Tag: Overseas Absentee Voting

Overseas Absentee Voting: Protecting Free Speech in Philippine Elections

The Supreme Court has affirmed the fundamental right to free speech for Filipinos abroad during overseas voting periods. This decision strikes down Section 36.8 of Republic Act No. 9189, as amended, which broadly prohibited any person from engaging in partisan political activity abroad during the 30-day overseas voting period. The Court recognized that while the government has a duty to ensure fair elections, this cannot come at the cost of suppressing constitutionally protected expression.

Global Voices, Constrained Choices: Did Overseas Voting Ban Silence Filipinos Abroad?

This case arose from concerns that Section 36.8 of R.A. No. 9189, as amended by R.A. No. 10590, and Section 74(II)(8) of COMELEC Resolution No. 10035, unduly restricted the freedom of speech, expression, and assembly of overseas Filipino voters. Loida Nicolas-Lewis, a dual citizen and voter, challenged these provisions, arguing they prevented her and others from conducting information campaigns and rallies in support of their chosen candidates. The core legal question before the Supreme Court was whether this prohibition was a justifiable restriction on fundamental rights or an unconstitutional curtailment of free expression.

The Court began its analysis by emphasizing the delicate balance between protecting constitutional rights and upholding the integrity of the electoral process. It acknowledged the importance of safeguarding the right to free speech, expression, and assembly, while also recognizing the State’s duty to ensure honest and orderly elections. The challenge, therefore, was to find a legally sound and pragmatic balance between these paramount interests. The concept of justiciable controversy was central to the Court’s decision to hear the case. This means there must be an existing conflict of legal rights subject to judicial resolution, not merely a hypothetical dispute. The Court found that the allegations presented a prima facie case of grave abuse of discretion, compelling it to address the constitutional issue.

The Court then delved into the nature of the restriction imposed by Section 36.8 of R.A. No. 9189. It distinguished between content-based and content-neutral regulations of speech. Content-based regulations target the subject matter of the speech, while content-neutral regulations focus on the time, place, or manner of expression, irrespective of its message. This distinction is crucial because different tests apply to each type of regulation. Content-based restrictions are subject to strict scrutiny, while content-neutral restrictions are evaluated under intermediate scrutiny.

In this case, the Court classified Section 36.8 as a content-neutral regulation because it restricts partisan political activity during a specific period and location (abroad during the 30-day overseas voting period), without targeting the content of the message itself. This classification meant the restriction would be evaluated under the intermediate scrutiny test. This test requires that the regulation (1) be within the constitutional power of the government, (2) further an important or substantial governmental interest, (3) have a governmental interest unrelated to the suppression of free expression, and (4) impose an incidental restriction on freedom of expression that is no greater than necessary to further that interest. The fourth criterion proved to be the regulation’s undoing.

The Court found that Section 36.8 failed the fourth prong of the intermediate scrutiny test. The prohibition was deemed overly broad because it restricted partisan political activity without qualification, encompassing all locations abroad, regardless of whether they posed a threat to the integrity of the election. The Court reasoned that the perceived danger to the electoral process primarily exists within premises where voting is conducted, such as embassies and consulates. Therefore, restricting political activity beyond these areas was deemed excessive. The Court stated:

The failure to meet the fourth criterion is fatal to the regulation’s validity as even if it is within the Constitutional power of the government agency or instrumentality concerned and it furthers an important or substantial governmental interest which is unrelated to the suppression of speech, the regulation shall still be invalidated if the restriction on freedom of expression is greater than what is necessary to achieve the invoked governmental purpose.

The Court also addressed the argument that the prohibition should apply only to candidates. It pointed out that the law’s language, using the term “any person,” was too broad to be limited to candidates alone. This overbreadth contributed to a chilling effect on protected speech, as individuals might refrain from engaging in any political activity to avoid potential penalties. Moreover, the Implementing Rules and Regulations (IRR) of the law failed to clarify the scope of the prohibition, further exacerbating the ambiguity. The sweeping nature of the law and its IRR led the Court to conclude that a facial invalidation was warranted.

Moreover, the decision references Generalia verba sunt generaliter inteligencia, meaning that general words are understood in a general sense. Unless there is a manifestation of contrary intent, the words used in the law must be given their ordinary meaning. The Court pointed to the fact that the word “abroad” was not qualified to any particular location, therefore the prohibition was applicable to any and all locations abroad. Even the Implementing Rules and Regulations (IRR) failed to make any qualifications to the general application.

The Court emphasized that while ensuring honest elections is a laudable goal, it cannot justify sacrificing fundamental rights when the aim can be achieved through narrower means. It highlighted the importance of freedom of expression as a cornerstone of democracy and cautioned against statutes that unduly curtail this right. The ruling underscored that any restrictions on free speech must be carefully tailored to address specific harms, avoiding unnecessary suppression of protected expression. The Court emphasized the chilling effect that an overbroad statute such as this had, potentially silencing participation in the political process.

The Court ultimately declared Section 36.8 of R.A. No. 9189, as amended by R.A. No. 10590, unconstitutional for violating Section 4, Article III of the 1987 Constitution, which guarantees freedom of speech. The temporary restraining order issued earlier was made permanent and extended to all Philippine Embassies, Consulates, and other posts where overseas voters may exercise their right to vote. The ruling allows Filipinos living abroad to fully participate in political discourse, fostering a more vibrant and informed electorate.

This case serves as a reminder that safeguarding freedom of expression is essential to a functioning democracy. While the government has a legitimate interest in maintaining order and integrity in elections, it must pursue this interest through means that are narrowly tailored and do not unduly infringe upon fundamental rights. In situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom.

FAQs

What was the key issue in this case?	The central issue was whether Section 36.8 of R.A. No. 9189, as amended, which prohibits partisan political activity abroad during the overseas voting period, is constitutional given the right to freedom of speech.
What is partisan political activity, according to the law?	Partisan political activity includes forming groups to solicit votes, holding political rallies, making speeches for or against candidates, publishing campaign literature, and directly or indirectly soliciting votes.
Why did the Supreme Court declare Section 36.8 unconstitutional?	The Court found the provision to be overly broad, violating the free speech clause under Section 4, Article III of the 1987 Constitution, as it was not narrowly tailored to achieve its intended purpose and created a chilling effect.
What is the difference between content-based and content-neutral restrictions on speech?	Content-based restrictions regulate speech based on its subject matter, while content-neutral restrictions regulate the time, place, or manner of expression, irrespective of its message.
What test is applied to content-neutral restrictions on speech?	Content-neutral restrictions are subject to intermediate scrutiny, which requires that the regulation furthers an important governmental interest and the restriction is no greater than necessary to achieve that interest.
What test is applied to content-based restrictions on speech?	Content-based restrictions are subject to strict scrutiny, which requires a compelling government interest and that the restriction be narrowly tailored to achieve that interest.
What was the effect of the Court’s ruling?	The Court’s ruling struck down Section 36.8, allowing Filipinos abroad to engage in partisan political activities during the overseas voting period, subject to other lawful restrictions.
What does the overbreadth doctrine mean in the context of free speech?	The overbreadth doctrine means that a law may be struck down if it unnecessarily restricts even constitutionally-protected rights while attempting to regulate conduct that is subject to state regulation.
What is meant by the term chilling effect in terms of free speech?	A “chilling effect” refers to the inhibition or discouragement of the legitimate exercise of constitutional rights, particularly freedom of speech, due to the vagueness or overbreadth of a law.

The Supreme Court’s decision reinforces the importance of safeguarding freedom of expression, especially during elections, while balancing it with the State’s interest in ensuring honest and orderly electoral processes. The ruling clarifies that restrictions on political activities must be narrowly tailored and avoid unnecessary suppression of protected speech.

For inquiries regarding the application of this ruling to specific circumstances, please contact ASG Law through contact or via email at frontdesk@asglawpartners.com.

August 14, 2019

Dual Citizens’ Right to Vote: Reconciling Residency with Absentee Voting

The Supreme Court ruled that Filipinos who reacquire citizenship under Republic Act No. 9225 (the Citizenship Retention and Re-Acquisition Act of 2003) can vote as overseas absentee voters under Republic Act No. 9189 (the Overseas Absentee Voting Act of 2003). The Court reconciled the residency requirements in the Constitution with the absentee voting provisions, clarifying that dual citizens are not required to establish residency in the Philippines to exercise their right to vote. This decision ensures that Filipinos abroad, who have retained or reacquired citizenship, can participate in Philippine elections without needing to reside in the country, upholding their right to suffrage.

Can “Duals” Vote? Navigating Citizenship, Residency, and the Ballot Box

The core issue in Loida Nicolas-Lewis vs. COMELEC revolves around the right of suffrage for Filipinos with dual citizenship. Petitioners, who had successfully reacquired Philippine citizenship under R.A. 9225, sought to register as overseas absentee voters. The Commission on Elections (COMELEC) initially denied their request, citing the constitutional residency requirement. This prompted the petitioners to seek judicial intervention, questioning whether the COMELEC’s interpretation unduly restricted their right to vote as dual citizens.

The legal framework governing this issue involves several key provisions. Section 1, Article V of the Constitution generally requires voters to have resided in the Philippines for at least one year and in the place where they propose to vote for at least six months. However, Section 2 of the same article authorizes Congress to create a system for absentee voting by Filipinos abroad. Implementing this mandate, Congress enacted R.A. 9189, the Overseas Absentee Voting Act. Later, R.A. 9225 allowed natural-born Filipinos who become citizens of another country to reacquire or retain their Philippine citizenship.

The COMELEC argued that while R.A. 9225 grants dual citizens political rights, it also requires them to meet the residency requirements outlined in the Constitution. The agency posited that dual citizens who had previously renounced their Filipino citizenship must re-establish their domicile in the Philippines before being eligible to vote. This interpretation effectively barred dual citizens residing abroad from participating in elections under the overseas absentee voting system. However, the Supreme Court disagreed, finding the COMELEC’s interpretation too restrictive.

The Supreme Court emphasized that R.A. 9225 does not require dual citizens to establish residency in the Philippines before exercising their right to vote. Instead, the Court reconciled R.A. 9225 with R.A. 9189, noting that the latter law aims to enfranchise overseas Filipinos who, apart from residency, are qualified to vote. The Court referenced its earlier ruling in Macalintal vs. COMELEC, which affirmed that Section 2 of Article V of the Constitution provides an exception to the residency requirement for qualified Filipinos abroad. To deny dual citizens the right to vote under these circumstances would undermine the intent of the law.

Moreover, the Court noted that the intent of the Constitution and R.A. 9189, as expanded by R.A. 9225, is to allow “duals” to exercise their right to suffrage through the absentee voting scheme, classifying them as overseas absentee voters. Here’s how the decision aligns the legal landscape:

Legal Provision	Description
Constitution, Article V, Section 1	Sets general residency requirements for voting.
Constitution, Article V, Section 2	Authorizes Congress to create absentee voting system for Filipinos abroad.
R.A. 9189 (Overseas Absentee Voting Act)	Implements absentee voting, enfranchising qualified Filipinos abroad.
R.A. 9225 (Citizenship Retention Act)	Allows natural-born Filipinos to retain or reacquire citizenship, expanding the scope of absentee voting to include dual citizens.

The Court considered the derivative citizenship provision in R.A. 9225, which extends citizenship to unmarried children below eighteen years of age. Many of these individuals may never have resided in the Philippines. If these individuals can enjoy full civil and political rights, then there is no reason to deny the same right of suffrage to adult “duals” who meet the requirements under Section 1, Article V of the Constitution, in relation to R.A. 9189. Such a situation would be illogical and contrary to the intent of the law.

FAQs

What was the key issue in this case?	The key issue was whether Filipinos who reacquired citizenship under R.A. 9225 could vote as overseas absentee voters without meeting the standard residency requirements.
What is R.A. 9225?	R.A. 9225, also known as the Citizenship Retention and Re-Acquisition Act, allows natural-born Filipinos who become citizens of another country to reacquire or retain their Philippine citizenship.
What is R.A. 9189?	R.A. 9189, also known as the Overseas Absentee Voting Act, implements a system for qualified Filipinos abroad to vote in Philippine elections.
Does this ruling require dual citizens to reside in the Philippines to vote?	No, the Supreme Court clarified that dual citizens are not required to establish residency in the Philippines to exercise their right to vote under the overseas absentee voting system.
Who are considered overseas absentee voters?	Overseas absentee voters are citizens of the Philippines qualified to register and vote under R.A. 9189, who are abroad on the day of the elections and not otherwise disqualified by law.
What rights do dual citizens have under R.A. 9225?	Under R.A. 9225, those who retain or reacquire Philippine citizenship enjoy full civil and political rights, subject to certain conditions and limitations as specified in the law.
Can children of dual citizens also claim Philippine citizenship?	Yes, Section 4 of R.A. 9225 provides for derivative citizenship, granting Philippine citizenship to unmarried children below eighteen years of age whose parents reacquire Philippine citizenship.
What was the COMELEC’s argument in this case?	The COMELEC argued that dual citizens must re-establish their domicile in the Philippines to vote, based on the residency requirements in the Constitution.
How did the Supreme Court reconcile the conflicting laws?	The Supreme Court reconciled the laws by stating that the intent of Section 2, Article V of the Constitution, along with R.A. 9189 and R.A. 9225, allows overseas absentee voting as an exception to the standard residency requirements.

This landmark decision reinforces the right to suffrage for dual citizens, enabling them to participate in Philippine elections from abroad without the prerequisite of residing in the Philippines. By harmonizing the relevant constitutional and statutory provisions, the Supreme Court has affirmed the inclusive intent of the law to enfranchise as many qualified Filipinos as possible, regardless of their residency status.

For inquiries regarding the application of this ruling to specific circumstances, please contact ASG Law through contact or via email at frontdesk@asglawpartners.com.

August 4, 2006

Safeguarding Suffrage: Examining Residency and Congressional Oversight in Overseas Voting

The Supreme Court partly granted Atty. Macalintal’s petition, affirming the right to absentee voting for qualified Filipinos abroad while ensuring electoral integrity. The Court upheld Section 5(d) of R.A. No. 9189 but struck down provisions granting Congress oversight over COMELEC’s rules, preserving the independence of the electoral process. The decision clarifies the balance between facilitating overseas voting and upholding constitutional requirements, emphasizing that while Congress can legislate, it cannot control the implementation of election laws, ensuring a more transparent and independent electoral system.

Beyond Borders: Can Absentee Voters Bypass Residency Rules?

This case, Atty. Romulo B. Macalintal v. Commission on Elections, questions the constitutionality of the Overseas Absentee Voting Act of 2003. The central issue is whether certain provisions of the law, particularly those concerning residency requirements and congressional oversight, infringe upon the constitutional rights and independence of the Commission on Elections (COMELEC).

At the heart of the controversy is Section 5(d) of the Act, which allows Filipinos who are immigrants or permanent residents in other countries to register as voters by simply executing an affidavit declaring their intention to return to the Philippines. This provision is challenged as a violation of Section 1, Article V of the Constitution, which requires voters to be residents of the Philippines for at least one year and in the place where they propose to vote for at least six months immediately preceding the election. The petitioner argues that by merely executing an affidavit, the law effectively circumvents the residency requirement, granting suffrage to those who have abandoned their domicile in the Philippines. The respondent argues that Section 2, Article V of the Constitution gives Congress the power to legislate to enfranchise qualified Filipinos abroad, which is a distinct directive from the qualifications provided for in Section 1, Article V.

The resolution of this issue hinges on the interpretation of key provisions in the Constitution and the extent to which Congress can legislate to enfranchise overseas Filipinos without undermining the residency requirements. The Court acknowledged the importance of harmonizing the pertinent provisions of the Constitution and of RA 9189. The court emphasized in Chiongbian vs. De Leon that a constitutional provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document.

As the essence of RA 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view of the pertinent provisions of both the Constitution and RA 9189. In short, the Court is mandated to resolve any doubt as to the inapplicability of the residency requirement in section 1.

The majority opinion stresses the discussions of the members of the Constitutional Commission. As the Constitution is the fundamental and paramount law of the nation to which all other laws must conform, laws that do not conform to the Constitution shall be stricken down for being unconstitutional.

There were other provisions of RA 9189 were questioned. First, is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of Section 4, Article VII of the Constitution? Petitioner claims that the 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 which gives to Congress the duty to canvass the votes and proclaim the winning candidates for president and vice-president.

Second, Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the Constitution? He submits that the 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; that 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.

The Court partially granted the petition, declaring that the creation of the Joint Congressional Oversight Committee (JCOC) vis-à-vis the independence of the COMELEC, as a constitutional body. R.A. No. 9189 created the JCOC, to monitor and evaluate the implementation of the Act. The Court held that it is a basic rule in constitutional construction that the Constitution should be construed as a whole.

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. Thus, the Court may set aside procedural rules as the constitutional right of suffrage of a considerable number of Filipinos is involved.

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. Procedural questions dim in the light of the importance of the constitutional issues raised.

After extensive deliberations, the Court reached a mixed verdict. The key rulings are:

Section 5(d) is constitutional. The Court upheld the constitutionality of Section 5(d), allowing immigrants or permanent residents abroad to vote, provided they execute an affidavit declaring their intent to resume residency in the Philippines within three years. The execution of an 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.

Section 18.5 is partially constitutional. The Court upheld the constitutionality of Section 18.5, but only to the extent that it empowers COMELEC to proclaim winning candidates for Senators and party-list representatives. It clarified that the power to canvass votes and proclaim winners for President and Vice-President remains with Congress, as mandated by the Constitution.

Sections 19 and 25 are unconstitutional. The Court struck down provisions that granted the Joint Congressional Oversight Committee (JCOC) the power to review, revise, amend, and approve the Implementing Rules and Regulations (IRR) promulgated by COMELEC. Such powers were deemed an unconstitutional intrusion into COMELEC’s independence. By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional authority.

The Court’s decision strikes a balance between facilitating the right to vote for overseas Filipinos and safeguarding the integrity of the electoral process. By upholding Section 5(d) with the affidavit requirement, the Court allows immigrants to participate while ensuring a genuine connection to the Philippines. At the same time, by limiting congressional oversight, the Court protects the independence of COMELEC and reinforces the separation of powers. This means that while Congress can legislate on election matters, it cannot unduly control the implementation of election laws.

What was the key issue in this case?	The central issue was whether certain provisions of the Overseas Absentee Voting Act, particularly those concerning residency requirements and congressional oversight, were constitutional. Specifically, the Court examined provisions that allowed immigrants to vote and granted Congress oversight over COMELEC.
What did the Court decide regarding Section 5(d) of the Act?	The Court upheld Section 5(d), which allows Filipino immigrants to vote if they execute an affidavit declaring their intent to resume residency in the Philippines within three years. The affidavit serves as an explicit expression that he had not in fact abandoned his domicile of origin
Did the Court find all parts of the Overseas Absentee Voting Act to be constitutional?	No, the Court found some sections to be unconstitutional. It struck down provisions that gave Congress oversight powers over COMELEC’s implementation of the Act.
Why did the Court strike down certain provisions related to congressional oversight?	The Court held that these provisions violated the constitutional mandate of independence for constitutional commissions like COMELEC. Congress was overstepping its bounds.
Does COMELEC have the power to proclaim the winners of elections under this ruling?	Yes, but only for the positions of Senators and party-list representatives. The power to canvass votes and proclaim the winners for President and Vice-President remains with Congress.
What is the significance of the residency requirement in the Constitution?	The residency requirement ensures that voters have a sufficient connection to the Philippines. This requirement serves as a check against those who have ties to foreign countries.
What happens if a Filipino immigrant does not return to the Philippines within three years?	Under Section 5(d), their name will be removed from the National Registry of Absentee Voters, and they will be permanently disqualified from voting in absentia. This serves as a deterrence which is that the Filipino who fails to return as promised stands to lose his right of suffrage.
What does the Court’s decision mean for Filipino immigrants?	The decision gives Filipino immigrants a chance to participate in Philippine elections, provided they declare their intent to return. However, they must provide a sworn statement of intent to resume to the Philippines.

In conclusion, Macalintal v. COMELEC represents a pivotal moment in Philippine election law, clarifying the scope of overseas absentee voting and the balance of power between different branches of government. It ensures a more democratic and independent electoral system, paving the way for greater participation by Filipinos abroad, while protecting against fraud and abuse.

For inquiries regarding the application of this ruling to specific circumstances, please contact ASG Law through contact or via email at frontdesk@asglawpartners.com.

Disclaimer: This analysis is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please consult with a qualified attorney.
Source: Atty. Romulo B. Macalintal, vs. Commission on Elections, Hon. Alberto Romulo, in his official capacity as Executive Secretary, and Hon. Emilia T. Boncodin, Secretary of the Department of Budget and Management, G.R. No. 157013, July 10, 2003

July 10, 2003