Absentee voting; Sec. 5(d) of RA 9189

The method of absentee voting has been said to be completely separable and distinct from the regular system of voting, and to be a new and different manner of voting from that previously known, and an exception to the customary and usual manner of voting. The right of absentee and disabled voters to cast their ballots at an election is purely statutory; absentee voting was unknown to, and not recognized at, the common law. (29 C.J.S. 575-577)

Absentee voting is an outgrowth of modern social and economic conditions devised to accommodate those engaged in military or civil life whose duties make it impracticable for them to attend their polling places on the day of election, and the privilege of absentee voting may flow from constitutional provisions or be conferred by statutes, existing in some jurisdictions, which provide in varying terms for the casting and reception of ballots by soldiers and sailors or other qualified voters absent on election day from the district or precinct of their residence. (29 C.J.S. 575-577)

Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When the legislature chooses to grant the right by statute, it must operate with equality among all the class to which it is granted; but statutes of this nature may be limited in their application to particular types of elections. The statutes should be construed in the light of any constitutional provisions affecting registration and elections, and with due regard to their texts prior to amendment and to predecessor statutes and the decisions thereunder; they should also be construed in the light of the circumstances under which they were enacted; and so as to carry out the objects thereof, if this can be done without doing violence to their provisions and mandates. Further, in passing on statutes regulating absentee voting, the court should look to the whole and every part of the election laws, the intent of the entire plan, and reasons and spirit of their adoption, and try to give effect to every portion thereof. (29 C.J.S. 575-577)In Makalintal v. Comelec, challenged as unconstitutional was Sec. 5(d) of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003), which provides that among those disqualified to vote is an immigrant or a permanent resident (of another country) who is recognized as such in the host country, unless he/she executes an affidavit declaring the he/ she shall resume actual, physical, permanent residence in the Philippines not later than three years from approval of his/her registration under the said Act, and that he/she had not applied for citizenship in another country.

The Supreme Court said that inasmuch as the essence of R.A. 9189 is to enfranchise overseas qualified Filipinos, the Court should take a holistic view of the pertinent provisions of both the Constitution and R.A. 9189. The law was enacted in obeisance to the mandate of the first paragraph of Sec. 2, Art. V of the Constitution, that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that Sec. 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as defined in Art. VI of the Constitution. (G.R. No. 157013)