Cases Mock Recit PDF

EN BANC
[G.R. No. 63915. April 24, 1985.]

LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], Petitioners, v. HON.
JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN
VENUS, in his capacity as Deputy Executive Assistant to the President, MELQUIADES P. DE
LA CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S.
PABLO, in his capacity as Director, Bureau of Printing, Respondents.
Lorenzo M. Taada, Abraham F. Sarmiento, Mabini Legal Aid Committee for petitioners
Solicitor General for Respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE; LEGAL

PERSONALITY OF PETITIONERS TO FILE MANDAMUS TO COMPEL PUBLICATION, RECOGNIZED.
The subject of the petition is to compel the performance of a public duty and petitioners maintain
they need not show any specific interest for their petition to be given due course. The right sought
to be enforced by petitioners is a public right recognized by no less than the fundamental law of the
land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to
conceive of any other person to initiate the same, considering that the Solicitor General, the
government officer generally empowered to represent the people, has entered his appearance for
respondents in this case.
2. ID.; ID.; ID.; ARTICLE 2 CIVIL CODE DOES NOT PRECLUDE PUBLICATION IN THE OFFICIAL
GAZETTE EVEN IF THE LAW ITSELF PROVIDES FOR DATE OF ITS EFFECTIVITY. That publication
in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws
themselves provide for their own effectivity dates is correct only insofar as it equates the effectivity
of laws with the fact of publication. Considered in the light of other statutes applicable to the issue
at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of
publication in the Official Gazette, even if the law itself provides for the date of its effectivity.
3. ID.; ID.; ID.; RATIONALE. The clear object of Article 2 of the Civil Code is to give the general
public adequate notice of the various laws which are to regulate their actions and conduct as
citizens. Without such notice and publication, there would be no basis for the application of the
maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise
burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a
constructive one.
4. ID.; ID.; ID.; PUBLICATION OF PRESIDENTIAL ISSUANCES "OF A PUBLIC NATURE" OR "OF
GENERAL APPLICABILITY," A REQUIREMENT OF DUE PROCESS; UNPUBLISHED PRESIDENTIAL
ISSUANCES WITHOUT FORCE AND EFFECT. The publication of all presidential issuances "of a
public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that
provide for fines, forfeitures or penalties for their violation or otherwise impose a burden on the
people, such as tax and revenue measures, fall within this category. Other presidential issuances
which apply only to particular persons such as administrative and executive orders need not be
published on the assumption that they have been circularized to all concerned. (People v. Que Po
Lay, 94 Phil. 640; Balbuena, Et. Al. v. Secretary of Education, Et Al., 110 Phil. 150) It is needless to
add that the publication of presidential issuances "of a public nature" or "of general applicability" is
a requirement of due process. It is a rule of law that before a person may be bound by law, he must
first be officially and specifically informed of its contents. The Court therefore declares that
presidential issuances of general application, which have not been published, shall have no force
and effect.
5. ID.; ID.; ID.; DECLARATION OF INVALIDITY OF UNPUBLISHED PRESIDENTIAL DECREES DOES
NOT AFFECT THOSE WHICH HAVE BEEN ENFORCED OR IMPLEMENTED PRIOR TO THEIR
PUBLICATION. The implementation/enforcement of presidential decrees prior to their publication
in the Official Gazette is "an operative fact which may have consequences which cannot be justly
ignored. The past cannot always be erased by a new judicial declaration . . .that an all inclusive
statement of a principle of absolute retroactive invalidity cannot be justified."
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FERNANDO, C.J., concurring with qualification:
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1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION REQUIREMENT NEED NOT BE CONFINED TO

THE OFFICIAL GAZETTE. It is of course true that without the requisite publication, a due process
question would arise if made to apply adversely to a party who is not even aware of the existence of
any legislative or executive act having the force and effect of law. But such publication required
need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage
to be gained. It conduces to certainty. That is to be admitted. It does not follow, however, that
failure to do so would in all cases and under all circumstances result in a statute, presidential
decree, or any other executive act of the same category being bereft of any binding force and
effect. To so hold would raise a constitutional question. Such a pronouncement would lend itself to
the interpretation that such a legislative or presidential act is bereft of the attribute of effectivity
unless published in the Official Gazette. There is no such requirement in the Constitution.
2. ID.; ID.; ID.; ID.; REQUIREMENT IN ART. 2 CIVIL CODE DOES NOT HAVE THE JUDICIAL FORCE
OF A CONSTITUTIONAL COMMAND. The Chief Justices qualified concurrence goes no further than
to affirm that publication is essential to the effectivity of a legislative or executive act of a general
application. He is not in agreement with the view that such publication must be in the Official
Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking
effect after fifteen days following the completion of their publication in the Official Gazette is subject
to this exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a
legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a
constitutional command. A later legislative or executive act which has the force and effect of law
can legally provide for a different rule.
3. ID.; ID.; ID.; TO DECLARE UNPUBLISHED PRESIDENTIAL ISSUANCES WITHOUT LEGAL FORCE
AND EFFECT WOULD RESULT IN UNDESIRABLE CONSEQUENCES. Nor does the Chief Justice
agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees
and executive acts not thus previously published in the Official Gazette would be devoid of any legal
character. That would be, in his opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. He finds himself therefore unable to yield assent to such a
pronouncement.
TEEHANKEE, J., concurring:
1. CONSTITUTIONAL LAW; STATUTES, PUBLICATION IN THE OFFICIAL GAZETTE; NECESSARY

PURSUANT TO THE BASIC CONSTITUTIONAL REQUIREMENTS OF DUE PROCESS. The Rule of Law
connotes a body of norms and laws published and ascertainable and of equal application to all
similarly circumstanced and not subject to arbitrary change but only under certain set procedure.
The Court had consistently stressed that "it is an elementary rule of fair play and justice that a
reasonable opportunity to be informed must be afforded to the people who are commanded to obey
before they can be punished for its violation," (People v. de Dios, G.R. No. L-11003, August 31,
1959, per the late Chief Justice Paras) citing the settled principle based on due process enunciated
in earlier cases that "before the public is bound by its contents. especially its penal provisions, a
law, regulation or circular must first be published and the people officially and specially informed of
said contents and its penalties." Without official publication in the Official Gazette as required by
Article 2 of the Civil Code and Revised Administrative Code, there would be no basis nor justification
for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions
of the law are ascertainable from the public and official repository where they are duly published)
that "Ignorance of the law excuses no one from compliance therewith."
2. ID.; ID.; ID.; RESPONDENTS CONTENTION THAT "ONLY LAWS WHICH ARE SILENT AS TO THEIR
EFFECTIVITY DATE NEED TO BE PUBLISHED IN THE OFFICIAL GAZETTE FOR THEIR EFFECTIVITY,"
UNTENABLE. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided," i.e. a different effectivity date is provided by the law itself. This proviso
perforce refers to a law that had been duly published pursuant to the basic constitutional
requirements of due process. The best example of this is the Civil Code itself: the same Article 2
provides otherwise that it "shall take effect (only) one year (not 15 days) after such publication." To
sustain respondents misreading that "most laws or decrees specify the date of their effectivity and
for this reason, publication in the Official Gazette is not necessary for their effectivity" would be to
nullify and render nugatory the Civil Codes indispensable and essential requirement of prior
publication in the Official Gazette by the simple expedient of providing for immediate effectivity or
an earlier effectivity date in the law itself before the completion of 15 days following its publication
which is the period generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE; RETROACTIVITY IN

EFFECTIVITY DATE NOT ALLOWED WHERE IT WILL RUN COUNTER TO CONSTITUTIONAL RIGHTS OR
DESTROY VESTED RIGHTS. There cannot be any question but that even if a decree provides for a
date of effectivity, it has to be published. When a date effectivity is mentioned in the decree but the
decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not
mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree
itself. There should be no retroactivity if the retroactivity will run counter to constitutional rights or
shall destroy vested rights.
PLANA, J., separate opinion:
1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE NOT ESSENTIAL

FOR EFFECTIVITY FOR EFFECTIVITY OF LAWS. The Philippine Constitution does not require the
publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It
may be said though that the guarantee of due process requires notice of laws to affected parties
before they can be bound thereby; but such notice is not necessarily by publication in the Official
Gazette. The due process clause is not that precise. Neither is the publication in the Official Gazette
required by any statute as a prerequisite for their effectivity, if said laws already provide for their
effectivity date.
2. ID.; ID.; PUBLICATION MAY BE MADE ELSEWHERE THAN IN THE OFFICIAL GAZETTE. Article 2
of the Civil Code provides that "laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided." Two things may be said of
this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will
take effect. Secondly, it clearly recognizes that each law may provide not only a different period for
reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it
shall be published elsewhere than in the Official Gazette.
3. ID.; ID.; COMMONWEALTH ACT 638 CANNOT NULLIFY OR RESTRICT OPERATION OF A STATUTE
WITH A PROVISION AS TO ITS EFFECTIVITY. Not all legislative acts are required to be published
in the Official Gazette but only "important" ones "of a public nature." Moreover, Commonwealth Act
No. 638 does not provide that publication in the Official Gazette is essential for the effectivity of
laws. This is as it should be, for all statutes are equal and stand on the same footing. A law,
especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or
restrict the operation of a subsequent statute that has a provision of its own as to when and how it
will take effect. Only a higher law, which is the Constitution, can assume the role.
DECISION
ESCOLIN, J.:
Invoking the peoples right to be informed on matters of public concern, a right recognized in
Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be
valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated,
petitioners seek a writ of mandamus to compel respondent public officials to publish, and or cause
the publication in the Official Gazette of various presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286,
298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445,
447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731,
733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165,
1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826,
1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161,
173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239,
241-245, 248-251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303,
309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405,
438-440, 444-445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609,
610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940,
964, 997, 1149-1178, 1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535,
1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 16301649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754,
1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826,
1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866,
1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457-471, 474-492, 494-507, 509-510,
522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594,
598-604, 609, 611-647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95,
107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360-378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view
is submitted that in the absence of any showing that petitioners are personally and directly affected
or prejudiced by the alleged non-publication of the presidential issuances in question 2 said
petitioners are without the requisite legal personality to institute this mandamus proceeding, they
are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court,
which we quote:
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"SEC. 3. Petition for Mandamus. When any tribunal, corporation, board or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other plain, speedy and adequate remedy in
the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper
court alleging the facts with certainty and praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to do the act required to be done to protect
the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the defendant."
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino v. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted
to a private individual only in those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that which he holds with the
public at large," and "it is for the public officers exclusively to apply for the writ when public rights
are to be subserved [Mithchell v. Boardmen, 79 M.e., 469]," nevertheless, "when the question is
one of public right and the object of the mandamus is to procure the enforcement of a public duty,
the people are regarded as the real party in interest and the relator at whose instigation the
proceedings are instituted need not show that he has any legal or special interest in the result, it
being sufficient to show that he is a citizen and as such interested in the execution of the laws
[High, Extraordinary Legal Remedies, 3rd ed., sec. 431]."
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
"We are therefore of the opinion that the weight of authority supports the proposition that the
relator is a proper party to proceedings of this character when a public right is sought to be
enforced. If the general rule in America were otherwise, we think that it would not be applicable to
the case at bar for the reason that it is always dangerous to apply a general rule to a particular
case without keeping in mind the reason for the rule, because, if under the particular circumstances
the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error.
"No reason exists in the case at bar for applying the general rule insisted upon by counsel for
theRespondent. The circumstances which surround this case are different from those in the United
States, inasmuch as if the relator is not a proper party to these proceedings no other person could
be, as we have seen that it is not the duty of the law officer of the Government to appear and
represent the people in cases of this character."
The reasons given by the Court in recognizing a private citizens legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.
Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special
provisions as to the date they are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:
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"Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided, . . ."
The interpretation given by respondent is in accord with this Courts construction of said article. In a
long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in
those cases where the legislation itself does not provide for its effectivity date for then the date
of publication is material for determining its date of effectivity, which is the fifteenth day following
its publication but not when the law itself provides for the date when it goes into effect.
Respondents argument, however, is logically correct only insofar as it equates the effectivity of
laws with the fact of publication. Considered in the light of other statutes applicable to the issue at
hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of
publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus,
Section 1 of Commonwealth Act 638 provides as follows:
"Section 1. There shall be published in the Official Gazette [1] all important legislative acts and
resolutions of a public nature of the Congress of the Philippines; [2] all executive and administrative
orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such documents or classes of documents as may be
required so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general applicability and legal
effect, or which he may authorize so to be published. . . ."
The clear object of the above quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat."
It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a
law of which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansa and for the diligent ones, ready
access to the legislative records no such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion genrica de leyes, se comprenden tambin los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad." 5
The very first clause of Section 1 of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette . . ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters
of public concern is to be given substance and reality. The law itself makes a list of what should be
published in the official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden on the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta v. COMELEC 7 :
"In a time of proliferating decrees, orders and letters of instructions which all form part of the law of
the land, the requirement of due process and the Rule of Law demand that the Official Gazette as
the official government repository promulgate and publish the texts of all such decrees, orders and
instructions so that the people may know where to obtain their official and specific contents."
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about
the possible unsettling effect this decision might have on acts done in reliance of the validity of
those presidential decrees which were published only during the pendency of this petition, have put
the question as to whether the Courts declaration of invalidity apply to P.D.s which had been
enforced or implemented prior to their publication. The answer is all too familiar. In similar
situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot
County Drainage District v. Baxter Bank 8 to wit:
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"The courts below have proceeded on the theory that the Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no
duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S.
425, 442; Chicago, I. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that
such broad statements as to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an operative fact
and may have consequences which cannot justly be ignored. The past cannot always be erased by a
new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects with respect to particular conduct, private and official. Questions of
rights claimed to have become vested, of status, of prior determinations deemed to have finality
and acted upon accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most difficult of those
which have engaged the attention of courts, state and federal, and it is manifest from numerous
decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be
justified."
Consistently with the above principle, this Court in Rutter v. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration . . . that an all-inclusive statement
of a principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither
the subject matters nor the texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the government. In Pesigan v. Angeles, 11 the
Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of
the contents of [penal] regulations and make the said penalties binding on the persons affected
thereby." The cogency of this holding is apparently recognized by respondent officials considering
the manifestation in their comment that "the government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the same shall have been published in the Official
Gazette or in some other publication, even though some criminal laws provide that they shall take
effect immediately."
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no
binding force and effect.
SO ORDERED.
Relova, J., concur.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
Gutierrez, Jr., J., I concur insofar as publication is necessary but reserve my vote as to the
necessity of such publication being in the Official Gazette.
De la Fuente, J., Insofar as the opinion declares the unpublished decrees and issuances of a public
nature or general applicability ineffective, until due publication thereof.
Separate Opinions
FERNANDO, C.J., concurring with qualification:
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential
issuances." Nonetheless, this clarification is, to my mind, needed to avoid any possible
misconception as to what is required for any statute or presidential act to be impressed with binding
force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise." 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette." 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all." 3 It would indeed be to reduce it
to the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable." 4
Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that
it must be in the Official Gazette. To be sure once published therein there is the ascertainable mode
of determining the exact date of its effectivity. Still for me that does not dispose of the question of
what is the jural effect of past presidential decrees or executive acts not so published. For prior
thereto, it could be that parties aware of their existence could have conducted themselves in
accordance with their provisions. If no legal consequences could attach due to lack of publication in
the Official Gazette, then serious problems could arise. Previous transactions based on such
"Presidential Issuances" could be open to question. Matters deemed settled could still be inquired
into. I am not prepared to hold that such an effect is contemplated by our decision. Where such
presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its
ex post facto character becomes evident. 5 In civil cases though, retroactively as such is not
conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the police power, the
non-impairment clause of the Constitution may not always be successfully invoked. There must still
be that process of balancing to determine whether or not it could in such a case be tainted by
infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I
am not in agreement with the view that such publication must be in the Official Gazette. The Civil
Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen
days following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such
a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstanced and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation," 1 citing the settled principle
based on due process enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties."
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith."
Respondents contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity"
is manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect
after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided," i.e. a different effectivity date is provided by the law itself. This proviso
perforce refers to a law that has been duly published pursuant to the basic constitutional
requirements of due process. The best example of this is the Civil Code itself: the same Article 2
provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication." 2
To sustain respondents misreading that "most laws or decrees specify the date of their effectivity
and for this reason, publication in the Official Gazette is not necessary for their effectivity" 3 would
be to nullify and render nugatory the Civil Codes indispensable and essential requirement of prior
publication in the Official Gazette by the simple expedient of providing for immediate effectivity or
an earlier effectivity date in the law itself before the completion of 15 days following its publication
which is the period generally fixed by the Civil Code for its proper dissemination.
chanrobles law library : red
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a
date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15)
days after its publication in the Official Gazette, it will not mean that the decree can have
retroactive effect to the date of effectivity mentioned in the decree itself. There should be no
retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights.
PLANA, J., concurring and dissenting:
The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound thereby; but such
notice is not necessarily by publication in the Official Gazette. The due process clause is not that
precise. Neither is the publication of laws in the Official Gazette required by any statute as a
prerequisite for their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided." Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law
may prescribe that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also
enumerates what shall be published in the Official Gazette, among them, "important legislative acts
and resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in
the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are
equal and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.
Endnotes:
1. "Section 6. The right of the people to information on matters of public concern shall be
recognized, access to official records, and to documents and papers pertaining to official acts,
transactions, or decisions, shall be afforded the citizens subject to such limitation as may be
provided by law."
2. Anti-Chinese League v. Felix, 77 Phil. 1012; Costas v. Aldanese, 45 Phil. 345; Almario v. City
Mayor, 16 SCRA 151; Palting v. San Jose Petroleum, 18 SCRA 924; Dumlao v. Comelec, 95 SCRA
392.
3. 16 Phil. 366, 378.
4. Camacho v. Court of Industrial Relations, 80 Phil. 848; Mejia v. Balolong, 81 Phil. 486; Republic
of the Philippines v. Encarnacion, 87 Phil. 843; Philippine Blooming Mills, Inc. v. Social Security
System, 17 SCRA 1077; Askay v. Cosalan, 46 Phil. 179.
5. 1 Manresa, Codigo Civil, 7th Ed., p. 146.
6. People v. Que Po Lay, 94 Phil. 640; Balbuena et al v. Secretary of Education, Et Al., 110 Phil 150.
7. 82 SCRA 30, dissenting opinion.
8. 308 U.S. 371, 374.
9. 93 Phil. 68.
10. The report was prepared by the Clerk of Court after Acting Director Florendo S. Pablo Jr. of the
Government Printing Office, failed to respond to her letter-request regarding the respective dates of
publication in the Official Gazette of the presidential issuances listed therein. No report has been
submitted by the Clerk of Court as to the publication or non-publication of other presidential
issuances.
11. 129 SCRA 174.
FERNANDO, C.J., concurring:
1. Separate Opinion of Justice Plana, first paragraph. He mentioned in this connection Article 7, Sec.
21 of the Wisconsin Constitution and State ex rel. White v. Grand Superior Ct., 71 ALR 1354, citing
the Constitution of Indiana, U.S.A.
2. Ibid, closing paragraph.
3. Learned Hand, The Spirit of Liberty 104 (1960).
4. Cardozo, The Growth of the Law, 3 (1924).
5. Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111 SCRA 433.
6. Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172.
1. People v. de Dios, G.R. No. 11003, Aug. 31, 1959, per the late Chief Justice Paras.
2. Notes in brackets supplied.
3. Respondents comment, pp. 14-15.
PLANA, J., concurring and dissenting:
* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide publication of all
statute laws . . . and no general law shall be in force until published." See also State ex rel. White v.
Grand Superior Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A.
FIRST DIVISION
[G.R. No. L-20089. December 26, 1964.]
BEATRIZ P. WASSMER, Plaintiff-Appellee, v. FRANCISCO X. VELEZ, Defendant-Appellant.
Jalandoni & Jamir, for Defendant-Appellant.
Samson S. Alcantara for Plaintiff-Appellee.
SYLLABUS
1. DAMAGES; BREACH OF PROMISE TO MARRY; WHEN ACTIONABLE WRONG. Ordinarily, a mere

breach of promise to marry is not an actionable wrong. But to formally set a wedding and go
through all the necessary preparations and publicity, only to walk out of it when the matrimony is
about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good
customs, for which the erring promisor must be held answerable in damages in accordance with
Article 21 of the New Civil Code.
2. ID.; ID.; MORAL AND EXEMPLARY DAMAGES MAY BE AWARDED IN AN ACTIONABLE BREACH OF
PROMISE SUIT. When a breach of promise to marry is actionable under Article 21 of the Civil
Code, moral damages may be awarded under Article 2219 (10) of the said Code. Exemplary
damages may also be awarded under Article 2232 of said Code where it is proven that the
defendant clearly acted in a wanton, reckless and oppressive manner.
3. PLEADINGS AND PRACTICE; AFFIDAVIT OF MERITS IN PETITION FOR BELIEF MUST STATE FACTS
CONSTITUTING DEFENSE. An affidavit of merits supporting a petition for relief from judgment
must state facts constituting a valid defense. Where such an affidavit merely states conclusions or
opinions, it is not valid.
4. ID.; TRIAL BY COMMISSIONER; CLERK OF COURT MAY BE VALIDLY DESIGNATED. The
procedure of designating the clerk of court as commissioner to receive evidence is sanctioned by
Rule 34 (now Rule 33) of the Rules of Court.
5. ID.; ID.; ID.; DEFENDANTS CONSENT TO DESIGNATION OF COMMISSIONER NOT NECESSARY
WHERE HE IS IN DEFAULT. The defendants consent to the designation of the clerk of court as
commissioner to receive evidence is not necessary where he was declared in default and thus had
no standing in court.
6. AFFIDAVITS OF MERIT; MUST CONTAIN FACTS AND NOT CONCLUSIONS OF FACT. Affidavits of
merit to be valid must contain facts and not mere conclusions of facts.
7. ID.; ID.; WHEN CONCLUSION OF FACT, NOT A FACT, DEEMED CONTAINED IN AFFIDAVIT. An
affidavit of merit stating no facts, but merely an inference that defendants failure was due to
fortuitous events and/or circumstances beyond his control, is held to contain a conclusion of fact,
not a fact.
DECISION
BENGZON, J.P., J.:
The facts that culminated in this case started with dreams and hopes, followed by appropriate
planning and serious endeavors, but terminated in frustration and, what is worse, complete public
humiliation.
Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get
married and set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for
his bride-to-be:
Dear Bet
"Will have to postpone wedding. My mother oppose it. Am leaving on the Convair today.
"Please do not ask too many people about the reason why That would only create a scandal.
Paquing"
But the next day, September 3, he sent her the following telegram:
"NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE.
PAKING"
Thereafter Velez did not appear nor was he heard from again.
Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced
evidence before the clerk of court as commissioner, and on April 29, 1955, judgment was rendered
ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.09 as moral and
exemplary damages; P2,500.00 as attorneys fees; and the costs.
On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and
motion for new trial and reconsideration." Plaintiff moved to strike it out. But the court, on August
2, 1955, ordered the parties and their attorneys to appear before it on August 23, 1955 "to explore
at this stage of the proceedings the possibility of arriving at an amicable settlement." It added that
should any of them fail to appear "the petition for relief and the opposition thereto will be deemed
submitted for resolution."
On August 23, 1955 defendant failed to appear before the court. Instead, on the following day his
counsel filed a motion to defer for two weeks the resolution on defendants petition for relief. The
counsel stated that he would confer with defendant in Cagayan de Oro City the latters residence
on the possibility of an amicable settlement. The court granted two weeks counted from August
25, 1955.
Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on
September 8, 1955 but that defendant and his counsel had failed to appear.
Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling
the parties and their attorneys to appear on July 13, 1956. This time, however, defendants counsel
informed the court that chances of settling the case amicably were nil.
On July 20, 1956 the court issued an order denying defendants aforesaid petition. Defendant has
appealed to this Court.
In his petition of June 21, 1955 in the court a quo defendant alleged excusable negligence as
ground to set aside the judgment by default. Specifically, it was stated that defendant filed no
answer in the belief that an amicable settlement was being negotiated.
A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence,
must be duly supported by an affidavit of merit stating facts constituting a valid defense. (Sec. 3,
Rule 38, Rules of Court.) Defendants affidavit of merits attached to his petition of June 21, 1955
stated: "That he has a good and valid defense against plaintiffs cause of action, his failure to marry
the plaintiff as scheduled having been due to fortuitous event and/or circumstances beyond his
control." An affidavit of merits like this, stating mere conclusions or opinions instead of facts is not
valid. (Cortes v. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani v. P. Tarrachand Bros., L-15800,
December 29, 1960.)
Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere
surplusage, because the judgment sought to be set aside was null and void, it having been based on
evidence adduced before the clerk of court. In Province of Pangasinan v. Palisoc, L-16519, October
30, 1962, this Court pointed out that the procedure of designating the clerk of court as
commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now
as to defendants consent to said procedure, the same did not have to be obtained for he was
declared in default and thus had no standing in court (Velez v. Ramas, 40 Phil., 787; Alano v. Court
of First Instance, L-14557, October 30, 1959).
In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is
contrary to law. The reason given is that "there is no provision of the Civil Code authorizing" an
action for breach of promise to marry. Indeed, our ruling in Hermosisima v. Court of Appeals (L14628, Sept. 30, 1960) as reiterated in Estopa v. Biansay (L-14733, Sept. 30, 1960), is that "mere
breach of a promise to marry" is not an actionable wrong. We pointed out that Congress
deliberately eliminated from the draft of the new Civil Code the provisions that would have it so.
It must not be overlooked, however, that the extent to which acts not contrary to law may be
perpetrated with impunity, is not limitless for Article 21 of said Code provides that "Any person who
wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage."
The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract
marriage, which was subsequently issued. (Exhs. A, A-1). Their wedding was set for September 4,
1954. Invitations were printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh.
C). The bride-to- bes trousseau, party dresses and other apparel for the important occasion were
purchased (Tsn., 7-8). Dresses for the maid of honor and the flower girl were prepared. A
matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn.,
6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,
simply left a note for plaintiff stating: "Will have to postpone wedding My mother opposes it . . ."
He enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired
plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never
heard from again.
Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to
marry is not an actionable wrong. But to formally set a wedding and go through all the abovedescribed preparation and publicity, only to walk out of it when the matrimony is about to be
solemnized, is quite different. This is palpably and unjustifiably contrary to good customs, for which
defendant must be held answerable in damages in accordance with Article 21 aforesaid.
Defendant urges in his aforestated petition that the damages awarded were excessive. No question
is raised as to the award of actual damages. What defendant would really assert hereunder is that
the award of moral and exemplary damages, in the amount of P25,000.00, should be totally
eliminated.
Per express provision of Article 2219(10) of the new Civil Code, moral damages are recoverable in
the cases mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that
the same could not be adjudged against him because under Article 2232 of the new Civil Code the
condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner." The argument is devoid of merit as under the above-narrated circumstances of
this case defendant clearly acted in a "wanton . . . reckless [and] oppressive manner." This Courts
opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral
and exemplary damages is deemed to be a reasonable award.
PREMISES CONSIDERED, with the above-indicated modification, the lower courts judgment is
hereby affirmed, with costs.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal and
Zaldivar,JJ., concur.
EN BANC
[G.R. No. 86564. August 1, 1989.]
RAMON L. LABO, JR., Petitioner, v. THE COMMISSION ON ELECTIONS (COMELEC) EN BANC
AND LUIS LARDIZABAL, Respondents.
Estelito P. Mendoza for Petitioner.
Rillera and Quintana for Private Respondent.
SYLLABUS
1. SPECIAL CIVIL ACTION; QUO WARRANTO; PETITION FILED TIMELY. The Court has considered
the arguments of the parties and holds that the petition for quo warranto was filed on time. We
agree with the respondents that the fee was paid during the ten-day period as extended by the
pendency of the petition when it was treated by the COMELEC as a pre-proclamation proceeding
which did not require the payment of a filing fee. At that, we reach this conclusion only on the
assumption that the requirement for the payment of the fees in quo warranto proceedings was
already effective. There is no record that Res. No. 1450 was even published; and as for Res. No.
1996, this took effect only on March 3, 1988, seven days after its publication in the February 25,
1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed.
2. ID.; ID.; PAYMENT OF FILING FEES NECESSARY FOR CONFERMENT OF JURISDICTION; COURT
MAY ALLOW PAYMENT WITHIN A REASONABLE TIME. It is true that in the Manchester Case, we
required the timely payment of the filing fee as a precondition for the timeliness of the filing of the
case itself. In Sun Insurance Office, Ltd. v. Asuncion, however, this Court, taking into account the
special circumstances of that case, reiterated the rule that the trial court acquires jurisdiction over a
case only upon the payment of the prescribed filing fee. However, this court may allow the payment
of the said fee within a reasonable time. In the event of non-compliance therewith, the case shall be
dismissed. The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure
adopted on June 20, 1988.
3. CIVIL PROCEDURE; ACTION; RESOLUTION ON THE MERITS INSTEAD OF REMANDING THE CASE
TO THE TRIAL COURT FOR FURTHER PROCEEDINGS; AS DEMANDED BY THE DICTATES OF JUSTICE.
Remand of the case to the lower court for further reception of evidence is not necessary where
the court is in a position to resolve the dispute based on the records before it. On many occasions,
the Court, in the public interest and the expeditious administration of justice, has resolved actions
on the merits instead of remanding them to the trial court for further proceedings, such as where
the ends of justice would not be subserved by the remand of the case or when public interest
demands an early disposition of the case or where the trial court had already received all the
evidence of the parties.
4. ID.; ID.; DOCTRINE OF RES JUDICATA NOT APPLICABLE TO QUESTIONS OF CITIZENSHIP;
DEFENSE TO BE SEASONABLY INVOKED. There is also the claim that the decision can no longer
be reversed because of the doctrine of res judicata, but this too must be dismissed. This doctrine
does not apply to questions of citizenship, as the Court has ruled in several cases. Moreover, it does
not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the answer,
having been invoked only when the petitioner filed his reply to the private respondents comment.
Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case.
5. POLITICAL LAW; NATURALIZATION; ACQUISITION OF CITIZENSHIP BY NATURALIZATION. The
petitioners contention that his marriage to an Australian national in 1976 did not automatically
divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically
ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was
naturalized as such through a formal and positive process, simplified in his case because he was
married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of
Allegiance and/or made the Affirmation of Allegiance.
6. ID.; CITIZENSHIP; MODES OF LOSING PHILIPPINE CITIZENSHIP. CA No. 63 enumerates the
modes by which Philippine citizenship may be lost. Among these are: (1) naturalization in a foreign
country; (2) express renunciation of citizenship; and (3) subscribing to an oath of allegiance to
support the Constitution or laws of a foreign country, all of which are applicable to the petitioner. It
is also worth mentioning in this connection that under Article IV, Section 5, of the present
Constitution, "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by
law."
7. ID.; ID.; ANNULMENT OF MARRIAGE TO A FOREIGNER NOT AN AUTOMATIC RESTORATION OF

PHILIPPINE CITIZENSHIP. Even if it be assumed that, as the petitioner asserts, his naturalization
in Australia was annulled after it was found that his marriage to the Australian citizen was
bigamous, that circumstance alone did not automatically restore his Philippine citizenship. His
divestiture of Australian citizenship does not concern us here. That is a matter between him and his
adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine
citizenship and willingly and knowingly embraced the citizenship of a foreign country. The possibility
that he may have been subsequently rejected by Australia, as he claims, does not mean that he has
been automatically reinstated as a citizen of the Philippines.
8. ID.; ID.; MEANS OF REACQUIRING PHILIPPINE CITIZENSHIP. Under CA No. 63 as amended by
PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or
by repatriation. It does not appear in the record, nor does the petitioner claim, that he has
reacquired Philippine citizenship by any of these methods.
9. ID.; ID.; LACK OF PHILIPPINE CITIZENSHIP ON THE DAY OF LOCAL ELECTIONS; GROUND FOR
DISQUALIFICATION AS A CANDIDATE FOR MAYOR. The petitioner is not now, nor was he on the
day of the local elections on January 18, 1988, a citizen of the Philippines. In fact, he was not even
a qualified voter under the Constitution itself because of his alienage. He was therefore ineligible as
a candidate for mayor of Baguio City under Section 42 of the Local Government Code.
10. ID.; ELECTION; QUALIFICATIONS OF CANDIDATE FOR PUBLIC OFFICE, CONTENDING
REQUIREMENTS. The probability that many of those who voted for the petitioner may have done
so in the belief that he was qualified only strengthens the conclusion that the results of the election
cannot nullify the qualifications for the office now held by him. These qualifications are continuing
requirements; once any of them is lost during incumbency, title to the office itself is deemed
forfeited. In the case at bar, the citizenship and voting requirements were not subsequently lost but
were not possessed at all in the first place on the day of the election. The petitioner was disqualified
from running as mayor and, although elected, is not now qualified to serve as such.
11. ID.; ELECTION; CANDIDATE OBTAINING THE SECOND HIGHEST NUMBER OF VOTES; NOT
QUALIFIED TO REPLACE THE DISQUALIFIED CANDIDATE; SANTOS RULING REVERSED. 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. Re-examining Santos v. Commission on Election, 137 SCRA 740 the Court finds, and so
holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, which
represents the more logical and democratic rule. 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.
DECISION
CRUZ, J.:
The petitioner asks this Court to restrain the Commission on Elections from looking into the question
of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a
foreigner, he says, is not the issue. The issue is whether or not the public respondent has
jurisdiction to conduct any inquiry into this matter, considering that the petition for quo warranto
against him was not filed on time.
It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of
the payment of the filing fee, which the petitioner contends was an indispensable requirement. The
fee is, curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of
a horse the kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the
reglementary period, there is no question that this petition must be granted and the challenge
abated.
The petitioners position is simple. He was proclaimed mayor-elect of Baguio City on January 20,
1988. The petition for quo warranto was filed by the private respondent on January 26,1988, but no
filing fee was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days
after his proclamation. As the petition by itself alone was ineffectual without the filing fee, it should
be deemed filed only when the fee was paid. This was done beyond the reglementary period
provided for under Section 253 of the Omnibus Election Code reading as follows:
SEC. 253. Petition for quo warranto. Any voter contesting the election of a Member of the
Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty
to the Republic of the Philippines shall files sworn petition for quo warranto with the Commission
within ten days after the proclamation of the result of the election.
The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the
Procedural Rules of the COMELEC providing that
Sec. 5. No petition for quo warranto shall be given due course without the payment of a filing fee in
the amount of Three Hundred Pesos (P300.00) and the legal research fee as required by law.
and stresses that there is abundant jurisprudence holding that the payment of the filing fee is
essential to the timeliness of the filing of the petition itself. He cites many rulings of the Court to
this effect, specifically Manchester v. Court of Appeals. 1
For his part, the private respondent denies that the filing fee was paid out of time. In fact, he says,
it was filed ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer
for Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26,
1988, the COMELEC treated it as a pre-proclamation controversy and docketed it as SPC Case No.
88-288. No docket fee was collected although it was offered. It was only on February 8, 1988, that
the COMELEC decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case
No. 88-19, serving him notice on February 10, 1988. He immediately paid the filing fee on that
date.
The private respondent argues further that during the period when the COMELEC regarded his
petition as a pre-proclamation controversy, the time for filing an election protest or quo warranto
proceeding was deemed suspended under Section 248 of the Omnibus Election Code. 2 At any rate,
he says, Rule 36, Section 5, of the COMELEC Rules of Procedure cited by the petitioner, became
effective only on November 15, 1988, seven days after publication of the said Rules in the Official
Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not retroact to January
26,1988, when he filed his petition with the COMELEC.
In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the
payment of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of
the respondent COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively.
To this, the private respondent counters that the latter resolution was intended for the local
elections held on January 30, 1980, and did not apply to the 1988 local elections, which were
supposed to be governed by the first-mentioned resolution. However, Res. No. 1996 took effect only
on March 3, 1988, following the lapse of seven days alter its publication as required by RA No.
6646, otherwise known as the Electoral Reform Law of 1987, which became effective on January
5,1988. Its Section 30 provides in part:
Sec. 30. Effectivity of Regulations and Orders of the Commission. The rules and regulations
promulgated by the Commission shall take effect on the seventh day after their publication in the
Official Gazette or in at least (2) daily newspapers of general circulation in the Philippines.
The Court has considered the arguments of the parties and holds that the petition for quo warranto
was filed on time. We agree with the respondents that the fee was paid during the ten-day period as
extended by the pendency of the petition when it was treated by the COMELEC as a preproclamation proceeding which did not require the payment of a filing fee. At that, we reach this
conclusion only on the assumption that the requirement for the payment of the fees in quo warranto
proceedings was already effective. There is no record that Res. No. 1450 was even published; and
as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its publication in the
February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the
petition was filed.
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The petitioner forgets Taada v. Tuvera 4 when he argues that the resolutions became effective
"immediately upon approval" simply because it was so provided therein. We held in that case that
publication was still necessary under the due process clause despite such effectivity clause.
In any event, what is important is that the filing fee was paid, and whatever delay there may have
been is not imputable to the private respondents fault or neglect. It is true that in the Manchester
Case, we required the timely payment of the filing fee as a precondition for the timeliness of the
filing of the case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however, this Court, taking into
account the special circumstances of that case, declared:
This Court reiterates the rule that the trial court acquires jurisdiction over a case only upon the
payment of the prescribed filing fee. However, the court may allow the payment of the said fee
within a reasonable time. In the event of non-compliance therewith, the case shall be dismissed.
The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on
June 20, 1988, thus:
Sec. 18. Non-payment of prescribed fees. If the fees above prescribed are not paid, the
Commission may refuse to take action thereon until they are paid and may dismiss the action or the
proceeding. (Emphasis supplied.)
The Court notes that while arguing the technical point that the petition for quo warranto should be
dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize
his alleged lack of citizenship as "a futile technicality." It is regrettable, to say the least, that the
requirement of citizenship as a qualification for public office can be so demeaned. what is worse is
that it is regarded as an even less important consideration than the reglementary period the
petitioner insists upon.
This matter should normally end here as the sole issue originally raised by the petitioner is the
timeliness of the quo warranto proceedings against him. However, as his citizenship is the subject of
that proceeding, and considering the necessity for an early resolution of that more important
question clearly and urgently affecting the public interest, we shall directly address it now in this
same action.
The Court has similarly acted in a notable number of cases, thus:
From the foregoing brief statement of the nature of the instant case, it would appear that our sole
function in this proceeding should be to resolve the single issue of whether or not the Court of
Appeals erred in ruling that the motion for new trial of the GSIS in question should indeed be
deemed pro forma. But going over the extended pleadings of both parties, the Court is immediately
impressed that substantial justice may not be timely achieved, if we should decide this case upon
such a technical ground alone. We have carefully read all the allegations and arguments of the
parties, very ably and comprehensively expounded by evidently knowledgeable and unusually
competent counsel, and we feel we can better serve the interests of justice by broadening the scope
of our inquiry, for as the record before us stands, we see that there is enough basis for us to end
the basic controversy between the parties here and now, dispensing, however, with procedural
steps which would not anyway affect substantially the merits of their respective claims. 6
x
While it is the fault of the petitioner for appealing to the wrong court and thereby allowing the
period for appeal to lapse, the more correct procedure was for the respondent court to forward the
case to the proper court which was the Court of Appeals for appropriate action. Considering,
however, the length of time that this case has been pending, we apply the rule in the case of Del
Castillo v. Jaymalin, (112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v.
Court of Appeals, (135 SCRA 37) which states:
". . . it is a cherished rule of procedure for this Court to always strive to settle the entire controversy
in a single proceeding leaving no root or branch to bear the seeds of future litigation. No useful
purpose will be served if this case is remanded to the trial court only to have its decision raised
again to the Intermediate Appellate Court and from there to this Court." (p. 43)
Only recently in the case of Beautifont, Inc., Et. Al. v. Court of Appeals, Et. Al. (G.R. No. 50141,
January 29,1988), we stated that:
". . . But all those relevant facts are now before this Court. And those facts dictate the rendition of a
verdict in the petitioners favor. There is therefore no point in referring the case back to the Court of
Appeals. The facts and the legal propositions involved will not change, nor should the ultimate
judgment. Considerable time has already elapsed and, to serve the ends of justice, it is time that
the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108
Phil. 57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98
SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162).Sound
practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to
the parties and the government, not to speak of delay in the disposal of the case (of: Fernandez v.
Garcia, 92 Phil. 592, 597). A marked characteristic of our judicial set-up is that where the dictates
of justice so demand . . . the Supreme Court should act, and act with finality. (Li Siu Liat v.
Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74).
In this case, the dictates of justice do demand that this Court act, and act with finality. "7
x
Remand of the case to the lower court for further reception of evidence is not necessary where the
court is in a position to resolve the dispute based on the records before it. On many occasions, the
Court, in the public interest and the expeditious administration of justice, has resolved actions on
the merits instead of remanding them to the trial court for further proceedings, such as where the
ends of justice would not be subserved by the remand of the case or when public interest demands
an early disposition of the case or where the trial court had already received all the evidence of the
parties. 8
This course of action becomes all the more justified in the present case where, to repeat for stress,
it is claimed that a foreigner is holding a public office.
We also note in his Reply, the petitioner says:
In adopting private respondents comment, respondent COMELEC implicitly adopted as "its own"
private respondents repeated assertion that petitioner is no longer a Filipino citizen. In so doing,
has not respondent COMELEC effectively disqualified itself, by reason of prejudgment, from
resolving the petition for quo warranto filed by private respondent still pending before it? 9
This is still another reason why the Court has seen fit to rule directly on the merits of this case.
Going over the record, we find that there are two administrative decisions on the question of the
petitioners citizenship. The first was rendered by the Commission on Elections on May 12, 1982,
and found the petitioner to be a citizen of the Philippines. 10 The second was rendered by the
Commission on Immigration and Deportation on September 13, 1988, and held that the petitioner
was not a citizen of the Philippines. 11
The first decision was penned by then COMELEC Chairman Vicente Santiago, Jr., with
Commissioners Pabalate, Savellano and Opinion concurring in full and Commissioner Bacungan
concurring in the dismissal of the petition "without prejudice to the issue of the respondents
citizenship being raised a new in a proper case. "Commissioner Sagadraca reserved his vote, while
Commissioner Felipe was for deferring decision until representations shall have been made with the
Australian Embassy for official verification of the petitioners alleged naturalization as an Australian.
The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and
Commissioners Alano and Geraldez of the Commission on Immigration and Deportation.
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It is important to observe that in the proceeding before the COMELEC, there was no direct proof
that the herein petitioner had been formally naturalized as a citizen of Australia. This conjecture,
which was eventually rejected, was merely inferred from the fact that he had married an Australian
citizen, obtained an Australian passport, and registered as en alien with the CID upon his return to
this country in 1980.
On the other hand, the decision of the CID took into account the official statement of the Australian
Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was
still an Australian citizen as of that date by reason of his naturalization in 1976. That statement 12
is reproduced in full as follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of

appointment signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October
1983, and recognized as such by Letter of Patent signed and sealed by the Philippines Acting
Minister of Foreign Affairs on 23 November 1983, do hereby provide the following statement in
response to the Subpoena Testificandum dated 9 April 1984 in regard to the Petition for
disqualification against RAMON LABO, JR. Y LOZANO (SPC No.84-73). and do hereby certify that the
statement is true and correct.
STATEMENT
A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the Philippines to
an Australian citizen. As the spouse of an Australian citizen, he was not required to meet normal
requirements for the grant of citizenship and was granted Australian citizenship by Sydney on 28
July 1976.
B) Any person over the age of 16 years who is granted Australian citizenship must take an oath of
allegiance or make an affirmation of allegiance. The wording of the oath of affirmation is: "I. . . .,
renouncing all other allegiance . . . .," etc. This need not necessarily have any effect on his former
nationality as this would depend on the citizenship laws of his former country.
C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June 1980 on
the ground that the marriage had been bigamous.
D) According to our records LABO is still an Australian citizen.
E) Should he return to Australia, LABO may face court action in respect of Section 50 of Australian
Citizenship Act 1948 which relates to the giving of false or misleading information of a material
nature in respect of an application for Australian citizenship. If such a prosecution was successful,
he could be deprived of Australian citizenship under Section 21 of the Act.
F) There are two further ways in which LABO could divest himself of Australian citizenship:
(i) He could make a declaration of Renunciation of Australian citizenship under Section 18 of the
Australian Citizenship Act, or
(ii) If he acquired another nationality, (for example, Filipino) by a formal end voluntary act other
than marriage, then he would automatically lose his Australian citizenship under Section 17 of the
Act.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE AUSTRALIAN
EMBASSY, MANILA, THIS 12TH DAY OF APRIL 1984.
DONE AT MANILA IN THE PHILIPPINES.
(Signed)
GRAHAM C. WEST
Consul
This was affirmed later by the letter of February 1, 1988, addressed to the private respondent by
the Department of Foreign Affairs reading as follows: 13
Sir:
With reference to your letter dated 1 February 1988, I wish to inform you that inquiry made with
the Australian Government through the Embassy of the Philippines in Canberra has elicited the
following information:
1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.
2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an oath of
allegiance or make an affirmation of allegiance which carries a renunciation of "all other
allegiance."
Very truly yours,

For the Secretary of Foreign Affairs:
(SGD) RODOLFO SEVERINO, JR

Assistant Secretary
The decision also noted the oath of allegiance taken by every naturalized Australian reading as
follows:
OATH OF ALLEGIANCE
I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true
allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors
according to law, and that I will faithfully observe the laws of Australia and fulfill my duties as an
Australian citizen. 14
and the Affirmation of Allegiance, which declares:
AFFIRMATION OF ALLEGIANCE
I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I will be
faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs
and successors according to law, and that I will faithfully observe the Laws of Australia and fulfill my
duties as an Australian citizen. 15
The petitioner does not question the authenticity of the above evidence. Neither does he deny that
he obtained Australian Passport No. 754705, which he used in coming back to the Philippines in
1980, when he declared before the immigration authorities that he was an alien and registered as
such under Alien Certificate of Registration No. B-323985. 16 He later asked for the change of his
status from immigrant to a returning former Philippine citizen and was granted Immigrant
Certificate of Residence No. 223809. 17 He also categorically declared that he was a citizen of
Australia in a number of sworn statements voluntarily made by him and. even sought to avoid the
jurisdiction of the barangay court on the ground that he was a foreigner. 18
The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not
divest the petitioner of his citizenship, although, as earlier noted, not all the member joined in this
finding. We reject this ruling as totally baseless. The petitioner is not an unlettered person who was
not aware of the consequences of his acts, let alone the fact that he was assisted by counsel when
he performed these acts.
The private respondent questions the motives of the COMELEC at that time and stresses Labos
political affiliation with the party in power then, but we need not go into that now.
There is also the claim that the decision can no longer be reversed because of the doctrine of res
judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as
the Court has ruled in several cases. 19 Moreover, it does not appear that it was properly and
seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the
petitioner filed his reply 20 to the private respondents comment. Besides, one of the requisites of
res judicata, to wit, identity of parties, is not present in this case.
The petitioners contention that his marriage to an Australian national in 1976 did not automatically
divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically
ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was
naturalized as such through a formal and positive process, simplified in his case because he was
married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of
Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other
allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second,
Queen of Australia. . . ., and to fulfill his duties as an Australian citizen."
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The petitioner now claims that his naturalization in Australia made him at worst only a dual national
and did not divest him of his Philippine citizenship. Such a specious argument cannot stand against
the clear provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may
be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of
citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a
foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this
connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens
is inimical to the national interest and shall be dealt with by law."
Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled
after it was found that his marriage to the Australian citizen was bigamous, that circumstance alone
did not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does
not concern us here. That is a matter between him and his adopted country. What we must consider
is the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly
embraced the citizenship of a foreign country. The possibility that he may have been subsequently
rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a
citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act
of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the
petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not
point to any judicial decree of naturalization as to any statute directly conferring Philippine
citizenship upon him. Neither has he shown that he has complied with PD No. 725, providing that:
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1aw library
. . . (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire Philippine
citizenship through repatriation by applying with the Special Committee on Naturalization created by
Letter of Instruction No. 270, and, if their applications are approved, taking the necessary oath of
allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired
Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their
certificate of registration. (Emphasis supplied.)
That is why the Commission on Immigration and Deportation rejected his application for the
cancellation of his alien certificate of registration. And that is also the reason we must deny his
present claim for recognition as a citizen of the Philippines.
The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a
citizen of the Philippines. In fact, he was not even a qualified voter under the Constitution itself
because of his alienage. 21 He was therefore ineligible as a candidate for mayor of Baguio City
under Section 42 of the Local Government Code providing in material part as follows:
Sec. 42. Qualifications. (1) An elective local official must be a citizen of the Philippines, at least
twenty-three years of age on election day, a qualified voter registered as such in the barangay,
municipality, city or province where he proposes to be elected, a resident therein for at least one
year at the time of the filing of his certificate of candidacy, and able to read and write English,
Pilipino, or any other local language or dialect.
The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not
frustrate the will of the electorate of Baguio City who elected him by a "resonant and thunderous
majority." To be accurate, it was not as loud as all that, for his lead over the second-placer was only
about 2,100 votes. In any event, the people of that locality could not have, even unanimously,
changed the requirements of the Local Government Code and the Constitution. The electorate had
no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a
stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as
mayor of their city. Only citizens of the Philippines have that privilege over their countrymen.
The probability that many of those who voted for the petitioner may have done so in the belief that
he was qualified only strengthens the conclusion that the results of the election cannot nullify the
qualifications for the office now held by him. These qualifications are continuing requirements; once
any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at
bar, the citizenship and voting requirements were not subsequently lost but were not possessed at
all in the first place on the day of the election. The petitioner was disqualified from running as
mayor and, although elected, is not now qualified to serve as such.
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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 on this issue is Santos v. Commission on Elections, 22 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
disregarded as stray. In effect, the second placer won by default. That decision was supported by
eight members of the Court then, 23 with three dissenting 24 and another two reserving their
vote.25 One was on official leave. 26
Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the
earlier case of Geronimo v. Ramos, 27 which represents the more logical and democratic rule. That
case, which reiterated the doctrine first announced in 1912 in Topacio v. Paredes, 28 was supported
by ten members of the Court, 29 without any dissent, although one reserved his vote, 30 another
took no part, 31 and two others were an leave. 32 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 243, 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.
It remains to stress that the citizen of the Philippines must take pride in his status as such and
cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to
grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it
for another land that may offer him material and other attractions that he may not find in his own
country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his
allegiance to a state with more allurements for him. 33 But having done so, he cannot expect to be
welcomed back with open arms once his taste for his adopted country turns sour or he is himself
disowned by it as an undesirable alien.
Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It
may be restored only after the returning renegade makes a formal act of re-dedication to the
country he has abjured and he solemnly affirms once again his total and exclusive loyalty to the
Republic of the Philippines. This may not be accomplished by election to public office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and
therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE
his office and surrender the same to the Vice-Mayor of Baguio City once this decision becomes final
and executory. The temporary restraining order dated January 31, 1989, is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Separate Opinions
GUTIERREZ, JR., J., concurring:
As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspite
of what would otherwise be insuperable procedural obstacles, I am constrained to concur in the
Courts decision so forcefully and felicitously written by Mr. Justice Isagani A. Cruz. I do so because
I cannot see how the Court can countenance a citizen of a foreign country or one who has
renounced Filipino citizenship sitting as the mayor of one of the most important cities in the
Philippines.
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What was raised to the Court was only the issue of the COMELECs jurisdiction to inquire into the
citizenship of the petitioner. Ordinarily, we would have limited ourselves to sustaining the
jurisdiction of the COMELEC and remanding the case for further proceedings and the rendition of a
decision. Under Section 7, Article XI-A of the Constitution, a decision, order, or ruling of the
COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty
days from receipt of a copy thereof. No decision on the petitioners citizenship has been rendered
and no decision can, as yet, be elevated to us for review. I, therefore, reiterate my statement in
Frivaldo that my concurrence is limited only to cases involving citizenship and disloyalty but not to
any of the many other grounds for disqualification cited in my concurring opinion.
Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by
the singular achievements in the beautification of Baguio City, in the peace and order situation, and
in the resurgence of civic pride so visible to anyone who has gone up to Baguio since Mr. Labo
assumed the mayorship. However, I see no other way this case can be resolved except by adopting
a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of Baguio City. I
join the rest of the Court.
Endnotes:
1. 149 SCRA 562.

2. Sec. 248. Effect of filing petition to annul or suspend the proclamation. The filing with the
Commission of a petition to annul or to suspend the proclamation of any candidate shall suspend
the running of the period within which to file an election protest or quo warranto proceedings.
3. Rule 44, Sec. 4. COMELEC Rules of Procedure, Effectivity. These Rules shall be published in the
Official Gazette and shall take effect on the seventh day following its publication.
Actually, the Rules became effective seven days after the official release of the Official Gazette
dated June 27, 1988 on November 8,1988.
4. 146 SCRA 446.

5. G.R. Nos. 79937-38, February 13, 1989.
6. Velasco v. Court of Appeals, 95 SCRA 616. See also Ortigas v. Ruiz, 148 SCRA 326; First Asian
Transport and Shipping Agency, Inc. v. Ople, 142 SCRA 542; Quisumbing v. Court of Appeals, 122
SCRA 703; Del Castillo v. Jaymalin, 112 SCRA 629; Francisco v. City of Davao, 12 SCRA 628.
7. Tejones v. Gironella, 159 SCRA 100.
8. Lianga Bay Logging Co., Inc. v. CA, 157 SCRA 357
9. Rollo, p. 159.
10. Ibid., pp. 182A-195.
11. Id., pp. 94-107.
12. Id. Emphasis supplied.
16. Id.
17. Id
18. (i) Statement dated 25 November 1976 that he is an "Australian, made before Det. Abaya.
(ii) Statement affirming that he is an Australian citizen in the affidavit-complaint executed on 1 July
1988 and in the complaint filed on 13 January 1982 with the City Court of Baguio: ". . . being an
Australian citizen the subject of this complaint is one of which the Barangay Court cannot take
cognizance of."
19. Soria v. Commissioner of Immigration, 37 SCRA 213; Lee v. Commissioner of Immigration, 42

SCRA 561; Sia Reyes v. Deportation Board, 122 SCRA 478.
20. Rollo, pp. 159-160.
21. Art. V, Sec. 1,1987 Constitution.
22. 137 SCRA 740.
23. Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and
Aquino, JJ., concurring.
24. Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.,
25. Plana and Gutierrez, Jr., JJ.,
26. Fernando, C.J.
27. 136 SCRA 435.
28. 23 Phil. 238.
29. Gutierrez, Jr., J., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin,
Relova, De la Fuente, Cuevas and Alampay, JJ., concurring.
30. Makasiar, J.
31. Aquino, J.
32. Fernando, C.J. and Concepcion, Jr., J.
33. Except in times of war, under CA No. 63.
EN BANC
[G.R. No. 119976. September 18, 1995.]
IMELDA ROMUALDEZ-MARCOS, Petitioner, v. COMMISSION ON ELECTIONS and CIRILO
ROY MONTEJO, Respondents.
Estelito P. Mendoza for Petitioner.
The Solicitor General for public Respondent.
Paquito N. Ochoa, Jr. and Gracelda N. Andres for Private Respondent.
SYLLABUS
1. CIVIL LAW; DOMICILE; CONSTRUED. Article 50 of the Civil Code decrees that" [f]or the
exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their
place of habitual residence." In Ong v. Republic this court took the concept of domicile to mean an
individuals "permanent home," "a place to which, whenever absent for business or for pleasure,
one intends to return, and depends on facts and circumstances in the sense that they disclose
intent." Based on the foregoing, domicile includes the twin elements of "the fact of residing or
physical presence in a fixed place" and animus manendi, or the intention of returning there
permanently.
2. ID.; ID.; RESIDENCE, CONSTRUED. Residence, in its ordinary conception, implies the factual
relationship of an individual to a certain place. It is the physical presence of a person in a given
area, community or country.
3. ID.; ID.; DIFFERENTIATED FROM RESIDENCE. The essential distinction between residence and
domicile in law is that residence involves the intent to leave when the purpose for which the
resident has taken up his abode ends. One may seek a place for purposes such as pleasure,
business, or health. If a persons intent be to remain, it becomes his domicile; if his intent is to
leave as soon as his purpose is established it is residence. It is thus, quite perfectly normal for an
individual to have different residences in various places. However, a person can only have a single
domicile, unless, for various reasons, he successfully abandons his domicile in favor of another
domicile of choice.
4. POLITICAL LAW; ELECTIONS; RESIDENCE USED SYNONYMOUSLY WITH DOMICILE. For
political purposes the concepts of residence and domicile are dictated by the peculiar criteria of
political laws. As these concepts have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election purposes is used synonymously with
domicile.
5. ID.; ID.; ID.; ABSENCE FROM PERMANENT RESIDENCE WITHOUT INTENTION TO ABANDON IT
DOES NOT RESULT IN LOSS OR CHANGE OF DOMICILE. So settled is the concept (of domicile) in
our election law that in these and other election law cases, this Court has stated that the mere
absence of an individual from his permanent residence without the intention to abandon it does not
result in a loss or change of domicile. The deliberations of the 1987 Constitution on the residence
qualification for certain elective positions have placed beyond doubt the principle that when the
Constitution speaks of "residence" in election law, it actually means only "domicile."
6. ID.; ID.; ID.; FACT OF RESIDENCE, NOT STATEMENT IN CERTIFICATE OF CANDIDACY, DECISIVE
FACTOR IN DETERMINING RESIDENCY QUALIFICATION REQUIREMENT. 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. It would be plainly
ridiculous for a candidate to deliberately and knowingly make a statement in a certificate of
candidacy which would lead to his or her disqualification.
7. ID.; ID.; ID.; ID.; CASE AT BAR. It stands to reason therefore, that petitioner merely
committed an honest mistake in jotting down the word "seven" in the space provided for the
residency qualification requirement. The circumstances leading to her filing the questioned entry
obviously resulted in the subsequent confusion which prompted petitioner to write down the period
of her actual stay in Tolosa, Leyte instead of her period of residence in the First district, which was
"since childhood" in the space provided. These circumstances and events are amply detailed in the
COMELECs Second Divisions questioned resolution, albeit with a different interpretation. For
instance, when herein petitioner announced that she would be registering in Tacloban City to make
her eligible to run in the First District, private respondent Montejo opposed the same, claiming that
petitioner was a resident of Tolosa, not Tacloban City. Petitioner then registered in her place of
actual residence in the First District, which was Tolosa, Leyte, a fact which she subsequently noted
down in her Certificate of Candidacy. A close look at said certificate would reveal the possible source
of the confusion: the entry for residence (Item No. 7) is followed immediately by the entry for
residence in the constituency where a candidate seeks election. Having been forced by private
respondent to register in her place of actual residence in Leyte instead of petitioners claimed
domicile, it appears that petitioner had jotted down her period of stay in her legal residence or
domicile. The juxtaposition of entries in Item 7 and Item 8 the first requiring actual residence and
the second requiring domicile coupled with the circumstances surrounding petitioners registration
as a voter in Tolosa obviously led to her writing down an unintended entry for which she could be
disqualified. This honest mistake should not, however, be allowed to negate the fact of residence in
the First District if such fact were established by means more convincing than a mere entry on a
piece of paper.
8. ID.; ID.; ID.; ABSENCE FROM LEGAL RESIDENCE OR DOMICILE OF A TEMPORARY OR SEMIPERMANENT NATURE DOES NOT CONSTITUTE LOSS OF RESIDENCE. We have stated, many
times in the past, that an individual does not lose his domicile even if he has lived and maintained
residences in different places. Residence, it bears repeating, implies a factual relationship to a given
place for various purposes. The absence from legal residence or domicile to pursue a profession, to
study or to do other things of a temporary or semi-permanent nature does not constitute loss of
residence. Thus, the assertion by the COMELEC that "she could not have been a resident of
Tacloban City since childhood up to the time she filed her certificate of candidacy because she
became a resident of many places" flies in the face of settled jurisprudence in which this Court
carefully made distinctions between (actual) residence and domicile for election law purposes.
9. CIVIL LAW; DOMICILE; A MINOR FOLLOWS THE DOMICILE OF HIS PARENTS; CASE AT BENCH.
A minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is
gained, it follows that in spite of the fact of petitioners being born in Manila, Tacloban, Leyte was
her domicile of origin by operation of law. This domicile was not established only when her father
brought his family back to Leyte contrary to private respondents averments.
10. ID.; ID.; REQUISITES TO EFFECT CHANGE OF DOMICILE. Domicile of origin is not easily lost.
To successfully effect a change of domicile, one must demonstrate: 1. An actual removal or an
actual change of domicile; 2. A bona fide intention of abandoning the former place of residence and
establishing a new one; and 3. Acts which correspond with the purpose.
11. ID.; ID.; ID.; CASE AT BENCH. In the absence of clear and positive proof based on these
criteria, the residence of origin should be deemed to continue. Only with evidence showing
concurrence of all three requirements can the presumption of continuity or residence be rebutted,
for a change of residence requires an actual and deliberate abandonment, and one cannot have two
legal residences at the same time. In the case at bench, the evidence adduced by private
respondent plainly lacks the degree of persuasiveness required to convince this court that an
abandonment of domicile of origin in favor of a domicile of choice indeed occurred. To effect an
abandonment requires the voluntary act of relinquishing petitioners former domicile with an intent
to supplant the former domicile with one of her own choosing (domicilium voluntarium).
12. ID.; ID.; ID.; MARRIAGE, NOT A CAUSE FOR LOSS OF DOMICILE. In this connection, it
cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a result
of her marriage to the, late President Ferdinand E. Marcos in 1954. For there is a clearly established
distinction between the Civil Code concepts of "domicile" and "residence." The presumption that the
wife automatically gains the husbands domicile by operation of law upon marriage cannot be
inferred from the use of the term "residence" in Article 110 of the Civil Code because the Civil Code
is one area where the two concepts are well delineated. A survey of jurisprudence relating to Article
110 or to the concepts of domicile or residence as they affect the female spouse upon marriage
yields nothing which would suggest that the female spouse automatically loses her domicile of origin
in favor of the husbands choice of residence upon marriage. Article 110 is a virtual restatement of
Article 58 of the Spanish Civil Code of 1889: La mujer esta obligada a seguir a su marido donde
quiera que fije su residencia. Los Tribunales, sin embargo, podran con justa causa eximirla de esta
obligacion cuando el marido transende su residencia a ultramar o a pais extranjero. Note the use of
the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever
(the husband) wishes to establish residence. This part of the article clearly contemplates only actual
residence because it refers to a positive act of fixing a family home or residence. Moreover, this
interpretation is further strengthened by the phrase "cuando el marido translade su residencia" in
the same provision which means, "when the husband shall transfer his residence," referring to
another positive act of relocating the family to another home or place of actual residence. The
article obviously cannot be understood to refer to domicile which is a fixed, fairly-permanent
concept when it plainly connotes the possibility of transferring from one place to another not only
once, but as often as the husband may deem fit to move his family, a circumstance more consistent
with the concept of actual residence. Very significantly, Article 110 of the Civil Code is found under
Title V under the heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE.
Immediately preceding Article 110 is Article 109 which obliges the husband and wife to live
together. The duty to live together can only be fulfilled if the husband and wife are physically
together. This takes into account the situations where the couple has many residences (as in the
case of petitioner). If the husband has to stay in or transfer to any one of their residences, the wife
should necessarily be with him in order that they may "live together." Hence, it is illogical to
conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise, we shall be faced with
a situation where the wife is left in the domicile while the husband, for professional or other
reasons, stays in one of their (various) residences.
13. ID.; ID.; TERM RESIDENCE REFERS TO "ACTUAL RESIDENCE." The term residence may mean
one thing in civil law (or under the Civil Code) and quite another thing in political law. What stands
clear is that insofar as the Civil Code is concerned affecting the rights and obligations of husband
and wife the term residence should only be interpreted to mean "actual residence." The
inescapable conclusion derived from this unambiguous civil law delineation therefore, is that when
petitioner married the former President in 1954, she kept her domicile of origin and merely gained a
new home, not a domicilium necessatium.
14. STATUTORY CONSTRUCTION; STATUTE REQUIRING RENDITION OF JUDGMENT WITHIN
SPECIFIED TIME, MERELY DIRECTORY. It is a settled doctrine that a statute requiring rendition of
judgment within a specified time is generally construed to be merely directory, "so that noncompliance with them does not invalidate the judgment on the theory that if the statute had
intended such result it would have clearly indicated it." The difference between a mandatory and a
directory provision is often made on grounds of necessity.
15. CONSTITUTIONAL LAW; COMELEC; JURISDICTION TO DECIDE PENDING DISQUALIFICATION
CASE NOT LOST BY HOLDING OF ELECTIONS. With the enactment of Sections 6 and 7 of R.A.
6646 in relation to Section 78 of B.P. 881, it is evident that the respondent Commission does not
lose jurisdiction to hear and decide a pending disqualification case under Section 78 of B.P. 881
even after the elections.
16. ID.; LEGISLATURE; HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET); SOLE JUDGE
OF ALL CONTESTS RELATING TO ELECTIONS, RETURNS AND QUALIFICATIONS OF MEMBERS OF
CONGRESS; CANDIDATE MUST HAVE BEEN PROCLAIMED. As to the House of Representatives
Electoral Tribunals supposed assumption of jurisdiction over the issue of petitioners qualifications
after the May 8, 1995 elections, suffice it to say that HRETs jurisdiction as the sole judge of all
contests relating to the elections, returns and qualifications of members of Congress begins only
after a candidate has become a member of the House of Representatives. Petitioner not being a
member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction
over the question.
PUNO, J., concurring opinion:
1. CIVIL LAW; DOMICILE; DOMICILE OF ORIGIN AND DOMICILE OF CHOICE; ESTABLISHED BY

CANDIDATES CONTINUED STAY IN HER PARENTS RESIDENCE. There is no question that
petitioners original domicile is in Tacloban, Leyte. Her parents were domiciled in Tacloban. Their
ancestral house is in Tacloban. They have vast real estate in the place. Petitioner went to school,
and thereafter worked there. Justice Puno considers Tacloban as her initial domicile, both her
domicile of origin and her domicile of choice. Her domicile of origin as it was the domicile of her
parents when she was a minor; and her domicile of choice, as she continued living there even after
reaching the age of majority.
2. ID.; ID.; DOMICILE BY OPERATION OF LAW; ACQUIRED BY MARRIAGE AND DELIBERATE CHOICE
OF A DIFFERENT DOMICILE BY THE HUSBAND. There is also no question that in May, 1954,
petitioner married the late President Ferdinand E. Marcos. By contracting marriage, her domicile
became subject to change by law, and the right to change it was given by Article 110 of the Civil
Code. The difficult issues start as we determine whether petitioners marriage to former President
Marcos ipso facts resulted in the loss of her Tacloban domicile. Justice Puno respectfully submits
that her marriage by itself alone did not cause her to lose her Tacloban domicile. Article 110 of the
Civil Code merely gave the husband the right to fix the domicile of the family. In the exercise of the
right, the husband may explicitly choose the prior domicile of his wife, in which case, the wifes
domicile remains unchanged. The husband can also implicitly acquiesce to his wifes prior domicile
even if it is different. It is not, therefore, the mere fact of marriage but the deliberate choice of a
different domicile by the husband that will change the domicile of a wife from what it was prior to
their marriage. The domiciliary decision made by the husband in the exercise of the right conferred
by Article 110 of the Civil Code binds the wife. Any and all acts of a wife during her coverture
contrary to the domiciliary choice of the husband cannot change in any way the domicile legally
fixed by the husband. These acts are void not only because the wife lacks the capacity to choose
her domicile but also because they are contrary to law and public policy.
3. ID.; ID.; ID.; CASE AT BENCH. In the case at bench, it is not disputed that former President
Marcos exercised his right to fix the family domicile and established it in Batac, Ilocos Norte, where
he was then the congressman. At that particular point of time and throughout their married life,
petitioner lost her domicile in Tacloban, Leyte. Since petitioners Batac domicile has been fixed by
operation of law, it was not affected in 1959 when her husband was elected as Senator, when they
lived in San Juan, Rizal and where she registered as a voter. It was not also affected in 1965 when
her husband was elected President, when they lived in Malacaang Palace, and when she registered
as a voter in San Miguel, Manila. Nor was it affected when she served as a member of the Batasang
Pambansa, Minister of Human Settlements and Governor of Metro Manila during the incumbency of
her husband as President of the nation. Under Article 110 of the Civil Code, it was only her husband
who could change the family domicile in Batac and the evidence shows he did not effect any such
change. To a large degree, this follows the common law that "a woman on her marriage loses her
own domicile and by operation of law, acquires that of her husband, no matter where the wife
actually lives or what she believes or intends."
4. ID.; ID.; ID.; PRINCIPLE THAT AFTER THE HUSBANDS DEATH, WIFE RETAINS LAST DOMICILE
OF HER HUSBAND, SHOULD NOW BE ABANDONED. The more difficult task is how to interpret the
effect of the death on September 28, 1989 of former President Marcos on petitioners Batac
domicile. The issue is of first impression in our jurisdiction and two (2) schools of thought contend
for acceptance. One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily
relying on American authorities. He echoes the theory that after the husbands death, the wife
retains the last domicile of her husband until she makes an actual change. The American case law
that the wife still retains her dead husbands domicile is based on ancient common law which we
can no longer apply in the Philippine setting today. The presumption that the wife retains the
domicile of her deceased husband is an extension of this common law concept. The concept and its
extension have provided some of the most iniquitous jurisprudence against women. The rulings
relied upon by Mr. Justice Davide in CJS and AM JUR 2d are American state court decisions handed
down between the years 1917 and 1938, or before the time when women were accorded equality of
rights with men. Undeniably, the womens liberation movement resulted in far-ranging state
legislations in the United States to eliminate gender inequality. However, it has been declared that
under modern statutes changing the status of married women and departing from the common law
theory of marriage, there is no reason why a wife may not acquire a separate domicile for every
purpose known to the law. In publishing in 1969 the Restatement of the Law, Second (Conflict of
laws 2d), the reputable American Law Institute also categorically stated that the view of
Blackstone." . . is no longer held. As the result of statutes and court decisions, a wife now possesses
practically the same rights and powers as her unmarried sister." In light of the Family Code which
abrogated the inequality between husband and wife as started and perpetuated by the common law,
there is no reason in espousing the anomalous rule that the wife still retains the domicile of her
dead husband. Article 110 of the Civil Code which provides the statutory support for this stance has
been repealed by Article 69 of the Family Code. By its repeal, it becomes a dead-letter law, and we
are not free to resurrect it by giving it further effect in any way or manner such as by ruling that the
petitioner is still bound by the domiciliary determination of her dead husband.
5. ID.; ID.; ID.; WIFE REACQUIRED DOMICILE OF ORIGIN UPON DEATH OF HUSBAND.
Prescinding from these premises, Justice Puno respectfully submits that the better stance is to rule
that petitioner reacquired her Tacloban domicile upon the death of her husband in 1989. This is the
necessary consequence of the view that petitioners Batac dictated domicile did not continue after
her husbands death; otherwise, she would have no domicile and that will violate the universal rule
that no person can be without a domicile at any point of time. This stance also restores the right of
petitioner to choose her domicile before it was taken away by Article 110 of the Civil Code, a right
now recognized by the Family Code and protected by the Constitution. Likewise, Justice Puno cannot
see the fairness of the common law requiring petitioner to choose again her Tacloban domicile
before she could be released from her Batac domicile. She lost her Tacloban domicile not through
her act but through the act of her deceased husband when he fixed their domicile in Batac. Her
husband is dead and he cannot rule her beyond the grave. The law disabling her to choose her own
domicile has been repealed. Considering all these, common law should not put the burden on
petitioner to prove she has abandoned her dead husbands domicile. There is neither rhyme nor
reason for this gender-based burden.
6. ID.; ID.; ID.; ID.; DELIBERATE CHOICE BY WIFE MANIFEST IN CASE AT BAR. But even
assuming arguendo that there is need for convincing proof that petitioner chose to reacquire her
Tacloban domicile, still, the records reveal ample evidence to this effect. In her affidavit submitted
to the respondent COMELEC, petitioner averred among others that: "I was not permitted, however,
to live and stay in the Sto. Nio Shrine residence in Tacloban City where I wanted to stay and
reside, after repairs and renovations were completed. In August 1994, I transferred from San Jose,
Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay
and live there." It is then clear that in 1992 petitioner reestablished her domicile in the First District
of Leyte. It is not disputed that in 1992, she first lived at the house of her brother in San Jose,
Tacloban City and later, in August 1994, she transferred her residence in Barangay Olot, Tolosa,
Leyte. Both Tacloban City and the municipality of Olot are within the First District of Leyte. Since
petitioner reestablished her old domicile in 1992 in the First District of Leyte, she more than
complied with the constitutional requirement of residence." . . for a period of not less than one year
immediately preceding the day of the election," i.e., the May 8, 1995 elections.
7. POLITICAL LAW; ELECTIONS; CERTIFICATE OF CANDIDACY; AMENDMENT TO CORRECT A BONA
FIDE MISTAKE, ALLOWED AS A MATTER OF RIGHT. The amendment of a certificate of candidacy
to correct a bona fide mistake has been allowed by this Court as a matter of course and as a matter
of right. (Alialy v. COMELEC, 2 SCRA 957, 960 [1961]; Canceran v. COMELEC, 107 Phil. 607
[1960]; Gabaldon v. COMELEC , 99 Phil. 898 [1956])
8. CONSTITUTIONAL LAW; FREEDOM FROM HARASSMENT AND DISCRIMINATION OF BONA FIDE
CANDIDATES FOR PUBLIC OFFICE; RIGHT VIOLATED BY LEGAL AND EXTRA-LEGAL OBSTACLES
AGAINST CANDIDATE TO PREVENT HER FROM RUNNING. Section 10, Article IX-C of the
Constitution mandates that "bona fide candidates for any public office shall be free from any form of
harassment and discrimination." A detached reading of the records of the case at bench will show
that all forms of legal and extra-legal obstacles have been thrown against petitioner to prevent her
from running as the peoples representative in the First District of Leyte. In petitioners Answer to
the petition to disqualify her, she averred that when respondent (petitioner herein) announced that
she was intending to register as a voter in Tacloban City and run for Congress in the First District of
Leyte, petitioner (Montejo) immediately opposed her intended registration by writing a letter stating
that she is not a resident of said city but of Barangay Olot, Tolosa, Leyte. After respondent
(petitioner herein) had registered as a voter in Tolosa following completion of her six-month actual
residence therein, petitioner (Montejo) filed a petition with the COMELEC to transfer the town of
Tolosa from the First District to the Second District and pursued such move up to the Supreme
Court in G.R. No. 118702, his purpose being to remove respondent (petitioner herein) as
petitioners (Montejos) opponent in the congressional election in the First District. He also filed a
bill, along with other Leyte Congressmen, seeking to create another legislative district, to remove
the town of Tolosa out of the First District and to make it a part of the new district, to achieve his
purpose. However, such bill did not pass the Senate. Having failed on such moves, petitioner now
filed the instant petition, for the same objective, as it is obvious that he is afraid to submit himself
along with respondent (petitioner herein) for the judgment and verdict of the electorate of the First
District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995. All these
attempts to misuse our laws and legal processes are forms of rank harassments and invidious
discriminations against petitioner to deny her equal access to a public office. We cannot commit any
hermeneutic violence to the Constitution by torturing the meaning of equality, the end result of
which will allow the harassment and discrimination of petitioner who has lived a controversial life, a
past of alternating light and shadow. There is but one Constitution for all Filipinos. Petitioner cannot
be adjudged by a "different" Constitution, and the worst way to interpret the Constitution is to inject
in its interpretation, bile and bitterness.
9. POLITICAL LAW; ELECTIONS; ONE YEAR RESIDENCY REQUIREMENT; RATIONALE; CANDIDATES
LIFE TIME CONTACTS WITH FIRST DISTRICT OF LEYTE SATISFIES INTENT. In Gallego v. Vera,
we explained that the reason for this residence requirement is "to exclude a stranger or newcomer,
unacquainted with the conditions and needs of a community and not identified with the latter, from
an elective office to serve that community . . .." Petitioners lifetime contacts with the First District
of Leyte cannot be contested. Nobody can claim that she is not acquainted with its problems
because she is a stranger to the place. None can argue she cannot satisfy the intent of the
Constitution.
10. ID.; ID.; ELECTION CASES; DOMINANT CONSIDERATION IN RESOLUTION THEREOF IS THE
NEED TO EFFECTUATE WILL OF THE ELECTORATE. In resolving election cases, a dominant
consideration is the need to effectuate the will of the electorate. The election results show that
petitioner received Seventy Thousand Four Hundred Seventy-One (70,471) votes, while private
respondent got only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is
clearly the overwhelming choice of the electorate of the First District of Leyte and this is not a
sleight of statistics. We cannot frustrate this sovereign will on highly arguable technical
considerations. In case of doubt, we should lean towards a rule that will give life to the peoples
political judgment.
FRANCISCO, J., concurring opinion:
1. CIVIL LAW; DOMICILE; DEFINED. Domicile has been defined as that place in which a persons
habitation is fixed, without any present intention, of removing therefrom, and that place is properly
the domicile of a person in which he has voluntarily fixed his abode, or habitation, not for a mere
special or temporary purpose, but with a present intention of making it his permanent home (28
C.J.S. 1). It denotes a fixed permanent residence to which when absent for business, or pleasure, or
for like reasons one intends to return, and depends on facts and circumstances, in the sense that
they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)
2. ID.; ID.; CLASSIFICATIONS. Domicile is classified into domicile of origin and domicile of
choice. The law attributes to every individual a domicile of origin, which is the domicile of his
parents, or of the head of his family, or of the person on whom he is legally dependent at the time
of his birth. While the domicile of origin is generally the place where one is born or reared, it maybe
elsewhere (28 C.J.S. 5). Domicile of choice, on the other hand, is the place which the person has
elected and chosen for himself to displace his previous domicile; it has for its true basis or
foundation the intention of the person (28 C.J.S. 6). A third classification is domicile by operation of
law which attributes to a person a domicile independent of his own intention or actual residence,
ordinarily resulting from legal domestic relations, as that of the wife arising from marriage, or the
relation of a parent and a child (28 C.J.S. 7).
3. ID.; ID.; CHANGE OF DOMICILE; REQUISITES. In order to hold that a person has abandoned
his domicile and acquired a new one called domicile of choice, the following requisites must concur,
namely, (a) residence or bodily presence in the new locality, (b) intention to remain there or animus
manendi, and (c) an intention to abandon the old domicile or animus non revertendi (Romualdez v.
RTC, Br. 7, Tacloban City, 226 SCRA 408, 415).
4. POLITICAL LAW; ELECTIONS; RESIDENCE SYNONYMOUS WITH DOMICILE. In election law,
when our Constitution speaks of residence for election purposes it means domicile (Co v. Electoral
Tribunal of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651).
5. ID.; ID.; ID.; NOT ABANDONED OR LOST BY REGISTRATION OF VOTER IN A PLACE OTHER THAN
HIS PLACE OF ORIGIN. In several decisions, though, the Court has laid down the rule that
registration of a voter in a place other than his place of origin is not sufficient to constitute
abandonment or loss of such residence (Faypon v. Quirino, 96 Phil. 294, 300). Respondent
Commission offered no cogent reason to depart from this rule except to surmise petitioners intent
of abandoning her domicile of origin.
6. ID.; ID.; ID.; MARITAL DOMICILE; LOST UPON DEATH OF HUSBAND; WIFE REVERTED TO HER
ORIGINAL DOMICILE; CASE AT BAR. Tacloban, Leyte, is petitioners domicile of origin which was
involuntarily supplanted with another, i.e., Batac, Ilocos Norte, upon her marriage in 1954 with then
Congressman Marcos. By legal fiction she followed the domicile of her husband. In my view, the
reason for the law is for the spouses to fully and effectively perform their marital duties and
obligations to one another. The question of domicile, however, is not affected by the fact that it was
the legal or moral duty of the individual to reside in a given place (28 C.J.S. 11). Thus, while the
wife retains her marital domicile so long as the marriage subsists, she automatically loses it upon
the latters termination, for the reason behind the law then ceases. Otherwise, Petitioner, after her
marriage was ended by the death of her husband, would be placed in a quite absurd and unfair
situation of having been freed from all wifely obligations yet made to hold on to one which no longer
serves any meaningful purpose. It is my view therefore that petitioner reverted to her original
domicile of Tacloban, Leyte upon her husbands death without even signifying her intention to that
effect.
7. ID.; ID.; ID.; PARTY CLAIMING THAT A PERSON HAS ABANDONED OR LOST HIS RESIDENCE OF
ORIGIN MUST SHOW AND PROVE SUCH LOSS OR ABANDONMENT. It is for the private
respondent to prove, not for petitioner to disprove, that petitioner has effectively abandoned
Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear rule is that it is the
party (herein private respondent) claiming that a person has abandoned or lost his residence of
origin who must show and prove preponderantly such abandonment or loss (Faypon v. Quirino,
supra at 298; 28 C.J.S. 16), because the presumption is strongly in favor of an original or former
domicile, as against an acquired one (28 C.J.S. 16). Private respondent unfortunately failed to
discharge this burden as the record is devoid of convincing proof that petitioner has acquired,
whether voluntarily or involuntarily, a new domicile to replace her domicile of origin.
8. ID.; ID.; ID.; ONE-YEAR RESIDENCE REQUIREMENT; REQUIREMENT MET IN CASE AT BENCH.
The records, on the contrary, clearly show that petitioner has complied with the constitutional oneyear residence requirement. After her exile abroad, she returned to the Philippines in 1991 to reside
in Olot, Tolosa, Leyte, but the Presidential Commission on Good Government which sequestered her
residential house and other properties forbade her necessitating her transient stay in various places
in Manila. In 1992, she ran for the position of president writing in her certificate of candidacy her
residence as San Juan, Metro Manila. After her loss therein, she went back to Tacloban City,
acquired her residence certificate and resided with her brother in San Jose. She resided in San Jose,
Tacloban City until August of 1994 when she was allowed by the PCGG to move and reside in her
sequestered residential house in Olot, Tolosa, Leyte. It was in the same month of August when she
applied for the cancellation of her previous registration in San Juan, Metro Manila in order to
register anew as voter of Olot, Tolosa, Leyte, which she did on January 28, 1995. From this
sequence of events, I find it quite improper to use as the reckoning period of the one-year residence
requirement the date when she applied for the cancellation of her previous registration in San Juan,
Metro Manila. The fact which private respondent never bothered to disprove is that petitioner
transferred her residence after the 1992 presidential election from San Juan, Metro Manila to San
Jose, Tacloban City, and resided therein until August of 1994. She later transferred to Olot, Tolosa,
Leyte. It appearing that both Tacloban City and Tolosa, Leyte are within the First Congressional
District of Leyte, it indubitably stands that she had more than a year of residence in the
constituency she sought to be elected. Petitioner, therefore, has satisfactorily complied with the
one-year qualification required by the 1987 Constitution.
PADILLA, J., dissenting opinion:
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; COMELEC DID NOT COMMIT GRAVE
ABUSE OF DISCRETION IN DISQUALIFYING CANDIDATE FOR FAILURE TO COMPLY WITH THE ONE
YEAR RESIDENCE QUALIFICATION. The one year residence period is crucial regardless of whether
or not the term "residence" is to be synonymous with "domicile." In other words, the candidates
intent and actual presence in one district must in all situations satisfy the length of time prescribed
by the fundamental law. And this, because of a definite Constitutional purpose. He must be familiar
with the environment and problems of a district he intends to represent in Congress and the one-
year residence in said district would be the minimum period to acquire such familiarity, if not
versatility. Petitioners certificate of candidacy filed on 8 March 1995 contains the decisive
component or seed of her disqualification. It is contained in her answer under oath of "seven
months" to the query of "residence in the constituency wherein I seek to be elected immediately
preceding the election." It follows from all the above that the Comelec committed no grave abuse of
discretion in holding that petitioner is disqualified from the position of representative for the 1st
congressional district of Leyte in the elections of 8 May 1995, for failure to meet the "not less than
one-year residence in the constituency (1st district, Leyte) immediately preceding the day of
election (8 May 1995)."
2. POLITICAL LAW; ELECTIONS; DISQUALIFICATION; CANDIDATE WHO OBTAINED THE SECOND

HIGHEST NUMBER OF VOTES CAN NOT BE DECLARED WINNER OF ELECTIVE OFFICE WHERE
CANDIDATE WHO OBTAINED THE HIGHEST NUMBER OF VOTES IS DECLARED DISQUALIFIED OR
NOT ELIGIBLE FOR OFFICE. 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. (Labo v. Comelec, G.R. 86564, August 1, 1989,
176 SCRA 1)
3. ID.; ID.; REPUBLIC ACT NO. 6646 (AN ACT INTRODUCING REFORMS IN THE ELECTORAL SYSTEM
AND FOR OTHER PURPOSES); VOTES CAST FOR A CANDIDATE DECLARED DISQUALIFIED BY FINAL
JUDGMENT SHALL NOT BE COUNTED; CANDIDATE WHO OBTAINED THE SECOND HIGHEST NUMBER
OF VOTES WHERE THE WINNING CANDIDATE IS DECLARED DISQUALIFIED DEEMED THE WINNER.
Under Sec. 6 of RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for
other purposes) (84 O.G. 905, 22 February 1988) it is provided that: . . . 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. The law is clear that in all situations, the votes cast for a disqualified candidate
SHALL NOT BE COUNTED. The law has also validated the jurisdiction of the Court or Commission on
Election to continue hearing the petition for disqualification in case a candidate is voted for and
receives the highest number of votes, if for any reason, he is not declared by final judgment before
an election to be disqualified. 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 f 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 reexamine 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. ACCORDINGLY, I vote to DISMISS the petition and to
order the Provincial Board of Canvassers of Leyte to proclaim the candidate receiving the highest
number of votes, from among the qualified candidates, as the duly elected representative of the 1st
district of Leyte.
REGALADO, J., dissenting opinion:
1. CIVIL LAW; DOMICILE; DOMICILE OF ORIGIN; CONSTRUED. The domicile of the parents at the
time of birth, or what is termed the "domicile of origin," constitutes the domicile of an infant until
abandoned, or until the acquisition of a new domicile in a different place.
2. ID.; ID.; KINDS. Domicile is said to be of three kinds, that is, domicile by birth, domicile by
choice, and domicile by operation of law. The first is the common case of the place of birth or
domicilium originis; the second is that which is voluntarily acquired by a party or domicilium proprio
motu; the last which is consequential, as that of a wife arising from marriage, is sometimes called
domicilium necesarium.
3. ID.; ID.; DOMICILE BY OPERATION OF LAW; ACQUIRED BY MARRIAGE. When petitioner
contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only international or
American but of our own enactment, she acquired her husbands domicile of origin in Batac, Ilocos
Norte and correspondingly lost her own domicile of origin in Tacloban City.
4. ID.; ID.; REQUISITES FOR CHANGE OF DOMICILE. To successfully effect a change of domicile,
one must demonstrate (a) an actual removal or an actual change of domicile, (b) a bona fide
intention of abandoning the former place of residence and establishing a new one, and (c) acts
which correspond with the purpose.
5. ID.; ID.; ONCE LOST CAN BE RECOVERED IN ACCORDANCE WITH LAW; NO AUTOMATIC
REVERSION OR REACQUISITION OF DOMICILE. Domicile once lost in accordance with law can
only be recovered likewise in accordance with law. However, we are here being titillated with the
possibility of an automatic reversion to or reacquisition of a domicile of origin after the termination
of the cause for its loss by operation of law. The majority agrees that since petitioner lost her
domicile of origin by her marriage, the termination of the marriage also terminates that effect
thereof. I am impressed by the ingeniousness of this theory which proves that, indeed, necessity is
the mother of inventions. Regretfully, I find some difficulty in accepting either the logic or the
validity of this argument.
6. ID.; ID.; VOLUNTARY ABANDONMENT OF DOMICILE DOES NOT AUTOMATICALLY RESTORE
DOMICILE OF ORIGIN. If a party loses his domicile of origin by obtaining a new domicile of
choice, he thereby voluntarily abandons the former in favor of the latter. If, thereafter, he abandons
that chosen domicile, he does not per se recover his original domicile unless, by subsequent acts
legally indicative thereof, he evinces his intent and desire to establish the same as his new domicile,
which is precisely what petitioner belatedly and, evidently just for purposes of her candidacy,
unsuccessfully tried to do. Ones subsequent abandonment of his domicile of choice cannot
automatically restore his domicile of origin, not only because there is no legal authority therefor but
because it would be absurd. Pursued to its logical consequence, that theory of ipso jure reversion
would rule out the fact that said party could already very well have obtained another domicile,
either of choice or by operation of law, other than his domicile of origin. Significantly and obviously
for this reason, the Family Code, which the majority inexplicably invokes, advisedly does not
regulate this contingency since it would impinge on ones freedom of choice.
7. ID.; ID.; ID.; CASE AT BAR. In the instant case, petitioner not only voluntarily abandoned her
domicile of choice (unless we assume that she entered into the marital state against her will) but,
on top of that, such abandonment was further affirmed through her acquisition of a new domicile by
operation of law. In fact, this is even a case of both voluntary and legal abandonment of a domicile
of origin. With much more reason, therefore, should we reject the proposition that with the
termination of her marriage in 1989, petitioner had supposedly per se and ipso facto reacquired her
domicile of origin which she lost in 1954. Otherwise, this would be tantamount to saying that during
the period of marital coverture, she was simultaneously in possession and enjoyment of a domicile
of origin which was only in a state of suspended animation.
8. ID.; ID.; DOMICILE BY OPERATION OF LAW; AFTER THE HUSBANDS DEATH, THE WIFE HAS THE
RIGHT TO ELECT HER OWN DOMICILE. The American rule is likewise to the effect that while after
the husbands death the wife has the right to elect her own domicile, she nevertheless retains the
last domicile of her deceased husband until she makes an actual change. In the absence of
affirmative evidence, to the contrary, the presumption is that a wifes domicile or legal residence
follows that of her husband and will continue after his death.
9. ID.; FAMILY CODE; RIGHT AND POWER TO FIX FAMILY HOME CAN NOT AFFECT DOMICILE FIXED
BY LAW. I cannot appreciate the premises advanced in support of the majoritys theory based on
Articles 68 and 69 of the Family Code. All that is of any relevance therein is that under this new
code, the right and power to fix the family domicile is now shared by the spouses. I cannot perceive
how that joint right, which in the first place was never exercised by the spouses, could affect the
domicile fixed by the law for petitioner in 1954 and, for her husband, long prior thereto. It is true
that a wife now has the coordinate power to determine the conjugal or family domicile, but that has
no bearing on this case. With the death of her husband, and each of her children having gotten
married and established their own respective domiciles, the exercise of that joint power was and is
no longer called for or material in the present factual setting of this controversy. Instead, what is of
concern in petitioners case was the matter of her having acquired or not her own domicile of
choice.
10. POLITICAL LAW; ELECTIONS; ONE YEAR RESIDENCY REQUIREMENT; NOT MET BY
CANDIDATES RESIDENCY FOR SEVEN (7) MONTHS IMMEDIATELY PRECEDING ELECTION;
PREVIOUS RESIDENCY AT DOMICILE OF ORIGIN NOT COUNTED WHERE THE SAME WAS LOST DUE
TO MARRIAGE AND NOT REACQUIRED AFTER HUSBANDS DEATH. In sum, petitioner having lost
Tacloban City as her domicile of origin since 1954 and not having automatically reacquired any
domicile therein, she cannot legally claim that her residency in the political constituency of which it
is a part continued since her birth up to the present. Respondent commission was, therefore, correct
in rejecting her pretension to that effect in her amended/corrected certificate of candidacy, and in
holding her to her admission in the original certificate that she had actually resided in that
constituency for only seven months prior to the election.
DAVIDE, JR., J., dissenting opinion:
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; PROPER REMEDY FROM A DECISION,
ORDER OR RULING OF THE COMELEC. Under Section 7, Subdivision A, Article IX of the
Constitution, decisions, orders, or rulings of the COMELEC may be brought to this Court only by the
special civil action for certiorari under Rule 65 of the Rules of Court (Aratuc v. COMELEC , 88 SCRA
251 [1979]; Dario v. Mison, 176 SCRA 84 [1989]).
2. ID.; ID.; ID.; ID.; WRIT OF, CERTIORARI; MAY BE GRANTED ONLY IN ABSENCE OR EXCESS OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION. A writ of certiorari may be granted only
if the COMELEC has acted without or in excess of jurisdiction or with grave abuse of discretion
(Section 1, Rule 65, Rules of Court).
3. ID.; ID.; ID.; ID.; ID.; ID.; CASE AT BENCH, NOT A CASE FOR ISSUANCE OF WRIT. Since the
COMELEC has, undoubtedly, jurisdiction over the private respondents petition, the only issue left is
whether it acted with grave abuse of discretion in disqualifying the petitioner. My careful and
meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC Second Division
and the En Banc resolution of 7 May 1995 discloses total absence of abuse of discretion, much less
grave abuse thereof. The resolution of the Second Division dispassionately and objectively discussed
in minute details the facts which established beyond cavil that herein petitioner was disqualified as a
candidate on the ground of lack of residence in the First Congressional District of Leyte. It has not
misapplied, miscomprehended, or misunderstood facts or circumstances of substance pertinent to
the issue of her residence.
4. POLITICAL LAW; ELECTIONS; DOMICILE; LOSS OR ABANDONMENT THEREOF IN CASE AT BAR.
I respectfully submit that the petitioner herself has provided the COMELEC, either by admission
or by documentary evidence, overwhelming proof of the loss or abandonment of her domicile of
origin, which is Tacloban City and not Tolosa, Leyte. Assuming that she decided to live again in her
domicile of origin, that became her second domicile of choice, where her stay, unfortunately, was
for only seven months before the day of the election. She was then disqualified to be a candidate
for the position of Representative of the First Congressional District of Leyte. A holding to the
contrary would be arbitrary.
5. ID.; ID.; ID.; DOMICILE OF CHOICE LOST BY OPERATION OF LAW BY MARRIAGE. It may
indeed be conceded that the petitioners domicile of choice was either Tacloban City or Tolosa,
Leyte. Nevertheless, she lost it by operation of law sometime in May 1954 upon her marriage to the
then Congressman (later, President) Ferdinand E. Marcos. A domicile by operation of law is that
domicile which the law attributes to a person, independently of his own intention or actual
residence, as results from legal domestic relations as that of the wife arising from marriage (28
C.J.S. Domicile 7, 11). Under the governing law then, Article 110 of the Civil Code, her new domicile
or her domicile of choice was the domicile of her husband, which was Batac, Ilocos Norte. Under
common law, a woman upon her marriage loses her own domicile and, by operation of law, acquires
that of her husband, no matter where the wife actually lives or what she believes or intends. Her
domicile is fixed in the sense that it is declared to be the same as his, and subject to certain
limitations, he can change her domicile by changing his own (25 Am Jur 2d Domicile 48, 37).
6. CIVIL LAW; FAMILY CODE; FAMILY DOMICILE; FIXING THEREOF, A JOINT DECISION OF
SPOUSES. It must, however, be pointed out that under Article 69 of the Family Code, the fixing
of the family domicile is no longer the sole prerogative of the husband, but is now a joint decision of
the spouses, and in case of disagreement the court shall decide. The said article uses the term
"family domicile," and not family residence, as "the spouses may have multiple residences, and the
wife may elect to remain in one of such residences, which may destroy the duty of the spouses to
live together and its corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code
of the Philippines, [1988], 102).
7. ID.; DOMICILE, DOMICILE BY OPERATION OF LAW; DEATH OF HUSBAND REVIVES POWER OF
WIFE TO ACQUIRE HER OWN DOMICILE; NO AUTOMATIC RESTORATION OF WOMANS DOMICILE
OF ORIGIN. The theory of automatic restoration of a womans domicile of origin upon the death
of her husband, which the majority opinion adopts to overcome the legal effect of the petitioners
marriage on her domicile, is unsupported by law and by jurisprudence. The settled doctrine is that
after the husbands death the wife has a right to elect her own domicile, but she retains the last
domicile of her husband until she makes an actual change (28 C.J.S. Domicile 12, 27). Or on the
death of the husband, the power of the wife to acquire her own domicile is revived, but until she
exercises the power her domicile remains that of the husband at the time of his death (25 Am Jur
2d Domicile 62, 45). Note that what is revived is not her domicile of origin but her power to acquire
her own domicile.
8. ID.; ID.; LOSS OF DOMICILE; MARRIAGE, NOT A GROUND. I find to be misplaced the reliance
by the majority opinion on Faypon v. Quirino (96 Phil. 294 [1954]), and the subsequent cases which
established the principle that absence from original residence or domicile of origin to pursue studies,
practice ones profession, or engage in business in other states does not constitute loss of such
residence or domicile. So is the reliance on Section 117 of the Omnibus Election Code which
provides that transfer of residence to any other place by reason of ones "occupation; profession;
employment in private and public service; educational activities; work in military or naval
reservations; service in the army, navy or air force, the constabulary or national police force; or
confinement or detention in government institutions in accordance with law" is not deemed as loss
of original residence. Those cases and legal provision do not include marriage of a woman. The
reason for the exclusion is, of course, Article 110 of the Civil Code. If it were the intention of this
Court or of the legislature to consider the marriage of a woman as a circumstance which would not
operate as an abandonment of domicile (of origin or of choice), then such cases and legal provision
should have expressly mentioned the same.
9. ID.; ID.; ABANDONMENT THEREOF IN CASE AT BENCH. This Court should not accept as gospel
truth the self-serving claim of the petitioner in her affidavit that her "domicile or residence of origin
is Tacloban City," and that she "never intended to abandon this domicile or residence of origin to
which [she] always intended to return whenever absent." Such a claim of intention cannot prevail
over the effect of Article 110 of the Civil Code. Besides, the facts and circumstances or the
vicissitudes of the petitioners life after her marriage in 1954 conclusively establish that she had
indeed abandoned her domicile of origin and had acquired a new one animo et facto (KOSSUTH
KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326).
10. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; SELF-SERVING STATEMENT,
WITHOUT PROBATIVE VALUE. Neither should this Court place complete trust on the petitioners
claim that she "merely committed an honest mistake" in writing down the word "seven" in the space
provided for the residency qualification requirement in the certificate of candidacy. Such a claim is
self-serving and, in the light of the foregoing disquisitions, would be all sound and fury signifying
nothing. To me, she did not commit any mistake, honest or otherwise; what she stated was the
truth.
11. ID.; ID.; BURDEN OF PROOF; ONE WHO ASSERTS A FACT HAS THE BURDEN OF PROVING IT.
The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the
affirmative of an issue has the burden of proving it (Imperial Victory Shipping Agency v. NLRC , 200
SCRA 178 [1991]; P.T. Cerna Corp. v. Court of Appeals, 221 SCRA 19 [1993]). Having admitted
marriage to the then Congressman Marcos, the petitioner could not deny the legal consequence
thereof on the change of her domicile to that of her husband. The majority opinion rules or at least
concludes that" [b]y operation of law (domicilium necesarium), her legal domicile at the time of her
marriage automatically became Batac, Ilocos Norte." That conclusion is consistent with Article 110
of the Civil Code. Since she is presumed to retain her deceased husbands domicile until she
exercises her revived power to acquire her own domicile, the burden is upon her to prove that she
has exercised her right to acquire her own domicile. She miserably failed to discharge that burden.
ROMERO, J., separate opinion:
POLITICAL LAW; ELECTIONS; RESIDENCE; DOMICILE BY OPERATION OF LAW; WIDOW NO LONGER

BOUND BY THE DOMICILE OF THE DEPARTED HUSBAND; WIDOW MAY CHOOSE DOMICILE; ONE
YEAR RESIDENCE REQUIREMENT, MET IN CASE AT BAR. Bearing in mind that the term "resident"
has been held to be synonymous with "domicile" for election purposes, it is important to determine
whether petitioners domicile was in the First District of Leyte and if so, whether she had resided
there for at least a period of one year. Undisputed is her domicile of origin, Tacloban, where her
parents lived at the time of her birth. Depending on what theory one adopts, the same may have
been changed when she married Ferdinand E. Marcos, then domiciled in Batac, by operation of law.
Assuming it did, his death certainly released her from the obligation to live with him at the
residence fixed by him during his lifetime. What may confuse the layman at this point is the fact
that the term "domicile" may refer to "domicile of origin," "domicile of choice," or "domicile by
operation of law," which subject we shall not belabor since it has been amply discussed by the
ponente and in the other separate opinions. A widow, like the petitioner and others similarly
situated, can no longer be bound by the domicile of the departed husband, if at all she was before.
Neither does she automatically revert to her domicile of origin, but exercising free will, she may opt
to reestablish her domicile of origin. In returning to Tacloban and subsequently, to Barangay Olot,
Tolosa, both of which are located in the First District of Leyte, petitioner amply demonstrated by
overt acts, her election of a domicile of choice, in this case, a reversion to her domicile of origin.
Added together, the time when she set up her domicile in the two places sufficed to meet the oneyear requirement to run as Representative of the First District of Leyte.
VITUG, J., separate opinion:
1. CONSTITUTIONAL LAW; CONSTITUTIONAL PROVISIONS, GENERALLY MANDATORY IN

CHARACTER. 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 v.
Cruz, 121 SCRA 51).
2. ID.; COMELEC.; WITH JURISDICTION OVER PRE-PROCLAMATION CONTROVERSIES. 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 of candidates to an elective office. Indeed, pre-proclamation
controversies are expressly placed under the COMELECs jurisdiction to hear and resolve (Art. IX, C,
Sec. 3, Constitution).
3. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT ON THE OBSERVANCE OF ONE-YEAR
RESIDENCY REQUIREMENT OF THE COMELEC, GENERALLY UPHELD ON APPEAL. 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. 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.
4. CIVIL LAW; DOMICILE; PLACE OF HABITUAL RESIDENCE. 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).
5. POLITICAL LAW; ELECTIONS; DOMICILE SYNONYMOUS WITH RESIDENCE. 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. . . . (Romualdez v. Regional Trial Court, Branch
7, Tacloban City [226 SCRA 408, 409])
6. ID.; ID.; ID.; ELEMENTS FOR CHANGE OF DOMICILE. 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
be animus 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.
7. CONSTITUTIONAL LAW; COMELEC; ITS JURISDICTION ENDS WHEN JURISDICTION OF
ELECTORAL TRIBUNAL BEGINS. The COMELECs 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.
8. ID.; ID.; PROCLAMATION OF CANDIDATE, NOT A MINISTERIAL FUNCTION. 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.
9. POLITICAL LAW; ELECTIONS; CANDIDATE WHO OBTAINED THE SECOND HIGHEST NUMBER OF
VOTES NOT NECESSARILY ENTITLED TO BE DECLARED WINNER OF ELECTIVE OFFICE WHERE
CANDIDATE WHO OBTAINED THE HIGHEST NUMBER OF VOTES IS LATER DECLARED DISQUALIFIED
OR NOT ELIGIBLE. 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. 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 v. Paredes (23 Phil.
238 [1912]) which, although later abandoned in Ticzon v. Comelec (103 SCRA 687 [1981]), and
Santos v. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case of Geronimo
v. 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 v. 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).
MENDOZA, J., separate opinion:
1. CONSTITUTIONAL LAW; COMELEC; WITHOUT POWER TO DISQUALIFY CANDIDATE FOR LACK OF

ELIGIBILITY. In my view the issue in this case is whether the Commission on Elections has the
power to disqualify candidates on the ground that they lack eligibility for the office to which they
seek to be elected. I think that it has none and that the qualifications of candidates may be
questioned only in the event they are elected, by filing a petition for quo warranto or an election
protest in the appropriate forum, not necessarily in the COMELEC but, as in this case, in the House
of Representatives Electoral Tribunal. That the parties in this case took part in the proceedings in
the COMELEC is of no moment. Such proceedings were unauthorized and were not rendered valid
by their agreement to submit their dispute to that body. To be sure, there are provisions
denominated for "disqualification," but they are not concerned with a declaration of the ineligibility
of a candidate. These provisions are concerned with the incapacity (due to insanity, incompetence
or conviction of an offense) of a person either to be a candidate or to continue as a candidate for
public office. There is also a provision for the denial or cancellation of certificates of candidacy, but
it applies only to cases involving false representations as to certain matters required by law to be
stated in the certificates.
2. POLITICAL LAW; ELECTION LAWS; ABSENCE OF PROVISION FOR PRE-PROCLAMATION CONTEST
BASED ON INELIGIBILITY. The various election laws will be searched in vain for authorized
proceedings for determining a candidates qualifications for an office before his election. There are
none in the Omnibus Election Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987 (R.A. No.
6646), or in the law providing for synchronized elections (R.A. No. 7166). There are, in other words,
no provisions for pre-proclamation contests but only election protests or quo warranto proceedings
against winning candidates.

3. ID.; ID.; ID.; REASONS. Three reasons may be cited to explain the absence of an authorized
proceeding for determining before election the qualifications of a candidate. First is the fact that
unless a candidate wins and is proclaimed elected, there is no necessity for determining his
eligibility for the office. Second is the fact that the determination of a candidates eligibility, e.g., his
citizenship or, as in this case, his domicile, may take a long time to make, extending beyond the
beginning of the term of the office. Third is the policy underlying the prohibition against preproclamation cases in elections for President, Vice President, Senators and members of the House of
Representatives. (R.A. No. 7166, 15) The purpose is to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of
the election, returns and qualifications of members of Congress or of the President and Vice
President, as the case may be. By providing in 253 for the remedy of quo warranto for determining
an elected officials qualifications after the results of elections are proclaimed, while being
conspicuously silent about a pre-proclamation remedy based on the same ground, the Omnibus
Election Code, or OEC, by its silence underscores the policy of not authorizing any inquiry into the
qualifications of candidates unless they have been elected.
4. ID.; ID.; PETITION TO DISQUALIFY CANDIDATE FOR INELIGIBILITY FALLS WITHIN THE
JURISDICTION OF ELECTORAL TRIBUNAL. Montejos petition before the COMELEC was not a
petition for cancellation of certificate of candidacy under 78 of the Omnibus Election Code, but
essentially a petition to declare private respondent ineligible. It is important to note this, because,
as will presently be explained, proceedings under 78 have for their purpose to disqualify a person
from being a candidate, whereas quo warranto proceedings have for their purpose to disqualify a
person from holding public office. Jurisdiction over quo warranto proceedings involving members of
the House of Representatives is vested in the Electoral Tribunal of that body.
5. REMEDIAL LAW; SUPREME COURT; QUO WARRANTO; QUALIFICATION OF CANDIDATE PASSED
UPON ONLY AFTER PROCLAMATION OF CANDIDATE. In the only cases in which this Court dealt
with petitions for the cancellation of certificates of candidacy, the allegations were that the
respondent candidates had made false representations in their certificates of candidacy with regard
to their citizenship, age, or residence. But in the generality of cases in which this Court passed upon
the qualifications of respondents for office, this Court did so in the context of election protests or
quo warranto proceedings filed after the proclamation of the respondents or protestees as winners.
6. POLITICAL, LAW; ELECTIONS; ABSENCE OF PROVISION FOR PRE-PROCLAMATION CONTESTS
BASED ON INELIGIBILITY; CANNOT BE SUPPLIED BY A MERE RULE OF THE COMELEC. The lack of
provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule.
Such an act is equivalent to the creation of a cause of action which is a substantive matter which
the COMELEC, in the exercise of its rulemaking power under Art. IX, 6 of the Constitution, cannot
do. It is noteworthy that the Constitution withholds from the COMELEC even the power to decide
cases involving the right to vote, which essentially involves an inquiry into qualifications based on
age, residence and citizenship of voters. (Art. IX-C, 2(3))
7. ID.; ID.; DISQUALIFICATION PROCEEDINGS DIFFERENTIATED FROM DECLARATION OF
INELIGIBILITY. The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into
grounds for disqualification is contrary to the evident intention of the law. For not only in their
grounds but also in their consequences are proceedings for "disqualification" different from those for
a declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on
grounds specified in Sections 12 and 68 of the Omnibus Election Code and in 40 of the Local
Government Code and are for the purpose of barring an individual from becoming a candidate or
from continuing as a candidate for public office. In a word, their purpose is to eliminate a candidate
from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to
the lack of the qualifications prescribed in the Constitution or the statutes for holding public office
and the purpose of the proceedings for declaration of ineligibility is to remove the incumbent from
office.
8. ID.; ID.; POSSESSION OF QUALIFICATIONS FOR PUBLIC OFFICE DOES NOT IMPLY THAT
CANDIDATE IS NOT DISQUALIFIED. That an individual possesses the qualifications for a public
office does not imply that he is not disqualified from becoming a candidate or continuing as a
candidate for a public office and vice versa. We have this sort of dichotomy in our Naturalization
Law. (C.A. No. 473) That an alien has the qualifications prescribed in 2 of the law does not imply
that he does not suffer from any of disqualifications provided in 4.

9. ID.; ID.; DISQUALIFICATION PROCEEDINGS BASED ON INELIGIBILITY; ELECTION PROTEST OR
ACTION FOR QUO WARRANTO, PROPER REMEDY. To summarize, the declaration of ineligibility of
a candidate may only be sought in an election protest or action for quo warranto filed pursuant to
253 of the Omnibus Election Code within 10 days after his proclamation. With respect to elective
local officials (e. g., Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.)
such petition must be filed either with the COMELEC, the Regional Trial Courts, or Municipal Trial
Courts, as provided in Art. IX-C, 2(2) of the Constitution. In the case of the President and Vice
President, the petition must be filed with the Presidential Electoral Tribunal (Art. VII, 4, last
paragraph), and in the case of the Senators, with the Senate Electoral Tribunal, and in the case of
Congressmen, with the House of Representatives Electoral Tribunal. (Art. VI, 17) There is greater
reason for not allowing before the election the filing of disqualification proceedings based on alleged
ineligibility in the case of candidates for President, Vice President, Senators and members of the
House of Representatives, because of the same policy prohibiting the filing of pre-proclamation
cases against such candidates.
10. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; COMELEC WITHOUT JURISDICTION TO
ASSUME DISQUALIFICATION OF CANDIDATE BASED ON INELIGIBILITY. For these reasons, I am
of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009; that its proceedings in
that case, including its questioned orders, are void; and that the eligibility of petitioner Imelda
Romualdez-Marcos for the office of Representative of the First District of Leyte may only be inquired
into by the HRET. Accordingly, I vote to grant the petition and to annul the proceedings of the
Commission on Elections in SPA No. 95-009, including its questioned orders dated April 24, 1995,
May 7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner Imelda Romualdez-Marcos
ineligible and ordering her proclamation as Representative of the First District of Leyte suspended.
To the extent that Rule 25 of the COMELEC Rules of Procedure authorizes proceedings for the
disqualification of candidates on the ground of ineligibility for the office, it should be considered
void.
DECISION
KAPUNAN, J.:
A constitutional provision should be construed as to give it effective operation and suppress the
mischief at which it is aimed. 1 The 1987 Constitution mandates that an aspirant for election to the
House of Representatives be "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 election." 2 The
mischief which this provision reproduced verbatim from the 1973 Constitution seeks to prevent
is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a
community and not identified with the latter, from an elective office to serve that community." 3
Petitioner, Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of
Representative of the First District of Leyte with the Provincial Election Supervisor on March 8,
1995, providing the following information in item no. 8: 4
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE
ELECTION: ______ Years and seven Months
On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the
First District of Leyte and a candidate for the same position, filed a "Petition for Cancellation and
Disqualification" 5 with the Commission on Elections alleging that petitioner did not meet the
constitutional requirement for residency. In his petition, private respondent contended that Mrs.
Marcos lacked the Constitutions one year residency requirement for candidates to the House of
representatives on the evidence of declarations made by her in Voter Registration Record 94-No.
3349772 6 and in her Certificate of Candidacy. He prayed that "an order be issued declaring
(petitioner) disqualified and canceling the certificate of candidacy." 7
On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the
entry "seven" months to "since childhood" in item no. 8 of the amended certificate. 8 On the same
day, the Provincial Election Supervisor of Leyte informed petitioner that:
[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the ground
that it is filed out of time, the deadline for the filing of the same having already lapsed on March 20,
1995. The Corrected/Amended Certificate of Candidacy should have been filed on or before the
March 20, 1995 deadline. 9
Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELECs
Head Office in Intramuros, Manila on March 31, 1995. Her Answer to private respondents petition in
SPA No. 95-009 was likewise filed with the head office on the same day. In said Answer, petitioner
averred that the entry of the word "seven" in her original Certificate of Candidacy was the result of
an "honest misinterpretation" 10 which she sought to rectify by adding the words "since childhood"
in her Amended Corrected Certificate of Candidacy and that "she has always maintained Tacloban
City as her domicile or residence." 11 Impugning respondents motive in filling the petition seeking
her disqualification, she noted that:
When respondent (petitioner herein,) announced that she was intending to register as a voter in
Tacloban City and run for Congress in the First District of Leyte, petitioner immediately opposed her
intended registration by writing a letter stating that she is not a resident of said city but of
Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter in Tolosa following
completion of her six month actual residence therein, petitioner filed a petition with the COMELEC to
transfer the town of Tolosa from the First District to the Second District and pursued such a move
up to the Supreme Court, his purpose being to remove respondent as petitioners opponent in the
congressional election in the First District. He also filed a bill, along with other Leyte Congressmen,
seeking the creation of another legislative district to remove the town of Tolosa out of the First
District, to achieve his purpose. However, such bill did not pass the Senate. Having failed on such
moves, petitioner now filed the instant petition for the same objective, as it is obvious that he is
afraid to submit along with respondent for the judgment and verdict of the lectorate of the First
District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995. 12
On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2
to 1, 13 came up with a Resolution 1) finding private respondent Petitions for Disqualification in
SPA 95-009 meritorious; 2) striking petitioners Corrected/Amended Certificate of Candidacy March
31, 1995; and 3) canceling her original Certificate Candidacy. 14 Dealing with two primary issues,
namely, the validity of amending the original Certificate of Candidacy after the lapse of the deadline
for filing certificates of candidacy, and petitioners compliance with the one year residency
requirement, the Second Division held:
"Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months)
was a result of an "honest misinterpretation or honest mistake" on her part and, therefore, an
amendment should subsequently be allowed. She averred that she thought that what was asked
was her "actual and physical" presence in Tolosa and not residence of origin or domicile in the First
Legislative District, to which she could have responded "since childhood." In an accompanying
affidavit, she stated that her domicile is Tacloban City, a component of the First District, to which
she always intended to return whenever absent and which she has never abandoned. Furthermore,
in her memorandum, she tried to discredit petitioners theory of disqualification by alleging that she
has been a resident of the First Legislative District of Leyte since childhood, although she only
became a resident of the Municipality of Tolosa for seven months. She asserts that she has always
been a resident of Tacloban City, a component of the First District, before coming to the Municipality
of Tolosa.
Along this point, it is interesting to note that prior to her registration in Tolosa, respondent
announced that she would be registering in Tacloban City so that she can be a candidate for the
District. However, this intention was rebuffed when petitioner wrote the Election Officer of Tacloban
not to allow respondent since she is a resident of Tolosa and not Tacloban. She never disputed this
claim and instead implicitly acceded to it by registering in Tolosa.
This incident belies respondents claim of honest misinterpretation or honest mistake. Besides, the
Certificate of Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she was quite
aware of residence of origin which she interprets to be Tacloban City, it is curious why she did not
cite Tacloban City in her Certificate of Candidacy. Her explanation that she thought what was asked
was her actual and physical presence in Tolosa is not easy toto believe because there is none in the
question that insinuates about Tolosa. In fact, item no. 8 in the Certificate of Candidacy speaks
clearly of Residency in the CONSTITUENCY where I seek to be elected immediately preceding the
election. thus, the explanation of respondent, fails to be persuasive.
From the foregoing, respondents defense of an honest mistake or misinterpretation, therefore, is
devoid of merit.
To further buttress respondents contention that an amendment may be made, she cited the case of
Alialy v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is misplaced. The
case only applies to the inconsequential deviations which cannot affect the result of the election, or
deviations from provisions intended primarily to secure timely and orderly conduct of elections. The
Supreme Court in that case considered the amendment only as a matter of form. But in the instant
case, the amendment cannot be considered as a matter of form or an inconsequential deviation.
The change in the number of years of residence in the place where respondent seeks to be elected
is a substantial matter which determines her qualification as a candidacy, specially those intended
to suppress, accurate material representation in the original certificate which adversely affects the
filer. To admit the amended certificate is to condone the evils brought by the shifting minds of
manipulating candidate, to the detriment of the integrity of the election.
Moreover, to allow respondent to change the seven (7) month period of her residency in order to
prolong it by claiming it was since childhood is to allow an untruthfulness to be committed before
this Commission. The arithmetical accuracy of the 7 months residency the respondent indicated in
her certificate of candidacy can be gleaned from her entry in her Voters Registration Record
accomplished on January 28, 1995 which reflects that she is a resident of Brgy Olot, Tolosa, Leyte
for 6 months at the time of the said registration (Annex A, Petition). Said accuracy is further
buttressed by her letter to the election officer of San Juan, Metro Manila, dated August 24, 1994,
requesting for the cancellation of her registration in the Permanent List of Voters thereat so that she
can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The dates of these three (3)
different documents show the respondents consistent conviction that she has transferred her
residence to Olot, Tolosa, Leyte from Metro Manila only for such limited period of time, starting in
the last week of August 1994 which on March 8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to believe in the respondents contention that it was
an error.
x
Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be admitted by this
Commission.
x
Anent the second issue, and based on the foregoing discussion, it is clear that respondent has not
complied with the one year residency requirement of the Constitution.
In election cases, the term residence has always been considered as synonymous with domicile
which imports not only the 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.
(Perfecto Faypon v. Eliseo Quirino, 96 Phil 294; Romualdez v. RTC-Tacloban, 226 SCRA 408). In
respondents case, when she returned to the Philippines in 1991, the residence she chose was not
Tacloban but San Juan, Metro Manila. Thus, her animus revertendy is pointed to Metro Manila and
not Tacloban.
This Division is aware that her claim that she has been a resident of the First District since childhood
is nothing more than to give her a color of qualification where she is otherwise constitutionally
disqualified. It cannot hold ground in the face of the facts admitted by the respondent in her
affidavit. Except for the time that she studied and worked for some years after graduation in
Tacloban City, she continuously lived in Manila. In 1959, after her husband was elected Senator,
she lived and resided in San Juan, Metro Manila where she was a registered voter. In 1965, she
lived in. San Miguel, Manila where she was again a registered voter. In 1978, she served as
member of the Batasang Pambansa as the representative of the City of Manila and later on served
as the Governor of Metro Manila. She could not have served these positions if she had not been a
resident of the City of Manila. Furthermore, when she filed her certificate of candidacy for the office
of the President in 1992, she claimed to be a resident of San Juan, Metro Manila. As a matter of fact
on August 24, 1994, respondent wrote a letter with the election officer of San Juan, Metro Manila
requesting for the cancellation of her registration in the permanent list of voters that she may be reregistered or transferred to Barangay Olot, Tolosa, Leyte. These facts manifest that she could not
have been a resident of Tacloban City since childhood up to the time she filed her certificate of
candidacy because she became a resident of many places, including Metro Manila. This debunks her
claim that prior to her residence in Tolosa, Leyte, she was a resident of the First Legislative District
of Leyte since childhood.
In this case, respondents conduct reveals her lack of intention to make Tacloban her domicile. she
registered as a voter in different places and on a several occasion declared that she was a resident
of Manila. Although she spent her school days in Tacloban, she is considered to have abandoned
such place when she chose to stay and reside in other different places. In the case of Romualdez v.
RTC (226 SCRA 408) the Court explained how one acquires a new domicile by choice. There must
concur: (1) residence or bodily presence in the new locality; (2) intention to remain there; and (3)
intention to abandon the old domicile. In other words there must basically be animus manendi with
animus non revertendi. When respondent chose to stay in Ilocos and later on in Manila, coupled
with her intention to stay there by registering as a voter there and expressly declaring that she is a
resident of that place, she is deemed to have abandoned Tacloban City, where she spent her
childhood and school days, as her place of domicile.
Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative of
such intention. Respondents statements to the effect that she has always intended to return to
Tacloban, without the accompanying conduct to prove that intention, is not conclusive of her choice
of residence. Respondent has not presented any evidence to show that her conduct, one year prior
the election, showed intention to reside in Tacloban. Worse, what was evident was that prior to her
residence in Tolosa, she had been a resident of Manila.
It is evident from these circumstances that she was not a resident of the First District of Leyte
"since childhood."
To further support the assertion that she could have not been a resident of the First District of Leyte
for more than one year, petitioner correctly pointed out that on January 28, 1995; respondent
registered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so she placed in her Voter
Registration Record that she resided in the municipality of Tolosa for a period of six months. This
may be inconsequential as argued by the respondent since it refers only to her residence in Tolosa,
Leyte. But her failure to prove that she was a resident of the First District of Leyte prior to her
residence in Tolosa leaves nothing but a convincing proof that she had been a resident of the district
for six months only." 15
In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied
petitioners Motion for Reconsideration 16 of the April 24 1995 Resolution declaring her not qualified
to run for the position of Member of the House of Representatives for the First Legislative District of
Leyte. 17 The Resolution tersely stated:
After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it, no new
substantial matters having been raised therein to warrant re-examination of the resolution granting
the petition for disqualification. 18
On May 11, 1995, the COMELEC issued a Resolution allowing petitioners proclamation should the
results of the canvass show that she obtained the highest number of votes in the congressional
elections in the First District of Leyte. On the same day, however, the COMELEC reversed itself and
issued a second Resolution directing that the proclamation of petitioner be suspended in the event
that she obtains the highest number of votes. 19
In a Supplemental Petition dated 25 May, 1995, petitioner averred that she was the overwhelming
winner of the elections for the congressional seat in the First District of Leyte held May 8, 1995
based on the canvass completed by the Provincial Board of Canvassers on May 14, 1995. Petitioner
alleged that the canvass showed that she obtained a total of 70,471 votes compared to the 36,833
votes received by Respondent Montejo. A copy of said Certificate of Canvass was annexed to the
Supplemental Petition.
On account of the Resolutions disqualifying petitioner from running for the congressional seat of the
First District of Leyte and the public respondents Resolution suspending her proclamation,
petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may
be classified into two general areas:
I. The Issue of Petitioners qualifications

Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a
period of one year at the time of the May 9, 1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside
the period mandated by the Omnibus Election Code for disqualification cases under Article 78 of the
said Code.
b) After the Elections
Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction over
the question of petitioners qualifications after the May 8, 1995 elections.
I. Petitioners qualification
A perusal of the Resolution of the COMELECs Second Division reveals a startling confusion in the
application of settled concepts of "Domicile" and "Residence" in election law. While the COMELEC
seems to be in agreement with the general proposition that for the purposes of election law,
residence is synonymous with domicile, the Resolution reveals a tendency to substitute or mistake
the concept of domicile for actual residence, a conception not intended for the purpose of
determining a candidates qualifications for election to the House of Representatives as required by
the 1987 Constitution. As it were, residence, for the purpose of meeting the qualification for an
elective position, has a settled meaning in our jurisdiction.
Article 50 of the Civil Code decrees that" [f]or the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their place of habitual residence." In Ong v. Republic
20 this court, took the concept of domicile to mean an individuals "permanent home", "a place to
which, whenever absent for business or for pleasure, one intends to return, and depends on facts
and circumstances in the sense that they disclose intent." 21 Based on the foregoing, domicile
includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus
manendi, or the intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of an individual to a certain
place. It is the physical presence of a person in a given area, community or country. The essential
distinction between residence and domicile in law is that residence involves the intent to leave when
the purpose for which the resident has taken up his abode ends. One may seek a place for purposes
such as pleasure, business, or health. If a persons intent be to remain, it becomes his domicile; if
his intent is to leave as soon as his purpose is established it is residence. 22 It is thus, quite
perfectly normal for an individual to have different residences in various places. However, a person
can only have a single domicile, unless, for various reasons, he successfully abandons his domicile
in favor of another domicile of choice. In Uytengsu v. Republic, 23 we laid this distinction quite
clearly:
"There is a difference between domicile and residence. Residence is used to indicate a place of
abode, whether permanent or temporary; domicile denotes a fixed permanent residence to which,
when absent, one has the intention of returning. A man may have a residence in one place and a
domicile in another. Residence is not domicile, but domicile is residence coupled with the intention
to remain for an unlimited time. A man can have but one domicile for the same purpose at any
time, but he may have numerous places of residence. His place of residence is generally his place of
domicile, but it is not by any means necessarily so since no length of residence without intention of
remaining will constitute domicile."
For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of
political laws. As these concepts have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election purposes is used synonymously with
domicile.
In Nuval v. Guray, 24 the Court held that "the term residence . . . is synonymous with domicile
which imports not reside in a fixed place, but also personal presence in that place, coupled with
conduct indicative of such intention." 25 Larena v. Teves 26 reiterated the same doctrine in a case
involving the qualifications of the respondent therein to the post of Municipal President of
Dumaguete, Negros Oriental. Faypon v. Quirino, 27 held that the 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. 28 So settled is the concept (of domicile) in our
election law that in these and other election law cases, this Court has stated that the mere absence
of an individual from his permanent residence without the intention to abandon it does not result in
a loss or change of domicile.
The deliberations of the 1987 Constitution on the residence qualification for certain elective
positions have placed beyond doubt the principle that when the Constitution speaks of "residence"
in election law, it actually means only "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 Committees 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., 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. 29
x
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 gentleman 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
residence. 30
In Co v. Electoral Tribunal of the House of Representatives, 31 this Court concluded that the
framers of the 1987 Constitution obviously adhered to the definition given to the term residence in
election law, regarding it as having the same meaning as domicile. 32
In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the
residency requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance
is the questioned entry in petitioners Certificate of Candidacy stating her residence in the First
Legislative District of Leyte as seven (7) months?
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. It
would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in a
certificate of candidacy which would lead to his or her disqualification.
It stands to reason therefore, that petitioner merely committed an honest mistake in jotting down
the word "seven" in the space provided for the residency qualification requirement. The
circumstances leading to her filing the questioned entry obviously resulted in the subsequent
confusion which prompted petitioner to write down the period of her actual stay in Tolosa, Leyte
instead of her period of residence in the First district, which was "since childhood" in the space
provided. These circumstances and events are amply detailed in the COMELECs Second Divisions
questioned resolution, albeit with a different interpretation. For instance, when herein petitioner
announced that she would be registering in Tacloban City to make her eligible to run in the First
District, private respondent Montejo opposed the same, claiming that petitioner was a resident of
Tolosa, not Tacloban City. Petitioner then registered in her place of actual residence in the First
District, which was Tolosa, Leyte, a fact which she subsequently noted down in her Certificate of
Candidacy. A close look at said certificate would reveal the possible source of the confusion: the
entry for residence (Item No. 7) is followed immediately by the entry for residence in the
constituency where a candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte.
8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING
THE ELECTION: _____ Years and Seven Months.
Having been forced by private respondent to register in her place of actual residence in Leyte
instead of petitioners claimed domicile, it appears that petitioner had jotted down her period of stay
in her actual residence in a space which required her period of stay in her legal residence or
domicile. The juxtaposition of entries in Item 7 and Item 8 the first requiring actual residence and
the second requiring domicile coupled with the circumstances surrounding petitioners registration
as a voter in Tolosa obviously led to her writing down an unintended entry for which she could be
disqualified. This honest mistake should not, however, be allowed to negate the fact of residence in
the First District if such fact were established by means more convincing than a mere entry on a
piece of paper.
We now proceed to the matter of petitioners domicile.
In support of its asseveration that petitioners domicile could not possibly be in the First District of
Leyte, the Second Division of the COMELEC, in its assailed Resolution of April 24, 1995 maintains
that "except for the time when (petitioner) studied and worked for some years after graduation in
Tacloban City, she continuously lived in Manila." The Resolution additionally cites certain facts as
indicative of the fact that petitioners domicile ought to be any place where she lived in the last few
decades except Tacloban, Leyte. First, according to the Resolution, Petitioner, in 1959, resided in
San Juan, Metro Manila where she was also registered voter. Then, in 1965, following the election of
her husband to the Philippine presidency, she lived in San Miguel, Manila where she registered as a
voter. In 1978 and thereafter, she served as a member of the Batasang Pambansa and Governor of
Metro Manila. "She could not, have served these positions if she had not been a resident of Metro
Manila," the COMELEC stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does not lose his domicile even if he has
lived and maintained residences in different places. Residence, it bears repeating, implies a factual
relationship to a given place for various purposes. The absence from legal residence or domicile to
pursue a profession, to study or to do other things of a temporary or semi-permanent nature does
not constitute loss of residence. Thus, the assertion by the COMELEC that "she could not have been
a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy
because she became a resident of many places" flies in the face of settled jurisprudence in which
this Court carefully made distinctions between (actual) residence and domicile for election law
purposes. In Larena v. Teves, 33 supra, we stressed:
[T]his court is of the opinion and so holds that a person who has his own house wherein he lives
with his family in a municipality without having ever had the intention of abandoning it, and without
having lived either alone or with his family in another municipality, has his residence in the former
municipality, notwithstanding his having registered as an elector in the other municipality in
question and having been a candidate for various insular and provincial positions, stating every time
that he is a resident of the latter municipality.
More significantly, in Faypon v. Quirino, 34 we explained that:
A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to
improve his lot, and that, of course includes study in other places, practice of his avocation, or
engaging in business. When an election is to be held, the citizen who left his birthplace to improve
his lot may desire to return to his native town to cast his ballot but for professional or business
reasons, or for any other reason, he may not absent himself from his professional or business
activities; so there he registers himself as voter as he has the qualifications to be one and is not
willing to give up or lose the opportunity to choose the officials who are to run the government
especially in national elections. Despite such registration, the animus revertendi to his home, to his
domicile or residence of origin has not forsaken him. This may be the explanation why the
registration of a voter in a place other than his residence of origin has not been deemed sufficient to
constitute abandonment or loss of such residence. It finds justification in the natural desire and
longing of every person to return to his place of birth. This strong feeling of attachment to the place
of ones birth must be overcome by positive proof of abandonment for another.
From the foregoing, it can be concluded that in its above-cited statements supporting its proposition
that petitioner was ineligible to run for the position of Representative of the First District of Leyte,
the COMELEC was obviously referring to petitioners various places of (actual) residence, not her
domicile. In doing so, it not only ignored settled jurisprudence on residence in election law and the
deliberations of the constitutional commission but also the provisions of the Omnibus Election Code
(B.P. 881). 35
What is undeniable, however, are the following set of facts which establish the fact of petitioners
domicile, which we lift verbatim from the COMELECs Second Divisions assailed Resolution: 36
In or about 1938 when respondent was a little over 8 years old, she established her domicile in
Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to
1949 when she graduated from high school. She pursued her college studies in St. Pauls College,
now Divine Word University in Tacloban, where she earned her degree in Education. Thereafter, she
taught in the Leyte Chinese School, still in Tacloban City. In 1952 she went to Manila to work with
her cousin, the late speaker Daniel Z. Romualdez in his office in the House of Representatives. In
1954, she married ex-President Ferdinand E. Marcos when he was still a congressman of Ilocos
Norte and registered there as a voter. When her husband was elected Senator of the Republic in
1959, she and her husband lived together in San Juan, Rizal where she registered as a voter. In
1965, when her husband was elected President of the Republic of the Philippines, she lived with him
in Malacaang Palace and registered as a voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her family were abducted and kidnapped to
Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992, respondent ran for
election as President of the Philippines and filed her Certificate of Candidacy wherein she indicated
that she is a resident and registered voter of San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC, what is inescapable is that
petitioner held various residences for different purposes during the past four decades. None of these
purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban, Leyte.
Moreover, while petitioner was born in Manila, as a minor she naturally followed the domicile of her
parents. She grew up in Tacloban, reached her adulthood there and eventually established
residence in different parts of the country for various reasons. Even during her husbands
presidency, at the height of the Marcos Regimes powers, petitioner kept her close ties to her
domicile of origin by establishing residences in Tacloban, celebrating her birthdays and other
important personal milestones in her home province, instituting well-publicized projects for the
benefit of her province and hometown, and establishing a political power base where her siblings
and close relatives held positions of power either through the ballot or by appointment, always with
either her influence or consent. These well-publicized ties to her domicile of origin are part of the
history and lore of the quarter century of Marcos power in our country. Either they were entirely
ignored in the COMELECS Resolutions, or the majority of the COMELEC did not know what the rest
of the country always knew: the fact of petitioners domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was not petitioners domicile of origin
because she did not live there until she was eight years old. He avers that after leaving the place in
1952, she "abandoned her residency (sic) therein for many years and . . . (could not) re-establish
her domicile in said place by merely expressing her intention to live there again." We do not agree.
First, a minor follows the domicile of his parents. As domicile, once acquired is retained until a new
one is gained, it follows that in spite of the fact of petitioners being born in Manila, Tacloban, Leyte
was her domicile of origin by operation of law. This domicile was not established only when she
reached the age of eight years old, when her father brought his family back to Leyte contrary to
private respondents averments.
Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must
demonstrate: 37
1. An actual removal or an actual change of domicile;
2. A bona fide intention of abandoning the former place of residence and establishing a new one;
and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these criteria, the residence of origin should be
deemed to continue. Only with evidence showing concurrence of all three requirements can the
presumption of continuity or residence be rebutted, for a change of residence requires an actual and
deliberate abandonment, and one cannot have two legal residences at the same time. 38 In the
case at bench, the evidence adduced by private respondent plainly lacks the degree of
persuasiveness required to convince this court that an abandonment of domicile of origin in favor of
a domicile of choice indeed occurred. To effect an abandonment requires the voluntary act of
relinquishing petitioners former domicile with an intent to supplant the former domicile with one of
her own choosing (domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by
operation of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952. For
there is a clearly established distinction between the Civil Code concepts of "domicile" and
"residence." 39 The presumption that the wife automatically gains the husbands domicile by
operation of law upon marriage cannot be inferred from the use of the term "residence" in Article
110 of the Civil Code because the Civil Code is one area where the two concepts are well delineated.
Dr. Arturo Tolentino, writing on this specific area explains:
In the Civil Code, there is an obvious difference between domicile and residence. Both terms imply
relations between a person and a place; but in residence, the relation is one of fact while in domicile
it is legal or juridical, independent of the necessity of physical presence. 40
Article 110 of the Civil Code provide:
ARTICLE 110. The husband shall fix the residence of the family. But the court may exempt the wife
from living with the husband if he should live abroad unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they
affect the female spouse upon marriage yields nothing which would suggest that the female spouse
automatically loses her domicile of origin in favor of the husbands choice of residence upon
marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states:
La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, sin
embargo, podran con justa causa eximirla de esta obligacion cuando el marido transende su
residencia a ultramar o a pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which
means wherever (the husband) wishes to establish residence. This part of the article clearly
contemplates only actual residence because it refers to a positive act of fixing a family home or
residence. Moreover, this interpretation is further strengthened by the phrase "cuando el marido
translade su residencia" in the same provision which means, "when the husband shall transfer his
residence," referring to another positive act of relocating the family to another home or place of
actual residence. The article obviously cannot be understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one place to
another not only once, but as often as the husband may deem fit to move his family, a
circumstance more consistent with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony with the intention of the law to
strengthen and unify the family, recognizing the fact that the husband and the wife bring into the
marriage different domiciles (of origin). This difference could for the sake of family unity, be
reconciled only by allowing the husband a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS
AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article
109 which obliges the husband and wife to live together, thus:
ARTICLE 109. The husband and wife are obligated to live together, observe mutual respect and
fidelity and render mutual help and support.
The duty to live together can only be fulfilled if the husband and wife are physically together. This
takes into account the situations where the couple has many residences (as in the case of
petitioner). If the husband has to stay in or transfer to any one of their residences, the wife should
necessarily be with him in order that they may "live together." Hence, it is illogical to conclude that
Art. 110 refers to domicile" and not to "residence." Otherwise, we shall be faced with a situation
where the wife is left in the domicile while the husband, for professional or other reasons, stays in
one of their (various) residences. As Dr. Tolentino further explains:
Residence and Domicile. Whether the word "residence" as used with reference to particular
matters is synonymous with "domicile" is a question of some difficulty, and the ultimate decision
must be made from a consideration of the purpose and intent with which the word is used.
Sometimes they are used synonymously, at other times they are distinguished from one another.
x
Residence in the civil law is a material fact, referring to the physical presence of a person in a place.
A person can have two or more residences, such as a country residence and a city residence.
Residence is acquired by living in a place; on the other hand, domicile can exist without actually
living in the place. The important thing for domicile is that, once residence has been established in
one place, there be an intention to stay there permanently, even if residence is also established in
some other place. 41
In fact, even the matter of a common residence between the husband and the wife during the
marriage is not an iron-clad principle. In cases applying the Civil Code on the question of a common
matrimonial residence, our jurisprudence has recognized certain situations 42 where the spouses
could not be compelled to live with each other such that the wife is either allowed to maintain a
residence different from that of her husband or, for obviously practical reasons, revert to her
original domicile (apart from being allowed to opt for a new one). In De la Vina vs Villareal 43 this
Court held that" [a] married woman may acquire a residence or domicile separate from that of her
husband during the existence of the marriage where the husband has given cause for divorce." 44
Note that the Court allowed the wife either to obtain new residence or to choose a new domicile in
such an event. In instances where the wife actually opts, under the Civil Code, to live separately
from her husband either by taking new residence or reverting to her domicile of origin, the Court
has held that the wife could not be compelled to live with her husband on pain of contempt. In
Arroyo vs Vasques de Arroyo 45 the Court held that:
Upon examination of the authorities, we are convinced that it is not within the province of the courts
at this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights
to, the other. Of course where the property rights of one of the pair are invaded, an action for
restitution of such rights can be maintained. But we are disinclined to sanction the doctrine that an
order, enforcible (sic) by process of contempt, may be entered to compel the restitution of the
purely personal right of consortium. At best such an order can be effective for no other purpose
than to compel the spouses to live under the same roof; and he experience of those countries where
the courts of justice have assumed to compel the cohabitation of married people shows that the
policy of the practice is extremely questionable. Thus in England, formerly the Ecclesiastical Court
entertained suits for the restitution of conjugal rights at the instance of either husband or wife; and
if the facts were found to warrant it, that court would make a mandatory decree, enforceable by
process of contempt in case of disobedience, requiring the delinquent party to live with the other
and render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt
bound to enforce such orders, and in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James
Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice,
expressed his regret that the English law on the subject was not the same as that which prevailed in
Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal
rights in England, could be obtained by the injured spouse, but could not be enforced by
imprisonment. Accordingly, in obedience to the growing sentiment against the practice, the
Matrimonial Causes Act (1884) abolished the remedy of imprisonment; though a decree for the
restitution of conjugal rights can still be procured, and in case of disobedience may serve in
appropriate cases as the basis of an order for the periodical payment of a stipend in the character of
alimony.
In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has
ever attempted to make a preemptory order requiring one of the spouses to live with the other; and
that was in a case where a wife was ordered to follow and live with her husband, who had changed
his domicile to the City of New Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70)
was based on a provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil
Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the
State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by
process of contempt is rejected. (21 Cyc., 1148)
In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order of
the Audiencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the
alternative, upon her failure to do so, to make a particular disposition of certain money and effects
then in her possession and to deliver to her husband, as administrator of the ganancial property, all
income, rents, and interest which might accrue to her from the property which she had brought to
the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for the return of the
wife to the marital domicile was sanctioned by any other penalty than the consequences that would
be visited upon her in respect to the use and control of her property; and it does not appear that
her disobedience to that order would necessarily have been followed by imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was
obliged-by virtue of Article 110 of the Civil Code-to follow her husbands actual place of residence
fixed by him. The problem here is that at that time, Mr. Marcos had several places of residence,
among which were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which of these
places Mr. Marcos did fix as his familys residence. But assuming that Mr. Marcos had fixed any of
these places as the conjugal residence, what petitioner gained upon marriage was actual residence.
She did not lose her domicile of origin.
On the other hand, the common law concept of "matrimonial domicile" appears to have been
incorporated, as a result of our jurisprudential experiences after the drafting of the Civil Code of
1950, into the New Family Code. To underscore the difference between the intentions of the Civil
Code and the Family Code drafters, the term residence has been supplanted by the term domicile in
an entirely new provision (Art. 69) distinctly different in meaning and spirit from that found in
Article 110. The provision recognizes revolutionary changes in the concept of womens rights in the
intervening years by making the choice of domicile a product of mutual agreement between the
spouses. 46
Without as much belaboring the point, the term residence may mean one thing in civil law (or under
the Civil Code) and quite another thing in political law. What stands clear is that insofar as the Civil
Code is concerned-affecting the rights and obligations of husband and wife-the term residence
should only be interpreted to mean "actual residence." The inescapable conclusion derived from this
unambiguous civil law delineation therefore, is that when petitioner married the former President in
1954, she kept her domicile of origin and merely gained a new home, not a domicilium
necessarium.
Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage
and only acquired a right to choose a new one after her husband died, petitioners acts following her
return to the country clearly indicate that she not only impliedly but expressly chose her domicile of
origin(assuming this was lost by operation of law) as her domicile. This "choice" was unequivocally
expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGGs permission
to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte . . . to make them livable
for the Marcos family to have a home in our homeland." 47 Furthermore, petitioner obtained her
residence certificate in 1992 in Tacloban, Leyte, while living in her brothers house, an act which
supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman. She could
not have gone straight to her home in San Juan, as it was in a state of disrepair, having been
previously looted by vandals. Her "homes" and "residences" following her arrival in various parts of
Metro Manila merely qualified as temporary or "actual residences," not domicile. Moreover, and
proceeding from our discussion pointing out specific situations where the female spouse either
reverts to her domicile of origin or chooses a new one during the subsistence of the marriage, it
would be highly illogical for us to assume that she cannot regain her original domicile upon the
death of her husband absent a positive act of selecting a new one where situations exist within the
subsistence of the marriage itself where the wife gains a domicile different from her husband.
In the light of all the principles relating to residence and domicile enunciated by this court up to this
point, we are persuaded that the facts established by the parties weigh heavily in favor of a
conclusion supporting petitioners claim of legal residence or domicile in the First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the
assailed resolutions were rendered. on April 24, 1995, fourteen(14) days before the election in
violation of Section 78 of the Omnibus Election Code. 48 Moreover, petitioner contends that it is the
House of Representatives Electoral Tribunal and not the COMELEC which has jurisdiction over the
election of members of the House of Representatives in accordance with Article VI, Sec. 17 of the
Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of judgment within a specified time is
generally construed to be merely directory, 49 "so that non-compliance with them does not
invalidate the judgment on the theory that if the statute had intended such result it would have
clearly indicated it." 50 The difference between a mandatory and a directory provision is often made
on grounds of necessity. Adopting the same view held by several American authorities,. this court in
Marcelino v Cruz held that: 51
The difference between a mandatory and directory provision is often determined on grounds of
expediency, the reason being that less injury results to the general public by disregarding than
enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a limitation of
thirty (30) days within which a decree may be entered without the consent of counsel, it was held
that the statutory provisions which may be thus departed from with impunity, without affecting the
validity of statutory proceedings, are usually those which relate to the mode or time of doing that
which is essential to effect the aim and purpose of the Legislature or some incident of the essential
act. Thus, in said case, the statute under examination was construed merely to be directory.
The mischief in petitioners contending that the COMELEC should have abstained from rendering a
decision after the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in
the fact that our courts and other quasi-judicial bodies would then refuse to render judgments
merely on the ground of having failed to reach a decision within a given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P.
881, 52 it is evident that the respondent Commission does not lose jurisdiction to hear and decide a
pending disqualification case under Section 78 of B.P. 881 even after the elections.
As to the House of Representatives Electoral Tribunals supposed assumption of jurisdiction over the
issue of petitioners qualifications after the May 8, 1995 elections, suffice it to say that HRETs
jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of
members of Congress begins only after a candidate has become a member of the House of
Representatives. 53 Petitioner not being a member of the House of Representatives, it is obvious
that the HRET at this point has no jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to
ignore or deliberately make distinctions in law solely on the basis of the personality of a petitioner in
a case. Obviously a distinction was made on such a ground here. Surely, many established
principles of law, even of election laws were flouted for the sake perpetuating power during the preEDSA regime. We renege on these sacred ideals, including the meaning and spirit of EDSA by
ourselves bending established principles of law to deny an individual what he or she justify deserves
in law. Moreover, in doing so, we condemn ourselves to repeat the mistake of the past.
WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to
run for a seat in the House of Representatives in the First District of Leyte, the COMELECs
questioned Resolutions dated April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE.
Respondent COMELEC is hereby directed to order the Provincial Board of Canvassers to proclaim
petitioner as the duly elected Representative of the First District of Leyte.
SO ORDERED.
Feliciano, J., is on leave.
Separate Opinions
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr.
Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with
the provision itself; The controversy should not be blurred by what, to me, are academic
disquisitions. In this particular controversy, the Constitutional provision on point states 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 (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-year immediately preceding
the day of the election." (Article VI, section 6)
It has been argued that for purposes of our election laws, the term residence has been understood
as synonymous with domicile. This argument has been validated by no less than the Court in
numerous case 1 where significantly the factual circumstances clearly and convincingly proved that
a person does not effectively lose his domicile of origin if the intention to reside therein is manifest
with his personal presence in the place, coupled with conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to conceive of different modalities within
which the phrase "a resident thereof (meaning, the legislative district) for a period of not less than
one year" would fit.
The first instance is where a persons residence and domicile coincide in which case a person only
has to prove that he has been domiciled in a permanent location for not less than a year before the
election.
A second situation is where a person maintains a residence apart from his domicile in which case he
would have the luxury of district shopping, provided of course, he satisfies the one-year residence
period in the district as the minimum period for eligibility to the position of congressional
representative for the district.

In either case, one would not be constitutionally disqualified for abandoning his residence in order
to return to his domicile of origin, or better still, domicile of choice; neither would one be
disqualified for abandoning altogether his domicile in favor of his residence in the district where he
desires to be a candidate.
The most extreme circumstance would be a situation wherein a person maintains several residences
in different districts. Since his domicile of origin continues as an option as long as there is no
effective abandonment (animus non revertendi), he can practically choose the district most
advantageous for him.
All these theoretical scenarios, however, are tempered by the unambiguous limitation that" for a
period of not less than one year immediately preceding the day of the election", he must be a
resident in the district where he desires to be elected.
To my mind, the one year residence period is crucial regardless of whether or not the term
"residence" is to be synonymous with "domicile." In other words, the candidates intent and actual
presence in one district must in all situations satisfy the length of time prescribed by the
fundamental law. And this, because of a definite Constitutional purpose. He must be familiar with
the environment and problems of a district he intends to represent in Congress and the one-year
residence in said district would be the minimum period to acquire such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now
assailed decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by the Comelec en
banc)
"In or about 1938 when respondent was a little over 8 years old, she established her domicile in
Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to
1948 when she graduated from high school. She pursued her college studies in St. Pauls College,
now Divine Word University of Tacloban, where she earned her degree in Education. Thereafter, she
taught in the Leyte Chinese High School, still in Tacloban City. In 1952 she went to Manila to work
with her cousin, the late Speaker Daniel Z. Romualdez in his office in the House of representatives.
In 1954, she married ex-President Ferdinand Marcos when he was still a congressman of Ilocos
Norte. She lived with him in Batac, Ilocos Norte and registered there as a voter. When her husband
was elected Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal
where she registered as a voter. In 1965 when her husband was elected President of the Republic of
the Philippines, she lived with him in Malacaang Palace and registered as a voter in San Miguel,
Manila.
"During the Marcos presidency, respondent served as a Member of the Batasang Pambansa, Minister
of Human Settlements and Governor of Metro Manila. She claimed that in February 1986, she and
her family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came home
to Manila. In 1992 respondent ran for election as President of the Philippines and filed her
Certificate of Candidacy wherein she indicated that she is a resident and registered voter of San
Juan, Metro Manila. On August 24, 1994, respondent filed a letter with the election officer of San
Juan, Metro Manila, requesting for cancellation of her registration in the Permanent List of Voters in
Precinct No. 157 of San Juan, Metro Manila, in order that she may be re-registered or transferred to
Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On August 31, 1994, respondent filed her Sworn
Application for Cancellation of Voters Previous Registration (Annex 2-C, Answer) stating that she is
a duly registered voter in Precinct No. 1 57-A, Brgy. Maytunas, San Juan, Metro Manila and that she
intends to register at Brgy. Olot, Tolosa, Leyte.
"On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte.
She filed with the Board of Election Inspectors. CE Form No. I, Voter Registration Record No. 943349772, wherein she alleged that she has resided in the municipality of Tolosa for a period of 6
months (Annex A, Petition).
"On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte, a
Certificate of Candidacy for the position of Representative of the First District of Leyte wherein she
also alleged that she has been a resident in the constituency where she seeks to be elected for a
period of 7 months. The pertinent entries therein are as follows:
7. PROFESSION OR OCCUPATION: House-wife/Teacher/Social Worker

8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte
Post Office Address for election purposes: Brgy. Olot, Toloso, Leyte
9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE ELECTED IMMEDIATELY PRECEDING
ELECTION: _________ Years Seven Months
10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.
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 laws, legal
orders and decrees promulgated by the duly-constituted authorities; That the obligation imposed by
my oath is assumed voluntarily, without mental reservation or purpose of evasion; and That the
facts stated herein are true to the best o my knowledge.
(Sgd.) Imelda Romualdez-Marcos
(Signature of Candidate)" 2
Petitioners aforestated certificate of candidacy filed on 8 March 1995 contains the decisive
component or seed of her disqualification. It is contained in her answer under oath of "seven
months" to the query of "residence in the constituency wherein I seek to be elected immediately
preceding the election."
It follows from all the above that the Comelec committed no grave abuse of discretion in holding
that petitioner is disqualified from the position of representative for the 1st congressional district of
Leyte in the elections of 8 May 1995, for failure to meet the "not less than one-year residence in the
constituency (1st district, Leyte) immediately preceding the day of election (8 May 1995)."
Having arrived at petitioners disqualification to be a representative of the first district of Leyte, the
next important issue to resolve is whether or not the Comelec can order the Board of Canvassers to
determine and proclaim the winner out of the remaining qualified candidates for representative in
said district.
I am not unaware of the pronouncement made by this Court in the case of Labo v. Comelec, G.R.
86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laid down in the early 1912 case of
Topacio v. Paredes, 23 Phil. 238 that:
". . .. 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 243, p. 676)
meaningless."
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other
purposes) (84 O.G. 905, 22 February 1988) it is provided that:
". . . 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 his guilt is strong."
There is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of
the provision quoted above. As the law now stands, the legislative policy does not limit its concern
with the effect of a final judgment of disqualification only before the election, but even during or
after the election. The law is clear that in all situations, the votes cast for a disqualified candidate
SHALL NOT BE COUNTED. The law has also validated the jurisdiction of the Court or Commission on
Election to continue hearing the petition for disqualification in case a candidate is voted for and
receives the highest number of votes, if for any reason, he is not declared by final judgment before
an election to be disqualified.
Since the present case is an after election scenario, the power to suspend proclamation (when
evidence of his guilt is strong) is also explicit under the law. 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 its is mandated by no less than the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of
Leyte to proclaim the candidate receiving the highest number of votes, from among the qualified
candidates, as the duly elected representative of the 1st district of Leyte.
Hermosisima, Jr., J., concurs.
REGALADO, J., dissenting:
While I agree with some of the factual bases of the majority opinion, I cannot arrive conjointly at
the same conclusion drawn therefrom. Hence, this dissent which assuredly is not formulated "on the
basis of the personality of a petitioner in a case."
I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent
to this case, and which I have simplified as follows:
1. Petitioner, although born in Manila, resided during her childhood in the present Tacloban City, she
being a legitimate daughter of parents who appear to have taken up permanent residence therein.
She also went to school there and, for a time, taught in one of the schools in that city.
2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in Batac, Ilocos Norte,
by operation of law she acquired a new domicile in that place in 1954.
3. In the successive years and during the events that happened thereafter, her husband having
been elected as a Senator and then as President, she lived with him and their family in San Juan,
Rizal and then in Malacaang Palace in San Miguel, Manila.
4. Over those years, she registered as a voter and actually voted in Batac, Ilocos Norte, then in San
Juan, Rizal, and also in San Miguel, Manila, all these merely in the exercise of the right of suffrage.
5. It does not appear that her husband, even after he had assumed those lofty positions
successively, ever abandoned his domicile of origin in Batac, Ilocos Norte where he maintained his
residence and invariably voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and the sojourn of the Marcos family
in Honolulu, Hawaii, U.S.A., she eventually returned to the Philippines in 1991 and resided in
different places which she claimed to have been merely temporary residences.
7. In 1992, petitioner ran for election as President of the Philippines and in her certificate of
candidacy she indicated that she was then a registered voter and resident of San Juan, Metro
Manila.
8. On August 24, 1994, she filed a letter for the cancellation of her registration in the Permanent
List of Voters in Precinct No. 157 of San Juan, Metro Manila in order that she may "be re-registered
or transferred to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed this up with her
Sworn Application for Cancellation of Voters Previous Registration wherein she stated that she was
a registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that she
intended to register in Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte,
for which purpose she filed with the therein Board of Election Inspectors a voters registration record
form alleging that she had resided in that municipality for six months.
10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of Representative
of the First District of Leyte wherein she alleged that she had been a resident for "Seven Months" of
the constituency where she sought to be elected.
11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy" wherein her
answer in the original certificate of candidacy to item "8. RESIDENCE IN THE CONSTITUENCY
WHERE I SEEK, TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed or
replaced with a new entry reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with
the residency requirement of one year as mandated by no less than Section 6, Article VI of the 1987
Constitution.
I do not intend to impose upon the time of my colleagues with a dissertation on the difference
between residence and domicile. We have had enough of that and I understand that for purposes of
political law and, for that matter of international law, residence is understood to be synonymous
with domicile. That is so understood in our jurisprudence and in American Law, in contradistinction
to the concept of residence for purposes of civil, commercial and procedural laws whenever an issue
thereon is relevant or controlling.
Consequently, since in the present case the question of petitioners residence is integrated in and
inseparable from her domicile, I am addressing the issue from the standpoint of the concept of the
latter term, specifically its permutations into the domicile of origin, domicile of choice and domicile
by operation of law, as understood in American law from which for this case we have taken our
jurisprudential bearings.
My readings inform me that the domicile of the parents at the time of birth, or what is termed the
"domicile of origin," constitutes the domicile of an infant until abandoned, or until the acquisition of
a new domicile in a different place. 1 In the instant case, we may grant that petitioners domicile of
origin, 2 at least as of 1938, was what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth,
domicile by choice, and domicile by operation of law. The first is the common case of the place of
birth or domicilium originis, the second is that which is voluntarily acquired by a party or domicilium
proprio motu; at last which is consequential, as that of a wife arising from marriage, 3 is sometimes
called domicilium necesarium. There is no debate that the domicile of origin can be lost or replaced
by a domicile of choice or a domicile by operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only
international or American but of our own enactment, 4 she acquired her husbands domicile of origin
in Batac, Ilocos Norte and correspondingly lost her own domicile of origin in Tacloban City.
Her subsequent changes of residence to San Juan, Rizal, then to San Miguel, Manila, thereafter to
Honolulu, Hawaii, and back to now San Juan, Metro Manila do not appear to have resulted in her
thereby acquiring new domiciles of choice. In fact, it appears that her having resided in those places
was by reason of the fortunes or misfortunes of her husband and his peregrinations in the
assumption of new official positions or the loss of them. Her residence in Honolulu and, of course,
those after her return to the Philippines were, as she claimed, against her will or only for transient
purposes which could not have invested them with the status of domiciles of choice. 5
After petitioners return to the Philippines in 1991 and up to the present imbroglio over her requisite
residency in Tacloban City or Olot, Tolosa, Leyte, there is no showing that she ever attempted to
acquire any other domicile of choice which could have resulted in the abandonment of her legal
domicile in Batac, Ilocos Norte. On that score. we note the majoritys own submission 6 that, to
successfully effect a change of domicile, one must demonstrate (a) an actual removal or an actual
change of domicile, (b) a bona fide intention of abandoning the former place of residence and
establishing a new one, and (c) acts which correspond with the purpose.
We consequently have to also note that these requirements for the acquisition of a domicile of
choice apply whether what is sought to be changed or substituted is a domicile of origin (domicilium
originis) or a domicile by operation of law (domicilium necesarium). Since petitioner had lost her
domicilium originis which had been replaced by her domicilium necesarium, it is therefore her
continuing domicile in Batac, Ilocos Norte which, if at all, can be the object of legal change under
the contingencies of the case at bar.
To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner
Regalado E. Maambong in SPA 95-009 of the Commission on Elections, 7 and advances this novel
proposition:
"It may be said that petitioner lost her domicile of origin by operation of law as a result of her
marriage to the late President Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law
(domicilium necesarium), her legal domicile at the time of her marriage became Batac, Ilocos Norte
although there were no indications of an intention on her part to abandon her domicile of origin.
Because of her husbands subsequent death and through the operation of the provisions of the New
Family Code already in force at the time, however, her legal domicile automatically reverted to her
domicile of origin. . . ." (Emphasis supplied).
Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium
necesarium in Batac, Ilocos Norte, the majority insists on making a qualification that she did not
intend to abandon her domicile of origin. I find this bewildering since, in this situation, it is the law
that declares where petitioners domicile is at any given time, and not her self-serving or putative
intent to hold on to her former domicile. Otherwise, contrary to their own admission that one cannot
have more than one domicile at a time, 8 the majority would be suggesting that petitioner retained
Tacloban City as (for lack of a term in law since it does not exist therein) the equivalent of what is
fancied as a reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be recovered likewise in accordance
with law. However, we are here being titillated with the possibility of an automatic reversion to or
reacquisition of a domicile of origin after the termination of the cause for its loss by operation of
law. The majority agrees that since petitioner lost her domicile of origin by her marriage, the
termination of the marriage also terminates that effect thereof. I am impressed by the
ingenuousness of this theory which proves that, indeed, necessity is the mother of inventions.
Regretfully, I find some difficulty in accepting either the logic or the validity of this argument.
If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby voluntarily
abandons the former in favor of the latter. If, thereafter, he abandons that chosen domicile, he does
not per se recover his original domicile unless, by subsequent acts legally indicative thereof, he
evinces his intent and desire to establish the same as his new domicile, which is precisely what
petitioner belatedly and, evidently just for purposes of her candidacy, unsuccessfully tried to do.
Ones subsequent abandonment of his domicile of choice cannot automatically restore his domicile
of origin, not only because there is no legal authority therefor but because it would be absurd.
Pursued to its logical consequence, that theory of ipso jure reversion would rule out the fact that
said party could already very well have obtained another domicile, either of choice or by operation
of law, other than his domicile of origin. Significantly and obviously for this reason, the Family Code,
which the majority inexplicably invokes, advisedly does not regulate this contingency since it would
impinge on ones freedom of choice.
Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice (unless we
assume that she entered into the marital state against her will) but, on top of that, such
abandonment was further affirmed through her acquisition of a new domicile by operation of law. In
fact, this is even a case of both voluntary and legal abandonment of a domicile of origin. With much
more reason, therefore, should we reject the proposition that with the termination of her marriage
in 1989, petitioner had supposedly per se and ipso facto reacquired her domicile of origin which she
lost in 1954. Otherwise, this would be tantamount to saying that during the period of marital
coverture, she was simultaneously in possession and enjoyment of a domicile of origin which was
only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the husbands death the wife has
the right to elect her own domicile, 9 she nevertheless retains the last domicile of her deceased
husband until she makes an actual change. 10 In the absence of affirmative evidence, to the
contrary, the presumption is that a wifes domicile or legal residence follows that of her husband
and will continue after his death. 11
I cannot appreciate the premises advanced in support of the majoritys theory based on Articles 68
and 69 of the Family Code. All that is of any relevance therein is that under this new code, the right
and power to fix the family domicile is now shared by the spouses. I cannot perceive how that joint
right, which in the first place was never exercised by the spouses, could affect the domicile fixed by
the law for petitioner in 1954 and, for her husband, long prior thereto. It is true that a wife now has
the coordinate power to determine the conjugal or family domicile, but that has no bearing on this
case. With the death of her husband, and each of her children having gotten married and
established their own respective domiciles, the exercise of that joint power was and is no longer
called for or material in the present factual setting of this controversy. Instead, what is of concern in
petitioners case was the matter of her having acquired or not her own domicile of choice.
I agree with the majoritys discourse on the virtues of the growing and expanded participation of
women in the affairs of the nation, with equal rights and recognition by Constitution and statutory
conferment. However, I have searched in vain for a specific law or judicial pronouncement which
either expressly or by necessary implication supports the majoritys desired theory of automatic
reacquisition of or reversion to the domicilium originis of petitioner. Definitely, as between the
settled and desirable legal norms that should govern this issue, there is a world of difference, and,
unquestionably, this should be resolved by legislative articulation but not the eloquence of the wellturned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having
automatically reacquired any domicile therein, she cannot legally claim that her residency in the
political constituency of which it is a part continued since her birth up to the present. Respondent
commission was, therefore, correct in rejecting her pretension to that effect in her
amended/corrected certificate of candidacy, and in holding her to her admission in the original
certificate that she had actually resided in that constituency for only seven months prior to the
election. These considerations render it unnecessary to further pass upon the procedural issues
raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.
DAVIDE, JR., J., dissenting:
I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M. Kapunan,
more particularly on the issue of the petitioners qualification.
Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the
COMELEC may be brought to this Court only by the special civil action for certiorari under Rule 65 of
the Rules of Court (Aratuc v. COMELEC, 88 SCRA 251 [1979]; Dario v. Mison, 176 SCRA 84
[1989]).
Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in excess
of jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of Court). Since the
COMELEC has, undoubtedly, jurisdiction over the private respondents petition, the only issue left is
whether it acted with grave abuse of discretion in disqualifying the petitioner.
My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC
Second Division and the En Banc resolution of 7 May 1995 discloses total absence of abuse of
discretion, much less grave abuse thereof. The resolution of the Second Division dispassionately and
objectively discussed in minute details the facts which established beyond cavil that herein
petitioner was disqualified as a candidate on the ground of lack of residence in the First
Congressional District of Leyte. It has not misapplied, miscomprehended, or misunderstood facts or
circumstances of substance pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELECs findings of fact for lack of proof that the
petitioner has abandoned Tolosa as her domicile of origin, which is allegedly within the First
Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC, either by admission or
by documentary evidence, overwhelming proof of the loss or abandonment of her domicile of origin,
which is Tacloban City and not Tolosa, Leyte. Assuming that she decided to live again in her
domicile of origin, that became her second domicile of choice, where her stay, unfortunately, was
for only seven months before the day of the election. She was then disqualified to be a candidate
for the position of Representative of the First Congressional District of Leyte. A holding to the
contrary would be arbitrary.
It may indeed be conceded that the petitioners domicile of choice was either Tacloban City or
Tolosa, Leyte. Nevertheless, she lost it by operation of law sometime in May 1954 upon her
marriage to the then Congressman (later, President) Ferdinand E. Marcos. A domicile by operation
of law is that domicile which the law attributes to a person, independently of his own intention or
actual residence, as results from legal domestic relations as that of the wife arising from marriage
(28 C.J.S. Domicile 7, 11). Under the governing law then, Article 110 of the Civil Code, her new
domicile or her domicile of choice was the domicile of her husband, which was Batac, Ilocos Norte.
Said Article reads as follows:
ARTICLE 110. The husband shall fix the residence of the family. But the court may exempt the wife
Commenting thereon, civilist Arturo M. Tolentino states:
Although the duty of the spouses to live together is mutual, the husband has a predominant right
because he is empowered by law to fix the family residence. This right even predominates over
some rights recognized by law in the wife. For instance, under article 117 the wife may engage in
business or practice a profession or occupation. But because of the power of the husband to fix the
family domicile, he may fix it at such a place as would make it impossible for the wife to continue in
business or in her profession. For justifiable reasons, however, the wife may be exempted from
living in the residence chosen by the husband. The husband cannot validly allege desertion by the
wife who refuses to follow him to a new place of residence, when it appears that they have lived for
years in a suitable home belonging to the wife, and that his choice of a different home is not made
in good faith. (Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985
ed., 339).
Under common law, a woman upon her marriage loses her own domicile and, by operation of law,
acquires that of her husband, no matter where the wife actually lives or what she believes or
intends. Her domicile is fixed in the sense that it is declared to be the same as his, and subject to
certain limitations, he can change her domicile by changing his own (25 Am Jur 2d Domicile 48, 37).
It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the family
domicile is no longer the sole prerogative of the husband, but is now a joint decision of the spouses,
and in case of disagreement the court shall decide. The said article uses the term "family domicile,"
and not family residence, as "the spouses may have multiple residences, and the wife may elect to
remain in one of such residences, which may destroy the duty of the spouses to live together and
its corresponding benefits" (ALICIA v. SEMPIO-DIY, Handbook on the Family Code of the Philippines,
[1988], 102);
The theory of automatic restoration of a womans domicile of origin upon the death of her husband,
which the majority opinion adopts to overcome the legal effect of the petitioners marriage on her
domicile, is unsupported by law and by jurisprudence. The settled doctrine is that after the
husbands death the wife has a right to elect her own domicile, but she retains the last domicile of
her husband until she makes an actual change (28 C.J.S. Domicile 12, 27). Or, on the death of
the husband, the power of the wife to acquire her own domicile is revived, but until she exercises
the power her domicile remains that of the husband at the time of his death (25 Am Jur 2d Domicile
62, 45). Note that what is revived is not her domicile of origin but her power to acquire her own
domicile.
Clearly, even after the death of her husband, the petitioners domicile was that of her husband at
the time of his death which was Batac, Ilocos Norte, since their residences in San Juan, Metro
Manila, were their residences for convenience to enable her husband to effectively perform his
official duties. Their residence in San Juan was a conjugal home, and it was there to which she
returned in 1991 when she was already a widow. In her sworn certificate of candidacy for the Office
of the President in the synchronized elections of May 1992, she indicated therein that she was a
resident of San Juan, Metro Manila. She also voted in the said elections in that place.
On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a
widow to acquire her own domicile in Tolosa, Leyte, through her sworn statement requesting the
Election Officer of San Juan, Metro Manila, to cancel her registration in the permanent list of voters
in Precinct 157 thereat and praying that she be "re-registered or transferred to Brgy. Olot, Tolosa,
Leyte, the place of [her] birth and permanent residence" (photocopy of Exhibit "B," attached as
Annex "2" of private respondent Montejos Comment). Notably, she contradicted this sworn
statement regarding her place of birth when, in her Voters Affidavit sworn to on 15 March 1992
(photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record sworn to on
28 January 1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and her Certificate of
Candidacy sworn to on 8 March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id.), she
solemnly declared that she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte? In
the affidavit attached to her Answer to the petition for disqualification (Annex "I" of Petition), she
declared under oath that her "domicile or residence is Tacloban City." If she did intend to return to
such domicile or residence of origin why did she inform the Election Officer of San Juan that she
would transfer to Olot, Tolosa, Leyte, and indicate in her Voters Registration Record and in her
certificate of candidacy that her residence is Olot, Tolosa, Leyte? While this uncertainty is not
important insofar as residence in the congressional district is concerned, it nevertheless proves that
forty-one years had already lapsed since she had lost or abandoned her domicile of origin by virtue
of marriage and that such length of time diminished her power of recollection or blurred her
memory.
I find to be misplaced the reliance by the majority opinion on Faypon v. Quirino (96 Phil. 294
[1954]), and the subsequent cases which established the principle that absence from original
residence or domicile of origin to pursue studies, practice ones profession, or engage in business in
other states does not constitute loss of such residence or domicile. So is the reliance on Section 117
of the Omnibus Election Code which provides that transfer of residence to any other place by reason
of ones "occupation; profession; employment in private and public service; educational activities;
work in military or naval reservations; service in the army, navy or air force, the constabulary or
national police force; or confinement or detention in government institutions in accordance with
law" is not deemed as loss of original residence. Those cases and legal provision do not include
marriage of a woman. The reason for the exclusion is, of course, Article 110 of the Civil Code. If it
were the intention of this Court or of the legislature to consider the marriage of a woman as a
circumstance which would not operate as an abandonment of domicile (of origin or of choice), then
such cases and legal provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit
(Annex "A" of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile or
residence of origin is Tacloban City," and that she "never intended to abandon this domicile or
residence of origin to which [she] always intended to return whenever absent." Such a claim of
intention cannot prevail over the effect of Article 110 of the Civil Code. Besides, the facts and
circumstances or the vicissitudes of the petitioners life after her marriage in 1954 conclusively
establish that she had indeed abandoned her domicile of origin and had acquired a new one animo
et facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the petitioners claim that she "merely committed
an honest mistake" in writing down the word "seven" in the space provided for the residency
qualification requirement in the certificate of candidacy. Such a claim is self-serving and, in the light
of the foregoing disquisitions, would be all sound and fury signifying nothing. To me, she did not
commit any mistake, honest or otherwise; what she stated was the truth.
The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the
affirmative of an issue has the burden of proving it (Imperial Victory Shipping Agency v. NLRC, 200
SCRA 178 [1991]; P.T. Cerna Corp. v. Court of Appeals, 221 SCRA 19 [1993]). Having admitted
marriage to the then Congressman Marcos, the petitioner could not deny the legal consequence
thereof on the change of her domicile to that of her husband. The majority opinion rules or at least
concludes that" [b]y operation of law (domicilium necesarium), her legal domicile at the time of her
marriage automatically became Batac, Ilocos Norte." That conclusion is consistent with Article 110
of the Civil Code. Since she is presumed to retain her deceased husbands domicile until she
exercises her revived power to acquire her own domicile, the burden is upon her to prove that she
has exercised her right to acquire her own domicile. She miserably failed to discharge that burden.
I vote to deny the petition.
ROMERO, J., concurring:
Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified
from running for Representative of her District and that, in the event that she should, nevertheless,
muster a majority vote, her proclamation should be suspended. Not by a straight forward ruling did
the COMELEC pronounce its decision as has been its unvarying practice in the past, but by a
startling succession of "reverse somersaults." Indicative of its shifting stance vis-a-vis petitioners
certificate of candidacy were first, the action of its Second Division disqualifying her and cancelling
her original Certificate of Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the
COMELEC en banc of her Motion for Reconsideration on May 7, 1995, a day before the election; then
because she persisted in running, its decision on May 11, 1995 or three days after the election,
allowing her proclamation in the event that the results of the canvass should show that she
obtained the highest number of votes (obviously noting that petitioner had won overwhelmingly
over her opponent), but almost simultaneously reversing itself by directing that even if she wins,
her proclamation should nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by the case at bench is the
interpretation to be given to the one-year residency requirement imposed by the Constitution on
aspirants for a Congressional seat. 1
Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for
election purposes, it is important to determine whether petitioners domicile was in the First District
of Leyte and if so, whether she had resided there for at least a period of one year. Undisputed is her
domicile of origin, Tacloban, where her parents lived at the time of her birth. Depending on what
theory one adopts, the same may have been changed when she married Ferdinand E. Marcos, then
domiciled in Batac, by operation of law. Assuming it did, his death certainly released her from the
obligation to live with him at the residence fixed by him during his lifetime. What may confuse the
layman at this point is the fact that the term "domicile" may refer to "domicile of origin," "domicile
of choice," or "domicile by operation of law," which subject we shall not belabor since it has been
amply discussed by the ponente and in the other separate opinions.
In any case, what assumes relevance is the divergence of legal opinion as to the effect of the
husbands death on the domicile of the widow. Some scholars opine that the widows domicile
remains unchanged; that the deceased husbands wishes perforce still bind the wife he has left
behind. Given this interpretation, the widow cannot possibly go far enough to sever the domiciliary
tie imposed by her husband.
It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or
domicile of the family, as laid down in the Civil Code, 2 but to continue giving obeisance to his
wishes even after the rationale underlying the mutual duty of the spouses to live together has
ceased, is to close ones eyes to the stark realities of the present.

At the other extreme is the position that the widow automatically reverts to her domicile of origin
upon the demise of her husband. Does the law so abhor a vacuum that the widow has to be
endowed somehow with a domicile? To answer this question which is far from rhetorical, one will
have to keep in mind the basic principles of domicile: Everyone must have a domicile. Then one
must have only a single domicile for the same purpose at any given time. Once established, a
domicile remains until a new one acquired, for no person lives who has no domiciles, as defined by
the law he is subject to.
At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered
more murky by the conflicting opinions of foreign legal authorities. This being the state of things, it
is as imperative as it is opportune to illumine the darkness with the beacon light of truth, as
dictated by experience and the necessity of according petitioner her right to choose her domicile in
keeping with the enlightened global trend to recognize and protect the human rights of women, no
less than men.
Admittedly, the notion of placing women on par with men, insofar as civil, political and social rights
are concerned, is a relatively recent phenomenon that took seed only in the middle of this century.
It is a historical fact that for over three centuries, the Philippines had been colonized by Spain, a
conservative, Catholic country which transplanted to our shores the Old World culture, mores,
attitudes and values. Through the imposition on our government of the Spanish Civil Code in 1889,
the people, both men and women, had no choice but to accept such concepts as the husbands
being the head of the family and the wifes subordination to his authority. In such role, his was the
right to make vital decisions for the family. Many instances easily come to mind, foremost being
what is related to the issue before us, namely, that "the husband shall fix the residence of the
family." 3 Because he is made responsible for the support of the wife and the rest of the family, 4
he is also empowered to be the administrator of the conjugal property, with a few exceptions 5 and
may, therefore, dispose of the conjugal partnership property for purposes specified under the law; 6
whereas, as a general rule, the wife cannot bind the conjugal partnership without the husbands
consent. 7 As regards the property pertaining to the children under parental authority the father is
the legal administrator and only in his absence may the mother assume his powers. 8 Demeaning to
the wifes dignity are certain strictures on her personal freedoms, practically relegating her to the
position of minors and disabled persons. To illustrate a few: The wife cannot, without the husbands
consent, acquire any property by gratuitous title, except from her ascendants, descendants,
parents-in-law, and collateral relatives within the fourth degree. 9 With respect to her employment,
the husband wields a veto power in case the wife exercises her profession or occupation or engages
in business, provided his income is sufficient for the family, according to its social standing and his
opposition is founded on serious and valid grounds. 10 Most offensive, if not repulsive, to the
liberal-minded is the effective prohibition upon a widow to get married till after three hundred days
following the death of her husband, unless in the meantime, she has given birth to a child. 11 The
mother who contracts a subsequent marriage loses the parental authority over her children, unless
the deceased husband, father of the latter, has expressly provided in his will that his widow might
marry again, and has ordered that in such case she should keep and exercise parental authority
over their children. 12 Again, an instance of a husbands overarching influence from beyond the
grave.
All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked no
protest from them until the concept of human rights and equality between and among nations and
individuals found hospitable lodgment in the United Nations Charter of which the Philippines was
one of the original signatories. By then, the Spanish "conquistadores" had been overthrown by the
American forces at the turn of the century. The bedrock of the U.N. Charter was firmly anchored on
this credo: "to reaffirm faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women." (Emphasis supplied)
It took over thirty years before these egalitarian doctrines bore fruit, owing largely to the
burgeoning of the feminist movement. What may be regarded as the international bill of rights for
women was implanted in the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) adopted by the U. N. General Assembly which entered into force as an
international treaty on September 3, 1981. In ratifying the instrument, the Philippines bound itself
to implement its liberating spirit and letter, for its Constitution, no less, declared that "The
Philippines: . . . adopts the generally accepted principles of international law as part of the law of
the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with
all nations." 13 One such principle embodied in the CEDAW is granting to men and women "the
same rights with regard to the law relating to the movement of persons and the freedom to choose
their residence and domicile." 14 (Underscoring supplied)
CEDAWs pro-women orientation which was not lost on Filipino women was reflected in the 1987
Constitution of the Philippines and later, in the Family Code, 15 both of which were speedily
approved by the first lady President of the country, Corazon C. Aquino. Notable for its emphasis on
the human rights of all individuals and its bias for equality between the sexes are the following
provisions: "The State values the dignity of every human person and guarantees full respect for
human rights" 16 and "The State recognizes the role of women in nation-building, and shall ensure
the fundamental equality before the law of women and men." 17
A major accomplishment of women in their quest for equality with men and the elimination of
discriminatory provisions of law was the deletion in the Family Code of almost all of the
unreasonable strictures on wives and the grant to them of personal rights equal to that of their
husbands. Specifically, the husband and wife are now given the right jointly to fix the family
domicile; 18 concomitant to the spouses being jointly responsible for the support of the family is
the right and duty of both spouses to manage the household; 19 the administration and the
enjoyment of the community property shall belong to both spouses jointly; 20 the father and
mother shall now jointly exercise legal guardianship over the property of their unemancipated
common child 21 and several others.
Aware of the hiatus and continuing gaps in the law, insofar as womens rights are concerned,
Congress passed a law popularly known as "Women in Development and Nation Building Act." 22
Among the rights given to married women evidencing their capacity to act in contracts equal to that
of men are:
(1) Women shall have the capacity, to borrow and obtain loans and execute security and credit
arrangements under the same conditions as men;
(2) Women shall have equal access to all government and private sector programs granting
agricultural credit, loans and non material resources and shall enjoy equal treatment in agrarian
reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and
(4) Married women shall have rights equal to those of married men in applying for passports, secure
visas and other travel documents, without need to secure the consent of their spouses. 23
As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court
now be the first to respond to its clarion call that "Womens Rights are Human Rights" and that "All
obstacles to womens full participation in decision making at all levels, Including the family" should
be removed. Having been herself a Member of the Philippine Delegation in the International
Womens Year Conference in Mexico in 1975, this writer is only too keenly aware of the unremitting
struggle being waged by women the world over, pilipino women not excluded, to be accepted as
equals of men and to tear down the walls of discrimination that hold them back from their proper
places under the sun.
In light of the inexorable sweep of events, local and global, legislative, executive and judicial,
according more rights to women hitherto denied them and eliminating whatever pockets of
discrimination still, exist in their civil, political and social life, can it still be insisted that widows are
not at liberty to choose their domicile upon the death of their husbands but must retain the same,
regardless?
I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by
the domicile of the departed husband, if at all she was before. Neither does she automatically revert
to her domicile of origin, but exercising free will, she may opt to reestablish her domicile of origin.
In returning to Tacloban and subsequently, to Barangay Olot, Tolosa, both of which are located in
the First District of Leyte, petitioner amply demonstrated by overt acts, her election of a domicile of
choice, in this case, a reversion to her domicile of origin. Added together, the time when she set up
her domicile in the two places sufficed to meet the one-year requirement to run as Representative
of the First District of Leyte.

In view of the foregoing expatiation, I vote to GRANT the petition.
PUNO, J., concurring:
It was Aristotle who taught mankind that things that are alike should be treated alike, while things
that are unalike should be treated unalike in proportion to their unalikeness. 1 Like other
candidates, petitioner has clearly met the residence requirement provided by Section 6, Article VI of
the Constitution. 2 We cannot disqualify her and treat her unalike, for the Constitution guarantees
equal protection of the law. I proceed from the following factual and legal propositions:
First. There is no question that petitioners original domicile is in Tacloban, Leyte. Her parents were
domiciled in Tacloban. Their ancestral house is in Tacloban. They have vast real estate in the place.
Petitioner went to school, and thereafter worked there. I consider Tacloban as her initial domicile,
both her domicile of origin and her domicile of choice. Her domicile of origin and it was the domicile
of her parents when she was a minor; and her domicile of choice, as she continued living there even
after reaching the age of majority.
Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand
E. Marcos. By contracting marriage, her domicile became subject to change by law, and the right to
change it was given by Article 110 of the Civil Code to her husband Article 110 of the Civil Code
provides:
"ARTICLE 110. The husband shall fix the residence of the family. But the court may exempt the wife
from living with the husband if he should live abroad unless in the service of the Republic." 3
(Emphasis supplied)
In De la Via v. Villareal and Geopano, 4 this Court explained why the domicile of the wife ought to
follow that of the husband. We held: "The reason is founded upon the theoretic identity of person
and interest between the husband and the wife, and the presumption that, from the nature of the
relation, the home of one is the home of the other. It is intended to promote, strengthen, and
secure their interests in this relation, as it ordinarily exists where union and harmony prevail." 5 In
accord with this objective, Article 109 of the Civil Code also obligated the husband and wife "to live
together."
Third. The difficult issues start as we determine whether petitioners marriage to former President,
Marcos ipso facto resulted in the loss of her Tacloban domicile. I respectfully submit that her
marriage by itself alone did not cause her to lose her Tacloban domicile. Article 110 of the Civil Code
merely gave the husband the right to fix the domicile of the family. In the exercise of the right, the
husband may explicitly choose the prior domicile of his wife, in which case, the wifes domicile
remains unchanged The husband can also implicitly acquiesce to his wifes prior domicile even if it is
different. So we held in de la Via. 6
". . .. When married women as well as children subject to parental authority live, with the
acquiescence of their husbands or fathers, in a place distinct from where the latter live, they have
their own independent domicile. . . ."
It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile by the
husband that will change the domicile of a wife from what it was prior to their marriage. The
domiciliary decision made by the husband in the exercise of the right conferred by Article 110 of the
Civil Code binds the wife. Any and all acts of a wife during her coverture contrary to the domiciliary
choice of the husband cannot change in any way the domicile legally fixed by the husband. These
acts are void not only because the wife lacks the capacity to choose her domicile but also because
they are contrary to law and public policy.
In the case at bench, it is not disputed that former President Marcos exercised his right to fix the
family domicile and established it in Batac, Ilocos Norte, where he was then the congressman. At
that particular point of time and throughout their married life, petitioner lost her domicile in
Tacloban, Leyte. Since petitioners Batac domicile has been fixed by operation of law, it was not
affected in 1959 when her husband was elected as Senator, when they lived in San Juan, Rizal and
where she registered as a voter. It was not also affected in 1965 when her husband was elected
President, when they lived in Malacaang Palace, and when she registered as a voter in San Miguel,
Manila Nor was it affected when she served as a member of the Batasang Pambansa, Minister of
Human Settlements and Governor of Metro Manila during the incumbency of her husband as
President of the nation. Under Article 110 of the Civil Code, it was only her husband who could
change the family domicile in Batac and the evidence shows he did not effect any such change. To a
large degree, this follows the common law that "a woman on her marriage loses her own domicile
and by operation of law, acquires that of her husband, no matter where the wife actually lives or
what she believes or intends." 7
Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of
former President Marcos on petitioners Batac domicile. The issue is of first impression in our
jurisdiction and two (2) schools of thought contend for acceptance. One is espoused by our
distinguished colleague, Mr. Justice Davide, Jr., heavily relying on American authorities. 8 He
echoes the theory that after the husbands death, the wife retains the last domicile of her husband
until he makes an actual change.
I do not subscribe to this submission. The American case law that the wife still retains her dead
husbands domicile is based on ancient common law which we can no longer apply in the Philippine
setting today. The common law identified the domicile of a wife as that of the husband and denied
to her the power of acquiring a domicile of her own separate and apart from him. 9 Legal scholars
agree that two (2) reasons support this common law doctrine. The first reason as pinpointed by the
legendary Blackstone is derived from the view that "the very being or legal existence of the woman
is suspended during the marriage, or at least is incorporated and consolidated into that of the
husband." 10 The second reason lies in "the desirability of having the interests of each member of
the family unit governed by the same law." 11 The presumption that the wife retains the domicile of
her deceased husband is an extension of this common law concept. The concept and its extension
have provided some of the most iniquitous jurisprudence against women. It was under common law
that the 1873 American case of Bradwell v. Illinois 12 was decided where women were denied the
right to practice law. It was unblushingly ruled that "the natural and proper timidity and delicacy
which belongs to the female sex evidently unfits it for many of the occupations of civil life . . . This
is the law of the Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS 13 and AM
JUR 2d 14 are American state court decisions handed down between the years 1917 15 and 1938,
16 or before the time when women were accorded equality of rights with men. Undeniably, the
womens liberation movement resulted in far-ranging state legislations in the United States to
eliminate gender inequality. 17 Starting in the decade of the seventies, the courts likewise
liberalized their rulings as they started invalidating laws infected with gender-bias. It was in 1971
when the US Supreme Court in Reed v. Reed, 18 stuck a big blow for women equality when it
declared as unconstitutional an Idaho law that required probate courts to choose male family
members over females as estate administrators. It held that mere administrative inconvenience
cannot justify a sex-based distinction. These significant changes both in law and in case law on the
status of women virtually obliterated the iniquitous common law surrendering the rights of married
women to their husbands based on the dubious theory of the parties theoretic oneness. The Corpus
Juris Secundum editors did not miss the relevance of this revolution on womens right as they
observed: "However, it has been declared that under modern statutes changing the status of
married women and departing from the common law theory of marriage, there is no reason why a
wife may not acquire a separate domicile for every purpose known to the law." 19 In publishing in
1969 the Restatement of the Law, Second (Conflict of Laws 2d), the reputable American Law
Institute also categorically stated that the view of Blackstone." . . is no longer held. As the result of
statutes and court decisions, a wife now possesses practically the same rights and powers as her
unmarried sister." 20
In the case at bench, we have to decide whether we should continue clinging to the anachronistic
common law that demeans women, especially married women. I submit that the Court has no
choice except to break away from this common law rule, the root of the many degradations of
Filipino women. Before 1988, our laws particularly the Civil Code, were full of gender discriminations
against women. Our esteemed colleague, Madam Justice Flerida Ruth Romero, cited a few of them
as follows: 21
"x
Legal Disabilities Suffered by Wives
"Not generally known is the fact that under the Civil Code, wives suffer under certain restrictions or
disabilities. For instance, the wife cannot accept gifts from others, regardless of the sex of the giver
or the value of the gift, other than from her very close relatives, without her husbands consent.
She may accept only from, say, her parents, parents-in-law, brothers, sisters and the relatives
within the so-called fourth civil degree. She may not exercise her profession or occupation or
engage in business if her husband objects on serious grounds or if his income is sufficient to support
their family in accordance with their social standing. As to what constitutes serious grounds for
objecting, this is within the discretion of the husband.
"x
"Because of the present inequitable situation, the amendments to the Civil Law being proposed by
the University of the Philippines Law Center would allow absolute divorce which severes the
matrimonial ties, such that the divorced spouses are free to get married a year after the divorce is
decreed by the courts. However, in order to place the husband and wife on an equal footing insofar
as the bases for divorce are concerned, the following are specified as the grounds for absolute
divorce: (1) adultery or having a paramour committed by the respondent in any of the ways
specified in the Revised Penal Code; or (2) an attempt by the respondent against the life of the
petitioner which amounts to attempted parricide under the Revised Penal Code; (3) abandonment of
the petitioner by the respondent without just cause for a period of three consecutive years; or (4)
habitual maltreatment.
"With respect to property relations, the husband is automatically the administrator of the conjugal
property owned in common by the married couple even if the wife may be the more astute or
enterprising partner. The law does not leave it to the spouses to decide who shall act as such
administrator. Consequently, the husband is authorized to engage in acts and enter into
transactions beneficial to the conjugal partnership. The wife, however. cannot similarly bind the
partnership without, the husbands consent.
"And while both exercise joint parental authority over their children, it is the father whom the law
designates as the legal administrator of the property pertaining to the unemancipated child."
Taking the lead in Asia, our government exerted efforts, principally through legislations, to eliminate
inequality between men and women in our land. The watershed came on August 3, 1988 when our
Family Code took effect which, among others, terminated the unequal treatment of husband and
wife as to their rights and responsibilities. 22
The Family Code attained this elusive objective by giving new rights to married women and by
abolishing sex-based privileges of husbands. Among others, married women are now given the joint
right to administer the family property, whether in the absolute community system or in the system
of conjugal partnership; 23 joint parental authority over their minor children, both over their
persons as well as their properties; 24 joint responsibility for the support of the family; 25 the right
to jointly manage the household; 26 and, the right to object to their husbands exercise of
profession, occupation, business or activity. 27 Of particular relevance to the case at bench is Article
69 of the Family Code which took away the exclusive right of the husband to fix the family domicile
and gave it jointly to the husband and the wife, thus:
"ARTICLE 69. The husband and wife shall fix the family domicile. In case of disagreement, the court
shall decide.
The court may exempt one spouse from living with the other if the latter should live abroad or there
are other valid and compelling reasons for the exemption. However, such exception shall not apply
if the same is not compatible with the solidarity of the family." (Emphasis supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and wife
to live together, former Madam Justice Alice Sempio-Diy of the Court of Appeals specified the
instances when a wife may now refuse to live with her husband, thus: 28
"(2) The wife has the duty to live with her husband, but she may refuse to do so in certain cases
like:
(a) If the place chosen by the husband as family residence is dangerous to her life;
(b) If the husband subjects her to maltreatment or abusive conduct or insults, making common life
impossible;
(c) If the husband compels her to live with his parents, but she cannot get along with her motherin-law and they have constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG 6122);
(d) Where the husband has continuously carried illicit relations for 10 years with different women
and treated his wife roughly and without consideration (Dadivas v. Villanueva, 54 Phil. 92);
(e) Where the husband spent his time in gambling, giving no money to his family for food and
necessities, and at the same time insulting his wife and laying hands on her (Panuncio v. Sula, CA,
34 OG 129);
(f) If the husband has no fixed residence and lives a vagabond life as a tramp (1 Manresa 329);
(g) If the husband is carrying on a shameful business at home (Gahn v. Darby, 36 La. Ann. 70)."
The inescapable conclusion is that our Family Code has completely emancipated the wife from the
control of the husband, thus abandoning the parties theoretic identity of interest. No less than the
late revered Mr. Justice J.B.L. Reyes who chaired the Civil Code Revision Committee of the UP Law
Center gave this insightful view in one of his rare lectures after retirement: 29
"x
"The Family Code is primarily intended to reform the family law so as to emancipate the wife from
the exclusive control of the husband and to place her at parity with him insofar as the family is
concerned. The wife and the husband are now placed on equal standing by the Code. They are now
joint administrators of the family properties and exercise joint authority over the persons and
properties of their children. This means a dual authority in the family. The husband will no longer
prevail over the wife but she has to agree on all matters concerning the family." (Emphasis
supplied)
In light of the Family Code which abrogated the inequality between husband and wife as started and
perpetuated by the common law, there is no reason in espousing the anomalous rule that the wife
still retains the domicile of her dead husband. Article 110 of the Civil Code which provides the
statutory support for this stance has been repealed by Article 69 of the Family Code. By its repeal, it
becomes a dead-letter law, and we are not free to resurrect it by giving it further effect in any way
or manner such as by ruling that the petitioner is still bound by the domiciliary determination of her
dead husband.
Aside from reckoning with the Family Code, we have to consider our Constitution and its firm
guarantees of due process and equal protection of law. 30 It can hardly be doubted that the
common law imposition on a married woman of her dead husbands domicile even beyond his grave
is patently discriminatory to women. It is a gender-based discrimination and is not rationally related
to the objective of promoting family solidarity. It cannot survive a constitutional challenge. Indeed,
compared with our previous fundamental laws, the 1987 Constitution is more concerned with
equality between sexes as it explicitly commands that the state." . . shall ensure fundamental
equality before the law of women and men." To be exact, section 14, Article II Provides: "The State
recognizes the role of women in nation building, and shall ensure fundamental equality before the
law of women and men." We shall be transgressing the sense and essence of this constitutional
mandate if we insist on giving our women the caveman s treatment.
Prescinding from these premises, I respectfully submit that the better stance is to rule that
petitioner reacquired her Tacloban domicile upon the death of her husband in 1989. This is the
necessary consequence of the view that petitioners Batac dictated domicile did not continue after
her husbands death; otherwise, she would have no domicile and that will violate the universal rule
that no person can be without a domicile at any point of time. This stance also restores the right of
petitioner to choose her domicile before it was taken away by Article 110 of the Civil Code, a right
now recognized by the Family Code and protected by the Constitution. Likewise, I cannot see the
fairness of the common law requiring petitioner to choose again her Tacloban domicile before she
could be released from her Batac domicile. She lost her Tacloban domicile not through her act but
through the act of her deceased husband when he fixed their domicile in Batac. Her husband is dead
and he cannot rule her beyond the grave. The law disabling her to choose her own domicile has
been repealed. Considering all these, common law should not put the burden on petitioner to prove
she has abandoned her dead husbands domicile There is neither rhyme nor reason for this genderbased burden.
But even assuming arguendo that there is need for convincing proof that petitioner chose to
reacquire her Tacloban domicile, still, the records reveal ample evidence to this effect. In her
affidavit submitted to the respondent COMELEC petitioner averred:
"x
"36. In November, 1991, I came home to our beloved country, after several requests for my return
were denied by President Corazon C. Aquino, and after I filed suits for our Government to issue me
my passport.
37. But I came home without the mortal remains of my beloved husband, President Ferdinand E.
Marcos, which the Government unreasonably considered a threat to the national security and
welfare.
38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or in
Olot, Tolosa, Leyte, even if my residences there were not livable as they had been destroyed and
cannibalized. The PCGG, however, did not permit and allow me.
39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay City, a
friends apartment on Ayala Avenue, a house in South Forbes Park which my daughter rented, and
Pacific Plaza, all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in San
Jose, Tacloban City and pursued my negotiations with PCGG; to recover my sequestered residences
in Tacloban City and Barangay Olot, Tolosa, Leyte.
40.1. In preparation for my observance of All Saints Day and All Souls Day that year, I renovated
my parents burial grounds and entombed their bones which had been excavated, unearthed and
scattered.
41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for
permissions to
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farm house in Olot, Leyte . . . to make
them livable for us the Marcos family to have a home in our own motherland.
"x
42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to Col.
Simeon Kempis, Jr., PCGG Region 8 Representative, allowed me to repair and renovate my Leyte
residences. I quote part of his letter:
Dear Col. Kempis,

Upon representation by Mrs. Imelda R. Marcos to this Commission, that she intends to visit our
sequestered properties in Leyte, please allow her access thereto. She may also cause repairs and
renovation of the sequestered properties, in which event, it shall be understood that her
undertaking said repairs is not said properties, and that all expenses shall be for her account and
not reimbursable. Please extend the necessary courtesy to her.
"x
43. I was not permitted, however, to live and stay in the Sto. Nio Shrine residence in Tacloban City
where I wanted to stay and reside, after repairs and renovations were completed. In August 1994, I
transferred from San Jose, Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, when
PCGG permitted me to stay and live there."
It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It is
not disputed that in 1992, she first lived at the house of her brother in San Jose, Tacloban City and
later, in August 1994, she transferred her residence in Barangay Olot, Tolosa, Leyte. Both Tacloban
City and the municipality of Olot are within the First District of Leyte. Since petitioner reestablished
her old domicile in 1992 in the First District of Leyte, she more than complied with the constitutional
requirement of residence." . . for a period of not less than one year immediately preceding the day
of the election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to negate the Tacloban domicile of is nil. He
presented petitioners Voters Registration record filed with the Board of Election Inspectors of
Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein she stated that her period of residence in
said barangay was six (6) months as of the date of her filing of said Voters Registration Record on
January 28, 1995. 31 This statement in petitioners Voters Registration Record is a non-prejudicial
admission. The Constitution requires at least one (1) year residence in the district in which the
candidate shall be elected. In the case at bench, the reference is the First District of Leyte.
Petitioners statement proved that she resided in Olot six (6) months before January 28, 1995 but
did not disapprove that she has also resided in Tacloban City starting 1992. As aforestated, Olot and
Tacloban City are both within the First District of Leyte, hence, her six (6) months residence in Olot
should be counted not against, but in her favor. Private respondent also presented petitioners
Certificate of Candidacy filed on March 8, 1995 32 where she placed seven (7) months after Item
No. 8 which called for information regarding "residence in the constituency where I seek to be
elected immediately preceding the election." Again, this original certificate of candidacy has no
evidentiary value because on March 1, 1995 it was corrected by petitioner. In her
Amended/Corrected Certificate of Candidacy, 33 petitioner wrote "since childhood" after Item No. 8.
The amendment of a certificate of candidacy to correct a bona fide mistake has been allowed by this
Court as a matter of course and as a matter of right. As we held in Alialy v. COMELEC , 34 viz.:
"x
"The absence of the signature of the Secretary of the local chapter N P in the original certificate of
candidacy presented before the deadline September 11, 1959 did not render the certificate invalid.
The amendment of the certificate, although at a date after the deadline, but before the election,
was substantial compliance with the law, and the defect was cured."
It goes without saying that petitioners erroneous Certificate of Candidacy filed on March 8, 1995
cannot be used as evidence against her. Private respondents petition for the disqualification of
petitioner rested alone on these two (2) brittle pieces of documentary evidence petitioner s
Voters Registration Record and her original Certificate of Candidacy. Ranged against the evidence
of the petitioner showing her ceaseless contacts with Tacloban, private respondents two (2) pieces
of evidence are too insufficient to disqualify petitioner, more so, to her the right to represent the
people of the First District of Leyte who have overwhelmingly voted for her
Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public
office shall be free from any form of harassment and discrimination." 35 A detached reading of the
records of the case at bench will show that all forms of legal and extra-legal obstacles have been
thrown against. petitioner to prevent her from running as the peoples representative in the First
District of Leyte. In petitioners Answer to the petition to disqualify her, she averred: 36
x
"10. Petitioner s (herein private respondent Montejo) motive in filing the instant petition is devious.
When respondent (petitioner herein) announced that she was intending to register as a voter in
Tacloban City and run for Congress in the First District of Leyte, petitioner (Montejo) immediately
opposed her intended registration by writing a letter stating that she is not a resident of said city
but of Barangay Olot, Tolosa, Leyte. (Annex "2" of respondents affidavit, Annex "2"). After
respondent (petitioner herein) had registered as a voter in Tolosa following completion of her sixmonth actual residence therein, petitioner (Montejo) filed a petition with the COMELEC to transfer
the town of Tolosa from the First District to the Second District and pursued such move up to the
Supreme Court in G R No 118702, his purpose being to remove respondent (petitioner herein) as
petitioners (Montejos) opponent in the congressional election in the First District. He also filed a
bill, along with other Leyte Congressmen, seeking to create another legislative district, to remove
the town of Tolosa out of the First District, and to make it a part of the new district, to achieve his
purpose. However, such bill, did not pass the Senate. Having failed on such moves, petitioner now
filed the instant petition, for the same objective, as it is obvious that he is afraid to submit himself
along with respondent (petitioner herein) for the judgment and verdict of the electorate of the First
District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995."
These allegations which private respondent did not challenge were not lost to the perceptive eye of
Commissioner Maambong who in his Dissenting Opinion, 37 held:
"x
"Prior to the registration date January 28, 1995 the petitioner (herein private respondent
Montejo) wrote the Election Officer of Tacloban City not to allow respondent (petitioner herein) to
register thereat since she is a resident of Tolosa and not Tacloban City. The purpose of this move of
the petitioner (Montejo) is not lost to (sic) the Commission. In UND No. 95-001 (In the matter of
the Legislative Districts of the Provinces of Leyte, Iloilo, and South Cotabato, Out of Which the New
Provinces of Biliran, Guimaras and Saranggani Were Respectively Created), . . . Hon. Cirilo Roy
Montejo, Representative, First District of Leyte, wanted the Municipality of Tolosa, in the First
District of Leyte. The Hon. Sergio A.F. Apostol, Representative of the Second District of Leyte
opposed the move of the petitioner (Montejo). Under Comelec Resolution No. 2736 (December 29,
1994), the Commission on Elections refused to make the proposed transfer. Petitioner (Montejo)
filed Motion for Reconsideration of Resolution No. 2736 which the Commission denied in a
Resolution promulgated on February 1, 1995. Petitioner (Montejo) filed a petition
for certiorari before the Honorable Supreme Court (Cirilo Roy G. Montejo v. Commission on
Elections, G.R. No. 118702) questioning the resolution of the Commission. Believing that he could
get a favorable ruling from the Supreme Court, petitioner (Montejo) tried to make sure that the
respondent (petitioner herein) will register as a voter in Tolosa so that she will be forced to run as
Representative not in the First but in the Second District.
"It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously promulgated a
Decision penned by Associate Justice Reynato S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred the municipality of
Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third
District of the province of Leyte, is annulled and set aside. We also deny the Petition praying for the
transfer of the municipality of Tolosa from the First District to the Second District of the province of
Leyte. No costs.
"Petitioners (Montejos) plan did not work. But the respondent (petitioner herein) was constrained
to register in the Municipality of Tolosa where her house is instead of Tacloban City, her domicile. In
any case, both Tacloban City and Tolosa are in the same First Legislative District."
All these attempts to misuse our laws and legal processes are forms of rank harassments and
invidious discrimination against petitioner to deny her equal access to a public office. We cannot
commit any hermeneutic violence to the Constitution by torturing the meaning of equality, the end
result of which will allow the harassment and discrimination of petitioner who has lived a
controversial life, a past of alternating light and shadow. There is but one Constitution for all
Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and the worst way to interpret
the Constitution is to inject in its interpretation, bile and bitterness.
Sixth. In Gallego v. Vera, 38 we explained that the reason for this residence requirement is "to
exclude a stranger or newcomer, unacquainted with the conditions and needs of a community and
not, identified with the latter, from an elective office to serve that community . . .." Petitioners
lifetime contacts with the First District of Leyte cannot be contested. Nobody can claim that she is
not acquainted with its problems because she is a stranger to the place. None can argue she cannot
satisfy the intent of the Constitution.
Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of
the electorate. The election results show that petitioner received Seventy Thousand Four Hundred
Seventy-One (70,471) votes, while private respondent got only Thirty-Six Thousand Eight Hundred
Thirty-Three (36,833) votes. Petitioner is clearly the overwhelming choice of the electorate of the
First District of Leyte and this is not a sleight of statistics. We cannot frustrate this sovereign will on
highly arguable technical considerations. In case of doubt, we should lean towards a rule that will
give life to the peoples political judgment.
A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality
of status between women and men by rejecting the iniquitous common law precedents on the
domicile of married women and by redefining domicile in accord with our own culture, law, and
Constitution. To rule that a married woman is eternally tethered to the domicile dictated by her
dead husband is to preserve the anachronistic and anomalous balance of advantage of a husband
over his wife. We should not allow the dead to govern the living even if, the glories of yesteryears
seduce us to shout long live the dead ! The Family Code buried this gender-based discrimination
against married women and we should not excavate what has been entombed. More importantly,
the Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concurs.
VITUG, J., dissenting:
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 compliant 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 in manifest (see Marcelino v. 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:
"SECTION 6. No person shall be a Member of the House of Representatives unless he is a naturalborn 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."
"SECTION 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 of candidates to an elective office. Indeed, preproclamation controversies are expressly placed under the COMELECs 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 may mean permanent (domicile),
official (place where ones 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 v. Regional Trial Court, Branch 7, Tacloban City
(226 SCRA 408, 409); thus:
"In election cases, the Court treats domicile and residence as synonymous terms, this: (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
basically be animus 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 COMELECs 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 Courts 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

"x
"SECTION 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 his guilt is strong."
BATAS PAMBANSA BLG. 881
"x
"SECTION 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."
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 v. Paredes (23
Phil. 238 [1912]) which, although later abandoned in Ticzon v. Comelec (103 SCRA 687 [1981]),
and Santos v. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case of
Geronimo v. 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 11994])
rulings. Benito v. 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 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 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.)
"Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the
earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and
democratic rule. That case, which reiterated the doctrine first 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 carried unless he or it receives a majority or
plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.)
meaningless. (at pp. 20-21)"
Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J., concurring:
In my view the issue in this case is whether the Commission on Elections has the power to
disqualify candidates on the ground that they lack eligibility for the office to which they seek to be
elected. I think that it has none and that the qualifications of candidates may be questioned only in
the event they are elected, by filing a petition for quo warranto or an election protest in the
appropriate forum, not necessarily in the COMELEC but, as in this case, in the House of
Representatives Electoral Tribunal. That the parties in this case took part in the proceedings in the
COMELEC is of no moment. Such proceedings were unauthorized and were not rendered valid by
their agreement to submit their dispute to that body.
The various election laws will be searched in vain for authorized proceedings for determining a
candidates qualifications for an office before his election. There are none in the Omnibus Election
Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987 (R.A. No. 6646), or in the law providing
for synchronized elections (R.A. No. 7166). There are, in other words, no provisions for preproclamation contests but only election protests or quo warranto proceedings against winning
candidates.
To be sure, there are provisions denominated for "disqualification," but they are not concerned with
a declaration of the ineligibility of a candidate. These provisions are concerned with the incapacity
(due to insanity, incompetence or conviction of an offense) of a person either to be a candidate or
to continue as a candidate for public office. There is also a provision for the denial or cancellation of
certificates of candidacy, but it applies only to cases involving false representations as to certain
matters required by law to be stated in the certificates.
These provisions are found in the following parts of the Omnibus Election Code:
12. Disqualifications. 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.
The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or after
the expiration of a period of five years from his service of sentence, unless within the same period
he again becomes disqualified. (Emphasis added)
68. Disqualifications. Any candidate who, in an action or protest in which he is a party is
declared by final decision of a 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 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. (Emphasis added)
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 person
exclusively 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 added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
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 for 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. (Emphasis added)
7. 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.
and the Local Government Code of 1991 (R.A. No. 7160):
40. Disqualifications. The following persons are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case,
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad
and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For
Cancellation and Disqualification," contained no allegation that private respondent Imelda
Romualdez-Marcos made material representations in her certificate of candidacy which were false. It
sought her disqualification on the ground that "on the basis of her Voter Registration Record and
Certificate of Candidacy, [she] is disqualified from running for the position of Representative,
considering that on election day, May 8, 1995, [she] would have resided less than ten (10) months
in the district where she is seeking to be elected." For its part, the COMELECs Second Division, in
its resolution of April 24, 1995, cancelled her certificate of candidacy and corrected certificate of
candidacy on the basis of its finding that petitioner is "not qualified to run for the position of
Member of the House of Representatives for the First Legislative District of Leyte" and not because
of any finding that she had made false representations as to material matters in her certificate of
candidacy.
Montejos petition before the COMELEC was therefore not a petition for cancellation of certificate of
candidacy under 78 of the Omnibus Election Code, but essentially a petition to declare private
respondent ineligible. It is important to note this, because, as will presently be explained,
proceedings under 78 have for their purpose to disqualify a person from being a candidate,
whereas quo warranto proceedings have for their purpose to disqualify a person from holding public
office. Jurisdiction over quo warranto proceedings involving members of the House of
Representatives is vested in the Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates
of candidacy, the allegations were that the respondent candidates had made false representations in
their certificates of candidacy with regard to their citizenship, 1 age, 2 or residence. 3 But in the
generality of cases in which this Court passed upon the qualifications of respondents for office, this
Court did so in the context of election protests 4 or quo warranto proceedings 5 filed after the
proclamation of the respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized proceeding for determining
before election the qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast, whether an individual should be disqualified as
a candidate for acts constituting election offenses (e.g., vote buying, over spending, commission of
prohibited acts) is a prejudicial question which should be determined lest he wins because of the
very acts for which his disqualification is being sought. That is why it is provided that if the grounds
for disqualification are established, a candidate will not be voted for; if he has been voted for, the
votes in his favor will not be counted; and if for some reason he has been voted for and he has won,
either he will not be proclaimed or his proclamation will be set aside. 6
Second is the fact that the determination of a candidates eligibility, e.g., his citizenship or, as in
this case, his domicile, may take a long time to make, extending beyond the beginning of the term
of the office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito A.
Aquino v. COMELEC) where the determination of Aquinos residence was still pending in the
COMELEC even after the elections of May 8, 1995. This is contrary to the summary character of
proceedings relating to certificates of candidacy. That is why the law makes the receipt of
certificates of candidacy a ministerial duty of the COMELEC and its officers. 7 The law is satisfied if
candidates state in their certificates of candidacy that they are eligible for the position which they
seek to fill, leaving the determination of their qualifications to be made after the election and only in
the event they are elected. Only in cases involving charges of false representations made in
certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections for
President, Vice President, Senators and members of the House of Representatives. (R.A. No. 7166,
15) The purpose is to preserve the prerogatives of the House of Representatives Electoral Tribunal
and the other Tribunals as "sole judges" under the Constitution of the election, returns and
qualifications of members of Congress or of the President and Vice President, as the case may be.
By providing in 253 for the remedy of quo warranto for determining an elected officials
qualifications after the results of elections are proclaimed, while being conspicuously silent about a
pre-proclamation remedy based on the same ground, the Omnibus Election Code, or OEC, by its
silence underscores the policy of not authorizing any inquiry into the qualifications of candidates
unless they have been elected.
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates,
the COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25, 1 the
following:
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.
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a
mere rule. Such an act is equivalent to the creation of a cause of action which is a substantive
matter which the COMELEC, in the exercise of its rule making power under Art. IX, A, 6 of the
Constitution, cannot do. It is noteworthy that the Constitution withholds from the COMELEC even
the power to decide cases involving the right to vote, which essentially involves an inquiry into
qualifications based on age, residence and citizenship of voters. (Art. IX, C, 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in their grounds but also
in their consequences are proceedings for "disqualification" different from those for a declaration of
"ineligibility." "Disqualification proceedings, as already stated, are based on grounds specified in
12 and 68 of the Omnibus Election Code and in 40 of the Local Government Code and are for the
purpose of barring an individual from becoming a candidate or from continuing as a candidate for
public office. In a word, their purpose is to eliminate a candidate from the race either from the start
or during its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications
prescribed in the Constitution or the statutes for holding public office and the purpose of the
proceedings for declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not imply that
he is not disqualified from becoming a candidate or continuing as a candidate for a public office and
vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien
has the qualifications prescribed in 2 of the law does not imply that he does not suffer from any of
disqualifications provided in 4.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited
election practices or offenses, like other pre-proclamation remedies, are aimed at the detestable
practice of grabbing the proclamation and prolonging the election protest," 8 through the use of
"manufactured" election returns or resort to other trickery for the purpose of altering the results of
the election. This rationale does not apply to cases for determining a candidates qualifications for
office before the election. To the contrary, it is the candidate against whom a proceeding for
disqualification is brought who could be prejudiced because he could be prevented from assuming
office even though in end he prevails.
To summarize, the declaration of ineligibility of a candidate may only be sought in an election
protest or action for quo warranto filed pursuant to 253 of the Omnibus Election Code within 10
days after his proclamation. With respect to elective local officials (e.g., Governor, Vice Governor,
members of the Sangguniang Panlalawigan, etc.) such petition must be filed either with the
COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as provided in Art. IX, C, 2(2) of
the Constitution. In the case of the President and Vice President, the petition must be filed with the
Presidential Electoral Tribunal (Art. VII, 4, last paragraph), and in the case of the Senators, with
the Senate Electoral Tribunal, and in the case of Congressmen, with the House of Representatives
Electoral Tribunal. (Art. VI, 17) There is greater reason for not allowing before the election the
filing of disqualification proceedings based on alleged ineligibility in the case of candidates for
President, Vice President, Senators and members of the House of Representatives, because of the
same policy prohibiting the filing of pre-proclamation cases against such candidates.
For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009;
that its proceedings in that case, including its questioned orders, are void; and that the eligibility of
petitioner Imelda Romualdez-Marcos for the office of Representative of the First District of Leyte
may only be inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the proceedings of the Commission on
Elections in SPA No. 95-009, including its questioned orders dated April 24, 1995, May 7, 1995, May
11, 1995 and May 25, 1995, declaring petitioner Imelda Romualdez-Marcos ineligible and ordering
her proclamation as Representative of the First District of Leyte suspended. To the extent that Rule
25 of the COMELEC Rules of Procedure, authorizes proceedings for the disqualification of candidates
on the ground of ineligibility for the office, it should considered void.
The provincial board of canvassers should now proceed with the proclamation of petitioner.
Narvasa, C.J., concurs.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunans ponencia finding petitioner qualified for the position of
Representative of the First Congressional District of Leyte. I wish, however, to express a few
comments on the issue of petitioners domicile.
Domicile has been defined as that place in which a persons habitation is fixed, without any present
intention of removing therefrom, and that place is properly the domicile of a person in which he has
voluntarily fixed his abode, or habitation, not for a mere special or temporary purpose, but with a
present intention of making it his permanent home (28 C.J. S. 1). It denotes a fixed permanent
residence to which when absent for business, or pleasure, or for like reasons one intends to return,
and depends on facts and circumstances, in the sense that they disclose intent. (Ong Huan Tin v.
Republic, 19 SCRA 966, 969)
Domicile is classified into domicile of origin of choice. The law attributes to every individual a
domicile of origin, which is the domicile of his parents, or of the head of his family, or of the person
on whom he is legally dependent at the time of his birth. We the domicile of origin is generally the
place where one is born or reared, it maybe elsewhere (28 C.J.S. 5). Domicile of choice, on the
other hand, is the place which the person has elected and chosen for himself to displace his
previous domicile; it has for its true basis or foundation the intention of the person (28 C.J.S., 6).
In order to hold that a person has abandoned his domicile and acquired a new one called domicile of
choice, the following requisites must concur, namely, (a) residence or bodily presence in the new
locality, (b) intention to remain there or animus manendi, and (c) an intention to abandon the old
domicile or animus non revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408, 415). A
third classification is domicile by operation of law which attributes to a person a domicile
independent of his own intention or actual residence, ordinarily resulting from legal domestic
relations, as that of the wife arising from marriage, or the relation of a parent and a child (28 C.J.S.
7).
In election law, when our Constitution speaks of residence for election purposes it means domicile
(Co v Electoral Tribunal of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52
Phil. 645, 651). To my mind, public respondent Commission on Elections misapplied this concept of
domicile which led to petitioners disqualification by ruling that petitioner failed to comply with the
constitutionally mandated one-year residence requirement. Apparently, public respondent
Commission deemed as conclusive petitioners stay and registration as voter in many places as
conduct disclosing her intent to abandon her established domicile of origin in Tacloban, Leyte. In
several decisions, though, the Court has laid down the rule that registration of a voter in a place
other than his place of origin is not sufficient to constitute abandonment or loss of such residence
(Faypon v. Quirino, 96 Phil. 294, 300). Respondent Commission offered no cogent reason to depart
from this rule except to surmise petitioners intent of abandoning her domicile of origin.
It has been suggested that petitioners domicile of origin was supplanted by a new domicile due to
her marriage, a domicile by operation of law. The proposition is that upon the death of her husband
in 1989 she retains her husbands domicile, i.e., Batac, Ilocos Norte, until she makes an actual
change thereof. I find this proposition quite untenable.
Tacloban, Leyte, is petitioners domicile of origin which was involuntarily supplanted with another,
i.e., Batac, Ilocos Norte, upon her marriage in 1954 with then Congressman Marcos. By legal fiction
she followed the domicile of her husband. In my view, the reason for the law is for the spouses to
fully and effectively perform their marital duties and obligations to one another. 1 The question of
domicile, however, is not affected by the fact that it was the legal or moral duty of the individual to
reside in a given place (28 C.J.S. 11). Thus, while the wife retains her marital domicile so long as
the marriage subsists, she automatically loses it upon the latters termination. for the reason behind
the law then ceases. Otherwise, Petitioner, after her marriage was ended by the death of her
husband, would be placed in a quite absurd and unfair situation of having been freed from all wifely
obligations yet made to hold on to one which no longer serves any meaningful purpose.
It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her
husbands death without even signifying her intention to that effect. It is for the private respondent
to prove, not for petitioner to disprove, that petitioner has effectively abandoned Tacloban, Leyte
for Batac, Ilocos Norte or for some other place/s. The clear rule is that it is the party (herein private
respondent) claiming that a person has abandoned or lost his residence of origin who must show
and prove preponderantly such abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S.
16), because the presumption is strongly in favor of an original or former domicile, as against an
acquired one (28 C.J.S. 16). Private respondent unfortunately failed to discharge this burden as
the record is devoid of convincing proof that petitioner has acquired, whether voluntarily or
involuntarily, a new domicile to replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has complied with the constitutional oneyear residence requirement. After her exile abroad, she returned to the Philippines in 1991 to reside
in Olot, Tolosa, Leyte, but the Presidential Commission on Good Government which sequestered her
residential house and other properties forbade her necessitating her transient stay in various places
in Manila (Affidavit p. 6, attached as Annex I of the Petition). In 1992, she ran for the position of
president writing in her certificate of candidacy her residence as San Juan, Metro Manila. After her
loss therein, she went back to Tacloban City, acquired her residence certificate 2 and resided with
her brother in San Jose. She resided in San Jose, Tacloban City until August of 1994 when she was
allowed by the PCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte
(Annex I, p. 6). 3 It was in the same month of August when she applied for the cancellation of her
previous registration in San Juan, Metro Manila in order to register anew as voter of Olot, Tolosa,
Leyte, which she did on January 28, 1995. From this sequence of events, I find it quite improper to
use as the reckoning period of the one-year residence requirement the date when she applied for
the cancellation of her previous registration in San Juan, Metro Manila. The fact which private
respondent never bothered to disprove is that petitioner transferred her residence after the 1992
presidential election from San Juan, Metro Manila to San Jose, Tacloban City, and resided therein
until August of 1994. She later transferred to Olot, Tolosa, Leyte (Annex I p. 7). It appearing that
both Tacloban City and Tolosa, Leyte are within the First Congressional District of Leyte, it
indubitably stands that she had more than a year of residence in the constituency she sought to be
elected. Petitioner, therefore, has satisfactorily complied with the one-year qualification required by
the 1987 Constitution.
I vote to grant the petition.
Endnotes:
1. Jarrolt v. Mabberly, 103 U.S. 580 (1881)

2. CONST, art, VI, states:
Sec. 6. No person shall be a member of the House of Representatives unless he is a natural-born

citizens 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
preceding the day of the election. See, Jarrolt v. Mabberly, supreme, note 1.
3. Gallego v. Vera, 73 Phil, 453 (1941)
4. Rollo, p. 114, Annex "D."
5. Rollo, p. 110, Annex "D."
6. Rollo, p. 113.
7. Rollo, p. 111.
8. Rollo, p. 115, Annex "E."
9. Signed by Virgilio S. Oledan, Provincial Election Supervisor IV, Leyte; Rollo, p. 116, Annex "F."
10. Rollo, p. 117, Annex "G." Petitioner explained the circumstances surrounding the filling up of the
original certificate thus:
"1. On March 8, 1995, I filed my certificate of candidacy for Member of the House of
Representatives (Congresswoman) of the First Legislative District of the province of Leyte, which
was drafted by Mr. Filomeno A. Zeta.
"2. I learned lately that Congressman Cirilo Montejo wants to disqualify me as I allegedly lack
residence in the constituency because of the entry of the word SEVEN in Item No. 8 of my
certificate of candidacy.
"3. I read my certificate of candidacy before signing it and I thought of the word RESIDENCE to
mean actual or physical residence, and the word SEVEN merely reflected my actual the physical
residence in Barangay Olot, Tolosa, Leyte.
"3.1. The word SEVEN was placed on my certificate of candidacy to indicate that at lease one (I.)
month had passed from my registration as voter of Tolosa, Leyte, on January 28, 1995, when I
wrote 06 months under PERIOD OF RESIDENCE as my actual or Physical residence in the town.
"4. I thought then that the sense in Item No. 10 of my certificate of candidacy stating THAT I AM
eligible for said Office was sufficient to affirm that I possess all the qualifications, including my
residence, for Member of the House of Representatives for which I am aspiring in the May 8, 1995
elections.
"5. The fact, however, is that my domicile or residence of origin is Tacloban City, a component city
of the First Legislative District of Leyte. I never intended to abandon this domicile or residence of
origin to which I always intended to return whenever absent, indeed in 1992, returned to Tacloban
City to live and stay there. On November 5, 1992, I bought my Residence Certificate No. 15226186L
there, which is made an integral part hereof as Annex "I." (Annex "2" hereof)
11. Id., at p. 120. See also, Rollo, p. 130-133, Annex "I", petitioners affidavit explaining her
residence:
"13. I established my domicile, however in Tacloban, Leyte (Tacloban City in 1938, when I was little
over eight (8) years old. Shortly after my mother died on April 7, 1938, my widowed father, Vicente
Orestes Romualdez, brought me and my brothers...and my sisters to Tacloban, Leyte (now Tacloban
City) his hometown.
x
"18. I have always considered Tacloban City as my permanent residence or residence of origin. I
have not abandoned and have never intended to abandon my permanent residence or residence of
origin there. To it I always intend to return whenever absent."
"19. In 1952, I went to Manila to work with my cousin, the late speaker Daniel Z. Romualdez in his
office in the House of Representatives."
"20. In May, 1954, I married President Ferdinand E. Marcos when he was still the congressman of
Ilocos, Norte.
"21. As a dutiful wife who loved him deeply, I lived with him in Batac, Ilocos Norte and registered as
a voter there."
"22. In 1965, my husband was elected President of the Republic of the Philippines. Together, we
lived in Malacaang Palace and I registered as a voter in San Miguel, Manila."
"23. My registration as voter in Batac, Ilocos Norte; San Juan, Rizal (now San Juan, Metro Manila);
and San Miguel, Manila, was for convenience because I had to live with my husband to serve him
when he was congressman, Senator and President of the Republic of the Philippines. During those
years however, I never intended nor desired to abandon my domicile or residence of origin in
Tacloban City, which I established since I was a child.
x
"33. Throughout the Marcos Presidency, I spent most of my birthday anniversaries and attended the
Sto. Nini Fiesta in Tacloban City. I regularly visited my domicile or residence of origin in Leyte and
even held important functions and entertained guests and foreign dignitaries there."
"34. After President Ferdinand E. Marcos and I, together with our children and innocent
grandchildren were abducted and kidnapped to Honolulu, Hawaii, in February, 1986, my Leyte
properties were sequestered by the PCGG, and were destroyed and cannibalized."
"38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or in
Olot, Tolosa Leyte even if my residences there were not livable as they had been destroyed and
cannibalized. The PCGG, however, did not permit and allow me.
x
"40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in San
Jose, Tacloban City, and pursued my negotiations with PCGG to recover my sequestered residences
in Tacloban City and Barangay Olot, Tolosa, Leyte."
12. Rollo, p. 122.

13. Commissioners Manolo B. Gorospe and Teresita Dy-Liaco Flores formed the majority opinion.
Commissioner Remedios A. Salazar-Fernando dissented.
14. Rollo, p. 64.
15. Rollo, p. 57-64.
16. Petitioner filed a "Motion to Recall Resolution Promulgated on April 24, 1995 and to Dismiss the
Petition Because of Lapse of Jurisdiction; Alternatively Motion to Reconsideration. "The
Commissions May 7, 1995 Resolution treated the same simply as Motion to Reconsideration.
17. Commissioners Regalado E. Maambong, Remedios A. Salazar Fernando and Julio F. Desamito
dissented. All filed separate dissenting opinions. In disqualifying petitioner, the majority held:
"As it stands now, only the Certificate of Candidacy respondent filed on March 8, 1995, stands, and
on the basis of the entries therein, she is disqualified to run for the House of Representatives for
failure to meet the constitutional requirement of one (1) year of residence in the place where she
wanted to be elected.
18. Rollo, p. 78, Annex "B."
19. Rollo, p., Annex "D."
20. 19 SCRA 966 (1967). See also, Corre v. Corre, 100 Phil 221 (1956).
21. Id, at 969.
22. Uytengsu v. Republic, 95 Phil, 890 (1954).
23. Id.
24. 52 Phil. 645 (1928).
25. Citing People v. Bender 144 N.Y.S., 145.
26. 61 Phil. 36 (1934).
27. 96 Phil. 294 (1954).
28. Id, see also Ujano v. Republic, 17 SCRA 147 (1966); Nuval v. Guray, supra note 22.
29. II RECORD OF THE 1987 CONSTITUTIONAL CONVENTION, 110 (July 22, 1986).
30. Id.
31. 199 SCRA 692 (1991).
32. Id, at 714.
33. 61 Phil. 36 (1934).

34. 96 Phil, 299-300 (1954).
35. B.P. 881, sec. 117 states:
cha
"Any person who transfer residence to another city, municipality or country solely by reason of his
occupation; profession; employment in private or public service; educational activities; work in
military or naval reservations; service in the army, navy or air force; the constabulary or national
police force; or confinement or detention in government institutions in accordance with law shall not
be deemed to have lost his original residence.
36. Rollo, p. 38.
37. 18 Am Jur 219-220.
38. 20 Am Jur 71.
39. TOLENTINO, 1 COMMENTARIES & JURISPRUDENCE ON THE CIVIL CODE, 220 (1987).
40. Id.
41. TOLENTINO, 1 COMMENTARIES AND JURISPRUDENCE ON CIVIL CODE, 220 (1987).
42. "Under modern laws, it is clear that many exceptions to the rule that the domicile of the wife is
determined by that of her husband must obtain. Accordingly,. the wife may acquire another and
separate domicile from that of her husband where the theoretical unity of the husband and wife is
dissolved, as it is by the institution of divorce proceedings; or where the husband has given cause
for divorce; or where there is a separation of the parties by agreement, or a permanent separation
due to desertion of the wife by the husband or attributable to cruel treatment on the part of the
husband; or where there has been a forfeiture by the wife of the benefit of the husbands domicile."
9 R.C.L., 545, cited in De La Vina, supra. If the law allows the wife to automatically revert to her
original domicile or acquire a new domicile under these situations, all the more should it sanction a
reversion or the acquisition of a new domicile by the wife upon the death of her husband.
43. 41 Phil. 13 (1920).
44. The rule that the wife automatically acquires or follows her husbands domicile is not absolute
one. A specific situation recognized in Spanish jurisprudence involves the one in which husband
acquiesces (1 Manresa 223) or gives his tacit consent (Scaevola, Civil Code, 354).
45. 42 Phil. 54 (1991).
46. Justice Alicia Sempio-Diy recognizes the same Civil Code distinction, However, taking another
approach, she writes:
(6) The above Article (Article 59, FC) uses the term "family domicile" instead of family residence
because the spouses may have multiple residences, and the wife may elect to remain in one of such
residence, which may destroy the duty of the spouses to live together and its corresponding
benefits. SEMPIO-DIY, HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES, 102 (1988).
47. Rollo, pp. 132-133.
48. The provision reads: Section 78. Petition to deny due course or to 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 person exclusively 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 filing of the certificate of candidacy and shall be decided
after due notice and hearing, not later than fifteen days before the election.
49. Marcelino v. Cruz, 121 SCRA 51 (1983)
50. American Tupe Founders Co, v. Justices Court, 133 Cal. 819, 65 Pac. 742; Heillen v. Phillipps,
88 Cal. 557, 26 Pac. 336; Drake v. Bagley, 69 Mo. App. 39; State v. Davis, 194 Mo. 585.
51. Supra, note 39, citing Huffines v Gold 154 Tenn. 583, 588, 288 S.W. 353, 354.
52. 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 thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
SEC. 7. Petition to Deny Due Course or to 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.
53. CONST., art. VI, sec. 11 states:
The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the
sole judge of all questions relating to the election, returns, and qualifications of their respective
Member. . . .
PADILLA, J., dissenting:
1. Nuval v. Guray, G.R. No. 30241, December 29, 1928; Larena v. Teves, G.R. No. 42439,
December 10, 1934; Gallego v. Verra, G.R. No. 48641, November 24, 1941; De los Reyes v.
Solidum, G.R. No. 42798. August 31, 1935; but see Romualdez v. RTC, Br. 7 Tacloban City, where a
sudden departure from the country was not deemed "voluntary" so as to constitute abandonment of
domicile both in fact and in law.
2. Annex "A" Petition, pp. 2-4.
REGALADO, J., dissenting:
1. Struble v. Struble, tex. Civ. App., 177 S.W. 2d, 279, 283.
2. This is also referred to as natural domicile or domicile by birth (Johnson v. Twenty-One Bales, 13
Fed. Cas. 863).
3. Story, Conflict of Laws, Sec. 46; Railroad Co. v. Kimbrough, 115 Ky 512, 74 S.W. 229; and
Johnson v. Harvey, 261 Ky, 522, 88 S.W. 2d 42, 46, 47, as cited in Blacks Law Dictionary, 4th ed.
4. Article 110, Civil Code.
5. Towson v. Towson, 126 Va. 640, 102 S.E. 48, 52; Fisher v. Jordan, C.C.A. Tex., 116 F. 2d. 183.
186; Minick v. Minick, 111 Fla. 469, 149 So. 483, 488; Hartzer v. Radeka, 265 Mich.. 451, 251 N.W.
554.
6. Citing 18 Am. Jur. 219-220.
7. Montejo v. Marcos, En Banc, May 10, 1995.
8. Citing 20 Am. Jur. 71.
9. Cheely v. Clayton, D.C., 110 U.S. 701, L Ed. 298.
10. In re Gates Estate, 191 N.Y.S. 757, 117 Misc. 800 -- In re Greens Estate, 164 N.Y.S. 1063, 99
Misc. 582, affirmed 165 N.Y.S. 1088, 179 App. Div. 890, as reported in 28 C.J.S. 27.
11. Clark v. Baker, 196 S.E. 750, 186 Ga. 65, op. cit. 37.
ROMERO, J., concurring:
1. Art. VI, Sec. 6, Const.: "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."
2. Art. 110: "The husband shall fix the residence of the family. But the court may exempt the wife
3. Art. 110, Civil Code.
13. Art. II; Sec. 2, Const.
14. Part IV, Art. 15 Paragraph 4 CEDAW.
15. Executive Order No. 209, July 6, 1987, as amended by Executive Order No. 227, July 17, 1987,
which took effect on August 3, 1988.
16. Art. II, Sec. 11, Const.
17. Art. II, Sec. 14, Const.
18. Art. 69, Family Code.
22. Republic Act No. 7192 approved February 12, 1992.
23. Ibid., Sec. 5.
PUNO, J., concurring:
1. Aristotle, Ethica Nichomachea, bk., v. 3, 1131 (a) (W. Ross translation, 1925 ed).
2. It provides: "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
preceding the day of the election." (Emphasis supplied).

3. There are two (2) other instances when a married woman may have a domicile different from the
husband: (1) if they are legally separated pursuant to par. 1, Art. 106 of the Civil Code, and (2) is
the husband forcibly ejects the wife from the conjugal home to have illicit relations with another.
(De la Via v. Villareal and Geopano, 41 Phil. 13 [1920]).
4. Op cit.
5. Id., at pp. 16-17.
6. Id., at p. 20, citing 1 Maresa 223.
7. 25 AM JUR 2nd S. 48, p. 37.
8. 28 CJS on Domicile, S. 12, 27; 25 AM JUR 2nd on Domicile S. 62, 46.
9. 28 CJS, S. 12, p. 24.
10. Restatement of the Law, 2d, Conflict of Laws 2d., S. 21, p. 84.
11. Ibid.
12. 83 U.S. 442; 21 Law Ed. 442; S.C. 16 Wall 130.
13. Supra.
14. Supra.
15. In re Greens Estate, 191 N.Y.S. 757, 117 Misc. 800, 165 N.Y.S., 1063, 99 Misc. 582.
16. Clark Et. Al. v. Baker Et. Al., 196 SE 750, 186 Ga 65.
17. Lefcourt, women and The Law, 1990 ed.
18. 404 US 71.
19. 28 CJS S. 12, p. 25 citing Shute v. Sargent, 36 A 282, 67 N.H. 305.
20. Op cit., p. 84.
21. Womens Status in Philippine Society, UP Law Center, 1979, pp. 4-6.
22. In submitting the draft of the Family Code to President Corazon Aquino, the Civil Code Revision
Committee stated:
"Close to forty years of experience under the Civil Code adopted in 1949 and changes and
developments in all aspects of Filipino life since then have revealed the unsuitability of certain
provisions of that Code, implanted from foreign sources, to Philippine culture; the unfairness,
unjustness, and gaps or inadequacies of others; and the need to attune them to contemporary
developments and trends.
In particular to cite only a few instances (1) the property regime of conjugal partnership of
gains is not in accord with Filipino custom, especially in the rural areas, which is more congenial to
absolute community of property; (2) there have considerably been more grounds for annulment of
marriage by the church than those provided by the Code, thus giving rise to the absurd situation of
several marriages already annulled under Canon Law but still considered subsisting under the Civil
Law and making it necessary to make the grounds for annulment under both laws to coincide; (3)
unequal treatment of husband and wife as to rights and responsibilities, which necessitates a
response to the long-standing clamor for equality between men and women now mandated as a
policy to be implemented under the New Constitution; (4) the inadequacy of the safeguards for
strengthening marriage and the family as basic social by the New Constitution; (5) recent
developments have shown the absurdity of limiting the grounds for legal separation to the
antiquated two grounds provided under the Civil Code; (6) the need for additional safeguards to
protect our children in the matter of adoption by foreigners; and (7) to bring our law on paternity
and filiation in step with or abreast of the latest scientific discoveries." (Emphasis supplied)
23. Article 96, Family Code.
28. Op cit., Handbook on the Family Code of the Philippines, pp. 98-99.
29. As cited in Diy, Handbook on the Family Code of Philippines, pp. 184-185.
30. Section 1, Article III of the Constitution provides "No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be denied the equal protection of the
laws."
31. Exhibit "E" ; see also Exhibit "B" in SPA No. 95-001.
32. Exhibit "A" in SPA No. 95-009.
33. Exhibit "2" in SPA No. 95-009.
34. 2 SCRA 957, 960 (1961); See Canceran v. COMELEC, 107 Phil. 607 (1960); Gabaldon v.
COMELEC, 99 Phil. 898 (1956).
35. Section 26, Article II of the Constitution also provides: "The State shall guarantee equal access
to opportunities for public service . . .."
36. Annex "G," Petition.

37. Petition, annex "B-1," pp. 6-7.
38. 73 Phil; 453, 459 (1951).
MENDOZA, J., concurring:
1. Labo, Jr. v. COMELEC, 211 SCRA 297 (1992) (for mayor).

2. Loong v. COMELEC, 216 SCRA 760 (1992) (for regional vice governor).
3. Abella v. Larrazabal, 180 SCRA 509 (1989); Abella v. COMELEC, 201 SCRA 253 (1991) (for
provincial governor).
4. Co v. HRET, 199 SCRA 692 (1991) (election protest against a Congressman).
5. Faypon v. Quirino, 96 Phil. 294 (1954) (quo warranto against a governor); Gallego v. Verra, 73
Phil. 453 (1941) (quo warranto against a mayor); Larena v. Teves, 61 Phil. 36 (1934) (quo
warranto against a provincial board member); Tanseco v. Arteche, 57 Phil. 227 (1932) (quo
warranto against a municipal president); Vivero v. Murillo, 52 Phil. 694 (1929) (quo warranto
against a municipal president). Cf. Aznar v. COMELEC, 185 SCRA 703 (1990) (quo warranto,
although prematurely filed, against a governor-elect).
6. R.A. No. 6646, 6; Labo, Jr. v. COMELEC, supra note 1.
7. OEC, 76.
8. Lagumbay v. COMELEC, 16 SCRA 175 (1966).

FRANCISCO, J., concurring:
1. See Article 68-73 of E.O. 209, as amended, otherwise known as The Family Code of the
Philippines.
2. Residence Certificate No. 15226186L, dated Nov. 5, 1992.
3. PCGG Chairman Gunigundos letter addressed to Col. Kempis.
EN BANC
G.R. No. 78059 August 31, 1987
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C.
STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA
and JOSE M. RESURRECCION, Petitioners, vs.HON.
BENJAMIN B. ESGUERRA, in his capacity as OIC
Governor of the Province of Rizal, HON. ROMEO C. DE
LEON, in his capacity as OIC Mayor of the Municipality of
Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M.
TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA,
ROSENDO S. PAZ, and TERESITA L.
TOLENTINO, Respondents.
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MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners
seeking to enjoin respondents from replacing them from their
respective positions as Barangay Captain and Barangay
Councilmen of Barangay Dolores, Municipality of Taytay,
Province of Rizal.
As required by the Court, respondents submitted their

Comment on the Petition, and petitioner's their Reply to
respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner

Alfredo M. De Leon was elected Barangay Captain and the
other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C.
Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as
Barangay Councilmen of Barangay Dolores, Taytay, Rizal under
Batas Pambansa Blg. 222, otherwise known as the Barangay
Election Act of 1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a

Memorandum antedated December 1, 1986 but signed by
respondent OIC Governor Benjamin Esguerra on February 8,
1987 designating respondent Florentino G. Magno as Barangay
Captain of Barangay Dolores, Taytay, Rizal. The designation
made by the OIC Governor was "by authority of the Minister of

Local Government."
Also on February 8, 1987, respondent OIC Governor signed a

Memorandum, antedated December 1, 1986 designating
respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro
V. Medina, Roberto S. Paz and Teresita L. Tolentino as
members of the Barangay Council of the same Barangay and
Municipality.
That the Memoranda had been antedated is evidenced by the

Affidavit of respondent OIC Governor, the pertinent portions of
which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed as

such on March 20, 1986;
That as being OIC Governor of the Province of Rizal and in the

performance of my duties thereof, I among others, have
signed as I did sign the unnumbered memorandum ordering
the replacement of all the barangay officials of all the
barangay(s) in the Municipality of Taytay, Rizal;
That the above cited memorandum dated December 1, 1986

was signed by me personally on February 8,1987;
That said memorandum was further deciminated (sic) to all

concerned the following day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.

Before us now, petitioners pray that the subject Memoranda of
February 8, 1987 be declared null and void and that
respondents be prohibited from taking over their positions of
Barangay Captain and Barangay Councilmen, respectively.
Petitioners maintain that pursuant to Section 3 of the
Barangay Election Act of 1982 (BP Blg. 222), their terms of

office "shall be six (6) years which shall commence on June 7,
1982 and shall continue until their successors shall have
elected and shall have qualified," or up to June 7, 1988. It is
also their position that with the ratification of the 1987
Constitution, respondent OIC Governor no longer has the
authority to replace them and to designate their successors.
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virtual law library
On the other hand, respondents rely on Section 2, Article III of

the Provisional Constitution, promulgated on March 25, 1986,
which provided:
SECTION 2. All elective and appointive officials and employees
under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon
the designation or appointment and qualification of their
successors, if such appointment is made within a period of one
year from February 25,1986.
By reason of the foregoing provision, respondents contend that
the terms of office of elective and appointive officials were
abolished and that petitioners continued in office by virtue of
the aforequoted provision and not because their term of six
years had not yet expired; and that the provision in the
Barangay Election Act fixing the term of office of Barangay
officials to six (6) years must be deemed to have been
repealed for being inconsistent with the aforequoted provision
of the Provisional Constitution.
Examining the said provision, there should be no question that

petitioners, as elective officials under the 1973 Constitution,
may continue in office but should vacate their positions upon
the occurrence of any of the events mentioned. 1
Since the promulgation of the Provisional Constitution, there

has been no proclamation or executive order terminating the
term of elective Barangay officials. Thus, the issue for
resolution is whether or not the designation of respondents to
replace petitioners was validly made during the one-year
period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor,

we hold that February 8, 1977, should be considered as the
effective date of replacement and not December 1,1986 to
which it was ante dated, in keeping with the dictates of
justice.
But while February 8, 1987 is ostensibly still within the oneyear deadline, the aforequoted provision in the Provisional
Constitution must be deemed to have been overtaken by
Section 27, Article XVIII of the 1987 Constitution reading.
SECTION 27. This Constitution shall take effect immediately
upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose and shall supersede all previous
Constitutions.
The 1987 Constitution was ratified in a plebiscite on February
2, 1987. By that date, therefore, the Provisional Constitution
must be deemed to have been superseded. Having become
inoperative, respondent OIC Governor could no longer rely on
Section 2, Article III, thereof to designate respondents to the
elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of

tenure specially considering that the Barangay Election Act of
1982 declares it "a policy of the State to guarantee and
promote the autonomy of the barangays to ensure their fullest
development as self-reliant communities. 2Similarly, the 1987
Constitution ensures the autonomy of local governments and
of political subdivisions of which the barangays form a
part, 3 and limits the President's power to "general
supervision" over local governments. 4 Relevantly, Section 8,
Article X of the same 1987 Constitution further provides in
part:
Sec. 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be
three years ...
Until the term of office of barangay officials has been

determined by law, therefore, the term of office of six (6)
years provided for in the Barangay Election Act of
1982 5 should still govern.
Contrary to the stand of respondents, we find nothing

inconsistent between the term of six (6) years for elective
Barangay officials and the 1987 Constitution, and the same
should, therefore, be considered as still operative, pursuant to
Section 3, Article XVIII of the 1987 Constitution, reading:
Sec. 3. All existing laws, decrees, executive orders,
proclamations letters of instructions, and other executive
issuances not inconsistent, with this Constitution shall remain
operative until amended, repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC
Governor on February 8, 1987 designating respondents as the
Barangay Captain and Barangay Councilmen, respectively, of
Barangay Dolores, Taytay, Rizal, are both declared to be of no
legal force and effect; and (2) the Writ of Prohibition is granted
enjoining respondents perpetually from proceeding with the
ouster/take-over of petitioners' positions subject of this
Petition. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano,
Gancayco, Padilla, Bidin and Cortes, JJ., concur.
Separate Opinions
TEEHANKEE, CJ., concurring:
The main issue resolved in the judgment at bar is whether the

1987 Constitution took effect on February 2, 1987, the date
that the plebiscite for its ratification was held or whether it
took effect on February 11, 1987, the date its ratification was
proclaimed per Proclamation No. 58 of the President of the

Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice

Sarmiento, holds that by virtue of the provision of Article
XVIII, Section 27 of the 1987 Constitution that it "shall take
effect immediately upon its ratification by a majority of the
votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its
ratification in the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be

deemed to "take effect on the date its ratification shall have
been ascertained and not at the time the people cast their
votes to approve or reject it." This view was actually proposed
at the Constitutional Commission deliberations, but was
withdrawn by its proponent in the face of the "overwhelming"
contrary view that the Constitution "will be effective on the
very day of the plebiscite."
The record of the proceedings and debates of the

Constitutional Commission fully supports the Court's judgment.
It shows that the clear, unequivocal and express intent of the
Constitutional Conunission in unanimously approving (by
thirty-five votes in favor and none against) the aforequoted
Section 27 of Transitory Article XVIII of the 1987 Constitution
was that "the act of ratification is the act of voting by the
people. So that is the date of the ratification" and that "the
canvass thereafter [of the votes] is merely the mathematical
confirmation of what was done during the date of the plebiscite
and the proclamation of the President is merely the official
confirmatory declaration of an act which was actually done by
the Filipino people in adopting the Constitution when they cast
their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced

hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote
the original formulation of the committee as indicated in
Section 12, unless there are other commissioners who would

like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof

insert the following-. "THE PROCLAMATION BY THE PRESIDENT
THAT IT HAS BEEN RATIFIED." And on the last line, after
"constitutions," add the following: "AND THEIR
AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If

Commissioner Davide is going to propose an additional
sentence, the committee would suggest that we take up first
his amendment to the first sentence as originally formulated.
We are now ready to comment on that proposed
amendment.
The proposed amendment would be to delete the words "its

ratification and in lieu thereof insert the words "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN
RATIFIED." And the second amendment would be: After the
word "constitutions," add the words" AND THEIR
AMENDMENTS,"
The committee accepts the first proposed amendment.

However, we regret that we cannot accept the second
proposed amendment after the word "constitutions" because
the committee feels that when we talk of all previous
Constitutions, necessarily it includes "AND THEIR
AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the

second. But, Madam President, may I request that I be allowed
to read the second amendment so the Commission would be
able to appreciate the change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do

that.
MR. DAVIDE. The second sentence will read: "THE

PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS
FOLLOWING THE COMPLETION OF THE CANVASS BY THE
COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH
PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our

chairman, the committee feels that the second proposed
amendment in the form of a new sentence would not be
exactly necessary and the committee feels that it would be too
much for us to impose a time frame on the President to make
the proclamation. As we would recall, Madam President, in the
approved Article on the Executive, there is a provision which
says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it
says that there will be a proclamation by the President that the
Constitution has been ratified, the President will naturally
comply with the law in accordance with the provisions in the
Article on the Executive which we have cited. It would be too
much to impose on the President a time frame within which
she will make that declaration. It would be assumed that the
President would immediately do that after the results shall
have been canvassed by the COMELEC.
Therefore, the committee regrets that it cannot accept the

second sentence which the Gentleman is proposing, Madam
President.
MR. DAVIDE. I am prepared to withdraw the same on the

assumption that there will be an immediate proclamation of
the results by the President.
MR. MAAMBONG. With that understanding, Madam

President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its

acceptance of the amendment which makes the effectivity of
the new Constitution dependent upon the proclamation of the
President. The effectivity of the Constitution should commence
on the date of the ratification, not on the date of the
proclamation of the President. What is confusing, I think,
is what happened in 1976 when the amendments of 1976 were
ratified. In that particular case, the reason the amendments of
1976 were effective upon the proclamation of the
President was that the draft presented to the people said that
the amendment will be effective upon the proclamation made
by the President. I have a suspicion that was put in there
precisely to give the President some kind of leeway on whether
to announce the ratification or not. Therefore, we should not
make this dependent on the action of the President since this
will be a manifestation of the act of the people to be done
under the supervision of the COMELEC and it should be the
COMELEC who should make the announcement that, in fact,
the votes show that the Constitution was ratified and there
should be no need to wait for any proclamation on the part of
the President.
MR. MAAMBONG. Would the Gentleman answer a few

clarificatory questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to

be fixed as to exactly when the Constitution is supposed to be
ratified.
FR. BERNAS. I would say that the ratification of the

Constitution is on the date the votes were supposed to have
been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole

thing, Madam President. We present the Constitution to a
plebiscite, the people exercise their right to vote, then the
votes are canvassed by the Commission on Elections. If we
delete the suggested amendment which says: "THE
RATIFIED," what would be, in clear terms, the date when the
Constitution is supposed to be ratified or not ratified, as the
case may be?
FR. BERNAS. The date would be the casting of the ballots. if

the President were to say that the plebiscite would be held, for
instance, on January 19, 1987, then the date for the effectivity
of the new Constitution would be January 19, 1987.
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MR. MAAMBONG. In other words, it would not depend on the

actual issuance of the results by the Commission on Elections
which will be doing the canvass? That is immaterial Madam
President
FR. BERNAS. It would not, Madam President, because

"ratification" is the act of saying "yes" is done when one casts
his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself,

Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner

Bernas, we would like to know from the proponent,
Commissioner Davide, if he is insisting on his amendment.
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MR. DAVIDE. Madam President, I am insisting on the

amendment because I cannot subscribe to the view of
Commissioner Bernas, that the date of the ratification is
reckoned from the date of the casting of the ballots. That
cannot be the date of reckoning because it is a plebiscite all
over the country. We do not split the moment of casting by
each of the voters. Actually and technically speaking, it would
be all right if it would be upon the announcement of the results

of the canvass conducted by the COMELEC or the results of the
plebiscite held all over the country. But it is necessary that
there be a body which will make the formal announcement of
the results of the plebiscite. So it is either the President or the
COMELEC itself upon the completion of the canvass of the
results of the plebiscite, and I opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree

with Commissioner Davide. I support the stand of
Commissioner Bernas because it is really the date of the
casting of the "yes" votes that is the date of the ratification of
the Constitution The announcement merely confirms the
ratification even if the results are released two or three days
after. I think it is a fundamental principle in political law, even
in civil law, because an announcement is a mere
confirmation The act of ratification is the act of voting by the
people. So that is the date of the ratification. If there should
be any need for presidential proclamation, that proclamation
will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to

contribute?
MR. REGALADO. Madam President, I was precisely going to

state the same support for Commissioner Bernas, because the
canvass thereafter is merely themathematical confirmation of
what was done during the date of the plebiscite and
the proclamation of the President is merely the official
their votes on the date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because

we have to fix a date for the effectivity of the Constitution.
Suppose the announcement is delayed by, say, 10 days or a
month, what happens to the obligations and rights that accrue
upon the approval of the Constitution? So I think we must
have a definite date. I am, therefore, in favor of the Davide
amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would

there be a necessity for the Commission on Elections to
declare the results of the canvass?
FR. BERNAS. There would be because it is the Commission on

Elections which makes the official announcement of the
results.
MR. MAAMBONG. My next question which is the final one is:
After the Commision on Elections has declared the results of
the canvass, will there be a necessity for the President to
make a proclamation of the results of the canvass as
submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam

President.
MR. MAAMBONG. In other words, the President may or may

not make the proclamation whether the Constitution has been
ratified or not.
FR. BERNAS. I would say that the proclamation made by the

President would be immaterial because under the law, the
administration of all election laws is under an independent
Commission on Elections. It is the Commission on Elections

which announces the results.
MR. MAAMBONG. But nevertheless, the President may make

the proclamation.
FR. BERNAS. Yes, the President may. And if what he says

contradicts what the Commission on Elections says, it would
have no effect. I would only add that when we say that the
date of effectivity is on the day of the casting of the votes,
what we mean is that the Constitution takes effect on every
single minute and every single second of that day, because the
Civil Code says a day has 24 hours.So that even if the votes
are cast in the morning, the Constitution is really effective
from the previous midnight.
So that when we adopted the new rule on citizenship, the

children of Filipino mothers or anybody born on the date of
effectivity of the 1973 Constitution, which is January 17, 1973,
are natural-born citizens, no matter what time of day or
night.
MR. MAAMBONG. Could we, therefore, safely say that

whatever date is thepublication of the results of the canvass by
the COMELEC retroacts to the date of the plebiscite?
MR. MAAMBONG. I thank the Commissioner.

MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having
a definite date. I think it is precisely the proposal of
Commissioner Bernas which speaks of the date (of ratification
that would have a definite date, because there would be no
definite date if we depend upon the canvassing by the
COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.

MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the

plebiscite, be it the COMELEC or the President, would
announce that a majority of the votes cast on a given date was
in favor of the Constitution. And that is the date when the
Constitution takes effect, apart from the fact that the provision
on the drafting or amendment of the Constitution provides that
a constitution becomes effective upon ratification by a majority
of the votes cast, although I would not say from the very
beginning of the date of election because as of that time it is
impossible to determine whether there is a majority. At the
end of the day of election or plebiscite, the determination is
made as of that time-the majority of the votes cast in a
plebiscite held on such and such a date. So that is the time
when the new Constitution will be considered ratified and,
therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed

amendment of Commissioner Davide and I support the view of
Commissioner Bernas and the others because the ratification
of the Constitution is on the date the people, by a majority
vote, have cast their votes in favor of the Constitution. Even in
civil law, if there is a contract, say, between an agent and a
third person and that contract is confirmed or ratified by the
principal, the validity does not begin on the date of ratification
but it retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should

retroact to the date that the people have cast their affirmative
votes in favor of the Constitution.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner

Davide if he is insisting on his amendment
MR. DAVIDE. In view of the explanation and

overwhelming tyranny of theopinion that it will be effective on
the very day of the plebiscite, I amwithdrawing my
amendment on the assumption that any of the following bodies
the Office of the President or the COMELEC will make the
formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the

original provision as stated by the committee.
MR. MAAMBONG. The committee will read again the

formulation indicated in the original committee report as
Section 12.
This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite called
for the purpose and shall supersede all previous Constitutions.
We ask for a vote, Madam President.
VOTING
THE PRESIDENT. As many as are in favor, please raise their

hand. (Several Members raised their hands.)
As many as are against, please raise their hand. (No Member

raised his hand.)
The results show 35 votes in favor and none against; Section
12 is approved. 2
The Court next holds as a consequence of its declaration at bar
that the Constitution took effect on the date of its ratification
in the plebiscite held on February 2, 1987, that: (1) the
Provisional Constitution promulgated on March 25, 1986 must
be deemed to have been superseded by the 1987 Constitution
on the same date February 2, 1987 and (2) by and after said
date, February 2, 1987, absent any saying clause to the
contrary in the Transitory Article of the Constitution,
respondent OIC Governor could no longer exercise the power
to replace petitioners in their positions as Barangay Captain
and Councilmen. Hence, the attempted replacement of
petitioners by respondent OIC Governor's designation on
February 8, 1987 of their successors could no longer produce
any legal force and effect. While the Provisional Constitution
provided for a one-year period expiring on March 25, 1987
within which the power of replacement could be exercised, this
period was shortened by the ratification and effectivity on
February 2, 1987 of the Constitution. Had the intention of the
framers of the Constitution been otherwise, they would have
so provided for in the Transitory Article, as indeed they
provided for multifarious transitory provisions in twenty six
sections of Article XVIII, e.g. extension of the six-year term of
the incumbent President and Vice-President to noon of June
30, 1992 for purposes of synchronization of elections, the
continued exercise of legislative powers by the incumbent
President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent

that "the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals and 55 city fiscals reported
extended (by) the President on February 2, 1987 . . . could be
open to serious questions," in view of the provisions of
Sections 8 (1) and 9, Article VIII of the Constitution which
require prior endorsement thereof by the Judicial and Bar
Council created under the Constitution. It should be stated for
the record that the reported date of the appointments,
February 2, 1987, is incorrect. The official records of the Court
show that the appointments of the seven Court of Appeals
Justices were transmitted to this Court on February 1, 1987
and they were all appointed on or before January 31,
1987. 3 (Similarly, the records of the Department of Justice
likewise show that the appointment papers of the last batch of
provincial and city fiscals signed by the President in completion
of the reorganization of the prosecution service were made on
January 31, 1987 and transmitted to the Department on

February 1, 1987.) It is also a matter of record that since
February 2, 1987, no appointments to the Judiciary have been
extended by the President, pending the constitution of the
Judicial and Bar Council, indicating that the Chief Executive
has likewise considered February 2, 1987 as the effective date
of the Constitution, as now expressly declared by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to

prove her point with more telling effect than the tones of
thunder. She has written another persuasive opinion, and I am
delighted to concur. I note that it in effect affirms my dissents
in the De la Serna, Zamora, Duquing and Bayas cases, where I
submitted that the local OICs may no longer be summarily
replaced, having acquired security of tenure under the new
Constitution. Our difference is that whereas I would make that
right commence on February 25, 1987, after the deadline set
by the Freedom Constitution, Justice Herrera would opt for
February 2, 1987, when the new Constitution was ratified. I
yield to that better view and agree with
her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section

2, Article III of the Provisional Constitution with respect to the
tenure of government functionaries, as follows:
year from February 25, 1986.
was cut short by the ratification of the 1987 Constitution, I

entertain serious doubts whether or not that cut-off period
began on February 2, 1987, the date of the plebiscite held to
approve the new Charter. To my mind the 1987 constitution
took effect on February 11, 1987, the date the same was
proclaimed ratified pursuant to Proclamation No. 58 of the
President of the Philippines, and not February 2, 1987,
plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter

itself, thus:
Sec. 27. This Constitution shag take effect immediately upon
its ratification by a majority of the votes cast in a plebiscite
held for the purpose and shall supersede all previous
Constitutions.
It is my reading of this provision that the Constitution takes
effect on the date its ratification shall have been ascertained,
and not at the time the people cast their votes to approve or
reject it. For it cannot be logically said that Constitution was
ratified during such a plebiscite, when the will of the people as
of that time, had not, and could not have been, vet
determined.
Other than that, pragmatic considerations compel me to take

the view.
I have no doubt that between February 2, and February 11,

1987 the government performed acts that would have been
valid under the Provisional Constitution but would otherwise
have been void under the 1987 Charter. I recall, in particular,
the appointments of some seven Court of Appeals Justices, 71
provincial fiscals, and 55 city fiscals the President reportedly
extended on February 2, 1987. 1Under Sections 8 (1) and 9,
Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under

the supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex oficio Members, a
representative of the Integrated Bar, a professor of law, a
retired Member of the Supreme Court, and a representative of
the private sector.
xxx xxx xxx
Sec. 9. The Members of the Supreme Court and judges of

lower courts shall be appointed by the President from a list of
at least three nominees prepared by the Judicial and Bar
Council for every vacancy, Such appointments need no
confirmation.
xxx xxx xxx

such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the

effectivity of the Constitution as well as the amendments
thereto from the date it is proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution

became in force and effect on January 17, 1973, the date
Proclamation No. 1102, "Announcing the Ratification by the
Filipino People of the Constitution Proposed by the 1971
Constitutional Convention," was issued, although Mr. Justice,
now Chief Justice, Teehankee would push its effectivity date
further to April 17, 1973, the date our decision in Javellana v.
Executive Secretary, 3became final. And this was so
notwithstanding Section 16, Article XVII, of the 1973
Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon
called for the purpose and, except as herein provided, shall
supersede the Constitution of nineteen-hundred and thirtyfive and all amendments thereto.
On October 27, 1976, then President Marcos promulgated

Proclamation no. 1595, proclaiming the ratification of the 1976
amendments submitted in the plebiscite of October 16- 17,
1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim

all the amendments embodied in this certificate as duly ratified
by the Filipino people in the referendum- plebiscite held Oct.
16-17, 1976 and are therefore effective and in full force and
effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976

amendments.
These amendments shall take effect after the incumbent
President shall have proclaimed that they have been ratified by
a majority of the votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation
no. 1959, "Proclaiming the Ratification by the Filipino People of
the Amendments of Section 7, Article X of the Constitution"
(lengthening the terms of office of judges and justices). The
Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a
majority of the votes cast in the plebiscite held, together with
the election for local officials, on January 30, 1980, and that
said amendment is hereby declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated
December 18, 1979, the proposed amendment shall take
effect on the date the incumbent President/Prime Minister shall
proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued

"Proclaiming the Ratification in the Plebiscite of April 7, 1981 of
the Amendments to the Constitution Embodied in Batas
Pambansa Blg. 122 and Declaring Them Therefore Effective
and in Full Force and Effect." The Proclamation, in declaring
the said amendments duly approved, further declared them
"[e]ffective and in full force and in effect as of the date of this

Proclamation," It shall be noted, in this connection, that under
Resolutions Nos. I and 2 of the Batasang Pambansa, Third
Regular Session, Sitting as a Constituent Assembly, which
parented these amendments, the same:
. . .shall become valid as part of the Constitution when
approved by a majority of the votes cast in a plebiscite to be
held pursuant to Section 2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to
Submit to the Filipino People, for Ratification or Rejection, the
Amendment to the Constitution of the Philippines, Proposed by
the Batasang Pambansa, Sitting as a Constituent Assembly, in
its Resolutions Numbered Three, Two, and One, and to
Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad
canvass and proclaim the result of the plebiscite using the
certificates submitted to it, duly authenticated and certified by
the Board of Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the
Ratification in the Plebiscite of January 27, 1984, of the
Amendments to the Constitution Embodied in Batasang
Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113."
It states that the amendments:
....are therefore effective and in full force and effect as of the
date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions
Nos. 110 and 112 and Section 9, Batas Blg. 643), which
states, that:
The proposed amendments shall take effect on the date the
President of the Philippines shall proclaim that they have been
ratified by a majority of the votes cast in the plebiscite held for
the purpose, but not later than three months from the
approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:

These amendments shall be valid as a part of the Constitution
when approved by a majority of the votes cast in an
election/plebiscite at which it is submitted to the people for
their ratification pursuant to Section 2 of Article XVI of the
Constitution, as amended.
That a Constitution or amendments thereto take effect upon
proclamation of their ratification and not at the time of the
plebiscite is a view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session

on the March 11, 1947 plebiscite called pursuant to Republic
Act No. 73 and the Resolution of Both Houses (of Congress)
adopted on September 18, 1946, was adopted on April 9,1947.
The April 9, 1947 Resolution makes no mention of a
retroactive application.
Accordingly, when the incumbent President (Mrs. Corazon C.

Aquino) proclaimed on February 11, 1987, at Malacanang
Palace:
... that the Constitution of the Republic of the Philippines
adopted by the Constitutional Commission of 1986, including
the Ordinance appended thereto, has been duly ratified by the
Filipino people and is therefore effective and in full force and
effect. 4
the 1987 Constitution, in point of fact, came into force and

effect, I hold that it took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5in which we

declared, in passing, that the new Charter was ratified on
February 2, 1987, does not in any way weaken this dissent. As
I stated, the remark was said in passing-we did not resolve the
case on account of a categorical holding that the 1987
Constitution came to life on February 2, 1987. In any event, if
we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views

expressed above, that the challenged dismissals done on
February 8, 1987 were valid, the 1987 Constitution not being
then as yet in force.
Separate Opinions
TEEHANKEE, CJ., concurring:
The main issue resolved in the judgment at bar is whether the
1987 Constitution took effect on February 2, 1987, the date
that the plebiscite for its ratification was held or whether it
took effect on February 11, 1987, the date its ratification was
proclaimed per Proclamation No. 58 of the President of the
Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice

Sarmiento, holds that by virtue of the provision of Article
XVIII, Section 27 of the 1987 Constitution that it "shall take
effect immediately upon its ratification by a majority of the
votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its
ratification in the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be

deemed to "take effect on the date its ratification shall have
been ascertained and not at the time the people cast their
votes to approve or reject it." This view was actually proposed
at the Constitutional Commission deliberations, but was
withdrawn by its proponent in the face of the "overwhelming"
contrary view that the Constitution "will be effective on the
very day of the plebiscite."
The record of the proceedings and debates of the
Constitutional Commission fully supports the Court's judgment.
It shows that the clear, unequivocal and express intent of the
Constitutional Conunission in unanimously approving (by
thirty-five votes in favor and none against) the aforequoted
Section 27 of Transitory Article XVIII of the 1987 Constitution
was that "the act of ratification is the act of voting by the
people. So that is the date of the ratification" and that "the

canvass thereafter [of the votes] is merely the mathematical
confirmation of what was done during the date of the plebiscite
and the proclamation of the President is merely the official
their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced
hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote
the original formulation of the committee as indicated in
Section 12, unless there are other commissioners who would
like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof

insert the following-. "THE PROCLAMATION BY THE PRESIDENT
THAT IT HAS BEEN RATIFIED." And on the last line, after
"constitutions," add the following: "AND THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If
Commissioner Davide is going to propose an additional
sentence, the committee would suggest that we take up first
his amendment to the first sentence as originally formulated.
We are now ready to comment on that proposed amendment.
chanrobles virtual
law library
The proposed amendment would be to delete the words "its

ratification and in lieu thereof insert the words "THE
RATIFIED." And the second amendment would be: After the
word "constitutions," add the words" AND THEIR
AMENDMENTS,"
The committee accepts the first proposed amendment.

However, we regret that we cannot accept the second
proposed amendment after the word "constitutions" because
the committee feels that when we talk of all previous
Constitutions, necessarily it includes "AND THEIR
AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the
second. But, Madam President, may I request that I be allowed
to read the second amendment so the Commission would be
able to appreciate the change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
library
MR. DAVIDE. The second sentence will read: "THE

PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS
FOLLOWING THE COMPLETION OF THE CANVASS BY THE
COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH
PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our
chairman, the committee feels that the second proposed
amendment in the form of a new sentence would not be
exactly necessary and the committee feels that it would be too
much for us to impose a time frame on the President to make
the proclamation. As we would recall, Madam President, in the
approved Article on the Executive, there is a provision which
says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it
says that there will be a proclamation by the President that the
Constitution has been ratified, the President will naturally
comply with the law in accordance with the provisions in the
Article on the Executive which we have cited. It would be too
much to impose on the President a time frame within which
she will make that declaration. It would be assumed that the
President would immediately do that after the results shall
have been canvassed by the COMELEC.
Therefore, the committee regrets that it cannot accept the

second sentence which the Gentleman is proposing, Madam
President.
MR. DAVIDE. I am prepared to withdraw the same on the

assumption that there will be an immediate proclamation of
the results by the President.
MR. MAAMBONG. With that understanding, Madam President.
library
MR. DAVIDE. I will not insist on the second sentence.

FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its

acceptance of the amendment which makes the effectivity of
the new Constitution dependent upon the proclamation of the
President. The effectivity of the Constitution should commence
on the date of the ratification, not on the date of the
proclamation of the President. What is confusing, I think,
is what happened in 1976 when the amendments of 1976 were
ratified. In that particular case, the reason the amendments of
1976 were effective upon the proclamation of the
President was that the draft presented to the people said that
the amendment will be effective upon the proclamation made
by the President. I have a suspicion that was put in there
precisely to give the President some kind of leeway on whether
to announce the ratification or not. Therefore, we should not
make this dependent on the action of the President since this
will be a manifestation of the act of the people to be done
under the supervision of the COMELEC and it should be the
COMELEC who should make the announcement that, in fact,
the votes show that the Constitution was ratified and there
should be no need to wait for any proclamation on the part of
the President.
MR. MAAMBONG. Would the Gentleman answer a few

clarificatory questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to

be fixed as to exactly when the Constitution is supposed to be
ratified.
FR. BERNAS. I would say that the ratification of the

Constitution is on the date the votes were supposed to have
been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole
thing, Madam President. We present the Constitution to a
plebiscite, the people exercise their right to vote, then the
votes are canvassed by the Commission on Elections. If we
delete the suggested amendment which says: "THE
RATIFIED," what would be, in clear terms, the date when the
Constitution is supposed to be ratified or not ratified, as the
case may be?
FR. BERNAS. The date would be the casting of the ballots. if
the President were to say that the plebiscite would be held, for
instance, on January 19, 1987, then the date for the effectivity
of the new Constitution would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the

actual issuance of the results by the Commission on Elections
which will be doing the canvass? That is immaterial Madam
President
FR. BERNAS. It would not, Madam President, because
"ratification" is the act of saying "yes" is done when one casts
his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself,

Madam President?
MR. MAAMBONG. With that statement of Commissioner

Bernas, we would like to know from the proponent,
Commissioner Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the

amendment because I cannot subscribe to the view of
Commissioner Bernas, that the date of the ratification is
reckoned from the date of the casting of the ballots. That
cannot be the date of reckoning because it is a plebiscite all
over the country. We do not split the moment of casting by
each of the voters. Actually and technically speaking, it would
be all right if it would be upon the announcement of the results
of the canvass conducted by the COMELEC or the results of the
plebiscite held all over the country. But it is necessary that
there be a body which will make the formal announcement of
the results of the plebiscite. So it is either the President or the
COMELEC itself upon the completion of the canvass of the
results of the plebiscite, and I opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree

with Commissioner Davide. I support the stand of
Commissioner Bernas because it is really the date of the
casting of the "yes" votes that is the date of the ratification of
the Constitution The announcement merely confirms the
ratification even if the results are released two or three days
after. I think it is a fundamental principle in political law, even
in civil law, because an announcement is a mere
confirmation The act of ratification is the act of voting by the
people. So that is the date of the ratification. If there should
be any need for presidential proclamation, that proclamation
will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to

contribute?
MR. REGALADO. Madam President, I was precisely going to
state the same support for Commissioner Bernas, because the
canvass thereafter is merely themathematical confirmation of
what was done during the date of the plebiscite and
the proclamation of the President is merely the official
their votes on the date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because

we have to fix a date for the effectivity of the Constitution.
Suppose the announcement is delayed by, say, 10 days or a
month, what happens to the obligations and rights that accrue
upon the approval of the Constitution? So I think we must
have a definite date. I am, therefore, in favor of the Davide
amendment.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would

there be a necessity for the Commission on Elections to
declare the results of the canvass?
FR. BERNAS. There would be because it is the Commission on
Elections which makes the official announcement of the
results.
MR. MAAMBONG. My next question which is the final one is:
After the Commision on Elections has declared the results of
the canvass, will there be a necessity for the President to
make a proclamation of the results of the canvass as

submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam
President.
MR. MAAMBONG. In other words, the President may or may

not make the proclamation whether the Constitution has been
ratified or not.
FR. BERNAS. I would say that the proclamation made by the

President would be immaterial because under the law, the
administration of all election laws is under an independent
Commission on Elections. It is the Commission on Elections
which announces the results.
MR. MAAMBONG. But nevertheless, the President may make

the proclamation.
FR. BERNAS. Yes, the President may. And if what he says

contradicts what the Commission on Elections says, it would
have no effect. I would only add that when we say that the
date of effectivity is on the day of the casting of the votes,
what we mean is that the Constitution takes effect on every
single minute and every single second of that day, because the
Civil Code says a day has 24 hours.
So that even if the votes are cast in the morning, the
Constitution is really effective from the previous midnight. So
that when we adopted the new rule on citizenship, the children
of Filipino mothers or anybody born on the date of effectivity
of the 1973 Constitution, which is January 17, 1973, are
natural-born citizens, no matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that

whatever date is thepublication of the results of the canvass by
the COMELEC retroacts to the date of the plebiscite?
MR. MAAMBONG. I thank the Commissioner.

MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having
a definite date. I think it is precisely the proposal of
Commissioner Bernas which speaks of the date (of ratification
that would have a definite date, because there would be no
definite date if we depend upon the canvassing by the
COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the

plebiscite, be it the COMELEC or the President, would
announce that a majority of the votes cast on a given date was
in favor of the Constitution. And that is the date when the
Constitution takes effect, apart from the fact that the provision
on the drafting or amendment of the Constitution provides that
a constitution becomes effective upon ratification by a majority
of the votes cast, although I would not say from the very
beginning of the date of election because as of that time it is
impossible to determine whether there is a majority. At the
end of the day of election or plebiscite, the determination is
made as of that time-the majority of the votes cast in a
plebiscite held on such and such a date. So that is the time
when the new Constitution will be considered ratified and,
therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed

amendment of Commissioner Davide and I support the view of
Commissioner Bernas and the others because the ratification
of the Constitution is on the date the people, by a majority

vote, have cast their votes in favor of the Constitution. Even in
civil law, if there is a contract, say, between an agent and a
third person and that contract is confirmed or ratified by the
principal, the validity does not begin on the date of ratification
but it retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should

retroact to the date that the people have cast their affirmative
votes in favor of the Constitution.
THE PRESIDENT. Commissioner Maambong is recognized

MR. MAAMBONG. We will now ask once more Commissioner
Davide if he is insisting on his amendment
MR. DAVIDE. In view of the explanation and
overwhelming tyranny of theopinion that it will be effective on
the very day of the plebiscite, I amwithdrawing my
amendment on the assumption that any of the following bodies
the Office of the President or the COMELEC will make the
formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the

original provision as stated by the committee.
MR. MAAMBONG. The committee will read again the

formulation indicated in the original committee report as
Section 12.
This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite called
for the purpose and shall supersede all previous Constitutions.
We ask for a vote, Madam President.
VOTING
THE PRESIDENT. As many as are in favor, please raise their

hand. (Several Members raised their hands.)
As many as are against, please raise their hand. (No Member
raised his hand.)
The results show 35 votes in favor and none against; Section
12 is approved. 2
The Court next holds as a consequence of its declaration at bar
that the Constitution took effect on the date of its ratification
in the plebiscite held on February 2, 1987, that: (1) the
Provisional Constitution promulgated on March 25, 1986 must
be deemed to have been superseded by the 1987 Constitution
on the same date February 2, 1987 and (2) by and after said
date, February 2, 1987, absent any saying clause to the
contrary in the Transitory Article of the Constitution,
respondent OIC Governor could no longer exercise the power
to replace petitioners in their positions as Barangay Captain
and Councilmen. Hence, the attempted replacement of
petitioners by respondent OIC Governor's designation on
February 8, 1987 of their successors could no longer produce
any legal force and effect. While the Provisional Constitution
provided for a one-year period expiring on March 25, 1987
within which the power of replacement could be exercised, this
period was shortened by the ratification and effectivity on
February 2, 1987 of the Constitution. Had the intention of the
framers of the Constitution been otherwise, they would have
so provided for in the Transitory Article, as indeed they
provided for multifarious transitory provisions in twenty six
sections of Article XVIII, e.g. extension of the six-year term of
the incumbent President and Vice-President to noon of June
30, 1992 for purposes of synchronization of elections, the
continued exercise of legislative powers by the incumbent
President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent

that "the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals and 55 city fiscals reported
extended (by) the President on February 2, 1987 . . . could be
open to serious questions," in view of the provisions of

Sections 8 (1) and 9, Article VIII of the Constitution which
require prior endorsement thereof by the Judicial and Bar
Council created under the Constitution. It should be stated for
the record that the reported date of the appointments,
February 2, 1987, is incorrect. The official records of the Court
show that the appointments of the seven Court of Appeals
Justices were transmitted to this Court on February 1, 1987
and they were all appointed on or before January 31,
1987. 3 (Similarly, the records of the Department of Justice
likewise show that the appointment papers of the last batch of
provincial and city fiscals signed by the President in completion
of the reorganization of the prosecution service were made on
January 31, 1987 and transmitted to the Department on
February 1, 1987.) It is also a matter of record that since
February 2, 1987, no appointments to the Judiciary have been
extended by the President, pending the constitution of the
Judicial and Bar Council, indicating that the Chief Executive
has likewise considered February 2, 1987 as the effective date
of the Constitution, as now expressly declared by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to

prove her point with more telling effect than the tones of
thunder. She has written another persuasive opinion, and I am
delighted to concur. I note that it in effect affirms my dissents
in the De la Serna, Zamora, Duquing and Bayas cases, where I
submitted that the local OICs may no longer be summarily
replaced, having acquired security of tenure under the new
Constitution. Our difference is that whereas I would make that
right commence on February 25, 1987, after the deadline set
by the Freedom Constitution, Justice Herrera would opt for
February 2, 1987, when the new Constitution was ratified. I
yield to that better view and agree with
her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section

2, Article III of the Provisional Constitution with respect to the
tenure of government functionaries, as follows:
year from February 25, 1986.
was cut short by the ratification of the 1987 Constitution, I
entertain serious doubts whether or not that cut-off period
began on February 2, 1987, the date of the plebiscite held to
approve the new Charter. To my mind the 1987 constitution
took effect on February 11, 1987, the date the same was
proclaimed ratified pursuant to Proclamation No. 58 of the
President of the Philippines, and not February 2, 1987,
plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter

itself, thus:
Sec. 27. This Constitution shag take effect immediately upon
held for the purpose and shall supersede all previous
Constitutions.
It is my reading of this provision that the Constitution takes
effect on the date its ratification shall have been ascertained,
and not at the time the people cast their votes to approve or
reject it. For it cannot be logically said that Constitution was
ratified during such a plebiscite, when the will of the people as
of that time, had not, and could not have been, vet
determined.
Other than that, pragmatic considerations compel me to take

the view.
I have no doubt that between February 2, and February 11,

1987 the government performed acts that would have been
valid under the Provisional Constitution but would otherwise
have been void under the 1987 Charter. I recall, in particular,
the appointments of some seven Court of Appeals Justices, 71
provincial fiscals, and 55 city fiscals the President reportedly
extended on February 2, 1987. 1Under Sections 8 (1) and 9,
Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under
the supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex oficio Members, a
representative of the Integrated Bar, a professor of law, a
retired Member of the Supreme Court, and a representative of
the private sector.
xxx xxx xxx
2Sec. 9. The Members of the Supreme Court and judges of
lower courts shall be appointed by the President from a list of
at least three nominees prepared by the Judicial and Bar
Council for every vacancy, Such appointments need no
confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the

effectivity of the Constitution as well as the amendments
thereto from the date it is proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution

became in force and effect on January 17, 1973, the date
Proclamation No. 1102, "Announcing the Ratification by the
Filipino People of the Constitution Proposed by the 1971
Constitutional Convention," was issued, although Mr. Justice,
now Chief Justice, Teehankee would push its effectivity date

further to April 17, 1973, the date our decision in Javellana v.
Executive Secretary, 3became final. And this was so
notwithstanding Section 16, Article XVII, of the 1973
Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon
called for the purpose and, except as herein provided, shall
supersede the Constitution of nineteen-hundred and thirtyfive and all amendments thereto.
On October 27, 1976, then President Marcos promulgated
Proclamation no. 1595, proclaiming the ratification of the 1976
amendments submitted in the plebiscite of October 16- 17,
1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim

all the amendments embodied in this certificate as duly ratified
by the Filipino people in the referendum - plebiscite held Oct.
16-17, 1976 and are therefore effective and in full force and
effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976

amendments.
These amendments shall take effect after the incumbent
President shall have proclaimed that they have been ratified by
a majority of the votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation
no. 1959, "Proclaiming the Ratification by the Filipino People of
the Amendments of Section 7, Article X of the Constitution"
(lengthening the terms of office of judges and justices). The
Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a
majority of the votes cast in the plebiscite held, together with
the election for local officials, on January 30, 1980, and that
said amendment is hereby declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated

December 18, 1979, the proposed amendment shall take
effect on the date the incumbent President/Prime Minister shall
proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued

"Proclaiming the Ratification in the Plebiscite of April 7, 1981 of
the Amendments to the Constitution Embodied in Batas
Pambansa Blg. 122 and Declaring Them Therefore Effective
and in Full Force and Effect." The Proclamation, in declaring
the said amendments duly approved, further declared them
"[e]ffective and in full force and in effect as of the date of this
Proclamation," It shall be noted, in this connection, that under
Resolutions Nos. I and 2 of the Batasang Pambansa, Third
Regular Session, Sitting as a Constituent Assembly, which
parented these amendments, the same:
... shall become valid as part of the Constitution when
approved by a majority of the votes cast in a plebiscite to be
held pursuant to Section 2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to
Submit to the Filipino People, for Ratification or Rejection, the
Amendment to the Constitution of the Philippines, Proposed by
the Batasang Pambansa, Sitting as a Constituent Assembly, in
its Resolutions Numbered Three, Two, and One, and to
Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad
canvass and proclaim the result of the plebiscite using the
certificates submitted to it, duly authenticated and certified by
the Board of Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the
Ratification in the Plebiscite of January 27, 1984, of the
Amendments to the Constitution Embodied in Batasang
Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113."
It states that the amendments:
....are therefore effective and in full force and effect as of the

date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions
Nos. 110 and 112 and Section 9, Batas Blg. 643), which
states, that:
The proposed amendments shall take effect on the date the
President of the Philippines shall proclaim that they have been
ratified by a majority of the votes cast in the plebiscite held for
the purpose, but not later than three months from the
approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution
when approved by a majority of the votes cast in an
election/plebiscite at which it is submitted to the people for
their ratification pursuant to Section 2 of Article XVI of the
Constitution, as amended.
That a Constitution or amendments thereto take effect upon

proclamation of their ratification and not at the time of the
plebiscite is a view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session

on the March 11, 1947 plebiscite called pursuant to Republic
Act No. 73 and the Resolution of Both Houses (of Congress)
adopted on September 18, 1946, was adopted on April 9,1947.
The April 9, 1947 Resolution makes no mention of a
retroactive application. Accordingly, when the incumbent
President (Mrs. Corazon C. Aquino) proclaimed on February
11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines
adopted by the Constitutional Commission of 1986, including
the Ordinance appended thereto, has been duly ratified by the
Filipino people and is therefore effective and in full force and
effect. 4
the 1987 Constitution, in point of fact, came into force and

effect, I hold that it took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5in which we

declared, in passing, that the new Charter was ratified on
February 2, 1987, does not in any way weaken this dissent. As
I stated, the remark was said in passing-we did not resolve the
case on account of a categorical holding that the 1987
Constitution came to life on February 2, 1987. In any event, if
we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views

expressed above, that the challenged dismissals done on
February 8, 1987 were valid, the 1987 Constitution not being
then as yet in force.
Endnotes:
1 Topacio, Jr. vs. Pimentel G.R. No. 73770, April 10, 1986.
2 Section 2, BP Blg. 222.
3 Article 11, Section 25 and Article X, Sections 1, 2, 14, among others.
4 Article X, Section 4.
5 Section 3, BP Blg. 222.
Teehankee, C.J., concurring:

1 Volume Five, Record of the Constitutional Commission Proceedings and Debates, pages 620-623;
emphasis supplied.
2 The entire draft Constitution was approved on October 12, 1986 forty forty-five votes in favor and
two against.
3 The seven Court of Appeals Justices referred to are Justices Alfredo L. Benipayo, Minerva G. Reyes,
Magdangal B. Elma, Cecilio PE, Jesus Elbinias, Nicolas Lapena Jr. and Justo P. Torres, Jr., and their
appointments bear various dates from January 9, 1987 to January 31, 1987.
Sarmiento, J., dissenting:

1 Manila Bulletin, Feb. 3, 1987, p. 1, cols. 6-7 Philippine Daily Inquirer, Feb. 3,1987, p. 1, cot 1;
Malaya, Feb. 3, 1987, p. 1, col. 1.
2 Nos. 3720102 March 3, 1975, 63 SCRA 4 (1975).
3 Nos. L-36142, March 31, 1973, 50 SCRA 30 (1973).

4 Proclamation No. 58 (1987).
5 G.R. No. 72301.

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EN BANC

[G.R. No. 63915. April 24, 1985.]

1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE; LEGAL

FERNANDO, C.J., concurring with qualification:

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1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION REQUIREMENT NEED NOT BE CONFINED TO

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1. CONSTITUTIONAL LAW; STATUTES, PUBLICATION IN THE OFFICIAL GAZETTE; NECESSARY

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CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE; RETROACTIVITY IN

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1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE NOT ESSENTIAL

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effect, or which he may authorize so to be published. . . ."

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MELENCIO-HERRERA, J., concurring:

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1. DAMAGES; BREACH OF PROMISE TO MARRY; WHEN ACTIONABLE WRONG. Ordinarily, a mere

BENGZON, J.P., J.:

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7. ID.; ID.; ANNULMENT OF MARRIAGE TO A FOREIGNER NOT AN AUTOMATIC RESTORATION OF

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chanrobles.com.ph : virtual law library

I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of

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Very truly yours,

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(SGD) RODOLFO SEVERINO, JR

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1. 149 SCRA 562.

4. 146 SCRA 446.

19. Soria v. Commissioner of Immigration, 37 SCRA 213; Lee v. Commissioner of Immigration, 42

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1. CIVIL LAW; DOMICILE; DOMICILE OF ORIGIN AND DOMICILE OF CHOICE; ESTABLISHED BY

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2. POLITICAL LAW; ELECTIONS; DISQUALIFICATION; CANDIDATE WHO OBTAINED THE SECOND

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POLITICAL LAW; ELECTIONS; RESIDENCE; DOMICILE BY OPERATION OF LAW; WIDOW NO LONGER

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1. CONSTITUTIONAL LAW; CONSTITUTIONAL PROVISIONS, GENERALLY MANDATORY IN

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1. CONSTITUTIONAL LAW; COMELEC; WITHOUT POWER TO DISQUALIFY CANDIDATE FOR LACK OF

against winning candidates.

that he does not suffer from any of disqualifications provided in 4.

I. The Issue of Petitioners qualifications

7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

purposes. In Larena v. Teves, 33 supra, we stressed:

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