It is true that courts have the power to test the validity of legislative acts and determine whether they are in conformity with the Constitution. This power of the judiciary, known as the power of judicial review, is not an assertion of superiority over the other departments but merely an expression of the supremacy of the fundamental law of the land. Such power is exercised pursuant to the principle of checks and balances primarily to legitimize than to annul the acts of other departments; meaning that in case of doubt, those acts will be upheld.
But before the Supreme Court (or the lower courts where constitutional issues may also be raised) conducts such a review, there must be an actual case or controversy, a conflict of legal rights ripe for judicial adjudication not merely a hypothetical issue premised on contingent events still uncertain to occur. Furthermore, the question of constitutionality must be raised by the proper party or one who has sustained or is in imminent danger of sustaining an injury as a result of its enforcement. It is still highly debatable whether these requisites are existent in the present petition filed with the Supreme Court. So bringing the controversy to the said court is in itself a very controversial move.
There are indeed cases where a taxpayer has been recognized as a proper party to question the constitutionality of laws and that voters may be allowed to question the validity of election laws because of their obvious interest. However the discretion is still with the Court whether to entertain such suit or not. And there are enough grounds for the Court not to entertain this present petition questioning the validity of the absentee voting provision granting rights of suffrage to immigrants who are permanently residing abroad.
Judicial inquiry into a constitutional question is done only if there is necessity for doing so. Courts will not touch on the issue of constitutionality unless it is really unavoidable. The doctrine of separation of powers demands that proper respect be accorded other departments especially if their acts are not palpably unconstitutional.
The Absentee Voting Law provision in question is not plainly and unmistakably violative of Section 1 Article V providing, among others, that only citizens "who 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" are qualified to vote. "Residence" here is synonymous with "domicile" which means "that place where a man has his true, fixed and permanent home . . . and to which whenever he is absent he has the intention of returning". Nothing is clearer and more convincing in proving this intention to return (animus revertendi) than the citizenship of the person. Maintaining his allegiance to his country of origin means nothing else but retaining his intention to return to it because he considers it his true and only home. To be sure, it has already been ruled in several US cases that "citizenship" is a word which may mean precisely the same as "domicile". So even if a Filipino has already immigrated, he is still entitled to vote here as long as he remains a Filipino citizen.
Of course the other side of the coin says that permanent residency abroad is the best proof of renouncing the animus revertendi. But precisely because the interpretation can go either way, doubt already exists and if there is such doubt, it should be resolved in favor of constitutionality of the law. This is in consonance with the legitimating function of judicial review best expressed by the words, to doubt is to sustain.
How about giving our OCW’s a break, please?