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Nicolas-Lewis v. Comelec
Nicolas-Lewis v. Comelec
Nicolas-Lewis v. Comelec
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* EN BANC.
650
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GARCIA, J.:
In this petition for certiorari and mandamus,
petitioners, referring to themselves as “duals” or dual
citizens, pray that they and others who retained or
reacquired Philippine citizenship under Republic Act (R.A.)
No. 9225, the Citizenship Retention and Re Acquisition Act
of 2003, be allowed to avail themselves of the mechanism
provided under the Overseas Absentee Voting Act of 20031
(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”
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8 Published in the February 16, 2003 issues of Today and Daily Tribune.
655
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“As finally approved into law, Section 5(d) of R.A. No. 9189
specifically disqualifies an immigrant or permanent resident who
is “recognized as such in the host country” because immigration or
permanent residence in another country implies renunciation of
one’s residence in his country of origin. However, same Section
allows an immigrant and permanent resident abroad to register
as voter for as long as he/she executes an affidavit to show that
he/she has not abandoned his domicile in pursuance of the
constitutional intent expressed in Sections 1 and 2 of Article V
that “all citizens of the Philippines not otherwise disqualified by
law” must be entitled to exercise the right of suffrage and, that
Congress must establish a system for absentee voting; for
otherwise, if actual, physical residence in the Philippines is
required, there is no sense for the framers of the Constitution to
mandate Congress to establish a system for absentee voting.
Contrary to the claim of [the challenger], the execution of the
affidavit itself is not the enabling or enfranchising act. The
affidavit required in Section 5(d) is not only proof of the intention
of the immigrant or permanent resident to go back and resume
residency in the Philippines, but more significantly, it serves as
an explicit expression that he had not in fact abandoned his
domicile of origin. Thus, it is not correct to say that the execution
of the affidavit under Section 5(d) violates the Constitution that
proscribes “provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a political
exercise.”11
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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 ….
x x x x x x x x x
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 fa ct tha t a
Filipino ma y ha ve been physica lly a bsent from the
Philippines a nd ma y be physica lly a resident of the
United Sta tes, for exa mple, but ha s a clea r intent to
return to the Philippines, will ma ke him qua lified a s
a resident of the Philippines under this la w.
This is consistent, Mr. President, with the constitutional
mandate that we—that Congress—must provide a franchise
to overseas Filipinos.
If we rea d the Constitution a nd the suffra ge
principle litera lly a s dema nding physica l presence,
then there is no wa y we ca n provide for offshore voting
to our offshore ka ba ba ya n, 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
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