Nicolas-Lewis vs Comelec

NICOLAS-LEWIS vs. COMELEC

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

Facts:

Petitioners are successful applicants for recognition of Philippine citizenship under R.A. 9225, the Citizenship Retention and Re‑Acquisition Act of 2003. Long before the May 2004 national and local elections, petitioners sought registration and certification as "overseas absentee voter" only to be advised by the Philippine Embassy in the United States that, per a COMELEC letter to the Department of Foreign Affairs dated September 23, 2003, they have yet no right to vote in such elections owing to their lack of the one-year residence requirement prescribed by the Constitution.

Faced with the prospect of not being able to vote in the May 2004 elections owing to the COMELEC's refusal to include them in the National Registry of Absentee Voters, petitioner Nicolas-Lewis et al., filed on April 1, 2004 a petition for certiorari and mandamus, praying that they and others who retained or reacquired Philippine citizenship under No. 9225, be allowed to avail themselves of the mechanism provided under the Overseas Absentee Voting Act of 2003 (R.A. 9189) and that the COMELEC accordingly be ordered to allow them to vote and register as absentee voters under the aegis of R.A. 9189.

On April 30, 2004 (a little over a week before Election Day), COMELEC filed a Comment praying for the denial of the petition. Consequently, petitioners were not able to register let alone vote in said elections.

On May 20, 2004, the OSG filed a Manifestation (in Lieu of Comment) stating that “all qualified overseas Filipinos, including dual citizens who care to exercise the right of suffrage, may do so,” observing, however, that the conclusion of the 2004 elections had rendered the petition moot and academic.

Issues: 

1. Must the Supreme Court still resolve said petition considering that under the circumstances the same has already been rendered moot and academic?

2. WON dual citizens may exercise their right to suffrage as absentee voters even short of the 1-yr residency requirement.

Held: 

1. Yes. The holding of the 2004 elections had indeed rendered the petition moot and academic, but only insofar as petitioners’ participation in such political exercise is concerned. The broader and transcendental issue tendered in the petition is the propriety of allowing dual citizens to participate and vote as absentee voter in future elections, which however, remains unresolved.

2. Yes. We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading 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. xxx.

SEC 2. The Congress shall provide … a system for absentee voting by qualified Filipinos abroad.

  

In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general eligibility factor for the right to vote. On the other hand, Section 2 authorizes Congress to devise a system wherein an absentee may vote, implying that a non‑resident may, as an exception to the residency prescription in the preceding section, be allowed to vote.

In response to its above mandate, Congress enacted R.A. 9189 - the OAVL - identifying in its Section 4 who can vote under it and in the following section who cannot.

Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress enacted R.A. 9225 the relevant portion of which reads:

SEC. 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

(1)  Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as “The Overseas Absentee Voting Act of 2003” and other existing laws; xxx

There is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote.  On the contrary, R.A. 9225, in implicit acknowledgment that “duals” are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote.

Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the scope of that law with the passage of R.A. 9225, the irresistible conclusion is that "duals" may now exercise the right of suffrage thru the absentee voting scheme and as overseas absentee voters. R.A. 9189 defines the terms adverted to in the following wise:

            

“Absentee Voting” refers to the process by which qualified citizens of the Philippines abroad exercise their right to vote;

“Overseas Absentee Voter” refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections;

 While  perhaps  not  determinative  of  the  issue  tendered  herein, we note  that the expanded thrust of R.A. 9189 extends also to what might be tag as the next generation of "duals". This may be deduced from the inclusion of the provision on derivative citizenship in R.A. 9225 which reads:

SEC. 4. Derivative Citizenship. – The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines.

It  is  very  likely  that   a   considerable   number  of  those  unmarried  children  below  eighteen  (18)  years  of  age  had  never  set foot in the Philippines.  Now then, if the next generation of "duals" may nonetheless avail themselves the right to enjoy full civil and political rights under Section 5 of the Act, then there is neither no rhyme nor reason why the petitioners and other present day "duals," provided they meet the requirements under Section 1, Article V of the Constitution in relation to R.A. 9189, be denied the right of suffrage as an overseas absentee voter. Congress could not have plausibly intended such absurd situation.