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NICOLAS LEWIS V.

COMELEC
FACTS:
1. Petitioners are successful applicants for recognition
under RA 9225 (Citizenship Retention and ReAcquisition Act of 2003), which accords applicants the
right of suffrage.
2. Long before May 2004 elections, petitioners sought
registration and certification as overseas absentee
voter under RA 9189 (Overseas Absentee Voting Act)
only to be advised by the Philippine Embassy in the US
(thru a COMELEC letter) that:
a. That they have yet no right to vote in such
elections owing to their lack of 1 year residence
requirement prescribed in the Constitution.
b. However, the same letter urged different
Philippines posts abroad not to discontinue their
campaign for voters registration.
3. Nicolas-Lewis asked for clarification on the reisidency
requirement and the COMELEC responded:
a. Those who availed of RA 9225 cannot exercise
the right of suffrage given under OAVL (RA
9189) for the reason that the OAVL was not
enacted for them.
b. Hence, as Filipinos who have merely re-acquired
their citizenship on 18 Septmeber 2003 at the
earliest, and as law and jurisprudence now
stand, they are considered regular voters who
have to meet the requirements of residency,
among others under Sec 1, Art 5 of the
Constitution.
4. Petitioner filed petition for certiorari and mandamus for
them to be included in the National Registry of
Absentee Voters.
5. COMELEC filed a comment, denying the petition. As
may be expected, they werent able to vote.
6. OSG filed a Manifestation in lieu of the comment,
stating that all qualified overseas Filipinos, including
dual citizens who care to exercise the right of suffrage,
may do so, however, the 2004 elections had rendered
the petition moot and academic.

7. BUT, although it is moot and academic as to the 2004


elections, the issue is still unresolved.
ISSUE: WON petitioners and others who might have
meanwhile retained or acquired Philippine Citizenship
pursuant to RA 9225 may vote as absentee voter under RA
9189?
YES.
HELD:
1. In esse, the case is all about suffrage. The constitution
(Art 5, sec1 & 2) provides the following:
a. Sec 1 - Suffrage may be exercised by all citizens
of the Philippines not otherwise disqualified by
law, who are at least 18 years of age, who shall
have resided in the PH for at least one year
and in the place wherein they propose to vote
for at least 6 months.
b. Sec 2 - The congress shall provide a system for
absentee voting by qualified Filipinos abroad.
c. Sec 1 prescribes residency requirement as a
general eligibility factor the right to vote. On the
other hand, Sec. 2 authorizes Congress to
devise a system wherein a non-resident may
as
an
exception
to
the
residency
prescription shall be allowed to vote.
2. Under Sec 5(d) of RA 91891(disqualification of voters)
respecting Filipino immigrants and permanent
residents in another country opens an exception
and qualifies the disqualification rule.
3. In the case of Macalintal, it said that Sc5(d) violates
the constitution which requires the residency for at
least one year; that the legislature should not be
allowed to circumvent the requirement to qualify a
Filipino abroad to vote.

An immigrant or a permanent resident who is recognized as such in the host country, unless he/she
executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she
shall resume actual physical permanent residence in the Philippines not later than three (3) years from
approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for
citizenship in another country. Failure to return shall be the cause for the removal of the name of the
immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia

4. HOWEVER, the court upheld the constitutionality of


Sec5(d) of RA 9189 ratiocinating that if actual physical
residence is required, there is no sense for the framers
of the Constitution to mandate Congress to establish a
system for absentee voting.
a. That the affidavit required in Sec 5(d) is not only
proof of the intention of the immigrant or
permanent resident to go back and resume
residency in the PH, but more significantly, it
serves as an explicit expression that he had not
in fact abandoned his domicile.
b. So it is not correct to say that the affidavit is an
enabling act.
5. After the enactment of RA 9189, Congress enacted RA
9225 which under Sec 5 of the latter law enumerates
the Civil and Political Rights and Liabilites which
provided that those intending to exercise their right to

suffrage must meet the requirements under the


Constitution, RA 9189, and other existing laws.
6. COMELEC however argues that Duals must first
establish their domicile/residence in the Philippines.
The court disagrees:
a. There is no provision in RA 9225 requiring duals
to actually establish residence and physically
stay in the PH first before they can exercise their
right to vote.
b. RA 9225 implicitly acknowledged, that duals are
most likely non-residents, and grants the same
right of suffrage as that granted an Absentee
voter under RA 9189.
7. RA 9189 aims to enfranchise as much as possible all
Filipino citizens abroad who have not abandoned their
domicile of origin.
DISPOSITIVE: Granted.