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[LOPEZ] G.R. No.

162759 AUGUST 4, 2006 resident may, as an exception to the residency prescription, be

LOIDA NICOLAS-LEWIS,, petitioners vs. COMMISSION ON allowed to vote.
ELECTIONS, respondent 2. Meanwhile, Sec. 4 of the OAVL identifies who can vote under it; and
Topic: Citizen Participation and electoral rights The Right to Vote Sec. 5 lists those who cannot avail themselves of the absentee
voting mechanism.
Facts: 3. However, in Sec. 5(d) of the enumeration, respecting Filipino
1. Petitioner are successful applicants for recognition of Philippine immigrants and permanent residents in another country, opens and
citizenship under RA 9225 (Citizenship Retention and Re-Acquisition exception and qualifies the disqualification rule.
Act) [basically dual citizens sila]. 4. Such section faced a constitutional challenge in Macalintal, which the
2. Long before the May 2004 elections, petitioners sought registration Court has resolved, wherein it was stated that:
as overseas absentee voter under RA 9189 (Overseas Absentee a. The section violated Sec.1 of Art. V which provides the
Voting Act/Law) only to be advised by the Philippine Embassy in the residency requirement. The Constitution does not allow
US that, as per a COMELEC letter, they have yet no right to vote provisional registration by a voter to perform a condition to
because of their lack of the one-year residence requirement be qualified in a political exercise.
prescribed by the constitution. Such letter also stated that PH posts b. However, Sec. 5(d) of the OAVL is constitutional as it allows
abroad should continue voters registration. an immigrant or permanent resident to execute an affidavit to
3. Petitioner Nicolas-Lewis asked COMELEC for a clarification, in light show that he/she has not abandoned his domicile in
of the Macalintal ruling. The COMELEC replied that the petitioners pursuance to Sec. 1 and 2 of Art. V. Otherwise, if actual and
still cannot exercise the right to vote as the OAVL was not applicable physical residence in the PH is required, there is no sense
to them. Only Filipinos who have merely re-acquired their citizenship for the framers of the Constitution to mandate the Congress
on Sept 18 2003, at the earliest, are considered regular voters who to establish a system for absentee voting.
have to meet the residency requirement. c. Such execution of affidavit itself is not the enabling or
4. On April 1, 2004, petitioners filed this petition for certiorari and enfranchising act. It serves as an explicit expression that he
mandamus. A week before the May 10 elections, COMELEC prayed had not abandoned his domicile.
for the denial of the petition, arguing that the duals must first meet d. The ConCom even intended to extend to young Filipinos
the requirements in Sec. 1, Art. V; and that they have already who reach voting age abroad whose parents domicile of
renounced their PH citizenship. As expected, petitioner failed to origin is in the Philippines, and consider them qualified as
register; hence, they failed to vote. voters.
5. On May 20, 2004, OSG, in resolving COMELECs prayer, stated that e. Sec. 2, Art. V, was purposely put immediately after Sec. 1 in
all qualified overseas Filipinos, including dual citizens, may exercise order to indicate the ConComs intention to provide and
the right to vote. However, such was already moot and academic as exception to the residency requirement with respect to
the 2004 elections has already concluded. Filipinos abroad. Such was also deliberated upon in the
6. SC: Although moot and academic, such petition must be resolved Senate floor.
because of a broader and transcendental issue of the propriety of 5. Likewise, after Sec. 5(d) of the OAVL passed the constitutionality
allowing duals to participate and vote as absentee voter in future test, Congress enacted RA 9225, which includes provisions that
elections. those who retain or re-acquire PH citizenship shall enjoy full civil and
political rights, including the right to suffrage, as well as to run for
Issue: W/N petitioners who might have meanwhile retained and/or public office.
reacquired Philippine citizenship under RA 9225 may vote as absentee voter 6. There is no provision in the OAVL that duels must actually establish
under RA 9189 residence and physically stay in the PH before they can vote. On the
contrary, RA 9225 implicitly acknowledges duals as non-residents.
Held: Yes! Duals may vote as an absentee voter. The OAVL aims to enfranchise as much overseas Filpinos as
1. Section 1, Art. V of the Constitution prescribes the residency possible.
requirement for the right to vote; and Section 2 authorizes the 7. Considering the unison of intent of the Constitution and the OAVL,
Congress to devise a system of absentee voting, implying that a non- with the expansion of the scope of the latter law with the passge of
RA 9225, it can be concluded that duals may now exercise the right have lost their Philippine citizenship by reason of their naturalization as
to sufferage through absentee voting scheme. citizens of a foreign country are hereby deemed to have re-acquired
Philippine citizenship upon taking the following oath of allegiance to the
8. The expanded thrust of the OAVL extends to the next generation of Republic:
duals, as deduced from the inclusion of Sec. 4 of RA 9225 on xxx xxx xxx
derivative citizenship. Natural-born citizens of the Philippines who, after the effectivity of
9. It is very likely that a considerable number of those children below 18 this Act, become citizens of a foreign country shall retain their Philippine
years of age had never set foot in the PH. Now, if these next gen citizenship upon taking the aforesaid oath.
duals can enjoy full civil and political rights, then there is no reason
why petitioners and other present day duals, provided they meet SEC. 4. Derivative Citizenship. The unmarried child, whether
requirements under Sec. 1, Art. V, in relation with the OAVL, be legitimate, illegitimate or adopted, below eighteen (18) years of age, of those
denied the right to vote as an absentee voter. who re-acquire Philippine citizenship upon effectivity of this Act shall be
deemed citizens of the Philippines.
SEC. 5. Civil and Political Rights and Liabilities. Those who retain
Important Provisions: or re-acquire Philippine citizenship under this Act shall enjoy full civil and
RA 9189 or OAVL political rights and be subject to all attendant liabilities and responsibilities
under existing laws of the Philippines and the following conditions:
Section 4. Coverage. All citizens of the Philippines abroad, who are not (1) Those intending to exercise their right of suffrage must meet
otherwise disqualified by law, at least eighteen (18) years of age on the day the requirements under Section 1, Article V of the Constitution, Republic Act
of elections, may vote for president, vice-president, senators and party-list No. 9189, otherwise known as The Overseas Absentee Voting Act of 2003
representatives. and other existing laws;
(2) Those seeking elective public office in the Philippines shall
Section 5. Disqualifications. The following shall be disqualified from voting meet the qualifications for holding such public office as required by the
under this Act: Constitution and existing laws and, at the time of the filing of the certificate of
xxx candidacy, make a personal and sworn renunciation of any and all foreign
(d) An immigrant or a permanent resident who is recognized as citizenship ;
such in the host country, unless he/she executes, upon registration, an xxx;
affidavit prepared for the purpose by the Commission declaring that he/she
shall resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this Act. Such
affidavit shall also state that he/she has not applied for citizenship in another
country. Failure to return shall be the 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.

RA 9225 Citizen Retention and Re-Acquisition Act

SEC. 2. Declaration of Policy. It is hereby declared the policy of the

State that all Philippine citizens who become citizens of another country shall
be deemed not to have lost their Philippine citizenship under the conditions
of this Act.

SEC. 3. Retention of Philippine Citizenship. Any provision of law

to the contrary notwithstanding, natural-born citizens of the Philippines who