Enfranchising ‘duals’ and ‘greens’

“Will we be allowed to vote during national elections without having to execute the affidavit that endangers our status in the US?” dual citizens (“duals”), immigrants and green card holders (“greens”) inquire. Since columns are uploaded in Inquirer.net at past midnight, Philippine time, which is daytime in America, US readers are usually the first to read them and to e-mail questions. This query is frequently asked.

Qualifications to vote. The Constitution limits the right of suffrage to those who possess these qualifications: (1) Filipino citizens “who are not otherwise disqualified by law,” (2) 18 years of age, and (3) residence “in the Philippines for at least one year, and in the town or city where they propose to vote for at least six months.” The Charter also mandates Congress to “provide… a system for absentee voting by qualified Filipinos abroad.”

The first qualification – Filipino citizenship – assures that only those who owe allegiance to this country are allowed to select its leaders and determine its destiny. Thus, only Filipinos may vote in Philippine elections; aliens cannot. Similarly, only Americans may vote in US elections; Pinoys cannot. The second qualification – age – makes sure that only those who have reached the age of majority are allowed to enter into binding contracts and to elect the officials who would govern the country.

The third – residence – is required so the voters would know the needs and problems of our country in general and of the locality where they intend to vote. It also acquaints them with the candidates—their qualifications, their suitability for the office they aspire to and their platform of government.

Absentee voting. For “qualified Filipinos abroad,” the Constitution – as earlier stated – andates Congress to enact “a system of absentee voting.” To fulfill this mandate, the legislature passed Republic Act 9189 – the Overseas Absentee Voting Law. Section 5(d) of this law allows Filipino immigrants and permanent residents (the greens) of another country to vote for national candidates (not local ones) provided they execute an affidavit declaring that they would resume “actual physical residence in the Philippines” not later than three years from their registration as voters.

In “Macalintal v. Comelec” (July 10, 2003, per Justice Ma. Alicia Austria-Martinez), the Supreme Court upheld the validity of this statutory provision, ruling that the mere acquisition of foreign residence does not automatically erase the “domicile of origin” of Filipinos. In other words, though physically absent, greens never legally abandoned their Philippine residence.

Answering the objection that permanent residency in another country is proof of abandonment of Philippine domicile, the Court said that precisely “the affidavit is required… because by their status (as immigrants and permanent residents) in their host countries, they are presumed to have relinquished their intent to return to (our) country; thus without the affidavit, the presumption of abandonment of Philippine domicile shall remain.”

Voting sans affidavit. Congress passed another law – RA 9225 – that allowed the duals (Filipinos who have become naturalized citizens of another country) to retain or reacquire their Philippine citizenship. In “Nicolas v. Comelec” (Aug. 4, 2006, per Justice Cancio C. Garcia), the high court unanimously held that “there is no provision in the dual citizenship law – RA 9225 – requiring duals to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote.”

The Court added that by authorizing “Congress to devise a system wherein an absentee may vote, (the Constitution implied) that a non-resident may, as an exception to the residency prescription… be allowed to vote.” Thus, to exercise the right of suffrage, duals need not observe the one-year residency requirement, or sign the affidavit required of greens.

Comes now Fil-American lawyer Ted Laguatan. He argues that greens (who remain Filipinos and have not become Americans) should be put on equal footing with the duals. According to him, the residence requirement should no longer apply as a condition for voting and that greens should no longer be required to sign the affidavit. “This affidavit,” he wrote, “has a chilling effect on the greens”; it negates the constitutional intent, to quote Nicolas, “to enfranchise… all overseas Filipinos… qualified to vote.”

I agree with Laguatan. I anchored my concurrence to the Macalintal decision not on the old theory of domicile; rather, I wrote that the Information Age already fulfills the purpose of the residency requirement. Overseas Filipinos, without having to reside here physically, have the means to inform themselves of our country’s needs and of the suitability of candidates for national offices. Interactive news websites, cable TV programs, social networks like Facebook and Twitter, cell phones, Skype, Magic Jack, e-mails, teleconferencing and other electronic wonders no longer require actual physical presence to acquire thorough knowledge of Philippine political life.

Since the goal of the residency qualification is accomplished by the globalization of information, then the purpose of the law is fulfilled. Our brothers and sisters abroad should be allowed to vote during national elections without anachronistic roadblocks. After all, being the single biggest source of foreign exchange, they keep our economy afloat.

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