Macalintal v.

COMELEC

1.
2.

Romulo filed a petition for certiorari and prohibition seeking that

certain provisions of RA 9189 [The Absentee Voting Act of 2003]
suffer from constitutional infirmity.
Petitioners raises 3 Principal questions: [ISSUES]
a. Does Section 5[d]1 of RA 9189 violate Sec. 1 Art. 5 of the
Constitution?
b. Is Section 18.5 of RA No. 9189 in relation to Sec. 4 of the
same Act in contravention of Sec. 4 Art. VII of the
Constitution?
c. Are Sec. 19 and 25 of RA No. 9189 in violation of Sec. 1,
Art. IX-A of the Constitution?

HELD:
FIRST ISSUE: Does Section 5[d] of RA 9189 violate Sec. 1 Art. 5 of
the Constitution? No.
PETITONERS CONTENTION:
Petitioner contends that sec. 5[d] is unconstitutional because it
violates section 1 Art. 5 of the Constitution which requires that a
voter must be a resident of the Philippines for at least 1 year and in
the place where he proposes to vote for at least 6 months
immediately preceding the election.
Such constitutional provision does not allow provisional registration
or a promise by a voter to perform a condition to be qualified to
vote in a political exercise.
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 Sec. 1 Art. 5 of the Constitution.
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.
OSGs comment for the COMELEC:
There was an absence of clear and unmistakable showing that sec
5[d] or RA 9189 is repugnant to the Constitution.
o All laws are presumed to be Constitutional

1 Sec. 5. Disqualifications. The following shall be disqualified from voting under

this Act: xxxd) 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.

Sec. 1 Art. 5 of the Constitution verbatim reproduction of 1935

and 1973 Constitutions. Cited Co v. Electoral Tribunal of HRep.
o Court held that the term residence has been understood
to be synonymous with domicile.
A person can only have one domicile but can have two
residences, one permanent [domicile] and the other temporary.
Faypon v. Quirino SolGen maintains that Filipinos who are
immigrants or permanent residents abroad may have in fact never
abandoned their Philippine domicile.

Both Constitutional provision and RA 9189 must be construed as a whole.

SIGNIFICANCE OF ABSENTEE VOTING:
o Method of absentee voting separable and distinct from regular
system of voting. This right of absentee voting is PURELY
STATUTORY.
o Privilege of absentee voting may flow from constitutional provisions
or be conferred by statutes. Such statutes regarded as a privilege
and not a right or an absolute right.
o Ordinarily an absentee is not a resident and vice versa. However,
under our election laws and court pronouncements, an absentee
remains attached to his residence in the Philippines as residence
considered synonymous with domicile.
o In our election law, what has clearly and unequivocally emerged is
the fact that residence for election purposes is used synonymously
with domicile.
Records of Constitutional commission regarding Sec. 2 Art 5 of the
Constitution. [This is the basis or subject of deliberation when RA 9189
was enacted]
o ConCom realized that under the laws then existing and considering
the novelty of the system of absentee voting in, vesting overseas
Filipinos with the right to vote would spawn constitutional
problems, especially because the constitution itself provides for the
residency requirement of voters.
o Sec. 2 Art. 5 of the Constitution came into being to remove any
doubt as to the inapplicability of the residency requirement in Sec.
1 of Art. 5.
o The intent of the ConCom is to entrust to the Congress the
responsibility of devising a system of absentee voting. The
qualifications in Sec. 1 art. 5 shall remain except for the residency
requirement.

Qualified Filipinos Abroad they have the qualifications

and none of the disqualifications to vote.

ConCom intended to enfranchise as much as possible all

Filipino citizens abroad who have not abandoned their
domicile of origin.
By doctrine of necessary implication, the strategic location of Sec. 2
indicates that the Con Com provided for an exception to the actual
residency requirement of Sec. 1 with respect to qualified Filipinos abroad.

 Sec. 4of RA 98192

Does not require physical residency in the Philippines, and Sec. 5 of

the assailed law enumerates who are disqualified.

Sec.5 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
ones 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.

Contrary to the claim of petitioner, the execution of the affidavit

itself is not the enabling or enfranchising act. It serves as an
explicit expression that he had not in fact abandoned his domicile
of origin.

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.
SECOND ISSUE: Is Section 18.5 of RA No. 9189 in relation to
Sec. 4 of the same Act in contravention of Sec. 4 Art. VII of the
Constitution? Yes. But only with respect to the canvassing of
votes and proclaiming the winning candidates as to Vice
President and President.

Petitioner: 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 provisions of paragraph 4,
Section 4 of Article VII of the Constitution which gives to Congress
the duty to canvass the votes and proclaim the winning candidates
for president and vice-president.
OSG: 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.

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.

2 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.

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.
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.

THIRD ISSUE: Are Sec. 19 and 25 of RA No. 9189 in violation of

Sec. 1, Art. IX-A of the Constitution? YES.

PETITIONER: 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;
o 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.
COMELEC: Agrees with the petitioner that Secs. 19 and 25 of RA
9189 are unconstitutional. It added that Sec. 17 of the same Law is
likewise unconstitutional as it violates the independence of
Constitutional Commissions.
OSG: agrees that Sec. 19 and 25 are unconstitutional
No actual issue
Composed of Senators and Members of the House of
Representatives, the Joint Congressional Oversight Committee
(JCOC) is a purely legislative body.
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.
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.
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.
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.
Sec. 17 unconstitutional as well.