Who is the overseas absentee voter?

E·N·Q·U·I·R·Y
DEMAREE J.B. RAVAL

Who is the overseas absentee voter?
Sunday, 11 24, 2002

A major point of disagreement between the version of the Senate and that of the House of Representatives on the Absentee Voting Law (AVL) is the coverage, that is, who among the overseas Filipinos are eligible to vote.

The Senate version extends the right to vote to a citizen of the Philippines who is abroad at the time of election. The House version expressly excludes an “immigrant of the country where he resides.”

As the Senate and the House panels go to the bicameral conference committee this week, the conferees will surely have a lot of discussions to reconcile these two provisions affecting about 2.74 million potential voters spread across the globe, a majority of them in the United States.

For one thing, the constitutional provision of absentee voting does not specifically disqualify immigrants and permanent residents. It simply states that Congress shall provide a system for absentee voting by qualified Filipinos abroad (Section 2, Article V, Constitution). Granting the right to vote to all Filipino citizens abroad under the Senate version is more in consonance with the letter and spirit of the constitutional mandate.

As long as one remains a Filipino citizen, his residency status abroad should not be used as a determining factor in the exercise of his absentee voting right. After all, it is the spirit of the Constitution to enfranchise all qualified Filipinos overseas. Filipino immigrants and permanent residents abroad should not be excluded from the definition of qualified overseas Filipino. After all, the objective is to enfranchise.

The criteria for absentee voting rights prescribed by the Constitution are: citizenship; residency and age. Immigrants are permanent residents abroad posses all qualifications.

Immigrants and permanent residents remain Filipino citizens. An immigrant status does not result in the loss of Philippine citizenship. As long as an immigrant is a bona fide holder of a valid Philippine passport, the legal presumption that his status abroad is merely temporary holds.

Immigrants and permanent residents abroad are deemed domiciled in the Philippines. Their residence in the Philippines is a matter of intention, following the doctrine of animus revertendi, these Filipinos are deemed domiciled (and residing) in the Philippines even when they are abroad, unless they effect a change in their citizenship.

In our election laws, that is the prevailing legal principle on the matter of residence.

Section 2, Article V of the Constitution operates as an exception to Section 1 thereof, which imposes the six months and one-year residency requirement. This conclusion is based on the records of the 1986 Constitutional Commission, quoting Commissioner Bernas responding to the observation of Commissioner Ople on the matter of disenfranchisement of overseas Filipinos due to the constitutional requirement of residence.

Based on a study of the Commission of Filipinos Overseas, the absentee voting systems of the USA, Sweden, Canada, Australia, New Zealand and Indonesia grant voting rights to all their national overseas, regardless of whether they are residing overseas as immigrants or simply working abroad in a temporary capacity.

Admittedly, there is really a difficulty in defining the term “immigrant” in the AVL. What an “immigrant” is varies, depending on their treatment by their host countries.

If repatriation under existing laws can be done through the simple expediency of executing an affidavit, then there is greater reason to adopt a lower standard for immigrants and permanent residents desirous of voting under the AVL.

A possible compromise would be to require immigrants and permanent residents to execute an “Affidavit of Intent to Return” for absentee voting purposes. This would effectively reverse the argument that permanent residency status entails prima facie an abandonment of residence.

Their right to vote in absentia having been recognized under the AVL, all qualified Filipinos overseas should not find it as a one-shot deal, meaning, they should not be able to vote only in May 2004. But the House version has precisely this provision. There is no similar provision in the Senate version. This so-called sunset provision under the House version contravenes the constitutional provision on absentee voting.

It is discriminatory exercise, since it permits the disenfranchisement of a class of Filipinos of their right of suffrage already granted to them under the Constitution. This provision also fails to prescribe the causes and the standards for deprivation of the right to vote. It is a basic principle in law that rights, once granted, cannot be taken away except for just causes specified in the law. It is possibly a retrogressive display in the exercise of policy making.

It would do well for both houses of Congress to finally reconcile their conflicting versions. The AVL has to become a law within a year, to provide ample time to the Comelec to prepare. Any delay, by design or by accident, will impact on the implementation.


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