The marginalized overseas absentee non-voters

“Half a loaf is better than no loaf at all” was the argument presented to us in January of 2003 as we were furiously lobbying the Philippine Congress to pass the Overseas Absentee Voting (OAV) bill. Then Makati Representative “Teddy Boy” Locsin claimed he had enough votes to guarantee the defeat of the bill but expressed willingness to support the bill if it included what I then called the “poison pill” Locsin provision. We were asked to accept the compromise.

The “poison pill” provision required overseas Filipinos who are categorized as immigrants and permanent residents (numbering close to four million) to execute an affidavit declaring that they shall resume actual, physical, permanent residence in the Philippines not later than three years from approval of their applications for registration under the OAV law or face perpetual exclusion from the voters’ rolls and possible imprisonment for up to a year.

Locsin contended that failure to include his provision would render the OAV bill unconstitutional in violation of the “residence” requirement in the 1987 Philippine Constitution (Section 1 Article V) which requires that the voter “shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election.”

We argued that Section 2 of Article V of the same Constitution gave Congress the explicit power to provide “a system for absentee voting by qualified Filipinos abroad” that overrides the residence requirement of Section 1.

If the Constitution provided Congress with the power to provide a mechanism for excusing the “residence” requirement of Article 1 by the simple execution of an affidavit to return within 3 years, then Congress has the power to set the time period for the affidavit to return within 10 years or 20 years or to set none at all. There was no restriction provided by the Constitution to the system of absentee voting abroad that Congress creates.

In the end, however, the “half a loaf” compromisers in our lobby group prevailed and the Overseas Absentee Voting bill, with the “poison pill” provision, passed on February 13, 2003.

In 2004, the Department of Foreign Affairs (DFA) spent P112.71 million pesos ($2.68M) to set up 89 registration centers across the globe along with 44 posts in 154 areas designated for field overseas voter registration.

Out of an estimated pool of eight million overseas Filipinos in 2004, only 364,187 registered to vote, out of which barely 233,092 went on to actually vote.

The low turn-out prompted the Philippine Senate to conduct an investigation. On December 13, 2004, the Senate Committee chaired by Sen. Rodolfo Biazon determined that six factors caused the dismal showing. Included in the list was “immigrant disqualification”.

Not mentioned in the Biazon list of those unable to vote in the 2004 elections were dual citizens who were not allowed to register to vote as a result of a COMELEC ruling on September 23, 2003 declaring that dual citizens have no right to vote in such elections owing to their lack of the one-year residence requirement prescribed by the Constitution.

On April 1, 2004, Loida Nicolas-Lewis and 10 other dual citizens filed suit of mandamus in the Philippine Supreme Court to compel the COMELEC to allow them to register and vote in the May 2004 presidential elections. Although the issue was moot and academic by then, the Supreme Court nonetheless decided to consider it because of the “transcendental” issue involved: the propriety of allowing “duals” to participate and vote as absentee voters in future elections.

On August 4, 2006, in a decision penned by Chief Justice Artemio Panganiban, a unanimous Supreme Court ruled that dual citizens “must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting.”

Chief Justice Panganiban added: “as may be noted, 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 fact, the Supreme Court went further and ruled that even the foreign-born children of those “duals” who reacquired their Philippine citizenship before  the children turn 18 are entitled to Philippine citizenship and the right to vote in Philippine elections even if they had never ever 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 court noted.

There is certainly also “no rhyme nor reason” why permanent residents abroad, who spent most of their lives in the Philippines and who carry only Philippine passports, should have less rights to enjoy full civil and political rights as Philippine citizens than foreign-born dual citizens who have never set foot on Philippine soil. As the Supreme Court noted about duals, “Congress could not have plausibly intended such absurd situation.”

When Rep. Locsin met with the Filipino community at the Philippine Consulate in San Francisco in November of 2008, he asked why there was such a low turn-out of registered voters among overseas Filipinos. I told him point-blank it was all thanks to him. I blamed his “poison pill” provision for discouraging so many otherwise eligible overseas Filipinos from registering to vote.

Amazingly, Rep. Locsin admitted that in light of the Supreme Court decision in Nicolas-Lewis vs. Comelec, it was foolish to deny permanent residents abroad the right to vote in Philippine elections. He publicly promised that he would work to amend the law to remove the covenant to return in three years provision in the law. Unfortunately, term limits barred Rep. Locsin from running for re-election to the Batasan so that he could work to remove the onerous provision he authored.

On December 1, 2010, Akbayan Party-list Rep. Walden Bello delivered a speech in the Batasan supporting his sponsorship of House Bill 3201 amending the Overseas Voting Act of 2003. He explained that in the May 2010 elections, only 589,830 overseas Filipinos registered to vote, meaning “that more than 90% of Filipino citizens abroad were unable to participate in the election of our nation’s leaders. Our kababayans abroad were unable to exercise their right to select the decision-makers who will determine their welfare and the lives and livelihood of the families they left behind.”

“The inaccessibility of elections, their inability to exercise this intrinsic democratic right to vote is the height of political marginalization,” Bello added.

At the top of the list of “fundamental corrective legislative measures in the OAV”, according to Bello, is the “deletion of the provision that requires overseas Filipinos, numbering close to 4 million, who are categorized as immigrants and permanent residents to execute an affidavit declaring that they shall resume actual, physical permanent residence in the Philippines not later than 3 years from approval of their applications for registration under the OAV law.”

Finally, a full loaf, I thought. I eagerly sought to read House Bill 3201. The “Explanatory Note” at the preface of the bill sounded promising as it declared the intention of the bill to “delete” the offensive affidavit to return provision. I then read the bill and read it again and again. I just could not believe my eyes. The affidavit provision is intact in this bill! House Bill 3201 does not contain any provision deleting the affidavit requirement for permanent residents or immigrants abroad.It was so disappointing.

In his December 2010 HB 3201 sponsorship speech, Rep. Bello said:  “As representatives of the people, it is our duty to seek out our constituents and ensure their democratic right to vote. It is our duty to expand democratic space for the people at the margins. By fulfilling this duty, we are making a big step towards the improvement of Philippine democracy.”

Unfortunately, more than eight years later, the OAV law is still half a loaf and the marginalized are still marginalized.

(There will be a Batasan hearing on the amendments to the OAV law on Monday, Sept. 26, at 9:00 AM. Send comments to [email protected] or mail them to the Law Offices of Rodel Rodis at 2429 Ocean Avenue, San Francisco, CA 4127 or call 415.334.7800).