Manila, Feb. 18, 2003 -- A taxpayer's suit was filed before the Supreme Court yesterday seeking to declare null and void some provisions of the absentee voting law, particularly the provision allowing Filipino immigrants and green-card holders to participate in the 2004 elections.

Election lawyer Romulo Macalintal said some of the provisions in the newly enacted Absentee Voting Law violate the 1987 Constitution and can lead to a lot of problems during and after the national elections in May 2004.

In a 16-page petition, Macalintal asked the SC to stop the Commission on Elections (Comelec) from implementing the voters' registration of Filipino immigrants and permanent residents in other countries.

He also asked the court to stop the Department of Budget and Management (DBM) from disbursing funds for the implementation of the Absentee Voting Law by issuing a temporary restraining order and/or writ of preliminary injunction.

On Feb. 13, President Arroyo signed the Overseas Absentee Voting Act of 2003 (Republic Act 9189) granting seven million overseas Filipinos the opportunity to vote for candidates running for the electoral posts of president, vice president, senator and party-list representative.

Macalintal, through his lawyers Pete Quirino-Quadra and Sixto Brillantes Jr., argued that under Section 1, Article V of the 1987 Constitution, a citizen may exercise his or her right of suffrage, among others, if he has "resided in the Philippines for at least one year" and for at least six months "immediately preceding the election" in the place where he or she will vote.

But Section 5 of the RA 9189 allows an immigrant to or permanent resident of another country to vote if he or she executes an affidavit declaring that he or she will "resume actual physical permanent residence" in the Philippines within three years of registration as a Filipino voter, and states in that affidavit that he or she has not applied for citizenship in another country.

"The Constitution requires prior residency, not later," Brillantes said, "and certainly not one anchored on a mere promise of residency."

Besides that, Macalintal said immigration to the United States, which entitles one to reside permanently in the US, constitutes abandonment of domicile in the Philippines.

Macalintal cautioned the government that such a provision in RA 9189 may cause confusion in the electoral process. "What happens if the said immigrant or permanent resident is allowed to vote and does not return to the Philippines as he or she promised in the affidavit?"

He said the failure of permanent residents or immigrants to return to the Philippines after they voted "could even be a ground to contest the proclamation of the winning candidates ... and cause further confusion and doubt (regarding) the integrity of the election."

Macalintal said even some members of the Congressional Bicameral Conference, like Sen. Joker Arroyo, raised the same argument against the provision in question.

In his petition, Macalintal also sought to void the portion of RA 9189 giving Comelec the power to order the proclamation of winning candidates.

This provision, he said "encroaches upon the power of Congress to canvass votes for the president, vice president" and the power to proclaim winners for these positions.

Macalintal added that the provision in RA 9189 allowing the Congressional Oversight Committee to "review, revise amend and approve" the implementing rules and regulations the Comelec would promulgate for absentee voting is void. According to him, this is "an act of intrusion" into the Comelec's independence.

"As a constitutional body, the Comelec is not under the control of the executive, nor the legislative, department in the discharge of its constitutional duty," Macalintal said.

He added that it is only the Supreme court, upon the petition of an interested party, that has the power to review the rules on absentee voting crafted by the Comelec. (By Aurea Calica, Star)

Reported by: Sol Jose Vanzi

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