MACALINTAL VS.

COMELEC
G.R. No. 157013, July 10 2003

FACTS:
Before the Court is a petition for certiorari and prohibition filed by Romulo B.
Macalintal, a member of the Philippine Bar, seeking a declaration that certain
provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003)
suffer from constitutional infirmity. Claiming that he has actual and material legal
interest in the subject matter of this case in seeing to it that public funds are
properly and lawfully used and appropriated, petitioner filed the instant petition as a
taxpayer and as a lawyer.
ISSUES:
(1) Whether or not Section 5(d) of Republic Act No. 9189 violates the residency
requirement in Section 1 of Article V of the Constitution.
(2) Whether or not Section 18.5 of the same law violates the constitutional mandate
under Section 4, Article VII of the Constitution that the
winning candidates forPresident and the Vice-President shall be proclaimed as
winners by Congress.
(3) Whether or not Congress may, through the Joint Congressional Oversight
Committee created in Section 25 of Rep. Act No. 9189, exercise the power to review,
revise, amend, and approve the Implementing Rules and Regulations that the
Commission on Elections, promulgate without violating the independence of the
COMELEC under Section 1, Article IX-A of the Constitution.
HELD:
(1) No. Section 5 of RA No. 9189 enumerates those who are disqualified voting
under this Act. It disqualifies an immigrant or a permanent resident who is
recognized as such in the host country. However, an exception is provided i.e.
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 3 years from approval of registration.
Such affidavit shall also state that he/she has not applied for citizenship in another
country. Failure to return shall be 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.

Petitioner claims that this is violative of the residency requirement in Section 1

Article V of the Constitution which requires the voter must be a resident in the
Philippines for at least one yr, and a resident in the place where he proposes to vote
for at least 6 months immediately preceding an election.

However, OSG held that ruling in said case does not hold water atpresent, and that
the Court may have to discard that particular ruling. Panacea of the controversy:
Affidavit for without it, the presumption of abandonment of Phil domicile shall
remain. The qualified Filipino abroad who executed an affidavit is deemed to have
retained his domicile in the Philippines and presumed not to have lost his domicile
by his physical absence from this country. Section 5 of RA No. 9189 does not only
require the promise to resume actual physical permanent residence in the
Philippines not later than 3 years after approval of registration but it also requires
the Filipino abroad, WON he is a green card holder, a temporary visitor or even on
business trip, must declare that he/she has not applied for citizenship in another
country. Thus, he/she must return to the Philippines otherwise consequences will be
met according to RA No. 9189.

Although there is a possibility that the Filipino will not return after he has exercised
his right to vote, the Court is not in a position to rule on the wisdom of the law or to
repeal or modify it if such law is found to be impractical. However, it can be said
that the Congress itself was conscious of this probability and provided for
deterrence which is that the Filipino who fails to return as promised stands to lose
his right of suffrage. Accordingly, the votes he cast shall not be invalidated because
he was qualified to vote on the date of the elections.

Expressum facit cessare tacitum: where a law sets down plainly its whole meaning,
the Court is prevented from making it mean what the Court pleases. In fine,
considering that underlying intent of the Constitution, as is evident in its statutory
construction and intent of the framers, which is to grant Filipino immigrants and
permanent residents abroad the unquestionable right to exercise the right of
suffrage (Section 1 Article V) the Court finds that Section 5 of RA No. 9189 is not
constitutionally defective.

(2) Yes. Congress should not have allowed COMELEC to usurp a power that
constitutionally belongs to it. The canvassing of the votes and the proclamation of
the winning candidates for President and VicePresident for the entire nation must
remain in the hands of Congress as its duty and power under Section 4 of Article VII

of the Constitution. COMELEC has the authority to proclaim the

winningcandidates only for Senators and Party-list Reps.

(3) No. By vesting itself with the powers to approve, review, amend and revise the
Implementing Rules & Regulations for RA No. 9189, Congress went beyond the
scope of its constitutional authority. Congress trampled upon the
constitutional mandate of independence of the COMELEC. Under such a situation,
the Court is left with no option but to withdraw from its usual silence in declaring a
provision of law unconstitutional.