ARTICLE V

(SUFFRAGE)

The right of suffrage is not absolute. The exercise of the right is subject to existing substantive
and procedural requirements embodied in our Constitution, statute books and other repositories
of law.

The right of citizen to vote is necessarily conditioned upon certain procedural requirements he
must undergo, among others the process of registration under RA 8189 (Voter’s Registration Act
of 1996).

G.R. No. 263590, Macalintal v. COMELEC; G.R. No. 263673, Hidalgo, et al. v. Executive
Secretary, et al. (June 27, 2023)

The Supreme Court has declared unconstitutional the law which postponed the holding of the
Barangay and Sangguniang Kabataan (BSK) Elections (BSKE), from its initial schedule of
December 5, 2022 to the last Monday of October 2023, but recognizes the legal practicality and
necessity of proceeding with the conduct of the BSKE on the last Monday of October 2023,
pursuant to the operative fact doctrine.

In a Decision penned by Associate Justice Antonio T. Kho, Jr., the Court En Banc granted the
consolidated petitions of Atty. Romulo B. Macalintal (Atty. Macalintal) and of Attys. Alberto N.
Hidalgo, Aluino O. Ala, Agerico A. Avila, Ted Cassey B. Castello, Joyce Ivy C. Macasa, and
Frances May C. Realino (Atty. Hidalgo, et al.) assailing the constitutionality of Republic Act No.
11935 (RA 11935), or “An Act Postponing the December 2022 Barangay and Sangguniang
Kabataan Elections, Amending for the Purpose Republic Act No. 9164, as amended,
Appropriating Funds therefor, and for Other Purposes.”

In granting the petitions, the Supreme Court made the following salient points:

First, the Court declared that the free and meaningful exercise of the right to vote, as protected
and guaranteed by the Constitution, requires the holding of genuine periodic elections which
must be held at intervals which are not unduly long, and which ensure that the authority of
government continues to be based on the free expression of the will of electors.

Second, the Commission on Elections does not have the power to postpone elections on a
nationwide basis. This power lies with the Congress pursuant to (i) its plenary power to
legislate, and (ii) its power to fix the term of office of barangay officials under Article X, Section
8 of the Constitution. As such, the Congress did not unconstitutionally encroach on the power of
the COMELEC to administer elections when it enacted Republic Act No. (RA) 11935. Neither
did the provision for “hold-over” capacity amount to an unconstitutional “legislative
appointment.”

Third, the case has not been rendered moot to preclude the exercise by this Court of its judicial
review power because RA 11935’s transgression on the people’s right of suffrage is continuing
and did not cease upon the lapse of the December 5, 2022 election schedule. Thus, despite the
intervening expiration of the previous election date, the case undoubtedly presents an actual case
or controversy that justifies the continued exercise by this Court of its judicial review power.

Even on the assumption of mootness, the Court can decide the case, because grave violation of
the Constitution attended the enactment of RA 11935. Another, the case calls for the resolution
of a novel and unprecedented issue that affects the people’s right of suffrage at the grassroots
level. Lastly, the constitutional issue raised under the circumstances surrounding this case is
capable of repetition yet evading review and thus, demands formulation of controlling principles
to guide the bench, the bar, and the public.
Fourth, RA 11935 violates the freedom of suffrage as it failed to satisfy the requisites of the
substantive aspect of the due process clause of the Constitution.

The Court found that there was no legitimate government interest or objective to support the
legislative measure, and that the law unconstitutionally exceeds the bounds of the Congress’
power to legislate.

The Court likewise lamented that the means employed by Congress are unreasonably
unnecessary to achieve the interest of the government sought to be accomplished, and that
the said means are unduly arbitrary or oppressive of the electorates’ right of suffrage. The Court
underscored that the primordial purpose stated in the various bills presented in the Senate and
House of Representatives sought the realignment of the budget allocation of the COMELEC for
the 2022 BSKE to the Executive for the latter’s use in its projects cannot be done without
violating the explicit prohibition in the Constitution against any transfer of appropriations.

The Court also ruled that the enactment of RA 11935 was attended with grave abuse of
discretion amounting to lack or excess of jurisdiction. The Court said that the postponement of
the 2022 BSKE by RA 11935 for the purpose of augmenting the Executive’s funds is violative of
the Constitution because it unconstitutionally transgresses the constitutional prohibition against
any transfer of appropriations, and it unconstitutionally and arbitrarily overreaches the exercise
of the rights of suffrage, liberty, and expression.

The Court, nevertheless, clarified that in so ruling, it is not asserting its power over Congress;
rather, the Court is simply enforcing and upholding the supremacy of the Constitution.

Fifth, the Court recognized the existence of RA 11935 as an operative fact which had
consequences and effects that cannot be reversed nor ignored. As such, the Court said that the
pronouncement on the constitutionality of RA 11935 shall retroact to the date of its enactment,
subject to the proper recognition of the consequences and effects of the said law’s existence
before the instant ruling. It likewise held that the declaration of unconstitutionality of RA 11935
results in the revival of RA 11462, the law governing the BSKE prior to the enactment of the
assailed act.

The Court also declared that the BSKE scheduled for October 2023 shall proceed. The Court,
however, stressed that the term of office of the sitting BSK officials shall be deemed to have
ended on December 31,2022, following the provisions of RA 11462, the law impliedly repealed
by RA 11935. In the interim, the sitting BSK officials shall continue to hold office until their
successors shall have been elected and qualified. This notwithstanding, the Court clarified that
the continued discharge of functions by the sitting BSK officials in a “hold-over” capacity,
following the provisions of RA 11935, shall in no way constitute as an unconstitutional
“legislative appointment.”

The Court further ruled that the succeeding BSKE shall be held on the first Monday of December
2025 and every three years thereafter, pursuant to RA 11462, and that the Congress is not
precluded from further amending RA 9164 (as amended), the law which provides for
synchronized BSKE.

Finally, the Court found it imperative to set forth guidelines and principles for the bench, the bar,
and the public as regards any government action that seeks to postpone any elections. The Court
outlined the criteria as follows:

1. The right of suffrage requires the holding of honest, genuine, regular, and periodic
elections. Thus, postponement of the elections is the exception.

2. The postponement of the election must be justified by reasons sufficiently important,

substantial, or compelling under the circumstances:
a. The postponement must be intended to guarantee the conduct of free, honest,
orderly, and safe elections;
b. The postponement must be intended to safeguard the electorate’s right of
suffrage;
c. The postponement must be intended to safeguard other fundamental rights of the
electorate; or
d. Such other important, substantial, or compelling reasons that necessitate the
postponement of the election, i.e., necessitated by public emergency, but only if
and to the extent strictly required by the exigencies of the situation.
i. Reasons such as election fatigue, purported resulting divisiveness,
shortness of existing term, and/or other superficial or farcical reasons,
alone, may not serve as important, substantial, or compelling reasons to
justify the postponement of the elections. To be sufficiently important, the
reason for the postponement must primarily be justified by the need to
safeguard the right of suffrage or other fundamental rights or required by a
public emergency situation.

3. The electorate must still be guaranteed an effective opportunity to enjoy their right of
suffrage without unreasonable restrictions notwithstanding the postponement of the
elections.

4. The postponement of the elections is reasonably appropriate for the purpose of advancing
a sufficiently important, substantial, or compelling governmental reasons.
a. The postponement of the elections must be based on genuine reasons and only on
objective and reasonable criteria.
b. The postponement must still guarantee that the elections will be held at regular
periodic intervals that are not unduly long.
i. The intervals must still ensure that the authority of the government
continues to be based on the free expression of the will of the electorate.
ii. Holding the postponed elections at a date so far remote from the original
election date may serve as badge of the unreasonableness of the interval
that may render questionable the genuineness of the reasons for the
postponement.
c. The postponement of the election is reasonably narrowly tailored only to the
extent necessary to advance the government interest.

5. The postponement must not violate the Constitution or existing laws.

Kabataan Party-list, et al., v. Commission on Elections, G.R. No. 221318, December 16,
2015, En Banc (Perlas-Bernabe)- “With these considerations in mind, petitioners’ claim that
biometrics validation imposed under RA 10367, and implemented under COMELEC Resolution
Nos. 9721, 9863, 10013, must perforce fail. To reiterate, this requirement is not a “qualification”
to the exercise of the right of suffrage, but a mere aspect of the registration procedure, of which
the State has the right to reasonably regulate. It was institutionalized conformant to the
limitations of the 1987 Constitution and is a mere complement to the Existing Voter’s
Registration Act of 1996. X x x

“Thus, unless it is shown that a registration requirement rises to the level of a literacy, property
or other substantive requirement as contemplated by the Framers of the Constitution – that is,
one which propagates a socio-economic standard which is bereft of any rational basis to a
person’s ability to intelligently cast his vote and to further the public good – the same cannot be
struck down as unconstitutional, as in this case.”

Applying the Strict Scrutiny Test to RA 10367

“Petitioners assert that biometrics validation gravely violates the Constitution, considering that,
applying the strict scrutiny test, it is not poised with compelling reason for state regulation and
hence, an unreasonable deprivation of the right to suffrage. X x x. “Contrary to petitioners’
assertion, the regulation passes the strict scrutiny test.” “In terms of judicial review of
statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the
amount of governmental interest brought to justify the regulation of fundamental freedoms.
Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech,
gender, or race as well as other fundamental rights as expansion from its earlier applications to
equal protection. X x x the United States Supreme Court has expanded the scope of scrutiny to
protect fundamental rights such as suffrage, judicial access, and interstate travel.

“Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial,
governmental interest and on the absence of less restrictive means for achieving that interest, and
the burden befalls upon the State to prove the same.

“In this case, respondents have shown that the biometrics validation requirement under RA
10367 advances a compelling state interest. It was precisely designed to facilitate the conduct of
orderly, honest, and credible elections by containing – if not eliminating, the perennial problem
of having flying voters, as well as dead and multiple registrants. X x x the objective of the law
was to cleanse the national voter registry so as to eliminate electoral fraud and ensure that the
results of the elections were truly reflective of the genuine will of the people. The foregoing
consideration is unquestionably a compelling state interest.

“Also, it was shown that the regulation is the least restrictive means for achieving the above-said
interest. Section 6 of Resolution 9721 sets the procedure for biometrics validation x x x. It is, in
effect, a manner of updating one’s registration for those already registered under RA 8189, or a
first-time registration for new registrants. The re-registration process is amply justified by the
fact that the government is adopting a novel technology like biometrics in order to address the
bane of electoral fraud that has enduringly plagued the electoral exercises in this country. While
registrants may be inconvenienced by waiting in long lines or by not being accommodated on
certain days due to heavy volume of work, these are typical burdens of voting that are remedied
by bureaucratic improvements to be implemented by the COMELEC as an administrative
institution. By and large, the COMELEC has not turned a blind eye to these realities. It has tried
to account for the exigencies x x x.

“That being said, the assailed regulation on the right to suffrage was sufficiently justified as it
was indeed narrowly tailored to achieve the compelling state interest of establishing a clean,
complete, permanent and updated list of voters, and was demonstrably the least restrictive means
in promoting that interest.

Makalintal vs. COMELEC, July 10, 2003- The interpretation of residence is synonymous to
domicile. An absentee remains attached to his residence in the Philippines, as residence is
considered synonymous with domicile. Domicile means an individual’s permanent home or a
place to which, whenever absent for business or for pleasure, one intends to return, and depends
on facts and circumstances in the sense that they disclose intent.

Ugdoracion, Jr. vs. COMELEC- Three basic rules on domicile: 1) a man must have a residence
or domicile somewhere; (2) domicile, once established, remains until a new one is validly
acquired; (3) a man can have but one residence or domicile at any given time.

Absentee voting – under Section 2 of RA 9189 – is an exception to the six-month/one-year

residency requirement.

Lewis vs. COMELEC, August 4, 2006- There is no provision in the dual citizenship law - R.A.
9225 - requiring "duals" to actually establish residence and physically stay in the Philippines first
before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit
acknowledgment that “duals” are most likely non-residents, grants under its Section 5(1) the
same right of suffrage as that granted an absentee voter under R.A. 9189 (election for president,
v-pres., senators). It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as
much as possible all overseas Filipinos who, save for the residency requirements exacted of an
ordinary voter under ordinary conditions, are qualified to vote.

Residence is equated with domicile. In election law, residence is synonymous to “domicile,” not
necessarily with a person’s home address. A man may have several places of residence but has
only one domicile. Or he may be a nomad or travelling salesman with no permanent home.
Nonetheless, the law recognizes one domicile for him.

There are three kinds of domicile: 1) domicile of origin—that is, a child follows the domicile of
the parents; 2) domicile by operation of law; and 3) domicile of choice made freely by a person
of legal age.

Domicile of choice “imports not only the intention to reside in one fixed place but also personal
presence in that place, coupled with conduct indicative of such intention. Domicile denotes a
fixed permanent residence to which, when absent for business or pleasure or for like reasons, one
intends to return.” Makalintal vs. COMELEC, July 10, 2003. In short, domicile of choice is a
question of fact. One intends to return, and depends on facts and circumstances in the sense that
they disclose intent (animus revertendi).

Settled jurisprudence recognizes three rules to determine a person’s domicile: First, everyone
must always have one of the three kinds of domicile; second, once established, a domicile
remains the same until a new one is acquired; and third, a person can have only one domicile at
any given time.

Llamanzares vs. COMELEC- There are three requisites to acquire a new domicile: 1. Residence
or bodily presence in a new locality; 2. an intention to remain there; and 3. an intention to
abandon the old domicile. To successfully effect a change of domicile, one must demonstrate an
actual removal or an actual change of domicile; a bona fide intention of abandoning the former
place of residence and establishing a new one and definite acts which correspond with the
purpose. In other words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period
of time; the change of residence must be voluntary; and the residence at the place chosen for the
new domicile must be actual.

In Marcos vs Comelec (Sept. 18, 1995), the Supreme Court held that “the fact of residence, not a
statement in a certificate of candidacy, [is] decisive in determining whether or not an individual
has satisfied the Constitution’s residence qualification requirement.” The Supreme Court said
that Mrs. Imelda Marcos made an honest mistake in writing “seven months residence” in her
certificate of candidacy for a congressional seat, a period less than the constitutional requirement
of “not less than one year” for that position.

Recent jurisprudence. Cordora vs Comelec (Feb. 19, 2009) held that residency is not dependent
on citizenship because even a foreigner can establish a Philippine domicile.

More clearly, Japson vs Comelec (Jan. 19, 2009) ruled that a former Filipino who was
naturalized abroad may choose to reestablish his/her domicile here even prior to the reacquisition
of citizenship under the Dual Citizenship Law.

Said the Supreme Court: “[I]n order to acquire a new domicile by choice, there must concur: 1)
residence or bodily presence in the new locality, 2) an intention to remain there, and 3) an
intention to abandon the old domicile. “The purpose to remain in or at the domicile of choice
must be for an indefinite period of time; the change of residence must be voluntary; and the
residence at the place chosen for the new domicile must be actual.”

Moreover, Jalosjos vs Comelec (Oct. 19, 2010) ruled that the abandonment of a home in
Australia, renunciation of Australian citizenship, reacquisition of Philippine citizenship and
settling down in Zamboanga Sibugay show an “intent to change domicile for good.”
Maquiling vs Comelec (April 16, 2013) clarified, though, that the use of an American passport
after a renunciation of American citizenship effectively reverses such renunciation and
disqualifies one who reacquired citizenship under the Dual Citizenship Law from being elected
to a public office.

Ugdoracion, Jr. vs. COMELEC, 552 SCRA 231- A Filipino citizen’s acquisition of permanent
resident status abroad constitutes abandonment of his domicile and residence in the Philippines.
The green card status in the USA is a renunciation of one’s status as a resident of the Philippines.

But: Q. Does reacquisition of Filipino citizenship under RA 9225 have the effect of restoring his
Philippine domicile?

A. No. To reacquire domicile, he must provide proof of intent to stay in the Philippines. After he
does that, his occasional absence from the recovered domicile does not have the effect of