After the Overseas Absentee Voting (OAV) law was finally passed in 2003, its most enthusiastic supporters vowed to get it immediately amended as soon as possible. It would take almost a decade of patient lobbying but, finally, the global lobbying effort paid off with the passage by Congress of the Amended Overseas Voting Act (OVA) on February 7, 2013.
The OVA bill had the backing of President Benigno S. Aquino III, who received more than 65% of the overseas Filipino vote in the 2010 presidential elections and whose mother championed overseas Filipino suffrage. But, almost three months after the OVA was approved by Congress, the bill has not yet been signed into law and there are less than 13 days left before the May 13 national elections.
Just three months ago, Manila’s dailies announced that “before it adjourned for the campaign period for the midterm polls, Congress approved amendments to the law on overseas voting, which proponents hope could result in increased number of registrants for the2016 polls.” (“Congress OKs amended overseas voting law”, Feb. 8, 2013, Sun Star).
“The House of Representatives earlier this week ratified the bicameral conference committee report on House Bill 6542 and Senate Bill 3312. The Senate has also ratified the bicam report,” the Sun Star news report added.
Request to witness historic signing
Delegates attending the 2nd Global Summit of Filipinos in the Diaspora, held in Makati on Feb.25-27, requested that they be invited to Malacañang to witness Aquino’s signing of the OVA bill into law. These delegates included members of the US Pinoys for Good Governance (USP4GG) and the National Federation of Filipino American Associations (NaFFAA).
Mr. Paolo Domingo of the Appointments Office of Malacañang responded to the request on Feb. 26, 2013: “The President is sending his apologies as he will not be able to accommodate the request of USP4GG/NaFFAA officials to witness the signing of the OVA bill due to his full schedule.” Does this mean that the OVA was received by Malacañang?
Suffrage for overseas Filipinos
In January of 2003, I joined more than two dozen Filipino Americans who traveled to Manila to lobby the Philippine Congress to pass the Overseas Absentee Voting bill (Republic Act No. 9189). We had been working on suffrage for overseas Filipinos since we met with President Corazon “Cory” Aquino in Malacañang in April of 1986. Cory Aquino promised support for this right and included it in her 1987 amendment of the Philippine Constitution in 1987.Article IV, Section 2 of the 1987 Constitution states: “The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad.”
From 1987 on, various bills were introduced in the Philippine Congress to implement this constitutional provision but they all failed. It was not until January of 2003 when an overseas suffrage bill faced its best chance of passage.
Abandoned the Philippines?
Unfortunately, Makati Rep. Teddy Locsin, who was President Cory Aquino’s press secretary in 1986 when she announced her support for overseas Filipino suffrage, was by 2003 its major opponent. When I spoke with him about the bill in January of 2003, Locsin explained that he was opposed to it because, he said, Filipinos who “abandoned” the Philippines have no right to participate in its governance. I replied that Filipinos in the Middle East, in Hong Kong and Singapore and in other places around the world – who work in slave-like conditions as overseas contract workers to support their families in the Philippines – never “abandoned” the Philippines. The Philippines abandoned them!
Locsin should know that many Filipinos in the US left the Philippines because of their opposition to martial law, as some like Ninoy Aquino and his family were direct victims of martial law.
Poison pill amendment
By the first week of February of 2003, we were informed by the bill’s supporters that Rep. Locsin had offered to drop his opposition to the bill if the sponsors would accept a”friendly amendment”. When we heard what he wanted to include, we were outraged and said “no way!” But we were told that “half a loaf is better than no loaf at all.” If we didn’t accept Locsin’s amendment, we were told, the bill was doomed. The bill’s sponsors assured us: “let’s accept the bill with his amendment and then we will work to amend it after it passes.” We agreed, reluctantly, and the amended bill passed Congress and was quickly signed into law by President Gloria Macapagal-Arroyo on Feb. 23, 2003.
Imprisonment for ‘not less than a year’
Locsin’s amendment required overseas voters to sign an affidavit that they intend to return back to the Philippines within three years of registering to vote abroad. Section 24.9 then states: “Immigrants and permanent residents who do not resume residence in the Philippines as stipulated in their affidavit under Section 5(d) within three (3) years after approval of his/her registration under this Act and yet vote in the next elections contrary to the said section, shall be penalized by imprisonment of not less than one (1) year, and shall be deemed disqualified as provided in Section 5(c) of this Act. His/her passport shall be stamped “Not allowed to vote.” Not less than one year???
Though we feared that this draconian penalty would discourage any sane person from registering to vote, more than 350,000 actually did, many believing that the affidavit requirement would be removed sometime soon so they need not fear incarceration.
In that same year, Congress also passed the Dual Citizenship law otherwise known as the Citizenship Retention and Re-Acquisition Act of 2003 where a natural-born Philippine citizen who automatically lost his/her native citizenship due to naturalization as a citizen of a foreign country, would now be eligible to apply for Dual Citizenship, a right enjoyed by citizens in more than 99 countries around the world.
But when duly sworn dual citizens registered to vote for the 2004 Philippine presidential elections, the Commission on Elections (Comelec) rule that they were not eligible to vote in Philippine elections because they had not established a one-year residency in the Philippines, a “defect” that was remedied in the case of immigrants and OFWs by their executing the affidavit of intent to return within 3 years.
Nicolas-Lewis vs. Comelec
Confronted with the Comelec’s refusal to allow them to register and vote in Philippine elections despite their reacquisition of Philippine citizenship, Loida Nicolas-Lewis and nine other Filipino-Americans filed a petition for certiorari and mandamus with the Philippine Supreme Court on April 1, 2004 to order the Comelec to allow them to register and vote in time for the May 10, 2004 presidential elections.
But by the time the Supreme Court ruled on the petition of Loida Nicolas-Lewis, on June 10, 2006, the issue of the petitioners’ right to register and vote in the May 2004elections had been rendered moot and academic. But, writing on behalf of a unanimous Court, Justice Cancio Garcia noted that “the broader and transcendental issue tendered or subsumed in the petition, i.e., the propriety of allowing “duals” to participate and vote as absentee voters in future elections, however, remains unresolved.”
Duals’ right to vote
The Supreme Court then ruled that “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.” In other words,” duals could register to vote without having established residence in the Philippines.
In fact, the Supreme Court noted, “it is very likely that a considerable number of those unmarried children below eighteen (18) years of age had never set foot in the Philippines. Now then, if the next generation of “duals” may nonetheless avail themselves the right to enjoy full civil and political rights under Section 5 of the Act, then there is neither no rhyme nor reason why the petitioners and other present day “duals”… be denied the right of suffrage as an overseas absentee voter.”
The Nicolas-Lewis v. Comelec Supreme Court ruling opened the door for dual citizens to register and vote in the 2007and 2010 Philippine elections. In fact, there is some evidence that at least in the US, most of those who registered to vote for the 2007 and 2010 elections were dual citizens. “Duals” do not face the risk of going to jail for “not less than one year” as single citizens do.
Reason for low registration
When Rep. Locsin visited the San Francisco Philippine Consulate on November 8, 2008, he asked why so few overseas Filipinos registered to vote in Philippine elections. I told him it was his fault, it was because of the affidavit of intent to return provision he inserted in the 2003 OVA law. Rep. Locsin agreed that in light of the unanimous Supreme Court decision in the Nicolas-Lewis case, there was no longer any justification for the affidavit of intent to return. He promised that if he were reelected to the Batasan, he would sponsor a bill to remove it from the OAV law. But he was termed out of office.
Out of the 350,000 “single citizen” overseas Filipinos who registered to vote in 2004, more than 248,000 of them failed to vote in the 2007 and 2010 elections. At the OAV Summit held at the Comelec headquarters in Manila on September 28, 2011, Comelec Chair Sixto Brillantes declared that under Philippine election law, Comelec was required to remove these voters from the list of qualified voters for the May 2013 elections for their failure to vote in two consecutive elections.
I explained to Chairman Brillantes that because the affidavit of intent to return had not yet been removed from the law, many overseas voters reasonably feared that voting in the 2007 and 2010 elections would be evidence that they did not return back to the Philippines within three years as they promised in their affidavits. The possibility of incarceration for “not less than one year” discouraged them from exercising their right to vote.
No delisting of overseas voters?
Chairman Brillantes assured the OAV Summit attendees that those who registered to vote in 2004 elections and did not vote in the 2007 and 2010 elections would be allowed to vote in the 2013 elections.
However, on December 14, 2012, the Comelec reversed itself and voted to remove the 248,000 voters from the Comelec’s voter rolls.
This reversal drew the outrage of delegates attending the 2nd Global Summit who formed a delegation to meet with Comelec Chair Brillantes on March 1, 2013 to discuss the removal of the 248,000 overseas Filipino voters. As a result of the meeting, the Comelec reversed itself again and voted on March 5, 2013 to re-enfranchise all the delisted overseas voters if they show up at the Philippine Consulates where they originally registered in 2004 and fill out a manifestation of intent to vote.
With less than two weeks to go before the May 13, 2013 Philippine elections, the number of previously delisted voters who have shown up at the consulates to reclaim their right to vote has been pitifully low. One reason is that these overseas Filipino voters are still fearful of incarceration if they vote.
To disabuse them of this fear, whether real or grossly exaggerated, all that would be necessary is for Aquino to sign the Amended Overseas Voting Act into law as it includes a provision nullifying the affidavit of intent to return.
When OVA arrived in Malacañang
According to sources within the Commission on Overseas Filipinos (CFO), the OVA bill that was approved by Congress on February 7, 2013 has only been received in Malacañang this week, a snail pace that was the result of a byzantine congressional bureaucracy.
Although the Bicameral Conference Committee Report was approved by the Senate on February 5 and then approved by the House on February 6, the “consolidated bill” was not formally transmitted by the Senate Legislative Bills and Index Services to Senate President Juan Ponce-Enrile for his formal signature until March 18, 2013 and Enrile did not actually sign it until April 1, 2013. It was then transmitted to House Speaker Feliciano Belmonte on April 5, 2013 for his formal signature. Speaker Belmonte signed it only on April 29, 2013 and it was then when the OVA bill was formally transmitted to Malacañang for the signature of Aquino.
Aquino’s advisers may be informing him that there is no immediate need to sign the OVA into law now because the registration of overseas voters for the 2016 Philippine national elections will not begin until October 31, 2014. What Aquino should know is that perhaps as many as 248,000 single citizen Filipino voters abroad are waiting for him to sign a law that will remove for them the threat of a criminal penalty for failing to return back to the Philippines within three years of registering to vote in 2004.
President Aquino, please sign the Overseas Voting Act into law now. ASAP. There is so little time left.
(Please send comments to [email protected] or mail them to the Law Offices of Rodel Rodis at 2429 Ocean Avenue, San Francisco, CA 94127 or call 415.334.7800).