Tuesday, January 5, 2010

Nicholas-Lewis vs Comelec

Chester Cabalza recommends his visitors to please read the original & full text of the case cited. Xie xie!

Nicholas-Lewis v. Comelec
G.R. No. 162759, August 4, 2006


Petitioners are successful applicants for recognition of Philippine citizenship under R.A. 9225 which accords to such applicants the right of suffrage, among others. Long before the May 2004 national and local elections, petitioners sought registration and certification as "overseas absentee voter" 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. The same letter, however, urged the different Philippine posts abroad not to discontinue their campaign for voter’s registration, as the residence restriction adverted to would contextually affect merely certain individuals who would likely be eligible to vote in future elections.

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 this petition for certiorari and mandamus.

On May 10, 2004 elections, or on April 30, 2004, the COMELEC filed a Comment, therein praying for the denial of the petition. As may be expected, petitioners were not able to register let alone vote in said elections.

On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in Lieu of Comment), therein 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. The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the petition moot and academic, but insofar only as petitioners’ participation in such political exercise is concerned. The broader and transcendental issue tendered or subsumed in the petition, i.e., the propriety of allowing “duals” to participate and vote as absentee voter in future elections, however, remains unresolved.


Whether the petitioners and others who have retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter under R.A. 9189?


The Court resolves the poser in the affirmative, and thereby accords merit to the petition.

In a nutshell, Section 1 of Article V of the Constitution 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. Section 5 lists those who cannot avail themselves of the absentee voting mechanism. However, Section 5(d) of the enumeration respecting Filipino immigrants and permanent residents in another country opens an exception and qualifies the disqualification rule. Section 5(d) would, however, face a constitutional challenge on the ground. As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189.

Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress enacted R.A. 9225. After what appears to be a successful application for recognition of Philippine citizenship under R.A. 9189, petitioners now invoke their right to enjoy political rights, specifically the right of suffrage, pursuant to Section 5 thereof.

As may be noted, 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.

Accordingly, the Court rules and so holds that those who retain or re acquire Philippine citizenship under Republic Act No. 9225, the Citizenship Retention and Re Acquisition Act of 2003, may exercise the right to vote under the system of absentee voting in Republic Act No. 9189, the Overseas Absentee Voting Act of 2003.

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