elections and the right to vote.docx

7/28/2019 Elections and the Right to Vote.docx

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Elections and the Right to Vote

Constitutional Basis

ART. II, Sec. 1, 1987 Constitution: The Philippines is a democratic and republican State. Sovereignty resides in the people and

all government authority emanates from them.

Q:Why make a distinction between democratic and republican?

A: There are two kinds of democracy: direct democracy (pure) and indirect democracy (representative/republican). The

Philippines follows both forms of democracy republican because the people express their sovereignty through the ballot,

voting for candidates who will represent them in government, but also democratic because of initiative and referendum, which

express the direct will of the people through plebiscite.

People vs. San Juan, 22 SCRA 505

"That on or about the 12th day of November 1963 (election day), at around 10:00 o'clock in the morning at the polling place at

the City Central School, Ormoc City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused

CLAUDIA SAN JUAN and SEVERO SAN JUAN, conspiring, cooperating, confabulating and helping with one another, did then and

there willfully, unlawfully, and feloniously with the use of force, prevent the complainant witness GENEROSA PILAPIL from

exercising her right to freely enter the polling place of Precinct No. 1 in order to vote."

Each time the enfranchised citizen goes to the polls to assert this sovereign w ill, that abiding credo of republicanism is

translated into living reality. If that will must remain undefiled at the starting level of its expression and application, every

assumption must be indulged in and every guarantee adopted to assure the unmolested exercise of the citizens free choice.

For to impede, without authority valid in law, the free and orderly exercise of the right of suffrage is to inflict the ultimate

indignity on the democratic process. As numerous as they are insidious are long-standing techniques of terror and intimidation

that have been conceived by man in derogation of the right of suffrage which we have repeatedly and unqualifiedly

condemned. When the legislature provided in section 133 of the Revised Election Code an explicit and unequivocal guarantee

of a voters free access to the polling place, it could have intended no purpose other than to maintain inviolate the right to vote

by safeguarding the voter against all manner ofunauthorized interference and travesty that surveyors of fear can devise. Every

unlawful obstacle, by whatever means or method, interposed to the free entry of a voter into the polling place to cast his vote,

strikes at the very heart of the right of suffrage.

INFORMATION; VIOLATION OF SEC. 133 OF THE REVISED ELECTION CODE; SUFFICIENCY. Where the information implicitly

averred that the complaint, a duly registered voter intent on exercising the right of suffrage, was at the "polling place of

Precinct No. 1 in order to vote" and that the accused Claudia San Juan and Severo San Juan"willfully, unlawfully, and

feloniously with the use of force prevented the complainant Generosa Pilapil from exercising her right to freely enter the

polling place of Precinct No. 1 in order to vote," said information satisfies the requirements for the legal sufficiency for an

indictment lodged under Sec. 133 of the Revised Election Code.

4.REVISED ELECTION CODE, SECTION 133 OF THE REVISED ELECTION CODE CONSTRUED. As numerous as they are insidious

are long-standing techniques of terror and intimidation that have been conceived by man in derogation of the right of

suffrage which we have repeatedly and unqualifiedly condemned. Sec. 133 of the Revised Election Code, an explicit and

unequivocal guarantee of a voter's free access to enter the polling place, has no other purpose than to maintain inviolate the

right to vote by safeguarding the voter against all manner of unauthorized interference and travesty that purveyors of fear can

devise. Every unlawful obstacle, by whatever means or method, interposed to the free entry of a voter into the polling place to

cast his vote, strikes at the very heart of the right of suffrage.

Philosophical Bases

Punos Separate Opinion, Macalintal vs. COMELEC, G.R. No. 157013, July 10, 2003

PLATO - rejected democracy as tyranny of the majority (numerical superiority) and supported the philosopher-king rule

ARISTOTLE - democracy is desirable but only under certain conditions and of the upper class; will of the enlightened many

INDUSTRIAL REVOLUTION - social contract theory; the people exercise their sovereignty and creates a government t

they consent

Synopsis: Petitioner Romulo B. Macalintal, a member of the Philippine Bar, sought to declare certain provisions of Rep

No. 9189 entitled, "An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the Philippines

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

resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months imm

preceding an election. Petitioner cited the ruling of the Court in Caasi vs. Court of Appeals to support his claim. In that

Court held that a "green card" holder immig rant to the United States is deemed to have abandoned his domicile and r

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 A

of the Constitution is an exception to the residency requirement found in Section 1 of the same Article. Ordinarily, an a

is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee. However, und

existing election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains att

his residence in the Philippines as residence is considered synonymous with domicile. Aware of the domiciliary legal ti

links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstance

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.

precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest numbe

qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to p

system for overseas absentee voting. The Court, however, declared certain provisions of the law unconstitutional, nam

portions of Secs. 17.1, 19 and 25, as they trampled on the constitutional mandate of independence of the Commission

Elections. The Court also upheld Section 18.5 of R.A. No. 9189 with respect only to the authority given to the COMELE

proclaim the winning candidates for Senators and party-list representatives but not as to the power to canvass the vot

proclaim the winning candidates for President and Vice-President which is lodged with Congress under Section 4, Artic

the Constitution. The Court likewise upheld Sec. 5 (d) of the law. It also declared that pursuant to Sec. 30 of the law th

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

ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189); ENACTED IN OBEISANCE T

MANDATE OF THE CONSTITUTION THAT CONGRESS SHALL PROVIDE A SYSTEM FOR VOTING BY QUALIFIED FILIPINOS A

As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holisti

the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in constitutional construction tha

Constitution should be construed as a whole. In Chiongbian vs. De Leon, the Court held that a constitutional provision

function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provision

great document. Constitutional provisions are mandatory in character unless, either by express statement or by neces

implication, a different intention is manifest. The intent of the Constitution may be drawn primarily from the language

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,

of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed tha

Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in th

absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (The Legislativ

Department) of the Constitution.

3.ID.; ID.; ID.; SECTION 2, ARTICLE V OF THE CONSTITUTION CAME INTO BEING TO REMOVE DOUBT AS TO THE INAPPL

OF THE RESIDENCY REQUIREMENT IN SECTION 1. Ordinarily, an absentee is not a resident and vice versa; a person c

at the same time, both a resident and an absentee. However, under our election laws and the countless pronounceme

the Court pertaining to elections, an absentee remains attached to his residencein the Philippines as residence is cons

synonymous with domicile. Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this couframers of the Constitution considered the circumstances that impelled them to require Congress to establish a system

overseas absentee voting. Thus, the Constitutional Commission recognized the fact that while millions of Filipinos resid

abroad principally for economic reasons and hence they contribute in no small measure to the economic uplift of this

their voices are marginal insofar as the choice of this country's leaders is concerned. The Constitutional Commission re

that under the laws then existing and considering the novelty of the system of absentee voting in this jurisdiction, vest

overseas Filipinos with the right to vote would spawn constitutional problems especially because the Constitution itse

provides for the residency requirement of voters. Thus, Section 2, Article V of the Constitution came into being to rem

doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that cou


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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 allFilipino 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 Se ction 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 immigrantorpermanent residentwho 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 "allcitizens 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 s erves as an e xplicit

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 Caasicase 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 ofThe 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 theirnames "from the National Registry of Absentee Voters and his/her permanent disqualification to vote in 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 p

not to have lost his domicile by his physical absence from this country. His having become an immigrant or permanent

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

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

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 overCOMELEC which is an indep

body "except those specifically granted by the Constitution," that is, to review its decisions, orders and rulings. In the s

vein, it is not correct to hold that because of its recognized extensive legislative power to enact election laws, Congres

intrude into the independence of the COMELEC by exercising supervisory powers over its rule-making authority. By vir

Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the necessary rules and regulations to e

implement the provisions of this Act within sixty days from the effectivity of this Act." This provision of law follows the

procedure in drafting rules and regulations to implement a law the legislature grants an administrative agency the a

to craft the rules and regulations implementing the law it has enacted, in recognition of the administrative expertise o

agency in its particular field of operation. Once a law is enacted and approved, the legislative function is deemed acco

and complete. The legislative function may spring back to Congress relative to the same law only if that body deems it

to review, amend and revise the law, but certainly not to approve, review, revise and amend the IRR of theCOMELEC.

vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee Voting Act of 2

Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate o

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

BY MAIL IN ANY COUNTRY AFTER THE 2004 ELECTIONS DECLARED UNCONSTITUTIONAL; SAID POWER UNDERMINES TH

INDEPENDENCE OF THE COMMISSION ON ELECTIONS. Similarly, the phrase, "subject to the approval of the Congres

Oversight Committee" in the first sentence of Section 17.1 which empowers the Commission to authorize voting by m

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

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 ove

the bounds of its constitutional mandate and intrude into the independence of the COMELEC.

ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189); ENACTED IN OBEISANCE T

MANDATE OF THE CONSTITUTION THAT CONGRESS SHALL PROVIDE A SYSTEM FOR VOTING BY QUALIFIED FILIPINOS A

As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holisti

the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in constitutional construction tha

Constitution should be construed as a whole. In Chiongbian vs. De Leon, the Court held that a constitutional provision

function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provision

great document. Constitutional provisions are mandatory in character unless, either by express statement or by neces

implication, a different intention is manifest. The intent of the Constitution may be drawn primarily from the language

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 m andate of the first paragraph of Section 2,

of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed tha

Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in th

absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (The Legislativ

Department) of the Constitution.3.ID.; ID.; ID.; SECTION 2, ARTICLE V OF THE CONSTITUTION CAME INTO BEING TO REMOVE DOUBT AS TO THE INAPPL

OF THE RESIDENCY REQUIREMENT IN SECTION 1. Ordinarily, an absentee is not a resident and vice versa; a person c

at the same time, both a resident and an absentee. However, under our election laws and the countless pronounceme

the Court pertaining to elections, an absentee remains attached to his residencein the Philippines as residence is cons

synonymous with domicile. Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this cou

framers of the Constitution considered the circumstances that impelled them to require Congress to establish a system

overseas absentee voting. Thus, the Constitutional Commission recognized the fact that while millions of Filipinos resid

abroad principally for economic reasons and hence they contribute in no small measure to the economic uplift of this


3/11

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 allFilipino 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 immigrantorpermanent residentwho 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 "allcitizens 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 Caasicase 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 ofThe Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still beconsidered 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."

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 complian

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. T

provisions of Sections 5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9

qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is pr

not to have lost his domicile by his physical absence from this country. His having become an immigrant or permanent

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

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

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 overCOMELEC which is an indep

body "except those specifically granted by the Constitution," that is, to review its decisions, orders and rulings. In the s

vein, it is not correct to hold that because of its recognized extensive legislative power to enact election laws, Congres

intrude into the independence of the COMELEC by exercising supervisory powers over its rule-making authority. By vir

Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the necessary rules and regulations to e

implement the provisions of this Act within sixty days from the effectivity of this Act." This provision of law follows the

procedure in drafting rules and regulations to implement a law the legislature grants an administrative agency the a

to craft the rules and regulations implementing the law it has enacted, in recognition of the administrative expertise o

agency in its particular field of operation. Once a law is enacted and approved, the legislative function is deemed acco

and complete. The legislative function may spring back to Congress relative to the same law only if that body deems it

to review, amend and revise the law, but certainly not to approve, review, revise and amend the IRR of theCOMELEC.

vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee Voting Act of 2

Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate o

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

BY MAIL IN ANY COUNTRY AFTER THE 2004 ELECTIONS DECLARED UNCONSTITUTIONAL; SAID POWER UNDERMINES TH

INDEPENDENCE OF THE COMMISSION ON ELECTIONS. Similarly, the phrase, "subject to the approval of the Congres

Oversight Committee" in the first sentence of Section 17.1 which empowers the Commission to authorize voting by m

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

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 ove

the bounds of its constitutional mandate and intrude into the independence of the COMELEC.

CARPIO, J.: concurring

The case before this Court is historic and momentous. Historic because the right of suffrage, which through the centur

painstakingly evolved into universal right, 1stands at the crossroads in this country. Should the right of suffrage contin

march forward and reach overseas Filipinos, or should this Court turn back this historic march here at our gates?

Momentous because the core issue is the enfranchisement or disenfranchisement of some 7 million overseas Filipinos.

annual contribution of these overseas Filipinos to the national economy, in terms of hard-earned foreign exchange rem

through the banking system, equals almost 50 percent of the country's national budget. 2The total remittances, recor

unrecorded, of overseas Filipinos may even reach 18 percent of GNP, almost the same percentage that agriculture at 2

percent contributes to the GNP.3

The nation has hailed the overseas Filipinos as the modern-day heroes and saviors of the economy. Their blood, toil, te

sweat have propped up the Philippine peso through all the recurring financial crises that have battered the nation. Alt

scattered in foreign lands across the g lobe, these overseas Filipinos keep abreast with developments in the Philippines

the Internet, 4cable and satellite TV, and even texting.

In recognition of the immense contribution of overseas Filipinos to the nation, the framers of the 1987 Constitution in

the absentee voting system, novel in this country, purposelyto enfranchise the overseas Filipinos. Commissioner Blas O
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former Minister of Labor who started deploying abroad large numbers of Filipino workers, triggered the introduction of the

absentee voting with this discourse during the deliberations of the Constitutional Commission:

MR. OPLE: . . .

In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of theCommission on

Elections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos

overseas. Those who have adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a

more convenient foreign citizenship. And those who on their own or under pressure of economic necessity here, find that they

have to detach themselves from their families to work in other countries with definite tenures of employment. Many of them

are on contract employment for one, two, or three years. They have no intention of changing their residence on a permanent

basis, but are technically disqualified from exercising the right of suffrage to 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.

xxx xxx xxx

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.5(Emphasis and italics supplied)

From the start, the framers of the Constitution knew that the absentee voting system for overseas Filipinos would have to be

an exception to the double residency requirement in Section 1, Article V of the Constitution. This was the basic premise for

introducing an express provision on absentee voting in the Constitution. Unless there is such an exception in the Constitution

itself, overseas Filipinos could never vote as absentee voters in view of the double residency requirement in Section 1. Because

of this double residency requirement, Congress could not enfranchise through ordinary legislation overseas Filipinos who do

not comply with the double residency requirement.

Thus, the framers of the Constitution, by an overwhelming vote of 28 in favor and only one against, approved Section 2, Article

V of the Constitution, as follows:

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)

After sixteen long years of debates, Congress finally enacted RA No. 9189 (the Overseas Absentee Voting Act of

2003),preciselyto implement the constitutional mandate to enfranchise overseas Filipinos. Petitioner now asks the Court to

strike down this law as unconstitutional mainly because it enfranchises overseas Filipinos who do not comply with the double

residency requirement in Section 1, Article V of the 1987 Constitution, as follows:

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. (Italics supplied)

Like the 1973 Constitution, Section 1, Article V of the 1987 Constitution imposes a double residency requirementbefore a

Filipino 18 years or over may exercise the right to vote, namely: (1) one year residence in the Philippines; and (2) six months

residence in the locality in the Philippines where he proposes to vote. The threshold issue is whether overseas Filipinos should comply with the double residency requirement in Section 1 of Article V

to vote under the absentee voting system in Section 2 of the same Article. Stated another way, the issue is whether overseas

Filipinos, many of whom are not registered voters in the Philippines, should come home twice to the P hilippines just so they

could vote in a foreign country as absentee Filipino voters. The first time they should come home is one year before the elections

to establish residence in the Philippines. The second time is six months before the elections to establish residence in the locality

in the Philippines where they propose to vote.

Did the framers of the 1987 Constitution intend to inflict on overseas Filipinos such a burdensome requirement as an essential

feature of the absentee voting system in Section 2 of Article V? 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 constitutio

to vote. In the first place, the second residency requirement of establishing residence in a locality in the Philippines whe

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 Filipino

Certainly, the wise framers of the Constitution were incapable of such absurd scheme.

If the framers of the Constitution did not intend such an absurd requirement, should this Court now impose such absu

overseas Filipinos? How many overseas Filipinos would comply with the double residency requirement just to vote in

Presidential and Senatorial elections? How much will overseas Filipinos spend just to come home twice within 12 mon

so they could vote when they go back abroad?

The concept of absentee voting negates a residency requirement in the country of citizenship of the voter. By definition

absentee voter is a non-resident voter. Obviously, the double residency requirement in Section 1 of Article V applies o

resident or non-absentee Filipino voters. To impose the double residency requirement on absentee Filipino voters is a

egregious anomaly for it will require absentee Filipino voters to comply with the same residency requirement imposed

resident or non-absentee Filipino voters. If absentee Filipino voters are required to reside in the Philippines just like re

non-absentee Filipino voters, why create an absentee voting system for overseas Filipinos in the first place? Applying t

double residency requirement on absentee voters will render the provision on absentee voting in Section 2 a surplusa

constitutional mandate devoid of meaning.

Even without the absentee voting provision in Section 1, Congress can validly enact a law allowing resident or non-abs

Filipino voters those who comply with the double residency requirement to vote abroad in Philippine embassies

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

absentee voting system in Section 2 were for the benefit only of resident or non-absentee Filipinos, then there would

need to provide for it in the Constitution.

The framers of the 1987 Constitution specifically introduced the absentee voting provision in Section 2 precisely to enf

overseas Filipinos who do not comply with the double residency requirement in Section 1. Without the absentee votin

provision in Section 2, Congress could not validly enact a law enfranchising overseas Filipinos who do not comply with

double residency requirement. As succinctly explained by Commissioner Christian Monsod during the deliberations in

Constitutional Commission:

MR. MONSOD: . . . The reason we want absentee voting to be in the Constitution as a mandate to the legislature is tha

could be inconsistency on the residence rule if it is j ust a question of legislation by Congress. So, by allowing it and sayin

this is possible, then legislation can take care of the rest.6

Evidently, the framers of the Constitution intended the absentee voting provision as an exception to the double reside

requirement.

The question of how a Filipino, who has become a permanent resident or immigrant in a foreign country, may reacqui

domicile or residence in the Philippines is a matter for ordinary legislation. The reacquisition of the Philippine domicile

residence that a Filipino had lost is within the power of Congress to legislate. The Constitution does not define what d

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 enact

legislation prescribing the reacquisition of Philippine citizenship.

Thus, RA No. 81717allows a former natural-born Filipino who became a foreigner to reacquire Philippine citizenship b

simplified administrative petition and taking an oath of allegiance to the Philippines. Section 5(d) of RA No. 9189, whic

prescribes the reacquisition of residence by a Filipino through the execution of an affidavit stating he is resuming resid

the Philippines, is similarly well within the power of Congress to enact and is thus constitutional.

While the absentee voting system is new in this country, it is well established in other countries. In the United States,

citizens 18 years or over who reside outside the United States during an election are eligible to vote as absentee voter

trend in the United States is to allow "no-excuse" absentee voting,9

that is, a qualified or registered voter may avail oabsentee voting for any reason. Absentee voting is understood in other jurisdictions as voting by a qualified or registe

without anyresidency requirement. In the present case, petitioner wants a double residency requirement imposed on

Filipino voters.

The right of suffrage is the cornerstone of a representative government like that established in the 1987 Constitution.

representative government is legitimate when those represented elect their representatives in government. The cons

the governed is what stamps legitimacy on those who govern. This consent is expressed through the right of suffrage.

precious right for which many have fought and died so that others may freely exercise it. A g overnment that denies su

on flimsy or meaningless grounds does so at its peril.
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5/11

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." Thus, Article 25 of the Covenant provides:

Article 25. Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2

and without unreasonable restrictions;

(a)To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b)To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrageand shall be held by

secret ballot, guaranteeing the free expression of the will of the electors;

xxx xxx xxx. (Emphasis and italics supplied)

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. 10It is inconceivable that the framersintended 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.

There are some 40 countries in the world, including our Asean neighbors Indonesia and Thailand, which grant their overseas

citizens the right to vote while residing abroad.11The inexorable direction of history is to bestow on every person the right to

vote wherever he may be in this global village. Modern technology and telecommunications are making this happen even

now. 12Those who insist on the double residency requirement as an essential condition for absentee voting by overseas

Filipinos are turning back in vain the clock of history.

The framers of the Constitution expressly mandated Congress to enact an absentee voting law to enfranchise overseas Filipinos.

Congress has enacted such a law after a long and difficult struggle by overseas Filipinos who patiently waited for 16 years for

the enactment of the law. That struggle is now part of the world history of the evolution of the right of suffrage as a universal

right. No frivolous, absurd or impractical conditions should stand in the way of enfranchising overseas Filipinos whose

contribution to the national economy is immeasurable.

Like the framers of the 1987 Constitution and the members of Congress, I vote to enfranchise our 7 million overseas Filipinos.

This is an explicit constitutional mandate that the Court, like Congress, must honor and respect. I therefore concur entirely with

the ponencia of Justice Ma. Alicia Austria-Martinez.

Who May Exercise the Right to Vote

ART. V, Sec. 1, 1987 Constitution: Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified b y 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.

Qualifications

Punos Dissenting Opinion, Tolentino v. COMELEC, G.R. No. 148334, Jan. 21, 2004

Citizenship - Suffrage is a political right appertaining to citizenship; reserved only to Filipinos whose allegiance to the

country are undivided; each individual qualified to vote is a particle of popular sovereignty

Age (18 years) - Voting is an act of choice and involves prescience; familiarity and maturity

Residence - For the vote to be more meaningful, more than a passing acquaintance with the countrys problems and

prospects is required

One year residence in the Philippines - refers to domicile, the place to which whenever absent for business or for pleasure,

one intends to return

FACTS:

Petitioners assailed the manner by which the simultaneous regular and special elections of 2001 were conducted by the

COMELEC.Petitioners contend that, if held simultaneously, a special and a regular election must be distinguished in the

documentation as well as in the canvassing of their results. Thirteen senators were proclaimed from the said election w

13th placer to serve that of the remaining term of Sen. Guingona, who vacated a seat in the senate.

Petitioners sought for the nullification of the special election and, consequently, the declaration of the 13th

elected sen

Issue:

1Whether or not Court had jurisdiction.

2Whether or not the petition was moot.

3Whether or not petioners had locus standi.

4Whether a Special Election for a Single, Three-Year Term

Senatorial Seat was Validly Held on 14 May 2001

RULING:

On the issue of jurisdiction, Court had jurisdiction because what petitioners were questioning was the validity of the s

election on 14 May 2001 in which Honasan was elected and not to determine Honasans right in the exercise of his offSenator proper under a quo warranto.

On the issue of mootness, it was held that courts will decide a question otherwise moot if it is capable of repetition ye

review.

On the issue of locus standi, the court had relaxed the requirement on standing and exercised our discretion to give d

to voters suits involving the right of suffrage, considering that the issue raised in this petition is likely to arise again

On the VAlidity of the Election, the Court held that the May 14, 2001 Election was valid.

The Court held that COMELECs Failure to Give Notice of the Time of the Special Election as required under RA 6645, a

amended, did Not Negate the Calling of such Election. Section 2 of R.A. No. 6645 itself provides that in case of vacancy

Senate, the special election to fill such vacancy shall be held simultaneously with the next succeeding regular election

charges the voters with knowledge of this statutory notice and COMELECs failure to give the additional notice did not

the calling of such special election, much less invalidate it. Further, there was No Proof that COMELECs Failure to Give

of the Office to be Filled and the Manner of Determining the Winner in the Special Election Misled Voters. IT could no

that the voters were not informed since there had been other accessible information resources. Finally, the Court held

unless there had been a patent showing of grave abuse of discretion, the Court will not interfere with the affairs and c

of the Comelec.

ELEMENTS OF DOMICILE:

1. Physical presence

2. Animus manendi (intent to return permanently)

Six months residence in the place where one intends to vote - refers to temporary domicile

PURPOSE OF 6-MONTH RESIDENCY:

Determine the place where the voter will register

Determine the place where voter will vote

CLASSES OF DOMICILE:

1. Domicile of Origin - place of birth

2. Domicile of Choice - replace the domicile of origin

3. Domicile by Operation of Law - applies to infants, incompetents and other persons under disabilities that p

them from acquiring a domicile of choice

Electoral System

- free and open party system; distinguished from a multi-party system because in free and open party system, a unica

bicameral system is possible (ART. IX (c) (6), Sec. 6, 1987 Constitution)

OTHER MODES OF DEMOCRACY
http://www.cdasiaonline.com/search/show_article/8118?search=%28title%3A+%28Macalintal%29+AND+title%3A+%28COMELEC%29%29+OR+%28title%3A+%28Macalintal%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/8118?search=%28title%3A+%28Macalintal%29+AND+title%3A+%28COMELEC%29%29+OR+%28title%3A+%28Macalintal%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/8118?search=%28title%3A+%28Macalintal%29+AND+title%3A+%28COMELEC%29%29+OR+%28title%3A+%28Macalintal%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/8118?search=%28title%3A+%28Macalintal%29+AND+title%3A+%28COMELEC%29%29+OR+%28title%3A+%28Macalintal%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/8118?search=%28title%3A+%28Macalintal%29+AND+title%3A+%28COMELEC%29%29+OR+%28title%3A+%28Macalintal%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/8118?search=%28title%3A+%28Macalintal%29+AND+title%3A+%28COMELEC%29%29+OR+%28title%3A+%28Macalintal%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/8118?search=%28title%3A+%28Macalintal%29+AND+title%3A+%28COMELEC%29%29+OR+%28title%3A+%28Macalintal%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/8118?search=%28title%3A+%28Macalintal%29+AND+title%3A+%28COMELEC%29%29+OR+%28title%3A+%28Macalintal%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/8118?search=%28title%3A+%28Macalintal%29+AND+title%3A+%28COMELEC%29%29+OR+%28title%3A+%28Macalintal%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/8118?search=%28title%3A+%28Macalintal%29+AND+title%3A+%28COMELEC%29%29+OR+%28title%3A+%28Macalintal%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/8118?search=%28title%3A+%28Macalintal%29+AND+title%3A+%28COMELEC%29%29+OR+%28title%3A+%28Macalintal%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/8118?search=%28title%3A+%28Macalintal%29+AND+title%3A+%28COMELEC%29%29+OR+%28title%3A+%28Macalintal%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnotes


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Plebiscite - a system by which the people exercise their sovereignty by approving or rejecting any amendments or revisions of

the Constitution prepared by the legislative

Initiative - power of the people to propose amendments to the Constitution or to propose and enact legislation through an

election called for the purpose

REQUISITES FOR AMENDMENTS TO THE CONSTITUTION BY INITIATIVE:

1. The people must author and thus sign the entire proposal

2. As an initiative upon a petition, the proposal must be embodied in a petition

Referendum - power of the electorate to approve or reject legislation

Amendment - changing a few provisions of the Constitution

WHO MAY AMEND THE CONSTITUTION:

1. Constitutional convention

2. Constitutional assembly (Congress)

3. People on Initiative

Revision - a total overhaul of the Constitution; changing the substance

Peoples initiative: the amendment must be directly proposed by the people

Lambino vs. COMELEC, G.R. No. 174153, Oct. 25, 2006 (read digest)

An initiative petition is filed to change the 1987 Constitution, among such proposed changes is to shift the present Bicameral-

Presidential system to Unicameral-Parliamentary form of government. The Supreme Court denied the petition on ground of

failure to comply with the basic requirements of the Constitution for conducting a peoples initiative: the amendment must be

directly proposed by the people through initiative upon a petition.

Clearly, the framers of the Constitution intended that the draft of the proposed constitutional amendment should be ready

and shown to the people before they sign such proposal. xxx The framers also envisioned that the people should sign on the

proposal itself because the proponents must prepare thatproposal and pass it around for signature.

2 ELEMENTS:

(1) The people must author and thus sign the entire proposal.

(2) As an initiative upon a petition, the proposal must be embodied in a petition.

xxx Thus, an amendment is directly proposed by the people through initiative upon a petition only if the people sign on a

petition that contains the full text of the proposed amendments.

ELECTION PROCESS AND/OR PROCEEDINGS

Registration of Voters (System of Continuing Registration)

WHEN: daily during office hours; at the office of the Election Officer; personally file application to register as voter; no

registration 120 days before regular elections and 90 days before special elections (Sec. 1, RA 8189)

WHO MAY REGISTER: (Sec. 8, RA 8189)

1. citizens

2. not otherwise disqualified by law

3. 1-yr. Residence in the Philippines

4. 6-mo. Residence in the place where one will vote

DISQUALIFICATIONS:

1. Sentenced by final judgment to suffer imprisonment of not less than 1 yr. (Auto-reacquire right to register

expiration of 5 yrs. after service)

2. Sentenced by final judgment of crime involving disloyalty to the duly constituted government (rebellion, se

violation of firearms laws, crimes against national security, etc.; auto-reacquire upon expiration of 5 yrs. after service)3. Insane or incompetent person

Challenges to Right to Register (sec. 18, RA 8189)

Q: Are there limitations to a persons right to register?

A: Yes. The right to register to vote is not an absolute right but more of a privilege with limitations imposed by law. Th

COMELEC may motu propio or upon application of any voter challenging the right to register deny a persons registrat

application. The Court (MTC), through inclusion or exclusion proceedings, may also limit a persons right to register.

WHO CAN CHALLENGE: any voter, candidate or representative of a registered political party

WHAT: challenge to right to register in writing, under oath, attached to the application together with proof of notice o

to the challenger and applicant

Exclusion and Inclusion Proceedings (Sec. 33)

WHERE: MTC (EOJ), who shall determine the right of voter to be included or excluded in the list; decide within 10 days

APPEAL: within 5 days from judgment to the RTC who shall decide the issue within 10 days

NO MOTION FOR RECONSIDERATION (Summary)

PROCEDURE: (Sec. 32)

1. file during office hours

2. notice of place, date, time of hearing to the Board and the challenged voter

3. refer to one precinct and Board impleaded as respondent

4. no costs, EXCEPT: if it is found that the case was filed to harass the adverse party

5. if the ground for challenging right to register is the person is fictitious, the non-appearance of such person

be fictitious shall be considered as prima facie evidence

6. decide within 10 days for both MTC and RTC upon appeal; should not be later than 15 days before the elec

Nature and effect of proceedings: No Res Judicata

Domino vs. COMELEC, G.R. No. 134015, July 19, 1999

Domino is running for representative of Province of Sarangani but is disqualified for lack of compliance with the 1-yr. r

requirement. Before this, Domino was declared by the Metropolitan Trial Court of Quezon City in an exclusion procee

he was a resident of Sarangani and not of Quezon City. Domino contends that the MTC decision is conclusive upon the


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COMELEC. But the Supreme Court held otherwise because any fact established in an inclusion or exclusion proceedings only

applies to that election and not to elections thereafter held. The decision of the MTC does not preclude the COMELEC, in the

determination of the candidates qualification, 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. xxx Although the court

in inclusion or exclusion proceedings may pass upon any question necessary to decide the issue raised including the question

of citizenship and residence of the challenged voter, the authority to order the inclusion 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 further action that a party may take

concerning the s ubject passed upon in the proceeding. 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.

Lambino vs. COMELEC

G.R. No. 174153, Oct. 25, 2006

Requirements for Initiative Petition

Constitutional Amendment vs. Constitutional Revision

Tests to determine whether amendment or revision

FACTS:

The Lambino Group commenced gathering signatures for an initiative petition to change the 1987 Constitution and then filed a

petition with COMELEC to hold a plebiscite for ratification under Sec. 5(b) and (c) and Sec. 7 of RA 6735. The proposed changes

under the petition will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government.

COMELEC did not give it due course for lack of an enabling law governing initiative petitions to amend the Constitution,

pursuant to Santiago v. Comelec ruling.

ISSUES:

Whether or not the proposed changes constitute an amendment or revision

Whether or not the initiative petition is sufficient compliance with the constitutional requirement on direct proposal by the

people

RULING:

Initiative petition does not comply with Sec. 2, Art. XVII on direct proposal by people

Sec. 2, Art. XVII...is the governing provision that allows a peoples initiative to propose amendments to the Constitution. While

this provision does not expressly state that the petition must set forth the full text of the proposed amendments, the

deliberations of the framers of our Constitution clearly show that: (a) the framers intended to adopt relevant American

jurisprudence on peoples initiative; and (b) in particular, the people must first see the full text of the proposed amendments

before they sign, and that the people must sign on a petition containing such full text.

The essence of amendments directly proposed by the people through initiative upon a petition is that the entire proposal on

its face is a petition by the people. This means two essential elements must be present.

2 elements of initiative

First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf.

Second, as an initiative upon a petition, the proposal must be embodied in a petition.

These essential elements are present only if the full text of the proposed amendments is first shown to the people wh

their assent by signing such complete proposal in a petition. The full text of the proposed amendments may be either

on the face of the petition, or attached to it. If so attached, the petition must stated the fact of such attachment. This

assurance that everyone of the several millions of signatories to the petition had seen the full text of the proposed

amendments before not after signing.

Moreover, an initiative signer must be informed at the time of signing of the nature and effect of that which is propo

failure to do so is deceptive and misleading which renders the initiative void.

In the case of the Lambino Groups petition, theres not a single word, phrase, or sentence of text of the proposed cha

the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. The

signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the Unic

Parliamentary system of government. The signature sheet does not show to the people the draft of the proposed cha

before they are asked to sign the signature sheet. This omission is fatal.

An initiative that gathers signatures from the people without first showing to the people the full text of the proposed

amendments is most likely a deception, and can operate as a gig antic fraud on the people. Thats why the Constitution

that an initiative must be directly proposed by the people x x x in a petition - meaning that the people must sign on a

that contains the full text of the proposed amendments. On so vital an issue as amending the nations fundamental la

writing of the text of the proposed amendments cannot be hidden from the people under a general or special power o

attorney to unnamed, faceless, and unelected individuals.

The initiative violates Section 2, Article XVII of the Constitution disallowing revision through initiatives

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congre

three-fourths vote of all its Mem bers. The second mode is through a constitutional convention. The third mode is thro

peoples initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to any amendment to, or revision of, this

Constitution. In contrast, Section 2 of Article XVII, referring to the third mode, applies only to amendments to this

Constitution. This distinction was intentional as shown by the deliberations of the Constitutional Commission. A peop

initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contr

Congress or a constitutional convention can propose both amendments and revisions to the Constitution.

Does the Lambino Groups initiative constitute a revision of the Constitution?

Yes. By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary s

involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a

not a mere amendment.

Amendment vs. Revision

Courts have long recognized the distinction between an amendment and a revision of a constitution. Revision broadly

change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system

checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the

affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds

or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitutio

amendment generally affects only the specific provision being amended.

Where the proposed change applies only to a specific provision of the Constitution without affecting any other section

article, the change may generally be considered an amendment and not a revision. For example, a change reducing th

age from 18 years to 15 years is an amendment and not a revision. Similarly, a change reducing Filipino ownership of m

media companies from 100% to 60% is an amendment and not a revision. Also, a change requiring a college degree as

additional qualification for election to the Presidency is an amendment and not a revision.


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The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific

provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances

among or within the three branches.

However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one

sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word republican

with monarchic or theocratic in Section 1, Article II of the Constitution radically overhauls the entire structure of

government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined

case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully

crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with

recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but

also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies likeconstituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow peoples

initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only

amendments and not revisions.

Tests to determine whether amendment or revision

In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution,

courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the

proposed change is so extensive in its provisions as to change directly the substantial entirety of the constitution by the

deletion or alteration of numerous existing provisions. The court examines only the number of provisions affected and does

not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether

the change will accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.

Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, a change in the nature of

[the] basic governmental plan includes change in its fundamental framework or the fundamental powers of its Branches. A

change in the nature of the basic governmental plan also includes changes that jeopardize the traditional form of government

and the system of check and balances.

Under both the quantitative and qualitative tests, the Lambino Groups initiative is a revision and not merely an amendment.

Quantitatively, the Lambino Groups proposed changes overhaul two articles - Article VI on the Legislature and Article VII on

the Executive - affecting a total of 105 provisions in the entire Constitution. Qualitatively, the proposed changes alter

substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral

legislature.

A change in the structure of government is a revision

A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of

government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift

from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution.

Merging the legislative and executive branches is a radical change in the structure of government. The abolition alone of the

Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the

Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the

legislature and constitutes a revision of the Constitution.

The Lambino Group theorizes that the difference between amendment and revision is only one of procedure, not of substance.

The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes

are called revisions because members of the deliberative body work full-time on the changes. The same substantive changes,

when proposed through an initiative, are called amendments because the changes are made by ordinary people who do not

make an occupation, profession, or vocation out of such endeavor. The SC, however, ruled that the express intent of the

framers and the plain language of the Constitution contradict the Lambino Groups theory. Where the intent of the framers

and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent an

language.

MACALINTAL vs COMELEC

Petitioner Romulo B. Macalintal, a member of the Philippine Bar, sought to declare certain provisions of Republic Act N

entitled, "An Act Providing for A System of Overseas Absentee Voting by Q ualified 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

resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months imm

preceding an election. Petitioner cited the ruling of the Court in Caasi vs. Court of Appeals to support his claim. In that

Court held that a "green card" holder immigrant to the United States is deemed to have abandoned his domicile and r

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 Aof the Constitution is an exception to the residency requirement found in Section 1 of the same Article. Ordinarily, an a

is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee. However, und

existing election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains att

his residence in the Philippines as residence is considered synonymous with domicile. Aware of the domiciliary legal ti

links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstance

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.

precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest numbe

qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to p

system for overseas absentee voting. The Court, however, declared certain provisions of the law unconstitutional, nam

portions of Secs. 17.1, 19 and 25, as they trampled on the constitutional mandate of independence of the Commission

Elections. The Court also upheld Section 18.5 of R.A. No. 9189 with respect only to the authority given to the COMELE

proclaim the winning candidates for Senators and party-list representatives but not as to the power to canvass the vot

proclaim the winning candidates for President and Vice-President which

elections and the right to vote.docx

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