Separate Opinion By Isagani A. Cruz Justice Isagani A.

Cruz was appointed to the Supreme Court in 1986 and became Senior Associate Justice and Chairman of the First Division. Past chairman of both Senate and House Electoral Tribunals, he has authored many books and legal treaties, and sits as the dean of the Perpetual Help College of Law. "Separate Opinion "comes out every Saturday and Sunday in Philippine Daily Inquirer's Opinion Section. Sample Column: The absurd Law Published: August 7, 2004 Inquirer : Opinion Section

NOW theyre thinking of amending the Overseas Absentee Voting Act of 2003. It should not have been enacted at all in the first place. The measure was passed by Congress, including the opposition members. It was speedily approved by President Macapagal-Arroyo. It was then as easily upheld by the Supreme Court. In several articles in this column, I attacked the plan to grant suffrage to Filipinos abroad who had acquired permanent residence in other countries as immigrants. As such, they could no longer satisfy the residence requirements for suffrage as laid down by the Constitution. Art. V prescribes that for the exercise of suffrage the Filipino who is at least 18 years of age must be a resident of the Philippines for no less than one year and in the place where he intends to vote for no less than six months. An immigrant to another country is no longer a resident of the Philippines. It is an accepted axiom that one cannot have more than one residence; the acquisition of a new residence forfeits the original residence. Yet the Supreme Court, sustaining the President and Congress, chose to disregard that universal rule. It preferred to accept the august words of Fr. Joaquin Bernas holding such errant Filipinos as still qualified voters in the Philippines. Four justices wisely dissented.

The doubtful decision held that such migrants could still vote in the 2004 elections for the president, the vice president, senators and party-list representatives. It made a distinction between residence and domicile and said the first could be dual but not the latter. Hence, although the migrant was permanently resident in the foreign country of his choice, he was still a resident of the Philippines. In this column on Feb. 2, 2003, I explained: Residence is defined as the place where one habitually lives and to which whenever he is absent he intends to return. It is judicially interpreted in the sense of domicile, which includes the element of permanence. Immigration, according to Bouviers Law Dictionary, is the coming into the country of foreigners for permanent residence. Hence, a Filipino who migrates to another country becomes a permanent resident there and should not be allowed to vote in our country as an absentee voter. The Filipino citizens who ratified the Constitution of 1987 understood the term residence as used in Art. V in that generally accepted sense. Yet, the Supreme Court rejected the wellknown rule that words used in statutes and especially the Constitution should be given their ordinary connotation. It instead complicated the meaning of Art. V beyond the intendment and understanding of the people. Curiously, although the absentee voters were considered qualified to vote on May 10, they were nevertheless required to file an affidavit promising to reside permanently in the Philippines within three years. If they were qualified at the time they voted, why did they have to promise under oath that they would return permanently to this country? There is also the question of how the government will enforce that required sworn promise to reacquire permanent residence in the Philippines. The absurd law ominously says that failure to comply will result in the absentee voters names being stricken from the list of voters. Big deal! And yet, their votes may have been lawfully credited last May for candidates who might otherwise have lost. The Commission on Elections has reported that only an insignificant number of overseas Filipinos have cast their votes under the controversial law.Most of them were overseas workers in the Middle East who have not lost their residence in the Philippines by working abroad. But the immigrants who have acquired a new life in some foreign country that has welcomed them have not been similarly interested. Despite the millions of pesos spent by the government to implement the Overseas Absentee Voting Act, there were many European countries with Filipino immigrants, or only temporary workers still legally resident in the Philippines, where the vote expected from the Filipino citizens was exactly zero. There were many Filipinos abroad who were not interested at all in the dubious privilege being offered them by our government. The Overseas Absentee Voting Act stands as one of the stupidest laws ever passed by Congress with the approval of the President of the Philippines and the validation of the Supreme Court. It cannot be sustained on practical grounds, as subsequent events have demonstrated. The legal arguments given by the Supreme Court in its support are unacceptable, even to the ordinary layman. It is a law that has been imposed by the three departments of the government upon an unconvinced citizenry.

If Congress wants to amend the Overseas Absentee Voting Act instead of repealing it altogether, I suggest that it confine its benefits to the Filipino workers who have not abandoned their residence in the Philippines and are abroad only for temporary employment. Our students in foreign universities should also be included. But that absurd provision allowing immigrants in foreign countries to vote here as still resident Filipinos should be eliminated. Our laws should not proclaim the ignorance, not to say vacuity, of our supposedly responsible leaders.