Full Case 9-9-15

G.R. No.
120265 September 18, 1995

AGAPITO A. AQUINO, petitioner,
vs.
COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO BEDON and JUANITO ICARO, respondents.
KAPUNAN, J.:
The sanctity of the people's will must be observed at all times if our nascent democracy is to be
preserved. In any challenge having the effect of reversing a democratic choice, expressed through the
ballot, this Court should be ever so vigilant in finding solutions which would give effect to the will of the
majority, for sound public policy dictates that all elective offices are filled by those who have received the
highest number of votes cast in an election. When a challenge to a winning candidate's qualifications
however becomes inevitable, the ineligibility ought to be so noxious to the Constitution that giving effect
to the apparent will of the people would ultimately do harm to our democratic institutions.
On March 20, 1995, petitioner Agapito A. Aquino filed his Certificate of Candidacy for the position of
Representative for the new Second Legislative District of Makati City. Among others, Aquino provided the
following information in his certificate of candidacy, viz:.
(7) RESIDENCE (Complete Address): 284 AMAPOLA COR. ADALLA STS., PALM VILLAGE,
MAKATI.
xxx xxx xxx
(8) RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION: ______ Years and 10 Months.
xxx xxx xxx
THAT I AM ELIGIBLE for said Office; That I will support and defend the Constitution of the
Republic of the Philippines and will maintain true faith and allegiance thereto; That I will
obey the law, rules and decrees promulgated by the duly constituted authorities; That
the obligation imposed to such is assumed voluntarily, without mental reservation or
purpose of evasion, and that the facts therein are true to the best of my knowledge. 1
On April 24, 1995, Move Makati, a duly registered political party, and Mateo Bedon, Chairman of the
LAKAS-NUCD-UMDP of Barangay Cembo, Makati City, filed a petition to disqualify Agapito A. Aquino 2 on
the ground that the latter lacked the residence qualification as a candidate for congressman which, under
Section 6, Art. VI of the 1987 the Constitution, should be for a period not less than one (1) year
immediately preceding the May 8, 1995 elections. The petition was docketed as SPA No. 95-113 and was
assigned to the Second Division of the Commission on Elections (COMELEC).
On April 25, 1995, a day after said petition for disqualification was filed, petitioner filed another
certificate of candidacy amending the certificate dated March 20, 1995. This time, petitioner stated in
Item 8 of his certificate that he had resided in the constituency where he sought to be elected for one (l)
year and thirteen (13) days. 3
On May 2, 1995, petitioner filed his Answer dated April 29, 1995 praying for the dismissal of the
disqualification case. 4
On the same day, May 2, 1995, a hearing was conducted by the COMELEC wherein petitioner testified
and presented in evidence, among others, his Affidavit dated May 2, 1995, 5 lease contract between
petitioner and Leonor Feliciano dated April 1, 1994, 6 Affidavit of Leonor Feliciano dated April
28,1995 7 and Affidavit of Daniel Galamay dated April 28, 1995. 8
After hearing of the petition for disqualification, the Second Division of the COMELEC promulgated a
Resolution dated May 6, 1995, the decretal portion of which reads:
WHEREFORE, in view of the foregoing, this Commission (Second Division) RESOLVES to
DISMISS the instant: petition for Disqualification against respondent AGAPITO AQUINO
and declares him ELIGIBLE to run for the Office of Representative in the Second
Legislative District of Makati City.
SO ORDERED. 9
On May 7, 1995, Move Makati and Mateo Bedon filed a Motion for Reconsideration of the May 6, 1995
resolution with the COMELEC en banc.
Meanwhile, on May 8, 1995, elections were held. In Makati City where three (3) candidates vied for the
congressional seat in the Second District, petitioner garnered thirty eight thousand five hundred forty
seven (38,547) votes as against another candidate, Agusto Syjuco, who obtained thirty five thousand nine
hundred ten (35,910) votes. 10
On May 10, 1995, private respondents Move Makati and Bedon filed an Urgent Motion Ad Cautelum to
Suspend Proclamation of petitioner. Thereafter, they filed an Omnibus Motion for Reconsideration of the
COMELEC's Second Division resolution dated May 6, 1995 and a 2nd Urgent Motion Ad Cautelum to
Suspend Proclamation of petitioner.
On May 15, 1995, COMELEC en banc issued an Order suspending petitioner's proclamation. The
dispositive portion of the order reads:
WHEREFORE, pursuant to the provisions of Section 6 of Republic Act No. 6646, the Board
of Canvassers of the City of Makati is hereby directed to complete the canvassing of
election returns of the Second District of Makati, but to suspend the proclamation of
respondent Agapito A. Aquino should he obtain the winning number of votes for the
position of Representative of the Second District of the City of Makati, until the motion
for reconsideration filed by the petitioners on May 7, 1995, shall have been resolved by
the Commission.
The Executive Director, this Commission, is directed to cause the immediate
implementation of this Order. The Clerk of Court of the Commission is likewise directed
to inform the parties by the fastest means available of this Order, and to calendar the
hearing of the Motion for Reconsideration on May 17, 1995, at 10:00 in the morning,
PICC Press Center, Pasay City.
SO ORDERED. 11
On May 16, 1995, petitioner filed his Comment/Opposition with urgent motion to lift order of suspension
of proclamation.
On June 1, 1995, petitioner filed a "Motion to File Supplemental Memorandum and Motion to Resolve
Urgent Motion to Resolve Motion to Lift Suspension of Proclamation" wherein he manifested his
intention to raise, among others, the issue of whether of not the determination of the qualifications of
petitioner after the elections is lodged exclusively in the House of Representatives Electoral Tribunal
pursuant to Section 17, Article VI of the 1987 Constitution.
Resolving petitioner's motion to lift suspension of his proclamation, the COMELEC en banc issued an
Order on June 2, 1995, the decretal portion thereof residing:
Pursuant to the said provisions and considering the attendant circumstances of the case,
the Commission RESOLVED to proceed with the promulgation but to suspend its rules, to
accept the filing of the aforesaid motion, and to allow the parties to be heard thereon
because the issue of jurisdiction now before the Commission has to be studied with more
reflection and judiciousness. 12
On the same day, June 2, 1995, the COMELEC en banc issued a Resolution reversing the resolution of the
Second Division dated May 6, 1995. The fallo reads as follows:
WHEREFORE, in view of the foregoing, petitioners' Motion for Reconsideration of the
Resolution of the Second Division, promulgated on May 6, 1995, is GRANTED.
Respondent Agapito A. Aquino is declared ineligible and thus disqualified as a candidate
for the Office of Representative of the Second Legislative District of Makati City in the
May 8, 1995 elections, for lack of the constitutional qualification of residence.
Consequently, the order of suspension of proclamation of the respondent should he
obtain the winning number of votes, issued by this Commission on May 15, 1995 is now
made permanent.
Upon the finality of this Resolution, the Board of Canvassers of the City of Makati shall
immediately reconvene and, on the basis of the completed canvass of election returns,
determine the winner out of the remaining qualified candidates, who shall be
immediately be proclaimed.
SO ORDERED. 13
Hence, the instant Petition for Certiorari 14 assailing the orders dated May 15, 1995 and June 2, 1995, as
well as the resolution dated June 2, 1995 issued by the COMELEC en banc. Petitioner's raises the
following errors for consideration, to wit:
A
THE COMELEC HAS NO JURISDICTION TO DETERMINE AND ADJUDGE THE
DISQUALIFICATION ISSUE INVOLVING CONGRESSIONAL CANDIDATES AFTER THE MAY 8,
1995 ELECTIONS, SUCH DETERMINATION BEING RESERVED TO AND LODGE EXCLUSIVELY
WITH THE HOUSE OF REPRESENTATIVE ELECTORAL TRIBUNAL
B
ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, SAID JURISDICTION
CEASED IN THE INSTANT CASE AFTER THE ELECTIONS, AND THE REMEDY/IES AVAILABLE
TO THE ADVERSE PARTIES LIE/S IN ANOTHER FORUM WHICH, IT IS SUBMITTED, IS THE
HRET CONSISTENT WITH SECTION 17, ARTICLE VI OF THE 1987 CONSTITUTION
C
THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT PROCEEDED TO
PROMULGATE ITS QUESTIONED DECISION (ANNEX "C", PETITION) DESPITE IT OWN
RECOGNITION THAT A THRESHOLD ISSUE OF JURISDICTION HAS TO BE JUDICIOUSLY
REVIEWED AGAIN, ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, THE
COMELEC COMMITTED GRAVE ABUSE OF DISCRETION, AND SERIOUS ERROR IN
DIRECTING WITHOUT NOTICE THE SUSPENSION OF THE PROCLAMATION OF THE
PETITIONER AS THE WINNING CONGRESSIONAL CANDIDATE AND DESPITE THE
MINISTERIAL NATURE OF SUCH DUTY TO PROCLAIM (PENDING THE FINALITY OF THE
DISQUALIFICATION CASE AGAINST THE PETITIONER) IF ONLY NOT TO THWART THE
PEOPLE'S WILL.
D
THE COMELEC'S FINDING OF NON-COMPLIANCE WITH THE RESIDENCY REQUIREMENT OF
ONE YEAR AGAINST THE PETITIONER IS CONTRARY TO EVIDENCE AND TO APPLICABLE
LAWS AND JURISPRUDENCE.
E
IN ANY CASE, THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL
IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF
CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE
ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY
FOUR MONTHS IN THE CASE OF PETITIONER'S DISTRICT IN MAKATI OF CONGRESSIONAL.
F
THE COMELEC COMMITTED SERIOUS ERROR AMOUNTING TO LACK OF JURISDICTION
WHEN IT ORDERED THE BOARD OF CANVASSERS TO "DETERMINE AND PROCLAIM THE
WINNER OUT OF THE REMAINING QUALIFIED CANDIDATES" AFTER THE ERRONEOUS
DISQUALIFICATION OF YOUR PETITIONER IN THAT SUCH DIRECTIVE IS IN TOTAL
DISREGARD OF THE WELL SETTLED DOCTRINE THAT A SECOND PLACE CANDIDATE OR

PERSON WHO WAS REPUDIATED BY THE ELECTORATE IS A LOSER AND CANNOT BE
PROCLAIMED AS SUBSTITUTE
WINNER. 15
I
In his first three assignments of error, petitioner vigorously contends that after the May 8, 1995 elections,
the COMELEC lost its jurisdiction over the question of petitioner's qualifications to run for member of the
House of Representatives. He claims that jurisdiction over the petition for disqualification is exclusively
lodged with the House of Representatives Electoral Tribunal (HRET). Given the yet unresolved question of
jurisdiction, petitioner avers that the COMELEC committed serious error and grave abuse of discretion in
directing the suspension of his proclamation as the winning candidate in the Second Congressional
District of Makati City. We disagree.
Petitioner conveniently confuses the distinction between an unproclaimed candidate to the House of
Representatives and a member of the same. Obtaining the highest number of votes in an election does
not automatically vest the position in the winning candidate. Section 17 of Article VI of the 1987
Constitution reads:
The Senate and the House of Representatives shall have an Electoral Tribunal which shall
be the sole judge of all contests relating to the election, returns and qualifications of their
respective Members.
Under the above-stated provision, the electoral tribunal clearly assumes jurisdiction over all contests
relative to the election, returns and qualifications of candidates for either the Senate or the House only
when the latter becomemembers of either the Senate or the House of Representatives. A candidate who
has not been proclaimed 16 and who has not taken his oath of office cannot be said to be a member of the
House of Representatives subject to Section. 17 of the Constitution. While the proclamation of a winning
candidate in an election is ministerial, B.P. 881 in conjunction with Sec 6 of R.A. 6646 allows suspension of
proclamation under circumstances mentioned therein. Thus, petitioner's contention that "after the
conduct of the election and (petitioner) has been established the winner of the electoral exercise from
the moment of election, the COMELEC is automatically divested of authority to pass upon the question of
qualification" finds no basis, because even after the elections the COMELEC is empowered by Section 6
(in relation to Section 7) of R.A. 6646 to continue to hear and decide questions relating to qualifications of
candidates Section 6 states:
Sec. 6. Effect of Disqualification Case. Any candidate, who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes
in such election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of guilt is strong.
Under the above-quoted provision, not only is a disqualification case against a candidate allowed to
continue after the election (and does not oust the COMELEC of its jurisdiction), but his obtaining the
highest number of votes will not result in the suspension or termination of the proceedings against him
when the evidence of guilt is strong. While the phrase "when the evidence of guilt is strong" seems to
suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section
68 of the Omnibus Election Code, Section 7 of R.A. 6646 allows the application of the provisions of
Section 6 to cases involving disqualification based on ineligibility under Section 78 of B.P. 881. Section 7
states:
Sec. 7. Petition to Deny Due Course or to Cancel a Certificate of Candidacy. The
procedure hereinabove provided shall apply to petition to deny due course to or cancel a
certificate of candidacy based on Sec. 78 of Batas Pambansa 881.
II
We agree with COMELEC's contention that in order that petitioner could qualify as a candidate for
Representative of the Second District of Makati City the latter "must prove that he has established not
just residence but domicile of choice. 17
The Constitution requires that a person seeking election to the House of Representatives should be
a resident of thedistrict in which he seeks election for a period of not less than one (l) year prior to the
elections. 18 Residence, for election law purposes, has a settled meaning in our jurisdiction.
In Co v. Electoral Tribunal of the House of Representatives 19 this Court held that the term "residence" has
always been understood as synonymous with "domicile" not only under the previous Constitutions but
also under the 1987 Constitution. The Court there held: 20
The deliberations of the Constitutional Commission reveal that the meaning of
residence vis-a-vis the qualifications of a candidate for Congress continues to remain the
same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971
Constitutional Convention, there was an attempt to require residence in
the place not less than one year immediately preceding the day of
elections. So my question is: What is the Committee's concept of
domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of the
National Assembly are concerned, the proposed section merely provides,
among others, and a resident thereof', that is, in the district, for a period
of not less than one year preceding the day of the election. This was in
effect lifted from the 1973 Constitution, the interpretation given to it was
domicile (emphasis ours) Records of the 1987 Constitutional Convention,
Vol. II, July 22, 1986, p. 87).
xxx xxx xxx
Mrs. Rosario Braid: The next question is on section 7, page 2. I think

Commissioner Nolledo has raised the same point that "resident" has
been interpreted at times as a matter of intention rather than actual
residence.
Mr. De Los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper
time to go back to actual residence rather than mere intention to reside?
Mr. De los Reyes: But We might encounter some difficulty especially
considering that the provision in the Constitution in the Article on
Suffrage says that Filipinos living abroad may vote as enacted by law.
So, we have to stick to the original concept that it should be by domicile
and not physical and actual residence. (Records of the 1987
Constitutional Commission, Vol. II, July 22, 1986, p. 110).
The framers of the Constitution adhered to the earlier definition given to the word
"residence" which regarded it as having the same meaning as domicile.
Clearly, the place "where a party actually or constructively has his permanent home," 21 where he, no
matter where he may be found at any given time, eventually intends to return and remain, i.e., his
domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election
law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained
in Gallego vs. Vera at 22 is "to exclude strangers or newcomers unfamiliar with the conditions and needs
of the community" from taking advantage of favorable circumstances existing in that community for
electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for
meeting election law requirements, this nonetheless defeats the essence of representation, which is to
place through the assent of voters those most cognizant and sensitive to the needs of a particular district,
if a candidate falls short of the period of residency mandated by law for him to qualify. That purpose
could be obviously best met by individuals who have either had actual residence in the area for a given
period or who have been domiciled in the same area either by origin or by choice. It would, therefore, be
imperative for this Court to inquire into the threshold question as to whether or not petitioner actually
was a resident for a period of one year in the area now encompassed by the Second Legislative District of
Makati at the time of his election or whether or not he was domiciled in the same.
As found by the COMELEC en banc petitioner in his Certificate of Candidacy for the May 11, 1992
elections, indicated not only that he was a resident of San Jose, Concepcion, Tarlac in 1992 but that he
was a resident of the same for 52 years immediately preceding that election. 23 At the time, his certificate
indicated that he was also a registered voter of the same district. 24 His birth certificate places
Concepcion, Tarlac as the birthplace of both of his parents Benigno and Aurora. 25 Thus, from data
furnished by petitioner himself to the COMELEC at various times during his political career, what stands
consistently clear and unassailable is that this domicile of origin of record up to the time of filing of his
most recent certificate of candidacy for the 1995 elections was Concepcion, Tarlac.
Petitioner's alleged connection with the Second District of Makati City is an alleged lease agreement of
condominium unit in the area. As the COMELEC, in its disputed Resolution noted:
The intention not to establish a permanent home in Makati City is evident in his leasing a
condominium unit instead of buying one. While a lease contract maybe indicative of
respondent's intention to reside in Makati City it does not engender the kind of
permanency required to prove abandonment of one's original domicile especially since,
by its terms, it is only for a period of two (2) years, and respondent Aquino himself
testified that his intention was really for only one (l) year because he has other
"residences" in Manila or Quezon City. 26
While property ownership is not and should never be an indicia of the right to vote or to be voted upon,
the fact that petitioner himself claims that he has other residences in Metro Manila coupled with the
short length of time he claims to be a resident of the condominium unit in Makati (and the fact, of his
stated domicile in Tarlac) "indicate that the sole purpose of (petitioner) in transferring his physical
residence" 27 is not to acquire's new residence or domicile"but only to qualify as a candidate for
Representative of the Second District of Makati City." 28 The absence of clear and positive proof showing a
successful abandonment of domicile under the conditions stated above, the lack of identification
sentimental, actual or otherwise with the area, and the suspicious circumstances under which the
lease agreement was effected all belie petitioner's claim of residency for the period required by the
Constitution, in the Second District of Makati. As the COMELEC en banc emphatically pointed out:
[T]he lease agreement was executed mainly to support the one year residence
requirement as a qualification for a candidate of Representative, by establishing a
commencement date of his residence. If a perfectly valid lease agreement cannot, by
itself establish; a domicile of choice, this particular lease agreement cannot do better. 29
Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion
which is hardly supported by the facts in the case at bench. Domicile of origin is not easily lost. To
successfully effect a change ofdomicile, petitioner must prove an actual removal or an actual change
of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one
and definite acts which correspond with the purpose. 30 These requirements are hardly met by the
evidence adduced in support of petitioner's claims of a change ofdomicile from Tarlac to the Second
District of Makati. In the absence of clear and positive proof, the domicile of origin be deemed to
continue requirements are hardly met by the evidence adduced in support of petitioner's claims of a
change of domicile from Tarlac to the Second District of Makati. In the absence of clear and positive
proof, the domicile of origin should be deemed to continue.
Finally, petitioner's submission that it would be legally impossible to impose the one year residency
requirement in a newly created political district is specious and lacks basis in logic. A new political district
is not created out of thin air. It is carved out from part of a real and existing geographic area, in this case
the old Municipality of Makati. That people actually lived or were domiciled in the area encompassed by
the new Second District cannot be denied. Modern-day carpetbaggers cannot be allowed take advantage
of the creation of new political districts by suddenly transplanting themselves in such new districts,
prejudicing their genuine residents in the process of taking advantage of existing conditions in these
areas. It will be noted, as COMELEC did in its assailed resolution, that petitioner was disqualified from
running in the Senate because of the constitutional two-term limit, and had to shop around for a place
where he could run for public office. Nothing wrong with that, but he must first prove with reasonable
certainty that he has effected a change of residence for election law purposes for the period required by
law. This he has not effectively done.
III
The next issue here is whether or not the COMELEC erred in issuing it Order instructing the Board of
Canvassers of Makati City to proclaim as winner the candidate receiving the next higher number of votes.
The answer must be in the negative.
To contend that Syjuco should be proclaimed because he was the "first" among the qualified candidates
in the May 8, 1995 elections is to misconstrue the nature of the democratic electoral process and the
sociological and psychological underpinnings behind voters' preferences. The result suggested by private
respondent would lead not only to our reversing the doctrines firmly entrenched in the two cases
of Labo vs. Comelec 31 but also to a massive disenfranchisement of the thousands of voters who cast their
vote in favor of a candidate they believed could be validly voted for during the elections. Had petitioner
been disqualified before the elections, the choice, moreover, would have been different. The votes for
Aquino given the acrimony which attended the campaign, would not have automatically gone to second
placer Syjuco. The nature of the playing field would have substantially changed. To simplistically assume
that the second placer would have received the other votes would be to substitute our judgment for the
mind of the voter. The second placer is just that, a second placer. He lost the elections. He was
repudiated by either a majority or plurality of voters. He could not be considered the first among qualified
candidates because in a field which excludes the disqualified candidate, the conditions would have
substantially changed. We are not prepared to extrapolate the results under such circumstances.
In these cases, the pendulum of judicial opinion in our country has swung from one end to the other. In
the early case of Topacio v. Paredes. 32 we declared as valid, votes cast in favor of a disqualified, ineligilble
or dead candidate provided the people who voted for such candidate believed in good faith that at the
time of the elections said candidate was either qualified, eligible or alive. The votes cast in favor of a
disqualified, ineligible or dead candidate who obtained the next higher number of votes cannot be
proclaimed as winner. According to this Court in the said case, "there is not, strictly speaking, a contest,
that wreath of victory cannot be transferred from an ineligible candidate to any other candidate when
the sole question is the eligibility of the one receiving the plurality of the legally cast ballots."
Then in Ticson v. Comelec, 33 this Court held that votes cast in favor of a non-candidate in view of his
unlawful change of party affiliation (which was then a ground for disqualification) cannot be considered in
the canvassing of election returns and the votes fall into the category of invalid and nonexistent votes
because a disqualified candidate is no candidate at all and is not a candidate in the eyes of the law. As a
result, this Court upheld the proclamation of the only candidate left in the disputed position.
In Geronimo v. Ramos 34 we reiterated our ruling in Topacio v. Paredes that the candidate who lost in an
election cannot be proclaimed the winner in the event the candidate who ran for the portion is ineligible.
We held in Geronimo:
[I]t would be extremely repugnant to the basic concept of the constitutionally
guaranteed right to suffrage if a candidate who has not acquired the majority or plurality
of votes is proclaimed a winner and imposed as the representative of a constituency, the
majority of which have positively declared through their ballots that they do not choose
him.
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is fundamental idea in
all republican forms of government that no one can be declared elected and no measure
can be declared carried unless he or it receives a majority or plurality of the legal votes
cast in the elections. (20 Corpus Juris 2nd, S 243, p. 676.)
However, in Santos v. Comelec 35 we made a turnabout from our previous ruling in Geronimo
v. Ramos and pronounced that "votes cast for a disqualified candidate fall within the category of invalid or
non-existent votes because a disqualified candidate is no candidate at all in the eyes of the law," reverting
to our earlier ruling in Ticson v. Comelec.
In the more recent cases of Labo, Jr. v. Comelec 36 Abella v. Comelec; 37 and Benito v. Comelec, 38 this
Court reiterated and upheld the ruling in Topacio v. Paredes and Geronimo v. Ramos to the effect that the
ineligibility of a candidate receiving the next higher number of votes to be declared elected, and that a
minority or defeated candidate cannot be declared elected to the office. In these cases, we put emphasis
on our pronouncement in Geronimo v. Ramos that:
The fact that a candidate who obtained the highest number of votes is later declared to
be disqualified or not eligible for the office to which he was elected does not necessarily
entitle the candidate who obtained the second highest number of votes to be declared
the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible
person may be valid to vote the winner into office or maintain him there. However, in the
absence of a statute which clearly asserts a contrary political and legislative policy on the
matter, if the votes were cast in sincere belief that candidate was alive, qualified, or
eligible; they should not be treated as stray, void or meaningless.
Synthesizing these rulings we declared in the latest case of Labo, Jr. v. COMELEC that: 39
While Ortega may have garnered the second highest number of votes for the office of
city mayor, the fact remains that he was not the choice of the sovereign will. Petitioner
Labo was overwhelmingly voted by the electorate for the office of mayor in the belief
that he was then qualified to serve the people of Baguio City and his subsequent
disqualification does not make respondent Ortega the mayor-elect. This is the import of
the recent case of Abella v. Comelec (201 SCRA 253 [1991]), wherein we held that:
While it is true that SPC No. 88-546 was originally a petition to deny due
course to the certificate of candidacy of Larrazabal and was filed before
Larrazabal could be proclaimed the fact remains that the local
elections of Feb. 1, 1988 in the province of Leyte proceeded with
Larrazabal considered as a bona fide candidate. The voters of the
province voted for her in the sincere belief that she was a qualified
candidate for the position of governor.Her votes was counted and she
obtained the highest number of votes. The net effect is that petitioner
lost in the election. He was repudiated by the electorate. . . What
matters is that in the event a candidate for an elected position who is
voted for and who obtains the highest number of votes is disqualified for
not possessing the eligibility, requirements at the time of the election as
provided by law, the candidate who obtains the second highest number
of votes for the same position cannot assume the vacated position.
(Emphasis supplied).
Our ruling in Abella applies squarely to the case at bar and we see no compelling reason
to depart therefrom. Like Abella, petitioner Ortega lost in the election. He was
repudiated by the electorate. He was obviously not the choice of the people of Baguio
City.
Thus, while respondent Ortega (G.R. No. 105111) originally filed a disqualification case
with the Comelec (docketed as SPA-92-029) seeking to deny due course to petitioner's
(Labo's) candidacy, the same did not deter the people of Baguio City from voting for
petitioner Labo, who, by then, was allowed by the respondent Comelec to be voted
upon, the resolution for his disqualification having yet to attain the degree of finality (Sec.
78, Omnibus Election Code).
And in the earlier case of Labo v. Comelec. (supra), We held:
Finally, there is the question of whether or not the private respondent,
who filed the quo warranto petition, can replace the petitioner as mayor.
He cannot. The simple reason is that as he obtained only the second
highest number of votes in the election, he was obviously not the choice
of the people of Baguio City.
The latest ruling of the Court in this issue is Santos v. Commission on
Election, (137 SCRA 740) decided in 1985. In that case, the candidate
who placed second was proclaimed elected after the votes for his
winning rival, who was disqualified as a turncoat and considered a noncandidate, were all disregarded as stray. In effect, the second placer won
by default. That decision was supported by eight members of the Court
then (Cuevas J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova,
De la Fuente, Alampay, and Aquino, JJ., concurring) with three dissenting
(Teehankee, acting C.J.,Abad Santos and Melencio-Herrera) and another
two reserving their votes (Plana and Gutierrez, Jr.). One was on official
leave (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be reversed in
favor of the earlier case of Geronimo v. Santos (136 SCRA 435), which represents the
more logical and democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio vs. Paredes (23 Phil. 238) was supported by ten members
of the Court. . . .
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not
entitle the eligible candidate receiving the next highest number of votes to be declared
elected. A minority or defeated candidate cannot be deemed elected to the office.
Indeed, this has been the rule in the United States since 1849 (State ex rel. Dunning v.
Giles, 52 Am. Dec. 149).
It is therefore incorrect to argue that since a candidate has been disqualified, the votes
intended for the disqualified candidate should, in effect, be considered null and void. This
would amount to disenfranchising the electorate in whom, sovereignty resides. At the
risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona
fide without any intention to missapply their franchise, and in the honest belief that Labo
was then qualified to be the person to whom they would entrust the exercise of the
powers of the government. Unfortunately, petitioner Labo turned out to be disqualified
and cannot assume the office.
Whether or not the candidate whom the majority voted for can or cannot be installed,
under no circumstances can a minority or defeated candidate be deemed elected to the
office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the
27,471 votes cast for petitioner Labo (as certified by the Election Registrar of Baguio
City; rollo, p. 109; G.R. No. 105111).
This, it bears repeating, expresses the more logical and democratic view. We cannot, in another shift of
the pendulum, subscribe to the contention that the runner-up in an election in which the winner has
been disqualified is actually the winner among the remaining qualified candidates because this clearly
represents a minority view supported only by a scattered number of obscure American state and English
court decisions. 40 These decisions neglect the possibility that the runner-up, though obviously qualified,
could receive votes so measly and insignificant in number that the votes they receive would be
tantamount to rejection. Theoretically, the "second placer" could receive just one vote. In such a case, it
is absurd to proclaim the totally repudiated candidate as the voters' "choice." Moreover, even in
instances where the votes received by the second placer may not be considered numerically insignificant,
voters preferences are nonetheless so volatile and unpredictable that the result among qualified
candidates, should the equation change because of the disqualification of an ineligible candidate, would
not be self-evident. Absence of the apparent though ineligible winner among the choices could lead to a
shifting of votes to candidates other than the second placer. By any mathematical formulation, the
runner-up in an election cannot be construed to have obtained a majority or plurality of votes cast where
an "ineligible" candidate has garnered either a majority or plurality of the votes.
In fine, we are left with no choice but to affirm the COMELEC's conclusion declaring herein petitioner
ineligible for the elective position of Representative of Makati City's Second District on the basis of
respondent commission's finding that petitioner lacks the one year residence in the district mandated by
the 1987 Constitution. A democratic government is necessarily a government of laws. In a republican
government those laws are themselves ordained by the people. Through their representatives, they
dictate the qualifications necessary for service in government positions. And as petitioner clearly lacks
one of the essential qualifications for running for membership in the House of Representatives, not even
the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a
requirement mandated by the fundamental law itself.
WHEREFORE, premises considered, the instant petition is hereby DISMISSED. Our Order restraining
respondent COMELEC from proclaiming the candidate garnering the next highest number of votes in the
congressional elections for the Second District of Makati City is made PERMANENT.
SO ORDERED.
Regalado, Melo, Puno and Hermosisima, Jr., JJ., concur.
Feliciano, J., is on leave.
Separate Opinions
PADILLA, J., concurring:

I agree with the conclusion reached by the majority that petitioner Aquino has not shown by clear and
convincing evidence that he had established his residence in the second district of Makati City for a
period of not less than one (1) year prior to the 8 May 1995 elections. However, I do not fully subscribe to
its proposition that petitioner's residence (in Makati) should be his "domicile of choice".
Article VI, Section 6 of the Constitution provides that:
No person shall be a member of the House of Representatives unless he is a natural-born
citizen of the Philippines and on the day of the election, is at least twenty-five years of
age, able to read and write, and, except the party list representatives, a registered voter
in the district in which he shall be elected,and a resident thereof for a period of not less
than one year immediately preceding the day of the election. (emphasis supplied).
In G.R. No. 119976, Marcos vs. Comelec, I have maintained that the phrase "a resident thereof for a
period of not less than one year" means actual and physical presence in the legislative district of the
congressional candidate, and that said period of one year must be satisfied regardless of whether or not a
person's residence or domicile coincides.
To my mind, petitioner should be declared disqualified to run as representative in the 2nd district of
Makati City in the 8 May 1995 elections not because he failed to prove his residence therein as his
domicile of choice, but because he failed altogether to prove that he had actually and physically resided
therein for a period of not less than one (1) year immediately preceding the 8 May 1995 elections.
Noteworthy is the established fact before the Comelec that petitioner admits having maintained other
residences in Metro Manila apart from his leased condominium unit in Makati's 2nd district. 1 This clear
admission made by petitioner against his interest weakens his argument that "where a party decides to
transfer his legal residence so he can qualify for public office, he is free to do so." (see p. 20, Petition).
Petitioner evidently wants to impress the Court that his other residences in Metro Manila could never
have become his domicile of choice because it never entered his mind and suddenly, seemingly not
contented with these other residences, he rents a condominium unit in Makati, and calls it his domicile of
choice all these without adding clear and convincing evidence that he did actually live and reside in
Makati for at least one year prior to 8 May 1995 and that he no longer lived and resided in his other
residences during said one year period.
It follows, likewise, that the lease contract relied upon by petitioner, standing alone, established only the
alleged date (April 25, 1994) of its due execution. Stated otherwise, the lease contract tells us that
petitioner had been leasing a condominium unit in Makati City for more than a year prior to 8 May 1995,
but it does not prove that petitioner actually and physically resided therein for the same period, in the
light of his admission that he maintained other residences in Metro Manila.
In light of petitioner's disqualification, the corrollary issue to be resolved is whether or not jurisdiction
continued to be vested in the Comelec to order the Makati Board of Canvassers" to determine and
proclaim the winner out of the remaining qualified candidates" after petitioner had been declared post 8
May 1995 as disqualified.
I agree with the proposition advanced by the Solicitor General that sec. 6 of R.A. 6646 clearly provides
that votes cast for a disqualified candidate shall not be counted, thus:
Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final
whenever the evidence of his guilt is strong.
There can be no dispute that if a final judgment is rendered before the election, declaring a particular
candidate as disqualified, such disqualified candidate shall not be voted for and votes cast for him shall
not be counted, thus posing no problem in proclaiming the candidate who receives the highest number of
votes among the qualified candidates.
But what about after the election? Sec. 6 appears categorical enough in stating: "if any reason" no final
judgment of disqualification is rendered before the elections, and the candidate facing disqualification is
voted for and receives the winning number of votes, the Comelec or the Court is not ousted of its
jurisdiction to hear and try the case up to final judgment, hence, the power to even suspend the
proclamation of the erstwhile winning candidate when evidence of his guilt is strong.
It thus appears clear that the law does not dichotomize the effect of a final judgment of disqualification in
terms of time considerations. There is only one natural and logical effect: the disqualified candidate shall
not be voted and, if voted, the votes cast for him shall not be counted. Ubi lex non distinguit nec nos
distinguere debemus (where the law does not distinguish, we should not distinguish.)
At this point, what I said in Marcos, supra, follows:
What happens then when after the elections are over, one is declared disqualified? Then,
votes cast for him "shall not be counted" and in legal contemplation, he no longer
received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the winner
simply because a "winning candidate is disqualified," but that the law considers him as
the candidate who had obtained the highest number of votes as a result of the votes cast
for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason
why this Court should not re-examine and consequently abandon the doctrine in the Jun
Labo case. It has been stated that "the qualifications prescribed for elective office cannot
be erased by the electorate alone. The will of the people as expressed through the ballot
cannot cure the vice of ineligibility" most especially when it is mandated by no less than
the Constitution.
Therefore the candidate who received the highest number of votes from among the qualified candidates,
should be proclaimed
ACCORDINGLY, I vote to DISMISS the petition.
FRANCISCO, J., concurring and dissenting:

I concur with the well written ponencia of my most esteemed colleague, Mr. Justice Kapunan. I wish,
however, to express my views on some issues raised by the petitioner, viz., (1) jurisdiction over the
disqualification suit, (2)domicile, (3) theory of legal impossibility, and (4) "second placer rule".
Petitioner emphatically maintains that only the House of Representatives Electoral Tribunal (HRET) can
declare his disqualification, especially after the elections. To bolster this stand, the cases of Co v. HRET,
199 SCRA 692 (1991); Robles v. HRET, 181 SCRA 780 (1990); Lazatin v. HRET, 168 SCRA 391 (1988);
and Lachica v. Yap, 25 SCRA 140 (1968), have been cited as supporting authorities. To my mind, this
position is untenable. Section 17 of Article VI of the 1987 Constitution is clear and unambiguous that
HRET jurisdiction applies only to the members of the House of Representatives. The operative acts
necessary for an electoral candidate's rightful assumption of the office for which he ran are his
proclamation and his taking an oath of office. Petitioner cannot in anyway be considered as a member of
the House of Representatives for the purpose of divesting the Commission on Elections of jurisdiction to
declare his disqualification and invoking instead HRET's jurisdiction, it indubitably appearing that he has
yet to be proclaimed, much less has he taken an oath of office. Clearly, petitioner's reliance on the
aforecited cases which when perused involved Congressional members, is totally misplaced, if not wholly
inapplicable. That the jurisdiction conferred upon HRET extends only to Congressional members is further
established by judicial notice of HRET Rules of procedure, 1 and HRET decisions 2 consistently holding that
the proclamation the essential requisite vesting jurisdiction on the HRET.
Moreover, a perusal of the records shows that the question on COMELEC's jurisdiction is now barred by
estoppel. It is to be noted that in his May 2, 1995 Answer, as well as in his Memorandum and
Supplemental Memorandum filed before the COMELEC's Second Division, petitioner never assailed
COMELEC's lacks of jurisdiction to rule on his qualification. On the contrary, he asked that the
disqualification suit against him be dismissed on the following grounds: that it was filed outside the
reglementary period; that the one year residence requirement of the 1987 Constitution is inapplicable
due to the recent conversion of the municipality of Makati into a city under R.A. No. 7854; that he
committed a simple inadvertence in filing up his certificate of candidacy; that the proper procedure to
attack his qualification is by a quo warranto proceeding; that he had actually and physically resided in
Makati for more than a year; and for lack of merit, the case should be outrightly dismissed. In a hearing
conducted by the COMELEC on May 2, 1995, petitioner even submitted his evidence (e.g. affidavits,
amended certificate of candidacy, copy of the lease contract) to prove that he is qualified for the position.
Subsequently, on May 16, 1995, in response to the COMELEC En Banc's May 15, 1995 Order suspending
the proclamation of the winner, petitioner filed his Comment/Opposition with Urgent Motion To Lift
Order of Suspension of Proclamation asking for the lifting of the COMELEC's order of suspension. On May
19, 1995, petitioner again filed a Memorandum and averred that the recent conversion of Makati into a
city made the one-year residence requirement inapplicable; that he resided in Makati for more than a
year; that quo warranto is the right remedy to question his qualification. In passing, petitioner also
alleged that the issue on his qualification should be "properly" ventilated in a full-dress hearing before the
HRET, albeit praying for the dismissal of the motion for reconsideration for utter lack of merit (and not for
lack of jurisdiction), and for lifting the suspension of his proclamation. It was only on June 01, 1995, in his
Motion to File Supplemental Memorandum and Urgent Motion to Resolve Motion to Lift Suspension of
Proclamation, when the petitioner raised COMELEC's alleged lack of jurisdiction to resolve the question
on his qualification. Clearly then, petitioner has actively participated in the proceedings both before the
COMELEC's Second Division and the COMELEC En Banc asking therein affirmative reliefs. The settled rule
is that a party who objects to the jurisdiction of the court and alleges at the same time any nonjurisdictional ground for dismissing the action is deemed to have submitted himself to the jurisdiction of
the court. 3 Where a party voluntary submits to the jurisdiction of the court and thereafter loses on the
merits, he may not thereafter be heard to say that the court had no
jurisdiction. 4 In Jimenez v.Macaraig, 5 the Court, citing Crisostomo v. Court of Appeals, 32 SCRA 54, 60
(1970), elaborated on the rationale for this doctrine in this wise:
The petitioners, to borrow the language of Mr. Justice Bautista Angelo (People vs.
Archilla, G.R. No. L-15632, February 28, 1961, 1 SCRA 699, 700-701), cannot adopt a
posture of double-dealing without running afoul of the doctrine of estoppel. The
principle of estoppel is in the interest of a sound administration of the laws. It should
deter those who are disposed to trifle with the courts by taking inconsistent positions
contrary to the elementary principles of right dealing and good faith (People v. Acierto,
92 Phil. 534, 541, [1953]). 6
It is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular
matter to secure an affirmative relief to afterwards deny that same jurisdiction to escape an
adverse decision. 7Perforce, petitioner's asseveration that the COMELEC has no jurisdiction to rule
on his qualification must fail.
Petitioner insists that domicile is a matter of personal intention. Thus, petition asserts that if he decides
to transfer his legal residence so he can qualify for public office then he is entirely free to do so. Thus
argument to hold water, must be supported by a clear and convincing proofs that petitioner has
effectively abandoned his former domicile and that his intention is not doubtful. Indeed, domicile once
established is considered to continue and will not be deemed lost until a new one is established (Co v.
Electoral Tribunal House of Representatives, 199 SCRA 692, 711 [1991]). Petitioner from childhood until
his last election as senator has consistently maintained Concepcion, Tarlac, as his domicile. He moved to
Amapola Street, Palm Village, Makati, and thereafter claimed the same to be his new domicile. This claim,
however, is dismally unsupported by the records. The lease contract entered into by petitioner for a
period of two years on the third floor condominium unit in Palm Village, Makati, in my view, does not
prove his intent to abandon his domicile of origin. The intention to establish domicile must be an
intention to remain indefinitely or permanently in the new place. 8 This element is lacking in this instance.
Worse, public respondent Commission even found that "respondent Aquino himself testified that his
intention was really for only one (1) year because he has other 'residences' in Manila or in Quezon
City ([citing] TSN, May 2, 1995,
p. 92)". 9 Noting that petitioner is already barred from running for senator due to the constitutional
consecutive two-term limit, his search for a place where he could further and continue his political career
and sudden transfer thereto make his intent suspect. The best test of intention to establish legal
residence
comes from one's acts and not by mere declarations alone. 10 To acquire, or effect a change of domicile,
the intention must be bonafide and unequivocal (28 C.J.S. 11). Petitioner, in my view, miserably failed to
show a bonafide and unequivocal intention to effect the change of his domicile.
The theory of legal impossibility is advanced to justify non-compliance with the constitutional
qualification on residency. Petitioner explains his theory in this wise:
. . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL
FOUR MONTHS IN THE CASE OF PETITIONER'S DISTRICT IN MAKATI. 11
Apparently, this theory is an offshoot of Republic Act. No. 7854, an act converting the
municipality of Makati into a highly urbanized city. This law enacted on January 2, 1995,
established a second Congressional district in Makati in which petitioner ran as a Congressional
candidate. Since the second district, according to petitioner, is barely four (4) months old then
the one (1) year residence qualification provided by the Constitution is inapplicable. Petitioner's
acts, however, as borne by the records, belie his own theory. Originally, he placed in his
certificate of candidacy an entry of ten (10) months residence in Makati. Petitioner then had it
amended to one (1) year and thirteen (13) days to correct what claims as a mere inadvertent
mistake. I doubt the sincerity of this representation. If petitioner is indeed persuaded by his own
theory, the ten months residence he initially wrote would have more than sufficiently qualified
him to run in the barely four-month old Makati district. The amendment only reveals the true
intent of petitioner to comply with one year constitutional requirement for residence, adding an
extra thirteen (13) days full measure. Petitioner apparently wanted to argue one way (theory of
legal impossibility), but at the same time played it safe in the other (the constitutional one year
residence requirement). And that is not all. If we were to adhere to petitioner's theory of legal
impossibility, then residents in that district shorn of the constitutional six months residence
requirement for prospective voters (Article V, Section 1 of the 1987 Constitution) would have
certainly qualified to vote. That would have legitimized the entry and electoral exercise of flying
voters one of the historic nemeses of a clean and honest election. Furthermore, to subscribe
to petitioner's contention that the constitutional qualification of candidates should be brushed
aside in view of the enactment of R.A. No. 7854 will indubitably violate the manner and
procedure for the amendment or revision of the constitution outlined under Article XVIII of the
1987 Constitution. A legislative enactment, it has to be emphasized, cannot render nugatory the
constitution. The constitution is superior to a statute. It is the fundamental and organic law of the
land to which every statute must conform and harmonize.
Finally, it has been contended that a second place candidate cannot be proclaimed a substitute winner. I
find the proposition quite unacceptable. A disqualified "candidate" is not a candidate and the votes which
may have been cast in his favor are nothing but stray votes of no legal consequence. A disqualified person
like the petitioner receives no vote or zero vote. In short,
no-candidate-no vote. Petitioner had therefore no right, in fact and in law, to claim first place for he has
nothing to base his right. The legislative intent is clear as provided by R.A. 6646, Section 6, in that votes
cast for a disqualified candidate shall not be counted as they are considered stray (Section 211, Rule 24,
Omnibus Election Code). It is only from the ranks of qualified candidates can one be chosen as first placer
and not from without. Necessarily, petitioner, a disqualified candidate, cannot be a first placer as he
claims himself to be. To count the votes for a disqualified candidate would, in my view, disenfranchise
voters who voted for a qualified candidate. Legitimate votes cast for a qualified candidate should not be
penalized alongside a disqualified candidate. With this in mind, the other qualified candidate who
garnered the highest number of votes should be proclaimed the duly elected representative of the
district. I feel that the Labo doctrine ought to be abandoned.
I therefore vote to deny the petition and to lift the temporary restraining order issued by the Court dated
June 6, 1995.
DAVIDE, JR., J., dissenting:

In sustaining the COMELEC's acts of suspending the proclamation of petitioner Agapito A. Aquino and of
proceeding to hear the disqualification case against him, the majority opinion relies on Section 6 of R.A.
No. 6646 which it claims to be applicable by virtue of Section 7 thereof to petitions to deny due course to
or cancel a certificate of candidacy under Section 78 of the Omnibus Election Code (B.P. Blg. 881).
I disagree.
In the first place, the petition to disqualify the petitioner in SPA No. 95-113 is not a petition to deny due
course to or cancel a certificate of candidacy under Section 78, which reads:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any personexclusively on the ground that any material representation contained therein
as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and
shall be decided, after due notice and hearing, not later than fifteen days before the
election. (emphasis supplied)
Nowhere in the petition in SPA No. 95-113 is it alleged by the private respondents that a material
representation contained in the petitioner's certificate of candidacy is false. What is being attacked
therein is the petitioner's lack of the one-year residence qualification in the new Second Legislative
District of Makati City where he sought to he elected for the office of Congressman.
The rule governing disqualification cases on the ground of ineligibility, which is also invoked by the private
respondents, is Rule 25 of the COMELEC Rules of Procedure, as amended on 15 February 1993. The
amendment allows the, filing of a petition to disqualify a candidate on the ground that he does not
possess all the qualifications provided for by the Constitution or by existing laws. In its original form, the
rule only applied to petitions for disqualification based on the commission of any act declared by law to
be a ground for disqualification. The rule as thus amended now reads as follows:
Rule 25 Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or who
commits any act declared by law to be grounds for disqualification may be disqualified
from continuing as a candidate.
Sec. 2. Who May File Petition for Disqualification. Any citizen of voting age, or duly
registered political party, organization or coalition of political parties may file with the
Law Department of the Commission a petition to disqualify a candidate on grounds
provided by law.
Sec. 3. Period to File Petition. The petition shall be filed any day after the last day for
filing of certificates of candidacy but not later than the date of proclamation.
Sec. 4. Summary Proceeding. The petition shall be heard summarily after due notice.
Sec. 5. Effect of Petition if Unresolved Before Completion of Canvass. If the petition, for
reasons beyond the control of the Commission, cannot be decided before the completion
of the canvass, the votes cast for the respondent may be included in the counting and in
the canvassing; however, if the evidence of guilt is strong, his proclamation shall be
suspended notwithstanding the fact that he received the winning number of votes in
such election.
The underscored portion is the amendment to Rule 25, which the COMELEC must have deemed
necessary to fill up a procedural hiatus in cases of disqualifications based on other grounds in the
light of this Court's interpretation in Loong vs. Commission on Elections (216 SCRA 760 [1992])
that Rule 25 refers only to disqualifications under Sections 12 and 68 of the Omnibus Election
Code. This Court explicitly stated therein as follows:
We do not agree with private respondent Ututalum's contention that the petition for
disqualification, as in the case at bar, may be filed at any time after the last day for filing a
certificate of candidacy but not later than the date of proclamation, applying Section 3,
Rule 25 of the Comelec Rules of Procedure.
Rule 25 of the Comelec Rules of Procedure refers to Disqualification of Candidates; and
Section 1 of said rule provides that any candidate who commits any act declared by law
to be a ground for disqualification maybe disqualified from continuing as a candidate.
The grounds for disqualification as expressed in Sections 12 and 68 of the Code, are the
following:
Sec. 12. Disqualification. Any person who has been declared by

competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense
for which he has been sentenced to a penalty of more than eighteen
months or for a crime involving moral turpitude, shall be disqualified to
be a candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
Sec. 63 DisquaIifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision of 4 competent court
guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Sections 89, 95, 96, 97 and 104;
or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k,
v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code,
unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws.
The petition filed by private respondent Ututalum with the respondent Comelec to
disqualify petitioner Loong on the ground that the latter made a false representation in
his certificate of candidacy as to his age, clearly does not fall under the grounds of
disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the
Comelec Rules of Procedure governing petitions to cancel certificate of candidacy.
Moreover, Section 3, Rule 25 which allows the filing of the petition at any time after the
last day for the filing of certificates of candidacy but not later than the date of
proclamation, is merely a procedural rule issued by respondent Commission which,
although a constitutional body, has no legislative powers. Thus, it can not supersede
Section 78 of the Omnibus Election Code which is a legislative enactment.
Second, even if we assume for the sake of argument that the petition in SPA No. 95-113 fall under Section
78 of the Omnibus Election Code, still Section 6 of R.A. No. 6646 cannot be applied by virtue of Section 7
thereof. Sections 6 and 7 reads:
Sec. 71 Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The

procedure hereinabove provided shall apply to petitions to deny due course to or cancel
a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.
The "procedure hereinabove provided" mentioned in Section 7 cannot be construed to refer to Section 6
which does not provide for a procedure but for the EFFECTS of disqualification cases. It can only refer to
the procedureprovided in Section 5 of the said Act on nuisance candidates which reads as follows:
Sec. 5. Procedure in Cases of Nuisance Candidates. A verified petition to declare a duly
registered candidate as a nuisance candidate under Section 69 .f Batas Pambansa Blg.
881 shall be filed personally or through duly authorized representative with the
Commission by any registered candidate for the same office within five (5) days from the
last day for the filing of certificates of candidacy. Filing by mail shall not be allowed.
(b) Within three (3) days from the filing of the petition, the Commission shall issue
summons to the respondent candidate together with a copy of the petition and its
enclosures, if any.
(c) The respondent shall be given three (3) days from receipt of the summons within
which to file his verified answer (not a motion to dismiss) to the petition, serving copy
thereof upon the petitioner. Grounds for a motion to dismiss may be raised as affirmative
defenses.
(d) The Commission may designate any of its officials who are lawyers to hear the case
and receive evidence. The proceeding shall be summary in nature. In lieu of oral
testimonies, the parties may be required to submit position papers together with
affidavits or counter-affidavits and other documentary evidence. The hearing officer shall
immediately submit to the Commission his findings, reports, and recommendations
within five (5) days from the completion of such submission of evidence. The Commission
shall render its decision within five (5) days from receipt thereof.
(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt
of a copy thereof by the parties, be final and executory unless stayed by the Supreme
Court.
(f) The Commission shall within twenty-four hours, through the fastest available means,
disseminate its decision or the decision of the Supreme Court or the city or municipal
election registrars, boards of election inspectors, and the general public in the political
subdivision concerned.
and which is the only procedure that precedes Section 7 of the said Act. Heretofore, no law
provided for the procedure to govern cases under Section 78. Applying to such cases, through
Section 7 of R.A. No. 6646, the procedure applicable to cases of nuisance candidates is prudent
and wise, for both cases necessarily require that they be decided before the day of the election;
hence, only summary proceedings thereon can adequately respond to the urgency of the matter.
Third, Section 6 merely supplements Section 72 of the Omnibus Election Code providing as follows:
Sec. 72. Effects of disqualification cases and priority. The Commission and the courts
shall give priority to cases of disqualification by reason of violation of this Act to the end
that a final decision shall be rendered not later than seven days before the election in
which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. Nevertheless, if for any
reason, a candidate is not declared by final judgment before an election to be disqualified
and he is voted for and receives the winning number of votes in such election, his
violation of the provisions of the preceding sections shall not prevent his proclamation
and assumption to office.
by granting the COMELEC or the Court the authority to continue hearing the case and to suspend
the proclamation if the evidence of guilt is strong. As observed by this Court in its majority "the
phrase 'when the evidence of guilt is strong' seems to suggest that the provisions of Section 6
ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election
Code."
Fourth, the amended Rule 25 of the COMELEC Rules of Procedure, which is the only rule governing
petitions filed before election or proclamation for the disqualification of a candidate on the ground that
he lacks the qualifications provided for by the Constitution or by law, does not, as can be gathered from
Section 5 thereof, authorize the COMELEC to continue hearing the case after the election.
Fifth, even assuming that the second sentence of Section 6 of R.A. to No. 6646 is applicable to
disqualification cases based on the ground of lack of qualification, it cannot be applied to a case does not
involve elective regional, provincial, and city officials, and where suspension of proclamation is not
warranted because of the absence of strong evidence of guilt or ineligibility. In such a case the candidate
sought to be disqualified but who obtains the highest number of votes has to be proclaimed. Once he is
proclaimed, the COMELEC cannot continue with the case, and the remedy of the opponent is to contest
the winning candidate's eligibility within ten days from proclamation in a quo warranto proceeding which
is within the jurisdiction of the metropolitan or municipal trial courts, in the case of barangay officials; the
regional trial courts, in case of municipal officials (Section 2(2), Article IX-C, Constitution; Section 253,
paragraph 2, B.P. Blg. 881); the House of Representatives Electoral Tribunal, in the case of Congressmen;
the Senate Electoral Tribunal, in the case of Senators (Section 17, Article VI, Constitution); and the
Supreme Court en banc, in the case of the President or Vice-President (Section 4, Article VII,
Constitution).
If what is involved is an elective regional, provincial, or city official, and the case cannot be decided before
the election, the COMELEC can, even after the proclamation of the candidate sought to be disqualified,
proceed with the case by treating it as a petition for quo warranto, since such a case properly pertains to
the exclusive jurisdiction of the COMELEC (Section 2(2), Article IX-C, Constitution; Section 253, B.P. Blg.
881).
But even granting for the sake of argument that Sections 6 and 7 of R.A. No. 6646, in relation to Section
78 of the Omnibus Election Code and the amended Rule 25 of the COMELEC Rules of Procedure, are
applicable, the order of suspension of the petitioner's proclamation issued on 15 May 1995 is null and
void for having been issued with grave abuse of discretion. What was before the COMELEC en banc at
that stage was the decision of the Second Division of 6 May 1995 dismissing the petition to disqualify the
petitioner and declaring him qualified for the position. That decision is a direct and positive rejection of
any claim that the evidence of the petitioner's guilt is strong. Note that it was only on 2 June 1995, when
the COMELEC en banc reversed the decision of the Second Division, that it was found that the evidence of
the petitioner's ineligibility is strong. It would have been otherwise if the Second Division had disqualified
the petitioner.
Besides, at the time the questioned order was issued, there was no hearing yet on the private
respondents' motions for the suspension of the petitioner's proclamation. In fact, in that order the
COMELEC en banc admitted that the said motions could not be resolved without hearing, thus:
Pending the resolution of the petitioners' Motion for Reconsideration filed on May 7,
1995; Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent (May 10,
1995) filed on May 10, 1995; and OMNIBUS MOTION (For Reconsideration of the
Honorable Commission's [Second Division] Resolution dated May 6, 1995, and 2nd
Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent Aquino, which
cannot be resolved without hearing, without violating the right of the respondent to due
process. . . .
For being void from the beginning; it is as if the order of 15 May 1995 had not existed and could not,
therefore, be made permanent by the COMELEC en banc through its resolution of 2 June 1995 whose
dispositive portion reads in part: [c]onsequently, the order of suspension of the respondent should he
obtain the winning number of votes, issued by this Commission on 15 May 1995 is now made
permanent."
Absent a valid finding before the election or after the canvass of election returns that the evidence of the
petitioner's guilt or ineligibility is strong, the COMELEC should not have suspended the proclamation of
the petitioner. After the completion of the canvass the petitioner should have been proclaimed.
This case then must be distinguished from that of Imelda Romualdez-Marcos vs. Commission on Elections,
G.R. No. 119976, where the COMELEC en banc affirmed before the elections, or on 7 May 1995, the
Second Division's resolution of 24 April 1995 disqualifying Mrs. Marcos.
Accordingly, the order of 15 May 1995 and the resolution of 2 June 1995 of the COMELEC en banc must
be annulled and set aside, and the COMELEC, through its City Board of Canvassers of Makati, must be
ordered to immediately proclaim the petitioner, without prejudice to the right of his opponents to file a
petition for quo warrantowith the House of Representatives Electoral Tribunal, which is the sole judge of
all contests relating to the election, returns and qualifications of the Members of the House of
Representatives (Section 17, Article VI, Constitution).
In view of the foregoing, a disquisition on the merits of the ground for the petitioner's disqualification will
no longer be proper.
I vote to GRANT the instant petition, to ANNUL and SET ASIDE the challenged order and resolution of the
Commission on Elections en banc, and to DIRECT the Board of Canvassers of Makati City to reconvene and
proclaim the petitioner as the winning candidate, without prejudice on the part of any aggrieved party to
file the appropriate action in the House of Representatives Electoral Tribunal.
Romero and Bellosillo, JJ., concur.
VITUG, J., separate opinion:

I find what I would consider as the relevant issues in this petition as similar in almost all material respects
to those obtaining in G.R. No. 119976 (Imelda Romualdez-Marcos vs. Commission on Elections and Cirilo
Roy Montejo). Let me then here just reiterate what I have there said in my separate opinion.
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and
directions and render steady our strides hence. It only looks back so as to ensure that mistakes in the past
are not repeated. A complaint transience of a constitution belittles its basic function and weakens its
goals. A constitution may well become outdated by the realities of time. When it does, it must be
changed but while it remains, we owe it respect and allegiance. Anarchy, open or subtle, has never been,
nor must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or the
Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in character unless, either by express statement
or by necessary implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental
law. These provisions read:
Sec. 6. No person shall be a Member of the House of Representatives unless he is a
natural-born citizen of the Philippines and, on the day of the election, is at least twentyfive years of age, able to read and write, and, except the party-list representatives, a
registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the day of the election.
Sec. 17. The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral Tribunal shall be composed of
nine Members, three of whom shall be Justices of the Supreme Court to be designated by
the Chief Justice, and the remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or organizations registered
under the party-list system represented therein. The senior Justice in the Electoral
Tribunal shall be its Chairman.
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all
laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there
being nothing said to the contrary, should include its authority to pass upon the qualification and
disqualification prescribed by law ofcandidates to an elective office. Indeed, pre-proclamation
controversies are expressly placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3,
Constitution).
The matter before us specifically calls for the observance of the constitutional one-year residency
requirement. This issue (whether or not there is here such compliance), to my mind, is basically a
question of fact or at least inextricably linked to such determination. The findings and judgment of the
COMELEC, in accordance with the long established rule and subject only to a number of exceptions under
the basic heading of "grave abuse of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally,
the term "residence" has a broader connotation that mean permanent (domicile), official (place where
one's official duties may require him to stay) or temporary (the place where he sojourns during a
considerable length of time). For Civil law purposes, i.e., as regards the exercise of civil rights and the
fulfillment of civil obligations, the domicile of a natural person is the place of his habitual residence
(see Article 50, Civil Code). In election cases, the controlling rule is that heretofore announced by this
Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous terms, thus:
"(t)he term "residence" as used in the election law is synonymous with "domicile," which
imports not only an intention to reside in a fixed place but also personal presence in that
place, coupled with conduct indicative of such intention." "Domicile" denotes a fixed
permanent residence to which when absent for business or pleasure, or for like reasons,
one intends to return. . . . Residence thus acquired, however, may be lost by adopting
another choice of domicile. In order, in turn, to acquire a new domicile by choice, there
must concur (1) residence or bodily presence in the new locality, (2) an intention to
remain there, and (3) an intention to abandon the old domicile. In other words, there
must basically beanimus manendi coupled with animus non revertendi. The purpose to
remain in or at the domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary, and the residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that we can charge the COMELEC with having
committed grave abuse of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the
Electoral Tribunal concerned begins. It signifies that the protestee must have theretofore been duly
proclaimed and has since become a "member" of the Senate or the House of Representatives. The
question can be asked on whether or not the proclamation of a candidate is just a ministerial function of
the Commission on Elections dictated solely on the number of votes cast in an election exercise. I believe,
it is not. A ministerial duty is an obligation the performance of which, being adequately defined, does not
allow the use of further judgment or discretion. The COMELEC; in its particular case, is tasked with the full
responsibility of ascertaining all the facts and conditions such as may be required by law before a
proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate
exercise of authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are
explicitly within their exclusive domain. The nagging question, if it were otherwise, would be the effect of
the Court's peremptory pronouncement on the ability of the Electoral Tribunal to later come up with its
own judgment in a contest "relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of
Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing
thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
BATAS PAMBANSA BLG. 881
xxx xxx xxx
reason, a candidate is not declared by final judgment before an election to be
disqualified, and he is voted for and receives the winning number of votes in such
election, his violation of the provisions of the preceding sections shall not prevent his
proclamation and assumption to office.
I realize that in considering the significance of the law, it may be preferable to look for not so much the
specific instances they ostensibly would cover as the principle they clearly convey. Thus, I will not scoff at
the argument that it should be sound to say that votes cast in favor of the disqualified candidate,
whenever ultimately declared as such, should not be counted in his or her favor and must accordingly be
considered to be stray votes. The argument, nevertheless, is far outweighed by the rationale of the now
prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil. 238 (1912]) which,
although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137
SCRA 740 [1985]), was restored, along with the interim case ofGeronimo vs. Ramos (136 SCRA 435
[1985]), by the Labo (176 SCRA 1 [1989]), Abella (201 SCRA 253 [1991]),Labo (211 SCRA 297 [1992]) and,
most recently, Benito (235 SCRA 436 (1994]) rulings. Benito vs. Comelec was a unanimous decision
penned by Justice Kapunan and concurred in by Chief Justice Narvasa, Justices Feliciano, Padilla, Bidin,
Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo were on
official leave). For easy reference, let me quote from the first Labo decision:
Finally, there is the question of whether or not the private respondent, who filed the quo
warrantopetition, can replace the petitioner as mayor. He cannot. The simple reason is
that as he obtained only the second highest number of votes in the election, he was
obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137
SCRA 740) decided in 1985. In that case, the candidate who placed second was
proclaimed elected after the votes for his winning rival, who was disqualified as a
turncoat and considered a non-candidate, were all disregard as stray. In effect, the
second placer won by default. That decision was supported by eight members of the
Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la
Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee,
Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two reserving their vote.
(Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.)
favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the
announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was supported by ten members
of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera,
Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any
dissent, although one reserved his vote,
(Makasiar, J.) another took no part, (Aquino, J.) and two others were on leave.
(Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who has not
acquired the majority or plurality of votes is proclaimed a winner and
imposed as the representative of a constituency, the majority of which
have positively declared through their ballots that they do not choose
him.
Sound policy dictates that public elective offices are filled by those who
have received the highest number of votes cast in the election for that
office, and it is a fundamental idea in all republican forms of government
that no one can be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the legal votes
cast in the election. (20 Corpus Juris 2nd, S 234, p. 676.)
The fact that the candidate who obtained the highest number of votes is
later declared to be disqualified or not eligible for the office to which he
was elected does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or non-eligible
person may not be valid to vote the winner into office or maintain him
there. However, in the absence of a statute which clearly asserts a

contrary political and legislative policy on the matter, if the votes were
cast in the sincere belief that the candidate was alive, qualified, or
eligible, they should not be treated as stray, void or meaningless. (at pp.
20-21)
Accordingly, I am constrained to vote for the dismissal of the petition.
MENDOZA, J., separate opinion:

For the reasons expressed in my separate opinion in the companion case. G.R. No. 119976. Imelda
Romualdez-Marcos v. Commission on Elections. I am of the opinion that the Commission on Elections has
no jurisdiction over petitions for disqualification of candidates based on alleged ineligibility for the office
to which they seek election.
The May 15, 1995 resolution of the COMELEC en banc, suspending he obtain the highest number of votes
of Representative of the Second District of Makati, Metro Manila, purports to have been issued pursuant
to 6 of R.A. No. 6646. This provision authorizes the COMELEC to order the suspension of the
proclamation "whenever the evidence of his guilt is strong." As explained in my separate opinion in G.R.
No. 119976, however, this provision refers to proceedings under 68 of the Omnibus Election Code which
provides for the disqualification of candidates found guilty of using what in political parlance have been
referred to as "guns goons or gold" to influence the outcome of elections. Since the disqualification of
petitioner in this case was not sought on this ground, the application of 6 of R.A.. No. 6646 is clearly a
grave abuse of discretion on the part of the COMELEC.
Nor may the petition to disqualify petitioner in the COMELEC be justified under 78 of the OEC which
authorizes the filing of a petition for the cancellation of certificates of candidacy since such a petition
maybe filed "exclusively on the ground that a material representation contained [in the certificate] as
required under section 74 is false." There was no allegation that in stating in his certificate of candidacy
that he is a resident of Amapola St., Palm Village, Guadalupe Viejo, Makati, Metro Manila, petitioner
made any false representation.
For this reason, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-113; that its
proceedings in SPA No. 95-113, including the questioned orders, are void; and that the qualifications of
petitioner Agapito A. Aquino for the position of Representative of the Second District of the City of Makati
may only be inquired into by the House of Representatives Electoral Tribunal.
This conclusion makes it unnecessary for me to express my view at this time on the question whether, in
the event the candidate who obtained the highest number of votes is declared ineligible, the one who
received the next highest number of votes is entitled to be declared the winner.
Accordingly, I vote (1) to grant the petition in this case and (2) to annul the proceedings of the
Commission on Elections in SPA No. 95-113, including the questioned orders, dated May 6, 1995. May 15,
1995, and the two orders both dated June 2, 1995, so far as they declare petitioner Agapito A. Aquino to
be ineligible for the position of Representative of the Second District of the City of Makati and direct the
City Board of Canvassers of Makati to determine and proclaim the winner out of the remaining qualified
candidates.
Narvasa, J., concurs.
Separate Opinions
PADILLA, J., concurring:
I agree with the conclusion reached by the majority that petitioner Aquino has not shown by clear and
convincing evidence that he had established his residence in the second district of Makati City for a
period of not less than one (1) year prior to the 8 May 1995 elections. However, I do not fully subscribe to
its proposition that petitioner's residence (in Makati) should be his "domicile of choice".
Article VI, Section 6 of the Constitution provides that:
No person shall be a member of the House of Representatives unless he is a natural-born
citizen of the Philippines and on the day of the election, is at least twenty-five years of
age, able to read and write, and, except the party list representatives, a registered voter
in the district in which he shall be elected,and a resident thereof for a period of not less
than one year immediately preceding the day of the election. (emphasis supplied).
In G.R. No. 119976, Marcos vs. Comelec, I have maintained that the phrase "a resident thereof for a
period of not less than one year" means actual and physical presence in the legislative district of the
congressional candidate, and that said period of one year must be satisfied regardless of whether or not a
person's residence or domicile coincides.
To my mind, petitioner should be declared disqualified to run as representative in the 2nd district of
Makati City in the 8 May 1995 elections not because he failed to prove his residence therein as his
domicile of choice, but because he failed altogether to prove that he had actually and physically resided
therein for a period of not less than one (1) year immediately preceding the 8 May 1995 elections.
Noteworthy is the established fact before the Comelec that petitioner admits having maintained other
residences in Metro Manila apart from his leased condominium unit in Makati's 2nd district. 1 This clear
admission made by petitioner against his interest weakens his argument that "where a party decides to
transfer his legal residence so he can qualify for public office, he is free to do so." (see p. 20, Petition).
Petitioner evidently wants to impress the Court that his other residences in Metro Manila could never
have become his domicile of choice because it never entered his mind and suddenly, seemingly not
contented with these other residences, he rents a condominium unit in Makati, and calls it his domicile of
choice all these without adding clear and convincing evidence that he did actually live and reside in
Makati for at least one year prior to 8 May 1995 and that he no longer lived and resided in his other
residences during said one year period.
It follows, likewise, that the lease contract relied upon by petitioner, standing alone, established only the
alleged date (April 25, 1994) of its due execution. Stated otherwise, the lease contract tells us that
petitioner had been leasing a condominium unit in Makati City for more than a year prior to 8 May 1995,
but it does not prove that petitioner actually and physically resided therein for the same period, in the
light of his admission that he maintained other residences in Metro Manila.
In light of petitioner's disqualification, the corrollary issue to be resolved is whether or not jurisdiction
continued to be vested in the Comelec to order the Makati Board of Canvassers" to determine and
proclaim the winner out of the remaining qualified candidates" after petitioner had been declared post 8
May 1995 as disqualified.
I agree with the proposition advanced by the Solicitor General that sec. 6 of R.A. 6646 clearly provides
that votes cast for a disqualified candidate shall not be counted, thus:
There can be no dispute that if a final judgment is rendered before the election, declaring a particular
candidate as disqualified, such disqualified candidate shall not be voted for and votes cast for him shall
not be counted, thus posing no problem in proclaiming the candidate who receives the highest number of
votes among the qualified candidates.
But what about after the election? Sec. 6 appears categorical enough in stating: "if any reason" no final
judgment of disqualification is rendered before the elections, and the candidate facing disqualification is
voted for and receives the winning number of votes, the Comelec or the Court is not ousted of its
jurisdiction to hear and try the case up to final judgment, hence, the power to even suspend the
proclamation of the erstwhile winning candidate when evidence of his guilt is strong.
It thus appears clear that the law does not dichotomize the effect of a final judgment of disqualification in
terms of time considerations. There is only one natural and logical effect: the disqualified candidate shall
not be voted and, if voted, the votes cast for him shall not be counted. Ubi lex non distinguit nec nos
distinguere debemus (where the law does not distinguish, we should not distinguish.)
At this point, what I said in Marcos, supra, follows:
What happens then when after the elections are over, one is declared disqualified? Then,
votes cast for him "shall not be counted" and in legal contemplation, he no longer
received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the winner
simply because a "winning candidate is disqualified," but that the law considers him as
the candidate who had obtained the highest number of votes as a result of the votes cast
for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason
why this Court should not re-examine and consequently abandon the doctrine in the Jun
Labo case. It has been stated that "the qualifications prescribed for elective office cannot
be erased by the electorate alone. The will of the people as expressed through the ballot
cannot cure the vice of ineligibility" most especially when it is mandated by no less than
the Constitution.
Therefore the candidate who received the highest number of votes from among the qualified candidates,
should be proclaimed
ACCORDINGLY, I vote to DISMISS the petition.
FRANCISCO, J., concurring and dissenting:

I concur with the well written ponencia of my most esteemed colleague, Mr. Justice Kapunan. I wish,
however, to express my views on some issues raised by the petitioner, viz., (1) jurisdiction over the
disqualification suit, (2)domicile, (3) theory of legal impossibility, and (4) "second placer rule".
Petitioner emphatically maintains that only the House of Representatives Electoral Tribunal (HRET) can
declare his disqualification, especially after the elections. To bolster this stand, the cases of Co v. HRET,
199 SCRA 692 (1991); Robles v. HRET, 181 SCRA 780 (1990); Lazatin v. HRET, 168 SCRA 391 (1988);
and Lachica v. Yap, 25 SCRA 140 (1968), have been cited as supporting authorities. To my mind, this
position is untenable. Section 17 of Article VI of the 1987 Constitution is clear and unambiguous that
HRET jurisdiction applies only to the members of the House of Representatives. The operative acts
necessary for an electoral candidate's rightful assumption of the office for which he ran are his
proclamation and his taking an oath of office. Petitioner cannot in anyway be considered as a member of
the House of Representatives for the purpose of divesting the Commission on Elections of jurisdiction to
declare his disqualification and invoking instead HRET's jurisdiction, it indubitably appearing that he has
yet to be proclaimed, much less has he taken an oath of office. Clearly, petitioner's reliance on the
aforecited cases which when perused involved Congressional members, is totally misplaced, if not wholly
inapplicable. That the jurisdiction conferred upon HRET extends only to Congressional members is further
established by judicial notice of HRET Rules of procedure, 1 and HRET decisions 2 consistently holding that
the proclamation the essential requisite vesting jurisdiction on the HRET.
Moreover, a perusal of the records shows that the question on COMELEC's jurisdiction is now barred by
estoppel. It is to be noted that in his May 2, 1995 Answer, as well as in his Memorandum and
Supplemental Memorandum filed before the COMELEC's Second Division, petitioner never assailed
COMELEC's lacks of jurisdiction to rule on his qualification. On the contrary, he asked that the
disqualification suit against him be dismissed on the following grounds: that it was filed outside the
reglementary period; that the one year residence requirement of the 1987 Constitution is inapplicable
due to the recent conversion of the municipality of Makati into a city under R.A. No. 7854; that he
committed a simple inadvertence in filing up his certificate of candidacy; that the proper procedure to
attack his qualification is by a quo warranto proceeding; that he had actually and physically resided in
Makati for more than a year; and for lack of merit, the case should be outrightly dismissed. In a hearing
conducted by the COMELEC on May 2, 1995, petitioner even submitted his evidence (e.g. affidavits,
amended certificate of candidacy, copy of the lease contract) to prove that he is qualified for the position.
Subsequently, on May 16, 1995, in response to the COMELEC En Banc's May 15, 1995 Order suspending
the proclamation of the winner, petitioner filed his Comment/Opposition with Urgent Motion To Lift
Order of Suspension of Proclamation asking for the lifting of the COMELEC's order of suspension. On May
19, 1995, petitioner again filed a Memorandum and averred that the recent conversion of Makati into a
city made the one-year residence requirement inapplicable; that he resided in Makati for more than a
year; that quo warranto is the right remedy to question his qualification. In passing, petitioner also
alleged that the issue on his qualification should be "properly" ventilated in a full-dress hearing before the
HRET, albeit praying for the dismissal of the motion for reconsideration for utter lack of merit (and not for
lack of jurisdiction), and for lifting the suspension of his proclamation. It was only on June 01, 1995, in his
Motion to File Supplemental Memorandum and Urgent Motion to Resolve Motion to Lift Suspension of
Proclamation, when the petitioner raised COMELEC's alleged lack of jurisdiction to resolve the question
on his qualification. Clearly then, petitioner has actively participated in the proceedings both before the
COMELEC's Second Division and the COMELEC En Banc asking therein affirmative reliefs. The settled rule
is that a party who objects to the jurisdiction of the court and alleges at the same time any nonjurisdictional ground for dismissing the action is deemed to have submitted himself to the jurisdiction of
the court. 3 Where a party voluntary submits to the jurisdiction of the court and thereafter loses on the
merits, he may not thereafter be heard to say that the court had no
jurisdiction. 4 In Jimenez v.Macaraig, 5 the Court, citing Crisostomo v. Court of Appeals, 32 SCRA 54, 60
(1970), elaborated on the rationale for this doctrine in this wise:
The petitioners, to borrow the language of Mr. Justice Bautista Angelo (People vs.
Archilla, G.R. No. L-15632, February 28, 1961, 1 SCRA 699, 700-701), cannot adopt a
posture of double-dealing without running afoul of the doctrine of estoppel. The
principle of estoppel is in the interest of a sound administration of the laws. It should
deter those who are disposed to trifle with the courts by taking inconsistent positions
contrary to the elementary principles of right dealing and good faith (People v. Acierto,
92 Phil. 534, 541, [1953]). 6
It is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular
matter to secure an affirmative relief to afterwards deny that same jurisdiction to escape an
adverse decision. 7Perforce, petitioner's asseveration that the COMELEC has no jurisdiction to rule
on his qualification must fail.
Petitioner insists that domicile is a matter of personal intention. Thus, petition asserts that if he decides
to transfer his legal residence so he can qualify for public office then he is entirely free to do so. Thus
argument to hold water, must be supported by a clear and convincing proofs that petitioner has
effectively abandoned his former domicile and that his intention is not doubtful. Indeed, domicile once
established is considered to continue and will not be deemed lost until a new one is established (Co v.
Electoral Tribunal House of Representatives, 199 SCRA 692, 711 [1991]). Petitioner from childhood until
his last election as senator has consistently maintained Concepcion, Tarlac, as his domicile. He moved to
Amapola Street, Palm Village, Makati, and thereafter claimed the same to be his new domicile. This claim,
however, is dismally unsupported by the records. The lease contract entered into by petitioner for a
period of two years on the third floor condominium unit in Palm Village, Makati, in my view, does not
prove his intent to abandon his domicile of origin. The intention to establish domicile must be an
intention to remain indefinitely or permanently in the new place. 8 This element is lacking in this instance.
Worse, public respondent Commission even found that "respondent Aquino himself testified that his
intention was really for only one (1) year because he has other 'residences' in Manila or in Quezon
City ([citing] TSN, May 2, 1995,
p. 92)". 9 Noting that petitioner is already barred from running for senator due to the constitutional
consecutive two-term limit, his search for a place where he could further and continue his political career
and sudden transfer thereto make his intent suspect. The best test of intention to establish legal
residence
comes from one's acts and not by mere declarations alone. 10 To acquire, or effect a change of domicile,
the intention must be bonafide and unequivocal (28 C.J.S. 11). Petitioner, in my view, miserably failed to
show a bonafide and unequivocal intention to effect the change of his domicile.
The theory of legal impossibility is advanced to justify non-compliance with the constitutional
qualification on residency. Petitioner explains his theory in this wise:
. . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL
FOUR MONTHS IN THE CASE OF PETITIONER'S DISTRICT IN MAKATI. 11
Apparently, this theory is an offshoot of Republic Act. No. 7854, an act converting the
municipality of Makati into a highly urbanized city. This law enacted on January 2, 1995,
established a second Congressional district in Makati in which petitioner ran as a Congressional
candidate. Since the second district, according to petitioner, is barely four (4) months old then
the one (1) year residence qualification provided by the Constitution is inapplicable. Petitioner's
acts, however, as borne by the records, belie his own theory. Originally, he placed in his
certificate of candidacy an entry of ten (10) months residence in Makati. Petitioner then had it
amended to one (1) year and thirteen (13) days to correct what claims as a mere inadvertent
mistake. I doubt the sincerity of this representation. If petitioner is indeed persuaded by his own
theory, the ten months residence he initially wrote would have more than sufficiently qualified
him to run in the barely four-month old Makati district. The amendment only reveals the true
intent of petitioner to comply with one year constitutional requirement for residence, adding an
extra thirteen (13) days full measure. Petitioner apparently wanted to argue one way (theory of
legal impossibility), but at the same time played it safe in the other (the constitutional one year
residence requirement). And that is not all. If we were to adhere to petitioner's theory of legal
impossibility, then residents in that district shorn of the constitutional six months residence
requirement for prospective voters (Article V, Section 1 of the 1987 Constitution) would have
certainly qualified to vote. That would have legitimized the entry and electoral exercise of flying
voters one of the historic nemeses of a clean and honest election. Furthermore, to subscribe
to petitioner's contention that the constitutional qualification of candidates should be brushed
aside in view of the enactment of R.A. No. 7854 will indubitably violate the manner and
procedure for the amendment or revision of the constitution outlined under Article XVIII of the
1987 Constitution. A legislative enactment, it has to be emphasized, cannot render nugatory the
constitution. The constitution is superior to a statute. It is the fundamental and organic law of the
land to which every statute must conform and harmonize.
Finally, it has been contended that a second place candidate cannot be proclaimed a substitute winner. I
find the proposition quite unacceptable. A disqualified "candidate" is not a candidate and the votes which
may have been cast in his favor are nothing but stray votes of no legal consequence. A disqualified person
like the petitioner receives no vote or zero vote. In short,
no-candidate-no vote. Petitioner had therefore no right, in fact and in law, to claim first place for he has
nothing to base his right. The legislative intent is clear as provided by R.A. 6646, Section 6, in that votes
cast for a disqualified candidate shall not be counted as they are considered stray (Section 211, Rule 24,
Omnibus Election Code). It is only from the ranks of qualified candidates can one be chosen as first placer
and not from without. Necessarily, petitioner, a disqualified candidate, cannot be a first placer as he
claims himself to be. To count the votes for a disqualified candidate would, in my view, disenfranchise
voters who voted for a qualified candidate. Legitimate votes cast for a qualified candidate should not be
penalized alongside a disqualified candidate. With this in mind, the other qualified candidate who
garnered the highest number of votes should be proclaimed the duly elected representative of the
district. I feel that the Labo doctrine ought to be abandoned.
I therefore vote to deny the petition and to lift the temporary restraining order issued by the Court dated
June 6, 1995.
DAVIDE, JR., J., dissenting:

In sustaining the COMELEC's acts of suspending the proclamation of petitioner Agapito A. Aquino and of
proceeding to hear the disqualification case against him, the majority opinion relies on Section 6 of R.A.
No. 6646 which it claims to be applicable by virtue of Section 7 thereof to petitions to deny due course to
or cancel a certificate of candidacy under Section 78 of the Omnibus Election Code (B.P. Blg. 881).
I disagree.
In the first place, the petition to disqualify the petitioner in SPA No. 95-113 is not a petition to deny due
course to or cancel a certificate of candidacy under Section 78, which reads:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any personexclusively on the ground that any material representation contained therein
as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and
shall be decided, after due notice and hearing, not later than fifteen days before the
election. (emphasis supplied)
Nowhere in the petition in SPA No. 95-113 is it alleged by the private respondents that a material
representation contained in the petitioner's certificate of candidacy is false. What is being attacked
therein is the petitioner's lack of the one-year residence qualification in the new Second Legislative
District of Makati City where he sought to he elected for the office of Congressman.
The rule governing disqualification cases on the ground of ineligibility, which is also invoked by the private
respondents, is Rule 25 of the COMELEC Rules of Procedure, as amended on 15 February 1993. The
amendment allows the, filing of a petition to disqualify a candidate on the ground that he does not
possess all the qualifications provided for by the Constitution or by existing laws. In its original form, the
rule only applied to petitions for disqualification based on the commission of any act declared by law to
be a ground for disqualification. The rule as thus amended now reads as follows:
Rule 25 Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or who
commits any act declared by law to be grounds for disqualification may be disqualified
from continuing as a candidate.
Sec. 2. Who May File Petition for Disqualification. Any citizen of voting age, or duly
registered political party, organization or coalition of political parties may file with the
Law Department of the Commission a petition to disqualify a candidate on grounds
provided by law.
Sec. 3. Period to File Petition. The petition shall be filed any day after the last day for
filing of certificates of candidacy but not later than the date of proclamation.
Sec. 4. Summary Proceeding. The petition shall be heard summarily after due notice.
Sec. 5. Effect of Petition if Unresolved Before Completion of Canvass. If the petition, for
reasons beyond the control of the Commission, cannot be decided before the completion
of the canvass, the votes cast for the respondent may be included in the counting and in
the canvassing; however, if the evidence of guilt is strong, his proclamation shall be
suspended notwithstanding the fact that he received the winning number of votes in
such election.
The underscored portion is the amendment to Rule 25, which the COMELEC must have deemed
necessary to fill up a procedural hiatus in cases of disqualifications based on other grounds in the
light of this Court's interpretation in Loong vs. Commission on Elections (216 SCRA 760 [1992])
that Rule 25 refers only to disqualifications under Sections 12 and 68 of the Omnibus Election
Code. This Court explicitly stated therein as follows:
We do not agree with private respondent Ututalum's contention that the petition for
disqualification, as in the case at bar, may be filed at any time after the last day for filing a
certificate of candidacy but not later than the date of proclamation, applying Section 3,
Rule 25 of the Comelec Rules of Procedure.
Rule 25 of the Comelec Rules of Procedure refers to Disqualification of Candidates; and
Section 1 of said rule provides that any candidate who commits any act declared by law
to be a ground for disqualification maybe disqualified from continuing as a candidate.
The grounds for disqualification as expressed in Sections 12 and 68 of the Code, are the
following:
Sec. 12. Disqualification. Any person who has been declared by

competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense
for which he has been sentenced to a penalty of more than eighteen
months or for a crime involving moral turpitude, shall be disqualified to
be a candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
Sec. 63 DisquaIifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision of 4 competent court
guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Sections 89, 95, 96, 97 and 104;
or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k,
v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code,
unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws.
The petition filed by private respondent Ututalum with the respondent Comelec to
disqualify petitioner Loong on the ground that the latter made a false representation in
his certificate of candidacy as to his age, clearly does not fall under the grounds of
disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the
Comelec Rules of Procedure governing petitions to cancel certificate of candidacy.
Moreover, Section 3, Rule 25 which allows the filing of the petition at any time after the
last day for the filing of certificates of candidacy but not later than the date of
proclamation, is merely a procedural rule issued by respondent Commission which,
although a constitutional body, has no legislative powers. Thus, it can not supersede
Section 78 of the Omnibus Election Code which is a legislative enactment.
Second, even if we assume for the sake of argument that the petition in SPA No. 95-113 fall under Section
78 of the Omnibus Election Code, still Section 6 of R.A. No. 6646 cannot be applied by virtue of Section 7
thereof. Sections 6 and 7 reads:
Sec. 71 Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The

procedure hereinabove provided shall apply to petitions to deny due course to or cancel
a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.
The "procedure hereinabove provided" mentioned in Section 7 cannot be construed to refer to Section 6
which does not provide for a procedure but for the EFFECTS of disqualification cases. It can only refer to
the procedureprovided in Section 5 of the said Act on nuisance candidates which reads as follows:
Sec. 5. Procedure in Cases of Nuisance Candidates. A verified petition to declare a duly
registered candidate as a nuisance candidate under Section 69 .f Batas Pambansa Blg.
881 shall be filed personally or through duly authorized representative with the
Commission by any registered candidate for the same office within five (5) days from the
last day for the filing of certificates of candidacy. Filing by mail shall not be allowed.
(b) Within three (3) days from the filing of the petition, the Commission shall issue
summons to the respondent candidate together with a copy of the petition and its
enclosures, if any.
(c) The respondent shall be given three (3) days from receipt of the summons within
which to file his verified answer (not a motion to dismiss) to the petition, serving copy
thereof upon the petitioner. Grounds for a motion to dismiss may be raised as affirmative
defenses.
(d) The Commission may designate any of its officials who are lawyers to hear the case
and receive evidence. The proceeding shall be summary in nature. In lieu of oral
testimonies, the parties may be required to submit position papers together with
affidavits or counter-affidavits and other documentary evidence. The hearing officer shall
immediately submit to the Commission his findings, reports, and recommendations
within five (5) days from the completion of such submission of evidence. The Commission
shall render its decision within five (5) days from receipt thereof.
(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt
of a copy thereof by the parties, be final and executory unless stayed by the Supreme
Court.
(f) The Commission shall within twenty-four hours, through the fastest available means,
disseminate its decision or the decision of the Supreme Court or the city or municipal
election registrars, boards of election inspectors, and the general public in the political
subdivision concerned.
and which is the only procedure that precedes Section 7 of the said Act. Heretofore, no law
provided for the procedure to govern cases under Section 78. Applying to such cases, through
Section 7 of R.A. No. 6646, the procedure applicable to cases of nuisance candidates is prudent
and wise, for both cases necessarily require that they be decided before the day of the election;
hence, only summary proceedings thereon can adequately respond to the urgency of the matter.
Third, Section 6 merely supplements Section 72 of the Omnibus Election Code providing as follows:
reason, a candidate is not declared by final judgment before an election to be disqualified
and he is voted for and receives the winning number of votes in such election, his
violation of the provisions of the preceding sections shall not prevent his proclamation
and assumption to office.
by granting the COMELEC or the Court the authority to continue hearing the case and to suspend
the proclamation if the evidence of guilt is strong. As observed by this Court in its majority "the
phrase 'when the evidence of guilt is strong' seems to suggest that the provisions of Section 6
ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election
Code."
Fourth, the amended Rule 25 of the COMELEC Rules of Procedure, which is the only rule governing
petitions filed before election or proclamation for the disqualification of a candidate on the ground that
he lacks the qualifications provided for by the Constitution or by law, does not, as can be gathered from
Section 5 thereof, authorize the COMELEC to continue hearing the case after the election.
Fifth, even assuming that the second sentence of Section 6 of R.A. to No. 6646 is applicable to
disqualification cases based on the ground of lack of qualification, it cannot be applied to a case does not
involve elective regional, provincial, and city officials, and where suspension of proclamation is not
warranted because of the absence of strong evidence of guilt or ineligibility. In such a case the candidate
sought to be disqualified but who obtains the highest number of votes has to be proclaimed. Once he is
proclaimed, the COMELEC cannot continue with the case, and the remedy of the opponent is to contest
the winning candidate's eligibility within ten days from proclamation in a quo warranto proceeding which
is within the jurisdiction of the metropolitan or municipal trial courts, in the case of barangay officials; the
regional trial courts, in case of municipal officials (Section 2(2), Article IX-C, Constitution; Section 253,
paragraph 2, B.P. Blg. 881); the House of Representatives Electoral Tribunal, in the case of Congressmen;
the Senate Electoral Tribunal, in the case of Senators (Section 17, Article VI, Constitution); and the
Supreme Court en banc, in the case of the President or Vice-President (Section 4, Article VII,
Constitution).
If what is involved is an elective regional, provincial, or city official, and the case cannot be decided before
the election, the COMELEC can, even after the proclamation of the candidate sought to be disqualified,
proceed with the case by treating it as a petition for quo warranto, since such a case properly pertains to
the exclusive jurisdiction of the COMELEC (Section 2(2), Article IX-C, Constitution; Section 253, B.P. Blg.
881).
But even granting for the sake of argument that Sections 6 and 7 of R.A. No. 6646, in relation to Section
78 of the Omnibus Election Code and the amended Rule 25 of the COMELEC Rules of Procedure, are
applicable, the order of suspension of the petitioner's proclamation issued on 15 May 1995 is null and
void for having been issued with grave abuse of discretion. What was before the COMELEC en banc at
that stage was the decision of the Second Division of 6 May 1995 dismissing the petition to disqualify the
petitioner and declaring him qualified for the position. That decision is a direct and positive rejection of
any claim that the evidence of the petitioner's guilt is strong. Note that it was only on 2 June 1995, when
the COMELEC en banc reversed the decision of the Second Division, that it was found that the evidence of
the petitioner's ineligibility is strong. It would have been otherwise if the Second Division had disqualified
the petitioner.
Besides, at the time the questioned order was issued, there was no hearing yet on the private
respondents' motions for the suspension of the petitioner's proclamation. In fact, in that order the
COMELEC en banc admitted that the said motions could not be resolved without hearing, thus:
Pending the resolution of the petitioners' Motion for Reconsideration filed on May 7,
1995; Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent (May 10,
1995) filed on May 10, 1995; and OMNIBUS MOTION (For Reconsideration of the
Honorable Commission's [Second Division] Resolution dated May 6, 1995, and 2nd
Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent Aquino, which
cannot be resolved without hearing, without violating the right of the respondent to due
process. . . .
For being void from the beginning; it is as if the order of 15 May 1995 had not existed and could not,
therefore, be made permanent by the COMELEC en banc through its resolution of 2 June 1995 whose
dispositive portion reads in part: [c]onsequently, the order of suspension of the respondent should he
obtain the winning number of votes, issued by this Commission on 15 May 1995 is now made
permanent."
Absent a valid finding before the election or after the canvass of election returns that the evidence of the
petitioner's guilt or ineligibility is strong, the COMELEC should not have suspended the proclamation of
the petitioner. After the completion of the canvass the petitioner should have been proclaimed.
This case then must be distinguished from that of Imelda Romualdez-Marcos vs. Commission on Elections,
G.R. No. 119976, where the COMELEC en banc affirmed before the elections, or on 7 May 1995, the
Second Division's resolution of 24 April 1995 disqualifying Mrs. Marcos.
Accordingly, the order of 15 May 1995 and the resolution of 2 June 1995 of the COMELEC en banc must
be annulled and set aside, and the COMELEC, through its City Board of Canvassers of Makati, must be
ordered to immediately proclaim the petitioner, without prejudice to the right of his opponents to file a
petition for quo warrantowith the House of Representatives Electoral Tribunal, which is the sole judge of
all contests relating to the election, returns and qualifications of the Members of the House of
Representatives (Section 17, Article VI, Constitution).
In view of the foregoing, a disquisition on the merits of the ground for the petitioner's disqualification will
no longer be proper.
I vote to GRANT the instant petition, to ANNUL and SET ASIDE the challenged order and resolution of the
Commission on Elections en banc, and to DIRECT the Board of Canvassers of Makati City to reconvene and
proclaim the petitioner as the winning candidate, without prejudice on the part of any aggrieved party to
file the appropriate action in the House of Representatives Electoral Tribunal.
Romero and Bellosillo, JJ., concur.
VITUG, J., separate opinion:

I find what I would consider as the relevant issues in this petition as similar in almost all material respects
to those obtaining in G.R. No. 119976 (Imelda Romualdez-Marcos vs. Commission on Elections and Cirilo
Roy Montejo). Let me then here just reiterate what I have there said in my separate opinion.
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and
directions and render steady our strides hence. It only looks back so as to ensure that mistakes in the past
are not repeated. A complaint transience of a constitution belittles its basic function and weakens its
goals. A constitution may well become outdated by the realities of time. When it does, it must be
changed but while it remains, we owe it respect and allegiance. Anarchy, open or subtle, has never been,
nor must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or the
Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in character unless, either by express statement
or by necessary implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental
law. These provisions read:
Sec. 6. No person shall be a Member of the House of Representatives unless he is a
natural-born citizen of the Philippines and, on the day of the election, is at least twentyfive years of age, able to read and write, and, except the party-list representatives, a
registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the day of the election.
Tribunal shall be its Chairman.
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all
laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there
being nothing said to the contrary, should include its authority to pass upon the qualification and
disqualification prescribed by law ofcandidates to an elective office. Indeed, pre-proclamation
controversies are expressly placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3,
Constitution).
The matter before us specifically calls for the observance of the constitutional one-year residency
requirement. This issue (whether or not there is here such compliance), to my mind, is basically a
question of fact or at least inextricably linked to such determination. The findings and judgment of the
COMELEC, in accordance with the long established rule and subject only to a number of exceptions under
the basic heading of "grave abuse of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally,
the term "residence" has a broader connotation that mean permanent (domicile), official (place where
one's official duties may require him to stay) or temporary (the place where he sojourns during a
considerable length of time). For Civil law purposes, i.e., as regards the exercise of civil rights and the
fulfillment of civil obligations, the domicile of a natural person is the place of his habitual residence
(see Article 50, Civil Code). In election cases, the controlling rule is that heretofore announced by this
Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous terms, thus:
"(t)he term "residence" as used in the election law is synonymous with "domicile," which
imports not only an intention to reside in a fixed place but also personal presence in that
place, coupled with conduct indicative of such intention." "Domicile" denotes a fixed
permanent residence to which when absent for business or pleasure, or for like reasons,
one intends to return. . . . Residence thus acquired, however, may be lost by adopting
another choice of domicile. In order, in turn, to acquire a new domicile by choice, there
must concur (1) residence or bodily presence in the new locality, (2) an intention to
remain there, and (3) an intention to abandon the old domicile. In other words, there
must basically beanimus manendi coupled with animus non revertendi. The purpose to
remain in or at the domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary, and the residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that we can charge the COMELEC with having
committed grave abuse of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the
Electoral Tribunal concerned begins. It signifies that the protestee must have theretofore been duly
proclaimed and has since become a "member" of the Senate or the House of Representatives. The
question can be asked on whether or not the proclamation of a candidate is just a ministerial function of
the Commission on Elections dictated solely on the number of votes cast in an election exercise. I believe,
it is not. A ministerial duty is an obligation the performance of which, being adequately defined, does not
allow the use of further judgment or discretion. The COMELEC; in its particular case, is tasked with the full
responsibility of ascertaining all the facts and conditions such as may be required by law before a
proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate
exercise of authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are
explicitly within their exclusive domain. The nagging question, if it were otherwise, would be the effect of
the Court's peremptory pronouncement on the ability of the Electoral Tribunal to later come up with its
own judgment in a contest "relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of
Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing
thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
BATAS PAMBANSA BLG. 881
xxx xxx xxx
reason, a candidate is not declared by final judgment before an election to be
disqualified, and he is voted for and receives the winning number of votes in such
election, his violation of the provisions of the preceding sections shall not prevent his
proclamation and assumption to office.
I realize that in considering the significance of the law, it may be preferable to look for not so much the
specific instances they ostensibly would cover as the principle they clearly convey. Thus, I will not scoff at
the argument that it should be sound to say that votes cast in favor of the disqualified candidate,
whenever ultimately declared as such, should not be counted in his or her favor and must accordingly be
considered to be stray votes. The argument, nevertheless, is far outweighed by the rationale of the now
prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil. 238 (1912]) which,
although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137
SCRA 740 [1985]), was restored, along with the interim case ofGeronimo vs. Ramos (136 SCRA 435
[1985]), by the Labo (176 SCRA 1 [1989]), Abella (201 SCRA 253 [1991]),Labo (211 SCRA 297 [1992]) and,
most recently, Benito (235 SCRA 436 (1994]) rulings. Benito vs. Comelec was a unanimous decision
penned by Justice Kapunan and concurred in by Chief Justice Narvasa, Justices Feliciano, Padilla, Bidin,
Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo were on
official leave). For easy reference, let me quote from the first Labo decision:
Finally, there is the question of whether or not the private respondent, who filed the quo
warrantopetition, can replace the petitioner as mayor. He cannot. The simple reason is
that as he obtained only the second highest number of votes in the election, he was
obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137
SCRA 740) decided in 1985. In that case, the candidate who placed second was
proclaimed elected after the votes for his winning rival, who was disqualified as a
turncoat and considered a non-candidate, were all disregard as stray. In effect, the
second placer won by default. That decision was supported by eight members of the
Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la
Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee,
Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two reserving their vote.
(Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.)
favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the
announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was supported by ten members
of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera,
Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any
dissent, although one reserved his vote,
(Makasiar, J.) another took no part, (Aquino, J.) and two others were on leave.
(Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who has not
acquired the majority or plurality of votes is proclaimed a winner and
imposed as the representative of a constituency, the majority of which
have positively declared through their ballots that they do not choose
him.
Sound policy dictates that public elective offices are filled by those who
have received the highest number of votes cast in the election for that
office, and it is a fundamental idea in all republican forms of government
that no one can be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the legal votes
cast in the election. (20 Corpus Juris 2nd, S 234, p. 676.)
The fact that the candidate who obtained the highest number of votes is
later declared to be disqualified or not eligible for the office to which he
was elected does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or non-eligible
person may not be valid to vote the winner into office or maintain him
there. However, in the absence of a statute which clearly asserts a

contrary political and legislative policy on the matter, if the votes were
cast in the sincere belief that the candidate was alive, qualified, or
eligible, they should not be treated as stray, void or meaningless. (at pp.
20-21)
Accordingly, I am constrained to vote for the dismissal of the petition.
MENDOZA, J., separate opinion:

For the reasons expressed in my separate opinion in the companion case. G.R. No. 119976. Imelda
Romualdez-Marcos v. Commission on Elections. I am of the opinion that the Commission on Elections has
no jurisdiction over petitions for disqualification of candidates based on alleged ineligibility for the office
to which they seek election.
The May 15, 1995 resolution of the COMELEC en banc, suspending he obtain the highest number of votes
of Representative of the Second District of Makati, Metro Manila, purports to have been issued pursuant
to 6 of R.A. No. 6646. This provision authorizes the COMELEC to order the suspension of the
proclamation "whenever the evidence of his guilt is strong." As explained in my separate opinion in G.R.
No. 119976, however, this provision refers to proceedings under 68 of the Omnibus Election Code which
provides for the disqualification of candidates found guilty of using what in political parlance have been
referred to as "guns goons or gold" to influence the outcome of elections. Since the disqualification of
petitioner in this case was not sought on this ground, the application of 6 of R.A.. No. 6646 is clearly a
grave abuse of discretion on the part of the COMELEC.
Nor may the petition to disqualify petitioner in the COMELEC be justified under 78 of the OEC which
authorizes the filing of a petition for the cancellation of certificates of candidacy since such a petition
maybe filed "exclusively on the ground that a material representation contained [in the certificate] as
required under section 74 is false." There was no allegation that in stating in his certificate of candidacy
that he is a resident of Amapola St., Palm Village, Guadalupe Viejo, Makati, Metro Manila, petitioner
made any false representation.
For this reason, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-113; that its
proceedings in SPA No. 95-113, including the questioned orders, are void; and that the qualifications of
petitioner Agapito A. Aquino for the position of Representative of the Second District of the City of Makati
may only be inquired into by the House of Representatives Electoral Tribunal.
This conclusion makes it unnecessary for me to express my view at this time on the question whether, in
the event the candidate who obtained the highest number of votes is declared ineligible, the one who
received the next highest number of votes is entitled to be declared the winner.
Accordingly, I vote (1) to grant the petition in this case and (2) to annul the proceedings of the
Commission on Elections in SPA No. 95-113, including the questioned orders, dated May 6, 1995. May 15,
1995, and the two orders both dated June 2, 1995, so far as they declare petitioner Agapito A. Aquino to
be ineligible for the position of Representative of the Second District of the City of Makati and direct the
City Board of Canvassers of Makati to determine and proclaim the winner out of the remaining qualified
candidates.
G.R. Nos. 92191-92 July 30, 1991

ANTONIO Y. CO, petitioner,
vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR., respondents.
G.R. Nos. 92202-03 July 30, 1991
SIXTO T. BALANQUIT, JR., petitioner,
vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR., respondents.
Hechanova & Associates for petitioner Co.
Brillantes, Nachura, Navarro and Arcilla Law Offices for respondent Ong, Jr.
GUTIERREZ, JR., J.:p

The petitioners come to this Court asking for the setting aside and reversal of a decision of the House of
Representatives Electoral Tribunal (HRET).
The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino citizen and a resident of
Laoang, Northern Samar for voting purposes. The sole issue before us is whether or not, in making that
determination, the HRET acted with grave abuse of discretion.
On May 11, 1987, the congressional election for the second district of Northern Samar was held.
Among the candidates who vied for the position of representative in the second legislative district of
Northern Samar are the petitioners, Sixto Balinquit and Antonio Co and the private respondent, Jose Ong,
Jr.
Respondent Ong was proclaimed the duly elected representative of the second district of Northern
Samar.
The petitioners filed election protests against the private respondent premised on the following grounds:
1) Jose Ong, Jr. is not a natural born citizen of the Philippines; and
2) Jose Ong, Jr. is not a resident of the second district of Northern Samar.
The HRET in its decision dated November 6, 1989, found for the private respondent.
A motion for reconsideration was filed by the petitioners on November 12, 1989. This was, however,
denied by the HRET in its resolution dated February 22, 1989.
Hence, these petitions for certiorari.
We treat the comments as answers and decide the issues raised in the petitions.
ON THE ISSUE OF JURISDICTION
The first question which arises refers to our jurisdiction.
The Constitution explicitly provides that the House of Representatives Electoral Tribunal (HRET) and the
Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns,
and qualifications of their respective members. (See Article VI, Section 17, Constitution)
The authority conferred upon the Electoral Tribunal is full, clear and complete. The use of the
word sole emphasizes the exclusivity of the jurisdiction of these Tribunals.
The Supreme Court in the case of Lazatin v. HRET (168 SCRA 391 [1988]) stated that under the 1987
Constitution, the jurisdiction of the Electoral Tribunal is original and exclusive, viz:
The use of the word "sole" emphasizes the exclusive character of the jurisdiction
conferred (Angara v. Electoral Commission, supra at p. 162). The exercise of power by the
Electoral Commission under the 1935 Constitution has been described as "intended to be
as complete and unimpaired as if it had originally remained in the legislature." (id., at p.
175) Earlier this grant of power to the legislature was characterized by Justice Malcolm as
"full, clear and complete; (Veloso v. Board of Canvassers of Leyte and Samar, 39 Phil. 886
[1919]) Under the amended 1935 Constitution, the power was unqualifiedly reposed
upon the Electoral Tribunal and it remained as full, clear and complete as that previously
granted the Legislature and the Electoral Commission, (Lachica v. Yap, 25 SCRA 140
[1968]) The same may be said with regard to the jurisdiction of the Electoral Tribunal
under the 1987 Constitution. (p. 401)
The Court continued further, ". . . so long as the Constitution grants the HRET the power to be the sole
judge of all contests relating to election, returns and qualifications of members of the House of
Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not
be reviewed by this Court . . . the power granted to the Electoral Tribunal is full, clear and complete and
excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail
it or even affect the same." (pp. 403-404)
When may the Court inquire into acts of the Electoral Tribunals under our constitutional grants of power?
In the later case of Robles v. HRET (181 SCRA 780 [1990]) the Supreme Court stated that the judgments of
the Tribunal are beyond judicial interference save only "in the exercise of this Court's so-called
extraordinary jurisdiction, . . . upon a determination that the Tribunal's decision or resolution was
rendered without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing
Morrero, upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as
constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated ERROR,
manifestly constituting such GRAVE ABUSE OF DISCRETION that there has to be a remedy for such abuse."
(at pp. 785-786)
In the leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the Court ruled that the power of the
Electoral Commission "is beyond judicial interference except, in any event, upon a clear showing of such
arbitrary and improvident use of power as will constitute a denial of due process." The Court does not
venture into the perilous area of trying to correct perceived errors of independent branches of the
Government, It comes in only when it has to vindicate a denial of due process or correct an abuse of
discretion so grave or glaring that no less than the Constitution calls for remedial action.
The Supreme Court under the 1987 Constitution, has been given an expanded jurisdiction, so to speak, to
review the decisions of the other branches and agencies of the government to determine whether or not
they have acted within the bounds of the Constitution. (See Article VIII, Section 1, Constitution)
Yet, in the exercise thereof, the Court is to merely check whether or not the governmental branch or
agency has gone beyond the Constitutional limits of its jurisdiction, not that it erred or has a different
view. In the absence of a showing that the HRET has committed grave abuse of discretion amounting to
lack of jurisdiction, there is no occasion for the Court to exercise its corrective power; it will not decide a
matter which by its nature is for the HRET alone to decide. (See Marcos v. Manglapus, 177 SCRA 668
[1989]) It has no power to look into what it thinks is apparent error.
As constitutional creations invested with necessary power, the Electoral Tribunals, although not powers in
the tripartite scheme of the government, are, in the exercise of their functions independent organs
independent of Congress and the Supreme Court. The power granted to HRET by the Constitution is
intended to be as complete and unimpaired as if it had remained originally in the legislature. (Angara v.
Electoral Commission, 63 Phil. 139 [1936])
In passing upon petitions, the Court with its traditional and careful regard for the balance of powers, must
permit this exclusive privilege of the Tribunals to remain where the Sovereign authority has place it.
(See Veloso v. Boards of Canvassers of Leyte and Samar, 39 Phil. 886 [1919])
It has been argued that under Article VI, Section 17 of the present Constitution, the situation may exist as
it exists today where there is an unhealthy one-sided political composition of the two Electoral Tribunals.
There is nothing in the Constitution, however, that makes the HRET because of its composition any less
independent from the Court or its constitutional functions any less exclusive. The degree of judicial
intervention should not be made to depend on how many legislative members of the HRET belong to this
party or that party. The test remains the same-manifest grave abuse of discretion.
In the case at bar, the Court finds no improvident use of power, no denial of due process on the part of
the HRET which will necessitate the exercise of the power of judicial review by the Supreme Court.
ON THE ISSUE OF CITIZENSHIP
The records show that in the year 1895, the private respondent's grandfather, Ong Te, arrived in the
Philippines from China. Ong Te established his residence in the municipality of Laoang, Samar on land
which he bought from the fruits of hard work.
As a resident of Laoang, Ong Te was able to obtain a certificate of residence from the then Spanish
colonial administration.
The father of the private respondent, Jose Ong Chuan was born in China in 1905. He was brought by Ong
Te to Samar in the year 1915.
Jose Ong Chuan spent his childhood in the province of Samar. In Laoang, he was able to establish an
enduring relationship with his neighbors, resulting in his easy assimilation into the community.
As Jose Ong Chuan grew older in the rural and seaside community of Laoang, he absorbed Filipino cultural
values and practices. He was baptized into Christianity. As the years passed, Jose Ong Chuan met a
natural born-Filipino, Agripina Lao. The two fell in love and, thereafter, got married in 1932 according to
Catholic faith and practice.
The couple bore eight children, one of whom is the private respondent who was born in 1948.
The private respondent's father never emigrated from this country. He decided to put up a hardware
store and shared and survived the vicissitudes of life in Samar.
The business prospered. Expansion became inevitable. As a result, a branch was set-up in Binondo,
Manila. In the meantime, the father of the private respondent, unsure of his legal status and in an
unequivocal affirmation of where he cast his life and family, filed with the Court of First Instance of Samar
an application for naturalization on February 15, 1954.
On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong Chuan a Filipino citizen.
On May 15, 1957, the Court of First Instance of Samar issued an order declaring the decision of April 28,
1955 as final and executory and that Jose Ong Chuan may already take his Oath of Allegiance.
Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance; correspondingly, a certificate of
naturalization was issued to him.
At the time Jose Ong Chuan took his oath, the private respondent then a minor of nine years was finishing
his elementary education in the province of Samar. There is nothing in the records to differentiate him
from other Filipinos insofar as the customs and practices of the local populace were concerned.
Fortunes changed. The house of the family of the private respondent in Laoang, Samar was burned to the
ground.
Undaunted by the catastrophe, the private respondent's family constructed another one in place of their
ruined house. Again, there is no showing other than that Laoang was their abode and home.
After completing his elementary education, the private respondent, in search for better education, went
to Manila in order to acquire his secondary and college education.
In the meantime, another misfortune was suffered by the family in 1975 when a fire gutted their second
house in Laoang, Samar. The respondent's family constructed still another house, this time a 16-door
apartment building, two doors of which were reserved for the family.
The private respondent graduated from college, and thereafter took and passed the CPA Board
Examinations.
Since employment opportunities were better in Manila, the respondent looked for work here. He found a
job in the Central Bank of the Philippines as an examiner. Later, however, he worked in the hardware
business of his family in Manila. In 1971, his elder brother, Emil, was elected as a delegate to the 1971
Constitutional Convention. His status as a natural born citizen was challenged. Parenthetically, the
Convention which in drafting the Constitution removed the unequal treatment given to derived
citizenship on the basis of the mother's citizenship formally and solemnly declared Emil Ong,
respondent's full brother, as a natural born Filipino. The Constitutional Convention had to be aware of the
meaning of natural born citizenship since it was precisely amending the article on this subject.
The private respondent frequently went home to Laoang, Samar, where he grew up and spent his
childhood days.
In 1984, the private respondent married a Filipina named Desiree Lim.
For the elections of 1984 and 1986, Jose Ong, Jr. registered himself as a voter of Laoang, Samar, and
correspondingly, voted there during those elections.
The private respondent after being engaged for several years in the management of their family business
decided to be of greater service to his province and ran for public office. Hence, when the opportunity
came in 1987, he ran in the elections for representative in the second district of Northern Samar.
Mr. Ong was overwhelmingly voted by the people of Northern Samar as their representative in Congress.
Even if the total votes of the two petitioners are combined, Ong would still lead the two by more than
7,000 votes.
The pertinent portions of the Constitution found in Article IV read:
SECTION 1, the following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the time of the adoption of the
Constitution;
2. Those whose fathers or mothers are citizens of the Philippines;
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
4. Those who are naturalized in accordance with law.
SECTION 2, Natural-born Citizens are those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their citizenship. Those who elect
Philippine citizenship in accordance with paragraph 3 hereof shall be deemed naturalborn citizens.
The Court interprets Section 1, Paragraph 3 above as applying not only to those who elect Philippine
citizenship after February 2, 1987 but also to those who, having been born of Filipino mothers, elected
citizenship before that date.
The provision in Paragraph 3 was intended to correct an unfair position which discriminates against
Filipino women. There is no ambiguity in the deliberations of the Constitutional Commission, viz:
Mr. Azcuna: With respect to the provision of section 4, would this refer
only to those who elect Philippine citizenship after the effectivity of the
1973 Constitution or would it also cover those who elected it under the
1973 Constitution?
Fr. Bernas: It would apply to anybody who elected Philippine citizenship
by virtue of the provision of the 1935 Constitution whether the election
was done before or after January 17, 1973. (Records of the Constitutional
Commission, Vol. 1, p. 228; Emphasis supplied)
xxx xxx xxx
Mr. Trenas: The Committee on Citizenship, Bill of Rights, Political Rights
and Obligations and Human Rights has more or less decided to extend
the interpretation of who is a natural-born citizen as provided in section
4 of the 1973 Constitution by adding that persons who have elected
Philippine Citizenship under the 1935 Constitution shall be natural-born?

Am I right Mr. Presiding Officer?
Fr. Bernas: yes.
xxx xxx xxx
Mr. Nolledo: And I remember very well that in the Reverend Father
Bernas' well written book, he said that the decision was designed merely
to accommodate former delegate Ernesto Ang and that the definition on
natural-born has no retroactive effect. Now it seems that the Reverend
Father Bernas is going against this intention by supporting the
amendment?
Fr. Bernas: As the Commissioner can see, there has been an evolution in
my thinking. (Records of the Constitutional Commission, Vol. 1, p. 189)
xxx xxx xxx
Mr. Rodrigo: But this provision becomes very important because his
election of Philippine citizenship makes him not only a Filipino citizen but
a natural-born Filipino citizen entitling him to run for Congress. . .
Fr. Bernas: Correct. We are quite aware of that and for that reason we
will leave it to the body to approve that provision of section 4.
Mr. Rodrigo: I think there is a good basis for the provision because it
strikes me as unfair that the Filipino citizen who was born a day before
January 17, 1973 cannot be a Filipino citizen or a natural-born citizen.
(Records of the Constitutional Commission, Vol. 1, p. 231)
xxx xxx xxx
Mr. Rodrigo: The purpose of that provision is to remedy an inequitable
situation. Between 1935 and 1973 when we were under the 1935
Constitution, those born of Filipino fathers but alien mothers were
natural-born Filipinos. However, those born of Filipino mothers but alien
fathers would have to elect Philippine citizenship upon reaching the age
of majority; and if they do elect, they become Filipino citizens but not
natural-born Filipino citizens. (Records of the Constitutional Commission,
Vol. 1, p. 356)
The foregoing significantly reveals the intent of the framers. To make the provision prospective from
February 3, 1987 is to give a narrow interpretation resulting in an inequitable situation. It must also be
retroactive.
It should be noted that in construing the law, the Courts are not always to be hedged in by the literal
meaning of its language. The spirit and intendment thereof, must prevail over the letter, especially where
adherence to the latter would result in absurdity and injustice. (Casela v. Court of Appeals, 35 SCRA 279
[1970])
A Constitutional provision should be construed so as to give it effective operation and suppress the
mischief at which it is aimed, hence, it is the spirit of the provision which should prevail over the letter
thereof. (Jarrolt v. Mabberly, 103 U.S. 580)
In the words of the Court in the case of J.M. Tuason v. LTA (31 SCRA 413 [1970]:
To that primordial intent, all else is subordinated. Our Constitution, any constitution is
not to be construed narrowly or pedantically for the prescriptions therein contained, to
paraphrase Justice Holmes, are not mathematical formulas having their essence in their
form but are organic living institutions, the significance of which is vital not formal. . . . (p.
427)
The provision in question was enacted to correct the anomalous situation where one born of a Filipino
father and an alien mother was automatically granted the status of a natural-born citizen while one born
of a Filipino mother and an alien father would still have to elect Philippine citizenship. If one so elected,
he was not, under earlier laws, conferred the status of a natural-born.
Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino mothers with an
alien father were placed on equal footing. They were both considered as natural-born citizens.
Hence, the bestowment of the status of "natural-born" cannot be made to depend on the fleeting
accident of time or result in two kinds of citizens made up of essentially the same similarly situated
members.
It is for this reason that the amendments were enacted, that is, in order to remedy this accidental
anomaly, and, therefore, treat equally all those born before the 1973 Constitution and who elected
Philippine citizenship either before or after the effectivity of that Constitution.
The Constitutional provision in question is, therefore curative in nature. The enactment was meant to
correct the inequitable and absurd situation which then prevailed, and thus, render those acts valid which
would have been nil at the time had it not been for the curative provisions. (See Development Bank of the
Philippines v. Court of Appeals, 96 SCRA 342 [1980])
There is no dispute that the respondent's mother was a natural born Filipina at the time of her marriage.
Crucial to this case is the issue of whether or not the respondent elected or chose to be a Filipino citizen.
Election becomes material because Section 2 of Article IV of the Constitution accords natural born status
to children born of Filipino mothers before January 17, 1973, if they elect citizenship upon reaching the
age of majority.
To expect the respondent to have formally or in writing elected citizenship when he came of age is to ask
for the unnatural and unnecessary. The reason is obvious. He was already a citizen. Not only was his
mother a natural born citizen but his father had been naturalized when the respondent was only nine (9)
years old. He could not have divined when he came of age that in 1973 and 1987 the Constitution would
be amended to require him to have filed a sworn statement in 1969 electing citizenship inspite of his
already having been a citizen since 1957. In 1969, election through a sworn statement would have been
an unusual and unnecessary procedure for one who had been a citizen since he was nine years old.
We have jurisprudence that defines "election" as both a formal and an informal process.
In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of the right of
suffrage and the participation in election exercises constitute a positive act of election of Philippine
citizenship. In the exact pronouncement of the Court, we held:
Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act
of election of Philippine citizenship (p. 52; emphasis supplied)
The private respondent did more than merely exercise his right of suffrage. He has established his life
here in the Philippines.
For those in the peculiar situation of the respondent who cannot be expected to have elected citizenship
as they were already citizens, we apply the In Re Mallare rule.
The respondent was born in an outlying rural town of Samar where there are no alien enclaves and no
racial distinctions. The respondent has lived the life of a Filipino since birth. His father applied for
naturalization when the child was still a small boy. He is a Roman Catholic. He has worked for a sensitive
government agency. His profession requires citizenship for taking the examinations and getting a license.
He has participated in political exercises as a Filipino and has always considered himself a Filipino citizen.
There is nothing in the records to show that he does not embrace Philippine customs and values, nothing
to indicate any tinge of alien-ness no acts to show that this country is not his natural homeland. The mass
of voters of Northern Samar are frilly aware of Mr. Ong's parentage. They should know him better than
any member of this Court will ever know him. They voted by overwhelming numbers to have him
represent them in Congress. Because of his acts since childhood, they have considered him as a Filipino.
The filing of sworn statement or formal declaration is a requirement for those who still have to elect
citizenship. For those already Filipinos when the time to elect came up, there are acts of deliberate choice
which cannot be less binding. Entering a profession open only to Filipinos, serving in public office where
citizenship is a qualification, voting during election time, running for public office, and other categorical
acts of similar nature are themselves formal manifestations of choice for these persons.
An election of Philippine citizenship presupposes that the person electing is an alien. Or his status is
doubtful because he is a national of two countries. There is no doubt in this case about Mr. Ong's being a
Filipino when he turned twenty-one (21).
We repeat that any election of Philippine citizenship on the part of the private respondent would not only
have been superfluous but it would also have resulted in an absurdity. How can a Filipino citizen elect
Philippine citizenship?
The respondent HRET has an interesting view as to how Mr. Ong elected citizenship. It observed that
"when protestee was only nine years of age, his father, Jose Ong Chuan became a naturalized Filipino.
Section 15 of the Revised Naturalization Act squarely applies its benefit to him for he was then a minor
residing in this country. Concededly, it was the law itself that had already elected Philippine citizenship for
protestee by declaring him as such." (Emphasis supplied)
The petitioners argue that the respondent's father was not, validly, a naturalized citizen because of his
premature taking of the oath of citizenship.
The Court cannot go into the collateral procedure of stripping Mr. Ong's father of his citizenship after his
death and at this very late date just so we can go after the son.
The petitioners question the citizenship of the father through a collateral approach. This can not be done.
In our jurisdiction, an attack on a person's citizenship may only be done through a direct action for its
nullity. (See Queto v. Catolico, 31 SCRA 52 [1970])
To ask the Court to declare the grant of Philippine citizenship to Jose Ong Chuan as null and void would
run against the principle of due process. Jose Ong Chuan has already been laid to rest. How can he be
given a fair opportunity to defend himself. A dead man cannot speak. To quote the words of the HRET
"Ong Chuan's lips have long been muted to perpetuity by his demise and obviously he could not use
beyond where his mortal remains now lie to defend himself were this matter to be made a central issue
in this case."
The issue before us is not the nullification of the grant of citizenship to Jose Ong Chuan. Our function is to
determine whether or not the HRET committed abuse of authority in the exercise of its powers.
Moreover, the respondent traces his natural born citizenship through his mother, not through the
citizenship of his father. The citizenship of the father is relevant only to determine whether or not the
respondent "chose" to be a Filipino when he came of age. At that time and up to the present, both
mother and father were Filipinos. Respondent Ong could not have elected any other citizenship unless he
first formally renounced Philippine citizenship in favor of a foreign nationality. Unlike other persons faced
with a problem of election, there was no foreign nationality of his father which he could possibly have
chosen.
There is another reason why we cannot declare the HRET as having committed manifest grave abuse of
discretion. The same issue of natural-born citizenship has already been decided by the Constitutional
Convention of 1971 and by the Batasang Pambansa convened by authority of the Constitution drafted by
that Convention. Emil Ong, full blood brother of the respondent, was declared and accepted as a natural
born citizen by both bodies.
Assuming that our opinion is different from that of the Constitutional Convention, the Batasang
Pambansa, and the respondent HRET, such a difference could only be characterized as error. There would
be no basis to call the HRET decision so arbitrary and whimsical as to amount to grave abuse of discretion.
What was the basis for the Constitutional Convention's declaring Emil Ong a natural born citizen?
Under the Philippine Bill of 1902, inhabitants of the Philippines who were Spanish subjects on the 11th
day of April 1899 and then residing in said islands and their children born subsequent thereto were
conferred the status of a Filipino citizen.
Was the grandfather of the private respondent a Spanish subject?
Article 17 of the Civil Code of Spain enumerates those who were considered Spanish Subjects, viz:
ARTICLE 17. The following are Spaniards:
1. Persons born in Spanish territory.
2. Children born of a Spanish father or mother, even though they were born out of Spain.
3. Foreigners who may have obtained naturalization papers.
4. Those without such papers, who may have acquired domicile in any town in the
Monarchy. (Emphasis supplied)
The domicile of a natural person is the place of his habitual residence. This domicile, once established is
considered to continue and will not be deemed lost until a new one is established. (Article 50, NCC;
Article 40, Civil Code of Spain; Zuellig v. Republic, 83 Phil. 768 [1949])
As earlier stated, Ong Te became a permanent resident of Laoang, Samar around 1895. Correspondingly,
a certificate of residence was then issued to him by virtue of his being a resident of Laoang, Samar.
(Report of the Committee on Election Protests and Credentials of the 1971 Constitutional Convention,
September 7, 1972, p. 3)
The domicile that Ong Te established in 1895 continued until April 11, 1899; it even went beyond the turn
of the 19th century. It is also in this place were Ong Te set-up his business and acquired his real property.
As concluded by the Constitutional Convention, Ong Te falls within the meaning of sub-paragraph 4 of
Article 17 of the Civil Code of Spain.
Although Ong Te made brief visits to China, he, nevertheless, always returned to the Philippines. The fact
that he died in China, during one of his visits in said country, was of no moment. This will not change the
fact that he already had his domicile fixed in the Philippines and pursuant to the Civil Code of Spain, he
had become a Spanish subject.
If Ong Te became a Spanish subject by virtue of having established his domicile in a town under the
Monarchy of Spain, necessarily, Ong Te was also an inhabitant of the Philippines for an inhabitant has
been defined as one who has actual fixed residence in a place; one who has a domicile in a place.
(Bouvier's Law Dictionary, Vol. II) A priori, there can be no other logical conclusion but to educe that Ong
Te qualified as a Filipino citizen under the provisions of section 4 of the Philippine Bill of 1902.
The HRET itself found this fact of absolute verity in concluding that the private respondent was a naturalborn Filipino.
The petitioners' sole ground in disputing this fact is that document presented to prove it were not in
compliance with the best the evidence rule. The petitioners allege that the private respondent failed to
present the original of the documentary evidence, testimonial evidence and of the transcript of the
proceedings of the body which the aforesaid resolution of the 1971 Constitutional Convention was
predicated.
On the contrary, the documents presented by the private respondent fall under the exceptions to the
best evidence rule.
It was established in the proceedings before the HRET that the originals of the Committee Report No. 12,
the minutes of the plenary session of 1971 Constitutional Convention held on November 28, 1972 cannot
be found.
This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971 Constitutional Convention; by Atty.
Nolledo, Delegate to the 1971 Constitutional Convention; and by Atty. Antonio Santos, Chief Librarian of
the U.P Law Center, in their respective testimonies given before the HRET to the effect that there is no
governmental agency which is the official custodian of the records of the 1971 Constitutional Convention.
(TSN, December 12, 1988, pp. 30-31; TSN, January 17, 1989, pp. 34-35; TSN, February 1, 1989, p. 44; TSN,
February 6, 1989, pp. 28-29)
The execution of the originals was established by Atty. Ricafrente, who as the Assistant Secretary of the
1971 Constitutional Convention was the proper party to testify to such execution. (TSN, December 12,
1989, pp. 11-24)
The inability to produce the originals before the HRET was also testified to as aforestated by Atty.
Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the inability to produce, the law does not require
the degree of proof to be of sufficient certainty; it is enough that it be shown that after a bona fide
diligent search, the same cannot be found. (see Government of P.I. v. Martinez, 44 Phil. 817 [1918])
Since the execution of the document and the inability to produce were adequately established, the
contents of the questioned documents can be proven by a copy thereof or by the recollection of
witnesses.
Moreover, to erase all doubts as to the authenticity of the documentary evidence cited in the Committee
Report, the former member of the 1971 Constitutional Convention, Atty. Nolledo, when he was
presented as a witness in the hearing of the protest against the private respondent, categorically stated
that he saw the disputed documents presented during the hearing of the election protest against the
brother of the private respondent. (TSN, February 1, 1989, pp. 8-9)
In his concurring opinion, Mr. Justice Sarmiento, a vice-president of the Constitutional Convention, states
that he was presiding officer of the plenary session which deliberated on the report on the election
protest against Delegate Emil Ong. He cites a long list of names of delegates present. Among them are
Mr. Chief Justice Fernan, and Mr. Justice Davide, Jr. The petitioners could have presented any one of the
long list of delegates to refute Mr. Ong's having been declared a natural-born citizen. They did not do so.
Nor did they demur to the contents of the documents presented by the private respondent. They merely
relied on the procedural objections respecting the admissibility of the evidence presented.
The Constitutional Convention was the sole judge of the qualifications of Emil Ong to be a member of that
body. The HRET by explicit mandate of the Constitution, is the sole judge of the qualifications of Jose Ong,
Jr. to be a member of Congress. Both bodies deliberated at length on the controversies over which they
were sole judges. Decisions were arrived at only after a full presentation of all relevant factors which the
parties wished to present. Even assuming that we disagree with their conclusions, we cannot declare
their acts as committed with grave abuse of discretion. We have to keep clear the line
between error and grave abuse.
ON THE ISSUE OF RESIDENCE
The petitioners question the residence qualification of respondent Ong.
The petitioners lose sight of the meaning of "residence" under the Constitution. The term "residence" has
been understood as synonymous with domicile not only under the previous Constitutions but also under
the 1987 Constitution.
The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the
qualifications of a candidate for Congress continues to remain the same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971
Constitutional Convention, there was an attempt to require residence in
the place not less than one year immediately preceding the day of the
elections. So my question is: What is the Committee's concept of
residence of a candidate for the legislature? Is it actual residence or is it
the concept of domicile or constructive residence?
Mr. Davide: Madame President, in so far as the regular members of the
National Assembly are concerned, the proposed section merely provides,
among others, and a resident thereof, that is, in the district, for a period
of not less than one year preceding the day of the election. This was in
effect lifted from the 1973 Constitution, the interpretation given to it
was domicile. (Records of the 1987 Constitutional Convention, Vol. 11,
July 22, 1986. p. 87)
xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2. I think
Commissioner Nolledo has raised the same point that "resident" has
been interpreted at times as a matter of intention rather than actual
residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper
time to go back to actual residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially

considering that a provision in the Constitution in the Article on Suffrage
says that Filipinos living abroad may vote as enacted by law. So, we have
to stick to the original concept that it should be by domicile and not
physical and actual residence. (Records of the 1987 Constitutional
Commission, Vol. 11, July 22, 1986, p. 110)
The framers of the Constitution adhered to the earlier definition given to the word "residence" which
regarded it as having the same meaning as domicile.
The term "domicile" denotes a fixed permanent residence to which when absent for business or pleasure,
one intends to return. (Ong Huan Tin v. Republic, 19 SCRA 966 [1967]) The absence of a person from said
permanent residence, no matter how long, notwithstanding, it continues to be the domicile of that
person. In other words, domicile is characterized by animus revertendi (Ujano v. Republic, 17 SCRA 147
[1966])
The domicile of origin of the private respondent, which was the domicile of his parents, is fixed at Laoang,
Samar. Contrary to the petitioners' imputation, Jose Ong, Jr. never abandoned said domicile; it remained
fixed therein even up to the present.
The private respondent, in the proceedings before the HRET sufficiently established that after the fire
that gutted their house in 1961, another one was constructed.
Likewise, after the second fire which again destroyed their house in 1975, a sixteen-door apartment was
built by their family, two doors of which were reserved as their family residence. (TSN, Jose Ong, Jr.,
November 18,1988, p. 8)
The petitioners' allegation that since the private respondent owns no property in Laoang, Samar, he
cannot, therefore, be a resident of said place is misplaced.
The properties owned by the Ong Family are in the name of the private respondent's parents. Upon the
demise of his parents, necessarily, the private respondent, pursuant to the laws of succession, became
the co-owner thereof (as a co- heir), notwithstanding the fact that these were still in the names of his
parents.
Even assuming that the private respondent does not own any property in Samar, the Supreme Court in
the case ofDe los Reyes v. Solidum (61 Phil. 893 [1935]) held that it is not required that a person should
have a house in order to establish his residence and domicile. It is enough that he should live in the
municipality or in a rented house or in that of a friend or relative. (Emphasis supplied)
To require the private respondent to own property in order to be eligible to run for Congress would be
tantamount to a property qualification. The Constitution only requires that the candidate meet the age,
citizenship, voting and residence requirements. Nowhere is it required by the Constitution that the
candidate should also own property in order to be qualified to run. (see Maquera v. Borra, 122 Phil. 412
[1965])
It has also been settled that absence from residence to pursue studies or practice a profession or
registration as a voter other than in the place where one is elected, does not constitute loss of residence.
(Faypon v. Quirino, 96 Phil. 294 [1954])
As previously stated, the private respondent stayed in Manila for the purpose of finishing his studies and
later to practice his profession, There was no intention to abandon the residence in Laoang, Samar. On
the contrary, the periodical journeys made to his home province reveal that he always had
the animus revertendi.
The Philippines is made up not only of a single race; it has, rather, undergone an interracial evolution.
Throughout our history, there has been a continuing influx of Malays, Chinese, Americans, Japanese,
Spaniards and other nationalities. This racial diversity gives strength to our country.
Many great Filipinos have not been whole-blooded nationals, if there is such a person, for there is none.
To mention a few, the great Jose Rizal was part Chinese, the late Chief Justice Claudio Teehankee was
part Chinese, and of course our own President, Corazon Aquino is also part Chinese. Verily, some Filipinos
of whom we are proud were ethnically more Chinese than the private respondent.
Our citizens no doubt constitute the country's greatest wealth. Citizenship is a special privilege which one
must forever cherish.
However, in order to truly revere this treasure of citizenship, we do not, on the basis of too harsh an
interpretation, have to unreasonably deny it to those who qualify to share in its richness.
Under the overly strict jurisprudence surrounding our antiquated naturalization laws only the very
affluent backed by influential patrons, who were willing to suffer the indignities of a lengthy, sometimes
humiliating, and often corrupt process of clearances by minor bureaucrats and whose lawyers knew how
to overcome so many technical traps of the judicial process were able to acquire citizenship. It is time for
the naturalization law to be revised to enable a more positive, affirmative, and meaningful examination of
an applicant's suitability to be a Filipino. A more humane, more indubitable and less technical approach to
citizenship problems is essential.
WHEREFORE, the petitions are hereby DISMISSED. The questioned decision of the House of
Representatives Electoral Tribunal is AFFIRMED. Respondent Jose Ong, Jr. is declared a natural-born
citizen of the Philippines and a resident of Laoang, Northern Samar.
SO ORDERED.
Bidin, Grio-Aquino, Medialdea and Davide, Jr., JJ., concur.
Fernan, C.J., Melencio-Herrera, Cruz, Feliciano and Gancayco, JJ., took no part.
Separate Opinions
PADILLA, J., dissenting:

I dissent.
These separate petitions for certiorari and mandamus seek to annul the decision * of respondent House
of Representatives Electoral Tribunal (hereinafter referred to as the tribunal) dated 6 November 1989
which declared private respondent Jose L. Ong, a natural-born citizen of the Philippines and a legal
resident of Laoang, Northern Samar, and the resolution of the tribunal dated 22 February 1990 denying
petitioners' motions for reconsideration.
In G.R. Nos. 92191-92, petitioner Co also prays that the Court declare private respondent Ong not
qualified to be a Member of the House of Representatives and to declare him (petitioner Co) who
allegedly obtained the highest number of votes among the qualified candidates, the duly elected
representative of the second legislative district of Northern Samar. In G.R. Nos. 92202-03, petitioner
Balanquit prays that the Court declare private respondent Ong and Co (petitioner in G.R. Nos. 92191-92)
not qualified for membership in the House of Representatives and to proclaim him (Balanguit) as the duly
elected representative of said district.
Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private respondent Jose Ong Chuan, Jr. were among
the candidates for the position of Representative or Congressman for the second district of Northern
Samar during the 11 May 1987 congressional elections. Private respondent was proclaimed duly-elected
on 18 May 1987 with a plurality of some sixteen thousand (16,000) votes over petitioner Co who
obtained the next highest number of votes.
Petitioners Co and Balanquit then filed separate election protests against private respondent with the
tribunal, docketed as HRET Cases Nos. 13 and 15 respectively. Both protests raised almost the same
issues and were thus considered and decided jointly by the tribunal.
The issues raised before the tribunal were the following:
1. Whether or not protestee (meaning, Ong) is a natural-born citizen of the Philippines in
contemplation of Section 6, Article VI of the 1987 Constitution in relation to Sections 2
and 1(3), Article IV thereof; and
2. Whether or not protestee was a resident of Laoang, Northern Samar, in contemplation
of Section 6, Article VI of the same Constitution, for a period of not less than one year
immediately preceding the congressional elections of May 1987.
The respondent tribunal in its decision dated 6 November 1989 held that respondent Jose L. Ong is a
natural-born citizen of the Philippines and was a legal resident of Laoang, Northern Samar for the
required period prior to the May 1987 congressional elections. He was, therefore, declared qualified to
continue in office as Member of the House of Representatives, Congress of the Philippines, representing
the second legislative district of Northern Samar.
The factual antecedents taken from the consolidated proceedings in the tribunal are the following:
1. The Protestee (Ong) was born on June 19, 1948 to the legal spouses Ong Chuan also
known as Jose Ong Chuan and Agrifina E. Lao. His place of birth is Laoang which is now
one of the municipalities comprising the province of Northern Samar (Republic Act No.
6132 approved on August 24, 1970 and the Ordinance appended to the 1987
Constitution).
2. On the other hand, Jose Ong Chuan was born in China and arrived in Manila on
December 16, 1915. (Exhibit zz) Subsequently thereafter, he took up residence in Laoang,
Samar.
3. On February 4, 1932, he married Agrifina E. Lao. Their wedding was celebrated
according to the rites and practices of the Roman Catholic Church in the Municipality of
Laoang (Exh. E).
4. At the time of her marriage to Jose Ong Chuan, Agrifina E. Lao was a natural-born
Filipino citizen, both her parents at the time of her birth being Filipino citizens. (Exhibits E
& I)
5. On February 15, 1954, Jose Ong Chuan, desiring to acquire Philippine citizenship, filed
his petition for naturalization with the Court of First Instance of Samar, pursuant to
Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law.
6. On April 28, 1955, the Court of First Instance of Samar rendered a decision approving
the application of Jose Ong Chuan for naturalization and declaring said petitioner a
Filipino citizen "with all the rights and privileges and duties, liabilities and obligations
inherent to Filipino citizens. (Exh. E)
7. On May 15, 1957, the same Court issued an order:
(1) declaring the decision of this Court of April 28, 1955 final and
executory;
(2) directing the clerk of court to issue the corresponding Certificate of
Naturalization in favor of the applicant Ong Chuan who prefers to take
his oath and register his name as Jose Ong Chuan. Petitioner may take
his oath as Filipino citizen under Ms new christian name, Jose Ong
Chuan. (Exh. F)
8. On the same day, Jose Ong Chuan having taken the corresponding oath of allegiance to
the Constitution and the Government of the Philippines as prescribed by Section 12 of
Commonwealth Act No. 473, was issued the corresponding Certificate of Naturalization.
(Exh. G)
9. On November 10, 1970, Emil L. Ong, a full-brother of the protestee and a son born on
July 25, 1937 at Laoang, Samar to the spouses Jose Ong Chuan and Agrifina E. Lao, was
elected delegate from Northern Samar to the 1971 Constitutional Convention.
10. By protestee's own -testimony, it was established that he had attended grade school
in Laoang. Thereafter, he went to Manila where he finished his secondary as well as his
college education. While later employed in Manila, protestee however went home to
Laoang whenever he had the opportunity to do so, which invariably would be as frequent
as twice to four times a year.
11. Protestee also showed that being a native and legal resident of Laoang, he registered
as a voter therein and correspondingly voted in said municipality in the 1984 and 1986
elections.
12. Again in December 1986, during the general registration of all voters in the country,
Protestee re-registered as a voter in Precinct No. 4 of Barangay Tumaguinting in Laoang.
In his voter's affidavit, Protestee indicated that he is a resident of Laoang since birth.
(Exh. 7) 1
Petitioners' motions for reconsideration of the tribunal's decision having been denied, petitioners filed
the present petitions.
In their comments, the respondents first raise the issue of the Court's jurisdiction to review the decision
of the House Electoral Tribunal, considering the constitutional provision vesting upon said tribunal the
power and authority to act as the sole judge of all contests relating to the qualifications of the Members
of the House of Representatives. 2
On the question of this Court's jurisdiction over the present controversy, I believe that, contrary to the
respondents' contentions, the Court has the jurisdiction and competence to review the questioned
decision of the tribunal and to decide the present controversy.
Article VIII, Section I of the 1987 Constitution provides that:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
The Constitution, it is true, constitutes the tribunal as the sole judge of all contests relating to the
election, returns, and qualifications of Members of the House of Representatives. But as early as 1938, it
was held in Morrero vs.Bocar, 3 construing Section 4, Article VI of the 1935 Constitution which provided
that ". . . The Electoral Commission shall be the sole judge of all contests relating to the election, returns
and qualifications of the Members of the National Assembly," that:
The judgment rendered by the (electoral) commission in the exercise of such an
acknowledged power is beyond judicial interference, except, in any event, "upon a clear
showing of such arbitrary and improvident use of the power as will constitute a denial of
due process of law." (Barry vs. US ex rel. Cunningham, 279 US 597; 73 Law. ed., 867;
Angara vs. Electoral Commission, 35 Off. Gaz., 23.)
And then under the afore-quoted provisions of Article VIII, Section 1 of the 1987 Constitution, this Court
is duty-bound to determine whether or not, in an actual controversy, there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
The present controversy, it will be observed, involves more than perceived irregularities in the conduct of
a congressional election or a disputed appreciation of ballots, in which cases, it may be contended with
great legal force and persuasion that the decision of the electoral tribunal should be final and conclusive,
for it is, by constitutional directive, made the sole judge of contests relating to such matters. The present
controversy, however, involves no less than a determination of whether the qualifications for
membership in the House of Representatives,as prescribed by the Constitution, have been met. Indeed,
this Court would be unforgivably remiss in the performance of its duties, as mandated by the
Constitution, were it to allow a person, not a natural-born Filipino citizen, to continue to sit as a Member
of the House of Representatives, solely because the House Electoral Tribunal has declared him to be so. In
such a case, the tribunal would have acted with grave abuse of discretion amounting to lack or excess of
jurisdiction as to require the exercise by this Court of its power of judicial review.
Besides, the citizenship and residence qualifications of private respondent for the office of Member of the
House of Representatives, are here controverted by petitioners who, at the same time, claim that they
are entitled to the office illegally held by private respondent. From this additional direction, where one
asserts an earnestly perceived right that in turn is vigorously resisted by another, there is clearly a
justiciable controversy proper for this Court to consider and decide.
Nor can it be said that the Court, in reviewing the decision of the tribunal, asserts supremacy over it in
contravention of the time-honored principle of constitutional separation of powers. The Court in this
instance simply performs a function entrusted and assigned to it by the Constitution of interpreting, in a
justiciable controversy, the pertinent provisions of the Constitution with finality.
It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or
statutory) interpretation, in the context of the interactions of the three branches of the
government, almost always in situations where some agency of the State has engaged in
action that stems ultimately from some legitimate area of governmental power (the
Supreme Court in Modern Role, C.B. Sevisher, 1958, p. 36). 4
Moreover, it is decidedly a matter of great public interest and concern to determine whether or not
private respondent is qualified to hold so important and high a public office which is specifically reserved
by the Constitution only to natural-born Filipino citizens.
After a careful consideration of the issues and the evidence, it is my considered opinion that the
respondent tribunal committed grave abuse of discretion amounting to lack or excess of jurisdiction in
rendering its questioned decision and resolution, for reasons to be presently stated.
The Constitution 5 requires that a Member of the House of Representatives must be a natural-born citizen
of the Philippines and, on the day of the election, is at least twenty-five (25) years of age, able to read and
write, and, except the party-list representatives, a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one (1) year immediately preceding the day
of the election.
Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens as:
Natural-born citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship. Those who
elect Philippine citizenship in accordance with paragraph (3), Section I hereof shall be
deemed natural-born citizen,
Article IV, Section 1, paragraph (3) of the 1987 Constitution provides that:
Section 1. The following are citizens of the Philippines:
xxx xxx xxx
(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority.
The Court in this case is faced with the duty of interpreting the above-quoted constitutional provisions.
The first sentence of Section 2 of Article IV states the basic definition of a natural-born Filipino citizen.
Does private respondent fall within said definition?
To the respondent tribunal,
Protestee may even be declared a natural-born citizen of the Philippines under the first
sentence of Sec. 2 of Article IV of the 1987 Constitution because he did not have "to
perform any act to acquire or perfect his Philippine citizenship." It bears to repeat that on
15 May 1957, while still a minor of 9 years he already became a Filipino citizen by
declaration of law. Since his mother was a natural-born citizen at the time of her
marriage, protestee had an inchoate right to Philippine citizenship at the moment of his
birth and, consequently the declaration by virtue of Sec. 15 of CA 473 that he was a
Filipino citizen retroacted to the moment of his birth without his having to perform any
act to acquire or perfect such Philippine citizenship. 6
I regret that I am neither convinced nor persuaded by such kaleidoscopic ratiocination. The records show
that private respondent was born on 19 June 1948 to the spouses Jose Ong Chuan, a Chinese citizen, and
Agrifina E. Lao, a natural-born Filipino citizen, in Laoang, Northern Samar. In other words, at birth, private
respondent was a Chinese citizen (not a natural-born Filipino citizen) because his father was then a
Chinese citizen (not a naturalized Filipino citizen). Under the 1935 Constitution which was enforced at the
time of private respondent's birth on 19 June 1948, only those whose fathers were citizens of the
Philippines were considered Filipino citizens. Those whose mothers were citizens of the Philippines had to
elect Philippine citizenship upon reaching the age of majority, in order to be considered Filipino citizens. 7
Following the basic definition in the 1987 Constitution of a natural-born citizen, in relation to the 1935
Constitution, private respondent is not a natural-born Filipino citizen, having been born a Chinese
citizen by virtue of the Chinese citizenship of his father at the time of his birth, although from birth,
private respondent had the right to elect Philippine citizenship, the citizenship of his mother, but only
upon his reaching the age of majority.
While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children of a naturalized
citizen (father), who were born in the Philippines prior to the naturalization of the parent automatically
become Filipino citizens, 8 this does not alter the fact that private respondent was not born to a Filipino
father, and the operation of Section 15 of CA 473 did not confer upon him the status of a naturalborn citizen merely because he did not have to perform any act to acquire or perfect his status as
a Filipino citizen.
But even assuming arguendo that private respondent could be considered a natural-born citizen by virtue
of the operation of CA 473, petitioners however contend that the naturalization of private respondent's
father was invalid and void from the beginning, and, therefore, private respondent is not even a Filipino
citizen.
Respondent tribunal in its questioned decision ruled that only a direct proceeding for nullity of
naturalization as a Filipino citizen is permissible, and, therefore, a collateral attack on Ong Chuan's
naturalization is barred in an electoral contest which does not even involve him (Ong Chuan).
Private respondent, for his part, avers in his Comment that the challenge against Ong Chuan's
naturalization must emanate from the Government and must be made in a proper/appropriate and direct
proceeding for de-naturalization directed against the proper party, who in such case is Ong Chuan, and
also during his lifetime.
A judgment in a naturalization proceeding is not, however, afforded the character of impregnability under
the principle of res judicata. 9 Section 18 of CA 473 provides that a certificate of naturalization may be
cancelled upon motion made in the proper proceeding by the Solicitor General or his representative, or
by the proper provincial fiscal.
In Republic vs. Go Bon Lee, 10 this Court held that:
An alien friend is offered under certain conditions the privilege of citizenship. He may
accept the offer and become a citizen upon compliance with the prescribed conditions,
but not otherwise. His claim is of favor, not of right. He can only become a citizen upon
and after a strict compliance with the acts of Congress. An applicant for this high privilege
is bound, therefore, to conform to the terms upon which alone the right he seeks can be
conferred. It is his province, and he is bound, to see that the jurisdictional facts upon
which the grant is predicated actually exist and if they do not he takes nothing by this
paper grant.
xxx xxx xxx
Congress having limited this privilege to a specified class of persons, no other person is
entitled to such privilege, nor to a certificate purporting to grant it, and any such
certificate issued to a person not so entitled to receive it must be treated as a mere
nullity, which confers no legal rights as against the government, from which it has been
obtained without warrant of law.
"Naturalization is not a right, but a privilege of the most discriminating as well as delicate and exacting
nature, affecting public interest of the highest order, and which may be enjoyed only under the precise
conditions prescribed by law therefor." 11
Considering the legal implications of the allegation made by the petitioners that the naturalization of
private respondent's father Ong Chuan, is a nullity, the Court should make a ruling on the validity of said
naturalization proceedings. This course of action becomes all the more inevitable and justified in the
present case where, to repeat for stress, it is claimed that a foreigner is holding a public
office. 12
It cannot be overlooked, in this connection, that the citizenship of private respondent is derived from his
father. If his father's Filipino citizenship is void from the beginning, then there is nothing from which
private respondent can derive his own claimed Filipino citizenship. For a spring cannot rise higher than its
source. And to allow private respondent to avail of the privileges of Filipino citizenship by virtue of a void
naturalization of his father, would constitute or at least sanction a continuing offense against the
Constitution.
The records show that private respondent's father, Jose Ong Chuan, took the oath of allegiance to the
Constitution and the Philippine Government, as prescribed by Section 12 of CA 473 on the same day (15
May 1957) that the CFI issued its order directing the clerk of court to issue the corresponding Certificate
of Naturalization and for the applicant to take the oath of allegiance.
However, it is settled that an order granting a petition to take the requisite oath of allegiance of one who
has previously obtained a decision favorable to his application for naturalization, is appealable. It is,
therefore, improper and illegal to authorize the taking of said oath upon the issuance of said order and
before the expiration of the reglementary period to perfect any appeal from said order. 13
In Cua Sun Ke vs. Republic, 14 this Court held that:
Administration of the oath of allegiance on the same day as issuance of order granting
citizenship is irregular and makes the proceedings so taken null and void. (Republic vs.
Guy, 115 SCRA 244 [1982];citing the case of Ong So vs. Republic of the Philippines, 121
Phil. 1381).
It would appear from the foregoing discussion that the naturalization of Jose Ong Chuan (private
respondent's father) was null and void. It follows that the private respondent did not acquire any legal
rights from the void naturalization of his father and thus he cannot himself be considered a Filipino
citizen, more so, a natural-born Filipino citizen.
But assuming that the CFI order of 15 May 1957 directing the clerk of court to issue the certificate of
naturalization to Ong Chuan and for the latter to take the oath of allegiance was final and not appealable,
the resulting naturalization of Ong Chuan effected, as previously stated, an automatic naturalization of
private respondent, then a minor, as a Filipino citizen on 15 May 1957, but not his acquisition or
perfection of the status of a natural-born Filipino citizen.
Let us now look into the question of whether or not private respondent acquired the status of a naturalborn Filipino citizen by reason of the undisputed fact that his mother was a natural-born Filipino citizen.
This in turn leads us to an examination of the second sentence in Article IV, Section 2 of the 1987
Constitution. It expands, in a manner of speaking, in relation to Section 1, paragraph (3) of the same
Article IV, the status of a natural-born Filipino citizen to those who elect Philippine citizenship upon
reaching the age of majority. The right or privilege of election is available, however, only to those born to
Filipino mothers under the 1935 Constitution, and before the 1973 Constitution took effect on 17 January
1973.
The petitioners contend that the respondent tribunal acted in excess of its jurisdiction or gravely abused
its discretion as to exceed its jurisdiction in "distorting" the conferment by the 1987 Constitution of the
status of "natural-born" Filipino citizen on those who elect Philippine citizenship all in its strained
effort, according to petitioners, to support private respondent's qualification to be a Member of the
House of Representatives. 15
Petitioners argue that the clear, unambiguous wording of section 1(3) of Article IV of the 1987
Constitution contemplates that only the legitimate children of Filipino mothers with alien father, born
before 17 January 1973 and who would reach the age of majority (and thus elect Philippine citizenship)
after the effectivity of the 1987 Constitution are entitled to the status of natural-born Filipino citizen. 16
The respondent tribunal in resolving the issue of the constitutional provisions' interpretation, found
reason to refer to the interpellations made during the 1986 Constitutional Commission. It said:
That the benevolent provisions of Sections 2 and 1(3) of Article IV of the 1987
Constitution was (sic) intended by its (sic) framers to be endowed, without distinction, to
all Filipinos by election pursuant to the 1935 Constitution is more than persuasively
established by the extensive interpellations and debate on the issue as borne by the
official records of the 1986 Constitutional Commission. 17
Although I find the distinction as to when election of Philippine citizenship was made irrelevant to the
case at bar, since private respondent, contrary to the conclusion of the respondent tribunal, did not elect
Philippine citizenship, as provided by law, I still consider it necessary to settle the controversy regarding
the meaning of the constitutional provisions in question.
I agree with respondent tribunal that the debates, interpellations petitions and opinions expressed in the
1986 Constitutional Commission may be resorted to in ascertaining the meaning of somewhat elusive and
even nebulous constitutional provisions. Thus
The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the
people adopting it should be given effect. The primary task in constitutional construction
is to ascertain and thereafter assure the realization of the purpose of the framers and of
the people in the adoption of the Constitution. It may also be safely assumed that the
people in ratifying the constitution were guided mainly by the explanation offered by the
framers. 18
The deliberations of the 1986 Constitutional Commission relevant to Section 2, Article IV in relation to
Section 1(3) of the same Article, appear to negate the contention of petitioners that only those born to
Filipino mothers before 17 January 1973 and who would elect Philippine citizenship after the effectivity of
the 1987 Constitution, are to be considered natural-born Filipino citizens.
During the free-wheeling discussions on citizenship, Commissioner Treas specifically asked
Commissioner Bernas regarding the provisions in question, thus:
MR. TRENAS: The Committee on Citizenship, Bill of Rights, Political Rights
the interpretation of who is a natural-born Filipino citizen as provided in
Section 4 of the 1973 Constitution, by adding that persons who have
elected Philippine citizenship under the 1935 Constitution shall be
considered natural-born. Am I right, Mr. Presiding Officer?
FR BERNAS: Yes.
MR. TRENAS: And does the Commissioner think that tills addition to
Section 4 of the 1973 Constitution would be contrary to the spirit of that
section?
FR BERNAS: Yes, we are quite aware that it is contrary to the letter really.
But whether it is contrary to the spirit is something that has been
debated before and is being debated even now. We will recall that
during the 1971 Constitutional Convention, the status of natural-born
citizenship of one of the delegates, Mr. Ang, was challenged precisely
because he was a citizen by election. Finally, the 1971 Constitutional
Convention considered him a natural-born citizen, one of the
requirements to be a Member of the 1971 Constitutional Convention.
The reason behind that decision was that a person under his
circumstances already had the inchoate right to be a citizen by the fact
that the mother was a Filipino. And as a matter of fact, the 1971
Constitutional Convention formalized that recognition by adopting
paragraph 2 of Section 1 of the 1971 Constitution. So, the entire purpose
of this proviso is simply to perhaps remedy whatever injustice there may
be so that these people born before January 17, 1973 who are not
naturalized and people who are not natural born but who are in the
same situation as we are considered natural-born citizens. So, the
intention of the Committee in proposing this is to equalize their status. 19
When asked to clarify the provision on natural-born citizens, Commissioner Bernas replied to
Commissioner Azcuna thus:
MR. AZCUNA: With respect to the proviso in Section 4, would this refer
1935 Constitution?
FR BERNAS: It would apply to anybody who elected Philippine citizenship

by virtue of the provision of the 1935 Constitution, whether the election
was done before or after 17 January 1973. 20
And during the period of amendments. Commissioner Rodrigo explained the purpose of what now appear
as Section 2 and Section 1, paragraph (3) of Article IV of the 1987 Constitution, thus:
MR. RODRIGO: The purpose of that proviso is to remedy an inequitable
situation. Between 1935 and 1973, when we were under the 1935
of majority; and, if they do elect, they become Filipino citizens, yet, but
not natural-born Filipino citizens.
The 1973 Constitution equalized the status of those born of Filipino mothers and those
born of Filipino fathers. So that from January 17, 1973 when the 1973 Constitution took
effect, those born of Filipino mothers but of alien fathers are natural-born Filipino
citizens. Also, those who are born of Filipino fathers and alien mothers are natural-born
Filipino citizens.
If the 1973 Constitution equalized the status of a child born of a Filipino mother and that
born of a Filipino father, why do we not give a chance to a child born before January 17,
1973, if and when he elects Philippine citizenship, to be in the same status as one born of
a Filipino father namely, natural-born citizen.
Another thing I stated is equalizing the status of a father and a mother vis-a-vis the child.
I would like to state also that we showed equalize the status of a child born of a Filipino
mother the day before January 17, 1973 and a child born also of a Filipino mother on
January 17 or 24 hours later. A child born of a Filipino mother but an alien father one day
before January 17, 1973 is a Filipino citizen, if he elects Philippine citizenship, but he is
not a natural-born Filipino citizen. However, the other child who luckily was born 24
hours later maybe because of parto laborioso is a natural-born Filipino citizen.21
It would appear then that the intent of the framers of the 1987 Constitution in defining a natural-born
Filipino citizen was to equalize the position of Filipino fathers and Filipino mothers as to their children
becoming natural-born Filipino citizens. In other words, after 17 January 1973, effectivity date of the
1973 Constitution, all those born of Filipino fathers (with alien spouse) or Filipino mothers (with alien
spouse) are natural-born Filipino citizens. But those born to Filipino mothers prior to 17 January
1973 must still elect Philippine citizenship upon their reaching the age of majority, in order to be deemed
natural-born Filipino citizens. The election, which is related to the attainment of the age of majority, may
be made before or after 17 January 1973. This interpretation appears to be in consonance with the
fundamental purpose of the Constitution which is to protect and enhance the people's individual
interests, 22 and to foster equality among them.
Since private respondent was born on 19 June 1948 (or before 17 January 1973) to a Filipino mother
(with an alien spouse) and should have elected Philippine citizenship on 19 June 1969 (when he attained
the age of majority), or soon thereafter, in order to have the status of a natural-born Filipino citizen under
the 1987 Constitution, the vital question is: did private respondent really elect Philippine citizenship? As
earlier stated, I believe that private respondent did not elect Philippine citizenship, contrary to the ruling
of the respondent tribunal.
The respondent tribunal, on this issue, ruled as follows:
Where a person born to a Filipino mother and an alien father had exercised the right of
suffrage when he came of age, the same constitutes a positive act of election of
Philippine citizenship. (Florencio vs. Mallare) [sic] The acts of the petitioner in registering
as a voter, participating in elections and campaigning for certain candidates were held by
the Supreme Court as sufficient to show his preference for Philippine citizenship.
Accordingly, even without complying with the formal requisites for election, the
petitioner's Filipino citizenship was judicially upheld. 23
I find the above ruling of the respondent tribunal to be patently erroneous and clearly untenable, as to
amount to grave abuse of discretion. For it is settled doctrine in this jurisdiction that election of Philippine
citizenship must be made in accordance with Commonwealth Act 625. Sections 1 and 2 24 of the Act
mandate that the option to elect Philippine citizenship must be effected expressly not impliedly.
The respondent tribunal cites In re: Florencio Mallare 25 which held that Esteban Mallare's exercise of the
right of suffrage when he came of age, constituted a positive act of election of Philippine citizenship.
Mallare, cited by respondent tribunal as authority for the doctrine of implied election of Philippine
citizenship, is not applicable to the case at bar. The respondent tribunal failed to consider that Esteban
Mallare reached the age of majority in 1924, or seventeen (17) years before CA 625 was approved and,
more importantly, eleven (11) years before the 1935 Constitution (which granted the right of election)
took effect.
To quote Mr. Justice Fernandez in Mallare:
Indeed, it would be unfair to expect the presentation of a formal deed to that effect
considering that prior to the enactment of Commonwealth Act 625 on June 7, 1941, no
particular proceeding was required to exercise the option to elect Philippine citizenship,
granted to the proper party by Section 1, subsection 4, Article IV of the 1935 Philippine
Constitution. 26
Moreover, Esteban Mallare was held to be a Filipino citizen because he was an illegitimate
(natural) child of a Filipino mother and thus followed her citizenship. I therefore agree with the
petitioners' submission that, inciting the Mallare case, the respondent tribunal had engaged in
an obiter dictum.
The respondent tribunal also erred in ruling that by operation of CA 473, the Revised Naturalization Law,
providing for private respondent's acquisition of Filipino citizenship by reason of the naturalization of his
father, the law itself had already elected Philippine citizenship for him. For, assuming arguendo that the
naturalization of private respondent's father was valid, and that there was no further need for private
respondent to elect Philippine citizenship (as he had automatically become a Filipino citizen) yet, this did
not mean that the operation of the Revised Naturalization Law amounted to an election by him of
Philippine citizenship as contemplated by the Constitution. Besides, election of Philippine citizenship
derived from one's Filipino mother, is made upon reaching the age of majority, not during one's minority.
There is no doubt in my mind, therefore, that private respondent did not elect Philippine citizenship upon
reaching the age of majority in 1969 or within a reasonable time thereafter as required by CA 625.
Consequently, he cannot be deemed a natural-born Filipino citizen under Sections 2 and 1(3), Article IV of
Based on all the foregoing considerations and premises, I am constrained to state that private respondent
is not a natural-born citizen of the Philippines in contemplation of Section 6, Article VI of the 1987
Constitution in relation to Sections 2 and 1(3), Article IV thereof, and hence is disqualified or ineligible to
be a Member of the House of Representatives.
At this point, I find it no longer necessary to rule on the issue of required residence, inasmuch as the
Constitution requires that a Member of the House of Representatives must be both a natural-born
Filipino citizen and a resident for at least one (1) year in the district in which he shall be elected.
The next question that comes up is whether or not either of the petitioners can replace private
respondent as the Representative of the second legislative district of Northern Samar in the House of
Representatives.
I agree with respondent tribunal that neither of the petitioners may take the place of private respondent
in the House of Representatives representing the second district of Northern Samar. The ruling of this
Court in Ramon L. Labo, Jr. vs. The Commission on Elections (COMELEC) EN BANC and Luis
L. Lardizabal, 27 is controlling. There we held that Luis L. Lardizabal, who filed the quo warranto petition,
could not replace Ramon L. Labo, Jr. as mayor of Baguio City for the simple reason that as he obtained
only the second highest number of votes in the election, he was obviously not the choice of the people of
Baguio City for mayor of that City.
A petition alleging that the candidate-elect is not qualified for the office is, in effect, a quo
warranto proceeding even if it is labelled an election protest. 28 It is a proceeding to unseat the ineligible
person from office but not necessarily to install the protestant in his place. 29
The general rule is that the fact that a plurality or a majority of the votes are cast for an ineligible
candidate in an election does not entitle the candidate receiving the next highest number of votes to be
declared elected. In such a case, the electors have failed to make a choice and the election is a nullity. 30
Sound policy dictates that public elective offices are filled by those who have the highest
number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no measure
cast in the election. (20 Corpus Juris 2nd, S 243, p. 676).
As early as 1912, this Court has already declared that the candidate who lost in an
election cannot be proclaimed the winner in the event that the candidate who won is
found ineligible for the office to which he was elected. This was the ruling in Topacio v.
Paredes (23 Phil. 238)
Again, the effect of a decision that a candidate is not entitled to the
office because of fraud or irregularities in the election is quite different
from that produced by declaring a person ineligible to hold such an
office. . . . If it be found that the successful candidate (according to the
board of canvassers) obtained a plurality in an illegal manner, and that
another candidate was the real victor, the former must retire in favor of
the latter. In the other case, there is not, strictly speaking, a contest, as
the wreath of victory cannot be transferred from an ineligible to any
other candidate when the sole question is the eligibility of the one
receiving a plurality of the legally cast ballots. . . . 31
The recognition of Emil L. Ong by the 1971 Constitutional Convention as a natural-born Filipino
citizen, in relation to the present case.
Private respondent, as previously stated, is a full brother of Emil L. Ong, both of them having the same
father and mother.
Private respondent, relying on a resolution of the 1971 Constitutional Convention 32 to the effect that
Emil L. Ong was a natural-born Filipino citizen, alleged before the House Electoral Tribunal that, by
analogy, he is himself a natural-born Filipino citizen. This submission, while initially impressive, is, as will
now be shown, flawed and not supported by the evidence. Not even the majority decision of the electoral
tribunal adopted the same as the basis of its decision in favor of private respondent. The tribunal, in
reference to this submission, said:
Be that as it may and in the light of the Tribunal's disposition of protestee's citizenship
based on an entirely different set of circumstances, apart from the indisputable fact that
the matters attempted to be brought in issue in connection therewith are too far
removed in point of time and relevance from the decisive events relied upon by the
Tribunal, we view these two issues as being already inconsequential. 33
The electoral tribunal (majority) instead chose to predicate its decision on the alleged citizenship
by naturalization of private respondent's father (Ong Chuan) and on the alleged election of
Philippine citizenship by private respondent.
Emil L. Ong, was elected delegate to the 1971 Constitutional Convention. Electoral protests, numbers EP07 and EP-08, were filed by Leonardo D. Galing and Gualberto D. Luto against Emil L. Ong, contesting his
citizenship qualification. The Committee on Election Protests Credentials of the 1971 Contitution
Convention heard the protests and submitted to the Convention a report dated 4 September 1972, the
dispositive portion of which stated:
It appearing that protestee's grandfather was himself a Filipino citizen under the
provisions of the Philippine Bill of 1902 and the Treaty of Paris of December 10, 1898,
thus conferring upon protestee's own father, Ong Chuan, Philippine citizenship at birth,
the conclusion is inescapable that protestee himself is a natural-born citizen, and is

therefore qualified to hold the office of delegate to the Constitutional Convention. 34
On 28 November 1972, during a plenary session of the 1971 Constitutional Convention, the election
protests filed against Emil L. Ong were dismissed, following the report of the Committee on Election
Protests and Credentials. 35
It is evident, up to this point, that the action of the 1971 Constitutional Convention in the case of Emil L.
Ong is, to say the least, inconclusive to the case at bar, because
a) the 1971 Constitutional Convention decision in the Emil L. Ong case involved the
1935 Constitution; the present case, on the other hand involves the 1987 Constitution:
b) the 1935 Constitution contained no specific definition of a "natural-born citizen" of the
Philippines; the 1987 Constitution contains a precise and specific definition of a "naturalborn citizen" of the Philippines in Sec. 2, Art. IV thereof and private respondent does not
qualify under such definition in the 1987 Constitution;
c) the decision of the 1971 Constitutional Convention in the case of Emil L. Ong was a
decision of apolitical body, not a court of law. And, even if we have to take such a
decision as a decision of a quasi-judicial body (i.e., a political body exercising quasijudicial functions), said decision in the Emil L. Ong case can not have the category or
character of res judicata in the present judicial controversy, because between the two (2)
cases, there is no identity of parties (one involves Emil L. Ong, while the other involves
private respondent) and, more importantly, there is no identity of causes of action
because the first involves the 1935 Constitution while the second involves the 1987
Constitution.
But even laying aside the foregoing reasons based on procedural rules and logic, the evidence submitted
before the electoral tribunal and, therefore, also before this Court, does not support the allegations made
by Emil L. Ong before the 1971 Constitutional Convention and inferentially adopted by private
respondent in the present controversy. This leads us to an interesting inquiry and finding.
The 1971 Constitutional Convention in holding that Emil L. Ong was a "natural-born citizen" of the
Philippines under the 1935 Constitution laid stress on the "fact" and this appears crucial and central to
its decision that Emil L. Ong's grandfather, Ong Te became a Filipino citizen under the Philippine Bill of
1902 and, therefore, his descendants like Emil L. Ong (and therefore, also private respondent) became
natural-born Filipinos. The 1971 Constitutional Convention said:
Ong Te Emil Ong's grandfather, was a Spanish subject residing in the Philippines on April
11, 1899 and was therefore one of the many who became ipso facto citizens of the
Philippines under the provisions of the Philippine Bill of 1902. Said law expressly declared
that all inhabitants of the Philippine Islands who continued to reside therein and who
were Spanish subjects on April 11, 1899 as well as their children born subsequent
thereto, "shall be deemed and held to be citizens of the Philippine Islands." (Section 4,
Philippine Bill of
1902). 36
The "test" then, following the premises of the 1971 Constitutional Convention, is whether or not Ong Te
private respondent's and Emil L. Ong's grandfather was "an inhabitant of the Philippines who continued
to reside therein and was a Spanish subject on April 11, 1899." If he met these requirements of the
Philippine Bill of 1902, then, Ong Te was a Filipino citizen; otherwise, he was not a Filipino citizen.
Petitioners (protestants) submitted and offered in evidence before the House Electoral Tribunal exhibits
W, X, Y, Z ,AA, BB, CC, DD and EE which are copies of entries in the "Registro de Chinos" from years 1896
to 1897 which show that Ong Te was not listed as an inhabitant of Samar where he is claimed to have
been a resident. Petitioners (protestants) also submitted and offered in evidence before the House
Electoral Tribunal exhibit V, a certification of the Chief of the Archives Division, Records and Management
and Archives Office, stating that the name of Ong Te does not appear in the "Registro Central de Chinos"
for the province of Samar for 1895. These exhibits prove or at least, as petitioners validly argue, tend to
prove that Ong Te was NOT a resident of Samar close to 11 April 1899 and, therefore, could not continue
residing in Samar, Philippines after 11 April 1899, contrary to private respondent's pretense. In the face of
these proofs or evidence, private respondent FAILED TO PRESENT ANY REBUTTAL OR COUNTERVAILING
EVIDENCE, except the decision of the 1971 Constitutional Convention in the case of Emil L. Ong,
previously discussed.
It is not surprising then that, as previously noted, the majority decision of the House Electoral Tribunal
skirted any reliance on the alleged ipso facto Filipino citizenship of Ong Te under the Philippine Bill of
1902. It is equally not surprising that Ong Chuan, the son of Ong Te and father or private respondent, did
not even attempt to claim Filipino citizenship by reason of Ong Te's alleged Filipino citizenship under the
Philippine Bill of 1902 but instead applied for Philippine citizenship through naturalization.
Nor can it be contended by the private respondent that the House Electoral Tribunal should no longer
have reviewed the factual question or issue of Ong Te's citizenship in the light of the resolution of the
1971 Constitutional Convention finding him (Ong Te to have become a Filipino citizen under the
Philippine Bill of 1902. The tribunal had to look into the question because the finding that Ong Te had
become a Filipino citizen under the Philippine Bill of 1902 was the central core of said 1971 resolution but
as held in Lee vs. Commissioners of
Immigration: 37
. . . Everytime the citizenship of a person is material or indispensable in a judicial or
administrative case, whatever the corresponding Court or administrative authority
decides therein as to such citizenship is generally not considered as res adjudicata, hence
it has to be threshed out again and again as the occasion may demand.
Which finally brings us to the resolution of this Court in Emil L. Ong vs. COMELEC, et al., G.R. No. 67201, 8
May 1984. In connection with said resolution, it is contended by private respondent that the resolution of
the 1971 Constitutional Convention in the Emil L. Ong case was elevated to this Court on a question
involving Emil L. Ong's disqualification to run for membership in the Batasang Pambansa and that,
according to private respondent, this Court allowed the use of the Committee Report to the 1971
Constitutional Convention.
To fully appreciate the implications of such contention, it would help to look into the circumstances of the
case brought before this Court in relation to the Court's action or disposition. Emil L. Ong and Edilberto
Del Valle were both candidates for the Batasang Pambansa in the 14 May 1984 election. Valle filed a
petition for disqualification with the Commission on Election on 29 March 1984 docketed as SPC No. 84-
69 contending that Ong is not a natural-born citizen. Ong filed a motion to dismiss the petition on the
ground that the judgment of the 1971 Constitutional Convention on his status as a natural-born citizen of
the Philippines bars the petitioner from raising the Identical issue before the COMELEC. (G.R. No.
67201, Rollo, p. 94) The motion was denied by the COMELEC, thus, prompting Emil L. Ong to file with this
Court a petition for certiorari, prohibition and mandamus with preliminary injunction against the
COMELEC, docketed as G.R. No. 67201.
In a resolution dated 8 May 1984, this Court resolved to issue a writ of preliminary injunction enjoining
respondent COMELEC from holding any further hearing on the disqualification case entitled "Edilberto Del
Valle vs. Emil Ong(SPC No. 84-69) except to dismiss the same. (G.R. Nos. 92202-03, Rollo, p. 335)
This Court, in explaining its action, held that:
Acting on the prayer of the petitioner for the issuance of a Writ of Preliminary Injunction,
and considering that at the hearing this morning, it was brought out that the 1971
Constitutional Convention, at its session of November 28, 1972, after considering the
Report of its Committee on Election Protests and Credentials, found that the protest
questioning the citizenship of the protestee (the petitioner herein) was groundless and
dismissed Election Protests Nos. EP 07 and EP 08 filed against said petitioner (p.
237, Rollo), the authenticity of the Minutes of said session as well as of the said
Committee's Report having been duly admitted in evidence without objection and bears
out, for now, without need for a full hearing, that petitioner is a natural-born citizen, the
Court Resolved to ISSUE, effective immediately, a Writ of Preliminary Injunction enjoining
respondent COMELEC from holding any further hearing on the disqualification case
entitled Edilberto Del Valle vs. Emil Ong (SPC No. 84-69) scheduled at 3:00 o'clock this
afternoon, or any other day, except to dismiss the same. This is without prejudice to any
appropriate action that private respondent may wish to take after the elections.
(emphasis supplied)
It is thus clear that the resolution of this Court in G.R. No. 67201 was rendered without the benefit of a
hearing on the merits either by the Court or by the COMELEC and merely on the basis of a Committee's
Report to the 1971 Constitutional Convention, and that this Court (and this is quite significant) did not
foreclose any appropriate action that Del Valle (therein petitioner) may wish to take after the elections.
It is thus abundantly clear also that to this Court, the resolution of the 1971 Constitutional Convention
recognizing Emil L. Ong as a natural-born citizen under the 1935 Constitution did not foreclose a future or
further proceeding in regard to the same question and that, consequently, there is no vested right of Emil
L. Ong to such recognition. How much more when the Constitution involved is not the 1935 Constitution
but the 1987 Constitution whose provisions were never considered in all such proceedings because the
1987 Constitution was still inexistent.
A final word. It is regrettable that one (as private respondent) who unquestionably obtained the highest
number of votes for the elective position of Representative (Congressman) to the House of
Representatives for the second district of Northern Samar, would have had to cease in office by virtue of
this Court's decision, if the full membership of the Court had participated in this case, with the result that
the legislative district would cease to have, in the interim, a representative in the House of
Representatives. But the fundamental consideration in cases of this nature is the Constitution and only
the Constitution. It has to be assumed, therefore, that when the electorate in the second legislative
district of Northern Samar cast the majority of their votes for private respondent, they assumed and
believed that he was fully eligible and qualified for the office because he is a natural-born Filipino citizen.
That erroneous assumption and belief can not prevail over, but must yield to the majesty of the
Constitution.
This is a sad day for the Constitution. As I see it, the Constitution mandates that members of the House of
Representatives should be "natural-born citizens of the Philippines". The voting majority of the present
Court says, "Filipino citizens will do." This is bad enough. What is worse is, the same voting majority, in
effect, says, "even aliens will do as well."
WHEREFORE, my vote is clear: to declare private respondent Jose L. Ong Chua, Jr., as he clearly is, NOT a
natural-born citizen of the Philippines and therefore NOT QUALIFIED to be a Member of the House of
Representatives, Congress of the Philippines.
Narvasa, J., Paras, J. and Regalado, J., dissenting.
SARMIENTO, J., concurring:
I concur with the majority.
(1)
I wish to point out first that the question of citizenship is a question of fact, and as a rule, the Supreme
Court leaves facts to the tribunal that determined them. I am quite agreed that the Electoral Tribunal of
the House of Representatives, as the "sole judge" of all contests relating to the membership in the House,
as follows:
Tribunal shall be its Chairman. 1
is the best judge of facts and this Court can not substitute its judgment because it thinks it knows
better.
In the case of Aratuc v. Commission on Elections, 2 it was held that this Court can not review the errors of
the Commission on Elections (then the "sole judge" of all election contests) in the sense of reviewing
facts and unearthing mistakes and that this Court's jurisdiction is to see simply whether or not it is
guilty of a grave abuse of discretion. It is true that the new Constitution has conferred expanded powers
on the Court, 3 but as the Charter states, our authority is "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." 4 It is not to review facts.
"Grave abuse of discretion" has been defined as whimsical exercise of power amounting to excess of
jurisdiction, or otherwise, to denial of due process of law. 5
I find none of that here.
As the majority indicates, Jose Ong's citizenship is a matter of opinion with which men may differ, but
certainly, it is quite another thing to say that the respondent Tribunal has gravely abused its discretion
because the majority has begged to differ. It does not form part of the duty of the Court to remedy all
imagined wrongs committed by the Government.
The respondent Tribunal has spoken. According to the Tribunal, Jose Ong is a Filipino citizen and
consequently, is possessed of the qualifications to be a member of the House. As the sole judge,
precisely, of this question, the Court can not be more popish than the pope.
(2)
I can not say, in the second place, that the Decision in question stands exactly on indefensible grounds. It
is to be noted that Jose Ong had relied on the Report dated September 4, 1972 of the 1971 Constitutional
Convention Committee 6 on Election Protests and Credentials, in which the Committees upheld the
citizenship, and sustained the qualification to sit as Delegate, of Emil Ong, Jose Ong's full blood brother.
According to the Report, Ong Te the Ongs' grandfather, was already a Filipino citizen having complied
with the requirements on Filipinization by existing laws for which his successors need not have elected
Filipino citizenship. I quote:
xxx xxx xxx
There is merit in protestee's claim. There can hardly be any doubt that Ong Te
protestees's grandfather, was a Spanish subject residing in the Philippines on April 11,
1899, and was therefore one of the many who became ipso facto citizens of the
were Spanish subjects on April 11, 1899, as well as their children born subsequent
thereto, "shall be deemed and held to be citizens of the Philippine Islands" (Sec. 4,
Philippine Bill of 1902). Excepted from the operation of this rule were Spanish subjects
who shall have elected to preserve their allegiance to the Crown of Spain in accordance
with the Treaty of Paris of December 10, 1898. But under the Treaty of Paris, only
Spanish subjects who were natives of Peninsular Spain had the privilege of preserving
their Spanish nationality. 7
xxx xxx xxx
xxx xxx xxx
As earlier noted, protestee's grandfather established residence in the Philippines in 1895,
as shown by the Registro Central de Chinos. He was also issued a certificate of
registration. He established a business here, and later acquired real property. Although
he went back to China for brief visits, he invariably came back. He even brought his eldest
son, Ong Chuan, to live in the Philippines when the latter was only 10 years old. And Ong
Chuan was admitted into the country because, as duly noted on his landing certificate,
his father, Ong Te had been duly enrolled under CR 16009-36755 i.e., as a permanent
resident. Indeed, even when Ong Te went back to China in the 1920's for another visit, he
left his son, Ong Chuan, who was then still a minor, in the Philippines obviously
because he had long considered the Philippines his home. The domicile he established in
1895 is presumed to have continued up to, and beyond, April 11, 1899, for, as already
adverted to, a domicile once acquired is not lost until a new one is gained. The only
conclusion then can thus be drawn is that Ong Te was duly domiciled in the Philippines as
of April 11, 1899, within the meaning of par. 4, Art. 17, of the Civil Code of 1889 and
was, consequently, a Spanish subject, he qualified as a Filipino citizen under the
provisions of Section 4 of the Philippine Bill of 1902. 8
It is true that Ong Chuan, the Ong brothers' father, subsequently sought naturalization in the belief that
he was, all along, a Chinese citizen, but as the Report held:
Protestants, however, make capital of the fact that both Ong Te and his son, Ong Chuan
(protestee's father), appear to have been registered as Chinese citizens even long after
the turn of the century. Worse, Ong Chuan himself believed the was alien, to the extent
of having to seek admission as a Pilipino citizen through naturalization proceedings. The
point, to our mind, is neither crucial nor substantial. Ong's status as a citizen is a matter
of law, rather than of personal belief. It is what the law provides, and not what one thinks
his status to be, which determines whether one is a citizen of a particular state or not.
Mere mistake or misapprehension as to one's citizenship, it has been held, is not a
sufficient cause or reason for forfeiture of Philippine citizenship; it does not even
constitute estoppel (Palanca vs. Republic, 80 Phil. 578, 584). Too, estoppel applies only to
questions of fact and not of law (Tanada v. Cuenco, L-10520, Feb. 28, 1957). 9
It is to be noted that the Report was unanimously approved by the Committee, and on November 28,
1972, approved without any objection by the Convention in plenary session. 10
I am not, of course, to be mistaken as acting as mouthpiece of Emil Ong, but in all candor, I speak from
experience, because when the Convention approved the Report in question, I was one of its vicepresidents and the presiding officer.
It is to be noted finally, that the matter was elevated to this Court (on a question involving Emil Ong's
qualification to sit as member of the defunct Batasang Pambansa) 11 in which this Court allowed the use
of the Committee Report.
Faced with such positive acts of the Government, I submit that the question of the Ong's citizenship is a
settled matter. Let it rest.
It is true that Electoral Protest Nos. EP-07 and EP-08 of the Convention as well as G.R. No. 67201 of this
Court, involved Emil Ong and not his brother; I submit, however, that what is sauce for the goose is sauce
for the gander.
I also submit that the fundamental question is whether or not we will overturn the unanimous ruling of
267 delegates, indeed, also of this Court.
Separate Opinions
PADILLA, J., dissenting:
I dissent.
These separate petitions for certiorari and mandamus seek to annul the decision * of respondent House
of Representatives Electoral Tribunal (hereinafter referred to as the tribunal) dated 6 November 1989
which declared private respondent Jose L. Ong, a natural-born citizen of the Philippines and a legal
resident of Laoang, Northern Samar, and the resolution of the tribunal dated 22 February 1990 denying
petitioners' motions for reconsideration.
In G.R. Nos. 92191-92, petitioner Co also prays that the Court declare private respondent Ong not
qualified to be a Member of the House of Representatives and to declare him (petitioner Co) who
allegedly obtained the highest number of votes among the qualified candidates, the duly elected
representative of the second legislative district of Northern Samar. In G.R. Nos. 92202-03, petitioner
Balanquit prays that the Court declare private respondent Ong and Co (petitioner in G.R. Nos. 92191-92)
not qualified for membership in the House of Representatives and to proclaim him (Balanguit) as the duly
elected representative of said district.
Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private respondent Jose Ong Chuan, Jr. were among
the candidates for the position of Representative or Congressman for the second district of Northern
Samar during the 11 May 1987 congressional elections. Private respondent was proclaimed duly-elected
on 18 May 1987 with a plurality of some sixteen thousand (16,000) votes over petitioner Co who
obtained the next highest number of votes.
Petitioners Co and Balanquit then filed separate election protests against private respondent with the
tribunal, docketed as HRET Cases Nos. 13 and 15 respectively. Both protests raised almost the same
issues and were thus considered and decided jointly by the tribunal.
The issues raised before the tribunal were the following:
1. Whether or not protestee (meaning, Ong) is a natural-born citizen of the Philippines in
contemplation of Section 6, Article VI of the 1987 Constitution in relation to Sections 2
and 1(3), Article IV thereof; and
2. Whether or not protestee was a resident of Laoang, Northern Samar, in contemplation
of Section 6, Article VI of the same Constitution, for a period of not less than one year
immediately preceding the congressional elections of May 1987.
The respondent tribunal in its decision dated 6 November 1989 held that respondent Jose L. Ong is a
natural-born citizen of the Philippines and was a legal resident of Laoang, Northern Samar for the
required period prior to the May 1987 congressional elections. He was, therefore, declared qualified to
continue in office as Member of the House of Representatives, Congress of the Philippines, representing
the second legislative district of Northern Samar.
The factual antecedents taken from the consolidated proceedings in the tribunal are the following:
1. The Protestee (Ong) was born on June 19, 1948 to the legal spouses Ong Chuan also
known as Jose Ong Chuan and Agrifina E. Lao. His place of birth is Laoang which is now
one of the municipalities comprising the province of Northern Samar (Republic Act No.
6132 approved on August 24, 1970 and the Ordinance appended to the 1987
Constitution).
2. On the other hand, Jose Ong Chuan was born in China and arrived in Manila on
December 16, 1915. (Exhibit zz) Subsequently thereafter, he took up residence in Laoang,
Samar.
3. On February 4, 1932, he married Agrifina E. Lao. Their wedding was celebrated
according to the rites and practices of the Roman Catholic Church in the Municipality of
Laoang (Exh. E).
4. At the time of her marriage to Jose Ong Chuan, Agrifina E. Lao was a natural-born
Filipino citizen, both her parents at the time of her birth being Filipino citizens. (Exhibits E
& I)
5. On February 15, 1954, Jose Ong Chuan, desiring to acquire Philippine citizenship, filed
his petition for naturalization with the Court of First Instance of Samar, pursuant to
Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law.
6. On April 28, 1955, the Court of First Instance of Samar rendered a decision approving
the application of Jose Ong Chuan for naturalization and declaring said petitioner a
Filipino citizen "with all the rights and privileges and duties, liabilities and obligations
inherent to Filipino citizens. (Exh. E)
7. On May 15, 1957, the same Court issued an order:
(1) declaring the decision of this Court of April 28, 1955 final and
executory;
(2) directing the clerk of court to issue the corresponding Certificate of
Naturalization in favor of the applicant Ong Chuan who prefers to take
his oath and register his name as Jose Ong Chuan. Petitioner may take
his oath as Filipino citizen under Ms new christian name, Jose Ong
Chuan. (Exh. F)
8. On the same day, Jose Ong Chuan having taken the corresponding oath of allegiance to
the Constitution and the Government of the Philippines as prescribed by Section 12 of
Commonwealth Act No. 473, was issued the corresponding Certificate of Naturalization.
(Exh. G)
9. On November 10, 1970, Emil L. Ong, a full-brother of the protestee and a son born on
July 25, 1937 at Laoang, Samar to the spouses Jose Ong Chuan and Agrifina E. Lao, was
elected delegate from Northern Samar to the 1971 Constitutional Convention.
10. By protestee's own -testimony, it was established that he had attended grade school
in Laoang. Thereafter, he went to Manila where he finished his secondary as well as his
college education. While later employed in Manila, protestee however went home to
Laoang whenever he had the opportunity to do so, which invariably would be as frequent
as twice to four times a year.
11. Protestee also showed that being a native and legal resident of Laoang, he registered
as a voter therein and correspondingly voted in said municipality in the 1984 and 1986
elections.
12. Again in December 1986, during the general registration of all voters in the country,
Protestee re-registered as a voter in Precinct No. 4 of Barangay Tumaguinting in Laoang.
In his voter's affidavit, Protestee indicated that he is a resident of Laoang since birth.
(Exh. 7) 1
Petitioners' motions for reconsideration of the tribunal's decision having been denied, petitioners filed
the present petitions.
In their comments, the respondents first raise the issue of the Court's jurisdiction to review the decision
of the House Electoral Tribunal, considering the constitutional provision vesting upon said tribunal the
power and authority to act as the sole judge of all contests relating to the qualifications of the Members
of the House of Representatives. 2
On the question of this Court's jurisdiction over the present controversy, I believe that, contrary to the
respondents' contentions, the Court has the jurisdiction and competence to review the questioned
decision of the tribunal and to decide the present controversy.
Article VIII, Section I of the 1987 Constitution provides that:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
The Constitution, it is true, constitutes the tribunal as the sole judge of all contests relating to the
election, returns, and qualifications of Members of the House of Representatives. But as early as 1938, it
was held in Morrero vs.Bocar, 3 construing Section 4, Article VI of the 1935 Constitution which provided
that ". . . The Electoral Commission shall be the sole judge of all contests relating to the election, returns
and qualifications of the Members of the National Assembly," that:
The judgment rendered by the (electoral) commission in the exercise of such an

acknowledged power is beyond judicial interference, except, in any event, "upon a clear
showing of such arbitrary and improvident use of the power as will constitute a denial of
due process of law." (Barry vs. US ex rel. Cunningham, 279 US 597; 73 Law. ed., 867;
Angara vs. Electoral Commission, 35 Off. Gaz., 23.)
And then under the afore-quoted provisions of Article VIII, Section 1 of the 1987 Constitution, this Court
is duty-bound to determine whether or not, in an actual controversy, there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
The present controversy, it will be observed, involves more than perceived irregularities in the conduct of
a congressional election or a disputed appreciation of ballots, in which cases, it may be contended with
great legal force and persuasion that the decision of the electoral tribunal should be final and conclusive,
for it is, by constitutional directive, made the sole judge of contests relating to such matters. The present
controversy, however, involves no less than a determination of whether the qualifications for
membership in the House of Representatives,as prescribed by the Constitution, have been met. Indeed,
this Court would be unforgivably remiss in the performance of its duties, as mandated by the
Constitution, were it to allow a person, not a natural-born Filipino citizen, to continue to sit as a Member
of the House of Representatives, solely because the House Electoral Tribunal has declared him to be so. In
such a case, the tribunal would have acted with grave abuse of discretion amounting to lack or excess of
jurisdiction as to require the exercise by this Court of its power of judicial review.
Besides, the citizenship and residence qualifications of private respondent for the office of Member of the
House of Representatives, are here controverted by petitioners who, at the same time, claim that they
are entitled to the office illegally held by private respondent. From this additional direction, where one
asserts an earnestly perceived right that in turn is vigorously resisted by another, there is clearly a
justiciable controversy proper for this Court to consider and decide.
Nor can it be said that the Court, in reviewing the decision of the tribunal, asserts supremacy over it in
contravention of the time-honored principle of constitutional separation of powers. The Court in this
instance simply performs a function entrusted and assigned to it by the Constitution of interpreting, in a
justiciable controversy, the pertinent provisions of the Constitution with finality.
It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or
statutory) interpretation, in the context of the interactions of the three branches of the
government, almost always in situations where some agency of the State has engaged in
action that stems ultimately from some legitimate area of governmental power (the
Supreme Court in Modern Role, C.B. Sevisher, 1958, p. 36). 4
Moreover, it is decidedly a matter of great public interest and concern to determine whether or not
private respondent is qualified to hold so important and high a public office which is specifically reserved
by the Constitution only to natural-born Filipino citizens.
After a careful consideration of the issues and the evidence, it is my considered opinion that the
respondent tribunal committed grave abuse of discretion amounting to lack or excess of jurisdiction in
rendering its questioned decision and resolution, for reasons to be presently stated.
The Constitution 5 requires that a Member of the House of Representatives must be a natural-born citizen
of the Philippines and, on the day of the election, is at least twenty-five (25) years of age, able to read and
write, and, except the party-list representatives, a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one (1) year immediately preceding the day
of the election.
Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens as:
Natural-born citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship. Those who
elect Philippine citizenship in accordance with paragraph (3), Section I hereof shall be
deemed natural-born citizen,
Article IV, Section 1, paragraph (3) of the 1987 Constitution provides that:
Section 1. The following are citizens of the Philippines:
xxx xxx xxx
(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority.
The Court in this case is faced with the duty of interpreting the above-quoted constitutional provisions.
The first sentence of Section 2 of Article IV states the basic definition of a natural-born Filipino citizen.
Does private respondent fall within said definition?
To the respondent tribunal,
Protestee may even be declared a natural-born citizen of the Philippines under the first
sentence of Sec. 2 of Article IV of the 1987 Constitution because he did not have "to
perform any act to acquire or perfect his Philippine citizenship." It bears to repeat that on
15 May 1957, while still a minor of 9 years he already became a Filipino citizen by
declaration of law. Since his mother was a natural-born citizen at the time of her
marriage, protestee had an inchoate right to Philippine citizenship at the moment of his
birth and, consequently the declaration by virtue of Sec. 15 of CA 473 that he was a
Filipino citizen retroacted to the moment of his birth without his having to perform any
act to acquire or perfect such Philippine citizenship. 6
I regret that I am neither convinced nor persuaded by such kaleidoscopic ratiocination. The records show
that private respondent was born on 19 June 1948 to the spouses Jose Ong Chuan, a Chinese citizen, and
Agrifina E. Lao, a natural-born Filipino citizen, in Laoang, Northern Samar. In other words, at birth, private
respondent was a Chinese citizen (not a natural-born Filipino citizen) because his father was then a
Chinese citizen (not a naturalized Filipino citizen). Under the 1935 Constitution which was enforced at the
time of private respondent's birth on 19 June 1948, only those whose fathers were citizens of the
Philippines were considered Filipino citizens. Those whose mothers were citizens of the Philippines had to
elect Philippine citizenship upon reaching the age of majority, in order to be considered Filipino citizens. 7
Following the basic definition in the 1987 Constitution of a natural-born citizen, in relation to the 1935
Constitution, private respondent is not a natural-born Filipino citizen, having been born a Chinese
citizen by virtue of the Chinese citizenship of his father at the time of his birth, although from birth,
private respondent had the right to elect Philippine citizenship, the citizenship of his mother, but only
upon his reaching the age of majority.
While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children of a naturalized
citizen (father), who were born in the Philippines prior to the naturalization of the parent automatically
become Filipino citizens, 8 this does not alter the fact that private respondent was not born to a Filipino
father, and the operation of Section 15 of CA 473 did not confer upon him the status of a naturalborn citizen merely because he did not have to perform any act to acquire or perfect his status as
a Filipino citizen.
But even assuming arguendo that private respondent could be considered a natural-born citizen by virtue
of the operation of CA 473, petitioners however contend that the naturalization of private respondent's
father was invalid and void from the beginning, and, therefore, private respondent is not even a Filipino
citizen.
Respondent tribunal in its questioned decision ruled that only a direct proceeding for nullity of
naturalization as a Filipino citizen is permissible, and, therefore, a collateral attack on Ong Chuan's
naturalization is barred in an electoral contest which does not even involve him (Ong Chuan).
Private respondent, for his part, avers in his Comment that the challenge against Ong Chuan's
naturalization must emanate from the Government and must be made in a proper/appropriate and direct
proceeding for de-naturalization directed against the proper party, who in such case is Ong Chuan, and
also during his lifetime.
A judgment in a naturalization proceeding is not, however, afforded the character of impregnability under
the principle of res judicata. 9 Section 18 of CA 473 provides that a certificate of naturalization may be
cancelled upon motion made in the proper proceeding by the Solicitor General or his representative, or
by the proper provincial fiscal.
In Republic vs. Go Bon Lee, 10 this Court held that:
An alien friend is offered under certain conditions the privilege of citizenship. He may
accept the offer and become a citizen upon compliance with the prescribed conditions,
but not otherwise. His claim is of favor, not of right. He can only become a citizen upon
and after a strict compliance with the acts of Congress. An applicant for this high privilege
is bound, therefore, to conform to the terms upon which alone the right he seeks can be
conferred. It is his province, and he is bound, to see that the jurisdictional facts upon
which the grant is predicated actually exist and if they do not he takes nothing by this
paper grant.
xxx xxx xxx
Congress having limited this privilege to a specified class of persons, no other person is
entitled to such privilege, nor to a certificate purporting to grant it, and any such
certificate issued to a person not so entitled to receive it must be treated as a mere

nullity, which confers no legal rights as against the government, from which it has been
obtained without warrant of law.
"Naturalization is not a right, but a privilege of the most discriminating as well as delicate and exacting
nature, affecting public interest of the highest order, and which may be enjoyed only under the precise
conditions prescribed by law therefor." 11
Considering the legal implications of the allegation made by the petitioners that the naturalization of
private respondent's father Ong Chuan, is a nullity, the Court should make a ruling on the validity of said
naturalization proceedings. This course of action becomes all the more inevitable and justified in the
present case where, to repeat for stress, it is claimed that a foreigner is holding a public
office. 12
It cannot be overlooked, in this connection, that the citizenship of private respondent is derived from his
father. If his father's Filipino citizenship is void from the beginning, then there is nothing from which
private respondent can derive his own claimed Filipino citizenship. For a spring cannot rise higher than its
source. And to allow private respondent to avail of the privileges of Filipino citizenship by virtue of a void
naturalization of his father, would constitute or at least sanction a continuing offense against the
Constitution.
The records show that private respondent's father, Jose Ong Chuan, took the oath of allegiance to the
Constitution and the Philippine Government, as prescribed by Section 12 of CA 473 on the same day (15
May 1957) that the CFI issued its order directing the clerk of court to issue the corresponding Certificate
of Naturalization and for the applicant to take the oath of allegiance.
However, it is settled that an order granting a petition to take the requisite oath of allegiance of one who
has previously obtained a decision favorable to his application for naturalization, is appealable. It is,
therefore, improper and illegal to authorize the taking of said oath upon the issuance of said order and
before the expiration of the reglementary period to perfect any appeal from said order. 13
In Cua Sun Ke vs. Republic, 14 this Court held that:
Administration of the oath of allegiance on the same day as issuance of order granting
citizenship is irregular and makes the proceedings so taken null and void. (Republic vs.
Guy, 115 SCRA 244 [1982];citing the case of Ong So vs. Republic of the Philippines, 121
Phil. 1381).
It would appear from the foregoing discussion that the naturalization of Jose Ong Chuan (private
respondent's father) was null and void. It follows that the private respondent did not acquire any legal
rights from the void naturalization of his father and thus he cannot himself be considered a Filipino
citizen, more so, a natural-born Filipino citizen.
But assuming that the CFI order of 15 May 1957 directing the clerk of court to issue the certificate of
naturalization to Ong Chuan and for the latter to take the oath of allegiance was final and not appealable,
the resulting naturalization of Ong Chuan effected, as previously stated, an automatic naturalization of
private respondent, then a minor, as a Filipino citizen on 15 May 1957, but not his acquisition or
perfection of the status of a natural-born Filipino citizen.
Let us now look into the question of whether or not private respondent acquired the status of a naturalborn Filipino citizen by reason of the undisputed fact that his mother was a natural-born Filipino citizen.
This in turn leads us to an examination of the second sentence in Article IV, Section 2 of the 1987
Constitution. It expands, in a manner of speaking, in relation to Section 1, paragraph (3) of the same
Article IV, the status of a natural-born Filipino citizen to those who elect Philippine citizenship upon
reaching the age of majority. The right or privilege of election is available, however, only to those born to
Filipino mothers under the 1935 Constitution, and before the 1973 Constitution took effect on 17 January
1973.
The petitioners contend that the respondent tribunal acted in excess of its jurisdiction or gravely abused
its discretion as to exceed its jurisdiction in "distorting" the conferment by the 1987 Constitution of the
status of "natural-born" Filipino citizen on those who elect Philippine citizenship all in its strained
effort, according to petitioners, to support private respondent's qualification to be a Member of the
House of Representatives. 15
Petitioners argue that the clear, unambiguous wording of section 1(3) of Article IV of the 1987
Constitution contemplates that only the legitimate children of Filipino mothers with alien father, born
before 17 January 1973 and who would reach the age of majority (and thus elect Philippine citizenship)
after the effectivity of the 1987 Constitution are entitled to the status of natural-born Filipino citizen. 16
The respondent tribunal in resolving the issue of the constitutional provisions' interpretation, found
reason to refer to the interpellations made during the 1986 Constitutional Commission. It said:
That the benevolent provisions of Sections 2 and 1(3) of Article IV of the 1987
Constitution was (sic) intended by its (sic) framers to be endowed, without distinction, to
all Filipinos by election pursuant to the 1935 Constitution is more than persuasively
established by the extensive interpellations and debate on the issue as borne by the
official records of the 1986 Constitutional Commission. 17
Although I find the distinction as to when election of Philippine citizenship was made irrelevant to the
case at bar, since private respondent, contrary to the conclusion of the respondent tribunal, did not elect
Philippine citizenship, as provided by law, I still consider it necessary to settle the controversy regarding
the meaning of the constitutional provisions in question.
I agree with respondent tribunal that the debates, interpellations petitions and opinions expressed in the
1986 Constitutional Commission may be resorted to in ascertaining the meaning of somewhat elusive and
even nebulous constitutional provisions. Thus
The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the
people adopting it should be given effect. The primary task in constitutional construction
is to ascertain and thereafter assure the realization of the purpose of the framers and of
the people in the adoption of the Constitution. It may also be safely assumed that the
people in ratifying the constitution were guided mainly by the explanation offered by the
framers. 18
The deliberations of the 1986 Constitutional Commission relevant to Section 2, Article IV in relation to
Section 1(3) of the same Article, appear to negate the contention of petitioners that only those born to
Filipino mothers before 17 January 1973 and who would elect Philippine citizenship after the effectivity of
the 1987 Constitution, are to be considered natural-born Filipino citizens.
During the free-wheeling discussions on citizenship, Commissioner Treas specifically asked
Commissioner Bernas regarding the provisions in question, thus:
MR. TRENAS: The Committee on Citizenship, Bill of Rights, Political Rights
the interpretation of who is a natural-born Filipino citizen as provided in
Section 4 of the 1973 Constitution, by adding that persons who have
elected Philippine citizenship under the 1935 Constitution shall be
considered natural-born. Am I right, Mr. Presiding Officer?
FR BERNAS: Yes.
MR. TRENAS: And does the Commissioner think that tills addition to
Section 4 of the 1973 Constitution would be contrary to the spirit of that
section?
FR BERNAS: Yes, we are quite aware that it is contrary to the letter really.
But whether it is contrary to the spirit is something that has been
debated before and is being debated even now. We will recall that
during the 1971 Constitutional Convention, the status of natural-born
citizenship of one of the delegates, Mr. Ang, was challenged precisely
because he was a citizen by election. Finally, the 1971 Constitutional
Convention considered him a natural-born citizen, one of the
requirements to be a Member of the 1971 Constitutional Convention.
The reason behind that decision was that a person under his
circumstances already had the inchoate right to be a citizen by the fact
that the mother was a Filipino. And as a matter of fact, the 1971
Constitutional Convention formalized that recognition by adopting
paragraph 2 of Section 1 of the 1971 Constitution. So, the entire purpose
of this proviso is simply to perhaps remedy whatever injustice there may
be so that these people born before January 17, 1973 who are not
naturalized and people who are not natural born but who are in the
same situation as we are considered natural-born citizens. So, the
intention of the Committee in proposing this is to equalize their status. 19
When asked to clarify the provision on natural-born citizens, Commissioner Bernas replied to
Commissioner Azcuna thus:
MR. AZCUNA: With respect to the proviso in Section 4, would this refer
1935 Constitution?
FR BERNAS: It would apply to anybody who elected Philippine citizenship
by virtue of the provision of the 1935 Constitution, whether the election
was done before or after 17 January 1973. 20
And during the period of amendments. Commissioner Rodrigo explained the purpose of what now appear
as Section 2 and Section 1, paragraph (3) of Article IV of the 1987 Constitution, thus:
MR. RODRIGO: The purpose of that proviso is to remedy an inequitable
situation. Between 1935 and 1973, when we were under the 1935
of majority; and, if they do elect, they become Filipino citizens, yet, but
not natural-born Filipino citizens.
The 1973 Constitution equalized the status of those born of Filipino mothers and those
born of Filipino fathers. So that from January 17, 1973 when the 1973 Constitution took
effect, those born of Filipino mothers but of alien fathers are natural-born Filipino
citizens. Also, those who are born of Filipino fathers and alien mothers are natural-born
Filipino citizens.
If the 1973 Constitution equalized the status of a child born of a Filipino mother and that
born of a Filipino father, why do we not give a chance to a child born before January 17,
1973, if and when he elects Philippine citizenship, to be in the same status as one born of
a Filipino father namely, natural-born citizen.
Another thing I stated is equalizing the status of a father and a mother vis-a-vis the child.
I would like to state also that we showed equalize the status of a child born of a Filipino
mother the day before January 17, 1973 and a child born also of a Filipino mother on
January 17 or 24 hours later. A child born of a Filipino mother but an alien father one day
before January 17, 1973 is a Filipino citizen, if he elects Philippine citizenship, but he is
not a natural-born Filipino citizen. However, the other child who luckily was born 24
hours later maybe because of parto laborioso is a natural-born Filipino citizen.21
It would appear then that the intent of the framers of the 1987 Constitution in defining a natural-born
Filipino citizen was to equalize the position of Filipino fathers and Filipino mothers as to their children
becoming natural-born Filipino citizens. In other words, after 17 January 1973, effectivity date of the
1973 Constitution, all those born of Filipino fathers (with alien spouse) or Filipino mothers (with alien
spouse) are natural-born Filipino citizens. But those born to Filipino mothers prior to 17 January
1973 must still elect Philippine citizenship upon their reaching the age of majority, in order to be deemed
natural-born Filipino citizens. The election, which is related to the attainment of the age of majority, may
be made before or after 17 January 1973. This interpretation appears to be in consonance with the
fundamental purpose of the Constitution which is to protect and enhance the people's individual
interests, 22 and to foster equality among them.
Since private respondent was born on 19 June 1948 (or before 17 January 1973) to a Filipino mother
(with an alien spouse) and should have elected Philippine citizenship on 19 June 1969 (when he attained
the age of majority), or soon thereafter, in order to have the status of a natural-born Filipino citizen under
the 1987 Constitution, the vital question is: did private respondent really elect Philippine citizenship? As
earlier stated, I believe that private respondent did not elect Philippine citizenship, contrary to the ruling
of the respondent tribunal.
The respondent tribunal, on this issue, ruled as follows:
Where a person born to a Filipino mother and an alien father had exercised the right of
suffrage when he came of age, the same constitutes a positive act of election of
Philippine citizenship. (Florencio vs. Mallare) [sic] The acts of the petitioner in registering
as a voter, participating in elections and campaigning for certain candidates were held by
the Supreme Court as sufficient to show his preference for Philippine citizenship.
Accordingly, even without complying with the formal requisites for election, the
petitioner's Filipino citizenship was judicially upheld. 23
I find the above ruling of the respondent tribunal to be patently erroneous and clearly untenable, as to
amount to grave abuse of discretion. For it is settled doctrine in this jurisdiction that election of Philippine
citizenship must be made in accordance with Commonwealth Act 625. Sections 1 and 2 24 of the Act
mandate that the option to elect Philippine citizenship must be effected expressly not impliedly.
The respondent tribunal cites In re: Florencio Mallare 25 which held that Esteban Mallare's exercise of the
right of suffrage when he came of age, constituted a positive act of election of Philippine citizenship.
Mallare, cited by respondent tribunal as authority for the doctrine of implied election of Philippine
citizenship, is not applicable to the case at bar. The respondent tribunal failed to consider that Esteban
Mallare reached the age of majority in 1924, or seventeen (17) years before CA 625 was approved and,
more importantly, eleven (11) years before the 1935 Constitution (which granted the right of election)
took effect.
To quote Mr. Justice Fernandez in Mallare:
Indeed, it would be unfair to expect the presentation of a formal deed to that effect
considering that prior to the enactment of Commonwealth Act 625 on June 7, 1941, no
particular proceeding was required to exercise the option to elect Philippine citizenship,
granted to the proper party by Section 1, subsection 4, Article IV of the 1935 Philippine
Constitution. 26
Moreover, Esteban Mallare was held to be a Filipino citizen because he was an illegitimate
(natural) child of a Filipino mother and thus followed her citizenship. I therefore agree with the
petitioners' submission that, inciting the Mallare case, the respondent tribunal had engaged in
an obiter dictum.
The respondent tribunal also erred in ruling that by operation of CA 473, the Revised Naturalization Law,
providing for private respondent's acquisition of Filipino citizenship by reason of the naturalization of his
father, the law itself had already elected Philippine citizenship for him. For, assuming arguendo that the
naturalization of private respondent's father was valid, and that there was no further need for private
respondent to elect Philippine citizenship (as he had automatically become a Filipino citizen) yet, this did
not mean that the operation of the Revised Naturalization Law amounted to an election by him of
Philippine citizenship as contemplated by the Constitution. Besides, election of Philippine citizenship
derived from one's Filipino mother, is made upon reaching the age of majority, not during one's minority.
There is no doubt in my mind, therefore, that private respondent did not elect Philippine citizenship upon
reaching the age of majority in 1969 or within a reasonable time thereafter as required by CA 625.
Consequently, he cannot be deemed a natural-born Filipino citizen under Sections 2 and 1(3), Article IV of
Based on all the foregoing considerations and premises, I am constrained to state that private respondent
is not a natural-born citizen of the Philippines in contemplation of Section 6, Article VI of the 1987
Constitution in relation to Sections 2 and 1(3), Article IV thereof, and hence is disqualified or ineligible to
be a Member of the House of Representatives.
At this point, I find it no longer necessary to rule on the issue of required residence, inasmuch as the
Constitution requires that a Member of the House of Representatives must be both a natural-born
Filipino citizen and a resident for at least one (1) year in the district in which he shall be elected.
The next question that comes up is whether or not either of the petitioners can replace private
respondent as the Representative of the second legislative district of Northern Samar in the House of
Representatives.
I agree with respondent tribunal that neither of the petitioners may take the place of private respondent
in the House of Representatives representing the second district of Northern Samar. The ruling of this
Court in Ramon L. Labo, Jr. vs. The Commission on Elections (COMELEC) EN BANC and Luis
L. Lardizabal, 27 is controlling. There we held that Luis L. Lardizabal, who filed the quo warranto petition,
could not replace Ramon L. Labo, Jr. as mayor of Baguio City for the simple reason that as he obtained
only the second highest number of votes in the election, he was obviously not the choice of the people of
Baguio City for mayor of that City.
A petition alleging that the candidate-elect is not qualified for the office is, in effect, a quo
warranto proceeding even if it is labelled an election protest. 28 It is a proceeding to unseat the ineligible
person from office but not necessarily to install the protestant in his place. 29
The general rule is that the fact that a plurality or a majority of the votes are cast for an ineligible
candidate in an election does not entitle the candidate receiving the next highest number of votes to be
declared elected. In such a case, the electors have failed to make a choice and the election is a nullity. 30
Sound policy dictates that public elective offices are filled by those who have the highest
number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no measure
cast in the election. (20 Corpus Juris 2nd, S 243, p. 676).
As early as 1912, this Court has already declared that the candidate who lost in an
election cannot be proclaimed the winner in the event that the candidate who won is
found ineligible for the office to which he was elected. This was the ruling in Topacio v.
Paredes (23 Phil. 238)
Again, the effect of a decision that a candidate is not entitled to the
office because of fraud or irregularities in the election is quite different
from that produced by declaring a person ineligible to hold such an
office. . . . If it be found that the successful candidate (according to the
board of canvassers) obtained a plurality in an illegal manner, and that
another candidate was the real victor, the former must retire in favor of
the latter. In the other case, there is not, strictly speaking, a contest, as
the wreath of victory cannot be transferred from an ineligible to any
other candidate when the sole question is the eligibility of the one
receiving a plurality of the legally cast ballots. . . . 31
The recognition of Emil L. Ong by the 1971 Constitutional Convention as a natural-born Filipino
citizen, in relation to the present case.
Private respondent, as previously stated, is a full brother of Emil L. Ong, both of them having the same
father and mother.
Private respondent, relying on a resolution of the 1971 Constitutional Convention 32 to the effect that
Emil L. Ong was a natural-born Filipino citizen, alleged before the House Electoral Tribunal that, by
analogy, he is himself a natural-born Filipino citizen. This submission, while initially impressive, is, as will
now be shown, flawed and not supported by the evidence. Not even the majority decision of the electoral
tribunal adopted the same as the basis of its decision in favor of private respondent. The tribunal, in
reference to this submission, said:
Be that as it may and in the light of the Tribunal's disposition of protestee's citizenship
based on an entirely different set of circumstances, apart from the indisputable fact that
the matters attempted to be brought in issue in connection therewith are too far
removed in point of time and relevance from the decisive events relied upon by the
Tribunal, we view these two issues as being already inconsequential. 33
The electoral tribunal (majority) instead chose to predicate its decision on the alleged citizenship
by naturalization of private respondent's father (Ong Chuan) and on the alleged election of
Philippine citizenship by private respondent.
Emil L. Ong, was elected delegate to the 1971 Constitutional Convention. Electoral protests, numbers EP07 and EP-08, were filed by Leonardo D. Galing and Gualberto D. Luto against Emil L. Ong, contesting his
citizenship qualification. The Committee on Election Protests Credentials of the 1971 Contitution
Convention heard the protests and submitted to the Convention a report dated 4 September 1972, the
dispositive portion of which stated:
It appearing that protestee's grandfather was himself a Filipino citizen under the
provisions of the Philippine Bill of 1902 and the Treaty of Paris of December 10, 1898,
thus conferring upon protestee's own father, Ong Chuan, Philippine citizenship at birth,
the conclusion is inescapable that protestee himself is a natural-born citizen, and is
therefore qualified to hold the office of delegate to the Constitutional Convention. 34
On 28 November 1972, during a plenary session of the 1971 Constitutional Convention, the election
protests filed against Emil L. Ong were dismissed, following the report of the Committee on Election
Protests and Credentials. 35
It is evident, up to this point, that the action of the 1971 Constitutional Convention in the case of Emil L.
Ong is, to say the least, inconclusive to the case at bar, because
a) the 1971 Constitutional Convention decision in the Emil L. Ong case involved the
1935 Constitution; the present case, on the other hand involves the 1987 Constitution:
b) the 1935 Constitution contained no specific definition of a "natural-born citizen" of the
Philippines; the 1987 Constitution contains a precise and specific definition of a "naturalborn citizen" of the Philippines in Sec. 2, Art. IV thereof and private respondent does not
qualify under such definition in the 1987 Constitution;
c) the decision of the 1971 Constitutional Convention in the case of Emil L. Ong was a
decision of apolitical body, not a court of law. And, even if we have to take such a
decision as a decision of a quasi-judicial body (i.e., a political body exercising quasijudicial functions), said decision in the Emil L. Ong case can not have the category or
character of res judicata in the present judicial controversy, because between the two (2)
cases, there is no identity of parties (one involves Emil L. Ong, while the other involves
private respondent) and, more importantly, there is no identity of causes of action
because the first involves the 1935 Constitution while the second involves the 1987
Constitution.
But even laying aside the foregoing reasons based on procedural rules and logic, the evidence submitted
before the electoral tribunal and, therefore, also before this Court, does not support the allegations made
by Emil L. Ong before the 1971 Constitutional Convention and inferentially adopted by private
respondent in the present controversy. This leads us to an interesting inquiry and finding.
The 1971 Constitutional Convention in holding that Emil L. Ong was a "natural-born citizen" of the
Philippines under the 1935 Constitution laid stress on the "fact" and this appears crucial and central to
its decision that Emil L. Ong's grandfather, Ong Te became a Filipino citizen under the Philippine Bill of
1902 and, therefore, his descendants like Emil L. Ong (and therefore, also private respondent) became
natural-born Filipinos. The 1971 Constitutional Convention said:
Ong Te Emil Ong's grandfather, was a Spanish subject residing in the Philippines on April
11, 1899 and was therefore one of the many who became ipso facto citizens of the
were Spanish subjects on April 11, 1899 as well as their children born subsequent
thereto, "shall be deemed and held to be citizens of the Philippine Islands." (Section 4,
Philippine Bill of
1902). 36
The "test" then, following the premises of the 1971 Constitutional Convention, is whether or not Ong Te
private respondent's and Emil L. Ong's grandfather was "an inhabitant of the Philippines who continued
to reside therein and was a Spanish subject on April 11, 1899." If he met these requirements of the
Philippine Bill of 1902, then, Ong Te was a Filipino citizen; otherwise, he was not a Filipino citizen.
Petitioners (protestants) submitted and offered in evidence before the House Electoral Tribunal exhibits
W, X, Y, Z ,AA, BB, CC, DD and EE which are copies of entries in the "Registro de Chinos" from years 1896
to 1897 which show that Ong Te was not listed as an inhabitant of Samar where he is claimed to have
been a resident. Petitioners (protestants) also submitted and offered in evidence before the House
Electoral Tribunal exhibit V, a certification of the Chief of the Archives Division, Records and Management
and Archives Office, stating that the name of Ong Te does not appear in the "Registro Central de Chinos"
for the province of Samar for 1895. These exhibits prove or at least, as petitioners validly argue, tend to
prove that Ong Te was NOT a resident of Samar close to 11 April 1899 and, therefore, could not continue
residing in Samar, Philippines after 11 April 1899, contrary to private respondent's pretense. In the face of
these proofs or evidence, private respondent FAILED TO PRESENT ANY REBUTTAL OR COUNTERVAILING
EVIDENCE, except the decision of the 1971 Constitutional Convention in the case of Emil L. Ong,
previously discussed.
It is not surprising then that, as previously noted, the majority decision of the House Electoral Tribunal
skirted any reliance on the alleged ipso facto Filipino citizenship of Ong Te under the Philippine Bill of
1902. It is equally not surprising that Ong Chuan, the son of Ong Te and father or private respondent, did
not even attempt to claim Filipino citizenship by reason of Ong Te's alleged Filipino citizenship under the
Philippine Bill of 1902 but instead applied for Philippine citizenship through naturalization.
Nor can it be contended by the private respondent that the House Electoral Tribunal should no longer
have reviewed the factual question or issue of Ong Te's citizenship in the light of the resolution of the
1971 Constitutional Convention finding him (Ong Te to have become a Filipino citizen under the
Philippine Bill of 1902. The tribunal had to look into the question because the finding that Ong Te had
become a Filipino citizen under the Philippine Bill of 1902 was the central core of said 1971 resolution but
as held in Lee vs. Commissioners of
Immigration: 37
. . . Everytime the citizenship of a person is material or indispensable in a judicial or
administrative case, whatever the corresponding Court or administrative authority
decides therein as to such citizenship is generally not considered as res adjudicata, hence
it has to be threshed out again and again as the occasion may demand.
Which finally brings us to the resolution of this Court in Emil L. Ong vs. COMELEC, et al., G.R. No. 67201, 8
May 1984. In connection with said resolution, it is contended by private respondent that the resolution of
the 1971 Constitutional Convention in the Emil L. Ong case was elevated to this Court on a question
involving Emil L. Ong's disqualification to run for membership in the Batasang Pambansa and that,
according to private respondent, this Court allowed the use of the Committee Report to the 1971
Constitutional Convention.
To fully appreciate the implications of such contention, it would help to look into the circumstances of the
case brought before this Court in relation to the Court's action or disposition. Emil L. Ong and Edilberto
Del Valle were both candidates for the Batasang Pambansa in the 14 May 1984 election. Valle filed a
petition for disqualification with the Commission on Election on 29 March 1984 docketed as SPC No. 8469 contending that Ong is not a natural-born citizen. Ong filed a motion to dismiss the petition on the
ground that the judgment of the 1971 Constitutional Convention on his status as a natural-born citizen of
the Philippines bars the petitioner from raising the Identical issue before the COMELEC. (G.R. No.
67201, Rollo, p. 94) The motion was denied by the COMELEC, thus, prompting Emil L. Ong to file with this
Court a petition for certiorari, prohibition and mandamus with preliminary injunction against the
COMELEC, docketed as G.R. No. 67201.
In a resolution dated 8 May 1984, this Court resolved to issue a writ of preliminary injunction enjoining
respondent COMELEC from holding any further hearing on the disqualification case entitled "Edilberto Del
Valle vs. Emil Ong(SPC No. 84-69) except to dismiss the same. (G.R. Nos. 92202-03, Rollo, p. 335)
This Court, in explaining its action, held that:
Acting on the prayer of the petitioner for the issuance of a Writ of Preliminary Injunction,
and considering that at the hearing this morning, it was brought out that the 1971
Constitutional Convention, at its session of November 28, 1972, after considering the
Report of its Committee on Election Protests and Credentials, found that the protest
questioning the citizenship of the protestee (the petitioner herein) was groundless and
dismissed Election Protests Nos. EP 07 and EP 08 filed against said petitioner (p.
237, Rollo), the authenticity of the Minutes of said session as well as of the said
Committee's Report having been duly admitted in evidence without objection and bears
out, for now, without need for a full hearing, that petitioner is a natural-born citizen, the
Court Resolved to ISSUE, effective immediately, a Writ of Preliminary Injunction enjoining
respondent COMELEC from holding any further hearing on the disqualification case
entitled Edilberto Del Valle vs. Emil Ong (SPC No. 84-69) scheduled at 3:00 o'clock this
afternoon, or any other day, except to dismiss the same. This is without prejudice to any
appropriate action that private respondent may wish to take after the elections.
(emphasis supplied)
It is thus clear that the resolution of this Court in G.R. No. 67201 was rendered without the benefit of a
hearing on the merits either by the Court or by the COMELEC and merely on the basis of a Committee's
Report to the 1971 Constitutional Convention, and that this Court (and this is quite significant) did not
foreclose any appropriate action that Del Valle (therein petitioner) may wish to take after the elections.
It is thus abundantly clear also that to this Court, the resolution of the 1971 Constitutional Convention
recognizing Emil L. Ong as a natural-born citizen under the 1935 Constitution did not foreclose a future or
further proceeding in regard to the same question and that, consequently, there is no vested right of Emil
L. Ong to such recognition. How much more when the Constitution involved is not the 1935 Constitution
but the 1987 Constitution whose provisions were never considered in all such proceedings because the
1987 Constitution was still inexistent.
A final word. It is regrettable that one (as private respondent) who unquestionably obtained the highest
number of votes for the elective position of Representative (Congressman) to the House of
Representatives for the second district of Northern Samar, would have had to cease in office by virtue of
this Court's decision, if the full membership of the Court had participated in this case, with the result that
the legislative district would cease to have, in the interim, a representative in the House of
Representatives. But the fundamental consideration in cases of this nature is the Constitution and only
the Constitution. It has to be assumed, therefore, that when the electorate in the second legislative
district of Northern Samar cast the majority of their votes for private respondent, they assumed and
believed that he was fully eligible and qualified for the office because he is a natural-born Filipino citizen.
That erroneous assumption and belief can not prevail over, but must yield to the majesty of the
Constitution.
This is a sad day for the Constitution. As I see it, the Constitution mandates that members of the House of
Representatives should be "natural-born citizens of the Philippines". The voting majority of the present
Court says, "Filipino citizens will do." This is bad enough. What is worse is, the same voting majority, in
effect, says, "even aliens will do as well."
WHEREFORE, my vote is clear: to declare private respondent Jose L. Ong Chua, Jr., as he clearly is, NOT a
natural-born citizen of the Philippines and therefore NOT QUALIFIED to be a Member of the House of
Representatives, Congress of the Philippines.
Narvasa, J., Paras, J. and Regalado, J., dissenting.
SARMIENTO, J., concurring:
I concur with the majority.
(1)
I wish to point out first that the question of citizenship is a question of fact, and as a rule, the Supreme
Court leaves facts to the tribunal that determined them. I am quite agreed that the Electoral Tribunal of
the House of Representatives, as the "sole judge" of all contests relating to the membership in the House,
as follows:
Tribunal shall be its Chairman. 1
is the best judge of facts and this Court can not substitute its judgment because it thinks it knows
better.
In the case of Aratuc v. Commission on Elections, 2 it was held that this Court can not review the errors of
the Commission on Elections (then the "sole judge" of all election contests) in the sense of reviewing
facts and unearthing mistakes and that this Court's jurisdiction is to see simply whether or not it is
guilty of a grave abuse of discretion. It is true that the new Constitution has conferred expanded powers
on the Court, 3 but as the Charter states, our authority is "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." 4 It is not to review facts.
"Grave abuse of discretion" has been defined as whimsical exercise of power amounting to excess of
jurisdiction, or otherwise, to denial of due process of law. 5
I find none of that here.
As the majority indicates, Jose Ong's citizenship is a matter of opinion with which men may differ, but
certainly, it is quite another thing to say that the respondent Tribunal has gravely abused its discretion
because the majority has begged to differ. It does not form part of the duty of the Court to remedy all
imagined wrongs committed by the Government.
The respondent Tribunal has spoken. According to the Tribunal, Jose Ong is a Filipino citizen and
consequently, is possessed of the qualifications to be a member of the House. As the sole judge,
precisely, of this question, the Court can not be more popish than the pope.
(2)
I can not say, in the second place, that the Decision in question stands exactly on indefensible grounds. It
is to be noted that Jose Ong had relied on the Report dated September 4, 1972 of the 1971 Constitutional
Convention Committee 6 on Election Protests and Credentials, in which the Committees upheld the
citizenship, and sustained the qualification to sit as Delegate, of Emil Ong, Jose Ong's full blood brother.
According to the Report, Ong Te the Ongs' grandfather, was already a Filipino citizen having complied
with the requirements on Filipinization by existing laws for which his successors need not have elected
Filipino citizenship. I quote:
xxx xxx xxx
There is merit in protestee's claim. There can hardly be any doubt that Ong Te
protestees's grandfather, was a Spanish subject residing in the Philippines on April 11,
1899, and was therefore one of the many who became ipso facto citizens of the
were Spanish subjects on April 11, 1899, as well as their children born subsequent
thereto, "shall be deemed and held to be citizens of the Philippine Islands" (Sec. 4,
Philippine Bill of 1902). Excepted from the operation of this rule were Spanish subjects
who shall have elected to preserve their allegiance to the Crown of Spain in accordance
with the Treaty of Paris of December 10, 1898. But under the Treaty of Paris, only
Spanish subjects who were natives of Peninsular Spain had the privilege of preserving
their Spanish nationality. 7
xxx xxx xxx
xxx xxx xxx
As earlier noted, protestee's grandfather established residence in the Philippines in 1895,

as shown by the Registro Central de Chinos. He was also issued a certificate of
registration. He established a business here, and later acquired real property. Although
he went back to China for brief visits, he invariably came back. He even brought his eldest
son, Ong Chuan, to live in the Philippines when the latter was only 10 years old. And Ong
Chuan was admitted into the country because, as duly noted on his landing certificate,
his father, Ong Te had been duly enrolled under CR 16009-36755 i.e., as a permanent
resident. Indeed, even when Ong Te went back to China in the 1920's for another visit, he
left his son, Ong Chuan, who was then still a minor, in the Philippines obviously
because he had long considered the Philippines his home. The domicile he established in
1895 is presumed to have continued up to, and beyond, April 11, 1899, for, as already
adverted to, a domicile once acquired is not lost until a new one is gained. The only
conclusion then can thus be drawn is that Ong Te was duly domiciled in the Philippines as
of April 11, 1899, within the meaning of par. 4, Art. 17, of the Civil Code of 1889 and
was, consequently, a Spanish subject, he qualified as a Filipino citizen under the
provisions of Section 4 of the Philippine Bill of 1902. 8
It is true that Ong Chuan, the Ong brothers' father, subsequently sought naturalization in the belief that
he was, all along, a Chinese citizen, but as the Report held:
Protestants, however, make capital of the fact that both Ong Te and his son, Ong Chuan
(protestee's father), appear to have been registered as Chinese citizens even long after
the turn of the century. Worse, Ong Chuan himself believed the was alien, to the extent
of having to seek admission as a Pilipino citizen through naturalization proceedings. The
point, to our mind, is neither crucial nor substantial. Ong's status as a citizen is a matter
of law, rather than of personal belief. It is what the law provides, and not what one thinks
his status to be, which determines whether one is a citizen of a particular state or not.
Mere mistake or misapprehension as to one's citizenship, it has been held, is not a
sufficient cause or reason for forfeiture of Philippine citizenship; it does not even
constitute estoppel (Palanca vs. Republic, 80 Phil. 578, 584). Too, estoppel applies only to
questions of fact and not of law (Tanada v. Cuenco, L-10520, Feb. 28, 1957). 9
It is to be noted that the Report was unanimously approved by the Committee, and on November 28,
1972, approved without any objection by the Convention in plenary session. 10
I am not, of course, to be mistaken as acting as mouthpiece of Emil Ong, but in all candor, I speak from
experience, because when the Convention approved the Report in question, I was one of its vicepresidents and the presiding officer.
It is to be noted finally, that the matter was elevated to this Court (on a question involving Emil Ong's
qualification to sit as member of the defunct Batasang Pambansa) 11 in which this Court allowed the use
of the Committee Report.
Faced with such positive acts of the Government, I submit that the question of the Ong's citizenship is a
settled matter. Let it rest.
It is true that Electoral Protest Nos. EP-07 and EP-08 of the Convention as well as G.R. No. 67201 of this
Court, involved Emil Ong and not his brother; I submit, however, that what is sauce for the goose is sauce
for the gander.
I also submit that the fundamental question is whether or not we will overturn the unanimous ruling of
267 delegates, indeed, also of this Court.
G.R. No. L-42798
August 31, 1935
GUILLERMO DE LOS REYES, petitioner-appellant,

vs.
MOISES T. SOLIDUM, respondent-appellee.
Laurel, Del Rosario and Sabido for appellant.
Diaz and Hontiveros for appellee.
VILLA-REAL, J.:
This is an appeal taken by the petitioner Guillermo de los Reyes from a judgment of the Court of First
Instance of Capiz the dispositive part of which reads:
Wherefore, it is held that the respondent is eligible to the office of municipal president of Ibajay,
Capiz, and that the remedy applied for does not lie. Without costs.
In support of his appeal, appellant assigns the following alleged errors committed by the trial court in its
judgment, to wit:
1. The lower court erred in not declaring that the respondent, Moises T. Solidum, had not at the
time of the general elections of June 5, 1934, the requisite qualification of one year residence in
the municipality of Ibajay, Province of Capiz, in which he offered and announced himself a
candidate for the office of municipal president.
2. The lower court erred in not declaring that the respondent, Moises T. Solidum, is ineligible to
the office of municipal president of the municipality of Ibajay, Province of Capiz to which he has
been proclaimed elected.
The instant petition arose from a motion filed by Guillermo de los Reyes against Moises T. Solidum
praying, upon the facts alleged herein, the following:
Wherefore, petitioner prays this Honorable Court:
1. To hold that the respondent was not a resident of the municipality of Ibajay on the date of the
election, June 5, 1934, and, therefore, was not and is not now eligible to the office of municipal
president of the aforesaid municipality of Ibajay.
2. To hold that said respondent is not entitled to hold said office, not being eligible thereto.
3. To hold that the said office is now vacant.
4. To give the petitioner such other legal and equitable remedy as may be proper.
5. To pay the costs of this case.
In answer to said motion, the respondent Moises T. Solidum denies each and all of the facts alleged
therein and prays that he be absolved from the complaint and that the same be dismissed with doubt
costs to the petitioner, in addition to such other relief as may be proper.
The pertinent facts, established both by the petitioner and by the respondent, necessary to resolve the
questions raised in this appeal, are the following:
The respondent Moises T. Solidum was born in the municipality of Ibajay, Province of Capiz, on August 14,
1889, having lived and grown up in the house of Jose Tirol of said municipality. Moises T. Solidum married
in 1916, but he continued to live in the house of Jose Tirol in Ibajay. During the lifetime of Jose Tirol's
father, the latter appointed the respondent to administer his property, and in that capacity, the
respondent purchased copra for him in Navas and sent it to Ibajay. The respondent constructed a house
of mixed materials in the municipality of Navas in 1921 (Exhibit F) and there lived with his wife and
children. His children were Expedito Solidum, born in Navas, Capiz, on February 14, 1922, who attended
the primary and intermediate public schools of Capiz (Exhibits D and E); Araceli Solidum, born in Navas,
Capiz, on August 11, 1924, who attended the primary and intermediate public schools of Capiz (Exhibits B
and C); Renato Solidum, born in Navas, Capiz, on October 16, 1926, who attended the primary public
school of Capiz (Exhibit A); and Maximo Rodolfo Solidum, born in Navas, Capiz, on November 18, 1930,
who died in the same municipality on January 3, 1931 (Exhibits J and K).
However, in the said school records Exhibits B, C, D, and F, the name of the respondent Moises T. Solidum
appears as the father or guardian whose post-office address was Navas, Capiz. The respondent is a
merchant who has been engaged in business in the municipality of Navas, having obtained his last license
for weights and measures in said municipality on May 3, 1935, for a period of one year, or until May 3,
1935 (Exhibit G). In his registry of tax payments as a merchant for 1933 (Exhibit H), it appears that said
respondent runs an employment agency in the municipality of Navas, Capiz. The respondent likewise
owns a lot situated in Navas and declared in his name for taxation purposes (Exhibit I). The respondent
has been receiving correspondence addressed to him in Navas (Exhibit L) and has mentioned the said
municipality as his residence in his motions filed in the Court of First Instance of Capiz (Exhibits N, O and
P). In his homestead application (Exhibit R), the respondent gave Navas, Capiz, as his post-office address,
and in his petition to cancel said application, dated March 22, 1926, he stated that he resided in Navas,
Capiz (Exhibit S).
On the other hand, the respondent upon attaining the age to exercise the right of suffrage, registered as
a voter in one of the municipal precincts of Ibajay and since then until the 1934 elections has voted in
Ibajay, and has never registered nor voted in the municipality of Navas. During the general elections in
1912, the respondent held the office of election inspector in one of the polling places of the municipality
of Ibajay. In the general elections which took place on June 6, 1922, the respondent was elected
municipal president of Ibajay (Exhibits 6 and 7), and in the general elections of 1925 he was elected
councilor of Ibajay (Exhibit 8). In the general elections of 1928 the respondent was again elected
municipal president of Ibajay (Exhibits 9 and 10), an office which he held until the following general
elections in 1931. Having his business in Navas, the respondent while municipal president of Ibajay, used
to go to Navas and return to Ibajay every day, a distance of only nine kilometers, through good roads and
with a continuous autobus service. The lot on which his house is constructed is not owned by him, but by
Juan Solidum, as evidence by the property declaration Exhibit 1, wherein it is also stated that the
respondent is a resident of Ibajay. The respondent has invariably paid his personal cedula tax in Ibajay
(Exhibits 2, 3, 4 and 5), and in the property declarations of his lands in Ibajay for purposes of taxations, he
appears as a resident of Ibajay, Capiz.
The petitioner further testified that Jose Z. Solidum, brother of the respondent, turned over to him, in
February, 1934, the letter Exhibit M, alleged to have been sent to him by the respondent, wherein it is
stated that the latter has no thought of running in the 1934 elections inasmuch as he has ceased to be a
resident of Ibajay. Jose Z. Solidum them told the petitioner that if the latter would join his party, he would
help him in the elections. This statement, however, was contradicted by the respondent and by his
brother Jose Z. Solidum, both of whom denied the authenticity of the signature appearing in said letter.
The trial court did not give any credit to the contents of said Exhibit M; we even go further and deny the
authenticity thereof. We cannot bring ourselves to believe that the respondent Moises T. Solidum had
written from Navas to his brother Jose Z. Solidum in Ibajay to inform Jose Tirol, who also resided in the
latter municipality that he did not contemplate to run for municipal president of Ibajay for the reason,
among others, that his actual and permanent residence is Navas in view of the fact that he returned to
Ibajay every afternoon and he lived in the house of said Jose Tirol. Moreover, the form in which the letter
was typewritten seems to indicate that it has been prepared on a piece of paper that had been signed in
blank.
The principal question, raised in the first assignment of alleged error, to be decided on appeal is whether
or not at the time of the general elections on June 5, 1934, the respondent Moises T. Solidum had
requisite one-year residence in the municipality of Ibajay, Capiz, wherein he offered and announced
himself as a candidate for municipal president.
In Yra vs. Abao (52 Phil., 380), this court held that "the question of residence for the purpose of the
Election Law is largely one of intention".
In Tanseco vs. Arteche (57 Phil., 227, 235), it was likewise held:
The question of domicile is admittedly a question largely of intention, but this intention must be
sought in contemporaneous words and acts. (See also Larena vs. Teves, p. 36, ante.)
On the one hand, therefore, the evidence shows that the respondent Moises T. Solidum was born in the
municipality of Ibajay, was married there and was living in the house of Tirol, has invariably paid his
personal cedula tax in said municipality, has registered as a voter therein, and has voted in all the
elections held in said municipality for elective offices. He was appointed election inspector for Ibajay in
1912. He was elected president of said municipality of Ibajay from 1922 to 1925; councilor of the same
municipality from 1925 to 1928; municipal president for the second time of Ibajay from 1928 to 1931;
and in the general elections of 1934, municipal president for the third time of the same municipality from
1934 to 1937, which last election is challenged in the instant petition. He constructed a house of mixed
materials in the municipality of Navas, and since 1931 has been living there with his wife and children, the
latter having attended the public schools, but he returned to Ibajay every day, a distance of not more
than 9 kilometers through good road and with good transportation facilities. The construction of a house
of mixed materials in Navas was due to his being a purchaser of copra for Jose Tirol. He needed a place to
store the copra which he purchased and someone to attend to it. The copra was deposited in the lower
part of the house, and his wife and children lived upstairs to look after it.
On the other hand, we have in addition to the construction of the house of mixed materials, although on
another's lot, in the municipality of Navas and the presence of his family in said house, the fact that he
paid his business license in said municipality; that his children were born in said municipality and studied
in its schools, their record showing that the respondent is their father or guardian and that his address is
the municipality of Navas; that in his homestead application he gave Navas as his post-office address, and
that in his petition to cancel said application, he stated that he resided in said municipality.
In the light of these facts established and admitted by the parties, may it be logically and legally deduced
that the respondent intended to abandon his domicile in Ibajay to acquire a new one in Navas?
Considering all the circumstances of the case, we cannot and do not believe that the respondent Moises
T. Solidum has ever abandoned his actual residence in Ibajay or his intention to continue residing therein,
as the voters of said municipality did not believe so when they continuously and consistently voted for
him either as councilor or as municipal president from 1992 until 1934. It is not necessary that a person
should have a house in order to establish his residence and domicile in a municipality. It is enough that he
should live in said municipality, whether alone or with his family in his own dwelling, or in a rented house,
or in that of a friend or relative, in order to acquire a residence and domicile in said municipality, provided
that his stay is accompanied by an intention to reside therein permanently. (19 C.J., 402.)
For the foregoing considerations, we are of the opinion and so hold: (1) That the respondent, born in the
municipality of Ibajay, baptized, grow up, married, paid his cedula tax, registered as a voter, exercised the
right of suffrage, and elected one as councilor and three times as municipal president of said municipality,
is legally a resident thereof notwithstanding the fact that he constructed a house in another municipality
for purposes of business, had his family lived there and educated his children in the schools of said
municipality; and (2) that the fact that the respondent stated in his petition to cancel his homestead
application and in various motions filed with the Court of First Instance of Capiz, that his residence is the
municipality of Navas, does not destroy his residence in Ibajay or his intention to reside therein
permanently.
Wherefore, finding no error in the appealed judgment, the same is hereby affirmed in all its parts, with
the costs to the appellant. So ordered.
LEON G. MAQUERA, petitioner,

vs.
JUAN BORRA, CESAR MIRAFLOR, and GREGORIO SANTAYANA, in their respective capacities as Chairman and
Members of the Commission on Elections, and the COMMISSION ON ELECTIONS,respondents.
--------------------------G.R. No. L-24828
September 7, 1965
FELIPE N. AUREA and MELECIO MALABANAN, petitioners,

vs.
COMMISSION ON ELECTIONS, respondent.
Leon G. Maquera in his own behalf as petitioner.
Ramon Barrios for respondents.
RESOLUTION
PER CURIAM:
Upon consideration of case G.R. No. L-24761, "Leon G. Maquera vs. Juan Borra, et al.," and case G.R. No.
L-24828, "Felipe N. Aurea and Melecio Malabanan vs. Commission on Elections," and it appearing:
1. That Republic Act No. 4421 requires "all candidates for national, provincial, city and municipal
offices" to post a surety bond equivalent to the one-year salary or emoluments of the position to
which he is a candidate, which bond shall be forfeited in favor of the national, provincial, city or
municipal government concerned if the candidate, except when declared winner, fails to obtain
at least 10% of the votes cast for the office to which he has filed his certificate of candidacy, there
being not more than four (4) candidates for the same office;"
2. That, in compliance with said Republic Act No. 4421, the Commission on Elections had, on July
20, 1965, decided to require all candidates for President, Vice-President, Senator and Member of
the House of Representatives to file a surety bond, by a bonding company of good reputation,
acceptable to the Commission, in the sums of P60,000.00 and P40,000.00, for President and VicePresident, respectively, and P32,000.00 for Senator and Member of the House of
Representatives;
3. That, in consequence of said Republic Act No. 4421 and the aforementioned action of the
Commission on Elections, every candidate has to pay the premium charged by bonding
companies, and, to offer thereto, either his own properties, worth, at least, the amount of the
surety bond, or properties of the same worth, belonging to other persons willing to
accommodate him, by way of counter-bond in favor of said bonding companies;
4. That the effect of said Republic Act No. 4421 is, therefore, to prevent or disqualify from
running for President, Vice-President, Senator or Member of the House of Representatives those
persons who, although having the qualifications prescribed by the Constitution therefore, cannot
file the surety bond aforementioned, owing to failure to pay the premium charged by the
bonding company and/or lack of the property necessary for said counter-bond;
5. That said Republic Act No. 4421 has, likewise, the effect of disqualifying for provincial, city or
municipal elective offices, persons who, although possessing the qualifications prescribed by law
therefor, cannot pay said premium and/or do not have the property essential for the
aforementioned counter-bond;
6. That said Republic Act No. 4421 has, accordingly, the effect of imposing property qualifications
in order that a person could run for a public office and that the people could validly vote for him;
7. That said property qualifications are inconsistent with the nature and essence of the
Republican system ordained in our Constitution and the principle of social justice underlying the
same, for said political system is premised upon the tenet that sovereignty resides in the people
and all government authority emanates from them, and this, in turn, implies necessarily that the
right to vote and to be voted for shall not be dependent upon the wealth of the individual
concerned, whereas social justice presupposes equal opportunity for all, rich and poor alike, and
that, accordingly, no person shall, by reason of poverty, be denied the chance to be elected to
public office; and
8. That the bond required in Republic Act No. 4421 and the confiscation of said bond are not
predicated upon the necessity of defraying certain expenses or of compensating services given in
connection with elections, and is, therefore, arbitrary and oppressive.
The Court RESOLVED, without prejudice to rendering an extended decision, to declare that said Republic
Act No. 4421 is unconstitutional and hence null and void, and, hence, to enjoin respondents herein, as
well as their representatives and agents, from enforcing and/or implementing said constitutional
enactment.
Bautista Angelo, Concepcion, Reyes, J.B.L., Dizon., Makalintal and Zaldivar, JJ., concur.
Bengzon, C.J., took no part.
Barrera, J., is on leave.
Separate Opinions
BENGZON, J.P., J., concurring:.

A democratic form of government requires that political rights be enjoyed by the citizens regardless of
social or economic distinctions. Such is our government. As far back as 1899, the Representatives of the
Filipino people adopted a Political Constitution at Malolos, Bulacan, providing that: "The political
association of all the Filipinosconstitutes a nation, whose state is called the Philippine Republic"; "The
Philippine Republic is free and independent"; and "Sovereignty resides exclusively in the people." (Arts. 1,
2 and 3.) A generation later, in 1935, the Filipino people, imploring the aid of Divine Providence, ordained
and promulgated the present Constitution of the Philippines, stating the same principle: "The Philippines
is a republican state. Sovereignty resides in the people and all government authority emanates from
them." (See. 1, Art. II). Clearly and solemnly, therefore, our citizenry have thus been given the supreme
guaranty of a democratic way of life, with all its freedom and limitations, all its rights and duties.
Among the political rights of a Filipino citizen is the right to vote and be voted for a public office. The
Constitution has given the right of suffrage to "citizens of the Philippines not otherwise disqualified by law
who are twenty-one years of age or over and are able to read and write, and who shall have resided in
the Philippines for one year and in the municipality wherein they propose to vote for at least six months
preceding the election." (Sec. 1, Art. V.)
It is within the power of Congress, however, to prescribe the manner of exercising political rights so long
as it does not run counter to the Constitution. The Revised Election Code (RA 180) is the chief instance of
the exercise of such legislative power.
Republic Act 4421, effective June 19, 1965, incorporated to the Revised Election Code:
SEC. 36-A. Posting of bond by candidates; exception; forfeiture. All candidates for national,
provincial, city and municipal offices shall post a surety bond equivalent to the one-year salary or
emoluments of the position to which he is a candidate, which bond shall be forfeited in favor of
the national, provincial, city or municipal government concerned if the candidate, except when
declared winner, fails to obtain at least ten per cent of the votes cast for the office to which he
has filed his certificate of candidacy there being not more than four candidates for the same
office.
The Commission on Elections, implementing Sec. 36-A aforementioned, adopted on July 20, 1965 the
following guidelines for the purpose of the November 9, 1965 elections:
1. WHO SHALL POST SURETY BOND All candidates for national offices shall post a surety bond.
A candidate who withdraws his candidacy or ceases to be one, may ask for the return or
cancellation of his bond. A party may post surety bond for each of its official candidates.
2. WHEN TO FILE On or before September 10, 1965, to coincide with the last day for filing
certificates of candidacy, to facilitate processing of both bond and certificates of candidacy by the
Law Department.
3. WHERE TO FILE The surety bond shall be filed with the Cash Division, Commission on
Elections. Cash bonds may be allowed and the same to be filed in the Commission.
4. AMOUNT OF BOND The surety bond shall be equivalent to the one-year salary or
emoluments of the position to which he is a candidate, to wit:
President
Vice-President
Senators
Congressmen
P60,000 (R.A. 4134)

P40,000 do
P32,000 do
P32,000 do
5. CONDITION OF THE BOND That the bond shall be forfeited in favor of the national
government if the candidate, except when declared the winner, fails to obtain at least ten
percent of the votes cast for the office to which he has filed his certificate of candidacy, there
being not more than four candidates for the same office.
6. FAILURE TO POST SURETY BOND If a candidate fails to post the required surety bond, the
Commission on Elections shall refuse to give due course to the certificate of candidacy of said
candidate.
7. SURETY A bonding company of good reputation and acceptable to the Commission.
8. FORFEITURE The 10% required number of votes shall be based on and determined by the
certificate of canvass and proclamation.
At bar are petitions that question the constitutionality of Republic Act 4421 in the ground that the same is
undemocratic and contrary to the letter and spirit of the Constitution.
The avowed purpose of Republic Act 4421 in requiring a candidate to post a bond equal to a year's salary
of the office for which he will run is to curb the practice of so-called nuisance candidates. Said the
explanatory note to said law:
We have had sad experiences along that line. When a person, having the same name as that of a
strong candidate, files his candidacy for the same position sought by the latter, this act has the
ultimate effect of frustrating the true intent of the voters. While their intent was to vote for the
publicly known strong candidate, their votes could be credited to the nuisance candidate. If this
practice is not curbed, the Filipino people may find the wrong men elected to an office.
1awphl.nt
Such an objective is indeed within the competence of the legislature to provide for. Nonetheless, the
purpose alone does not resolve the constitutionality of a statute. It must also be asked whether the
effect of said law is or is not to transgress the fundamental law.
Does the law, it may then be asked, operate to bar bona fide candidates from running for office because
of their financial inability to meet the bond required? For this the test must be the amount at which the
bond is fixed. Where it is fixed at an amount that will impose no hardship on any person for whom there
should be any desire to vote as a nominee for an office, and yet enough to prevent the filing of
certificates of candidates by anyone, regardless of whether or not he is a desirable candidate, it is a
reasonable means to regulate elections. On the otherhand, if it puts a real barrier that would stop many
suitable men and women from presenting themselves as prospective candidates, it becomes
unjustifiable, for it would defeat its very objective of securing the right of honest candidates to run for
public office.
Foremost democracies have similar measure to discourage "freak and propaganda candidates. One was
adopted in the electoral system of England. A candidate for the House of Commons, where each member
receives 3,250 pounds annual compensation (formerly 1,000 pounds) is required, by the Representatives
of the People Act of 1918, to deposit 150 pounds with the returning officer at the time of nomination, the
money to be forfeited if he failed to secure 1/8 of the votes. *
In the United States of America a fee system obtains in some states whereby candidates are required to
pay filing fees frequently to help defray costs of election services ranging from one dollar upwards
or a certain percentage of the annual salary of the office sought, the percentage being from 1/4% to 5%.**
It should be noted that in the foregoing the deposits or fees are based on or constitute a certain
percentage of the yearly salary. The amount of the bond required by RA 4421 is, as noted, equal to the
one-year salary or emolument of the office. It is quite evident, therefore, that several or a considerable
number of deserving, honest and sincere prospective candidates for that office would be prevented from
running in the election solely due to their being less endowed with the material things in life. It is worth
remembering that Section 48 of the Revised Election Code provides: "No candidate shall spend for his
election campaign more than the total amount of the emoluments for one year attached to the office for
which he is a candidate." Thus, the amount of a one-year salary is considered by the law itself to be
substantial enough to finance the entire election campaign of the candidate. For Congress, therefore, to
require such amount to be posted in the form of surety bond, with the danger of forfeiting the same in
the event of failure to obtain the required percentage of votes, unless there are more than four
candidates, places a financial burden on honest candidates that will in effect disqualify some of them who
would otherwise have been qualified and bona fide candidates.
The Constitution, in providing for the qualification of Congressmen, sets forth only age, citizenship, voting
and residence qualifications. No property qualification of any kind is thereunder required. Since the effect
of Republic Act 4421 is to require of candidates for Congress a substantial property qualification, and to
disqualify those who do not meet the same, it goes against the provision of the Constitution which, in line
with its democratic character, requires no property qualification for the right to hold said public office.
Freedom of the voters to exercise the elective franchise at a general election implies the right to freely
choose from all qualified candidates for public office. The imposition of unwarranted restrictions and
hindrances precluding qualified candidates from running is, therefore, violative of the constitutional
guaranty of freedom in the exercise of elective franchise. It seriously interferes with the right of the
electorate to choose freely from among those eligible to office whomever they may desire. ***
Republic Act 4421, moreover, relates a person's right to run for office to the degree of success he will
show at the polls. A candidate, however, has no less a right to run when he faces prospects of defeat as
when he is expected to win. Consequently, for the law to impose on said candidate should he lose by
the fatal margin a financial penalty not imposed on others would unreasonably deny him equal
protection of the law. It is, also, in my opinion, unconstitutional on this account. (Sec. 1 [1], Art. III, Phil.
Const.)
Nuisance candidates, as an evil to be remedied, do not justify the adoption of measures that would bar
poor candidates from running for office. Republic Act 4421 in fact enables rich candidates, whether
nuisance or not, to present themselves for election. Consequently, it cannot be sustained as a valid
regulation of elections to secure the expression of the popular will.
I fully concur, therefore, with the majority opinion.
MARCITA MAMBA PEREZ, petitioner,

AGUINALDO, respondents.
vs.
COMMISSION
ON
ELECTIONS
and
RODOLFO
E.
DECISION
MENDOZA, J.:
This is a petition for certiorari to annul the resolution, dated May 10, 1998, of the First Division of the
Commission on Elections, dismissing petitioner Marcita Mamba Perezs petition for the disqualification of
private respondent Rodolfo E. Aguinaldo as a candidate for Representative of the Third District of Cagayan
in the May 11, 1998 elections, as well as the resolution of the COMELEC en banc, dated June 11, 1998,
denying petitioners motion for reconsideration.
The facts are not in dispute.
On March 26, 1998, private respondent filed his certificate of candidacy for Representative of the
Third District of Cagayan in the May 11, 1998 elections. Four days later, on March 30, 1998, petitioner, as
a voter and citizen, filed in the COMELEC a petition for the disqualification of private respondent as a
candidate on the ground that he had not been a resident of the district for at least one (1) year immediately
before the day of the elections as required by Art. VI, 6 of the Constitution.
In support of her claim, petitioner presented private respondents certificates of candidacy[1] for
governor of Cagayan in the 1988, 1992, and 1995 elections; his voters affidavit[2] which he used in the 1987,
1988, 1992, 1995, and 1997 elections; and his voter registration record dated June 22, 1997, [3] in all of
which it is stated that he is a resident of Barangay Calaoagan Dackel, Municipality of Gattaran, which is
outside the Third District of Cagayan.Petitioner alleged that private respondent filed an application [4] for
the transfer of his registration as voter from Gattaran, Cagayan (First District) to Tuguegarao, Cagayan
(Third District) only on December 17, 1997 and that said application was approved only on January 7,
1998. Petitioner prayed that in the event the case was not finally decided before the elections and private
respondent obtained the highest number of votes, the latters proclamation be suspended.
In his answer, private respondent claimed that while he had been a resident of Gattaran, Cagayan in
1990, he transferred his residence to Tuguegarao, Cagayan by renting an apartment at No. 13-E Magallanes
St., Tuguegarao, Cagayan, in order to hide his mistress from public view because, at that time, his marriage
to his former wife was still subsisting. In support of his claim, he presented the affidavit[5] of the owner of
the apartment, Engineer Alfredo Ablaza, in which it is stated that private respondent had been his lessee
since July 1990. In addition, private respondent presented the contract of lease[6] of another residential
apartment at Kamias Street, Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996,
between him, as lessee, and Tomas T. Decena, as lessor; his marriage license dated January 7, 1997; [7] the
marriage certificate between him and his present wife, Lerma Dumaguit, dated January 18, 1998; [8] the
birth certificate[9] of their daughter, Geniah Laureen D. Aguinaldo; and various letters,[10] all of which show
that he had been a resident of Tuguegarao, Cagayan for at least one (1) year before the May 11, 1998
elections.
On May 10, 1998, the First Division of the COMELEC, in a unanimous resolution,[11] dismissed the
petition for disqualification, finding private respondent Aguinaldo qualified to run as representative for the
Third District of Cagayan.
On May 11, 1998, private respondent was elected Representative of the Third District of Cagayan, with
65,058 votes over his rival Manuel N. Mambas 58,507 votes.[12] Accordingly, on May 16, 1998, he was
proclaimed elected and, on May 17, 1998, he was sworn in office.
On May 22, 1998, petitioner filed a motion for reconsideration reiterating her allegation that private
respondent lacked the requisite residency in the Third District of Cagayan and arguing that the
proclamation of private respondent was not a legal impediment to the continuation of the hearing on her
motion in view of R.A. No. 6646, 6. Her motion was, however, denied by the COMELEC en banc in its
resolution of June 11, 1998. Hence, this petition.
Petitioner contends that the COMELEC committed grave abuse of discretion in holding that private
respondent had been a resident of Tuguegarao, Cagayan since July 1990 when he rented an apartment
there in order to hide his mistress. Petitioner contends that transfer of residence to the place where private
respondent is keeping his mistress cannot amount to a change of domicile because ones domicile is the
place where one and ones legitimate family resides. She also argues that private respondent could not have
changed his residence to Tuguegarao in 1990 considering that his certificates of candidacy for governor of
Cagayan in the 1988, 1992, and 1995 elections, as well as his voter registration records, the latest of which
was made on June 22, 1997, indicate that he is a resident of Gattaran, which is in the First District of
Cagayan. Petitioner avers that in the absence of clear and positive proof, ones domicile of origin should be
deemed to continue and that to successfully effect a change of domicile, one must prove an actual change
of domicile, a bonafide intention of abandoning the former place of residence and of establishing a new
one, and unequivocal acts which correspond with the intention.
On the other hand, private respondent asks that the instant petition be dismissed. He argues that after
his proclamation on May 16, 1998 and his assumption of office on June 30, 1998, the COMELEC lost
jurisdiction to pass upon his qualifications for the office of Representative. He argues further that this case
should have been filed with the House of Representatives Electoral Tribunal which has jurisdiction over the
subject matter of the case.
In a supplemental pleading,[13] petitioner replies that the COMELEC retained jurisdiction over the case
because she filed the petition for disqualification on March 30, 1998, before the elections on May 11, 1998,
and that pursuant to R.A. No. 6646, 6, the COMELEC could continue the proceedings for the determination
of the disqualification of private respondent.
The threshold issue, therefore, is whether the Court has jurisdiction to entertain the instant petition
for certiorari and eventually pass upon private respondents eligibility for the office of Representative of the
Third District of Cagayan. Petitioner, in sustaining the affirmative side of the question, invokes the following
provision of R.A. No. 6646:
Sec. 6 Effect of Disqualification Case. Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission (COMELEC) shall
continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant
or any intervenor, may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
As already stated, the petition for disqualification against private respondent was decided by the First
Division of the COMELEC on May 10, 1998. The following day, May 11, 1998, the elections were
held. Notwithstanding the fact that private respondent had already been proclaimed on May 16, 1998 and
had taken his oath of office on May 17, 1998, petitioner still filed a motion for reconsideration on May 22,
1998, which the COMELEC en banc denied on June 11, 1998. Clearly, this could not be done. Sec. 6 of R.A.
No. 6646 authorizes the continuation of proceedings for disqualification even after the elections if the
respondent has not been proclaimed. The COMELEC en banc had no jurisdiction to entertain the motion
because the proclamation of private respondent barred further consideration of petitioners action. In the
same vein, considering that at the time of the filing of this petition on June 16, 1998, private respondent
was already a member of the House of Representatives, this Court has no jurisdiction over the
same. Pursuant to Art. VI, 17 of the Constitution, the House of Representatives Electoral Tribunal has the
exclusive original jurisdiction over the petition for the declaration of private respondents ineligibility. As
this Court held in Lazatin v. House of Representatives Electoral Tribunal:[14]
The use of the word sole emphasizes the exclusive character of the jurisdiction conferred. The exercise of
the power by the Electoral Commission under the 1935 Constitution has been described as intended to
be as complete and unimpaired as if it had remained originally in the legislature. Earlier, this grant of
power to the legislature was characterized by Justice Malcolm as full, clear and complete. Under the
amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it
remained as full, clear and complete as that previously granted the legislature and the Electoral
Commission. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the
1987 Constitution.
Petitioners remedies should have been (1) to reiterate her prayer in the petition for disqualification,
and move for the issuance of an order by the COMELEC suspending the proclamation of private respondent
pending the hearing of the said petition and, in the event the motion was denied before the proclamation
of private respondent, file a petition for certiorari in this Court with a prayer for a restraining order to enjoin
the proclamation of private respondent; or (2) to file a petition for quo warranto in the House of
Representatives Electoral Tribunal within ten (10) days after the proclamation of private respondent as
Representative-elect on May 16, 1998.[15] Obviously, neither of these remedies can be availed of now.
In any event, even assuming that the Court has jurisdiction to resolve the instant petition for certiorari,
we find no merit in petitioners allegation that private respondent is ineligible for the office of
Representative of the Third District of Cagayan.
Art. VI, 6 of the Constitution states:
No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the
Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write,
and, except the party-list representatives, a registered voter in the district in which he shall be elected,
and a resident thereof for a period of not less than one year immediately preceding the day of the
election.
The meaning and purpose of the residency requirement were explained recently in our decision
in Aquino v. COMELEC,[16] as follows:
. . . [T]he place where a party actually or constructively has his permanent home, where he, no matter
where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is
that to which the Constitution refers when it speaks of residence for the purposes of election law. The
manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego
vs. Vera is to exclude strangers or newcomers unfamiliar with the conditions and needs of the community
from taking advantage of favorable circumstances existing in that community for electoral gain. While
there is nothing wrong with the practice of establishing residence in a given area for meeting election law
requirements, this nonetheless defeats the essence of representation, which is to place through the
assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls
short of the period of residency mandated by law for him to qualify. That purpose could be obviously best
met by individuals who have either had actual residence in the area for a given period or who have been
domiciled in the same area either by origin or by choice.
In the case at bar, the COMELEC found that private respondent changed his residence from Gattaran
to Tuguegarao, the capital of Cagayan, in July 1990 on the basis of the following: (1) the affidavit of Engineer
Alfredo Ablaza, the owner of the residential apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where
private respondent had lived in 1990; (2) the contract of lease between private respondent, as lessee, and
Tomas T. Decena, as lessor, of a residential apartment at Kamias St., Tanza, Tuguegarao, Cagayan, for the
period July 1, 1995 to June 30, 1996; (3) the marriage certificate, dated January 18, 1998, between private
respondent and Lerma Dumaguit; (4) the certificate of live birth of private respondents second daughter;
and (5) various letters addressed to private respondent and his family, which all show that private
respondent was a resident of Tuguegarao, Cagayan for at least one (1) year immediately preceding the
elections on May 11, 1998.
There is thus substantial evidence supporting the finding that private respondent had been a resident
of the Third District of Cagayan and there is nothing in the record to detract from the merit of this factual
finding.
Petitioner contends that the fact that private respondent was a resident of Gattaran, at least until June
22, 1997, is shown by the following documentary evidence in the record, to wit: (1) his certificates of
candidacy for governor of Cagayan in the 1988, 1992 and 1995 elections; (2) his voters registration records,
the latest of which was made on June 22, 1997; and (3) the fact that private respondent voted in Gattaran,
Cagayan, in the elections of 1987, 1988, 1992 and 1995.
The contention is without merit. The fact that a person is registered as a voter in one district is not
proof that he is not domiciled in another district. Thus, in Faypon v. Quirino,[17] this Court held that the
registration of a voter in a place other than his residence of origin is not sufficient to consider him to have
abandoned or lost his residence.
Nor is it of much importance that in his certificates of candidacy for provincial governor in the elections
of 1988, 1992, and 1995, private respondent stated that he was a resident of Gattaran. Under the
law,[18] what is required for the election of governor is residency in the province, not in any district or
municipality, one year before the election.
Moreover, as this Court said in Romualdez-Marcos v. COMELEC:[19]
It is the fact of residence, not a statement in a certificate of candidacy, which ought to be decisive in
determining whether or not an individual has satisfied the constitutions residency qualification
requirement. The said statement becomes material only when there is or appears to be a deliberate
attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible.
In this case, although private respondent declared in his certificates of candidacy prior to the May 11,
1998 elections that he was a resident of Gattaran, Cagayan, the fact is that he was actually a resident of
the Third District not just for one (1) year prior to the May 11, 1998 elections but for more than seven (7)
years since July 1990. His claim that he had been a resident of Tuguegarao since July 1990 is credible
considering that he was governor from 1988 to 1998 and, therefore, it would be convenient for him to
maintain his residence in Tuguegarao, which is the capital of the province of Cagayan.
As always, the polestar of adjudication in cases of this nature is Gallego v. Vera,[20] in which this Court
held: [W]hen the evidence on the alleged lack of residence qualification is weak or inconclusive and it clearly
appears, as in the instant case, that the purpose of the law would not be thwarted by upholding the right
to the office, the will of the electorate should be respected. In this case, considering the purpose of the
residency requirement, i.e., to ensure that the person elected is familiar with the needs and problems of
his constituency, there can be no doubt that private respondent is qualified, having been governor of the
entire province of Cagayan for ten years immediately before his election as Representative of that
provinces Third District.
WHEREFORE, the petition is DISMISSED.

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G.R. No.

120265 September 18, 1995

DISREGARD OF THE WELL SETTLED DOCTRINE THAT A SECOND PLACE CANDIDATE OR

Mrs. Rosario Braid: The next question is on section 7, page 2. I think

Feliciano, J., is on leave.

PADILLA, J., concurring:

FRANCISCO, J., concurring and dissenting:

DAVIDE, JR., J., dissenting:

Sec. 12. Disqualification. Any person who has been declared by

Sec. 71 Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The

Romero and Bellosillo, JJ., concur.

VITUG, J., separate opinion:

there. However, in the absence of a statute which clearly asserts a

MENDOZA, J., separate opinion:

FRANCISCO, J., concurring and dissenting:

DAVIDE, JR., J., dissenting:

Sec. 12. Disqualification. Any person who has been declared by

Sec. 71 Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The

Romero and Bellosillo, JJ., concur.

VITUG, J., separate opinion:

there. However, in the absence of a statute which clearly asserts a

MENDOZA, J., separate opinion:

G.R. Nos. 92191-92 July 30, 1991

GUTIERREZ, JR., J.:p

Philippine Citizenship under the 1935 Constitution shall be natural-born?

Mr. De los Reyes: But we might encounter some difficulty especially

PADILLA, J., dissenting:

FR BERNAS: It would apply to anybody who elected Philippine citizenship

the conclusion is inescapable that protestee himself is a natural-born citizen, and is

The judgment rendered by the (electoral) commission in the exercise of such an

certificate issued to a person not so entitled to receive it must be treated as a mere

As earlier noted, protestee's grandfather established residence in the Philippines in 1895,

G.R. No. L-42798

August 31, 1935

GUILLERMO DE LOS REYES, petitioner-appellant,

LEON G. MAQUERA, petitioner,

--------------------------G.R. No. L-24828

FELIPE N. AUREA and MELECIO MALABANAN, petitioners,

BENGZON, J.P., J., concurring:.

P60,000 (R.A. 4134)

MARCITA MAMBA PEREZ, petitioner,

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