS REPUBLIC ACT NO. 9189 WHICH EXPANDS THE MEANING AS TO INCLUDE THOSE
OTHERWISE NOT COVERED THROUGH THE MERE IMPOSITION OF CERTAIN REQUIREMENTS,
"RISKS A DECLARATION OF UNCONSTITUTIONALITY". There is no dispute that the 1987
Constitution denies to Filipino immigrants the right of suffrage. The Framers had no choice, they had to
maintain consistency among the provisions of the Constitution. Section 1, Article V prescribes residency in the
Philippines as one of the qualifications for the exercise of the right of suffrage. Initially, this was perceived as
an obstacle to the incorporation of the constitutional provision requiring Congress to provide for a system of
absentee voting by "qualified Filipinos abroad." However, the Framers resorted to the legal connotation of the
term "residence." They emphasized that "residence" is to be understood not in its common acceptance 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." Thus, as long as the Filipino abroad maintains his
domicile in the Philippines, he is considered a qualified voter under the Constitution. Significantly, at the early
stage of the deliberation, the Framers made it clear that the term "qualified Filipinos abroad" refers only to
those whose presence in the foreign country is only "temporary" and whose domicile is still the Philippines
thus, definitely excluding immigrants or permanent residents of a foreign country. Let me quote the Records of
the ConstitutionalCommission. The intention of the Framers to limit the phrase "qualified Filipinos abroad" to
Filipinos temporarily residing abroad is clear and unmistakable. Therefore, a law, such as R.A. No. 9189, which
expands the meaning as to include those otherwise not covered (such as Filipino immigrants or permanent
residents of foreign countries), through the mere imposition of certain requirements, "risks a declaration of
unconstitutionality."
3. ID.; ID.; ID.; TO RULE THAT A SWORN DECLARATION OF INTENTION IS SUFFICIENT TO ACQUIRE A
VOTING RESIDENCE IS TO ESTABLISH A BAD PRECEDENT CONSIDERING THAT THE VOTERS CAN
CHOOSE THE PLACE WHERE THEY WANT TO VOTE BY SIMPLY SWEARING THAT THEY INTEND TO
PERMANENTLY RESIDE THEREIN. Mere declaration that he intends to resume actual physical permanent
residence in the Philippines does not have the effect of conferring upon the immigrant the necessary
qualification of "residency" here. To reiterate, residence for voting is not wholly a question of intention, it is a
question of fact and intention. A voter's statements, declarations, or testimony with respect to his intention is
not controlling, but must be taken in connection with his acts and conduct. Hence, the right to vote in a certain
place or precinct requires the occurrence of two things, the act of residing coupled with the intention to do so.
In order to constitute a residence for voting purposes, there must be the intention to reside there for voting
purposes, and that intention must be accompanied by acts of living, dwelling, lodging, or residing reasonably
sufficient to establish that it is the real and actual residence of the voter. To rule that a sworn declaration of
intention is sufficient to acquire a voting residence is to establish a bad precedent considering that voters can
choose the place where they want to vote simply by swearing that they intend to permanently reside therein.
4. ID.; ID.; ID.; AN IMMIGRANT'S PLAIN DECLARATION OF HIS INTENTION CANNOT PREVAIL OVER THE
ACTUAL FACTS SURROUNDING HIS RESIDENCE. The majority rules that the affidavit required in
Section 5 (d) "serves as an explicit expression that the immigrant had not in fact abandoned his domicile of
origin." Again, I cannot subscribe to this view. An immigrant's plain declaration of his intention cannot prevail
over the actual facts surrounding his residency. Conduct has greater evidential value than a declaration. The
fact that a person obtains an immigrant's visa, and not a visitor's or tourist's visa, plainly shows that his
entrance in the foreign country is for a permanent purpose. Indeed, declarations are always subject to the
infirmity of any self-serving declaration and may be contradicted by inconsistent acts. When in conflict with the
facts, a declared intention to acquire a domicile (or to maintain the domicile of origin) has little weight. Besides,
to admit the immigrant's representation that he has not abandoned his Philippine domicile despite his
immigrant status is to tolerate what we proscribed in Caasi vs. Court of Appeals, thus: "In other words, he
would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this
time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true,
this Court will not allow itself to be a party to his duplicity by permitting him to benefit from it and giving him the
best of both worlds so to speak." Honoring our countrymen's sworn declarations to resume permanent
residency in the Philippines, notwithstanding their immigrant status and the host country's continuous
recognition of them as such, does not speak well of Filipino values. In effect, it encourages duplicitous or
deceptive conduct among our countrymen. We should not allow such acts to be done behind the host country's
back.
5. ID.; ID.; ID.; ASSAILED PROVISION MAY ONLY BE AN AVENUE FOR FRAUD. Another ground why I
cannot join the majority is the great probability that the assailed provision may only be an avenue for election
fraud. Reality wise, our country is yet to achieve a truly clean and honest election. To grant the right of suffrage
to the vast number of immigrants in foreign countries where we cannot enforce our laws with the same efficacy
as within our territory, is to endanger our citizens' constitutional right to an undefiled suffrage. Paramount in the
preservation of the principles of democratic government is the observance of precautionary requirements
designed to insure the sanctity of the ballot. Consequently, it is imperative that our elections are not tainted
with fraud. This cannot be achieved unless we impose stricter terms on the grant of the right of suffrage to
absentee citizens. Significantly, the only sanction imposed by Section 5(d) upon an immigrant who fails to
perform his promise to resume permanent residency in the Philippines within the prescribed period is that his
name will be stricken from the National Registry of Absentee Voters and he will be permanently disqualified to
vote in absentia. What a punishment for someone who made a mockery of the election process! This punitive
measure is virtually meaningless. It cannot undo the result of an election nor can it discipline or daunt
immigrant voters.

6. ID.; ID.; ID.; SECTION 5 (d) OF REPUBLIC ACT NO. 9189 IS UNCONSTITUTIONAL FOR IT DIMINISHES
THE "RESIDENCY REQUIREMENT" OF THE CONSTITUTION BY INCLUDING WITHIN THE PHRASE
"QUALIFIED FILIPINOS ABROAD" IMMIGRANTS AND PERMANENT RESIDENTS OF FOREIGN
COUNTRIES; SAID PROVISION DEFIES THE CLEAR INTENTION OF THE CONSTITUTION TO LIMIT THE
APPLICATION OF THE ABSENTEE VOTING LAW TO FILIPINOS WHO ARE "TEMPORARILY ABROAD."
Let it be stressed that where the Constitution fixes the qualifications of voters, these qualifications cannot be
increased, diminished or changed by legislative enactment, unless the power to do so is expressly granted, or
necessarily implied. The inclusion of the residency requirement in the Constitution is not without reason. It
constitutes an invaluable protection against fraud and further affords some surety that the elector has in fact
become a member of the community and that, as such, he has a common interest in all matters pertaining to
its government, and is therefore more likely to exercise his right intelligently. The specification in the
Constitution is an implied prohibition against interference. It is not competent for Congress to diminish or alter
such qualification. Section 5(d) of R.A. No. 9189 is unconstitutional for it diminishes the "residency
requirement" of the Constitution by including within the phrase "qualified Filipinos abroad" immigrants and
permanent residents of foreign countries. It defies the clear intent of the Constitution to limit the application of
the absentee voting law to Filipinos who are "temporarily abroad." Thus, as statutes which purport to modify
constitutionally fixed qualifications are void, so must Section 5(d) of R.A. No. 9189 suffer the same fate.
CALLEJO, SR., J., concurring and dissenting opinion:
1. CONSTITUTIONAL LAW; SUFFRAGE; MR. JUSTICE CALLEJO DOES NOT SUBSCRIBE TO THE VIEW
THAT SECTION 2 OF ARTICLE V OF THE CONSTITUTION WAS INTENDED BY THE FRAMERS TO BE AN
EXCEPTION TO THE RESIDENCE QUALIFICATION REQUIREMENT PRESCRIBED IN THE SECTION 1 OF
THE SAME ARTICLE. Section 1, Article V which prescribes the qualifications of voters as to citizenship, age
and residence is clear and unambiguous. On the other hand, Section 2 of the same article authorizes
Congress to provide a system to facilitate absentee voting by qualified Filipinos abroad. I do not subscribe to
the view that Section 2 was intended by the framers to be an exception to the residence qualification
requirement prescribed in the section immediately preceding it. Basic is the rule in statutory construction
that the Constitution should be construed in such a manner as to give effect to each and every part of the
entire instrument. Courts should lean in favor of a construction that will harmonize every provision of the
Constitution rather than one which raises conflict between its provisions, or render inutile any portion thereof.
Section 2 can and must be construed to contemplate within its terms the enfranchisement only of Filipinos who
possess all the prerequisite qualifications specified under Section 1, but who are abroad and cannot exercise
their right to vote in the Philippines on the day of the election. Even from a cursory examination of the
proceedings of the Constitutional Commission which drafted the 1987 Constitution, the foregoing intendment is
made crystal clear. IDcTEA
2. ID.; ID.; DISTINCTION BETWEEN "RESIDENCE" AND "DOMICILE." For many legal purposes, there is a
clear distinction between "residence" and "domicile." "Residence" means living in a particular locality, and
simply requires bodily presence as an inhabitant in a given place, while, "domicile" means living in that locality
with intent to make it a fixed and permanent home. "Residence" denotes that a person dwells in a given place
but "domicile" is a person's legal home, or a place where the law presumes a person has the intention of
permanently residing although he may be absent from it. "Domicile" then is a matter of intention while
"residence" is a physical fact. Hence, a person may have two places of "residence" but only one "domicile."
"Residence," however, for the purpose of voting, 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)." In determining a person's "residence" for voting
purposes, the following rules are well-established: (a) A person must have a residence or domicile somewhere;
(b) Where once established, it remains until a new one is acquired; and (c) A person can have but one domicile
at a time.
3. ID.; ID.; A FILIPINO "IMMIGRANT" OR "PERMANENT RESIDENT," AS THE VERY DESIGNATION OF
THE STATUS CLEARLY IMPLIES, IS A FILIPINO WHO HAS ABANDONED HIS PHILIPPINE RESIDENCE
OR DOMICILE, WITH THE INTENTION OF RESIDING PERMANENTLY IN HIS HOST COUNTRY. Clearly,
for voting purposes, one cannot have a residence or be domiciled in two places at the same time, for the right
to vote in a certain place or precinct requires the concurrence of two things: the act of residing coupled with the
intention to do so. Accordingly, in order to work a change residence for voting, there must be an actual removal,
an actual change of domicile, corresponding with a bona fide intention of abandoning the former place of
residence and establishing a new one. Hence, an absence for months or even years, if all the while the party
intended it as a mere temporary arrangement, to be followed by a resumption of his former residence, will not
be an abandonment of such residence or deprive him of his right to vote thereat, the test being the presence or
absence of the animus revertendi. Such is the case overseas Filipino workers who, on account of the nature or
exigencies of their work, fail to be physically present for some time in the Philippines but are not deemed to
have abandoned their Philippine domicile by virtue of their intent to resume residency in the Philippines upon
the termination their employment contracts. However, the same cannot be said of Filipinos who, while
maintaining their Filipino citizenship, have in the meantime acquired the status of immigrants or permanent
residents of their respective host countries. An immigrant, as defined in law, is a person who removes into a
country for the purpose of permanent residence. Therefore, a Filipino "immigrant" or "permanent resident," as
the very designation of his status clearly implies, is a Filipino who has abandoned his Philippine residence or
domicile, with the intention of residing permanently in his host country. Thenceforward, he acquires a new
residence in his host country and is deemed to have abandoned his Philippine domicile. It has been held that
where a voter abandons his residence in a state and acquires one in another state, although he afterward
changes his intention and returns, he cannot again vote in the state of his former residence or domicile until he
has regained his residence by remaining in the jurisdiction for the statutory period.
4. ID.; ID.; WHILE INTENTION IS AN IMPORTANT FACTOR TO BE CONSIDERED IN DETERMINING
WHETHER OR NOT A RESIDENCE HAS BEEN ACQUIRED, INTENTION ALONE IS INSUFFICIENT TO
ESTABLISH A RESIDENCE FOR VOTING PURPOSES. With due respect to the majority, I do not
subscribe to the view that the execution of the affidavit required under Section 5 (d) is eloquent proof of the fact
that the Filipino immigrant has not abandoned his Philippine domicile, as evinced by his intention to go back
and resume residency in the Philippines, which thus entitles him to exercise the right of suffrage pursuant to
the constitutional intent expressed in Section 2, in relation to Section 1, Article V of our Constitution. The
majority view, I humbly submit, is non-sequitur for it is well-entrenched that while intention is an important
factor to be considered in determining whether or not a residence has been acquired, intention alone is
insufficient to establish a residence for voting purposes. Hence, a mere intention to remove, not consummated,
can neither forfeit the party's old domicile nor enable him to acquire a new one. And the fact that a person
intends to remove at a future time does not of itself defeat his residence before the actually does remove.
5. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC
ACT NO. 9189); SECTION 5 (d) THEREOF IS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION. I believe that the provision is violative of the "equal protection" clause ofthe Constitution.
While it allows a Filipino permanently residing in a foreign country to vote on the mere pledge that he will again
permanently reside in this country within three years from his voting in the elections, a Filipino permanently
residing in the Philippines but for less than one year or, in the place where he proposes to vote, for less than
six months is not allowed to vote. The voter classification sought to be effected by Section 5(d) does not
rest on substantial distinctions for it unduly favors and extends the privilege of the elective franchise to Filipino
citizens who do not in any way comply with the residency requirement prescribed by our Constitution,while
withholding the same privilege to those who are and have been permanent residents of the Philippines, albeit
not in the locality or precinct where they intend to vote.
6. ID.; ID.; ID.; SECTION 18.5 THEREOF DOES NOT PASS THE TEST OF CONSTITUTIONALITY. It is
clear from the Article VII, Section 4, paragraph 4 of the 1987 Constitution that the power to canvass the votes
of the electorate for president and vice-president is lodged with Congress. This includes, by express mandate
of the Constitution, the duty to proclaim the winning candidates in such election. As pointed out in the majority
opinion the phrase proclamation of winning candidates used in the assailed statute is a sweeping statement,
which thus includes even the winning candidates for the presidency and vice-presidency. Following a basic
principle in statutory construction, generali dictum genaliter est interpretandum (a general statement is
understood in a general sense), the said phrase cannot be construed otherwise. To uphold the assailed
provision of Rep. Act No. 9189would in effect be sanctioning the grant of a power to the COMELEC, which
under the Constitution, is expressly vested in Congress; it would validate a course of conduct that the
fundamental law of the land expressly forbids.

DECISION

AUSTRIA-MARTINEZ, J p:

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. HaTISE
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of
the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes," appropriates funds
under Section 29 thereof which provides that a supplemental budget on the General Appropriations Act of the
year of its enactment into law shall provide for the necessary amount to carry out its provisions. Taxpayers,
such as herein petitioner, have the right to restrain officials from wasting public funds through the enforcement
of an unconstitutional statute. 2 The Court has held that they may assail the validity of a law appropriating
public funds 3 because expenditure of public funds by an officer of the State for the purpose of executing an
unconstitutional act constitutes a misapplication of such funds. 4
The challenged provision of law involves a public right that affects a great number of citizens. The Court has
adopted the policy of taking jurisdiction over cases whenever the petitioner has seriously and convincingly
presented an issue of transcendental significance to the Filipino people. This has been explicitly pronounced
in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, 5 where the Court held:
Objections to taxpayers' suit for lack of sufficient personality standing, or interest are, however,
in the main procedural matters. Considering the importance to the public of the cases at bar,
and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not
the other branches of government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to them, the
Court has brushed aside technicalities of procedure and has taken cognizance of these
petitions. 6
Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage of a
considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be visited by the vice of prematurity as
there are no ongoing proceedings in any tribunal, board or before a government official exercising judicial,
quasi-judicial or ministerial functions as required by Rule 65 of the Rules of Court, dims in light of the
importance of the constitutional issues raised by the petitioner. In Taada vs. Angara, 7 the Court held:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to settle the dispute. "The question thus posed is
judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy
of the Constitution is upheld." Once a "controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant case), it becomes a legal
issue which the Court is bound by constitutional mandate to decide."
In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to await
the adverse consequences of the law in order to consider the controversy actual and ripe for judicial
resolution. 8 In yet another case, the Court said that:
. . . despite the inhibitions pressing upon the Court when confronted with constitutional issues,
it will not hesitate to declare a law or act invalid when it is convinced that this must be done. In
arriving at this conclusion, its only criterion will be the Constitution and God as its conscience
gives it in the light to probe its meaning and discover its purpose. Personal motives and
political considerations are irrelevancies that cannot influence its decisions. Blandishment is
as ineffectual as intimidation, for all the awesome power of the Congress and Executive, the
Court will not hesitate "to make the hammer fall heavily," where the acts of these departments,
or of any official, betray the people's will as expressed in the Constitution . . . 9
The need to consider the constitutional issues raised before the Court is further buttressed by the fact that it is
now more than fifteen years since the ratification of the 1987 Constitution requiring Congress to provide a
system for absentee voting by qualified Filipinos abroad. Thus, strong reasons of public policy demand that the
Court resolves the instant petition 10 and determine whether Congress has acted within the limits of the
Constitution or if it had gravely abused the discretion entrusted to it. 11
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are
immigrants or permanent residents in other countries by their mere act of executing an
affidavit expressing their intention to return to the Philippines, violate the residency
requirement in Section 1 of Article V of the Constitution?
B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning
candidates for national offices and party list representatives including the President and the
Vice-President violate the constitutional mandate under Section 4, Article VII of
the Constitutionthat 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:
xxx xxx xxx
d) An immigrant or a permanent resident who is recognized as such in the host country,
unless he/she executes, upon registration, an affidavit prepared for the purpose by
the Commission declaring that he/she shall resume actual physical permanent residence in
the Philippines not later than three (3) years from approval of his/her registration under this
Act. Such affidavit shall also state that he/she has not applied for citizenship in another
country. Failure to return shall be cause for the removal of the name of the immigrant or
permanent resident from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987
Constitution which requires that the voter must be a resident in the Philippines for at least one year and in
the place where he proposes to vote for at least six months immediately preceding an election. Petitioner
cites the ruling of the Court in Caasi vs. Court of Appeals 12 to support his claim. In that case, the Court
held that a "green card" holder immigrant to the United States is deemed to have abandoned his domicile
and residence in the Philippines.
Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional registration or a
promise by a voter to perform a condition to be qualified to vote in a political exercise; 13 that the legislature
should not be allowed to circumvent the requirement of the Constitutionon 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 tothe Constitution. He stresses: All
laws are presumed to be constitutional; by the doctrine of separation of powers, a department of government
owes a becoming respect for the acts of the other two departments; all laws are presumed to have adhered to
constitutional limitations; the legislature intended to enact a valid, sensible, and just law.
In addition, the Solicitor General points out that Section 1, Article V of the Constitution is
a verbatim reproduction of those provided for in the 1935 and the 1973 Constitutions. Thus, he cites Co vs.
Electoral Tribunal of the House of Representatives 16 wherein the Court held that the term "residence" has
been understood to be synonymous with "domicile" under both Constitutions. He further argues that a person
can have only one "domicile" but he can have two residences, one permanent (the domicile) and the other
temporary; 17 and that the definition and meaning given to the term residence likewise applies to absentee
voters. Invoking Romualdez-Marcos vs. COMELEC 18 which reiterates the Court's ruling in Faypon vs.
Quirino, 19 the Solicitor General maintains that Filipinos who are immigrants or permanent residents abroad
may have in fact never abandoned their Philippine domicile. 20

Taking issue with the petitioner's contention that "green card" holders are considered to have abandoned their
Philippine domicile, the Solicitor General suggests that the Court may have to discard its ruling in Caasi vs.
Court of Appeals 21 in so far as it relates to immigrants and permanent residents in foreign countries who have
executed and submitted their affidavits conformably with Section 5(d) of R.A. No. 9189. He maintains that
through the execution of the requisite affidavits, the Congress of the Philippines with the concurrence of the
President of the Republic had in fact given these immigrants and permanent residents the opportunity,
pursuant to Section 2, Article V of the Constitution, to manifest that they had in fact never abandoned their
Philippine domicile; that indubitably, they would have formally and categorically expressed the requisite
intentions, i.e., "animus manendi" and "animus revertendi"; that Filipino immigrants and permanent residents
abroad possess the unquestionable right to exercise the right of suffrage under Section 1, Article V of the
Constitution upon approval of their registration, conformably with R.A. No. 9189. 22
The seed of the present controversy is the interpretation that is given to the phrase, "qualified citizens of the
Philippines abroad" as it appears in R.A. No. 9189, to wit:
SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest
and orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot.
Towards this end, the State ensures equal opportunity to all qualified citizens of the
Philippines abroad in the exercise of this fundamental right.
SEC. 3. Definition of Terms. For purposes of this Act:
a) "Absentee Voting" refers to the process by which qualified citizens of the Philippines
abroad, exercise their right to vote;
. . . (Italics supplied)
f) "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to register
and vote under this Act, not otherwise disqualified by law, who is abroad on the day
of elections. (Italics 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. (Italics 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.
. . . (Italics 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. InChiongbian vs. De
Leon, 26 the Court held that a constitutional provision should function to the full extent of its substance and its
terms, not by itself alone, but in conjunction with all other provisions of that great document. Constitutional
provisions are mandatory in character unless, either by express statement or by necessary implication, a
different intention is manifest. 27 The intent of the Constitution may be drawn primarily from the language of
the document itself. Should it be ambiguous, the Court may consider the intent of its framers through their
debates in the constitutional convention. 28
R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the
Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed
that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law.
Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as defined
in Article VI (The Legislative Department) of the Constitution.
To put matters in their right perspective, it is necessary to dwell first on the significance of absentee voting. The
concept of absentee voting is relatively new. It is viewed thus:
The method of absentee voting has been said to be completely separable and distinct from
the regular system of voting, and to be a new and different manner of voting from that
previously known, and an exception to the customary and usual manner of voting. The right of
 absentee and disabled voters to cast their ballots at an election is purely statutory; absentee
voting was unknown to, and not recognized at, the common law.
Absentee voting is an outgrowth of modern social and economic conditions devised to
accommodate those engaged in military or civil life whose duties make it impracticable for
them to attend their polling places on the day of election, and the privilege of absentee voting
may flow from constitutional provisions or be conferred by statutes, existing in some
jurisdictions, which provide in varying terms for the casting and reception of ballots by soldiers
and sailors or other qualified voters absent on election day from the district or precinct of their
residence.
Such statutes are regarded as conferring a privilege and not a right, or an absolute
right. When the legislature chooses to grant the right by statute, it must operate with equality
among all the class to which it is granted; but statutes of this nature may be limited in their
application to particular types of elections. The statutes should be construed in the light of any
constitutional provisions affecting registration and elections, and with due regard to their texts
prior to amendment and to predecessor statutes and the decisions thereunder; they should
also be construed in the light of the circumstances under which they were enacted; and so as
to carry out the objects thereof, if this can be done without doing violence to their provisions
and mandates. Further, in passing on statutes regulating absentee voting, the court should
look to the whole and every part of the election laws, the intent of the entire plan, and reasons
and spirit of their adoption, and try to give effect to every portion thereof. 29 (Italics 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" andanimus 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 evolvedin our election law, what has
clearly and unequivocally emerged is the fact that residence for election purposes is
used synonymously with domicile. 32 (Emphasis and italics 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 residenceon a permanent basis, but are technically disqualified from exercising the right
of suffrage in their countries of destination by the residential requirement in Section 1 which
says:
Suffrage shall be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are eighteen years of age or over, and who shall
have resided in the Philippines for at least one year and in the place wherein
they propose to vote for at least six months preceding the election.
I, therefore, ask the Committee whether at the proper time they might entertain an amendment
that will make this exercise of the right to vote abroad for Filipino citizens an effective, rather
than merely a nominal right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I
would like to make a comment on the meaning of "residence" in the Constitution because I
think it is a concept that has been discussed in various decisions of the Supreme Court,
particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the
meaning of "residence" in the Election Law. Allow me to quote:
A citizen may leave the place of his birth to look for greener pastures, as the
saying goes, to improve his lot and that, of course, includes study in other
places, practice of his avocation, reengaging in business. When an election is
to be held, the citizen who left his birthplace to improve his lot may decide to
return to his native town, to cast his ballot, but for professional or business
reasons, or for any other reason, he may not absent himself from the place of
his professional or business activities.
So, they are here registered as voters as he has the qualifications to be one,
and is not willing to give up or lose the opportunity to choose the officials who
are to run the government especially in national elections. Despite such
 registration, the animus revertendito 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 and Italics 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 and Italics 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 onthe proposed system of absentee voting for qualified Filipinos abroad
is enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for
the exercise of the right of suffrage like having resided in the Philippines for at least one year
and in the place where they propose to vote for at least six months preceding the elections.
What is the effect of these mandatory requirements on the matter of the exercise of the right
of suffrage by the absentee voters like Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the
domicile requirements as well as the qualifications and disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to the residence requirement
or the place where they vote in practice; the understanding is that it is flexible. For instance,
one might be a resident of Naga or domiciled therein, but he satisfies the requirement of
residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the Committee to change the word
"Filipinos" to QUALIFIED FILIPINO VOTERS. Instead of "VOTING BY FILIPINOS ABROAD,"
it should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS
LIVING ABROAD, would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase "QUALIFIED FILIPINOS
ABROAD" because "QUALIFIED" would assume that he has the qualifications and none of
the disqualifications to vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.
MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment,
I specifically stated that the National Assembly shall prescribe a system which will enable
qualified citizens, temporarily absent from the Philippines, to vote. According to Commissioner
Monsod, the use of the phrase "absentee voting" already took that into account as its meaning.
That is referring to qualified Filipino citizens temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we
will leave it up to the legislative assembly, for example, to require where the registration is. If it
is, say, members of the diplomatic corps who may be continuously abroad for a long time,
 perhaps, there can be a system of registration in the embassies. However, we do not like to
preempt the legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsod's amendment is only to provide a
system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for
these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and none of the
disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President. 35 (Italics 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 ConstitutionalCommission opted for the
term qualified Filipinos abroad with respect to the system of absentee voting that Congress should draw up. As
stressed by Commissioner Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the
assumption is that they have the "qualifications and none of the disqualifications to vote." In fine-tuning the
provision on absentee voting, the Constitutional Commission discussed how the system should work:
MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case
of qualified Filipino citizens residing abroad and exercising their right of suffrage, they can cast
their votes for the candidates in the place where they were registered to vote in the Philippines.
So as to avoid any complications, for example, if they are registered in Angeles City, they
could not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then he can vote only for the
local and national candidates in Angeles City. I just want to make that clear for the record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that
this envisions Filipinos residing abroad. The understanding in the amendment is that the
Filipino is temporarily abroad. He may not be actually residing abroad; he may just be
there on a business trip. It just so happens that the day before the elections he has to fly to
the United States, so he could not cast his vote. He is temporarily abroad, but not residing
there. He stays in a hotel for two days and comes back. This is not limited only to Filipinos
temporarily residing abroad. But as long as he is temporarily abroad on the date of
the elections, then he can fall within the prescription of Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this
clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by "temporarily abroad," it need
not be on very short trips. One can be abroad on a treaty traders visa. Therefore, when we
talk about registration, it is possible that his residence is in Angeles and he would be able to
vote for the candidates in Angeles, but Congress or the Assembly may provide the procedure
for registration, like listing one's name, in a registry list in the embassy abroad. That is still
possible under the system.
FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with
this.
 Suppose we have a situation of a child of a diplomatic officer who reaches the voting age
while living abroad and he has never registered here. Where will he register? Will he be a
registered voter of a certain locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the
registration requirements in an embassy in the United States and his name is then entered in
the official registration book in Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered
voter of a locality here.
MR. MONSOD. That is right. He does not have to come home to the Philippines to comply
with the registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more
clarifications needed from the body.
Also, the Floor Leader is happy to announce that there are no more registered Commissioners
to propose amendments. So I move that we close the period of amendments. 36 (Emphasis
and Italics 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 thatthe 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 onthis. The Senate cannot be a party
to something that would affect or impair the Constitution.
Look at what the Constitution says "In the place wherein they propose to vote for at least
six months immediately preceding the election."
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated only
by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in Pateros
for six months. That is how restrictive our Constitution is. I am not talking even about
the Election Code. I am talking about the Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he
must do so, make the transfer six months before the election, otherwise, he is not qualified to
vote.
That is why I am raising this point because I think we have a fundamental difference here.
Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-debated
even in the constitutional commission of 1986. And the reason Section 2 of Article V was
placed immediately after the six-month/one-year residency requirement is to demonstrate
unmistakably that Section 2 which authorizes absentee voting is an exception to the six-
month/one-year residency requirement. That is the first principle, Mr. President, that one must
remember.
The second reason, Mr. President, is that under our jurisprudence and I think this is so
well-entrenched that one need not argue about it "residency" has been interpreted as
synonymous with "domicile."
But the third more practical reason, Mr. President, is, if we follow the interpretation of the
gentleman, then it is legally and constitutionally impossible to give a franchise to vote to
overseas Filipinos who do not physically live in the country, which is quite ridiculous because
that is exactly the whole point of this exercise to enfranchise them and empower them to
vote. 38 (Emphasis and italics 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 theCommission 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. AISHcD
Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act.
The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to
go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that
he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the
affidavit under Section 5(d) violates the Constitution that proscribes "provisional registration or a promise by a
voter to perform a condition to be qualified to vote in a political exercise."
To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in
their host countries, they are presumed to have relinquished their intent to return to this country; thus, without
the affidavit, the presumption of abandonment of Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses another reason why the Senate required
the execution of said affidavit. It wanted the affiant to exercise the option to return or to express his intention to
return to his domicile of origin and not to preempt that choice by legislation. Thus:
Senator Villar. Yes, we are going back.
 It states that: "For Filipino immigrants and those who have acquired permanent resident status
abroad," a requirement for the registration is the submission of "a Sworn Declaration of Intent
to Return duly sworn before any Philippine embassy or consulate official authorized to
administer oath. . . "
Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn
Declaration to include only those who have the intention of returning to be qualified to exercise
the right of suffrage? What if the Filipino immigrant has no purpose of returning? Is he
automatically disbarred from exercising this right to suffrage?
Senator Angara. The rationale for this, Mr. President, is that we want to be expansive and all-
inclusive in this law. That as long as he is a Filipino, no matter whether he is a green-card
holder in the U.S. or not, he will be authorized to vote. But if he is already a green-card holder,
that means he has acquired permanent residency in the United States, then he must indicate
an intention to return. This is what makes for the definition of "domicile." And to acquire the
vote, we thought that we would require the immigrants and the green-card holders . . . Mr.
President, the three administration senators are leaving, maybe we may ask for a vote
[Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the business at hand. The rationale for the
requirement that an immigrant or a green-card holder should file an affidavit that he will go
back to the Philippines is that, if he is already an immigrant or a green-card holder, that means
he may not return to the country any more and that contradicts the definition of "domicile"
under the law.

But what we are trying to do here, Mr. President, is really provide the choice to the
voter. The voter, after consulting his lawyer or after deliberation within the family, may decide
No, I think we are risking our permanent status in the United States if we file an affidavit that
we want to go back." But we want to give him the opportunity to make that decision. We
do not want to make that decision for him. 39 (Emphasis and italics supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified to run for
any elective office finds no application to the present case because the Caasi case did not, for obvious reasons,
consider the absentee voting rights of Filipinos who are immigrants and permanent residents in their host
countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be considered as a
"qualified citizen of the Philippines abroad" upon fulfillment of the requirements of registration under the new
law for the purpose of exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit or a promise to "resume actual
physical permanent residence in the Philippines not later than three years from approval of his/her
registration," the Filipinos abroad must also declare that they have not applied for citizenship in another
country. Thus, they must return to the Philippines; otherwise, their failure to return "shall be cause for the
removal" of their names "from the National Registry of Absentee Voters and his/her permanent disqualification
to vote in absentia."
Thus, Congress crafted a process of registration by which a Filipino voter permanently residing abroad who is
at least eighteen years old, not otherwise disqualified by law, who has not relinquished Philippine
citizenship and who has not actually abandoned his/her intentions to return to his/her domicile of origin, the
Philippines, is allowed to register and vote in the Philippine embassy, consulate or other foreign service
establishments of the place which has jurisdiction over the country where he/she has indicated his/her address
for purposes of the elections, while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia.
 11.1. Every qualified citizen of the Philippines abroad whose application for registration has
been approved, including those previously registered under Republic Act No. 8189, shall, in
every national election, file with the officer of the embassy, consulate or other foreign service
establishment authorized by the Commission, a sworn written application to vote in a form
prescribed by the Commission. The authorized officer of such embassy, consulate or other
foreign service establishment shall transmit to the Commission the said application to vote
within five (5) days from receipt thereof. The application form shall be accomplished in
triplicate and submitted together with the photocopy of his/her overseas absentee voter
certificate of registration.
11.2. Every application to vote in absentia may be done personally at, or by mail to, the
embassy, consulate or foreign service establishment, which has jurisdiction over the country
where he/she has indicated his/her address for purposes of the elections.
11.3. Consular and diplomatic services rendered in connection with the overseas absentee
voting processes shall be made available at no cost to the overseas absentee voter.
Contrary to petitioner's claim that Section 5(d) circumvents the Constitution, Congress enacted the law
prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such
mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes
that the "qualified citizen of the Philippines abroad" is not physically present in the country. The provisions of
Sections 5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9189.
The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the
Philippines. He is presumed not to have lost his domicile by his physical absence from this country. His having
become an immigrant or permanent resident of his host country does not necessarily imply an abandonment of
his intention to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the
opportunity to express that he has not actually abandoned his domicile in the Philippines by executing the
affidavit required by Sections 5(d) and 8(c) of the law.
Petitioner's speculative apprehension that the implementation of Section 5(d) would affect the credibility of
the elections is insignificant as what is important is to ensure that all those who possess the qualifications to
vote on the date of the election are given the opportunity and permitted to freely do so. The COMELEC and the
Department of Foreign Affairs have enough resources and talents to ensure the integrity and credibility of any
election conducted pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his undertaking to return to the Philippines, the
penalty of perpetual disenfranchisement provided for by Section 5(d) would suffice to serve as deterrence to
non-compliance with his/her undertaking under the affidavit.
Petitioner argues that should a sizable number of "immigrants" renege on their promise to return, the result of
the elections would be affected and could even be a ground to contest the proclamation of the winning
candidates and cause further confusion and doubt on the integrity of the results of the election. Indeed, the
probability that after an immigrant has exercised the right to vote, he shall opt to remain in his host country
beyond the third year from the execution of the affidavit, is not farfetched. However, it is not for this Court to
determine the wisdom of a legislative exercise. As expressed in Taada 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
theelections, 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.
xxx xxx xxx
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. (Italics 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.
xxx xxx xxx
which gives to Congress the duty to canvass the votes and proclaim the winning candidates for president
and vice-president.

The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4, Article VII of
the Constitution and should be taken to mean that COMELEC can only proclaim the winning Senators and
party-list representatives but not the President and Vice-President. 41
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too sweeping
that it necessarily includes the proclamation of the winning candidates for the presidency and the vice-
presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution only insofar
as said Section totally disregarded the authority given to Congress by the Constitution to proclaim the winning
candidates for the positions of president and vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special Board
of Canvassers shall transmit via facsimile, electronic mail, or any other means of transmission
equally safe and reliable the Certificates of Canvass and the Statements of Votes to
the Commission, . . . [Italics 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 "onthe 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 theCommission on Audit. (Italics
supplied)
He submits that the creation of the Joint Congressional Oversight Committee with the power to review,
revise, amend and approve the Implementing Rules and Regulations promulgated by the COMELEC, R.A.
No. 9189 intrudes into the independence of the COMELEC which, as a constitutional body, is not under the
control of either the executive or legislative departments of government; that only the COMELEC itself can
promulgate rules and regulations which may be changed or revised only by the majority of its members;
and that should the rules promulgated by the COMELEC violate any law, it is the Court that has the power
to review the same via the petition of any interested party, including the legislators.
It is only on this question that respondent COMELEC submitted its Comment. It agrees with the petitioner that
Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the petitioner, respondent COMELEC anchors
its claim of unconstitutionality of said Sections upon Section 1, Article IX-A of the Constitution providing for the
independence of the constitutional commissions such as the COMELEC. It asserts that its power to formulate
rules and regulations has been upheld in Gallardo vs. Tabamo, Jr. 42 where this Court held that the power of
the COMELEC to formulate rules and regulations is implicit in its power to implement regulations under Section
2(1) of Article IX-C 43 of the Constitution. COMELEC joins the petitioner in asserting that as an independent
constitutional body, it may not be subject to interference by any government instrumentality and that only this
Court may reviewCOMELEC rules and only in cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis--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.
xxx xxx xxx (Italics 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
ofexclusio 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 onthis question raised by petitioner.
However, the Court finds it expedient to expound on the role of Congress through the Joint Congressional
Oversight Committee (JCOC) vis--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. (Italics 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.
xxx xxx xxx (Italics 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 (Italics supplied)

The Court has no general powers of supervision over COMELEC which is an independent body "except
those specifically granted by the Constitution," that is, to review its decisions, orders and rulings. 46 In the
same vein, it is not correct to hold that because of its recognized extensive legislative power to enact
election laws, Congress may intrude into the independence of the COMELEC by exercising supervisory
powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the necessary
rules and regulations to effectively implement the provisions of this Act within sixty days from the effectivity of
this Act." This provision of law follows the usual procedure in drafting rules and regulations to implement a law
the legislature grants an administrative agency the authority to craft the rules and regulations implementing
the law it has enacted, in recognition of the administrative expertise of that agency in its particular field of
operation. 47 Once a law is enacted and approved, the legislative function is deemed accomplished and
complete. The legislative function may spring back to Congress relative to the same law only if that body
deems it proper to review, amend and revise the law, but certainly not to approve, review, revise and amend
the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee
Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled upon
the constitutional mandate of independence of the COMELEC. Under such a situation, the Court is left with no
option but to withdraw from its usual reticence in declaring a provision of law unconstitutional.
The second sentence of the first paragraph of Section 19 stating that "[t]he Implementing Rules and
Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for
prior approval," and the second sentence of the second paragraph of Section 25 stating that "[i]t shall review,
revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission,"
whereby Congress, in both provisions, arrogates unto itself a function not specifically vested by the
Constitution, should be stricken out of the subject statute for constitutional infirmity. Both provisions brazenly
violate the mandate on the independence of the COMELEC.
Similarly, the phrase, "subject to the approval of the Congressional Oversight Committee" in the first sentence
of Section 17.1 which empowers theCommission to authorize voting by mail in not more than three countries
for the May, 2004 elections; and the phrase, "only upon review and approval of the Joint Congressional
Oversight Committee" found in the second paragraph of the same section are unconstitutional as they require
review and approval of voting by mail in any country after the 2004 elections. Congress may not confer upon
itself the authority to approve or disapprove the countries wherein voting by mail shall be allowed, as
determined by the COMELEC pursuant to the conditions provided for in Section 17.1 of R.A. No.
9189. 48 Otherwise, Congress would overstep the bounds of its constitutional mandate and intrude into the
independence of theCOMELEC.
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.
||| (Macalintal v. Commission on Elections, G.R. No. 157013, [July 10, 2003], 453 PHIL 586-819)

[G.R. No. 134015. July 19, 1999.]

JUAN DOMINO, petitioner,vs.COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO,

JR.,EDDY B. JAVA, JUAN P. BAYONITO, JR.,ROSARIO SAMSON and DIONISIO P. LIM,
SR., respondents.

LUCILLE CHIONGBIAN-SOLON,intervenor..

SYNOPSIS

Petitioner Domino filed his certificate of candidacy for the position of Representative of the Lone District of the
Province of Sarangani. Private respondents, however, filed with the Comelec a petition to deny due course to
or cancel the certificate of candidacy of Domino because he is neither a resident nor a registered voter of the
province of Sarangani. The petition was assigned to the Comelec Second Division, which rendered a
resolution declaring Domino disqualified as candidate for the position and ordered the cancellation of his
certificate of candidacy. On the day of the election, the Comelec ordered that the votes cast for Domino be
counted but suspended the proclamation if he wins. The result of the election showed that Domino garnered
the highest number of votes over his opponents. He filed a motion for reconsideration of the resolution of the
Comelec, which was denied by the Comelec en banc.Hence, the present petition for certiorari with preliminary
mandatory injunction alleging that 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. The Court allowed the
candidate who received the second highest number of votes in the election to intervene.
According to the Supreme Court, 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. Domino's failure to do so rendered him ineligible and his election to office null and void. The intervenor's
plea that the votes cast in favor of Domino be considered stray votes cannot be sustained. Thus, the votes cast
for Domino were 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 cannot be treated as stray, void, or meaningless.
The Court dismissed the petition. DHACES

SYLLABUS

1. POLITICAL LAW; ELECTIONS; OMNIBUS ELECTION CODE; JURISDICTION OF THE COMMISSION ON

ELECTIONS OVER PETITIONS TO DENY DUE COURSE TO OR CANCEL CERTIFICATE OF CANDIDACY;
CASE AT BAR. 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. . . . 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 votes and provided further that the winning candidate has not been proclaimed
or has taken his oath of office.
2. ID.;ID.;ID.;INCLUSION OR EXCLUSION PROCEEDING; DECISION IN SUCH PROCEEDING, NOT
CONCLUSIVE ON THE VOTER'S POLITICAL STATUS. 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 jurisdiction, 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 carries 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.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. Thus, a decision in an exclusion
proceeding would neither be conclusive on the voter's political status, nor bar subsequent proceeding's on his
right to be registered as a voter in any other election. AHacIS
3. ID.; ID.; ID.; ID.; TRIAL COURT; JURISDICTION OVER EXCLUSION CASES LIMITED TO DETERMINING
THE RIGHT OF VOTER TO REMAIN IN LIST OF VOTERS. The jurisdiction of the lower 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 precinct 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. 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.
4. ID.;ID.;QUALIFICATIONS FOR SUFFRAGE AND FOR ELECTIVE OFFICE; RESIDENCE AND DOMICILE,
CONSTRUED. 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. "Domicile" denotes a fixed permanent residence to which, whenever absent for business,
pleasure, or some other reasons, one intends to return. "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. A person's "domicile" once established is considered to
continue and will not be deemed lost until a new one is established. To successfully effect a change of domicile
one must demonstrate an actual removal or an actual change of domicile; a bona fideintention of abandoning
the former place of residence and establishing a new one and definite acts which correspond with the purpose.
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. 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. 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. The fact that a party continuously
voted in a particular locality is a strong factor in assisting to determine the status of his domicile.
5. ID.;ID.;CANDIDATE WHO OBTAINS THE SECOND HIGHEST NUMBER OF VOTES MAY NOT BE
PROCLAIMED WINNER IN CASE THE WINNING CANDIDATE IS DISQUALIFIED. 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. 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. TaCDIc
6. ID.;ID.;ID.;RATIONALE. It would be extremely repugnant to the basic concept of the constitutionally
guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed
a winner and imposed as the representative of a constituency, the majority of which have positively declared
through their ballots that they do not choose him. To 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. 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. 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 transferred 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 votes 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. To allow the defeated and repudiated
candidate to take over the elective position despite his rejection by the electorate is to disenfranchise the
electorate without any fault on their part and to undermine the importance and meaning of democracy and the
people's right to elect officials of their choice.

7. ID.; ID.; JURISDICTION OF THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL; BEGINS

ONLY AFTER A CANDIDATE HAS BECOME A MEMBER OF THE HOUSE OF REPRESENTATIVES. 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. The fact of obtaining the highest number of votes in an
election does not automatically vest the position in the winning candidate. 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.
8. REMEDIAL LAW; JUDGMENT; DISMISSAL OF ACTION; RES JUDICATA;REQUISITES; UNAVAILING IN
CASE AT BAR. The application of the rule onres 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 DOMINO 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. In the
present case, the aforesaid essential requisites are not present.
PANGANIBAN, J.:separate opinion:
1. POLITICAL LAW; ELECTIONS; QUALIFICATION OF VOTERS; RESIDENCE REQUIREMENT; SHOULD
BE CONSTRUED TO MEAN ACTUAL, PHYSICAL AND PERSONAL PRESENCE; RATIONALE. A member.
of the House of Representatives must be a resident of the district which he or she seeks to represent "for a
period of not less than one year immediately preceding the day of the election" is a constitutional requirement
that should be interpreted in the sense in which ordinary lay persons understand it. The common people who
ratified the Constitution and were thereafter expected to abide by it would not normally refer to the journals of
the Constitutional Commission in order to understand the words and phrases contained therein. Rather, they
would usually refer to the common source being used when they look up for the meaning of words the
dictionary. In this sense, Webster's definition of residence should be controlling. If the framers of our basic law
intended our people to understand residence as legal domicile, they should have said so. Then our people
would have looked up the meaning of domicile and would have understood the constitutional provision in that
context. However, the framers of our Constitution did not. Justice Panganiban therefore submits
that residence must be understood in its common dictionary meaning as understood by ordinary lay
persons. CHTcSE
2. ID.;ID.;ID.;ID.;NEGATED SHOULD THE CONCEPT OF DOMICILE BE APPLIED; BASIS THEREOF.
Applying the concept of domicile in determiningresidence as a qualification for an elective office would negate
the objective behind the residence requirement of one year (or six months, in the case of local positions).This
required period of residence preceding the day of the election, is rooted in the desire that officials of districts or
localities be acquainted not only with the metes and bounds of their constituencies but, more important, with
the constituents themselves their needs, difficulties, potentials for growth and development and all matters
vital to their common welfare. Such requisite period would precisely give candidates the opportunity to be
familiar with their desired constituencies, and likewise for the electorate to evaluate their fitness for the offices
they seek. If all that is required of elective officials is legal domicile, then they would qualify even if, for several
years prior to the election, they have never set foot in their districts (or in the country, for that matter),since it is
possible to maintain legal domicile even without actual presence, provided one retains the animus revertendi or
the intention to return.
3. ID.; CONSTITUTION,AS THE BASIC LAW OF THE LAND; SHOULD BE INTERPRETED IN THE SENSE
UNDERSTOOD BY ORDINARY MAN. TheConstitution is the most basic law of the land. It enshrines the
most cherished aspirations and ideals of the population at large. It is not a document reserved only for
scholarly disquisition by the most eminent legal minds of the land. In ascertaining its import, lawyers are not
meant to quibble over it, to define its legal niceties, or to articulate its nuances. Its contents and words should
be interpreted in the sense understood by the ordinary men and women who place their lives on the line in its
defense and who pin their hopes for a better life on its fulfillment. The call for simplicity in understanding and
interpreting our Constitution has been made a number of times. About three decades ago, this Court declared:
"It is to be assumed that the words in which constitutional provisions are couched express the objective sought
to be attained. They are to be given their ordinary meaning except where technical terms are employed in
which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's
document, it being essential for the rule of law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be understood in the sense they have in common use.
What it says according to the text of the provision to be construed compels acceptance and negates the power
of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus there
are cases where the need for construction is reduced to a minimum." CAIHTE

DECISION
DAVIDE, JR.,C.J p:

Challenged in this case for certiorari with a prayer for preliminary injunction are the Resolution of 6 May
1998 1 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 1998 2 of the COMELEC en
bancdenying DOMINO's motion for reconsideration. cdll
The antecedents are not disputed.
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.,filed 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; cdasia
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;" cdlex
9. Annex "I" Copy of the SWORN APPLICATION FOR CANCELLATION OF 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;
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 Precinct 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 exercise their respective rights
of suffrage. cdll
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; LLpr
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.
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 cda
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 quoprevailing 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. llcd
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 jurisdiction, 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 carries 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 voters 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 Registrar 16 we ruled that: dctai
...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 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 precinct 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 DOMINO
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: cdasia
 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 quo 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. cdphil
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 vs. Director of Lands,39 Phil. 850).And as
in the case of the petition for exclusion 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. cda
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 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. dctai
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 continuously 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 Quezon
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. LLpr
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 votes 38 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 Constitutionbegins 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.
Considering 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 Representative. Hence, it is the
COMELEC and not the Electoral Tribunal which has jurisdiction over the issue of his ineligibility as a
candidate. 42 prLL
Issue raised by INTERVENOR.
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
It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a
candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which have positively declared through their ballots that they
do not choose him. 45 To 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 transferred 48 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 have obtained a plurality of
votes 49 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 electorate without any fault on their part and to undermine the importance and meaning of
democracy and the people's right to elect officials of their choice. 51
INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes cannot be sustained.
INTERVENOR's reliance on the opinion made in the Labo, Jr.case 52 to wit: if the electorate, fully aware in fact
and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would
nevertheless cast their votes in favor of the ineligible candidate, the electorate may be said to have waived the
validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in
which case, the eligible candidate obtaining the next higher number of votes may be deemed elected, is
misplaced. cdasia
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
WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the COMELEC 2nd
Division and the decision dated 29 May 1998 of the COMELEC En Banc,are hereby AFFIRMED. SO
ORDERED.
||| (Domino v. Commission on Elections, G.R. No. 134015, [July 19, 1999], 369 PHIL 798-829)

[G.R. No. 180088. January 19, 2009.]

MANUEL B. JAPZON, petitioner, vs. COMMISSION ON ELECTIONS and

JAIME S. TY, respondents.

DECISION

CHICO-NAZARIO, J : p

This is a Petition for Review on Certiorari under Rules 64 1 and 65 2 of the Revised
Rules of Court seeking to annul and set aside the Resolution 3 dated 31 July 2007 of the
First Division of public respondent Commission on Elections (COMELEC) and the
Resolution 4 dated 28 September 2007 of COMELEC en banc, in SPA No. 07-568, for
having been rendered with grave abuse of discretion, amounting to lack or excess of
jurisdiction. SAHIaD

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 Petition 5 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 Answer 6 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 ofRepublic 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. STcADa

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 Resolution 8 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 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). DCaEAS

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 cDEHIC

Japzon filed a Motion for Reconsideration of the foregoing Resolution of the

COMELEC First Division. On 28 September 2007, the COMELECen banc issued its
Resolution 12 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.
xxx xxx xxx
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 DCcIaE

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
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. CTHDcE

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 retain 17 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. 9225treats 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: TAacCE

xxx xxx xxx

(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 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 thequalifications, 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.
xxx xxx xxx
(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.TaSEHD

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. 9225had 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). TcCDIS

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 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. IcTaAH

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 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. CSTDEH

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 overriding such ineligibility and
thereby giving effect to the apparent will of the people would ultimately create greater
prejudice to the very democratic institutions and juristic traditions that our Constitution and
laws so zealously protect and promote. In this case, Japzon failed to substantiate his claim
that Ty is ineligible to be Mayor of the Municipality of General Macarthur, Eastern Samar,
Philippines.
WHEREFORE, premises considered, the instant Petition for Certiorari is
DISMISSED. SO ORDERED.
(Japzon v. Commission on Elections, G.R. No. 180088, [January 19, 2009], 596 PHIL 354-
|||

375)

[G.R. No. 162759. August 4, 2006.]

LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA, ALEJANDRO A. ESCLAMADO,

ARMANDO B. HEREDIA, REUBEN S. SEGURITAN, ERIC LACHICA FURBEYRE,
TERESITA A. CRUZ, JOSEFINA OPENA DISTERHOFT, MERCEDES V. OPENA,
 CORNELIO R. NATIVIDAD, EVELYN D. NATIVIDAD, petitioners, vs. COMMISSION ON
ELECTIONS, respondent.

DECISION

GARCIA, J p:

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.
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. DHACES
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. . . . .
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.
(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. aEHIDT
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) . . . ;
(4) . . . ;
(5) That right to vote or be elected or appointed to any public office in the Philippines
cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public 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.
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. caHCSD
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. DICSaH
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."acHDTA
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 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. cEaTHD
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.
||| (Nicolas-Lewis v. Commission on Elections, G.R. No. 162759, [August 4, 2006], 529 PHIL 642-659)
 [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 p:

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 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. TIDaCE
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: DcITaC
 (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 theConstitution 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 TSHEIc
(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. 2The Constitution, however, is categorical that dual
allegiance is inimical to the national interest. ASEcHI
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 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:
xxx xxx xxx
 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. IEAacT
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.
xxx xxx xxx
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.
xxx xxx xxx
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. cHCSDa

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. 63 5 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. cADTSH
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 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.
||| (Calilung v. Datumanong, G.R. No. 160869, [May 11, 2007], 551 PHIL 110-119)