Republic of the Philippines On April 24, 1992, the Comelec issued another
SUPREME COURT order directing the Election Registrar of Baguio
Manila
EN BANC
G.R. No. 105111 July 3, 1992
RAMON L. LABO, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, and ROBERTO
ORTEGA, respondents.
G.R. No. 105384 July 3, 1992
ROBERTO C. ORTEGA, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAMON L.
LABO, Jr., respondents.
BIDIN, J.:
This is the second time 1 that this Court is called
upon to rule on the citizenship of Ramon Labo, Jr.,
who, believing that he is a Filipino citizen
launched his candidacy for mayor of Baguio City
in the last May 11, 1992 elections by filing his
certificate of candidacy on March 23, 1992.
Petitioner Roberto Ortega (GR No. 105384), on
other hand, also filed his certificate of candidacy
for the same office on March 25, 1992.
Shortly after petitioner Labo filed his certificate of
candidacy, petitioner Ortega filed on March 26,
1992, a disqualification proceeding against Labo
before the Commission on Elections (Comelec),
docketed as SPA No. 92-029, seeking to cancel
Labo's certificate of candidacy on the ground that
Labo made a false representation when he stated
therein that he (Labo) is a "natural-born" citizen of
the Philippines.
Summons in the disqualification case was issued
by the Comelec on March 27, 1992 to petitioner
Labo followed by a telegram dated April 1, 1992,
requiring him to file his Answer within three (3)
non-extendible days but the latter failed to
respond.
On April 15, 1992, Ortega filed a motion to
declare Labo in default for failure to file his
Answer.
City to personally deliver the summons. On May 4,
1992, the disqualification case was set for
reception of evidence. At the said hearing, Ortega
presented the decision of this Court in Labo v.
Commission on Elections (176 SCRA 1 [1989])
declaring Labo not a citizen of the Philippines.
Labo, on the other hand, though represented by
counsel, did not present any evidence. It was only
on May 5, 1992 that petitioner submitted his
Answer claiming Filipino citizenship.
On May 9, 1992, respondent Comelec issued the
assailed resolution, the dispositive portion of
which reads:
WHEREFORE, premises considered,
the Commission RESOLVED, as it
hereby resolves, to grant the
petition; respondent's (Labo's)
certificate of candidacy is hereby
DENIED due course and ordered
CANCELLED; the City Election
Registrar of Baguio City is hereby
directed to delete the name of the
respondent (Labo) from the list of
candidates for City Mayor of Baguio
City. (Rollo, pp. 47-48; GR No.
105111)
On the same date, Labo filed a motion to stay
implementation of said resolution until after he
shall have raised the matter before this Court.
On May 10, 1992, respondent Comelec issued an
Order which reads:
Acting on the "Urgent Ex-Parte
Motion for Clarification", filed by
respondent (Labo) on May 9, 1992,
the Commission resolves that the
decision promulgated on May 9,
1992 disqualifying respondent
Ramon L. Labo, Jr., shall become
final and executory only after five
(5) days from promulgation
pursuant to Rule 18, Section 13,
Paragraph (b) of the Comelec Rules
of Procedure.
Accordingly, respondent (Labo)
may still continue to be voted upon
as candidate for City Mayor of
Baguio City on May 11, 1992
subject to the final outcome of this
case in the event the issue is
elevated to the Supreme Court
either on appeal or certiorari.
 (Rollo, p. 53; GR No. 105111;
emphasis supplied)
On May 13, 1992, respondent Comelec resolved,
motu proprio to suspend the proclamation of Labo
in the event he wins in the elections for the City
Mayor of Baguio. (Rollo, pp. 64-65; GR No.
105111)
On May 15, 1992, petitioner Labo filed the instant
petition for review docketed as G.R. No. 105111
with prayer, among others, for the issuance of a
temporary restraining order to set aside the May
9, 1992 resolution of respondent Comelec; to
render judgment declaring him as a Filipino
citizen; and to direct respondent Comelec to
proceed with his proclamation in the event he
wins in the contested elections.
On the same date, or on May 15, 1992 petitioner
Ortega filed before the Comelec an urgent motion
for the implementation of its May 9, 1992
resolution cancelling Labo's certificate of
candidacy.
After an exchange of pleadings, respondent
Comelec, in its resolution dated May 26, 1992,
denied Ortega's motion in view of the pending
case (G.R. No. 105111) earlier filed by Labo of the
same nature before this Court.
On June 1, 1992, Ortega filed a petition for
mandamus docketed as G.R. No. 105384 praying
for the implementation of the Comelec's May 9,
1992 resolution.
Petitioner Ortega argues that respondent Comelec
committed grave abuse of discretion when it
refused to implement its May 9, 1992 resolution
notwithstanding the fact that said resolution
disqualifying Ramon Labo has already become
final and executory.
After the parties have submitted their respective
pleadings, the Court, on June 16, 1992, Resolved
to consider the case submitted for decision.
I. GR No. 105111
In essence, it is the contention of petitioner Labo
that he is a Filipino citizen. Alleging lack of trial on
the merits as well as the lack of opportunity to be
heard in Labo v. Commission on Elections (supra),
it is the submission of petitioner that he can prove
his Filipino citizenship.
Petitioner cites the 1980 US case of Vance v.
Terrazas (444 US 252), wherein it was held that in
proving expatriation, an expatriating act an intent
to relinquish citizenship must be proved by a
preponderance of evidence.
Petitioner contends that no finding was made
either by the Commission on Immigration or the
Comelec as regards his specific intent to renounce
his Philippine citizenship.
Petitioner also faults the Comelec for the
supposed abbreviated proceedings in SPA No. 92-
029 which denied him adequate opportunity to
present a full-dress presentation of his case. Thus:
a) only one (1) day was set for hearing of the
case, i.e., May 4, 1992; b) two days later, May 6,
1992 the hearing was set; c) instead of holding a
hearing, the Comelec issued the questioned
resolution on May 9, 1992.
If only to refresh the mind of petitioner Labo, as
well as that of his counsel, records disclose that
summons were issued by respondent Comelec as
early as March 27, 1992 followed by a telegram
on April 1, 1992. But petitioner chose to ignore
the same. Came April 15, 1992, petitioner Ortega
filed a motion to declare petitioner Labo in
default. Over-extending him (Labo) the benefit of
due process, respondent Comelec issued another
order dated April 24, 1992, this time directing the
Acting City Election Registrar of Baguio to
personally serve the summons. The alleged delay
in the resolution of SPA No. 92-029 can only be
attributed to petitioner Labo and no one else.
Thus, the respondent Comelec in its resolution
dated May 9, 1992 stated:
On May 4, 1992, the Acting
Regional Election Registrar called
this case for reception of evidence.
Surprisingly, while as of that date
respondent had not yet filed his
Answer, a lawyer appeared for him.
The petitioner (Ortega) presented
the certificate of candidacy of
respondent Ramon L. Labo, Jr.,
which contained in item 9 thereof
the verified statement that
respondent is a "natural-born"
Filipino citizen. To prove that
respondent is not a Filipino citizen,
petitioner submitted the decision of
the Supreme Court in "Ramon L.
Labo, Jr., petitioner, v. Comelec, et
al.," GR No. 86564, August 1, 1989,
the dispositive portion of which
states:
WHEREFORE,
petitioner Ramon J.
(sic) 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.
No evidence was adduced for the
respondent as in fact he had no
Answer as of the hearing.
On May 5, 1992, respondent (Labo)
filed his verified Answer, insisting
that he is a Filipino citizen and
continue to maintain and preserve
his Filipino citizenship; that he does
not hold an Australian citizenship;
that the doctrine of res judicata
does not apply in citizenship; and
that "existing facts support his
continuous maintenance and
holding of Philippine citizenship"
and "supervening events now
preclude the application of the
ruling in the Labo v. Comelec case
and the respondent (Labo) now
hold and enjoys Philippine
citizenship.
No evidence has been offered by
respondent to show what these
existing facts and supervening
events are to preclude the
application of the Labo decision.
(emphasis supplied)
The Commission is bound by the
final declaration that respondent is
not a Filipino citizen. Consequently,
respondent's verified statement in
his certificate of candidacy that he
is a "natural-born" Filipino citizen is
a false material representation."
(Rollo, pp. 45-48; GR No. 105111)
Up to this moment, petitioner Labo still failed to
submit a scintilla of proof to shore his claim
before this Court that he has indeed reacquired
his Philippine citizenship.
Instead, petitioner relies in the US case of Vance
v. Terrazas (supra). Suffice it to state that
petitioner has already pleaded Vance in his
motion for reconsideration in Labo v. Comelec
(supra; Rollo, p. 375). Having been previously
passed upon, the Court sees no pressing need to
re-examine the same and make a lengthy
dissertation thereon.
At any rate, the fact remains that he has not
submitted in the instant case any evidence, if
there be any, to prove his reacquisition of
Philippine citizenship either before this Court or
the Comelec. On this score alone, We find no
grave abuse of discretion committed by
respondent Comelec in cancelling his (Labo's)
certificate of candidacy and declaring that he is
NOT a Filipino citizen pursuant to our ruling in the
1989 case of Labo v. Comelec (supra).
Petitioner Labo claims, however, that Sec. 72 2 of
the Omnibus Election Code "operates as a
legislatively mandated special repatriation
proceeding" and that it allows his proclamation as
the winning candidate since the resolution
disqualifying him was not yet final at the time the
election was held.
The Court finds petitioner Labo's strained
argument quixotic and untenable. In the first
place, Sec. 72 of the Omnibus Election Code has
already been repealed by Sec. 6 of RA No. 6646,
to wit:
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
the 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.
(emphasis supplied)
A perusal of the above provision would readily
disclose that the Comelec can legally suspend the
proclamation of petitioner Labo, his reception of
the winning number of votes notwithstanding,
especially so where, as in this case. Labo failed to
present any evidence before the Comelec to
support his claim of reacquisition of Philippine
citizenship.
Furthermore, we need only to reiterate what we
have stated in Labo v. Comelec (supra), viz.,:
Under CA No. 63, as amended by
P.D. No. 725, Philippine citizenship
may be reacquired by a 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 or to any statute
directly conferring Philippine
citizenship upon him. . . .
Petitioner Labo's status has not changed in the
case at bar. To reiterate, he (Labo) was
disqualified as a candidate for being an alien. His
election does not automatically restore his
Philippine citizenship, the possession of which is
an indispensable requirement for holding public
office (Sec. 39, Local Government Code).
Still, petitioner takes pains in raising a new
argument not litigated before the respondent
Comelec. Petitioner claims that he has reacquired
his Filipino citizenship by citing his application for
reacquisition of Philippine citizenship filed before
the Office of the Solicitor General pursuant to PD
725 and Letter of Instruction No. 270 3 (Rollo, pp.
116-119; G.R. No. 105111).
To date, however, and despite favorable
recommendation by the Solicitor General, the
Special Committee on Naturalization had yet
acted upon said application for repatriation.
Indeed, such fact is even admitted petitioner. In
the absence of any official action or approval by
the proper authorities, a mere application for
repratriation, does not, and cannot, amount to an
automatic reacquisition of the applicant's
Philippine citizenship.
II. GR No. 105384
Petitioner Ortega submits that since this Court did
not issue a temporary restraining order as regards
the May 9, 1992 resolution of respondent Comelec
cancelling Labo's certificate of candidacy, said
resolution has already become final and
executory. Ortega further posits the view that as
a result of such finality, the candidate receiving
the next highest number of votes should be
declared Mayor of Baguio City.
We agree with Ortega's first proposition.
At the time petitioner Labo filed his petition (GR
No. 105111) on May 15, 1992, the May 9, 1992
resolution of respondent Comelec cancelling his
(Labo's) certificate of candidacy had already
become final and executory a day earlier, or on
May 14, 1992, said resolution having been
received by petitioner Labo on the same day it
was promulgated, i.e., May 9, 1992 and in the
interim no restraining order was issued by this
Court.
Thus, Sec. 78 of the Omnibus Election Code
provides:
Sec. 78. Petition to deny due course
or to cancel a certificate of
candidacy —
xxx xxx xxx
(e) The decision, order, or ruling of
the Commission shall, after five (5)
days from receipt of a copy thereof
by the parties, be final and
executory unless stayed by the
Supreme Court. (emphasis
supplied)
A similar provision is also found in Sec. 3, Rule 39
of the Comelec Rules of procedure, to wit:
Sec. 3. Decisions final after five
days. — Decisions in
pre-proclamation cases and
petitions to deny due course to or
cancel certificates of candidacy, to
declare a candidate as nuisance
candidate or to disqualify a
candidate, and to postpone or
suspend elections shall become
final and executory after the lapse
of five (5) days from their
promulgation, unless restrained by
the Supreme Court. (emphasis
supplied)
The resolution cancelling Labo's certificate of
candidacy on the ground that he is not a Filipino
citizen having acquired finality on May 14, 1992
constrains Us to rule against his proclamation as
Mayor of Baguio City.
To begin with, one of the qualifications of an
elective official is that he must be a citizen of the
Philippines. Thus, the Local Government Code
provides:
 Sec. 39. Qualifications. — (a) An
elective local official must be a
citizen of the Philippines; a
registered voter in the barangay,
municipality, city, or province or, in
the case of a member of the
sangguniang panlalawigan,
sangguniang panlungsod,
sangguniang bayan, the district
where he intends to be elected; a
resident therein for at least one (1)
year immediately preceding the
day of the election; and able to
read and write Filipino or any other
local language or dialect. (emphasis
supplied)
Undoubtedly, petitioner Labo, not being a Filipino
citizen, lacks the fundamental qualification for the
contested office. Philippine citizenship is an
indispensable requirement for holding an elective
office. As mandated by law: "An elective local
official must be a citizen of the Philippines."
The issue here is citizenship and/or Labo's
alienage — the very essence which strikes at the
very core of petitioner Labo's qualification to
assume the contested office, he being an alien
and not a Filipino citizen. The fact that he was
elected by the majority of the electorate is of no
moment. As we have held in Frivaldo v.
Commission on Elections (174 SCRA 245 [1989]):
. . . The fact that he was elected by
the people of Sorsogon does not
excuse this patent violation of the
salutary rule limiting public office
and employment only to the
citizens of this country. 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, especially if they
mistakenly believed, as in this case,
that the candidate was qualified.
Obviously, this rule requires strict
application when the deficiency is
lack of citizenship. If a person seeks
to serve in the Republic of the
Philippines, he must owe his total
loyalty to this country only, abjuring
and renouncing all fealty and
fidelity to any other state.
This brings us to the second issue raised by
petitioner Ortega, i.e., whether the disqualification
of petitioner Labo entitles the candidate (Ortega)
receiving the next highest number of votes to be
proclaimed as the winning candidate for mayor of
Baguio City.
We hold in the negative. The disqualification of
petitioner Labo does not necessarily entitle
petitioner Ortega as the candidate with the next
highest number of votes to proclamation as the
Mayor of Baguio City.
We make mention of petitioner Ortega because in
his petition, he alleges that:
. . . the May 11, 1992 elections
were held with both herein
petitioner (Roberto Ortega) and
respondent LABO having been
voted for the position of Mayor and
unofficial results indicate that if the
name of respondent LABO were
deleted from the list of candidates,
herein petitioner (Ortega) will be
entitled to be proclaimed as Mayor-
elect of Baguio City. (Rollo, p. 7, GR
No. 105384; emphasis supplied)
and further prays this Court "to proclaim as the
Mayor-elect of Baguio City the candidate who may
have garnered the most number of votes after the
exclusion of the name of respondent candidate
LABO." (Rollo, p. 15, Ibid.) Implicit, therefore, is
petitioner Ortega's desire to be proclaimed Mayor-
elect of Baguio City.
As discussed hereunder, however, the Court finds
Ortega's prayer devoid of merit.
While Ortega may have garnered the second
highest number of votes for the office of city
mayor, the fact remains that he was not the
choice of the sovereign will. Petitioner Labo was
overwhelmingly voted by the electorate for the
office of mayor in the belief that he was then
qualified to serve the people of Baguio City and
his subsequent disqualification does not make
respondent Ortega the mayor-elect. This is the
import of the recent case of Abella v. Comelec
(201 SCRA 253 [1991]), wherein we held that:
While it is true that SPC No. 88-546
was originally a petition to deny
due course to the certificate of
candidacy of Larrazabal and was
filed before Larrazabal could be
proclaimed, the fact remains that
the local elections of Feb. 1, 1988 in
the province of Leyte proceeded
with Larrazabal considered as a
bona fide candidate. The voters of
the province voted for her in the
sincere belief that she was a
 qualified candidate for the position
of governor. Her votes was counted
and she obtained the highest
number of votes. The net effect is
that petitioner lost in the election.
He was repudiated by the
electorate. . . . What matters is that
in the event a candidate for an
elected position who is voted for
and who obtains the highest
number of votes is disqualified for
not possessing the eligibility
requirements at the time of the
election as provided by law, the
candidate who obtains the second
highest number of votes for the
same position cannot assume the
vacated position. (emphasis
supplied)
Our ruling in Abella applies squarely to the case at
bar and we see no compelling reason to depart
therefrom. Like Abella, petitioner Ortega lost in
the election. He was repudiated by the electorate.
He was obviously not the choice of the people of
Baguio City.
Thus, while respondent Ortega (GR No. 105111)
originally filed a disqualification case with the
Comelec (docketed as SPA-92-029) seeking to
deny due course to petitioner's (Labo's)
candidacy, the same did not deter the people of
Baguio City from voting for petitioner Labo, who,
by then, was allowed by the respondent Comelec
to be voted upon, the resolution for his
disqualification having yet to attain the degree of
finality (Sec. 78. Omnibus Election Code).
And in the earlier case of Labo v. Comelec
(supra), We held:
Finally, there is the question of
whether or not the private
respondent, who filed the quo
warranto petition, can replace the
petitioner as mayor. He cannot. The
simple reason is that as he
obtained only the second highest
number of votes in the election, he
was obviously not the choice of the
people of Baguio City.
The latest ruling of the Court in this
issue is Santos v. Commission on
Election, (137 SCRA 740) decided in
1985. In that case, the candidate
who placed second was proclaimed
elected after the votes for his
winning rival, who was disqualified
as a turncoat and considered a 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 (Cuevas, J., ponente,
with Makasiar, Concepcion, Jr.,
Escolin, Relova, De la Fuente,
Alampay, and Aquino JJ.,
concurring) with three dissenting
(Teehankee, acting C.J., Abad
Santos and Melencio-Herrera) and
another two reserving their votes
(Plana and Gutierrez, Jr.). One was
on official leave (Fernando, C.J.)
Re-examining that decision, the
Court finds, and so holds, that it
should be reversed in favor of the
earlier case of Geronimo v. Santos
(136 SCRA 435), which represents
the more logical and democratic
rule. That case, which reiterated
the doctrine first announced in
1912 in Topacio vs. Paredes (23
Phil. 238) was supported by ten
members of the Court (Gutierrez,
Jr., J., ponente, with Teehankee,
Abad Santos, Melencio-Herrera,
Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ.,
concurring), without any
dissent, . . . . 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
did 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 It is therefore incorrect to argue that since a
of government that candidate has been disqualified, the votes
no one can be intended for the disqualified candidate should, in
declared elected and effect, be considered null and void. This would
no measure can be amount to disenfranchising the electorate in
declared carried whom sovereignty resides. At the risk of being
unless he or it repetitious, the people of Baguio City opted to
receives a majority or elect petitioner Labo bona fide, without any
plurality of the legal intention to misapply their franchise, and in the
votes cast in the honest belief that Labo was then qualified to be
election. (20 Corpus the person to whom they would entrust the
Juris 2nd, S 243, p. exercise of the powers of the government.
676) Unfortunately, petitioner Labo turned out to be
disqualified and cannot assume the office.
The fact that a
candidate who Whether or not the candidate whom the majority
obtained the highest voted for can or cannot be installed, under no
number of votes is circumstances can a minority or defeated
later declared to be candidate be deemed elected to the office.
disqualified or not Surely, the 12,602 votes cast for petitioner Ortega
eligible for the office is not a larger number than the 27,471 votes cast
to which he was for petitioner Labo (as certified by the Election
elected does not Registrar of Baguio City; rollo, p. 109; GR No.
necessarily entitle 105111).
the candidate who
obtained the second The rule would have been different if the
highest number of electorate fully aware in fact and in law of a
votes to be declared candidate's disqualification so as to bring such
the winner of the awareness within the realm of notoriety, would
elective office. The nonetheless cast their votes in favor of the
votes cast for a dead, ineligible candidate. In such case, the electorate
disqualified, or non- may be said to have waived the validity and
eligible person may efficacy of their votes by notoriously misapplying
be valid to vote the their franchise or throwing away their votes, in
winner into office or which case, the eligible candidate obtaining the
maintain him there. next higher number of votes may be deemed
However, in the elected.
absence of a statute
which clearly asserts But this is not the situation obtaining in the
a contrary political instant dispute. It has not been shown, and none
and legislative policy was alleged, that petitioner Labo was notoriously
on the matter, if the known as an ineligible candidate, much less the
votes were cast in electorate as having known of such fact. On the
the sincere belief that contrary, petitioner Labo was even allowed by no
that candidate was less than the Comelec itself in its resolution dated
alive, qualified, or May 10, 1992 to be voted for the office of the city
eligible, they should mayor as its resolution dated May 9, 1992
not be treated as denying due course to petitioner Labo's certificate
stray, void or of candidacy had not yet become final and subject
meaningless. to the final outcome of this case.

The rule, therefore, is: the ineligibility of a
candidate receiving majority votes does not
entitle the eligible candidate receiving the next
highest number of votes to be declared elected. A
minority or defeated candidate cannot be deemed
elected to the office.
Indeed, this has been the rule in the United States
since 1849 (State ex rel. Dunning v. Giles, 52 Am.
Dec. 149).
As aforesaid, the ineligibility of a candidate
receiving majority votes does not entitle the
candidate receiving the next highest number of
votes to be declared elected. Ortega failed to
satisfy the necessary requisite of winning the
election either by a majority or mere plurality of
votes sufficient to elevate him in public office as
mayor of Baguio City. Having lost in the election
for mayor, petitioner Ortega was obviously not the
choice of the people of Baguio City.
As a consequence of petitioners' ineligibility, a
permanent vacancy in the contested office has
occurred. This should now be filled by the vice-
mayor, in accordance with Sec. 44 of the Local
Government Code, to wit:
Chapter 2. Vacancies and
Succession
Sec. 44. Permanent Vacancies in
the Offices of the Governor, Vice-
Governor, Mayor and Vice-Mayor. —
(a) If a permanent vacancy occurs
in the office of the governor or
mayor, the vice-governor or the
vice-mayor concerned shall become
the governor or mayor. . . .
(emphasis supplied)
WHEREFORE, the instant petitions are DISMISSED
for lack of merit. Petitioners both being ineligible
for the Office of the City Mayor of Baguio City and
in view of the vacancy created in said office, the
vice-mayor elect of said city in the May 11, 1992
elections is hereby declared Mayor of Baguio City
after proclamation by the City Board of
Canvassers. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Paras, Feliciano, Padilla,
Griño-Aquino, Medialdea, Regalado, Davide, Jr.,
Romero, Nocon and Bellosillo, JJ., concur.
Separate Opinions
GUTIERREZ, JR., J.: concurring and dissenting
There is no need for me to discuss Mayor Ramon
L. Labo, Jr.'s reacquisition of Philippine citizenship.
In the first case brought to us, Labo, Jr. v.
COMELEC, 176 SCRA 1 [1989], I dissented from
the resolution denying his motion for
reconsideration.
It is my view that since Mayor Labo never validly
acquired Australian citizenship, he never lost his
Philippine citizenship. His oath of allegiance to
Australia was null and void because he was not
qualified to be an Australian citizen. This is clear
from the certification of Australia's Embassy
officials. To me, a null and void act cannot have
the positive and serious effect of stripping a
Filipino of his natural-born citizenship.
Labo's taking an oath as citizen of a foreign
country was based on his marriage to a citizen of
that country. It turns out, however, that Labo's
marriage was bigamous and void because his
Australian wife had an existing valid marriage
when she tied the knot with him. Not being
married to her, Labo could not become an
Australian. Not being qualified to become an
Australian citizen, his oath of allegiance to that
country was meaningless act. It should not
deprive him of his Philippine citizenship. I cannot
believe that Mayor Labo gave up his citizenship in
order to acquire a stateless status.
I, however, concur in the Court's reiteration of the
rule that it is the
vice-mayor elect who succeeds the disqualified
mayor-elect and not the losing candidate for
mayor.
I have to be consistent with my ponencia in
Geronima v. Santos, 136 SCRA 435 [1985]. The
Geronimo ruling is even more applicable to this
case because on May 11, 1992, the day of the
elections, Labo was not yet disqualified. He was
allowed to vote and to be voted for. The COMELEC
decision disqualifying him became final and
executory only on May 14, 1992. In the meantime,
the citizens of Baguio had already stated who was
their choice for Mayor. He had already been
elected.
I would like to repeat some observations made in
my dissent in the first Labo case:
xxx xxx xxx
I agree with the Court 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 it to him. We love the
Philippines; it is the land of our
birth; it is the home of our people.
The emotions kindled by love of
country cannot be described.
But precisely because of the
inestimable value of Philippine
citizenship, we should never
declare a Filipino as having lost his
citizenship except upon the most
compelling consideration.
 Let us be realistic. There must be
over two million Filipinos who are
scattered all over the world
desperately trying to earn a living.
They endure loneliness and
separation from loved ones, bear
with racial discrimination, suffer
rape and other forms of abuse,
brave the perils of foreign cultures,
and put up with the failings of their
own Government in looking after
their welfare. Being in foreign
countries, most of them yearn for
their homeland and realize what
they have lost. Only now do they
appreciate what they used to take
for granted.
If some of them may have been
forced by circumstances to
seemingly renounce their
citizenship, let us not summarily
condemn them.
xxx xxx xxx
Citizenship is a political and civil right no less
important than freedom of speech, liberty of
abode, right against unreasonable searches and
seizures, and other basic guarantees of the Bill of
Rights.
In deciding cases involving citizenship, I believe
that the presumptions should be in favor of its
retention and against its loss. We apply this
principle to cases involving civil liberties. We
should also apply it to a sincere invocation of
Philippine citizenship. We should not lightly strip a
person of his natural born status but should
accord to him every possible interpretation
consistent with the exercise of a right that was
vested in him from birth.
In view of the foregoing, I vote to GRANT the
petition and to order the proclamation and
assumption of office of Baguio Mayor Ramon
Labo, Jr.
Separate Opinions
GUTIERREZ, JR., J.: concurring and dissenting
There is no need for me to discuss Mayor Ramon
L. Labo, Jr.'s reacquisition of Philippine citizenship.
In the first case brought to us, Labo, Jr. v.
COMELEC, 176 SCRA 1 [1989], I dissented from
the resolution denying his motion for
reconsideration.
It is my view that since Mayor Labo never validly
acquired Australian citizenship, he never lost his
Philippine citizenship. His oath of allegiance to
Australia was null and void because he was not
qualified to be an Australian citizen. This is clear
from the certification of Australia's Embassy
officials. To me, a null and void act cannot have
the positive and serious effect of stripping a
Filipino of his natural-born citizenship.
Labo's taking an oath as citizen of a foreign
country was based on his marriage to a citizen of
that country. It turns out, however, that Labo's
marriage was bigamous and void because his
Australian wife had an existing valid marriage
when she tied the knot with him. Not being
married to her, Labo could not become an
Australian. Not being qualified to become an
Australian citizen, his oath of allegiance to that
country was meaningless act. It should not
deprive him of his Philippine citizenship. I cannot
believe that Mayor Labo gave up his citizenship in
order to acquire a stateless status.
I, however, concur in the Court's reiteration of the
rule that it is the
vice-mayor elect who succeeds the disqualified
mayor-elect and not the losing candidate for
mayor.
I have to be consistent with my ponencia in
Geronima v. Santos, 136 SCRA 435 [1985]. The
Geronimo ruling is even more applicable to this
case because on May 11, 1992, the day of the
elections, Labo was not yet disqualified. He was
allowed to vote and to be voted for. The COMELEC
decision disqualifying him became final and
executory only on May 14, 1992. In the meantime,
the citizens of Baguio had already stated who was
their choice for Mayor. He had already been
elected.
I would like to repeat some observations made in
my dissent in the first Labo case:
xxx xxx xxx
I agree with the Court 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 it to him. We love the
Philippines; it is the land of our
birth; it is the home of our people.
The emotions kindled by love of
country cannot be described.
 But precisely because of the
inestimable value of Philippine
citizenship, we should never
declare a Filipino as having lost his
citizenship except upon the most
compelling consideration.
Let us be realistic. There must be
over two million Filipinos who are
scattered all over the world
desperately trying to earn a living.
They endure loneliness and
separation from loved ones, bear
with racial discrimination, suffer
rape and other forms of abuse,
brave the perils of foreign cultures,
and put up with the failings of their
own Government in looking after
their welfare. Being in foreign
countries, most of them yearn for
their homeland and realize what
they have lost. Only now do they
appreciate what they used to take
for granted.
If some of them may have been
forced by circumstances to
seemingly renounce their
citizenship, let us not summarily
condemn them.
xxx xxx xxx
Citizenship is a political and civil right no less
important than freedom of speech, liberty of
abode, right against unreasonable searches and
seizures, and other basic guarantees of the Bill of
Rights.
In deciding cases involving citizenship, I believe
that the presumptions should be in favor of its
retention and against its loss. We apply this
principle to cases involving civil liberties. We
should also apply it to a sincere invocation of
Philippine citizenship. We should not lightly strip a
person of his natural born status but should
accord to him every possible interpretation
consistent with the exercise of a right that was
vested in him from birth.
In view of the foregoing, I vote to GRANT the
petition and to order the proclamation and
assumption of office of Baguio Mayor Ramon
Labo, Jr.
Footnotes
1 The first time was in Ramon L.
Labo, Jr., v. Comelec (176 SCRA 1
[1989])
2 Sec. 72. Effects of disqualification
cases and priority. — The
Commission and the courts shall
give priority to cases of
disqualification by reason of
violation of this Act to the end that
a final decision shall be rendered
not later than seven days before
the election in which the
disqualification is sought.
Any candidate who has been
declared by final judgment to be
disqualified shall not be voted for,
and the votes cast for him shall not
be counted. Nevertheless, if for any
reason, a candidate is not declared
by final judgment before an election
to be disqualified and he is voted
for and receives the winning
number of votes in such election,
his violation of the provisions of the
preceding sections shall not
prevent his proclamation and
assumption to office.
3 PD 725 authorizes the Special
Committee on Naturalization
(created under LOI 270) to accept
and process petitions for
repatriation, as follows: (1) Filipino
women who lost their Philippine
citizenship by marriage to aliens:
and (2) natural born Filipinos who
have lost their Philippine citizenship
may reacquire Philippine citizenship
through repratriation by applying
with the Special Committee on
Naturalization 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 shall thereupon cancel
certificate of registration.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 119976 September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO, respondents.
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 Constitution's one year
residency requirement for candidates for 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 COMELEC's Head Office in Intramuros, Manila
on
March 31, 1995. Her Answer to private
respondent's 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
respondent's motive in filing 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
petitioner's 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 electorate 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's Petition for Disqualification
in SPA 95-009 meritorious; 2) striking off
petitioner's Corrected/Amended Certificate of
Candidacy of March 31, 1995; and 3) canceling
her original Certificate of 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 petitioner's
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 petitioner's
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 respondent's
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 to 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, respondent's
defense of an honest mistake or
misinterpretation, therefore, is
devoid of merit.
To further buttress respondent's
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, of 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 Voter's 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 respondent's 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 respondent's
contention that it was an error.
xxx xxx xxx
Based on these reasons the
Amended/Corrected Certificate of
Candidacy cannot be admitted by
this Commission.
xxx xxx xxx
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
vs. Eliseo Quirino, 96 Phil 294;
Romualdez vs. RTC-Tacloban, 226
SCRA 408). In respondent's case,
when she returned to the
Philippines in 1991, the residence
she chose was not Tacloban but
San Juan, Metro Manila. Thus, her
animus revertendi 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 re-registered 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, respondent's conduct
reveals her lack of intention to
make Tacloban her domicile. She
registered as a voter in different
places and on several occasions
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 vs. 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. Respondent's
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
petitioner's 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 petitioner's 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
respondent's 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 Petitioner's 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 petitioner's
qualifications after the May 8, 1995
elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's
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 candidate's
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 vs.
Republic 20 this court took the concept of domicile
to mean an individual's "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 person's 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 vs. 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 vs. Guray, 24 the Court held that "the
term residence. . . is synonymous with domicile
which imports not only intention to reside in a
fixed place, but also personal presence in that
place, coupled with conduct indicative of such
intention." 25 Larena vs. 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 vs. 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
Committee's concept of residence
of a candidate for the legislature? Is
it actual residence or is it the
concept of domicile or constructive
residence?
Mr. Davide: Madame President,
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
xxx xxx xxx
Mrs. Rosario Braid: The next
question is on Section 7, page 2. I
think Commissioner Nolledo has
raised the same point that
"resident" has been interpreted at
times as a matter of intention
rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would
the 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 vs. 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 petitioner's
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 and
individual has satisfied the constitution's
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
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 COMELEC's Second
Division's 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 is
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 petitioner's 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 petitioner's
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 petitioner's
domicile.
In support of its asseveration that petitioner's
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
petitioner's 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 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 vs.
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 vs. 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 one's
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
petitioner's 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 petitioner's
domicile, which we lift verbatim from the
COMELEC's Second Division's 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. Paul's 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 Malacanang
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 last 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 husband's presidency, at the height of the
Marcos Regime's 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
COMELEC'S Resolutions, or the majority of the
COMELEC did not know what the rest of the
country always knew: the fact of petitioner's
domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that
Tacloban was not petitioner's 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, 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
petitioner's 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 respondent's 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 petitioner's 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 husband's 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 provides:
 Art. 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 husband's 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 to fix 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:
Art. 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 the
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.
xxx xxx xxx
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
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 of 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 husband's 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 family's
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 women's
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, petitioner's 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
PCGG's 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 brother's
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 petitioner's 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 vs. 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 petitioner's 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
Tribunal's supposed assumption of jurisdiction
over the issue of petitioner's qualifications after
the May 8, 1995 elections, suffice it to say that
HRET's 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 pre-EDSA regime. We renege on these
sacred ideals, including the meaning and spirit of
EDSA ourselves bending established principles of
principles of law to deny an individual what he or
she justly deserves in law. Moreover, in doing so,
we condemn ourselves to repeat the mistakes 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 COMELEC's
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
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 petitioner's 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 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.
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 provides:
Art. 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 Viña 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 petitioner's 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 wife's
domicile remains unchanged. The husband can
also implicitly acquiesce to his wife's prior
domicile even if it is different. So we held in de la
Viña, 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 petitioner's 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 Malacañang 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 petitioner's 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 husband's death,
the wife retains the last domicile of her husband
until she makes an actual change.
I do not subscribe to this submission. The
American case law that the wife still retains her
dead husband's 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 women's 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 struck 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 women's 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
xxx xxx xxx
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 husband's 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.
xxx xxx xxx
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 husband's
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 husband's 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:
Art. 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 exemption 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 mother-in-
law and they have
constant quarrels
 (Del Rosario v. Del with him insofar as the family is
Rosario, CA, 46 OG concerned. The wife and the
6122); husband are now placed on equal
standing by the Code. They are now
(d) Where the joint administrators of the family
husband has properties and exercise joint
continuously carried authority over the persons and
illicit relations for 10 properties of their children. This
years with different means a dual authority in the
women and treated family. The husband will no longer
his wife roughly and prevail over the wife but she has to
without agree on all matters concerning the
consideration. family. (Emphasis supplied)
(Dadivas v.
Villanueva, 54 Phil. In light of the Family Code which
92); abrogated the inequality between husband
and wife as started and perpetuated by the
(e) Where the common law, there is no reason in
husband spent his espousing the anomalous rule that the
time in gambling, wife still retains the domicile of her dead
giving no money to husband. Article 110 of the Civil Code
his family for food which provides the statutory support for
and necessities, and this stance has been repealed by Article 69
at the same time of the Family Code. By its repeal, it
insulting his wife and becomes a dead-letter law, and we are not
laying hands on her. free to resurrect it by giving it further
(Panuncio v. Sula, CA, effect in any way or manner such as by
34 OG 129); ruling that the petitioner is still bound by
the domiciliary determination of her dead
(f) If the husband has husband.
no fixed residence
and lives a vagabond Aside from reckoning with the Family Code, we
life as a tramp (1 have to consider our Constitution and its firm
Manresa 329); guarantees of due process and equal protection of
law. 30 It can hardly be doubted that the common
(g) If the husband is law imposition on a married woman of her dead
carrying on a husband's domicile even beyond his grave is
shameful business at patently discriminatory to women. It is a gender-
home (Gahn v. based discrimination and is not rationally related
Darby, 38 La. Ann. to the objective of promoting family solidarity. It
70). cannot survive a constitutional challenge. Indeed,
compared with our previous fundamental laws,
the 1987 Constitution is more concerned with
The inescapable conclusion is that our equality between sexes as it explicitly commands
Family Code has completely emancipated that the State ". . . shall ensure fundamental
the wife from the control of the husband, equality before the law of women and men." To
thus abandoning the parties' theoretic be exact, section 14, Article II provides: "The
identity of interest. No less than the late State recognizes the role of women in nation
revered Mr. Justice J.B.L. Reyes who building, and shall ensure fundamental equality
chaired the Civil Code Revision Committee before the law of women and men. We shall be
of the UP Law Center gave this insightful transgressing the sense and essence of this
view in one of his rare lectures after constitutional mandate if we insist on giving our
retirement: 29 women the caveman's treatment.

xxx xxx xxx Prescinding from these premises, I respectfully

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
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
petitioner's Batac dictated domicile did not
continue after her husband's death; otherwise,
she would have no domicile and that will violate Park which my daughter rented,
the universal rule that no person can be without a and Pacific Plaza, all in Makati.
domicile at any point of time. This stance also
restores the right of petitioner to choose her 40. After the 1992 Presidential
domicile before it was taken away by Article 110 Elections, I lived and resided in the
of the Civil Code, a right now recognized by the residence of my brother in San Jose,
Family Code and protected by the Constitution. Tacloban City, and pursued my
Likewise, I cannot see the fairness of the common negotiations with PCGG to recover
law requiring petitioner to choose again her my sequestered residences in
Tacloban domicile before she could be released Tacloban City and Barangay Olot,
from her Batac domicile. She lost her Tacloban Tolosa, Leyte.
domicile not through her act but through the act
of her deceased husband when he fixed their 40.1 In preparation
domicile in Batac. Her husband is dead and he for my observance of
cannot rule her beyond the grave. The law All Saints' Day and All
disabling her to choose her own domicile has Souls' Day that year,
been repealed. Considering all these, common law I renovated my
should not put the burden on petitioner to prove parents' burial
she has abandoned her dead husband's domicile. grounds and
There is neither rhyme nor reason for this gender- entombed their
based burden. bones which had
been excalvated,
But even assuming arguendo that there is need unearthed and
for convincing proof that petitioner chose to scattered.
reacquire her Tacloban domicile, still, the records
reveal ample evidence to this effect. In her 41. On November 29, 1993, I
affidavit submitted to the respondent COMELEC, formally wrote PCGG Chairman
petitioner averred: Magtanggol Gunigundo for
permissions to —
xxx xxx xxx
. . . rehabilitate . . .
36. In November, 1991, I came (o)ur ancestral house
home to our beloved country, after in Tacloban and
several requests for my return were farmhouse in Olot,
denied by President Corazon C. Leyte . . . to make
Aquino, and after I filed suits for our them livable for us
Government to issue me my the Marcos family to
passport. have a home in our
own motherland.
37. But I came home without the
mortal remains of my beloved xxx xxx xxx
husband, President Ferdinand E.
Marcos, which the Government 42. It was only on 06 June 1994,
considered a threat to the national however, when PCGG Chairman
security and welfare. Gunigundo, in his letter to Col.
Simeon Kempis, Jr., PCGG Region 8
38. Upon my return to the country, I Representative, allowed me to
wanted to immediately live and repair and renovate my Leyte
reside in Tacloban City or in Olot, residences. I quote part of his
Tolosa, Leyte, even if my letter:
residences there were not livable as
they had been destroyed and Dear Col. Kempis,
cannibalized. The PCGG, however,
did not permit and allow me.
Upon representation
by Mrs. Imelda R.
39. As a consequence, I had to live Marcos to this
at various times in the Westin Commission, that she
Philippine Plaza in Pasay City, a intends to visit our
friend's apartment on Ayala sequestered
Avenue, a house in South Forbes 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
authorization for her
to take over said
properties, and that
all expenses shall be
for her account and
not reimbursable.
Please extend the
necessary courtesy
to her.
xxx xxx xxx
43. I was not permitted, however,
to live and stay in the Sto. Niño
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
petitioner is nil. He presented petitioner's Voter's
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 Voter's
Registration Record on January 28, 1995. 31 This
statement in petitioner's Voter's 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. Petitioner's
statement proved that she resided in Olot six (6)
months before January 28, 1995 but did not
disprove 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 petitioner's
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 an 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.:
xxx xxx xxx
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 petitioner's
erroneous Certificate of Candidacy filed on
March 8, 1995 cannot be used as evidence
against her. Private respondent's petition
for the disqualification of petitioner rested
alone on these two (2) brittle pieces of
documentary evidence — petitioner's
Voter's Registration Record and her
original Certificate of Candidacy. Ranged
against the evidence of the petitioner
showing her ceaseless contacts with
Tacloban, private respondent's two (2)
pieces of evidence are too insufficient to
disqualify petitioner, more so, to deny 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 people's
representative in the First District of Leyte. In
petitioner's Answer to the petition to disqualify
her, she averred: 36
xxx xxx xxx
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 respondent's
affidavit, Annex "2"). 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
petitioner's (Montejo's) 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:
xxx xxx xxx
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 G.
Montejo, Representative, First
District of Leyte, wanted the
Municipality of Tolosa, in the First
District of Leyte, transferred to the
Second 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 vs. 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.
Petitioner's (Montejo's) 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 First Legislative
District.
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.
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 . . . ." Petitioner's
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 people's
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., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's 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 petitioner's domicile.
Domicile has been defined as that place in which
a person's 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 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). 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 petitioner's
disqualification by ruling that petitioner failed to
comply with the constitutionally mandated one-
year residence requirement. Apparently, public
respondent Commission deemed as conclusive
petitioner's 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
petitioner's intent of abandoning her domicile of
origin.
It has been suggested that petitioner's 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 husband's domicile, i.e.,
Batac, Ilocos Norte, until she makes an actual
change thereof. I find this proposition quite
untenable.
Tacloban, Leyte, is petitioner's 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 latter's
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
husband's 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
one-year 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.
ROMERO, J., separate opinion:
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
straightforward 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 petitioner's certificate of
candidacy were first, the action of its Second
Division disqualifying her and canceling 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 petitioner's 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
husband's death on the domicile of the widow.
Some scholars opine that the widow's domicile
remains unchanged; that the deceased husband's
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 one's 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 is acquired, for
no person lives who has no domicile, as defined
by the law be 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 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 at 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 cultures, mores and 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 husband's being the head of the
family and the wife's subordination to his
authority. In such role, his was the right to make
vital decisions for the family. Many instances
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
the purposes specified under the law; 6 whereas,
as a general rule, the wife cannot bind the
conjugal partnership without the husband's
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 wife's 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
husband's consent, acquire any 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 the 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 husband's 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 the
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 (Emphasis supplied).
CEDAW's 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 women's 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.
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 "Women's Rights are Human Rights" and that
"All obstacles to women's full participation in
decision-making at all levels, including the family"
should be removed. Having been herself a
Member of the Philippine Delegation to the
International Women's Year Conference in Mexico
in 1975, this writer is only too keenly aware of the
unremitting struggle being waged by women the
world over, Filipino 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.
VITUG, J., separate opinion:
The case at bench deals with explicit
Constitutional mandates.
The Constitution is not a pliable instrument. It is a
bedrock in our legal system that sets up ideals
and directions and render steady our strides
hence. It only looks back so as to ensure that
mistakes in the past are not repeated. A
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 is manifest (see Marcelino vs. Cruz, 121
SCRA 51).
The two provisions initially brought to focus are
Section 6 and Section 17 of Article VI of the
fundamental law. These provisions read:
Sec. 6. No person shall be a
Member of the House of
Representatives unless he is a
natural-born citizen of the
Philippines and, on the day of the
election, is at least 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.
Sec. 17. The Senate and the House
of Representatives shall each have
an Electoral Tribunal which shall be
the sole judge of all contests
relating to the election, returns, and
qualifications of their respective
Members. Each Electoral Tribunal
shall be composed of nine
Members, three of whom shall be
Justices of the Supreme Court to be
designated by the Chief Justice, and
the remaining six shall be Members
of the Senate or the House of
Representatives, as the case may
be, who shall be chosen on the
basis of proportional representation
from the political parties and the
parties or organizations registered
under the party-list system
represented therein. The senior
Justice in the Electoral Tribunal shall
be its Chairman.
The Commission on Election (the "COMELEC") is
constitutionally bound to enforce and administer
"all laws and regulations relative to the conduct of
election . . ." (Art. IX, C, Sec. 2, Constitution) that,
there being nothing said to the contrary, should
include its authority to pass upon the qualification
and disqualification prescribed by law of
candidates to an elective office. Indeed, pre-
proclamation controversies are expressly placed
under the COMELEC's jurisdiction to hear and
resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the
observance of the constitutional one-year
residency requirement. The 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 one's official
duties may require him to stay) or temporary (the
place where he sojourns during a considerable
length of time). For civil law purposes, i.e., as
regards the exercise of civil rights and the
fulfillment of civil obligations, the domicile of a
natural person is the place of his habitual
residence (see Article 50, Civil Code). In election
cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs.
Regional Trial Court, Branch 7, Tacloban City (226
SCRA 408, 409); thus:
In election cases, the Court treats
domicile and residence as
synonymous terms, thus: "(t)he
term "residence" as used in the
election law is synonymous with
"domicile," which imports not only
an intention to reside in a fixed
place but also personal presence in
that place, coupled with conduct
indicative of such intention."
"Domicile" denotes a fixed
permanent residence to which
when absent for business or
pleasure, or for like reasons, one
intends to return. . . . . Residence
thus acquired, however, may be
lost by adopting another choice of
domicile. In order, in turn, to
acquire a new domicile by choice,
there must concur (1) residence or
bodily presence in the new locality,
(2) an intention to remain there,
and (3) an intention to abandon the
old domicile. In other words, there
must basically 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 COMELEC's jurisdiction, in the case of
congressional elections, ends when the
jurisdiction of the Electoral Tribunal concerned
begins. It signifies that the protestee must have
theretofore been duly proclaimed and has since
become a "member" of the Senate or the House
of Representatives. The question can be asked on
whether or not the proclamation of a candidate is
just a ministerial function of the Commission on
Elections dictated solely on the number of votes
cast in an election exercise. I believe, it is not. A
ministerial duty is an obligation the performance
of which, being adequately defined, does not
allow the use of further judgment or discretion.
The COMELEC, in its particular case, is tasked with
the full responsibility of ascertaining all the facts
and conditions such as may be required by law
before a proclamation is properly done.
The Court, on its part, should, in my view at least,
refrain from any undue encroachment on the
ultimate exercise of authority by the Electoral
Tribunals on matters which, by no less than a
constitutional fiat, are explicitly within their
exclusive domain. The nagging question, if it were
otherwise, would be the effect of the Court's
peremptory pronouncement on the ability of the
Electoral Tribunal to later come up with its own
judgment in a contest "relating to the election,
returns and qualification" of its members.
Prescinding from all the foregoing, I should like to
next touch base on the applicability to this case of
Section 6 of Republic Act No. 6646, in relation to
Section 72 of Batas Pambansa Blg. 881, each
providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification
Case. — Any candidate who has
been declared by final judgment to
be disqualified shall not be voted
for, and the votes cast for him shall
not be counted. If for any reason a
candidate is not declared by final
judgment before an election to be
disqualified and he is voted for and
receives the winning number of
votes in such election, the Court or
Commission shall continue with the
trial and hearing of the action,
inquiry or protest and, upon motion
of the complainant or any
intervenor, may during the
pendency thereof order the
suspension of the proclamation of
such candidate whenever the
evidence of his guilt is strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification
cases and priority. — The
Commission and the courts shall
give priority to cases of
disqualification by reason of
violation of this Act to the end that
a final decision shall be rendered
not later than seven days before
the election in which the
disqualification is sought.
Any candidate who has been
declared by final judgment to be
disqualified shall not be voted for,
and the votes cast for him shall not
be counted. Nevertheless, if for any
reason, a candidate is not declared
by final, judgment before an
election to be disqualified, and he is
voted for and receives the winning
number of votes in such election,
his violation of the provisions of the
preceding sections shall not
prevent his proclamation and
assumption to office.
I realize that in considering the significance of the
law, it may be preferable to look for not so much
the specific instances they ostensibly would cover
as the principle they clearly convey. Thus, I will
not scoff at the argument that it should be sound
to say that votes cast in favor of the disqualified
candidate, whenever ultimately declared as such,
should not be counted in his or her favor and
must accordingly be considered to be stray votes.
The argument, nevertheless, is far outweighed by
the rationale of the now prevailing doctrine first
enunciated in the case of Topacio vs. Paredes (23
Phil. 238 [1912]) which, although later abandoned
in Ticzon vs. Comelec (103 SCRA 687 [1981]), and
Santos vs. COMELEC (137 SCRA 740 [1985]), was
restored, along with the interim case of Geronimo
vs. Ramos (136 SCRA 435 [1985]), by the Labo
(176 SCRA 1 (1989]), Abella (201 SCRA 253 Cuevas and Alampay, JJ.,
[1991]), Labo (211 SCRA 297 [1992]) and, most concurring) without any dissent,
recently, Benito (235 SCRA 436 [1994]) rulings. although one reserved his vote,
Benito vs. Comelec was a unanimous decision (Makasiar, J.) another took no part,
penned by Justice Kapunan and concurred in by (Aquino, J.) and two others were on
Chief Justice Narvasa, Justices Feliciano, Padilla, leave. (Fernando, C.J. and
Bidin, Regalado, Davide, Romero, Melo, Quiason, Concepcion, Jr., J.) There the Court
Puno, Vitug and Mendoza (Justices Cruz and held:
Bellosillo were on official leave). For easy
reference, let me quote from the first Labo . . . it would be
decision: extremely repugnant
to the basic concept
Finally, there is the question of of the constitutionally
whether or not the private guaranteed right to
respondent, who filed the quo suffrage if a
warranto petition, can replace the candidate who has
petitioner as mayor. He cannot. The not acquired the
simple reason is that as he majority or plurality
obtained only the second highest of votes is
number of votes in the election, he proclaimed a winner
was obviously not the choice of the and imposed as the
people of Baguio City. representative of a
constituency, the
The latest ruling of the Court on this majority of which
issue is Santos v. Commission on have positively
Elections, (137 SCRA 740) decided declared through
in 1985. In that case, the candidate their ballots that they
who placed second was proclaimed do not choose him.
elected after the votes for his
winning rival, who was disqualified Sound policy dictates
as a turncoat and considered a non- that public elective
candidate, were all disregard as offices are filled by
stray. In effect, the second placer those who have
won by default. That decision was received the highest
supported by eight members of the number of votes cast
Court then, (Cuevas, J., ponente, in the election for
with Makasiar, Concepcion, Jr., that office, and it is a
Escolin, Relova, De la Fuente, fundamental idea in
Alampay and Aquino, JJ., all republican forms
concurring.) with three dissenting of government that
(Teehankee, Acting C.J., Abad no one can be
Santos and Melencio-Herrera, JJ.) declared elected and
and another two reserving their no measure can be
vote. (Plana and Gutierrez, Jr., JJ.) declared carried
One was on official leave. unless he or it
(Fernando, C.J.) receives a majority or
plurality of the legal
Re-examining that decision, the votes cast in the
Court finds, and so holds, that it election. (20 Corpus
should be reversed in favor of the Juris 2nd, S 243, p.
earlier case of Geronimo v. Ramos, 676.)
(136 SCRA 435) which represents
the more logical and democratic The fact that the candidate who
rule. That case, which reiterated obtained the highest number of
the doctrine first announced in votes is later declared to be
1912 in Topacio v. Paredes, (23 disqualified or not eligible for the
Phil. 238) was supported by ten office to which he was elected does
members of the Court, (Gutierrez, not necessarily entitle the
Jr., ponente, with Teehankee, Abad candidate who obtained the second
Santos, Melencio-Herrera, Plana, highest number of votes to be
Escolin, Relova, De la Fuente, declared the winner of the elective
 office. The votes cast for a dead,
disqualified, or non-eligible person
may not be valid to vote the winner
into office or maintain him there.
However, in the absence of a
statute which clearly asserts a
contrary political and legislative
policy on the matter, if the votes
were cast in the sincere belief that
the candidate was alive, qualified,
or eligible, they should not be
treated as stray, void or
meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to
vote for the dismissal of the petition.
MENDOZA, J., separate opinion:
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
candidate's 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.
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 of Sections
80, 83, 85, 86 and 261, paragraphs
d, e, k, v, and cc, sub-paragraph 6,
shall be disqualified from
continuing as a candidate, or if he
has been elected, from holding the
office. Any person who is a
permanent resident of or an
immigrant to a foreign country shall
not be qualified to run for any
elective office under this Code,
unless said person has waived his
status as permanent resident or
immigrant of a foreign country in
 accordance with the residence
requirement provided for in the
election laws. (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 on 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 COMELEC's 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.
Montejo's 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
candidate's 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
Aquino's 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 official's
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 rulemaking 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 candidate's
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 doted 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.
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 cases 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 person's 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 candidate's 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. Paul's 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 Malacanang
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 8.
1992 respondent ran for election as RESIDE
President of the Philippines and NCE
filed her Certificate of Candidacy (compl
wherein she indicated that she is a ete
resident and registered voter of San addres
Juan, Metro Manila. On August 24, s):
1994, respondent filed a letter with Brgy.
the election officer of San Juan, Olot,
Metro Manila, requesting for Tolosa,
cancellation of her registration in Leyte
the Permanent List of Voters in
Precinct No. 157 of San Juan, Metro Post
Manila, in order that she may be re- Office
registered or transferred to Brgy. Addres
Olot, Tolosa, Leyte. (Annex 2-B, s for
Answer). On August 31, 1994, electio
respondent filed her Sworn n
Application for Cancellation of purpos
Voter's Previous Registration es:
(Annex 2-C, Answer) stating that Brgy.
she is a duly registered voter in Olot,
157-A, Brgy. Maytunas, San Juan, Tolosa,
Metro that she intends to register at Leyte
Brgy. Olot, Tolosa, Leyte.
9.
On January 28, 1995 respondent RESIDE
registered as a voter at Precinct No. NCE IN
18-A of Olot, Tolosa, Leyte. She THE
filed with the Board of Election CONSTI
Inspectors CE Form No. 1, Voter TUENC
Registration Record No. 94- Y
3349772, wherein she alleged that WHERE
she has resided in the municipality IN I
of Tolosa for a period of 6 months SEEK
(Annex A, Petition). TO BE
ELECTE
On March 8, 1995, respondent filed D
with the Office of the Provincial IMMEDI
Election Supervisor, Leyte, a ATELY
Certificate of Candidacy for the PRECE
position of Representative of the DING
First District of Leyte wherein she ELECTI
also alleged that she has been a ON:
resident in the constituency where _______
she seeks to be elected for a period _ Years
of 7 months. The pertinent entries Seven
therein are as follows: Months

7. 10. I
PROFE AM
SSION NOT A
OR PERMA
OCCUP NENT
ATION: RESIDE
House- NT OF,
wife/ OR
Teache IMMIGR
r/ ANT
Social TO, A
Worker FOREIG
 N highest number of votes cast in the
COUNT
RY.
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 of my
knowledge.
Romualdez-Marcos office. The votes cast for a dead,
Petitioner's 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 petitioner's 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 vs. Comelec, G.R.
86564, August 1, 1989, 176 SCRA 1 which gave
the rationale as laid down in the early 1912 case
of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that
public elective offices are filled by
those who have received 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
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.
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 judgement 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 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.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
While I agree with same 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 Malacanang 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
Voter's 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 voter's 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 petitioner's 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 petitioner's 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 propio motu; the 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 husband's 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 petitioner's 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 majority's 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 husband's
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 petitioner's 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
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.
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.
One's 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 one's
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 husband's 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 wife's
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 majority's 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 petitioner's case
was the matter of her having acquired or not her
own domicile of choice.
I agree with the majority's 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 majority's
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 by the eloquence of the well-turned 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
petitioner's 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 vs. COMELEC, 88
SCRA 251 [1979]; Dario vs. 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 respondent's 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
COMELEC's 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 petitioner's
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:
Art. 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.
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 woman's
domicile of origin upon the death of her husband,
which the majority opinion adopts to overcome
the legal effect of the petitioner's marriage on her
domicile, is unsupported by law and by
jurisprudence. The settled doctrine is that after
the husband's 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
petitioner's 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, and San Miguel, 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
Montejo's Comment). Notably, she contradicted
this sworn statement regarding her place of birth
when, in her Voter's 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 Voter's 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 vs. 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 one's 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 one's "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
petitioner's 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 petitioner's 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 vs. NLRC, 200
SCRA 178 [1991]; P.T. Cerna Corp. vs. 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 husband's 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.
Separate Opinions
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 petitioner's 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 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.
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 provides:
Art. 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 Viña 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 petitioner's 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 wife's
domicile remains unchanged. The husband can
also implicitly acquiesce to his wife's prior
domicile even if it is different. So we held in de la
Viña, 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 petitioner's 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 Malacañang 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 petitioner's 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 husband's death,
the wife retains the last domicile of her husband
until she makes an actual change.
I do not subscribe to this submission. The
American case law that the wife still retains her
dead husband's 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 women's 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 struck 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 women's 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
xxx xxx xxx
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 husband's 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.
xxx xxx xxx
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 husband's
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 husband's 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:
Art. 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 exemption 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 (f) If the husband has
Madam Justice Alice Sempio-Diy of the no fixed residence
Court of Appeals specified the instances and lives a vagabond
when a wife may now refuse to live with life as a tramp (1
her husband, thus: 28 Manresa 329);

(2) The wife has the duty to live (g) If the husband is
with her husband, but she may carrying on a
refuse to do so in certain cases like: shameful business at
home (Gahn v.
(a) If the place Darby, 38 La. Ann.
chosen by the 70).
husband as family
residence is The inescapable conclusion is that our
dangerous to her Family Code has completely emancipated
Life; the wife from the control of the husband,
thus abandoning the parties' theoretic
(b) If the husband identity of interest. No less than the late
subjects her to revered Mr. Justice J.B.L. Reyes who
maltreatment or chaired the Civil Code Revision Committee
abusive conduct or of the UP Law Center gave this insightful
insults, making view in one of his rare lectures after
common life retirement: 29
impossible;
xxx xxx xxx
(c) If the husband
compels her to live The Family Code is primarily
with his parents, but intended to reform the family law
she cannot get along so as to emancipate the wife from
with her mother-in- the exclusive control of the
law and they have husband and to place her at parity
constant quarrels with him insofar as the family is
(Del Rosario v. Del concerned. The wife and the
Rosario, CA, 46 OG husband are now placed on equal
6122); standing by the Code. They are now
joint administrators of the family
(d) Where the properties and exercise joint
husband has authority over the persons and
continuously carried properties of their children. This
illicit relations for 10 means a dual authority in the
years with different family. The husband will no longer
women and treated prevail over the wife but she has to
his wife roughly and agree on all matters concerning the
without family. (Emphasis supplied)
consideration.
(Dadivas v. In light of the Family Code which
Villanueva, 54 Phil. abrogated the inequality between husband
92); and wife as started and perpetuated by the
common law, there is no reason in
(e) Where the espousing the anomalous rule that the
husband spent his wife still retains the domicile of her dead
time in gambling, husband. Article 110 of the Civil Code
giving no money to which provides the statutory support for
his family for food this stance has been repealed by Article 69
and necessities, and of the Family Code. By its repeal, it
at the same time becomes a dead-letter law, and we are not
insulting his wife and free to resurrect it by giving it further
laying hands on her. effect in any way or manner such as by
(Panuncio v. Sula, CA, ruling that the petitioner is still bound by
34 OG 129); 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
husband's 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
petitioner's Batac dictated domicile did not
continue after her husband's 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 husband's domicile.
There is neither rhyme nor reason for this gender-
based 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:
xxx xxx xxx
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
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
friend's 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 excalvated,
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
farmhouse in Olot,
Leyte . . . to make
them livable for us
the Marcos family to
have a home in our
own motherland.
xxx xxx xxx
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:
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.

Dear Col. Kempis, The evidence presented by the private

respondent to negate the Tacloban domicile of
Upon representation petitioner is nil. He presented petitioner's Voter's
by Mrs. Imelda R. Registration Record filed with the Board of
Marcos to this Election Inspectors of Precinct 10-A of Barangay
Commission, that she Olot, Tolosa, Leyte wherein she stated that her
intends to visit our period of residence in said barangay was six (6)
sequestered months as of the date of her filing of said Voter's
properties in Leyte, Registration Record on January 28, 1995. 31 This
please allow her statement in petitioner's Voter's Registration
access thereto. She Record is a non-prejudicial admission. The
may also cause Constitution requires at least one (1) year
repairs and residence in the district in which the candidate
renovation of the shall be elected. In the case at bench, the
sequestered reference is the First District of Leyte. Petitioner's
properties, in which statement proved that she resided in Olot six (6)
event, it shall be months before January 28, 1995 but did not
understood that her disprove that she has also resided in Tacloban
undertaking said City starting 1992. As aforestated, Olot and
repairs is not Tacloban City are both within the First District of
authorization for her Leyte, hence, her six (6) months residence in Olot
to take over said should be counted not against, but in her favor.
properties, and that Private respondent also presented petitioner's
all expenses shall be Certificate of Candidacy filed on March 8, 1995 32
for her account and where she placed seven (7) months after Item No.
not reimbursable. 8 which called for information regarding
Please extend the "residence in the constituency where I seek to be
necessary courtesy elected immediately preceding the election."
to her. Again, this original certificate of candidacy has no
evidentiary value because an March 1, 1995 it
was corrected by petitioner. In her
xxx xxx xxx Amended/Corrected Certificate of Candidacy, 33
petitioner wrote "since childhood" after Item No.
43. I was not permitted, however, 8. The amendment of a certificate of candidacy to
to live and stay in the Sto. Niño correct a bona fide mistake has been allowed by
Shrine residence in Tacloban City this Court as a matter of course and as a matter
where I wanted to stay and reside, of right. As we held in Alialy v. COMELEC, 34 viz.:
after repairs and renovations were
completed. In August 1994, I xxx xxx xxx
transferred from San Jose, Tacloban
 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 petitioner's
erroneous Certificate of Candidacy filed on
March 8, 1995 cannot be used as evidence
against her. Private respondent's petition
for the disqualification of petitioner rested
alone on these two (2) brittle pieces of
documentary evidence — petitioner's
Voter's Registration Record and her
original Certificate of Candidacy. Ranged
against the evidence of the petitioner
showing her ceaseless contacts with
Tacloban, private respondent's two (2)
pieces of evidence are too insufficient to
disqualify petitioner, more so, to deny 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 people's
representative in the First District of Leyte. In
petitioner's Answer to the petition to disqualify
her, she averred: 36
xxx xxx xxx
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 respondent's
affidavit, Annex "2"). 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
petitioner's (Montejo's) 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:
xxx xxx xxx
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 G.
Montejo, Representative, First
District of Leyte, wanted the
Municipality of Tolosa, in the First
District of Leyte, transferred to the
Second 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 vs. 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.
Petitioner's (Montejo's) 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 First Legislative
District.
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.
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 . . . ." Petitioner's
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 people's
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., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's 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 petitioner's domicile.
Domicile has been defined as that place in which
a person's 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 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). 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 petitioner's
disqualification by ruling that petitioner failed to
comply with the constitutionally mandated one-
year residence requirement. Apparently, public
respondent Commission deemed as conclusive
petitioner's 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
petitioner's intent of abandoning her domicile of
origin.
It has been suggested that petitioner's 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 husband's domicile, i.e.,
Batac, Ilocos Norte, until she makes an actual
change thereof. I find this proposition quite
untenable.
Tacloban, Leyte, is petitioner's 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 latter's
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
husband's 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
one-year 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.
ROMERO, J., separate opinion:
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
straightforward 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 petitioner's certificate of
candidacy were first, the action of its Second
Division disqualifying her and canceling 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 petitioner's 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
husband's death on the domicile of the widow.
Some scholars opine that the widow's domicile
remains unchanged; that the deceased husband's
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 one's 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 is acquired, for
no person lives who has no domicile, as defined
by the law be 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 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 at 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 cultures, mores and 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 husband's being the head of the
family and the wife's subordination to his
authority. In such role, his was the right to make
vital decisions for the family. Many instances
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
the purposes specified under the law; 6 whereas,
as a general rule, the wife cannot bind the
conjugal partnership without the husband's
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 wife's 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
husband's consent, acquire any 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 the 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 husband's 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 the
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 (Emphasis supplied).
CEDAW's 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 women's 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.
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 "Women's Rights are Human Rights" and that
"All obstacles to women's full participation in
decision-making at all levels, including the family"
should be removed. Having been herself a
Member of the Philippine Delegation to the
International Women's Year Conference in Mexico
in 1975, this writer is only too keenly aware of the
unremitting struggle being waged by women the
world over, Filipino 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.
VITUG, J., separate opinion:
The case at bench deals with explicit
Constitutional mandates.
The Constitution is not a pliable instrument. It is a
bedrock in our legal system that sets up ideals
and directions and render steady our strides
hence. It only looks back so as to ensure that
mistakes in the past are not repeated. A
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 is manifest (see Marcelino vs. Cruz, 121
SCRA 51).
The two provisions initially brought to focus are
Section 6 and Section 17 of Article VI of the
fundamental law. These provisions read:
Sec. 6. No person shall be a
Member of the House of
Representatives unless he is a
natural-born citizen of the
Philippines and, on the day of the
election, is at least 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.
Sec. 17. The Senate and the House
of Representatives shall each have
an Electoral Tribunal which shall be
the sole judge of all contests
relating to the election, returns, and
qualifications of their respective
Members. Each Electoral Tribunal
shall be composed of nine
Members, three of whom shall be
Justices of the Supreme Court to be
designated by the Chief Justice, and
the remaining six shall be Members
of the Senate or the House of
Representatives, as the case may
be, who shall be chosen on the
basis of proportional representation
from the political parties and the
parties or organizations registered
under the party-list system
represented therein. The senior
Justice in the Electoral Tribunal shall
be its Chairman.
The Commission on Election (the "COMELEC") is
constitutionally bound to enforce and administer
"all laws and regulations relative to the conduct of
election . . ." (Art. IX, C, Sec. 2, Constitution) that,
there being nothing said to the contrary, should
include its authority to pass upon the qualification
and disqualification prescribed by law of
candidates to an elective office. Indeed, pre-
proclamation controversies are expressly placed
under the COMELEC's jurisdiction to hear and
resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the
observance of the constitutional one-year
residency requirement. The 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 one's official
duties may require him to stay) or temporary (the
place where he sojourns during a considerable
length of time). For civil law purposes, i.e., as
regards the exercise of civil rights and the
fulfillment of civil obligations, the domicile of a
natural person is the place of his habitual
residence (see Article 50, Civil Code). In election
cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs.
Regional Trial Court, Branch 7, Tacloban City (226
SCRA 408, 409); thus:
In election cases, the Court treats
domicile and residence as
synonymous terms, thus: "(t)he
term "residence" as used in the
election law is synonymous with
"domicile," which imports not only
an intention to reside in a fixed
place but also personal presence in
that place, coupled with conduct
indicative of such intention."
"Domicile" denotes a fixed
permanent residence to which
when absent for business or
pleasure, or for like reasons, one
intends to return. . . . . Residence
thus acquired, however, may be
lost by adopting another choice of
domicile. In order, in turn, to
acquire a new domicile by choice,
there must concur (1) residence or
bodily presence in the new locality,
(2) an intention to remain there,
and (3) an intention to abandon the
old domicile. In other words, there
must basically 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 COMELEC's jurisdiction, in the case of
congressional elections, ends when the
jurisdiction of the Electoral Tribunal concerned
begins. It signifies that the protestee must have
theretofore been duly proclaimed and has since
become a "member" of the Senate or the House
of Representatives. The question can be asked on
whether or not the proclamation of a candidate is
just a ministerial function of the Commission on
Elections dictated solely on the number of votes
cast in an election exercise. I believe, it is not. A
ministerial duty is an obligation the performance
of which, being adequately defined, does not
allow the use of further judgment or discretion.
The COMELEC, in its particular case, is tasked with
the full responsibility of ascertaining all the facts
and conditions such as may be required by law
before a proclamation is properly done.
The Court, on its part, should, in my view at least,
refrain from any undue encroachment on the
ultimate exercise of authority by the Electoral
Tribunals on matters which, by no less than a
constitutional fiat, are explicitly within their
exclusive domain. The nagging question, if it were
otherwise, would be the effect of the Court's
peremptory pronouncement on the ability of the
Electoral Tribunal to later come up with its own
judgment in a contest "relating to the election,
returns and qualification" of its members.
Prescinding from all the foregoing, I should like to
next touch base on the applicability to this case of
Section 6 of Republic Act No. 6646, in relation to
Section 72 of Batas Pambansa Blg. 881, each
providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification
Case. — Any candidate who has
been declared by final judgment to
be disqualified shall not be voted
for, and the votes cast for him shall
not be counted. If for any reason a
candidate is not declared by final
judgment before an election to be
disqualified and he is voted for and
receives the winning number of
votes in such election, the Court or
Commission shall continue with the
trial and hearing of the action,
inquiry or protest and, upon motion
of the complainant or any
intervenor, may during the
pendency thereof order the
suspension of the proclamation of
such candidate whenever the
evidence of his guilt is strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification
cases and priority. — The
Commission and the courts shall
give priority to cases of
disqualification by reason of
violation of this Act to the end that
a final decision shall be rendered
not later than seven days before
the election in which the
disqualification is sought.
Any candidate who has been
declared by final judgment to be
 disqualified shall not be voted for,
and the votes cast for him shall not
be counted. Nevertheless, if for any
reason, a candidate is not declared
by final, judgment before an
election to be disqualified, and he is
voted for and receives the winning
number of votes in such election,
his violation of the provisions of the
preceding sections shall not
prevent his proclamation and
assumption to office.
I realize that in considering the significance of the
law, it may be preferable to look for not so much
the specific instances they ostensibly would cover
as the principle they clearly convey. Thus, I will
not scoff at the argument that it should be sound
to say that votes cast in favor of the disqualified
candidate, whenever ultimately declared as such,
should not be counted in his or her favor and
must accordingly be considered to be stray votes.
The argument, nevertheless, is far outweighed by
the rationale of the now prevailing doctrine first
enunciated in the case of Topacio vs. Paredes (23
Phil. 238 [1912]) which, although later abandoned
in Ticzon vs. Comelec (103 SCRA 687 [1981]), and
Santos vs. COMELEC (137 SCRA 740 [1985]), was
restored, along with the interim case of Geronimo
vs. Ramos (136 SCRA 435 [1985]), by the Labo
(176 SCRA 1 (1989]), Abella (201 SCRA 253
[1991]), Labo (211 SCRA 297 [1992]) and, most
recently, Benito (235 SCRA 436 [1994]) rulings.
Benito vs. Comelec was a unanimous decision
penned by Justice Kapunan and concurred in by
Chief Justice Narvasa, Justices Feliciano, Padilla,
Bidin, Regalado, Davide, Romero, Melo, Quiason,
Puno, Vitug and Mendoza (Justices Cruz and
Bellosillo were on official leave). For easy
reference, let me quote from the first Labo
decision:
Finally, there is the question of
whether or not the private
respondent, who filed the quo
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 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. (at pp. 20-21)
Considering all the foregoing, I am constrained to
vote for the dismissal of the petition.
MENDOZA, J., separate opinion:
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
candidate's 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.
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 of Sections
80, 83, 85, 86 and 261, paragraphs
d, e, k, v, and cc, sub-paragraph 6,
shall be disqualified from
continuing as a candidate, or if he
has been elected, from holding the
office. Any person who is a
permanent resident of or an
immigrant to a foreign country shall
not be qualified to run for any
elective office under this Code,
unless said person has waived his
status as permanent resident or
immigrant of a foreign country in
accordance with the residence
requirement provided for in the
election laws. (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 on 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 COMELEC's 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.
Montejo's 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
candidate's 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
Aquino's 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 official's
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 rulemaking 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 candidate's
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 doted 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.
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 cases 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 person's 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 candidate's 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. Paul's 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 she has resided in the municipality
with her cousin, the late Speaker of Tolosa for a period of 6 months
Daniel Z. Romualdez in his office in (Annex A, Petition).
the House of Representatives. In
1954, she married ex-president On March 8, 1995, respondent filed
Ferdinand Marcos when he was still with the Office of the Provincial
a congressman of Ilocos Norte. She Election Supervisor, Leyte, a
lived with him in Batac, Ilocos Norte Certificate of Candidacy for the
and registered there as a voter. position of Representative of the
When her husband was elected First District of Leyte wherein she
Senator of the Republic in 1959, also alleged that she has been a
she and her husband lived together resident in the constituency where
in San Juan, Rizal where she she seeks to be elected for a period
registered as a voter. In 1965 when of 7 months. The pertinent entries
her husband was elected President therein are as follows:
of the Republic of the Philippines,
she lived with him in Malacanang 7.
Palace and registered as a voter in PROFE
San Miguel, Manila. SSION
OR
During the Marcos presidency, OCCUP
respondent served as a Member of ATION:
the Batasang Pambansa, Minister of House-
Human Settlements and Governor wife/
of Metro Manila. She claimed that in Teache
February 1986, she and her family r/
were abducted and kidnapped to Social
Honolulu, Hawaii. In November Worker
1991, she came home to Manila. In
1992 respondent ran for election as 8.
President of the Philippines and RESIDE
filed her Certificate of Candidacy NCE
wherein she indicated that she is a (compl
resident and registered voter of San ete
Juan, Metro Manila. On August 24, addres
1994, respondent filed a letter with s):
the election officer of San Juan, Brgy.
Metro Manila, requesting for Olot,
cancellation of her registration in Tolosa,
the Permanent List of Voters in Leyte
Precinct No. 157 of San Juan, Metro
Manila, in order that she may be re-
registered or transferred to Brgy. Post
Olot, Tolosa, Leyte. (Annex 2-B, Office
Answer). On August 31, 1994, Addres
respondent filed her Sworn s for
Application for Cancellation of electio
Voter's Previous Registration n
(Annex 2-C, Answer) stating that purpos
she is a duly registered voter in es:
157-A, Brgy. Maytunas, San Juan, Brgy.
Metro that she intends to register at Olot,
Brgy. Olot, Tolosa, Leyte. Tolosa,
Leyte
On January 28, 1995 respondent
registered as a voter at Precinct No. 9.
18-A of Olot, Tolosa, Leyte. She RESIDE
filed with the Board of Election NCE IN
Inspectors CE Form No. 1, Voter THE
Registration Record No. 94- CONSTI
3349772, wherein she alleged that TUENC
Y
 WHERE It follows from all the above that the Comelec
IN I committed no grave abuse of discretion in holding
SEEK that petitioner is disqualified from the position of
TO BE representative for the 1st congressional district of
ELECTE Leyte in the elections of 8 May 1995, for failure to
D meet the "not less than one-year residence in the
IMMEDI constituency (1st district, Leyte) immediately
ATELY preceding the day of election (8 May 1995)."
PRECE
DING Having arrived at petitioner's disqualification to
ELECTI be a representative of the first district of Leyte,
ON: the next important issue to resolve is whether or
_______ not the Comelec can order the Board of
_ Years Canvassers to determine and proclaim the winner
Seven out of the remaining qualified candidates for
Months representative in said district.

10. I I am not unaware of the pronouncement made by

AM
NOT A
PERMA
NENT
RESIDE
NT OF,
OR
IMMIGR
ANT
TO, A
FOREIG
N forms of government that no one
COUNT
RY.
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 of my
knowledge.
Romualdez-Marcos into office or maintain him there.
Petitioner's 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."
this Court in the case of Labo vs. Comelec, G.R.
86564, August 1, 1989, 176 SCRA 1 which gave
the rationale as laid down in the early 1912 case
of Topacio vs. 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
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
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.
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 judgement 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 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.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
While I agree with same 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 Malacanang 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
Voter's 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 voter's 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 petitioner's 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 petitioner's 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 propio motu; the 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 husband's 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 petitioner's 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 majority's 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 husband's
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 petitioner's 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
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.
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.
One's 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 one's
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 husband's 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 wife's
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 majority's 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 petitioner's case
was the matter of her having acquired or not her
own domicile of choice.
I agree with the majority's 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 majority's
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 by the eloquence of the well-turned 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
petitioner's 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 vs. COMELEC, 88
SCRA 251 [1979]; Dario vs. 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 respondent's 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
COMELEC's 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 petitioner's
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:
Art. 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.
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 woman's
domicile of origin upon the death of her husband,
which the majority opinion adopts to overcome
the legal effect of the petitioner's marriage on her
domicile, is unsupported by law and by
jurisprudence. The settled doctrine is that after
the husband's 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
petitioner's 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, and San Miguel, 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
Montejo's Comment). Notably, she contradicted
this sworn statement regarding her place of birth
when, in her Voter's 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 Voter's 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 vs. 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 one's 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 one's "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 representatives, a registered
circumstances or the vicissitudes of the voter in the district in which
petitioner's life after her marriage in 1954 he shall be elected, and a
conclusively establish that she had indeed resident thereof for a period
abandoned her domicile of origin and had of not less than one year
acquired a new one animo et facto (KOSSUTH immediately preceding the
KENT KENNAN, A Treatise on Residence and day of the election.
Domicile, [1934], 214, 326).
See, Jarrolt v. Mabberly,
Neither should this Court place complete trust on supra, note 1.
the petitioner's claim that she "merely committed
an honest mistake" in writing down the word 3 Gallego vs. Vera, 73 Phil.
"seven" in the space provided for the residency 453 (1941).
qualification requirement in the certificate of
candidacy. Such a claim is self-serving and, in the 4 Rollo, p. 114, Annex "D".
light of the foregoing disquisitions, would be all
sound and fury signifying nothing. To me, she did
not commit any mistake, honest or otherwise; 5 Rollo, p. 110, Annex "D".
what she stated was the truth.
6 Rollo, p. 113.
The majority opinion also disregards a basic rule
in evidence that he who asserts a fact or the 7 Rollo, p. 111.
affirmative of an issue has the burden of proving
it (Imperial Victory Shipping Agency vs. NLRC, 200 8 Rollo, p. 115, Annex "E".
SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of
Appeals, 221 SCRA 19 [1993]). Having admitted 9 Signed by Virgilo S.
marriage to the then Congressman Marcos, the Oledan, Provincial Election
petitioner could not deny the legal consequence Supervisor IV, Leyte; Rollo,
thereof on the change of her domicile to that of p. 116, Annex "F".
her husband. The majority opinion rules or at least
concludes that "[b]y operation of law (domicilium 10 Rollo, p. 117, Annex "G".
necesarium), her legal domicile at the time of her Petitioner explained the
marriage automatically became Batac, Ilocos circumstances surrounding
Norte." That conclusion is consistent with Article the filling up of the original
110 of the Civil Code. Since she is presumed to certificate thus:
retain her deceased husband's domicile until she
exercises her revived power to acquire her own
domicile, the burden is upon her to prove that she 1. On March 8, 1995, I filed
has exercised her right to acquire her own my certificate of candidacy
domicile. She miserably failed to discharge that for Member of the House of
burden. Representatives
(Congresswoman) of the
First Legislative District of
I vote to deny the petition. the province of Leyte, which
was drafted by Mr. Filomeno
Footnotes A. Zeta.

1 Jarrolt v. Mabberly, 103 2. I learned lately that

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 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
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 thought of the word
"RESIDENCE" to mean actual
or physical residence, and
the word "SEVEN" merely
reflected my actual and
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 (1) 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, I
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",
petitioner's Affidavit
explaining her residence:
13. I established my
domicile, however in
Tacloban, Leyte (Tacloban
City in 1938, when 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.
xxx xxx xxx
18. I have always considered
Tacloban City as my
permanent residence or
residence of origin 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
Malacañang 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.
xxx xxx xxx
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.
xxx xxx xxx
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.
xxx xxx xxx
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 Remedies 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 for Reconsideration."
The Commission's May 7,
1995 Resolution treated the
same simply as a Motion for
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
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, 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. 294, 299-300
(1954).
35 B.P. 881, sec. 117 states:
xxx xxx xxx
Any person who transfers
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
husband's 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 Phi. 13 (1920).
44 The rule that the wife
automatically acquires or
follows her husband's
domicile is not an 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 (1921).
46 Justice Alicia Sempio-Diy
recognizes the same Civil
Code distinction. However,
taking another approach,
she writes:
(6) The above Article (Article
69, 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 residences,
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 vs. Cruz, 121
SCRA 51 (1983).
50 American Tupe Founders
Co. v. Justice's Court, 133
Cal. 819, 65 Pac. 742;
Heillen v. Phillipps, 88 Cal.
557, 26 Pac. 366; 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 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 Members. . . .
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 which
he shall be elected, and a
resident thereof for a period
of not less than one year
immediately preceding the
day of the election."
(Emphasis supplied)
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) if the husband
forcibly ejects the wife from
the conjugal home to have
illicit relations with another.
(De la Viña v. Villareal and
Geopano, 41 Phil. 13
[1920]).
4 Op cit.
5 Id., at pp. 16-17.
6 Id., at p. 20, citing 1
Manresa 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 Green's 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 Women's 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 institutions
recognized as such 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.
24 Article 225, Family Code.
25 Article 70, Family Code.
26 Article 71, Family Code.
27 Article 73, 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 the
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).
FRANCISCO, J., concurring:
1 See Articles 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
Gunigundo's letter
addressed to Col. Kempis.
ROMERO, J., separate
opinion:
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
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 from living
with the husband if he
should live abroad unless in
the service of the Republic.
3 Art. 110, Civil Code.
4 Art. 111, Civil Code.
5 Art. 112, Civil Code.
6 Art. 171, Civil Code.
7 Art. 172, Civil Code.
8 Art. 320, Civil Code.
9 Art. 114, Civil Code.
10 Art. 117, Civil Code.
11 Art. 84, Civil Code.
12 Art. 328, 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.
19 Art. 71, Family Code.
20 Art. 96, Family Code.
21 Art. 225, Family Code.
22 Republic Act No. 7192
approved February 12,
1992.
23 Ibid., Sec. 5.
MENDOZA, J., separate
opinion:
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 governor): Yra v.
Abaño, 52 Phil. 380 (1928)
(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).
PADILLA, J., dissenting:
1 Nuval vs. Guray, G.R. No.
30241, December 29, 1928;
Larena vs. Teves, G.R.
No. 42439, December 10,
1934; Gallego vs. Verra, G.R.
No. 48641, November 24,
1941; De los Reyes vs.
Solidum, G.R. No. 42798.
August 31, 1935; but see
Romualdez vs. 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 vs. Struble, Tex.
Civ. App., 177 S.W. 2d, 279,
283.
2 This is also referred to as
natural domicile or domicile
by birth (Johnson vs.
Twenty-One Bales, 13 Fed.
Cas. 863).
3 Story, Conflict of Laws,
Sec. 46; Railroad Co. vs.
Kimbrough, 115 Ky 512, 74
S.W. 229; and Johnson vs.
Harvey, 261 Ky. 522, 88
S.W. 2d 42, 46, 47, as cited
in Black's Law Dictionary,
4th ed.
4 Article 110, Civil Code.
5 Towson vs. Towson, 126
Va. 640, 102 S.E. 48, 52;
Fisher vs. Jordan, C.C.A.
Tex., 116 F. 2d. 183, 186;
Minick vs. Minick, 111 Fla.
469, 149 So. 483, 488;
Hartzler vs. Radeka, 265
Mich. 451, 251 N.W. 554.
6 Citing 18 Am. Jur. 219-220.
7 Montejo vs. Marcos, En
Banc, May 10, 1995.
8 Citing 20 Am. Jur. 71.
9 Cheely vs. 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 Green's 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 vs. Baker, 196 S.E.
750, 186 Ga. 65, op. cit. 37.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 142840 May 7, 2001
ANTONIO BENGSON III, petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL and TEODORO C. CRUZ,
respondents.
CONCURRING OPINION
DISSENTING OPINION
KAPUNAN, J.:
The citizenship of respondent Teodoro C. Cruz is
at issue in this case, in view of the constitutional
requirement that "no person shall be a Member of
the House of Representative unless he is a
natural-born citizen."1
Respondent Cruz was a natural-born citizen of the
Philippines. He was born in San Clemente, Tarlac,
on April 27, 1960, of Filipino parents. The
fundamental law then applicable was the 1935
Constitution.2
On November 5, 1985, however, respondent Cruz
enlisted in the United States Marine Corps and
without the consent of the Republic of the
Philippines, took an oath of allegiance to the
United States. As a Consequence, he lost his
Filipino citizenship for under Commonwealth Act
No. 63, section 1(4), a Filipino citizen may lose his
citizenship by, among other, "rendering service to
or accepting commission in the armed forces of a
foreign country." Said provision of law reads:
SECTION 1. How citizenship may be lost. –
A Filipino citizen may lose his citizenship in
any of the following ways and/or events:
xxx
(4) By rendering services to, or accepting
commission in, the armed of a foreign
country: Provided, That the rendering of
service to, or the acceptance of such
commission in, the armed forces of a
foreign country, and the taking of an oath
of allegiance incident thereto, with the
consent of the Republic of the Philippines,
shall not divest a Filipino of his Philippine
citizenship if either of the following
circumstances is present:
(a) The Republic of the Philippines has a
defensive and/or offensive pact of alliance
with said foreign country; or
(b) The said foreign country maintains
armed forces on Philippine territory with
the consent of the Republic of the
Philippines: Provided, That the Filipino
citizen concerned, at the time of rendering
said service, or acceptance of said
commission, and taking the oath of
allegiance incident thereto, states that he
does so only in connection with his service
to said foreign country; And provided,
finally, That any Filipino citizen who is
rendering service to, or is commissioned
in, the armed forces of a foreign country
under any of the circumstances mentioned
in paragraph (a) or (b), shall not be
Republic of the Philippines during the
period of his service to, or commission in,
the armed forces of said country. Upon his
discharge from the service of the said
foreign country, he shall be automatically
entitled to the full enjoyment of his civil
and politically entitled to the full
enjoyment of his civil political rights as a
Filipino citizen x x x.
Whatever doubt that remained regarding his loss
of Philippine citizenship was erased by his
naturalization as a U.S. citizen on June 5, 1990, in
connection with his service in the U.S. Marine
Corps.
On March 17, 1994, respondent Cruz reacquired
his Philippine citizenship through repatriation
under Republic Act No. 2630.3 He ran for and was
elected as the Representative of the Second
District of Pangasinan in the May 11, 1998
elections. He won by a convincing margin of
26,671 votes over petitioner Antonio Bengson III,
who was then running for reelection.1âwphi1.nêt
Subsequently, petitioner filed a case for Quo
Warranto Ad Cautelam with respondent House of
Representatives Electoral Tribunal (HRET)
claiming that respondent Cruz was not qualified to
become a member of the House of
Representatives since he is not a natural-born
citizen as required under Article VI, section 6 of
the Constitution.4
On March 2, 2000, the HRET rendered its
decision5 dismissing the petition for quo warranto
and declaring Cruz the duly elected
Representative of the Second District of
Pangasinan in the May 1998 elections. The HRET
likewise denied petitioner's motion for
reconsideration of the decision in its resolution
dated April 27, 2000.6
Petitioner thus filed the present petition for
certiorari assailing the HRET's decision on the
following grounds:
1. The HRET committed serious errors and
grave abuse of discretion, amounting to
excess of jurisdiction, when it ruled that
private respondent is a natural-born citizen
of the Philippines despite the fact that he
had ceased being such in view of the loss
and renunciation of such citizenship on his
part.
2. The HRET committed serious errors and
grave abuse of discretion, amounting to
excess of jurisdiction, when it considered
private respondent as a citizen of the
Philippines despite the fact he did not
validly acquire his Philippine citizenship.
 3. Assuming that private respondent's
acquisition of Philippine citizenship was
invalid, the HRET committed serious errors
and grave abuse of discretion, amounting
to excess of jurisdiction, when it dismissed
the petition despite the fact that such
reacquisition could not legally and
constitutionally restore his natural-born
status.7
The issue now before us is whether respondent
Cruz, a natural-born Filipino who became an
American citizen, can still be considered a natural-
born Filipino upon his reacquisition of Philippine
citizenship.
Petitioner asserts that respondent Cruz may no
longer be considered a natural-born Filipino since
he lost h is Philippine citizenship when he swore
allegiance to the United States in 1995, and had
to reacquire the same by repatriation. He insists
that Article citizens are those who are from birth
with out having to perform any act to acquire or
perfect such citizenship.
Respondent on the other hand contends that he
reacquired his status as natural-born citizen when
he was repatriated since the phrase "from birth"
in Article IV, Section 2 refers to the innate,
inherent and inborn characteristic of being a
natural-born citizen.
The petition is without merit.
The 1987 Constitution enumerates who are
Filipino citizens as follow:
(1) Those who are citizens of the
Philippines at the time of the adoption of
this Constitution;
(2) Those whose fathers or mothers are
citizens of the Philippines;
(3) Those born before January 17, 1973 of
Filipino mother, who elect Philippine
citizenship upon reaching the age of
majority, and
(4) Those who are naturalized in
accordance with law.8
There are two ways of acquiring citizenship: (1) by
birth, and (2) by naturalization. These ways of
acquiring citizenship correspond to the two kinds
of citizens: the natural-born citizen, and the
naturalized citizen. A person who at the time of
his birth is a citizen of a particular country, is a
natural-born citizen thereof.9
As defined in the same Constitution, natural-born
citizens "are those citizens of the Philippines from
birth without having to perform any act to acquire
or perfect his Philippine citezenship."10
On the other hand, naturalized citizens are those
who have become Filipino citizens through
naturalization, generally under Commonwealth
Act No. 473, otherwise known as the Revised
Naturalization Law, which repealed the former
Naturalization Law (Act No. 2927), and by
Republic Act No. 530.11 To be naturalized, an
applicant has to prove that he possesses all the
qualifications12 and none of the disqualification13
provided by law to become a Filipino citizen. The
decision granting Philippine citizenship becomes
executory only after two (2) years from its
promulgation when the court is satisfied that
during the intervening period, the applicant has
(1) not left the Philippines; (2) has dedicated
himself to a lawful calling or profession; (3) has
not been convicted of any offense or violation of
Government promulgated rules; or (4) committed
any act prejudicial to the interest of the nation or
contrary to any Government announced policies.14
Filipino citizens who have lost their citizenship
may however reacquire the same in the manner
provided by law. Commonwealth Act. No. (C.A.
No. 63), enumerates the three modes by which
Philippine citizenship may be reacquired by a
former citizen: (1) by naturalization, (2) by
repatriation, and (3) by direct act of Congress.15
Naturalization is mode for both acquisition and
reacquisition of Philippine citizenship. As a mode
of initially acquiring Philippine citizenship,
naturalization is governed by Commonwealth Act
No. 473, as amended. On the other hand,
naturalization as a mode for reacquiring Philippine
citizenship is governed by Commonwealth Act No.
63.16 Under this law, a former Filipino citizen who
wishes to reacquire Philippine citizenship must
possess certain qualifications17 and none of the
disqualification mentioned in Section 4 of C.A.
473.18
Repatriation, on the other hand, may be had
under various statutes by those who lost their
citizenship due to: (1) desertion of the armed
forces;19 services in the armed forces of the allied
forces in World War II;20 (3) service in the Armed
Forces of the United States at any other time,21
(4) marriage of a Filipino woman to an alien;22 and
(5) political economic necessity.23
As distinguished from the lengthy process of
naturalization, repatriation simply consists of the
taking of an oath of allegiance to the Republic of
the Philippine and registering said oath in the
Local Civil Registry of the place where the person
concerned resides or last resided.
In Angat v. Republic,24 we held:
xxx. Parenthetically, under these statutes
[referring to RA Nos. 965 and 2630], the
person desiring to reacquire Philippine
citizenship would not even be required to
file a petition in court, and all that he had
to do was to take an oath of allegiance to
the Republic of the Philippines and to
register that fact with the civil registry in
the place of his residence or where he had
last resided in the Philippines. [Italics in
the original.25
Moreover, repatriation results in the recovery of
the original nationality.26 This means that a
naturalized Filipino who lost his citizenship will be
restored to his prior status as a naturalized
Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his
former status as a natural-born Filipino.
In respondent Cruz's case, he lost his Filipino
citizenship when he rendered service in the
Armed Forces of the United States. However, he
subsequently reacquired Philippine citizenship
under R.A. No. 2630, which provides:
Section 1. Any person who had lost his
Philippine citizenship by rendering service
to, or accepting commission in, the Armed
Forces of the United States, or after
separation from the Armed Forces of the
United States, acquired United States
citizenship, may reacquire Philippine
citizenship by taking an oath of allegiance
to the Republic of the Philippines and
registering the same with Local Civil
Registry in the place where he resides or
last resided in the Philippines. The said
oath of allegiance shall contain a
renunciation of any other citizenship.
Having thus taken the required oath of allegiance
to the Republic and having registered the same in
the Civil Registry of Magantarem, Pangasinan in
accordance with the aforecited provision,
respondent Cruz is deemed to have recovered his
original status as a natural-born citizen, a status
which he acquired at birth as the son of a Filipino
father.27 It bears stressing that the act of
repatriation allows him to recover, or return to,
his original status before he lost his
Philippine citizenship.
Petitioner's contention that respondent Cruz is no
longer a natural-born citizen since he had to
perform an act to regain his citizenship is
untenable. As correctly explained by the HRET in
its decision, the term "natural-born citizen" was
first defined in Article III, Section 4 of the 1973
Constitution as follows:
Sec. 4. A natural-born citizen is one who is
a citizen of the Philippines from birth
without having to perform any act to
acquire or perfect his Philippine
citizenship.
Two requisites must concur for a person to be
considered as such: (1) a person must be a
Filipino citizen birth and (2) he does not have to
perform any act to obtain or perfect his Philippine
citizenship.
Under the 1973 Constitution definition, there were
two categories of Filipino citizens which were not
considered natural-born: (1) those who were
naturalized and (2) those born before January 17,
1973,38 of Filipino mothers who, upon reaching the
age of majority, elected Philippine citizenship.
Those "naturalized citizens" were not considered
natural-born obviously because they were not
Filipino at birth and had to perform an act to
acquire Philippine citizenship. Those born of
Filipino mothers before the effectively of the 1973
Constitution were likewise not considered natural-
born because they also had to perform an act to
perfect their Philippines citizenship.
The present Constitution, however, now consider
those born of Filipino mothers before the
effectivity of the 1973 Constitution and who
elected Philippine citizenship upon reaching the
majority age as natural-born. After defining who
re natural-born citizens, Section 2 of Article IV
adds a sentence: "Those who elect Philippine
citizenship in accordance with paragraph (3),
Section 1 hereof shall be deemed natural-born
citizens." Consequently, only naturalized Filipinos
are considered not natural-born citizens. It is
apparent from the enumeration of who are
citizens under the present Constitution that there
are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a
naturalized Filipino, i.e., did not have to undergo
the process of naturalization to obtain Philippine
citizenship, necessarily is natural-born Filipino.
Noteworthy is the absence in said enumeration of
a separate category for persons who, after losing
Philippine citizenship, subsequently reacquire it.
The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized
depending on the reasons for the loss of their
citizenship and the mode prescribed by the
applicable law for the reacquisition thereof. As
respondent Cruz was not required by law to go
through naturalization proceeding in order to
reacquire his citizenship, he is perforce a natural-
born Filipino. As such, he possessed all the
necessary qualifications to be elected as member
of the House of Representatives.
A final point. The HRET has been empowered by
the Constitution to be the "sole judge" of all
contests relating to the election, returns, and
qualifications of the members of the House.29 The
Court's jurisdiction over the HRET is merely to
check "whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction" on the part of the latter.30 In the
absence thereof, there is no occasion for the
Court to exercise its corrective power and annul
the decision of the HRET nor to substitute the
Court's judgement for that of the latter for the
simple reason that it is not the office of a petition
for certiorari to inquire into the correctness of the
assailed decision.31 There is no such showing of
grave abuse of discretion in this case.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, and JJ., concur.
Melo, Vitug, Mendoza, no part.
Panganiban, concurring opinion.
Quisumbing, Buena, De Leon, Jr., on leave.
Sandoval-Gutierrez, dissenting opinion.
Pardo, Gonzaga-Reyes, concur on this and the
concurring opinion of J. Panganiban
Ynares-Santiago, certify majority opinion of J.
Kapunan.
Footnote
1
1987 Constitution, Article IV, Section 6.
2
Article IV, Section 1 of the 1935
Constitution states:
The following are citizens of the
Philippines:
1) Those who are citizens of the
Philippine Islands at the time of the
adoption of the Constitution;
2) Those born in the Philippine
Islands of foreign parents who,
before the adoption of this
Constitution had been elected to
public office in the Philippine
Islands;
3) Those whose fathers are citizens
of the Philippines;
4) Those whose mothers are
citizens of the Philippines and, upon
reaching the age of majority,
elected Philippine citizenship; and
5) Those who are naturalized in
accordance with law.
3
An Act Providing for Reacquisition of
Philippine Citizenship by Persons Who Lost
Such Citizenship by Rendering Service To,
or Accepting Commission In, the Armed
Forces of the United States (1960).
4
Said provision reads:
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.
5
Rollo, p. 36.
6
Id., at 69.
7
Id., at 13.
8
Article IV, Section 1.
9
TOLENTINO, COMMETARIES AND
JURISPRUDENCE ON THE CIVIL CODE OF
THE PHILIPPINES 188, 1990 Ed.
10
1987 Constitution, Article IV, Section 2.
11
During the period under Martial Law
declared by President Ferdinand E. Marcos,
thousands of aliens were naturalized by
Presidential Decree where the screening of
the applicants was undertaken by special
committee under Letter of Instructions No.
270, dated April 11,1975, as amended.
12
Section 2, Act 473 provides the following
qualifications:
(a) He must be not less than 21
years of age on the day of the
hearing of the petition;
(b) He must have resided in the
Philippines for a continuous period
of not less than ten years;
(c) He must be of good moral
character and believes in the
principles underlying the Philippine
Constitution, and must have
conducted himself in a proper and
irreproachable manner during the
entire period of his residence in the
Philippines in his relation with the
constituted government and well as
with the community in which he is
living;
(d) He must own real estate in the
Philippines worth not less than five
thousand pesos, Philippine
currency, or must have some
known lucrative trade, profession,
or lawful occupation;
(e) He must be able to speak and
write English or Spanish and any of
the principal languages; and
(f) He must have enrolled his minor
children of school age, in any of the
public schools or private schools
recognized by the Bureau of Private
Schools of the Philippines where
Philippine history, government and
civic are taught or prescribed as
part of the school curriculum,
during the entire period of the
residence in the Philippines
required of him prior to the learning
of his petition for naturalization as
Philippine citizen.
13
Section 4, Act 473, provides the
following disqualifications:
(a) He must not be opposed to
organized government or affiliated
with any association or group of
persons who uphold and teach
doctrines opposing all organized
governments;
(b) He must not be defending or
teaching the necessity or propriety
of violence, personal assault, or
assassination for the success and
predominance of their ideas;
(c) He must not be polygamist or
believer in the practice of
polygamy;
(d) He must not have been
convicted of any crime involving
moral turpitude;
(e) He must not be suffering from
mental alienation or incurable
contagious diseases;
(f) He must have, during the period
of his residence in the Philippines
(of not less than six months before
filing his application), mingled
socially with the Filipinos, or who
have not evinced a sincere desire
to learn and embrace the customs,
traditions and ideal s of the
Filipinos;
(g) He must not be a citizen or
subject of a nation with whom the
Philippines is at war, during the
period of such war;
(h) He must not be citizen or
subject of foreign country whose
laws do not grant Filipinos the right
to become naturalized citizens or
subjects thereof.
14
Section 1, R.A. 530.
15
Section 2, C.A. No. 63.
16
An Act Providing for the Ways in Which
Philippine Citizenship May Be Lost or
Reacquired (1936).
17
1. The applicant must have lost his
original Philippine citizenship by
naturalization in a foreign country or by
express renunciation of his citizenship
(Sec. 1 [1] and [2], C.A. No. 63);
2. He must be at least twenty-one years of
age and shall have resided in the
Philippines at least six months before he
applies for naturalization (Sec. 3[1], C.A.
No. 63);
3. He must have conducted himself in a
proper and irreproachable manner during
the entire period of his residence (of at
least six months prior to the filing of the
application) in the Philippines, in his
relations with the constituted government
as well as with the community in which he
is living (Sec. 3[2], C.A. No. 63);
4. He subscribes to an oath declaring his
intention to renounce absolutely and
perpetually al faith and allegiance to the
foreign authority, state or sovereignty of
which he was a citizen or subject (Sec.
3[3], C.A. No. 63).
designated by the Chief Justice, and
the remaining six shall be Members
of the Senate of 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.
30
Garcia vs. House of Representatives
Electoral Tribunal, 312 SCRA 353, 364
(1999).

18
EN BANC
See note 13.

19
G.R. No. 142840 May 7, 2001
Sec 4, C.a. No. 63.

20
ANTONIO BENGSON III, petitioner,
Sec. 1, Republic Act No. 965 (1953). vs.
HOUSE OF REPRESENTATIVES ELECTORAL
21
Sec. 1, Republic Act No. 2630 (1960). TRIBUNAL and TEODORO C. CRUZ,
respondents.
22
Sec. 1, Republic Act No. 8171 (1995).
CONCURRING OPINION
23
Ibid.
PANGANIBAN, J.:
24
314 SCRA 438 (1999)
I concur in the ponencia of Mr. Justice Santiago M.
25
Id., at 450. Kapunan, holding that the House Electoral
Tribunal did not gravely abuse its discretion in
26
Jovito R. Salonga, Private International ruling that Private Respondent Teodoro C. Cruz
Law, p. 165 (1995) remains a natural-born Filipino citizen and is
eligible to continue being a member of Congress.
27 Let me just add a few points.
See Art. IV, Sec. 1, 1935 Constitution.

28 The Facts in Brief

The date of effectivity of the 1973
Constitution.
It is undisputed that Congressman Cruz was born
29 on April 27, 1960 in San Clemente, Tarlac, to
Article IV, Section 17 of the 1987
Filipino parents. He was, therefore, a Filipino
Constitution provides thus:
citizen, pursuant to Section 1 (2),1 Article IV of the
Constitution. Furthermore, not having done
Sec. 17. The Senate and the House any act to acquire or perfect the Philippine
of Representative shall each have citizenship he obtained from birth, he was a
an Electoral Tribunal which shall be natural-born Filipino citizen, in accordance
the sole judge of all contests with Section 22 of the same Article IV.
relating to the election, returns, and
qualifications of their respective
It is not disputed either that private respondent
Members. Each Electoral Tribunal
rendered military service to the United States
shall be composed of nine Members
Marine Corps from November 1958 to October
three of whom shall be Justices of
1993. On June 5, 1990, he was naturalized as an
the Supreme Court to be
American citizen, in connection with his US
military service. Consequently, under Section 1
(4)3 of CA No. 63, he lost his Philippine citizenship.
Upon his discharge from the US Marine Corps,
private respondent returned to the Philippines and
decided to regain his Filipino citizenship. Thus, on
March 17, 1994, availing himself of the benefits of
Republic Act (RA) No. 2630, entitled "An Act
Providing for Reacquisition of Philippine
Citizenship by Persons Who Lost Such by
Rendering Service to, or Accepting Commission in,
the Armed Force of the United States,"4 Cruz took
his oath of allegiance to the Republic and
registered the same with the Local Civil Registry
of Mangatarem, Pangasinan. On the same day, he
also executed an Affidavit of Reacquisition of
Philippine Citizenship.
Main Issue
The main question here is: Did the House of
Representatives Electoral Tribunal (HRET) commit
grave abuse of discretion in holding that, by
reason of his repatriation, Congressman Teodoro
C. Cruz had reverted to his original status as a
natural-born citizen? I respectfully submit that the
answer is "No." In fact, I believe that the HRET
was correct in its ruling.
1. Repatriation Is Recovery of Original Citizenship
First, repatriation is simply the recovery of
original citizenship. Under Section 1 of RA 2630, a
person "who ha[s] lost his citizenship" may
"reacquire" it by " taking an oath of allegiance to
the Republic of the Philippines." Former Senate
President Jovito R. Salonga, a noted authority on
the subject, explains this method more precisely
in his treatise, Private International Law.5 He
defines repatriation as "the recovery of the
original nationality upon fulfillment of certain
condition."6 Webster buttresses this definition by
describing the ordinary or common usage of
repatriate, as "to restore or return to one's
country of origin, allegiance, or citizenship; x x
x."7 In relation to our subject matter, repatriation,
then, means restoration of citizenship. It is not a
grant of a new citizenship, but a recovery of one's
former or original citizenship.
To "reacquire" simply means "to get back as one's
own again."8 Ergo, since Cruz, prior to his
becoming a US citizen, was a natural-born Filipino
citizen, he "reacquired" the same status upon
repatriation. To rule otherwise – that Cruz became
a non-natural-born citizen – would not be
consistent whit the legal and ordinary meaning of
repatriation. It would be akin to naturalization,
which is the acquisition of a new citizenship.
"New." Because it is not the same as the with
which he has previously been endowed.
In any case, "the leaning, in questions of
citizenship, should always be in favor of [its]
claimant x x x."9 Accordingly, the same should be
construed in favor of private respondent, who
claims to be a natural-born citizen.
2. Not Being Naturalized, Respondent Is Natural
Born
Second, under the present Constitution, private
respondent should be deemed natural-born,
because was not naturalized. Let me explain.
There are generally two classes of citizens: (1)
natural-born citizens and (2) naturalized citizens.10
While CA 63 provides that citizenship may also be
acquired by direct act of the Legislature, I believe
that those who do become citizens through such
procedure would properly fall under the second
category (naturalized).11
Naturalized citizens are former aliens or
foreigners who had to undergo a rigid procedure,
in which they had to adduce sufficient evidence to
prove that they possessed all the qualifications
and none of the disqualifications provided by law
in order to become Filipino citizens. In contrast, as
stated in the early case Roa v. Collector of
Customs,12 a natural-born citizen is a citizen "who
has become such at the moment of his birth."
The assailed HRET Decision, penned by Mr. Justice
Vicente V. Mendoza, explains clearly who are
considered natural-born Filipino citizens. He
traces the concept as first defined in Article III of
the 1973 Constitution, which simply provided as
follows:
"Sec 4. A natural-born citizen is one who is
a citizen of the Philippines from birth
without having to perform any act to
acquire or perfect his Philippine
citizenship."
Under the above definition, there are two
requisites in order that a Filipino citizen may be
considered "natural-born": (1) one must be a
citizen of the Philippines from birth, and (2) one
does not have to do anything to acquire or perfect
one's Philippine citizenship.13 Thus, under the
1973 Constitution, excluded from the class of
"natural-born citizens" were (1) those who were
naturalized and (2) those born before January 17,
1973, of Filipino mothers who, upon reaching the
age of majority, elected Philippine citizenship.14
The present Constitution, however, has expanded
the scope of natural-born citizens to include
"[t]hose who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof,"
meaning those covered under class (2) above.
Consequently, only naturalized Filipino citizens
are not considered natural-born citizens.
Premising therefrom, respondent – being clearly
and concededly not naturalized – is, therefore, a
natural-born citizen of the Philippines.15
With respect to repatriates, since the Constitution
does not classify them separately, they naturally
reacquire their original classification before the
loss of their Philippine citizenship. In the case of
Congressman Teodoro C. Cruz, upon his
repatriation in1994, he reacquired his lost
citizenship. In other words, he regained his
original status as a natural-born Filipino citizen,
nothing less.
3. No Grave Abuse of Discretion on the Part of
HRET
Third, the HRET did not abuse, much less gravely
abuse, its discretion in holding that Respondent
Cruz is a natural-born Filipino citizen who is
qualified to be a member of Congress. I stress
that the Court, in this certiorari proceeding before
us, is limited to determining whether the HRET
committed grave abuse of discretion amounting
to lack or excess of jurisdiction in issuing its
assailed Decision. The Court has no power to
reverse or modify HRET's rulings, simply because
it differs in its perception of controversies. It
cannot substitute its discretion for that of HRET,
an independent, constitutional body with its own
specific mandate.
The Constitution explicitly states that the
respective Electoral Tribunals of the chambers of
Congress "shall be the sole judges of all contests
relating to the election, returns, and qualifications
their respective members."16 In several cases,17
this Court has held that the power and the
jurisdiction of the Electoral Tribunals are original
and exclusive, as if they remained in the
legislature, a coequal branch of government.
Their judgment are beyond judicial interference,
unless rendered without or in excess of their
jurisdiction or with grave abuse of discretion.18 In
the elegant words of Mr. Justice Hugo E. Gutierrez
Jr.:19
"The Court does not venture into the
perilous area of trying to correct perceived
errors of independent branches of the
Government. It comes in only when it has
to vindicate a denial of due process or
correct an abuse of discretion so grave or
glaring that no less than the Constitution
calls for remedial action."
True, there is no settled judicial doctrine on the
exact effect of repatriation. But, as earlier
explained, the legal and common definition of
repatriation is the reacquisition of the former
citizenship. How then can the HRET be rebuked
with grave abuse of discretion? At best, I can
concede that the legal definition is not judicially
settled or is even doubtful. But an interpretation
made in good faith and grounded o reason one
way or the other cannot be the source of grave
abuse amounting to lack or excess of jurisdiction.
The HRET did not violate the Constitution or the
law or any settled judicial doctrine. It was
definitely acting within its exclusive domain.
Be it remembered that our Constitution vests
upon the HRET the power to be the sole judge of
the qualifications of members of the House of
Representatives, one of which is citizenship.
Absent any clear showing of a manifest violation
of the Constitution or the law or nay judicial
decision, this Court cannot impute grave abuse of
discretion to the HRET in the latter's actions on
matters over which full discretionary authority is
lodged upon it by our fundamental law.20 Even
assuming that we disagree with the conclusion of
public respondent, we cannot ipso facto attribute
to it "grave abuse of discretion." Verily, there is a
line between perceived error and grave abuse.21
By grave abuse of discretion is meant such
capricious and whimsical exercise of judgment as
is equivalent to lack of jurisdiction. Mere abuse of
discretion is not enough. "It must be grave abuse
of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion
or personal hostility, and must be so patent and
so gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law."22
That the HRET, after careful deliberation and
purposeful study, voted 7 to 2 to issue its Decision
upholding the qualifications of Congressman Cruz
could not in any wise be condemned as gravely
abusive. Neither can I find any "patent or gross"
arbitrariness or despotism "by reason of passion
or hostility" in such exercise.
4. In Case of Doubt, Popular Will Prevails
Fourth, the court has a solemn duty to uphold the
clear and unmistakable mandate of the people. It
cannot supplant the sovereign will of the Second
District of Pangasinan with fractured legalism. The
people of the District have clearly spoken. They
overwhelmingly and unequivocally voted for
private respondent to represent them in the
House of Representatives. The votes that Cruz
garnered (80, 119) in the last elections were
much more than those of all his opponents
combined (66, 182).23 In such instances, all
possible doubts should be resolved in favor of the
winning candidate's eligibility; to rule otherwise
would be to defeat the will of the people.24
Well-entrenched in our jurisprudence is the
doctrine that in case of doubt, political laws must
be so constructed as to give life and spirit to the
popular mandate freely expressed through the
ballot.25 Public interest and the sovereign will
should, at all times, be the paramount
considerations in election controversies.26 For it
would be better to err in favor of the people's
choice than to be right in complex but little
understood legalisms.27
"Indeed, this Court has repeatedly stressed the
importance of giving effect to the sovereign will in
order to ensure the survival of our democracy. In
any action involving the possibility of a reversal of
the popular electoral choice, this Court must exert
utmost effort to resolve the issues in a manner
that would give effect to the will of the majority,
for it is merely sound public policy to cause
elective offices to be filled by those who are the
choice of the majority. To successfully challenge a
winning candidate's qualifications, the petitioner
must clearly demonstrative that the ineligibility is
so patently antagonistic to constitutional and
legal principles that overriding such ineligibility
and thereby giving effect to the apparent will of
the people would ultimately create greater
prejudice to the very democratic institutions and
juristic traditions that our Constitution and laws so
zealously protect and promote."28
5. Current Trend Towards Globalization
Fifth, the current trend, economically as well as
politically, is towards globalization.29 Protectionist
barriers dismantled. Whereas, in the past,
governments frowned upon the opening of their
doors to aliens who wanted to enjoy the same
privileges as their citizens, the current era is
adopting a more liberal perspective. No longer are
applicants for citizenship eyed with the suspicion
that they merely want to exploit local resources
for themselves. They are now being considered
potential sources of developmental skills, know-
how and capital.1âwphi1.nêt
More so should our government open its doors to
former Filipinos, like Congressman Cruz, who want
to rejoin the Filipino community as citizens again.
They are not "aliens" in the true sense of the law.
They are actually Filipino by blood, by origin and
by culture, who want to reacquire their former
citizenship.
It cannot be denied that most Filipinos go abroad
and apply for naturalization in foreign countries,
because of the great economic or social
opportunities there. Hence, we should welcome
former Filipino citizens desirous of not simply
returning to the country or regaining Philippine
citizenship, but of serving the Filipino people as
well. One of these admirable Filipino is private
respondent who, in only a year after being absent
from the Philippines for about eight (8) years, was
already voted municipal mayor of Mangatarem,
Pangasinan. And after serving as such for just one
term, he was overwhelmingly chosen by the
people to be their representative in Congress.
I reiterate, the people have spoken. Let not a
restrictive and parochial interpretation of the law
bar the sovereign will. Let not grave abuse be
imputed on the legitimate exercise of HRET's
prerogatives.
WHEREFORE, I vote to DISMISS the petition.
Footnote
1
"Section 1. The following are citizens of
the Philippines:
(2) Those whose fathers or mothers are
citizens of the Philippines;
xxx xxx x x x"
2
"Section 2. Natural-born citizens are
those who are citizens from birth without
having to perform any act to acquire or
perfect their Philippine citizenship. x x x."
3
"Section 1. How citizenship may be lost. –
A Filipino citizen may lose his citizenship in
any of the following ways and/or events:
xxx xxx x x x"
(4) By rendering services to, or
accepting commission in, the
armed forces of a foreign country: x
x x ."
4
Sec. 1 thereof provides:
"Sec. 1. Any person who had lost
his Philippine citizenship by
rendering service to, or accepting
commission in, the Armed Forces of
the United States, or after
 separation from the Armed Forces 19
Co. v. HRET, ibid.
of the United States, acquired U.S.
citizenship, may reacquire 20
Santiago v. Guingona Jr., 298 SCRA 756,
Philippine citizenship by taking an November 18, 1998.
oath allegiance to the Republic of
the Philippines and registering the 21
Ibid.
same with the Local Civil Registry in
the place where he resides of last 22
resided in the Philippines. The said Tañada v. Angara, 272 SCRA 18, May 2,
oath of allegiance shall contain a 1997, per Panganiban, J.
renunciation of any other
23
citizenship. "The following were the results of the
election:
5
1995 ed.
Teodoro C. Cruz 80,119
6
Ibid., p. 165; cited in the assailed HRET
Decision, p. 13. (Italics ours.) Antonio E. Bengson III 53,448

7
Webster's Third New International Alberto B. Zamuco 11,941
Dictionary: Unabridged, 1993 ed.
Manuel R. Castro 622
8
Webster's, ibid., defines reacquire as "to Mariano A. Padlan 171"
acquire again", and acquire as "to get as
one's own."
(HRET Decision, pp. 2-3; rollo, pp. 37-38.)
9
Roa v. Collector of Customs, 23 Phil 315,
24
338 (1912), per Trent, J.; citing Boyd v. Sinaca v. Mula, 315 SCRA 266,
Thaye, 143 US 135. September 27, 1999.

25
10
Ronaldo P. Ledesma, An Outline of Frivaldo v. Comelec, 257 SCRA 727, June
Philippine Immigration and Citizenship 28, 1996; per Panganiban, J.
Laws, 1999 ed., p. 354. See also 14 CJS S1,
1128; 3A Am Jur 2d aliens and Citizens, 26
Olondriz v. Comelec, 313 SCRA 128,
s1411. August 25, 1999.

11
See Ledesma, ibid., p. 355. 27
Frivaldo v. Comelec, supra.

12
Supra. 28
Ibid

13
Assailed Decision, p. 8. 29
See Pacifico A. Agabin, "Globalization
and the Judicial Function," Odysey and
14
Ibid. Legacy: The Chief Justice Andres R.
Narvasa Centennial Lecture Series,
15
Ibid., p. 9. complied and edited by Atty. Antonio M.
Eliciano, published by the Supreme Court
16 Printing Services, 1998 ed. See also
Sec.17, Art. IV. (Emphasis ours.)
Artenio V. Panganiban, "Old Doctrines and
17
New Paradigms," a lecture delivered
Lazatin v. HRET, 168 SCRA 391, during the Supreme Court Centenary
December 8, 1988; Co v. Electoral Tribunal Lecture Series, on February 13, 2001.
of the House of Representatives, 199 SCRA
692, July 30, 1991; citing Angara v.
Electoral Commission, 63 Phil 139 (1936).

18
Co v. HRET, ibid., citing Robles v. HRET,
181 SCRA 780, February 5, 1990; and
Morrero v Bocar, 66 Phil 429 (1938). See EN BANC
also Libanan v. HRET, 283 SCRA 520,
December 22, 1997. G.R. No. 142840 May 7, 2001
ANTONIO BENGSON III, petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL and TEODORO C. CRUZ,
respondents.
DISSENTING OPINION
SANDOVAL-GUTIERREZ, J.:
With due respect, I disagree with the ponencia of
Justice Santiago M. Kapunan. I am convinced that
private respondent Teodoro C. Cruz is not natural
born citizen and, therefore, must be disqualified
as a member of Congress.
Who are natural-born citizens?
The laws on citizenship – its acquisition or loss,
and the rights, privileges and immunities of
citizens – have given rise to some of the most
disputations and visceral issues resolved by this
Court. The problem is taken up connection with
the sovereign right of voters to choose their
representatives in Congress.
In this petition for certiorari, petitioner Antonio
Bengson III asks this Court of Representative of
the Second District of Pangasinan because he
does not posses the constitutional requirement of
being a natural-born citizen of this country.
Respondent, on the other hand, insists that he is
qualified to be elected to Congress considering
that by repatriation, he re-acquired his status as a
natural-born Filipino citizen.
Records show that Teodoro Cruz was born in the
Philippines on April 27, 1960 to Filipino parents,
spouses Lamberto and Carmelita Cruz. On
November 5, 1985, he enlisted in the United
States Armed Forces and served the United States
Marine Corps. While in the service for almost five
years, he applied for naturalization with the US
District Court of Northern District of California and
was issued his Certificate of Naturalization No.
14556793 as an American citizen. On October 27,
1993, he was honorably discharged from the US
Marine Corps. He then decided to return to the
Philippines.
Cruz availed of repatriation under R.A. No. 2630,
an act providing for reacquisition of Philippine
citizenship by persons who lost such citizenship
by rendering service to or accepting commission
in the Armed Forces of the United States. On
March 17, 1994, he took his oath of allegiance to
the Republic of the Philippines. The oath was
registered with the Local Civil Registry of
Mangatarem, Pangasinan. On the same date, he
executed an Affidavit of Reacquisition of
Philippine Citizenship. Thus, on April 11, 1994, the
Bureau of Immigration and Deportation ordered
the cancellation of his Alien Certificate of
Residence (ICR No. 286582) and issued him an
Identification Certificate.
The cancellation of his ACR and ICR was affirmed
by the Justice Department. On January 18, 1995,
the United States Embassy in Manila issued to him
a Certificate of Loss of Nationality of the United
States.
In the local election of 1995, Cruz filed his
certificate of candidacy for mayor of Mangatarem,
Pangasinan, declaring himself to be a naturalized
Filipino citizen. He won and served as mayor for
one term.
Thereafter, Cruz filed his certificate of candidacy
for a seat in Congress, this time declaring himself
as a natural-born Filipino. Again, he won with a
lead of 26,671 votes over candidate Antonio
Bengson, III.
On September 3, 1998, Cruz was proclaimed
winner in the congressional race in the Second
District of Pangasinan.
Bengson then filed a petition for Quo Warranto Ad
Cautelam with the House of Representative
Electoral not being a natural-born Filipino citizen
when he filed his Certificate of Candidacy on
March 15, 1998, is not qualified to run as a
member of the House of Representatives. That he
should be a natural-born citizen is a qualification
mandated by Section 6, Article VI of the
Constitution which provides: "No person shall be a
member of the House of Representatives unless
he is a natural-born citizen of the Philippines."
After oral arguments and the submission by the
parties of their respective memoranda and
supplemental memoranda, the HRET rendered a
decision holding that Cruz reacquired his natural-
born citizenship upon his repatriation in 1994 and
declaring him duly elected representative of the
Second District of Pangasinan in the May 11, 1998
elections, thus:
"WHEREFORE, the petition for quo
warranto is DISMISSED and Respondent
Teodoro C. Cruz is hereby DECLARED duly
elected Representative of the Second
District of Pangasinan in the May 11, 1998
elections.
"As soon as this Decision becomes final
and executory, let notices and copies
thereof be sent to the President of the
Philippines; the House of Representatives,
 through the Speaker, and the Commission
on Audit, through its Chairman, pursuant
to Rule 76 of the 1998 Rules of the House
of Representatives Electoral Tribunal.
Costs de oficio."
On March 13, 2000, Bengson filed a motion for
reconsideration of the said Decision but the same
was denied by the HRET in Resolution No. 00-48.
Bengson now comes to us via a petition for
certiorari assailing the HRET Decision on grounds
that:
"1. The HRET committed serious errors and
grave abuse of discretion, amounting to
excess of jurisdiction, when it ruled that
private respondent is a natural-born citizen
of the Philippines despite the fact that he
had ceased being such in view of the loss
and renuciation of such citizenship on his
part.
"2. The HRET committed serious errors and
grave abuse of discretion, amounting to
excess of jurisdiction, when it considered
private respondent as a citizen of the
Philippines despite the fact that he did not
validly acquire his Philippine citizenship.
"3. Assuming that private respondent's
acquisition of Philippine citizenship was
invalid, the HRET committed serious errors
and grave abuse of discretion, amounting
to excess of despite the fact that such
reacquisition could not legally and
constitutionally restore his natural-born
status."
The sole issue raised in this petition is whether or
not respondent Cruz was natural-born citizen of
the Philippines at the time of the filing of his
Certificate of Candidacy for a seat in the House of
Representatives.
Section 2, Article IV of the Constitution1 provides:
"Sec. 2. Natural-born citizens are those
who are citizens of the Philippines from
birth without having to perform any act to
acquire or perfect their Philippine
citizenship. xxx."
Petitioner and respondent present opposing
interpretations of the phrase "from birth"
contained in the above provisions.
Petitioner contends that the phrase "from birth"
indicates that citizenship must start at a definite
point and must be continuous, constant and
without interruption. The Constitution does not
extend the privilege of reacquiring a natural-born
citizen status to respondent, who at one time,
became an alien. His loss of citizenship carried
with it the concomitant loss of all the benefits,
privileges and attributes of "natural-born"
citizenship. When he reacquired his citizenship in
1994, he had to comply with requirements for
repatriation, thus effectively taking him out of the
constitutional definition of a natural-born Filipino.
For his part, respondent maintains that the phrase
"from birth" refers to the innate, inherent and
inborn characteristic of being a "natural-born".
Since he was born to Filipino from birth. His
reacquisition of Philippine citizenship under
Republic Act No. 2630 results in his reacquisition
of his inherent characteristic of being a natural-
born citizen.
For his part, respondent maintains that the phrase
"from birth" refers to the innate, inherent and
inborn characteristic of being a "natural-born".
Since he was born to Filipino parents, he has been
a natural-born Filipino from birth. His reacquisition
of Philippine citizenship under Republic Act No.
2630 results in his reacquisition of his inherent
characteristic of being a natural-born citizen.
The state of being a natural-born citizen has been
regarded, not so much in its literal sense, but
more in its legal connotation.
The very first natural-born Filipinos did not
acquire that status at birth. They were born as
Spanish subjects. In Roa vs. Collector of Customs,2
the Supreme Court traces the grant of natural-
born status from the Treaty of Paris, and the Acts
of Congress of July 1, 1902 and March 23, 1912,
which is a reenactment of Section 4 of the former
with a proviso which reads:
"Provided, That the Philippine Legislature
is hereby authorized to provide by law for
the acquisition of Philippine citizenship by
those natives of the Philippine Islands who
do not come within the foregoing
provisions, the natives of other Insular
possessions of the United States and such
other persons residing in the Philippine
Islands who could become citizens of the
United State under the laws of the United
State, if residing therein."
It was further held therein that under the said
provision, "every person born the 11th of April, of
parents who were Spanish subjects on that date
and who continued to reside in this country are at
the moment of their birth ipso facto citizens of the
Philippine Islands."
Under the April 7, 1900 Instructions of President
William McKinley to the Second Philippine
Commission, considered as our first colonial
charter of fundamental law, we were referred to
as "people of the Islands," or "inhabitants of the
Philippine Islands," or "natives of the Islands" and
not as citizens, much less natural-born citizens.
The first definition of "citizens of the Philippine
Islands" in our law is found in Section 4 of the
Philippine Bill of 1902.3
Philippine citizenship, including the status of
natural-born, was initially a loose or even non-
existent qualification. As a requirement for the
exercise of certain rights and privileges, it
became a more strict and difficult status to
achieve with the passing of the years.
Early decisions of the Supreme Court held that
Philippine citizenship could be acquired under
either the jus sanguinis or jus soli doctrine.4
This liberal policy was applied even as the
Philippine Bill of 1902 and the Jones Law of the
Philippine Autonomy Act of 1916 appear to have
limited "citizens of the Philippine Islands" to
resident inhabitants who were Spanish subjects
on April 11, 1899, their children born subsequent
thereto, and later, those naturalized according to
law by the Philippine legislature. Only later was
jus sanguinis firmly applied and jus soli
abandoned.
Hence, the status of being a natural-born citizen
at its incipient is a privilege conferred by law
directly to those who intended, and actually
continued, to belong to the Philippine Island. Even
at the time of its conception in the Philippines,
such persons upon whom citizenship was
conferred did not have to do anything to acquire
full citizenship.5
Respondent wants us to believe that since he was
natural-born Filipino at birth, having been born in
the Philippines to Filipino parents, he was
automatically restored to that status when he
subsequently reacquired his citizenship after
losing it.
Public respondent HRET affirmed respondent's
position when it pronounced that the definition of
natural-born citizen in Section 2, Article IV of the
Constitution refers to the classes of citizens
enumerated in Section 1 of the same Article, to
wit:
"Section 1. The following are citizens of the
Philippines:
(1) Those who are citizens of the
Philippines at the time of the adoption of
this Constitution;
(2) Those whose fathers or mothers are
citizens of the Philippines;
(3) Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority; and
(4) Those who are naturalized in
accordance with law."
Thus , respondent HRET held that under the
above enumeration, there are only two classes of
citizens, i.e., natural-born and naturalized. Since
respondent Cruz is not a naturalized citizen, then
he is a natural-born Filipino citizen.
I do not agree. I reiterate that Section 2, Article IV
of the Constitution defines natural-born citizens as
" those who are citizens of the Philippines from
birth without having to perform any act to acquire
or perfect their Philippine citizenship."
Pursuant to R.A. No. 2630, quoted as follow:
"Republic Act No. 2630. AN ACT
PROVIDING FOR REACQUISITION OF
PHILIPPINE CITIZENSHIP BY PERSONS WHO
LOST SUCH CITIZENSHIP BY RENDERING
SERVICE TO, OR ACCEPTING COMMISSION
IN, THE ARMED FORCES OF THE UNITED
STATES, provides:
Section 1. Any person who had lost his
Philippine citizenship be rendering service
to, or accepting commission in the Armed
Forces of the United States, or after
separation from the Armed Forces of the
United States, acquired United States
citizenship, may reacquire Philippine
citizenship by taking an oath of allegiance
to the Republic of the Philippines and
registering the same with the Local Civil
Registry in the place where he resides or
last resided in the Philippines. The said
oath of allegiance shall contain a
renunciation of any other citizenship."
respondent Cruz had perform certain acts before
he could again become a Filipino citizen. He had
to take an oath of allegiance to the Republic of
the Philippines and register his oath with the Local
Civil Registry of Mangatarum, Pangasinan. He had
to renounce his American citizenship and had to
execute an affidavit of reacquisition of Philippine
citizenship.
Clearly, he did not reacquire his natural-born
citizenship. The cardinal rule in the interpretation
and constitution of a constitution is to give effect
to the intention of the framers and of the people
who adopted it. Words appearing in Constitution
are used according to their plain, natural, and
usual significance and import and must be
understood in the sense most obvious to the
common understanding of the people at the time
of its adoption.
The provision on "natural-born citizens of the
Philippines" is precise, clear and definite. Indeed,
neither HRET nor this Court can construe it other
than what its plain meaning conveys. It is not
phrased in general language which may call for
construction of what the words imply.
In J. M. Tuason & Co., Inc. vs. Land Tenure
Administration,6 this Court held:
"Ascertainment of meaning of provisions of
Constitution begins with the language of
the document itself. The words used in the
Constitution are to be given their ordinary
meaning, except where technical terms
are employed, in which case the
significance thus attached to them
prevails. As the Constitution is not
primarily a lawyer's document, it being
essential for the rule of law to obtain that it
should ever be present in the people's
consciousness, its language as much as
possible, should be understood in the
sense they have in common use. What it
says according to the text of the provision
to be construed compels acceptance and
negates the power of the courts to alter it,
based on the postulate that the framers
and the people mean what they say."
The definition of a natural-born citizen in the
Constitution must be applied to this petition
according to its natural sense.
Respondent HRET likewise ruled that the
"reacquisition of Philippine citizenship through
any of these modes: (naturalization, repatriation
and legislation under Section 3, C.A. No. 63)
results in the restoration of previous status, either
as a natural-born or a naturalized citizen" is a
simplistic approach and tends to be misleading.
If citizenship is gained through naturalization,
repatriation or legislation, the citizen concerned
can not be considered natural-born. Obviously, he
has to perform certain acts to become a citizen.
As expressed in the Dissent of Justice Jose C.
Vitug7 in the instant case, concurred in by Justice
A.R. Melo:8
"Repatriation is the resumption or recovery
of the original nationally upon the
fulfillment of certain conditions. While an
applicant need not have to undergo the
tedious and time consuming process
required by the Revised Naturalization Law
(CA 473, s amended), he, nevertheless,
would still have to make an express and
unequivocal act of formally rejecting his
adopted state and reaffirming his total and
exclusive allegiance and loyalty to the
Republic of the Philippines. It bears
emphasis that, to be of section 2, Article
IV, of the 1987 Constitution, one should
not have to perform any act at all or go
through any process, judicial or
administrative, to enable him to reacquire
his citizenship. willoughby opines that a
natural-born citizen is one who is able to
claim citizenship without any prior
declaration on his part of a desire to obtain
such status. Under this view, the term
'natural born' citizens could also cover
those who have been collectively deemed
citizens by reason of the Treaty of Paris
and the Philippine Bill of 1902 and those
who have been accorded by the 1935
Constitution to be Filipino citizens (those
born in the Philippines of alien parents
who, before the adoption of the 1935
Constitution had been elected to public
office.)"
The two dissenting Justice correctly stated that
the "stringent requirement of the Constitution is
so placed as to insure that only Filipino citizens
with an absolute and permanent degree of
allegiance and loyalty shall be eligible for
membership in Congress, the branch of the
government directly involved and given the
dedicate task of legislation."
The dissenting opinion further states:
"The term 'natural-born' Filipino citizen,
first constitutionally defined in the 1973
Charter, later adopted by the 1987
Constitution, particularly in Section 2,
Article IV thereof, is meant to refer to
those ' who are citizens of the Philippines
from birth without having to perform any
act to acquire or perfect their citizenship,'
and to those ' who elect Philippine
citizenship.' Time and again, the Supreme
Court has declared that where the laws
speaks in clear and categorical language,
there is no room for interpretation,
 vacillation or equivocation – there is only
room for application. The phrase 'from
birth indicates that there is a starting point
of his citizenship and this citizenship
should be continuous, constant and
without interruption."
Thus, respondent is not eligible for election to
Congress as the Constitution requires that a
member of the House of Representative must be
a "natural-born citizen of the Philippines."
For sure, the framers of our Constitution intended
to provide a more stringent citizenship
requirement for higher elective offices, including
that of the office of a Congressman. Otherwise,
the Constitution should have simply provided that
a candidate for such position can be merely a
citizen of the Philippines, as required of local
elective officers.
The spirit of nationalism pervading the 1935
Constitution, the first charter framed and ratified
by the Filipino (even as the draft had to be
approved by President Franklin Delano Roosevelt
of the United States) guide and governs the
interpretation of Philippine citizenship and the
more narrow and bounden concept of being a
natural-born citizen.
Under the 1935 costitution,9 the requirement of
natural-born citizenship was applicable to the
President and Vice Persident.10 A person who had
been a citizen for only five (5) years could be
elected to the National Assembly.11 Only in 1940,12
when the first Constitution was amended did
natural-born citizenship become a requirement for
Senators and Members of the House of
Representatives.13 A Filipino naturalized for at
least five (5) years could still be appointed Justice
of the Supreme court or a Judge of a lower court.14
The history of the Constitution shows that the
meaning and application of the requirement of
being natural-born have become more narrow and
qualified over the years.
Under the 1973 Constitution, 15 the President,
members of the National Assembly, Prime
Minister, Justices of the Supreme Court, Judges of
inferior courts, the chairmen and members of the
Constitutional Commission and the majority of
members of the cabinet must be natural-born
citizens.16 The 1987 Constitution added the
Ombudsman and his deputies and the members
of the Commission on Human Rights to those who
must be natural-born citizens.17
The questioned Decision of respondent HRET
reverses the historical trend and clear intendment
of the Constitution. It shows a more liberal, if not
a cavalier approach to the meaning and import of
natural born citizen and citizenship in general.
It bears stressing that we are tracing and
enforcing a doctrine embodied in no less that the
constitution. Indeed, a deviation from the clear
and constitutional definition of a "natural born
Filipino citizen" is a matter which can only be
accomplished through a constitutional
amendment. Clearly respondent HRET gravely
abused its discretion.
Respondent Cruz has availed himself of the
procedure whereby his citizenship has been
restored. He can run for public office where
natural-born citizenship is not mandated. But he
cannot be elected to high offices which the
Constitution has reserved only for natural-born
Filipino citizens.
WHEREFORE, I vote to GRANT the
petition.1âwphi1.nêt
Footnote
1
1987 Constitution of the Republic of the
Philippines.
2
23 Phil 315 (1912).
3
Section 4. That all inhabitants of the
Philippine Islands continuing to reside
therein who were Spanish subjects on the
eleventh day of April, eighteen hundred
and ninety-nine and then resided in said
Islands, and their children born subsequent
thereto, shall be deemed and held to be
citizens of the Philippine Islands and as
such entitled to the protection of the
United States, except such as shall have
elected to preserve their allegiance to the
Crown of Spain in accordance with the
provision of the treaty of peace between
the United States and Spain signed at
Paris, December tenth, eighteen hundred
and ninety-eight.
4
Roa vs. Collector of Customs, supra; Lim
Teco vs. Collector, 24 Phil 84; (1913)
United State vs. Lim Bin, 36 Phil 924
(1917).
5
Roa vs. Collector of Customs, ibid.
6
31 SCRA 413 (1970).
 7
Member of the HRET.
8
Chairman, ibid.
9
This refers to the 1935 Constitution as
adopted by the Philippine Constitution
Convention on February 8, 1935, signed by
President Franklin D. Roosevelt on March
23, 1935 and ratified by Filipino voters in a
plebiscite held on May 14, 1935.
10
Section 3, Article VIII. 1935 Constitution.
11
Section 2, Article VI, ibid.
12
The 1935 Constitution was amended by
Resolution Numbered Seventy-three,
adopted by the Second National Assembly
on the 11th day of April 1940, and
approved by the President of the United
Sates on December 2, 940.
13
Section 4 and 7, Article VI, 1935
Constitution, as amended.
14
Section 6 and 8, Article VIII, ibid.
15
This refers to the 1973 Constitution as
approved by the Filipino people in a
referendum held between January 10,
1973 and January 15, 1973 and which
became effective on January 17, 1973.
16
Section 2, Article VII; section 4, Article
VIII; Section 3 and 4, Article IX; Section 3
(1) and (2), Article X; Section 1 (1) Article
XII-B, Section 1(1), Article XIII-C; Section
1(1) Article XII-D, 1973 Constitution.
17
Section 8, Article XI; and Section 17(2),
Article XIII, 1987 Constitution
EN BANC
[G.R. No. 135083. May 26, 1999]
ERNESTO S. MERCADO, petitioner, vs. EDUARDO
BARRIOS MANZANO and the COMMISSION ON
ELECTIONS, respondents.
DECISION
MENDOZA, J.:
Petitioner Ernesto S. Mercado and private
respondent Eduardo B. Manzano were candidates
for vice mayor of the City of Makati in the May 11,
1998 elections. The other one was Gabriel V.
Daza III. The results of the election were as
follows:
Eduardo B. Manzano 103,853
Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275
The proclamation of private respondent was
suspended in view of a pending petition for
disqualification filed by a certain Ernesto Mamaril
who alleged that private respondent was not a
citizen of the Philippines but of the United States.
In its resolution, dated May 7, 1998, the Second
Division of the COMELEC granted the petition of
Mamaril and ordered the cancellation of the
certificate of candidacy of private respondent on
the ground that he is a dual citizen and, under
§40(d) of the Local Government Code, persons
with dual citizenship are disqualified from running
for any elective position. The COMELEC’s Second
Division said:
What is presented before the Commission is a
petition for disqualification of Eduardo Barrios
Manzano as candidate for the office of Vice-Mayor
of Makati City in the May 11, 1998 elections. The
petition is based on the ground that the
respondent is an American citizen based on the
record of the Bureau of Immigration and
misrepresented himself as a natural-born Filipino
citizen.
In his answer to the petition filed on April 27,
1998, the respondent admitted that he is
registered as a foreigner with the Bureau of
Immigration under Alien Certificate of Registration
No. B-31632 and alleged that he is a Filipino
citizen because he was born in 1955 of a Filipino
father and a Filipino mother. He was born in the
United States, San Francisco, California, on
September 14, 1955, and is considered an
American citizen under US Laws. But
notwithstanding his registration as an American
citizen, he did not lose his Filipino citizenship.
Judging from the foregoing facts, it would appear
that respondent Manzano is both a Filipino and a
US citizen. In other words, he holds dual
citizenship.
The question presented is whether under our
laws, he is disqualified from the position for which
he filed his certificate of candidacy. Is he eligible
for the office he seeks to be elected?
Under Section 40(d) of the Local Government
Code, those holding dual citizenship are
disqualified from running for any elective local
position.
WHEREFORE, the Commission hereby declares the
respondent Eduardo Barrios Manzano
DISQUALIFIED as candidate for Vice-Mayor of
Makati City.
On May 8, 1998, private respondent filed a motion
for reconsideration. The motion remained pending
even until after the election held on May 11,
1998.
Accordingly, pursuant to Omnibus Resolution No.
3044, dated May 10, 1998, of the COMELEC, the
board of canvassers tabulated the votes cast for
vice mayor of Makati City but suspended the
proclamation of the winner.
On May 19, 1998, petitioner sought to intervene
in the case for disqualification. Petitioner’s motion
was opposed by private respondent.
The motion was not resolved. Instead, on August
31, 1998, the COMELEC en banc rendered its
resolution. Voting 4 to 1, with one commissioner
abstaining, the COMELEC en banc reversed the
ruling of its Second Division and declared private
respondent qualified to run for vice mayor of the
City of Makati in the May 11, 1998 elections. The
pertinent portions of the resolution of the
COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios
Manzano was born in San Francisco, California,
U.S.A. He acquired US citizenship by operation of
the United States Constitution and laws under the
principle of jus soli.
He was also a natural born Filipino citizen by
operation of the 1935 Philippine Constitution, as
his father and mother were Filipinos at the time of
his birth. At the age of six (6), his parents
brought him to the Philippines using an American
passport as travel document. His parents also
registered him as an alien with the Philippine
Bureau of Immigration. He was issued an alien
certificate of registration. This, however, did not
result in the loss of his Philippine citizenship, as
he did not renounce Philippine citizenship and did
not take an oath of allegiance to the United
States.
It is an undisputed fact that when respondent
attained the age of majority, he registered himself
as a voter, and voted in the elections of 1992,
1995 and 1998, which effectively renounced his
US citizenship under American law. Under
Philippine law, he no longer had U.S. citizenship.
At the time of the May 11, 1998 elections, the
resolution of the Second Division, adopted on May
7, 1998, was not yet final. Respondent Manzano
obtained the highest number of votes among the
candidates for vice-mayor of Makati City,
garnering one hundred three thousand eight
hundred fifty three (103,853) votes over his
closest rival, Ernesto S. Mercado, who obtained
one hundred thousand eight hundred ninety four
(100,894) votes, or a margin of two thousand nine
hundred fifty nine (2,959) votes. Gabriel Daza III
obtained third place with fifty four thousand two
hundred seventy five (54,275) votes. In applying
election laws, it would be far better to err in favor
of the popular choice than be embroiled in
complex legal issues involving private
international law which may well be settled before
the highest court (Cf. Frivaldo vs. Commission on
Elections, 257 SCRA 727).
WHEREFORE, the Commission en banc hereby
REVERSES the resolution of the Second Division,
adopted on May 7, 1998, ordering the cancellation
of the respondent’s certificate of candidacy.
We declare respondent Eduardo Luis Barrios
Manzano to be QUALIFIED as a candidate for the
position of vice-mayor of Makati City in the May
11, 1998, elections.
ACCORDINGLY, the Commission directs the Makati
City Board of Canvassers, upon proper notice to
the parties, to reconvene and proclaim the
respondent Eduardo Luis Barrios Manzano as the
winning candidate for vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en
banc, the board of canvassers, on the evening of
August 31, 1998, proclaimed private respondent
as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside
the aforesaid resolution of the COMELEC en banc
and to declare private respondent disqualified to
hold the office of vice mayor of Makati City.
Petitioner contends that ¾
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a
U.S. citizen when he:
1. He renounced his U.S. citizenship when he
attained the age of majority when he was already
37 years old; and,
2. He renounced his U.S. citizenship when he
(merely) registered himself as a voter and voted
in the elections of 1992, 1995 and 1998.
B. Manzano is qualified to run for and or hold the
elective office of Vice-Mayor of the City of Makati;
C. At the time of the May 11, 1998 elections, the
resolution of the Second Division adopted on 7
May 1998 was not yet final so that, effectively,
petitioner may not be declared the winner even
assuming that Manzano is disqualified to run for
and hold the elective office of Vice-Mayor of the
City of Makati.
We first consider the threshold procedural issue
raised by private respondent Manzano ¾ whether
petitioner Mercado has personality to bring this
suit considering that he was not an original party
in the case for disqualification filed by Ernesto
Mamaril nor was petitioner’s motion for leave to
intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT
Private respondent cites the following provisions
of Rule 8 of the Rules of Procedure of the
COMELEC in support of his claim that petitioner
has no right to intervene and, therefore, cannot
bring this suit to set aside the ruling denying his
motion for intervention:
Section 1. When proper and when may be
permitted to intervene. ¾ Any person allowed to
initiate an action or proceeding may, before or
during the trial of an action or proceeding, be
permitted by the Commission, in its discretion to
intervene in such action or proceeding, if he has
legal interest in the matter in litigation, or in the
success of either of the parties, or an interest
against both, or when he is so situated as to be
adversely affected by such action or proceeding.
....
Section 3. Discretion of Commission. ¾ In allowing
or disallowing a motion for intervention, the
Commission or the Division, in the exercise of its
discretion, shall consider whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties
and whether or not the intervenor’s rights may be
fully protected in a separate action or proceeding.
Private respondent argues that petitioner has
neither legal interest in the matter in litigation nor
an interest to protect because he is “a defeated
candidate for the vice-mayoralty post of Makati
City [who] cannot be proclaimed as the Vice-
Mayor of Makati City even if the private
respondent be ultimately disqualified by final and
executory judgment.”
The flaw in this argument is it assumes that, at
the time petitioner sought to intervene in the
proceedings before the COMELEC, there had
already been a proclamation of the results of the
election for the vice mayoralty contest for Makati
City, on the basis of which petitioner came out
only second to private respondent. The fact,
however, is that there had been no proclamation
at that time. Certainly, petitioner had, and still
has, an interest in ousting private respondent
from the race at the time he sought to intervene.
The rule in Labo v. COMELEC, reiterated in several
cases, only applies to cases in which the election
of the respondent is contested, and the question
is whether one who placed second to the
disqualified candidate may be declared the
winner. In the present case, at the time petitioner
filed a “Motion for Leave to File Intervention” on
May 20, 1998, there had been no proclamation of
the winner, and petitioner’s purpose was precisely
to have private respondent disqualified “from
running for [an] elective local position” under
§40(d) of R.A. No. 7160. If Ernesto Mamaril (who
originally instituted the disqualification
proceedings), a registered voter of Makati City,
was competent to bring the action, so was
petitioner since the latter was a rival candidate for
vice mayor of Makati City.
Nor is petitioner’s interest in the matter in
litigation any less because he filed a motion for
intervention only on May 20, 1998, after private
respondent had been shown to have garnered the
highest number of votes among the candidates
for vice mayor. That petitioner had a right to
intervene at that stage of the proceedings for the
disqualification against private respondent is clear
from §6 of R.A. No. 6646, otherwise known as the
Electoral Reforms Law of 1987, which provides:
Any candidate who has been declared by final
judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final
judgment before an election to be disqualified and
he is voted for and receives the winning number
of votes in such election, the Court or Commission
shall continue with the trial and hearing of the
action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the
pendency thereof order the suspension of the
proclamation of such candidate whenever the
evidence of guilt is strong.
Under this provision, intervention may be allowed
in proceedings for disqualification even after
election if there has yet been no final judgment
rendered.
The failure of the COMELEC en banc to resolve
petitioner’s motion for intervention was
tantamount to a denial of the motion, justifying
petitioner in filing the instant petition for
certiorari. As the COMELEC en banc instead
decided the merits of the case, the present
petition properly deals not only with the denial of
petitioner’s motion for intervention but also with
the substantive issues respecting private
respondent’s alleged disqualification on the
ground of dual citizenship.
This brings us to the next question, namely,
whether private respondent Manzano possesses
dual citizenship and, if so, whether he is
disqualified from being a candidate for vice mayor
of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION
The disqualification of private respondent
Manzano is being sought under §40 of the Local
Government Code of 1991 (R.A. No. 7160), which
declares as “disqualified from running for any
elective local position: . . . (d) Those with dual
citizenship.” This provision is incorporated in the
Charter of the City of Makati.
Invoking the maxim dura lex sed lex, petitioner,
as well as the Solicitor General, who sides with
him in this case, contends that through §40(d) of
the Local Government Code, Congress has
“command[ed] in explicit terms the ineligibility of
persons possessing dual allegiance to hold local
elective office.”
To begin with, dual citizenship is different from
dual allegiance. The former arises when, as a
result of the concurrent application of the
different laws of two or more states, a person is
simultaneously considered a national by the said
states. For instance, such a situation may arise
when a person whose parents are citizens of a
state which adheres to the principle of jus
sanguinis is born in a state which follows the
doctrine of jus soli. Such a person, ipso facto and
without any voluntary act on his part, is
concurrently considered a citizen of both states.
Considering the citizenship clause (Art. IV) of our
Constitution, it is possible for the following classes
of citizens of the Philippines to possess dual
citizenship:
(1) Those born of Filipino fathers and/or mothers
in foreign countries which follow the principle of
jus soli;
(2) Those born in the Philippines of Filipino
mothers and alien fathers if by the laws of their
fathers’ country such children are citizens of that
country;
(3) Those who marry aliens if by the laws of the
latter’s country the former are considered
citizens, unless by their act or omission they are
deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of
the Philippines may, without performing any act,
be also a citizen of another state; but the above
cases are clearly possible given the constitutional
provisions on citizenship.
Dual allegiance, on the other hand, refers to the
situation in which a person simultaneously owes,
by some positive act, loyalty to two or more
states. While dual citizenship is involuntary, dual
allegiance is the result of an individual’s volition.
With respect to dual allegiance, Article IV, §5 of
the Constitution provides: “Dual allegiance of
citizens is inimical to the national interest and
shall be dealt with by law.” This provision was
included in the 1987 Constitution at the instance
of Commissioner Blas F. Ople who explained its
necessity as follows:
. . . I want to draw attention to the fact that dual
allegiance is not dual citizenship. I have
circulated a memorandum to the Bernas
Committee according to which a dual allegiance -
and I reiterate a dual allegiance - is larger and
more threatening than that of mere double
citizenship which is seldom intentional and,
perhaps, never insidious. That is often a function
of the accident of mixed marriages or of birth on
foreign soil. And so, I do not question double
citizenship at all.
What we would like the Committee to consider is
to take constitutional cognizance of the problem
of dual allegiance. For example, we all know what
happens in the triennial elections of the
Federation of Filipino-Chinese Chambers of
Commerce which consists of about 600 chapters
all over the country. There is a Peking ticket, as
well as a Taipei ticket. Not widely known is the
fact that the Filipino-Chinese community is
represented in the Legislative Yuan of the
Republic of China in Taiwan. And until recently,
the sponsor might recall, in Mainland China in the
People’s Republic of China, they have the
Associated Legislative Council for overseas
Chinese wherein all of Southeast Asia including
some European and Latin countries were
represented, which was dissolved after several
years because of diplomatic friction. At that time,
the Filipino-Chinese were also represented in that
Overseas Council.
When I speak of double allegiance, therefore, I
speak of this unsettled kind of allegiance of
Filipinos, of citizens who are already Filipinos but
who, by their acts, may be said to be bound by a
second allegiance, either to Peking or Taiwan. I
also took close note of the concern expressed by
some Commissioners yesterday, including
Commissioner Villacorta, who were concerned
about the lack of guarantees of thorough
assimilation, and especially Commissioner
Concepcion who has always been worried about
minority claims on our natural resources.
Dual allegiance can actually siphon scarce
national capital to Taiwan, Singapore, China or
Malaysia, and this is already happening. Some of
the great commercial places in downtown Taipei
are Filipino-owned, owned by Filipino-Chinese ¾ it
is of common knowledge in Manila. It can mean a
tragic capital outflow when we have to endure a
capital famine which also means economic
stagnation, worsening unemployment and social
unrest.
And so, this is exactly what we ask ¾ that the
Committee kindly consider incorporating a new
section, probably Section 5, in the article on
Citizenship which will read as follows: DUAL
ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND
SHALL BE DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke
on the problem of these citizens with dual
allegiance, thus:
. . . A significant number of Commissioners
expressed their concern about dual citizenship in
the sense that it implies a double allegiance under
a double sovereignty which some of us who spoke
then in a freewheeling debate thought would be
repugnant to the sovereignty which pervades the
Constitution and to citizenship itself which implies
a uniqueness and which elsewhere in the
Constitution is defined in terms of rights and
obligations exclusive to that citizenship including,
of course, the obligation to rise to the defense of
the State when it is threatened, and back of this,
Commissioner Bernas, is, of course, the concern
for national security. In the course of those
debates, I think some noted the fact that as a
result of the wave of naturalizations since the
decision to establish diplomatic relations with the
People’s Republic of China was made in 1975, a
good number of these naturalized Filipinos still
routinely go to Taipei every October 10; and it is
asserted that some of them do renew their oath of
allegiance to a foreign government maybe just to
enter into the spirit of the occasion when the
anniversary of the Sun Yat-Sen Republic is
commemorated. And so, I have detected a
genuine and deep concern about double
citizenship, with its attendant risk of double
allegiance which is repugnant to our sovereignty
and national security. I appreciate what the
Committee said that this could be left to the
determination of a future legislature. But
considering the scale of the problem, the real
impact on the security of this country, arising
from, let us say, potentially great numbers of
double citizens professing double allegiance, will
the Committee entertain a proposed amendment
at the proper time that will prohibit, in effect, or
regulate double citizenship?
Clearly, in including §5 in Article IV on citizenship,
the concern of the Constitutional Commission was
not with dual citizens per se but with naturalized
citizens who maintain their allegiance to their
countries of origin even after their naturalization.
Hence, the phrase “dual citizenship” in R.A. No.
7160, §40(d) and in R.A. No. 7854, §20 must be
understood as referring to “dual allegiance.”
Consequently, persons with mere dual citizenship
do not fall under this disqualification. Unlike
those with dual allegiance, who must, therefore,
be subject to strict process with respect to the
termination of their status, for candidates with
dual citizenship, it should suffice if, upon the filing
of their certificates of candidacy, they elect
Philippine citizenship to terminate their status as
persons with dual citizenship considering that
their condition is the unavoidable consequence of
conflicting laws of different states. As Joaquin G.
Bernas, one of the most perceptive members of
the Constitutional Commission, pointed out:
“[D]ual citizenship is just a reality imposed on us
because we have no control of the laws on
citizenship of other countries. We recognize a
child of a Filipino mother. But whether or not she
is considered a citizen of another country is
something completely beyond our control.”
By electing Philippine citizenship, such candidates
at the same time forswear allegiance to the other
country of which they are also citizens and
thereby terminate their status as dual citizens. It
may be that, from the point of view of the foreign
state and of its laws, such an individual has not
effectively renounced his foreign citizenship. That
is of no moment as the following discussion on
§40(d) between Senators Enrile and Pimentel
clearly shows:
SENATOR ENRILE. Mr. President, I would like to
ask clarification of line 41, page 17: “Any person
with dual citizenship” is disqualified to run for any
elective local position. Under the present
Constitution, Mr. President, someone whose
mother is a citizen of the Philippines but his father
is a foreigner is a natural-born citizen of the
Republic. There is no requirement that such a
natural born citizen, upon reaching the age of
majority, must elect or give up Philippine
citizenship.
On the assumption that this person would carry
two passports, one belonging to the country of his
or her father and one belonging to the Republic of
the Philippines, may such a situation disqualify
the person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President,
it only means that at the moment when he would
want to run for public office, he has to repudiate
one of his citizenships.
SENATOR ENRILE. Suppose he carries only a
Philippine passport but the country of origin or the
country of the father claims that person,
nevertheless, as a citizen? No one can renounce.
There are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is
running for public office would, in effect, be an
election for him of his desire to be considered as a
Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President,
the Constitution does not require an election.
Under the Constitution, a person whose mother is
a citizen of the Philippines is, at birth, a citizen
without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying,
Mr. President, is: Under the Gentleman’s example,
if he does not renounce his other citizenship, then
he is opening himself to question. So, if he is
really interested to run, the first thing he should
do is to say in the Certificate of Candidacy that: “I
am a Filipino citizen, and I have only one
citizenship.”
SENATOR ENRILE. But we are talking from the
viewpoint of Philippine law, Mr. President. He will
always have one citizenship, and that is the
citizenship invested upon him or her in the
Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President.
But if he exercises acts that will prove that he also
acknowledges other citizenships, then he will
probably fall under this disqualification.
This is similar to the requirement that an
applicant for naturalization must renounce “all
allegiance and fidelity to any foreign prince,
potentate, state, or sovereignty” of which at the
time he is a subject or citizen before he can be
issued a certificate of naturalization as a citizen of
the Philippines. In Parado v. Republic, it was held:
[W]hen a person applying for citizenship by
naturalization takes an oath that he renounces his
loyalty to any other country or government and
solemnly declares that he owes his allegiance to
the Republic of the Philippines, the condition
imposed by law is satisfied and complied with.
The determination whether such renunciation is
valid or fully complies with the provisions of our
Naturalization Law lies within the province and is
an exclusive prerogative of our courts. The latter
should apply the law duly enacted by the
legislative department of the Republic. No foreign
law may or should interfere with its operation and
application. If the requirement of the Chinese
Law of Nationality were to be read into our
Naturalization Law, we would be applying not
what our legislative department has deemed it
wise to require, but what a foreign government
has thought or intended to exact. That, of course,
is absurd. It must be resisted by all means and at
all cost. It would be a brazen encroachment upon
the sovereign will and power of the people of this
Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP
The record shows that private respondent was
born in San Francisco, California on September 4,
1955, of Filipino parents. Since the Philippines
adheres to the principle of jus sanguinis, while the
United States follows the doctrine of jus soli, the
parties agree that, at birth at least, he was a
national both of the Philippines and of the United
States. However, the COMELEC en banc held
that, by participating in Philippine elections in
1992, 1995, and 1998, private respondent
“effectively renounced his U.S. citizenship under
American law,” so that now he is solely a
Philippine national.
Petitioner challenges this ruling. He argues that
merely taking part in Philippine elections is not
sufficient evidence of renunciation and that, in
any event, as the alleged renunciation was made
when private respondent was already 37 years
old, it was ineffective as it should have been
made when he reached the age of majority.
In holding that by voting in Philippine elections
private respondent renounced his American
citizenship, the COMELEC must have in mind §349
of the Immigration and Nationality Act of the
United States, which provided that “A person who
is a national of the United States, whether by birth
or naturalization, shall lose his nationality by: . .
. (e) Voting in a political election in a foreign state
or participating in an election or plebiscite to
determine the sovereignty over foreign territory.”
To be sure this provision was declared
unconstitutional by the U.S. Supreme Court in
Afroyim v. Rusk as beyond the power given to the
U.S. Congress to regulate foreign relations.
However, by filing a certificate of candidacy when
he ran for his present post, private respondent
elected Philippine citizenship and in effect
renounced his American citizenship. Private
respondent’s certificate of candidacy, filed on
March 27, 1998, contained the following
statements made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF “NATURAL-
BORN” OR “NATURALIZED”) NATURAL-BORN
....
10. I AM A REGISTERED VOTER OF
PRECINCT NO. 747-A, BARANGAY SAN LORENZO,
CITY/MUNICIPALITY OF MAKATI, PROVINCE OF
NCR .
11. I AM NOT A PERMANENT RESIDENT OF,
OR IMMIGRANT TO, A FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK
TO BE ELECTED. I WILL SUPPORT AND DEFEND
THE CONSTITUTION 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 OF THE
REPUBLIC OF THE PHILIPPINES; AND THAT I
IMPOSE THIS OBLIGATION UPON MYSELF
VOLUNTARILY, WITHOUT MENTAL RESERVATION
OR PURPOSE OF EVASION. I HEREBY CERTIFY
THAT THE FACTS STATED HEREIN ARE TRUE AND
CORRECT OF MY OWN PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed
to renounce his American citizenship, effectively
removing any disqualification he might have as a
dual citizen. Thus, in Frivaldo v. COMELEC it was
held:
It is not disputed that on January 20, 1983
Frivaldo became an American. Would the
retroactivity of his repatriation not effectively give
him dual citizenship, which under Sec. 40 of the
Local Government Code would disqualify him
“from running for any elective local position?” We
answer this question in the negative, as there is
cogent reason to hold that Frivaldo was really
STATELESS at the time he took said oath of
allegiance and even before that, when he ran for
governor in 1988. In his Comment, Frivaldo wrote
that he “had long renounced and had long
abandoned his American citizenship-long before
May 8, 1995. At best, Frivaldo was stateless in
the interim-when he abandoned and renounced
his US citizenship but before he was repatriated to
his Filipino citizenship.”
On this point, we quote from the assailed
Resolution dated December 19, 1995:
“By the laws of the United States, petitioner
Frivaldo lost his American citizenship when he
took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in
1992, and in 1995. Every certificate of candidacy
contains an oath of allegiance to the Philippine
Government.”
These factual findings that Frivaldo has lost his
foreign nationality long before the elections of
1995 have not been effectively rebutted by Lee.
Furthermore, it is basic that such findings of the
Commission are conclusive upon this Court,
absent any showing of capriciousness or
arbitrariness or abuse.
There is, therefore, no merit in petitioner’s
contention that the oath of allegiance contained
in private respondent’s certificate of candidacy is
insufficient to constitute renunciation of his
American citizenship. Equally without merit is
petitioner’s contention that, to be effective, such
renunciation should have been made upon private
respondent reaching the age of majority since no
law requires the election of Philippine citizenship
to be made upon majority age.
Finally, much is made of the fact that private
respondent admitted that he is registered as an
American citizen in the Bureau of Immigration and
Deportation and that he holds an American
passport which he used in his last travel to the
United States on April 22, 1997. There is no merit
in this. Until the filing of his certificate of
candidacy on March 21, 1998, he had dual
citizenship. The acts attributed to him can be
considered simply as the assertion of his
American nationality before the termination of his
American citizenship. What this Court said in
Aznar v. COMELEC applies mutatis mutandis to
private respondent in the case at bar:
. . . Considering the fact that admittedly Osmeña
was both a Filipino and an American, the mere
fact that he has a Certificate stating he is an
American does not mean that he is not still a
Filipino. . . . [T]he Certification that he is an
American does not mean that he is not still a
Filipino, possessed as he is, of both nationalities
or citizenships. Indeed, there is no express
renunciation here of Philippine citizenship; truth
to tell, there is even no implied renunciation of
said citizenship. When We consider that the
renunciation needed to lose Philippine citizenship
must be “express,” it stands to reason that there
can be no such loss of Philippine citizenship when
there is no renunciation, either “express” or
“implied.”
To recapitulate, by declaring in his certificate of
candidacy that he is a Filipino citizen; that he is
not a permanent resident or immigrant of another
country; that he will defend and support the
Constitution of the Philippines and bear true faith
and allegiance thereto and that he does so
without mental reservation, private respondent
has, as far as the laws of this country are
concerned, effectively repudiated his American
citizenship and anything which he may have said
before as a dual citizen.
On the other hand, private respondent’s oath of
allegiance to the Philippines, when considered
with the fact that he has spent his youth and
adulthood, received his education, practiced his
profession as an artist, and taken part in past
elections in this country, leaves no doubt of his
election of Philippine citizenship.
His declarations will be taken upon the faith that
he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough
sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate
proceedings. In Yu v. Defensor-Santiago, we
sustained the denial of entry into the country of
petitioner on the ground that, after taking his oath
as a naturalized citizen, he applied for the
renewal of his Portuguese passport and declared
in commercial documents executed abroad that
he was a Portuguese national. A similar sanction
can be taken against any one who, in electing
Philippine citizenship, renounces his foreign
nationality, but subsequently does some act
constituting renunciation of his Philippine
citizenship.
WHEREFORE, the petition for certiorari is
DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Quisumbing, Buena, Gonzaga-
Reyes, and Ynares-Santiago, JJ., concur.
Panganiban, and Purisima, JJ., on leave.
176 SCRA 1 (1989).
Abella v. COMELEC, 201 SCRA 253 (1991); Benito
v. COMELEC, 235 SCRA 436 (1994); Aquino v.
COMELEC, 248 SCRA 400 (1995); Frivaldo v.
COMELEC, 257 SCRA 727 (1996).
R.A. No. 7854, the Charter of the City of Makati,
provides: “Sec. 20 ¾ The following are
disqualifiedfrom running for any elective position
in the city: . . . (d) Those with dual citizenship.”
JOVITO R. SALONGA, PRIVATE INTERNATIONAL
LAW 166 (1995).
Id., at 361 (Session of July 8, 1986).
Id., at 233-234 (Session of June 25, 1986).
1 RECORD OF THE CONSTITUTIONAL
COMMISSION 203 (Session of June 23, 1986).
Transcript, pp. 5-6, Session of Nov. 27, 1990.
C.A. No. 473, §12.
86 Phil. 340, 343 (1950).
387 U.S. 253, 18 L. Ed. 2d 757 (1967), overruling
Perez v. Brownell, 356 U.S. 2 L. Ed. 2d 603
(1958).
257 SCRA 727, 759-760 (1996).
185 SCRA 703, 711 (1990). See also Kawakita v.
United States, 343 U.S. 717, 96 L. Ed. 1249
(1952).
169 SCRA 364 (1989).

Pardo, J., no part.

Petition, Rollo, p. 5.

Per Commissioner Amado M. Calderon and

concurred in by Commissioners Julio F. Desamito
and Japal M. Guiani.

Id., Annex E, Rollo, pp. 50-63. EN BANC

Rollo, pp. 78-83. [G.R. No. 120099. July 24, 1996]

Per Chairman Bernardo P. Pardo and concurred in
by Commissioners Manolo B. Gorospe, Teresita
Dy-Liaco Flores, Japal M. Guiani, and Luzviminda
G. Tancangco. Commissioner Julio F. Desamito
dissented.
EDUARDO T. RODRIGUEZ, petitioner, vs.
COMMISSION ON ELECTIONS, BIENVENIDO O.
MARQUEZ, JR., respondents.
DECISION
FRANCISCO, J.:
Petitioner Eduardo T. Rodriguez and private
respondent Bienvenido O. Marquez, Jr. (Rodriguez
and Marquez, for brevity) were protagonists for
the gubernatorial post of Quezon Province in the
May 1992 elections. Rodriguez won and was
proclaimed duly-elected governor.
Marquez challenged Rodriguez’ victory via
petition for quo warranto before the COMELEC
(EPC No. 92-28). Marquez revealed that Rodriguez
left the United States where a charge, filed on
November 12, 1985, is pending against the latter
before the Los Angeles Municipal Court for
fraudulent insurance claims, grand theft and
attempted grand theft of personal property.
Rodriguez is therefore a "fugitive from justice"
which is a ground for his
disqualification/ineligibility under Section 40(e) of
the Local Government Code (R.A. 7160), so
argued Marquez.
The COMELEC dismissed Marquez’ quo warranto
petition (EPC No. 92-28) in a resolution of
February 2, 1993, and likewise denied a
reconsideration thereof.
Marquez challenged the COMELEC dismissal of
EPC No. 92-28 before this Court via petition for
certiorari, docketed as G.R. No. 112889. The crux
of said petition is whether Rodriguez is a "fugitive
from justice" as contemplated by Section 40(e) of
the Local Government Code based on the alleged
pendency of a criminal charge against him (as
previously mentioned).
In resolving that Marquez petition (112889), the
Court in "Marquez, Jr. vs. COMELEC" promulgated
on April 18, 1995, now appearing in Volume 243,
page 538 of the SCRA and hereinafter referred to
as the MARQUEZ Decision, declared that:
“x x x, ‘fugitive from justice’ includes not only
those who flee after conviction to avoid
punishment but likewise those who, after being
charged, flee to avoid prosecution. This definition
truly finds support from jurisprudence (x x x), and
it may be so conceded as expressing the general
and ordinary connotation of the term."
Whether or not Rodriguez is a "fugitive from
justice" under the definition thus given was not
passed upon by the Court. That task was to
devolve on the COMELEC upon remand of the
case to it, with the directive to proceed therewith
with dispatch conformably with the MARQUEZ
Decision. Rodriguez sought a reconsideration
thereof. He also filed an "Urgent Motion to Admit
Additional Argument in Support of the Motion for
Reconsideration" to which was attached a
certification from the Commission on Immigration
showing that Rodriguez left the US on June 25,
1985 — roughly five (5) months prior to the
institution of the criminal complaint filed against
him before the Los Angeles court. The Court
however denied a reconsideration of the
MARQUEZ Decision.
In the May 8, 1995 election, Rodriguez and
Marquez renewed their rivalry for the same
position of governor. This time, Marquez
challenged Rodriguez' candidacy via petition for
disqualification before the COMELEC, based
principally on the same allegation that Rodriguez
is a "fugitive from justice." This petition for
disqualification (SPA No. 95-089) was filed by
Marquez on April 11, 1995 when Rodriguez'
petition for certiorari (112889) — from where the
April 18, 1995 MARQUEZ Decision sprung — was
still then pending before the Court.
On May 7, 1995 and after the promulgation of the
MARQUEZ Decision, the COMELEC promulgated a
Consolidated Resolution for EPC No. 92-28 (quo
warranto case) and SPA No. 95-089
(disqualification case). In justifying a joint
resolution of these two (2) cases, the COMELEC
explained that:
1. EPC No. 92-28 and SPA No. 95-089 are
inherently related cases;
2. the parties, facts and issue involved are
identical in both cases
3. the same evidence is to be utilized in both
cases in determining the common issue of
whether Rodriguez is a "fugitive from justice"
4. on consultation with the Commission En Banc,
the Commissioners unanimously agreed that a
consolidated resolution of the two (2) cases is not
procedurally flawed.
Going now into the meat of that Consolidated
Resolution, the COMELEC, allegedly having kept in
mind the MARQUEZ Decision definition of "fugitive
from justice", found Rodriguez to be one. Such
finding was essentially based on Marquez'
documentary evidence consisting of
1. an authenticated copy of the November 12,
1995 warrant of arrest issued by the Los Angeles
Municipal Court against Rodriguez, and
2. an authenticated copy of the felony complaint
which the COMELEC allowed to be presented ex-
parte after Rodriguez walked-out of the hearing of
the case on April 26, 1995 following the
COMELEC's denial of Rodriguez' motion for
postponement. With the walk-out, the COMELEC
considered Rodriguez as having waived his right
to disprove the authenticity of Marquez'
aforementioned documentary evidence. The
COMELEC thus made the following analysis:
"The authenticated documents submitted by
petitioner (Marquez) to show the pendency of a
criminal complaint against the respondent
(Rodriguez) in the Municipal Court of Los Angeles,
California, U.S.A., and the fact that there is an
outstanding warrant against him amply proves
petitioner's contention that the respondent is a
fugitive from justice. The Commission cannot look
with favor on respondent's defense that long
before the felony complaint was allegedly filed,
respondent was already in the Philippines and he
did not know of the filing of the same nor was he
aware that he was being proceeded against
criminally. In a sense, thru this defense,
respondent implicitly contends that he cannot be
deemed a fugitive from justice, because to be so,
one must be aware of the filing of the criminal
complaint, and his disappearance in the place
where the long arm of the law, thru the warrant of
arrest, may reach him is predicated on a clear
desire to avoid and evade the warrant. This
allegation in the Answer, however, was not even
fortified with any attached document to show
when he left the United States and when he
returned to this country, facts upon which the
conclusion of absence of knowledge about the
criminal complaint may be derived. On the
contrary, the fact of arrest of respondent's wife on
November 6, 1985 in the United States by the
Fraud Bureau investigators in an apartment paid
for respondent in that country can hardly rebut
whatever presumption of knowledge there is
against the respondent."
And proceeding therefrom, the COMELEC, in the
dispositive portion, declared:
"WHEREFORE, considering that respondent has
been proven to be fugitive from justice, he is
hereby ordered disqualified or ineligible from
assuming and performing the functions of
Governor of Quezon Province. Respondent is
ordered to immediately vacate said office.
Further, he is hereby disqualified from running for
Governor for Quezon Province in the May 8, 1995
elections. Lastly, his certificate of candidacy for
the May 8, 1995 elections is hereby set aside."
At any rate, Rodriguez again emerged as the
victorious candidate in the May 8, 1995 election
for the position of governor.
On May 10 and 11, 1995, Marquez filed urgent
motions to suspend Rodriguez' proclamation
which the COMELEC granted on May 11, 1995.
The Provincial Board of Canvassers nonetheless
proclaimed Rodriguez on May 12, 1995.
The COMELEC Consolidated Resolution in EPC No.
92-28 and SPA No. 95-089 and the May 11, 1995
Resolution suspending Rodriguez' proclamation
thus gave rise to the filing of the instant petition
for certiorari (G.R. No. 120099) on May 16, 1995.
On May 22, 1995, Marquez filed an "Omnibus
Motion To Annul The Proclamation Of Rodriguez
To Proclaim Marquez And To Cite The Provincial
Board of Canvassers in Contempt" before the
COMELEC (in EPC No. 92-28 and SPA No. 95-089).
Acting on Marquez' omnibus motion, the
COMELEC, in its Resolution of June 23, 1995,
nullified Rodriguez' proclamation and ordered
certain members of the Quezon Province
Provincial Board of Canvassers to explain why
they should not be cited in contempt for
disobeying the poll body's May 11, 1995
Resolution suspending Rodriguez' proclamation.
But with respect to Marquez' motion for his
proclamation, the COMELEC deferred action until
after this Court has resolved the instant petition
(G.R. No. 120099).
Rodriguez filed a motion to admit supplemental
petition to include the aforesaid COMELEC June
23, 1995 Resolution, apart from the May 7 and
May 11, 1995 Resolutions (Consolidated
Resolution and Order to suspend Rodriguez'
proclamation, respectively).
As directed by the Court, oral arguments were
had in relation to the instant petition (G.R. No.
120099) on July 13, 1995.
Marquez, on August 3, 1995, filed an "Urgent
Motion For Temporary Restraining Order Or
Preliminary Injunction" which sought to restrain
and enjoin Rodriguez "from exercising the powers,
functions and prerogatives of Governor of Quezon
x x x." Acting favorably thereon, the Court in a
Resolution dated August 8, 1995 issued a
temporary restraining order. Rodriguez' "Urgent
Motion To Lift Temporary Restraining Order
And/Or For Reconsideration" was denied by the
Court in an August 15, 1995 Resolution. Another
similar urgent motion was later on filed by
Rodriguez which the Court also denied.
In a Resolution dated October 24, 1995, the Court
"x x x RESOLVED to DIRECT the Chairman of the
Commission on Elections ('COMELEC') to
designate a Commissioner or a ranking official of
the COMELEC to RECEIVE AND EVALUATE such
legally admissible evidence as herein petitioner
Eduardo Rodriguez may be minded to present by
way of refuting the evidence heretofore submitted
by private respondent Bienvenido Marquez, Sr., or
that which can tend to establish petitioner's
contention that he does not fall within the legal
concept of a ‘fugitive from justice.’ Private
respondent Marquez may likewise, if he so
desires, introduce additional and admissible
evidence in support of his own position. The
provisions of Sections 3 to 10, Rule 33, of the
Rules of Court may be applied in the reception of
the evidence. The Chairman of the COMELEC
shall have the proceedings completed and the
corresponding report submitted to this Court
within thirty (30) days from notice hereof."
The COMELEC complied therewith by filing before
the Court, on December 26, 1995, a report
entitled "EVIDENCE OF THE PARTIES and
COMMISSION'S EVALUATION" wherein the
COMELEC, after calibrating the parties' evidence,
declared that Rodriguez is NOT a "fugitive from
justice" as defined in the main opinion of the
MARQUEZ Decision, thus making a 180-degree
turnaround from its finding in the Consolidated
Resolution. In arriving at this new conclusion, the
COMELEC opined that intent to evade is a
material element of the MARQUEZ Decision
definition. Such intent to evade is absent in
Rodriguez' case because evidence has established
that Rodriguez arrived in the Philippines (June 25,
1985) long before the criminal charge was
instituted in the Los Angeles Court (November 12,
1985).
But the COMELEC report did not end there. The
poll body expressed what it describes as its
"persistent discomfort" on whether it read and
applied correctly the MARQUEZ Decision definition
of "fugitive from justice". So as not to miss
anything, we quote the COMELEC's observations
in full:
“x x x. The main opinion's definition of a 'fugitive
from justice ‘includes’ not only those who flee
after conviction to avoid punishment but also
those who, after being charged, flee to avoid
prosecution.' It proceeded to state that:
This definition truly finds support from
jurisprudence (Philippine Law Dictionary Third
Edition, p. 399 by F.B. Moreno; Black's Law
Dictionary, Sixth Edition, p. 671; King v. Noe, 244
SC 344; 137 SE 2d 102, 103; Hughes v. Pflanz,
138 Federal Reporter 980; Tobin v. Casaus, 275
Pacific Reporter 2d p. 792), and it may be so
conceded as expressing the general and ordinary
connotation of the term.
But in the majority of the cases cited, the
definition of the term 'fugitive from justice'
contemplates other instances not explicitly
mentioned in the main opinion. Black's Law
Dictionary begins the definition of the term by
referring to a 'fugitive from justice' as:
(A) person, who, having committed a crime, flees
from jurisdiction of the court where crime was
committed or departs from his usual place of
abode and conceals himself within the district. x
xx
Then, citing King v. Noe, the definition continues
and conceptualizes a 'fugitive from justice' as:
x x x a person who, having committed or been
charged with a crime in one state, has left its
jurisdiction and is found within the territory of
another when it is sought to subject him to the
criminal process of the former state. (our
emphasis)
In Hughes v. Pflanz, the term was defined as:
a person who, having committed within a state a
crime, when sought for, to be subjected to
criminal process, is found within the territory of
another state.
Moreno's Philippine Law Dictionary, 5th Ed.
considers the term as an:
expression which refers to one having committed,
or being accused, of a crime in one jurisdiction
and is absent for any reason from that
jurisdiction.
Specifically, one who flees to avoid punishment x
x x (Italics ours)
From the above rulings, it can be gleaned that the
objective facts sufficient to constitute flight from
justice are: (a) a person committed a 'crime' or
has been charged for the commission thereof; and
(b) thereafter, leaves the jurisdiction of the court
where said crime was committed or his usual
place of abode.
Filing of charges prior to flight is not always an
antecedent requirement to label one a 'fugitive
from justice.’ Mere commission of a 'crime'
without charges having been filed for the same
and flight subsequent thereto sufficiently meet
the definition. Attention is directed at the use of
the word 'crime' which is not employed to connote
guilt or conviction for the commission thereof.
Justice Davide's separate opinion in G.R. No.
112889 elucidates that the disqualification for
being a fugitive does not involve the issue of the
presumption of innocence, the reason for
disqualification being that a person 'was not
brought within the jurisdiction of the court
because he had successfully evaded arrest; or if
he was brought within the jurisdiction of the court
and was tried and convicted, he has successfully
evaded service of sentence because he had
jumped bail or escaped. The disqualification then
is based on his ‘flight from justice.’
Other rulings of the United States Supreme Court
further amplify the view that intent and purpose
for departure is inconsequential to the inquiry.
The texts, which are persuasive in our jurisdiction,
are more unequivocal in their pronouncements.
In King v. US (144 F. 2nd 729), citing Roberts v.
Reilly (116 US 80) the United States Supreme
Court held:
x x x it is not necessary that the party should
have left the state or the judicial district where
the crime is alleged to have been committed,
after an indictment found, or for the purpose of
avoiding an anticipated prosecution, but that,
having committed a crime within a state or
district, he has left and is found in another
jurisdiction (Italics supplied)
Citing State v. Richter (37 Minn. 436), the Court
further ruled in unmistakable language:
The simple fact that they (person who have
committed crime within a state) are not within the
state to answer its criminal process when required
renders them, in legal intendment, fugitives from
justice.
THEREFORE, IT APPEARS THAT GIVEN THE
AUTHORITIES CITED IN G.R. NO. 112889, THE
MERE FACT THAT THERE ARE PENDING CHARGES
IN THE UNITED STATES AND THAT PETITIONER
RODRIGUEZ IS IN THE PHILIPPINES MAKE
PETITIONER A 'FUGITIVE FROM JUSTICE.'
From the foregoing discussions, the determination
of whether or not Rodriguez is a fugitive from
justice hinges on whether or not Rodriguez'
evidence shall be measured against the two
instances mentioned in the main opinion, or is to
be expanded as to include other situations
alluded to by the foreign jurisprudence cited by
the Court. In fact, the spirited legal fray between
the parties in this case focused on each camp's
attempt to construe the Court's definition so as to
fit or to exclude petitioner within the definition of
a 'fugitive from justice'. Considering, therefore,
the equally valid yet different interpretations
resulting from the Supreme Court decision in G.R.
No. 112889, the Commission deems it most
conformable to said decision to evaluate the
evidence in light of the varied constructions open
to it and to respectfully submit the final
determination of the case to the Honorable
Supreme Court as the final interpreter of the law."
The instant petition dwells on that nagging issue
of whether Rodriguez is a "fugitive from justice,”
the determination of which, as we have directed
the COMELEC on two (2) occasions (in the
MARQUEZ Decision and in the Court's October 24,
1995 Resolution), must conform to how such term
has been defined by the Court in the MARQUEZ
Decision. To reiterate, a "fugitive from justice":
"x x x includes not only those who flee after
conviction to avoid punishment but likewise who,
after being charged, flee to avoid prosecution."
The definition thus indicates that the intent to
evade is the compelling factor that animates
one's flight from a particular jurisdiction. And
obviously, there can only be an intent to evade
prosecution or punishment when there is
knowledge by the fleeing subject of an already
instituted indictment, or of a promulgated
judgment of conviction.
Rodriguez' case just cannot fit in this concept.
There is no dispute that his arrival in the
Philippines from the US on June 25, 1985, as per
certifications issued by the Bureau of
Immigrations dated April 27 and June 26 of 1995,
preceded the filing of the felony complaint in the
Los Angeles Court on November 12, 1985 and of
the issuance on even date of the arrest warrant
by that same foreign court, by almost five (5)
months. It was clearly impossible for Rodriguez to
have known about such felony complaint and
arrest warrant at the time he left the US, as there
was in fact no complaint and arrest warrant —
much less conviction — to speak of yet at such
time. What prosecution or punishment then was
Rodriguez deliberately running away from with his
departure from the US? The very essence of
being a "fugitive from justice" under the
MARQUEZ Decision definition, is just nowhere to
be found in the circumstances of Rodriguez.
With that, the Court gives due credit to the
COMELEC in having made the. same analysis in its
"x x x COMMISSION'S EVALUATION". There are, in
fact, other observations consistent with such
analysis made by the poll body that are equally
formidable so as to merit their adoption as part of
this decision, to wit:
"It is acknowledged that there was an attempt by
private respondent to show Rodriguez' intent to
evade the law. This was done by offering for
admission a voluminous copy of an investigation
report (Exhibits I to I-17 and J to J-87 inclusive) on
the alleged crimes committed which led to the
filing of the charges against petitioner. It was
offered for the sole purpose of establishing the
fact that it was impossible for petitioner not to
have known of said investigation due to its
magnitude. Unfortunately, such conclusion
misleads because investigations of this nature, no
matter how extensive or prolonged, are shrouded
with utmost secrecy to afford law enforcers the
advantage of surprise and effect the arrest of
those who would be charged. Otherwise, the
indiscreet conduct of the investigation would be
nothing short of a well-publicized announcement
to the perpetrators of the imminent filing of
charges against them. And having been
forewarned, every effort to sabotage the
investigation may be resorted to by its intended
objects. But if private respondent's attempt to
show Rodriguez' intent to evade the law at the
time he left the United States has any legal
consequence at all, it will be nothing more than
proof that even private respondent accepts that
intent to evade the law is a material element in
the definition of a fugitive.
"The circumstantial fact that it was seventeen
(17) days after Rodriguez' departure that charges
against him were filed cannot overturn the
presumption of good faith in his favor. The same
suggests nothing more than the sequence of
events which transpired. A subjective fact as that
of petitioner's purpose cannot be inferred from
the objective data at hand in the absence of
further proof to substantiate such claim. In fact,
the evidence of petitioner Rodriguez sufficiently
proves that his compulsion to return to the
Philippines was due to his desire to join and
participate vigorously in the political campaigns
against former President Ferdinand E. Marcos.
For indeed, not long after petitioner's arrival in
the country, the upheaval wrought by the political
forces and the avalanche of events which
occurred resulted in one of the more colorful
events in Philippine history. The EDSA Revolution
led to the ouster of former Pres. Marcos and
precipitated changes in the political climate. And
being a figure in these developments, petitioner
Rodriguez began serving his home province as
OIC-Board Member of the Sangguniang
Panlalawigan ng Quezon in 1986. Then, he was
elected Governor in 1988 and continues to be
involved in politics in the same capacity as re-
elected Governor in 1992 and the disputed re-
election in 1995. Altogether, these landmark
dates hem in for petitioner a period of relentless,
intensive and extensive activity of varied political
campaigns — first against the Marcos
government, then for the governorship. And
serving the people of Quezon province as such,
the position entails absolute dedication of one's
time to the demands of the office.
"Having established petitioner's lack of knowledge
of the charges to be filed against him at the time
he left the United States, it becomes immaterial
under such construction to determine the exact
time when he was made aware thereof. While the
law, as interpreted by the Supreme Court, does
not countenance flight from justice in the instance
that a person flees the jurisdiction of another
state after charges against him or a warrant for
his arrest was issued or even in view of the
imminent filing and issuance of the same,
petitioner's plight is altogether a different
situation. When, in good faith, a person leaves
the territory of a state not his own, homeward
bound, and learns subsequently of charges filed
against him while in the relative peace and
service of his own country, the fact that he does
not subject himself to the jurisdiction of the
former state does not qualify him outright as a
fugitive from justice.
"The severity of the law construed in the manner
as to require of a person that he subject himself
to the jurisdiction of another state while already in
his country or else be disqualified from office, is
more apparent when applied in petitioner's case.
The criminal process of the United States extends
only within its territorial jurisdiction. That
petitioner has already left said country when the
latter sought to subject him to its criminal process
is hardly petitioner's fault. In the absence of an
intent to evade the laws of the United States,
petitioner had every right to depart therefrom at
the precise time that he did and to return to the
Philippines. No justifiable reason existed to curtail
or fetter petitioner's exercise of his right to leave
the United State and return home. Hence,
sustaining the contrary proposition would be to
unduly burden and punish petitioner for
exercising a right as he cannot be faulted for the
circumstances that brought him within Philippine
territory at the time he was sought to be placed
under arrest and to answer for charges filed
against him.
"Granting, as the evidence warrants, that
petitioner Rodriguez came to know of the charges
only later, and under his circumstances, is there a
law that requires petitioner to travel to the United
States and subject himself to the monetary
burden and tedious process of defending himself
before the country's courts?
"It must be noted that moral uprightness is not a
standard too far-reaching as to demand of
political candidate the performance of duties and
obligations that are supererogatory in nature. We
do not dispute that an alleged 'fugitive from
justice' must perform acts in order not to be so
categorized. Clearly, a person who is aware of
the imminent filing of charges against him or of
the same already filed in connection with acts he
committed in the jurisdiction of a particular state,
is under an obligation not to flee said place of
commission. However, as in petitioner's case, his
departure from the United States may not place
him under a similar obligation. His subsequent
knowledge while in the Philippines and non-
submission to the jurisdiction of the former
country does not operate to label petitioner
automatically a fugitive from justice. As he was a
public officer appointed and elected immediately
after his return to the country, petitioner
Rodriguez had every reason to devote utmost
priority to the service of his office. He could not
have gone back to the United States in the middle
of his term nor could he have traveled
intermittently thereto without jeopardizing the
interest of the public he serves. To require that of
petitioner would be to put him in a paradoxical
quandary where he is compelled to violate the
very functions of his office."
However, Marquez and the COMELEC (in its
"COMMISSION'S EVALUATION" as earlier quoted)
seem to urge the Court to re-define "fugitive from
justice." They espouse the broader concept of the
term as culled from foreign authorities (mainly of
U.S. vintage) cited in the MARQUEZ Decision
itself, i.e., that one becomes a "fugitive from
justice" by the mere fact that he leaves the
jurisdiction where a charge is pending against
him, regardless of whether or not the charge has
already been filed at the time of his flight.
Suffice it to say that the "law of the case" doctrine
forbids the Court to craft an expanded re-
definition of "fugitive from justice" (which is at
variance with the MARQUEZ Decision) and
proceed therefrom in resolving the instant
petition. The various definitions of that doctrine
have been laid down in People v. Pinuila, 103 Phil.
992, 999, to wit:
"'Law of the case' has been defined as the opinion
delivered on a former appeal. More specifically, it
means that whatever is once irrevocably
established as the controlling legal rule of
decision between the same parties in the same
case continues to be the law of the case, whether
correct on general principles or not, so long as the
facts on which such decision was predicated
continue to be the facts of the case before the
court." (21 C.J.S. 330)
"It may be stated as a rule of general application
that, where the evidence on a second or
succeeding appeal is substantially the same as
that on the first or preceding appeal, all matters,
questions, points, or issues adjudicated on the
prior appeal are the law of the case on all
subsequent appeals and will not be considered or
readjudicated therein." (5 C.J.S. 1267)
"In accordance with the general rule stated in
Section 1821, where, after a definite
determination, the court has remanded the cause
for further action below, it will refuse to examine
question other than those arising subsequently to
such determination and remand, or other than the
propriety of the compliance with its mandate; and
if the court below has proceeded in substantial
conformity to the directions of the appellate court,
its action will not be questioned on a second
appeal.
"As a general rule a decision on a prior appeal of
the same case is held to be the law of the case
whether that decision is right or wrong, the
remedy of the party deeming himself aggrieved
being to seek a rehearing." (5 C.J.S. 1276-77).
"Questions necessarily involved in the decision on
a former appeal will be regarded as the law of the
case on a subsequent appeal, although the
questions are not expressly treated in the opinion
of the court, as the presumption is that all the
facts in the case bearing on the point decided
have received due consideration whether all or
none of them are mentioned in the opinion." (5
C.J.S. 1286-87).
To elaborate, the same parties (Rodriguez and
Marquez) and issue (whether or not Rodriguez is a
"fugitive from justice") are involved in the
MARQUEZ Decision and the instant petition. The
MARQUEZ Decision was an appeal from EPC No.
92-28 (the Marquez' quo warranto petition before
the COMELEC). The instant petition is also an
appeal from EPC No. 92-28 although the COMELEC
resolved the latter jointly with SPA No. 95-089
(Marquez' petition for the disqualification of
Rodriguez). Therefore, what was irrevocably
established as the controlling legal rule in the
MARQUEZ Decision must govern the instant
petition. And we specifically refer to the concept
of "fugitive from justice" as defined in the main
opinion in the MARQUEZ Decision which highlights
the significance of an intent to evade but which
Marquez and the COMELEC, with their proposed
expanded definition, seem to trivialize.
Besides, to re-define "fugitive from justice" would
only foment instability in our jurisprudence when
hardly has the ink dried in the MARQUEZ Decision.
To summarize, the term "fugitive from justice" as
a ground for the disqualification or ineligibility of a
person seeking to run for any elective local
position under Section 40(e) of the Local
Government Code, should be understood
according to the definition given in the MARQUEZ
Decision, to wit:
"A 'fugitive from justice' includes not only those
who flee after conviction to avoid punishment but
likewise those who, after being charged, flee to
avoid prosecution." (Italics ours.)"
Intent to evade on the part of a candidate must
therefore be established by proof that there has
already been a conviction or at least, a charge
has already been filed, at the time of flight. Not
being a "fugitive from justice" under this
definition, Rodriguez cannot be denied the
Quezon Province gubernatorial post.
WHEREFORE, in view of the foregoing, the
instant petition is hereby GRANTED and the
assailed Resolutions of the COMELEC dated May
7, 1995 (Consolidated Resolution), May 11, 1995
(Resolution suspending Rodriguez' proclamation)
and June 23, 1995 (Resolution nullifying
Rodriguez' proclamation and ordering the Quezon
Province Provincial Board of Canvassers to explain
why they should not be cited in contempt) are
SET ASIDE.
SO ORDERED.
Romero, Melo, Puno, Kapunan, Hermosisima, Jr.,
and Panganiban, JJ., concur.
Torres, Jr., J., concurs in a separate opinion.
Vitug, J., dissents.
Bellosillo, J., on leave.
243 SCRA 538, 542.
COMELEC Consolidated Resolution, Rollo, pp. 95-
96.
Rollo, p. 164.
Rollo, p. 476.
VITUG, J., dissenting opinion:
Let me not, in writing this dissenting opinion, be
so misunderstood as stating that I am opposed to
the doctrine of stare decisis et non quieta movere
or to the consequences of the rule on the "law of
the case," let alone to create, to borrow the
phrase used by the majority, "instability in our
jurisprudence." But what I would really dread is
when I might, wittingly or unwittingly,
misconceive the pronouncements made by the
Court or, worse, be completely out of context
therefrom. I should also like to point out that the
dissent in no way necessarily implies an
acceptance on the sapience of the law here in
question; I realize that the Court has no
prerogative to either sustain or reject a law on
that basis alone.
I find it helpful to first narrate the antecedents of
the case now before us.
For some time now, Eduardo Rodriguez and
Bienvenido Marquez, Jr., have been at
loggerheads on the issue of whether or not
Rodriguez is a "fugitive from justice" and thereby
disqualified under the law to run for, or to hold on
to, an elective local office. The contenders have
for the fourth time pleaded for the intervention of
this Court.
This time, in a special civil action for certiorari,
with a prayer for the issuance of a writ of
preliminary mandatory/prohibitory injunction,
Rodriguez seeks the annulment of the 07th and
11th May 1995 resolutions (infra) of the
Commission on Elections ("COMELEC"). There
being other matters that have come up during the
pendency of this petition, Rodriguez has now also
moved for the admission of his supplemental
petition and a second supplemental petition to
call attention to certain developments, including a
23rd June 1995 resolution of the COMELEC which
he now likewise assails.
The various settings that led to the promulgation
by the COMELEC of its assailed resolutions might
be condensed thusly:
Rodriguez, the proclaimed Governor of Quezon
Province after the May 1992 elections, was named
respondent by Marquez, a defeated candidate for
the same post, in a quo warranto petition,
docketed EPC No. 92-28 (hereinafter so referred
to as the quo warranto case), instituted before the
COMELEC. Rodriguez was said to be a fugitive
from justice and thereby disqualified under
Section 40(e) of the Local Government Code from
holding on to the elective local office. The
COMELEC dismissed the petition for quo warranto
on the ground that petitioner had not been
convicted by final judgment. Private respondent
thereupon filed a petition for certiorari with this
Court (docketed G.R. No. 112889).
On 15 March 1995 (while G.R. No. 112889 was
still then pending consideration by the Court),
Marquez and Rodriguez filed their respective
certificates of candidacy, this time for the May
1995 elections, for the governorship of Quezon.
Upon learning of the re-election bid of Rodriguez,
Marquez lost no time in filing (on 11 April 1995)
with the COMELEC a petition to disqualify
Rodriguez and for the cancellation of the latter's
certificate of candidacy. Docketed SPA No. 95-
089 (hereinafter so referred to as the
disqualification case), the petition was assigned to
the Second Division of the COMELEC. Marquez
disclosed to the COMELEC the pendency of G.R.
No. 112889 but explained that the two cases were
different in that G.R. No. 112889 had sought to
oust petitioner from office for the term 1992-1995
while SPA No. 95-089 was aimed at disqualifying
petitioner from running for a new term (1995-
1998). Rodriguez was summoned by the Second
Division of the COMELEC and required to file his
answer to the petition. The disqualification case
was set for hearing on 25 April 1995.
Meanwhile, on 18 April 1995, this Court rendered
a decision in G.R. No. 112889 reversing and
setting aside the resolution of the COMELEC which
dismissed the petition for quo warranto and
directed the COMELEC "to proceed and resolve
the case with dispatch." On even date, Rodriguez
filed with this Court in G.R. No. 112889 an "Urgent
Manifestation and Motion" for the dismissal G.R.
No. 112889 asseverating that the filing of SPA No.
95-089 meant forum-shopping on the part of
Marquez.
Unaware (presumably) of the 18th April 1995
decision of this Court, Rodriguez filed, on 21 April
1995, with the COMELEC (Second Division) in the
disqualification case (SPA No. 95-089) a "Motion
to Nullify Summons and to Reconsider Notice of
Hearing" praying for the dismissal of the case in
view of the pendency with this Court of G.R. No.
112889. He filed an "Answer Ex-Abundante
Cautela" claiming, among other things, that he
was already in the Philippines at the time the
complaint was filed against him in Los Angeles,
California. In three separate pleadings, Rodriguez
insisted on the nullification of the summons, the
reconsideration of the notice of hearing and the
dismissal of SPA No. 95-089.
The scheduled 25th April 1995 hearing on the
disqualification case was re-set to 26 April 1995.
Still claiming to be in cognizant of this Court's
decision in G.R. No. 112889, Rodriguez filed, on
25 April 1995, an urgent motion for the issuance
of a writ of preliminary injunction to restrain the
COMELEC from hearing SPA No. 95-089, arguing
that, since SPA No. 95-089 was also based on the
facts as those that related to G.R. No. 112889, its
filing constituted forum-shopping and could pre-
empt G.R. No. 112889. The hearing on the
disqualification case (SPA No. 95-089), re-
scheduled for 26 April 1995 by the Second
Division of the COMELEC, went through.
Rodriguez moved to suspend the proceedings so
citing, as the ground therefor, his urgent motion
for preliminary injunction in G.R. No. 112889. The
COMELEC (Second Division), however, denied his
motion, as well as his subsequent motion for time
to file a motion for reconsideration, because of
the proximity of the elections. Failing to have the
proceedings held in abeyance, Rodriguez walked
out of the hearing. Marquez then submitted and
offered in evidence the authenticated copies of
the felony complaint and warrant of arrest against
Rodriguez issued on 12 November 1985, by the
Municipal Court of Los Angeles Judicial District,
County of Los Angeles, State of California, U.S.A.,
and some other records of said court.
On 27 April 1995, it might be mentioned
parenthetically, Rodriguez moved for the
reconsideration of this Court's decision of 18 April
1995 in G.R. No. 112889.
It was now the turn of Rodriguez to file with this
Court a petition for certiorari, prohibition, and
mandamus. The petition, entitled "Eduardo T.
Rodriguez vs. Commission on Elections, et al.,"
and docketed G.R. No. 119807, asked the Court to
enjoin the COMELEC from proceeding with SPA
No. 95-089. The petition was dismissed by the
Court, in its 04 May 1995 minute resolution, since
it found no grave abuse of discretion on the part
of the COMELEC.
Meanwhile, in G.R. No. 112889, Rodriguez filed an
"Urgent Motion to Admit Additional Argument in
Support of the Motion for Reconsideration"
attaching thereto a certification from the
Commission on Immigration purporting to show
that he had left the United States on 25 June 1985
before the felony complaint against him was
instituted before the Los Angeles court. The
following day, or on 03 May 1995, he also filed
with the COMELEC (Second Division), a "Motion to
Admit Position Paper Ex Abundante Cautela
Showing that Respondent is Not a Fugitive from
justice As Defined in the Supreme Court Decision
of April 18, 1995 in G.R. No. 112889," arguing that
the decision in G.R. No. 112889 would not apply
to him because he arrived in the Philippines five
(5) months before the filing of the felony charges
against him. The COMELEC (Second Division), in
its 06 May 1995 resolution, denied the motion.
On 07 May 1995, or one day before the scheduled
1995 elections, the COMELEC promulgated its first
assailed consolidated resolution in EPC No. 92-28
and SPA No. 95-089 which read:
"WHEREFORE, considering that respondent
(Eduardo Rodriguez) has been proven to be
fugitive from justice, he is hereby ordered
disqualified or ineligible from assuming and
performing the functions of Governor of Quezon
Province. Respondent is ordered to immediately
vacate said office. Further, he is hereby
disqualified from running for Governor for Quezon
Province in the May 8, 1995 elections. Lastly, his
certificate of candidacy for the May 8, 1995
elections is hereby set aside." (Italics supplied)
On 10 and 11 May 1995, Marquez filed urgent
motions to suspend the proclamation of
Rodriguez. The COMELEC favorably acted on the
motions as it so issued, on 11 May 1995, a
resolution where it ruled to suspend, among other
candidates, the proclamation of Rodriguez who
was ordered disqualified in SPA No. 95-089.
Notwithstanding the 11th May 1995 resolution,
however, Rodriguez, who would appear to have
garnered 285,202 votes, was proclaimed winner
on 12 May 1995 by the Provincial Board of
Canvassers of Quezon. On 22 May 1995, Marquez
went to the COMELEC and filed in SPA No. 95-089
and EPC No. 92-28 an "Omnibus Motion to Annul
the Proclamation of Rodriguez, to Proclaim
Marquez and to cite the Provincial Board of
Canvassers in Contempt."
On 16 May 1995, Rodriguez filed the present
petition for certiorari captioned: "For: REVIEW OF
EPC No. 92-28 and SPA No. 95-089 of the
Commission on Elections and for NULLIFICATION
OF COMELEC Resolution dated 11 May 1995 with
a prayer for the issuance of a WRIT OF
PRELIMINARY MANDATORY/PROHIBITORY
INJUNCTION." an urgent motion to admit a
supplemental petition was filed on 18 May 1995
by petitioner stating that he had been furnished
with a copy of a certificate of canvass of votes
and of his proclamation by the Provincial Board of
Canvassers. On 29 May 1995, Rodriguez
thereupon renewed his prayer, through a motion,
for the issuance of a temporary restraining order
and to declare the COMELEC and Marquez in
contempt of court.
Back to the omnibus motion of Marquez in SPA
No. 95-089 and EPC No. 92-28, the COMELEC, in
its 23rd June 1995 resolution, annulled and set
aside the proclamation of Rodriguez for being null
and void ab initio. It also gave the Vice-Chairman
and Member-Secretary of the Provincial Board of
Canvassers of Quezon Province ten (10) days
within which to explain why they should not be
cited in contempt for disobedience or resistance
to the lawful order of the COMELEC particularly its
"order to suspend proclamation." On the motion
seeking the proclamation of Marquez, the
COMELEC chose to have the matter considered by
it only "once the Supreme Court (would have)
resolved the case of Eduardo T. Rodriguez v.
COMELEC (in), G.R. No. 120099" (the instant
petition). This action by the COMELEC prompted
Rodriguez to file his motion to admit a second
supplemental petition in order to include the 23rd
June 1995 resolution, in addition to the 07th and
11th May resolutions, of the COMELEC, among the
disputed issuances.
Petitioner submits several reasons for the
allowance and grant of his petition.
Rodriguez contends that the COMELEC should not
have entertained the disqualification case (SPA
No. 95-089) for being an act of ‘forum-shopping’
on the part of Marquez. Clearly, there is no merit
in this submission. The general statement of the
prohibition against forum-shopping is that a party
should not be allowed to pursue on the same
subject matter simultaneous remedies in two or
more different fora that can tend to degrade the
administration of justice by thusly trifling with the
courts and abusing their processes. Forum-
shopping exists where the actions are of the same
nature and involve identical transactions,
circumstances, and issues between the same
parties. While there is identity in many respects
between SPA No. 95-089 and EPC No. 92-28, the
two cases, however, greatly differ in their main
aspects. EPC No. 92-28 (subject case of G.R. No.
112889) is a quo warranto case and involves
petitioner's gubernatorial incumbency for the
term 1992-1995 while SPA No. 95-089 is a
disqualification case involving his candidacy for
the 1995 local elections.
Rodriguez argues that should Section 40(e) of the
Local Government Code of 1991 be applied to
him, it would partake the nature of an ex post
facto law or a bill of attainder. These terms have
settled meanings in criminal law jurisprudence
that clearly have no relevance to the case before
us. Besides, the Local Government Code took
effect on 01 January 1992, and thus its application
to Rodriguez in his gubernatorial incumbency that
started in mid-1992 and his candidacy for the
1995 elections cannot be deemed to be
retrospective in character.
Petitioner claims that the COMELEC did not have
jurisdiction to issue the questioned resolution on
the eve of the election because the Omnibus
Election Code requires that final decisions in
disqualification cases should be rendered not later
than seven (7) days before the election. Section
72 of the Omnibus Election Code, that petitioner
refers to, provides:
"SEC. 72. Effects of disqualification cases and
priority. — The Commission and the courts shall
give priority to cases of disqualification by
reason of violation of this Act to the end that
a final decision shall be rendered not later than
seven days before the election in which the
disqualification is sought." (Italics supplied).
The instant case calls for the governance not of
the Omnibus Election Code but of the Local
Government Code (specifically Section 40[e]
thereof). In any case, the "seven days" stated in
the law, being evidently intended for
administrative feasibility, should be construed as
a mere directory, rather than as a mandatory,
provision of the Omnibus Election Code. A
provision should be deemed to be directory only
when to have it enforced strictly may cause more
harm than by disregarding it.
The next question posed was whether or not the
COMELEC gravely abused its discretion when, in
the scheduled hearing of 26 April 1995, it refused
to grant the motion of Rodriguez for a suspension
of hearing. Far from it, the denial by COMELEC
would appear to have been both prudent and
legally warranted. The motion was grounded on
the pendency of G.R. No. 112889 (the quo
warranto case), whereas, the 26th April 1995
hearing related to the disqualification case (SPA
95-089) for the 1995 election that undoubtedly
had to be resolved quickly. The COMELEC hardly
had any choice but to proceed with the hearing
and, when Rodriguez thereupon walked out,
Marquez was naturally allowed to present his
evidence ex-parte. Perhaps realizing that the
COMELEC had acted correctly, petitioner would
question the holding of the 26th April 1995
hearing by only one member (Commissioner
Teresita Flores) of the Second Division. Not only
was this matter not timely brought up before the
COMELEC, but that there would appear to be no
problem in the delegation by the COMELEC of the
mere reception of evidence to any one of its
members. All the assailed resolutions of
COMELEC would indicate that the required
concurrence of the Commissioners was given.
The subsequent consolidation of the quo warranto
case with that of the disqualification case
(following our 18th April 1995 decision remanding
the case to COMELEC), and the promulgation of
the 07th May 1995 consolidated resolution, would
also seem to be in conformity with Rule 3, Section
9, of the COMELEC Rules of Procedure, which
reads:
"Sec. 9. Consolidation of cases. — When an
action or proceeding involves a question of law
and fact which is similar to or common with that
of another action or proceeding, the same may be
consolidated with the action or proceeding
bearing the lower docket number."
Moreover, a further hearing on the quo warranto
case so involving, as it does, petitioner's now
expired incumbency, would be unnecessary and a
futile effort.
The pivotal issue then is whether or not petitioner
falls under the term "fugitive from justice" but,
unlike its precursor case in G.R. No. 112889 which
has been confined to the question of whether or
not a conviction by final judgment of a person at
large is essential before he can be considered a
"fugitive from justice," this time, however, the
Court is asked to pass upon petitioner's assertion
that he cannot be considered a "fugitive from
justice" since he already has been in the
Philippines months prior to the filing of the
charges against him before the United States
court in November 1985. He cites a certification
from the Commission of Immigration of his arrival
in the country on 25 June 1985.
The Solicitor-General, on his part, maintains that
the evidence presented by Marquez is still
wanting. He states that the evidence thus far
submitted would only show —
"(1) that ten (10) charges of presenting
fraudulent insurance claims, grand theft of
personal property, and attempted grand theft of
personal property were filed against petitioner
before the Municipal Court of the County of Los
Angeles, State of California, U.S.A., in November,
1985;
"(2) that on November 12, 1985, a warrant
of arrest was issued against petitioner; and
"(3) that petitioner's wife, Imelda Gener
Rodriguez, was arrested for the same charges on
November 6, 1985."
which, collectively, would appear to be "too
insubstantial" and inadequate to establish that
Rodriguez has, in fact, fled to avoid prosecution.
He opines that -
"x x x The COMELEC can not simply ignore the
fact that the then Bureau of Immigration had
issued a certification that on June 25, 1985,
petitioner returned to the Philippines from the
United States. This certification is already on
record, having been submitted by petitioner ex
abundante cautela following COMELEC's refusal to
consider the same because of petitioner's walkout
from the hearing on April 26, 1995. According to
the election results, petitioner won over private
respondent by a majority of 140,000 votes more
or less. This manifestation of the People's will can
not just be ignored without conducting a thorough
hearing to determine whether the person they
had overwhelmingly voted for is really disqualified
from presenting himself to them for election."
I thus perceive the Solicitor General as now also
saying that an intention to evade punishment or
prosecution is an element of the term "fugitive
from justice."
Verily, there is a dearth of authorities on the
proper and legal connotation of the phrase
"fugitive from justice." Neither the law (Republic
Act No. 7160, also known as the Local
Government Code) here in question nor the
deliberations in Congress give much clue to the
legislative intent. The phrase has been used in
various contexts although it is in extradition cases
where it appears to have acquired a prevalent
usage. One leading situation was that of Roberts
vs. Reilly, decided by the United States Supreme
Court, which involved the application of Article 4,
Section 2, of the United States Constitution and
Section 5278 of the Revised Statutes of the
United States implementing the Constitutional
provision. William Roberts was indicted for grand
larceny in the first degree in the State of New
York. He was subsequently held in the State of
Georgia by Philip Reilly, who claimed to be an
agent of the State of New York and acting by
virtue of an executive warrant issued by the
Governor of Georgia on a requisition from the
Governor of New York, reciting that Roberts had
been indicted in the State of New York and was a
fugitive from justice of the latter State. In
considering the specific question on whether or
not the person demanded was a fugitive from
justice, the tribunal held:
"To be (regarded) a fugitive from justice, x x x, it
is not necessary that the party charged should
have left the State in which the crime is alleged to
have been committed, after an indictment found,
or for the purpose of avoiding a prosecution
anticipated or begun, but simply that, having
within a State committed that which by its laws
constitutes a crime, when he is sought to be
subjected to its criminal process to answer for his
offense, he has left its jurisdiction and is found
within the territory of another."
The ruling was repeated in Appleyard v.
Massachusetts, itself to be later reiterated in a
number of other cases, where Arthur Appleyard
was indicted for the crime of grand larceny, first
degree, alleged to have been committed in the
county of Erie, New York. Although a warrant for
his arrest was issued, Appleyard was not
apprehended because he had moved out from
that State. He was eventually arrested by virtue
of a warrant issued by the Governor of
Massachusetts. Appleyard then applied for a writ
of habeas corpus to the supreme judicial council
of Massachusetts which, after hearing, denied the
application. He, again, applied to the Circuit
Court of the United States for a writ of habeas
corpus which effort likewise proved futile.
Appleyard interposed an appeal to the U.S.
Supreme Court. He restated his previous
contention before the lower courts that he could
not be deemed to be a fugitive from justice
because he was unaware when leaving New
York that he had at any time violated its
criminal laws. That Court held:
"x x x This contention cannot be sustained;
indeed, it could not be sustained without
materially impairing the efficacy of the
constitutional and statutory provisions relating to
fugitives from justice. An alleged fugitive may
believe that he has not committed any crime
against the laws of the state in which he is
indicted, and yet, according to the laws of such
state, as administered by its judicial tribunals, he
may have done so, and his belief or want of belief
may be without foundation in law. It is the
province of the courts of New York to declare
what its laws are, and to determine whether
particular acts on the part of an alleged offender
constitute a crime under such laws. The
constitutional provision that a person charged
with crime against the laws of a state, and who
flees from its justice, must be delivered up on
proper demand, is sufficiently comprehensive to
embrace any offense, whatever its nature, which
the state, consistently with the Constitution and
laws of the United States, may have made a crime
against its laws. Kentucky v. Dennison, 24 How.
66, 69, 16 L. ed. 717; Ex parte Reggel, 114 U.S.
642, 650, 29 L. ed. 250, 252, 5 Sup. Ct. Rep.
1148. So that the simple inquiry must be
whether the person whose surrender is
demanded is in fact a fugitive from justice,
not whether he consciously fled from justice
in order to avoid prosecution for the crime
with which he is charged by the demanding
state. A person charged by indictment or by
affidavit before a magistrate with the
commission within a state of a crime
covered by its laws, and who, after the date
of the commission of such crime, leaves the
state, — no matter for what purpose or with
what motive, nor under what belief, —
becomes, from the time of such leaving, and
within the meaning of the Constitution and
the laws of the United States, a fugitive
from justice, x x x"
Most U.S. State courts would appear to be
similarly minded.
The rulings heretofore cited cannot be here
controlling, of course, and divergent views can
still be expressed on the precise import of the
phrase "fugitive from justice." It is evident enough
though, in my view, that Congress, not having
provided otherwise, must have intended the
ordinary connotation of the term to prevail. So
taken, it might be understood as referring to one
who, having committed or being accused of
having committed a crime in one jurisdiction,
cannot be found therein or is absent for any
reason from that jurisdiction that thereby
forestalls criminal justice from taking its due
course. The issue is largely a factual matter and
in that determination, the motive or reason for his
plight need not be inquired into. Animus fugere
may be significant but it is not essential and what
matters is not why he leaves but the fact that he
leaves, for it should not be unreasonable to
assume that he was not unaware of his own prior
deeds or misdeeds. As so conceptualized, the
import of the term is more congruent than variant
with what has heretofore been essayed to be, in
fact, its common usage. Indeed, unlike the U.S.
courts which are yet detained by the conditions
expressed in both their fundamental and statutory
laws, the pertinent provision of our own Local
Government Code contains no further
circumscription other than by its bare and simple
mandate that a "fugitive from justice in criminal
or non-political cases here or abroad" shall be
"disqualified from running for any elective local
position." The law has provided no further
provisos and no saving clauses. When there is no
obscurity or ambiguity in an enabling law, it must,
we have said in the related case of Marquez vs.
Comelec, be merely made to apply as it is so
written. This Court is not at liberty either to
question the wisdom of the law, let alone to
detract from it, or to itself legislate material
parameters when there are none that statutorily
exist.
I now come to the final question of whether or not
substantial evidence has been adduced to support
the factual findings of the COMELEC and,
corollarily, whether or not petitioner has been
duly accorded full opportunity to present before
the COMELEC his own evidence to disprove the
assertions of private respondent.
It may be recalled that, following the denial of the
motion of Rodriguez to postpone the scheduled
26th April 1995 hearing, the COMELEC continued,
because of the proximity of the May 1995
elections, with its reception of the evidence
(despite the walk-out thereupon staged by
Rodriguez and his counsel). Duly received in
evidence included an authenticated copy of the
warrant of arrest, dated 12 November 1985, on
respondent (Exh. A-2) issued by the Municipal
Court of the County of Los Angeles, State of
California, U.S.A., in connection with a criminal
complaint filed against him in Criminal Case No.
A774567, entitled "People of the State vs. Imelda
O. Rodriguez and Eduardo T. Rodriguez for the
crimes of presenting Fraudulent Insurance Claims,
Grand Theft of Personal Property and Attempted
Grand Theft of Personal Property," and an
authenticated copy of the felony complaint (Exh.
A-10 to A-15 inclusive), showing that the
respondent was charged criminally on ten (10)
counts. Concluding on the documentary evidence
adduced before it, the COMELEC said:
"The authenticated documents submitted by
petitioner to show the pendency of a criminal
complaint against the respondent in the Municipal
Court of Los Angeles, California, U.S.A., and the
fact that there is an outstanding warrant against
him amply proves petitioner's contention that the
respondent is a fugitive from justice."
The petitioner and his counsel walked out from
the proceedings. Certainly, the thesis that
petitioner was denied due process would be
totally unacceptable; he himself brushed it aside.
But while there might be no sympathy for his
action that ordinarily should have prevented him
from any further opportunity, the Court,
nevertheless, aptly recognized that the
controversy was solely not between the private
parties herein, but one imbued with public
interest, involving no less than the highest office
in the province of Quezon and so, inevitably, a
concern also of its people. Accordingly, the Court,
besides having set the case for the reception of
oral argument on 13 July 1995, likewise passed,
on 24 October 1995, the following resolution; thus
—
"Deliberating on the special civil action for
certiorari with prayer for preliminary injunction
and restraining order, along with the comment
thereon filed by the Solicitor General, as well as
the other subsequent pleadings submitted by the
parties in support of their respective submissions,
and considering, further, the oral arguments of
the parties during the 13th July 1995 hearing of
this case, the Court RESOLVED to DIRECT the
Chairman of the Commission on Elections
('COMELEC') to designate a Commissioner or a
ranking official of the COMELEC to RECEIVE AND
EVALUATE such legally admissible evidence as
herein petitioner Eduardo Rodriguez may be
minded to present by way of refuting the
evidence heretofore submitted by private
respondent Bienvenido Marquez, Sr., or that
which can tend to establish petitioner's contention
that he does not fall within the legal concept of a
'fugitive from justice.' Private respondent Marquez
may likewise, if he so desires, introduce additional
and admissible evidence in support of his own
position. The provisions of Sections 3 to 10, Rule
33, of the Rules of Court may be applied in the
reception of the evidence. The Chairman of the
COMELEC shall have the proceedings completed
and the corresponding report submitted to this
Court within thirty (30) days from notice hereof."
While it may generally be said that the possible
outcome or truth of an indictment need not
necessarily be an issue in ascertaining whether or
not one is a fugitive from justice, when, however,
the accusation is lodged with and an arrest is
ordered by a foreign court or agency we might
also assure ourselves as a matter of principle
that, in the process of sanctioning in effect an act
of a foreign government, we do not thereby
abandon our own basic sense of equity and fair
play. There cannot thus be any serious doubt
that, when assailed or in doubt, the courts are
free to look into, and receive evidence on, the
legitimacy and regularity of the proceedings in
that foreign jurisdiction.
In the report submitted by the Commission on
Elections, entitled "Evidence of the Parties and
Commission's Evaluation," received by the Court
on 26 December 1995, the matters adduced by
petitioner focused on what had already been
asseverated in his petition, i.e., that he was
already in the Philippines prior to the filing of the
charges against him before the United States
court in November of 1985 and that his return to
the country was not intended to avoid
prosecution. Neither party brought up any
question on the legitimacy and regularity of the
proceedings before the foreign court that led to
the issuance of the warrants of arrest. I quote the
pertinent portions of the report:
"EVIDENCE
"Petitioner Rodriguez presented the following
witnesses:
"1. Atty. Cipriano Farrales
Legal Officer of the Bureau of Immigration and
Deportation
"2. Menardo Manglo
"3. Former Supreme Court Justice Abraham
Sarmiento
"4. Ex-Senator Aquilino Pimentel, Jr.
"5. Ex-Senator Agapito Aquino
"6. Atty. Geronimo Reyes, Jr.
"7. Atty. Roberto Avio
"8. Mr. Heberto Buenafe
"9. Former Senate President Jovito Salonga
"10. Former Secretary of the Department of
Labor and Employment Augusto Sanchez
"11. Mr. Euclides Abcede
and
"12. Eduardo Rodriguez.
"The testimonies of Former Supreme Court Justice
Abraham Sarmiento, former Senator Aquilino
Pimentel, Jr., former Senator Agapito Aquino,
Former Labor Secretary Augusto Sanchez and
former Senator Jovito Salonga collectively
emphasized that petitioner Eduardo Rodriguez
was one of the active participants in the political
movement against the late President Ferdinand E.
Marcos. They went to Hongkong on August 9,
1985 as a group, together with petitioner Eduardo
Rodriguez, in order to meet a political exile, Raul
Daza, who had then a pending warrant of arrest
issued by a Regional Trial Court of Quezon City.
The purpose of the trip was to provide Mr. Raul
Daza, another prominent opposition figure during
the Marcos regime, some form of protective
company during his return to the country on
August 12, 1985. To the political opposition then,
it was a big event that enjoyed media bash
particularly in the August 12, 1985 issue of the
Bulletin Today and in the August 19, 1985 issue of
the Mr. and Ms. Magazine.
"Mr. Geronimo Reyes testified that he knows
petitioner Rodriguez as a co-exile from the Marcos
regime in Los Angeles, USA. Reyes was the
organizer and president of Wilshire Walking Corp.
composed of Filipino residents in Los Angeles.
Petitioner Rodriguez became a member thereof.
Rodriguez returned to the Philippines about July
1985 and returned to Los Angeles in August of the
same year. That was the last time they saw each
other in the US. Either on November 11 or 12,
1985, a certain Johnny Reveche, brother-in-law of
petitioner Rodriguez, called him to the former's
home at Beard Ave., Northridge, California to
discuss the matter of the arrest and detention of
Mrs. Imelda Rodriguez, wife of petitioner
Rodriguez, who had just been bailed out. His
assistance was requested because he had been
practicing law in California. While Mr. Reyes,
Imelda Rodriguez and Mr. Reveche were
discussing the case, Mr. Reveche called Mr. Reyes
to the phone where the latter found out that
Rodriguez was on the other end calling him from
the Philippines. The caller requested Mr. Reyes to
render all the necessary assistance to Mrs.
Rodriguez because petitioner was unable to be
with her as he was then in the Philippines and
deep in the political campaign.
"Atty. Roberto Avio, resident of Macalelon,
Quezon and former chairman of the United
Nationalists Democratic Organization (UNIDO),
Macalelon Chapter, testified that sometime in May
1985, former Mayor Eduardo T. Rodriguez
returned from the United States and sent his
personal driver to witness' residence to inform the
latter that Rodriguez would be meeting him in the
first week of June 1985 at Macalelon, Quezon. In
the meeting held as scheduled, Rodriguez
intimated that he (Rodriguez) was tasked by Ex-
Senator Salonga to reactivate and reorganize the
Liberal Party in the Bondoc Peninsula area.
However, Atty. Avio declined Rodriguez's
invitation to join the reorganization as he was
then already committed to the UNIDO as the local
chairman. Rodriguez requested another meeting
after consulting with other former Liberal Party
stalwarts. Said meeting transpired on the last
week of July 1985 where Rodriguez, made aware
of the improbability of reactivating the Liberal
Party due to the affiliation of most of the party's
former members with the UNIDO, expressed
willingness to join the UNIDO. Rodriguez took his
oath of allegiance on October 1985. Thereafter,
he actively participated in the political campaigns
of the UNIDO candidates in the presidential snap
elections and congressional elections resulting in
his appointment as OIC-Board Member of the
Sangguniang Panlalawigan ng Quezon in 1986
and his election as Provincial Governor of Quezon
in 1988.
"Heberto Buenafe's testimony corroborated these
allegations, specifically stating that sometime in
July and August of 1985, Buenafe had occasion to
meet Rodriguez and that in matters of party
dispute regarding the leadership of the UNIDO in
Lucena City, the latter was often consulted as he
(Rodriguez) was then designated as party
representative of the Liberal Party by Senator
Salonga immediately after his arrival in the
Philippines in May 1985. Likewise, Mr. Euclides
Abcede's testimony attested to the fact that in
line with his activities as an active opposition
campaigner, Abcede met Rodriguez in Macalelon,
Quezon sometime in June 1985.
"Mr. Menardo Manglo is the arrival and departure
verifier of the Bureau of Immigration. He certified
the authenticity of the Bureau of Immigration
Arrival and Departure Reports of June 1985,
August 1985, August 1986, September 1986, July
1987, June 1988, July 1989 and August 1990
(Exhibits 5 to 5-G, inclusive) wherein the name
Eduardo T. Rodriguez appears. On cross-
examination, witness testified that said exhibits
were computer print-outs supplied to the Bureau
of Immigration by the PAL Computer Center.
"Atty. Cipriano Farrales, legal officer of the Bureau
of Immigration, testified that the certification
issued by the Bureau relative to the departure
and arrival of Rodriguez in the Philippines issued
by Commissioner Lopez was genuine and
authentic (Exhibits 1 and 2).
"Herein petitioner Rodriguez' testimony denied
the allegation that he falls within the Supreme
Court's definition of a 'fugitive from justice' which
includes 'those who, after being charged, flee to
avoid prosecution.' Specifically, Rodriguez
averred:
"b) I arrived in the Philippines from the
United States of America on June 25, 1985, 5
months prior the filing of the alleged charges
against me on November 12, 1985. Obviously, I
did not flee from the United States of America to
avoid prosecution. At the time that I left the
United States, there were no charges against me.
No warrant of arrest has been issued against my
person. Under the facts, it could not be said that I
fled from the United States to avoid prosecution x
xx.
"On the query as to whether or not he returned to
the United States between June 25, 1985 and
November 12, 1985, petitioner Rodriguez
responded that he went back twice, viz, on August
14, 1985 and October 7, 1985 (see also passport,
Exhibit 14). He testified that he left Los Angeles
on October 26, 1985 and, as per certification
issued by the Bureau of Immigration (Exhibit 2),
arrived in the Philippines on the same date. From
that time, Rodriguez never returned to Los
Angeles. After the conclusion of the oral
testimonies, the following documentary evidence
were offered by petitioner Rodriguez and were
admitted.
"1. Civil Service Commission Form No. 1, Job
Description of Cipriano Farrales (Exhibit 1)
"2. Certification from the Bureau of Immigration
(Exhibit 2)
"3. Affidavit of Abraham Sarmiento (Exhibit 3 with
Annexes A and B, Bulletin Today and Mr. and Ms.
Magazine news reports)
"4. Affidavit of Aquilino Pimentel, Jr. (Exhibit 4
with Annexes A and B, Bulletin Today and Mr. and
Ms. Magazine news reports)
"5. Arrival and Departure Report of the Bureau of
Immigration (Exhibit 5 to 5-D, inclusive)
"6. Affidavit of Agapito Aquino (Exhibit 6 with
Annexes A and B, Bulletin Today and Mr. and Ms.
Magazine news reports)
"7. Affidavit of Geronimo Reyes, Jr. (Exhibit 7)
"8. Affidavit of Roberto Avio (Exhibit 8)
"9. Affidavit of Heberto Buenafe (Exhibit 9)
"10. Affidavit of Jovito Salonga (Exhibit 10)
"11. Affidavit of Augusto Sanchez (Exhibit
11)
"12. Affidavit of Euclides Abcede (Exhibit
12)
"13. Affidavit of Eduardo T. Rodriguez
(Exhibit 13)
"14. Xerox copy of Rodriguez's passport
(Exhibit 14 with submarkings, 14-A to 14-D,
inclusive)
"Respondent Marquez submitted the following
documentary evidence:
"1. Affidavit of Bienvenido Marquez (Exhibit E)
"2. Affidavit of Mr. Casiano Pasumbal (Exhibit F)
"3. Certificate of Death of Gloria Magayanes
Gener, mother-in-law of petitioner (Exhibit G) with
the alleged signature of Rodriguez as informant
(Exhibit G-1)
"4. Certificate of Death of Imelda Gener
Rodriguez, spouse of petitioner (Exhibit H) with
the alleged signature of Rodriguez as informant
(Exhibit H-1)
"As regards other documentary evidence offered,
the investigation report consisting of Exhibits I to
I-17 and J to J-87 which was sought admission by
respondent Marquez, was excluded by the
presiding Commissioner because of irrelevancy to
the purpose for which it was offered. The
undersigned so ruled due to respondent's failure
to identify the nexus between the documents
sought to be admitted and the inference that in
view of the same, petitioner would have known of
the imminent filing of charges against him."
From the "Discussion" portion of its report, it
would appear to me that the COMELEC, like the
majority of my colleagues, proceeded under the
impression that the Court in G.R. No. 112889 had
considered intent to evade the law to be a
material element in the definition of "fugitive from
justice." The COMELEC understandably thereby
felt compelled to conclude that petitioner, there
being no clear evidence of any intention on his
part to evade the law at the time he left the
United States, was not a fugitive from justice.
However, as heretofore so pointed out, the sole
and basic issue in G.R. No. 112889 was whether
or not a conviction by final judgment of the
person at large was essential before he could be
considered a fugitive from justice. That question
clearly arose when the Oversight Committee
which was convened by the President,
conformably with Section 533 of Republic Act
7160, to formulate the appropriate rules and
regulations necessary for the efficient and
effective implementation of the provisions of the
Local Government Code, came out with its Article
73 that provided:
"Art. 73. Disqualifications. — The following
persons shall be disqualified from running for any
elective local position;
"(a) xxx xxx xxx
"(e) Fugitives from justice in criminal or
non-political cases here or abroad. Fugitive from
justice refers to a person who has been convicted
by final judgment." (Italics supplied.)
The court in G.R. No. 112889 naturally opined that
the above provision "to the extent that it
confine(d) the term fugitive from justice to refer
only to a person (the fugitive) x x x convicted by
final judgment (was) an inordinate and undue
circumscription of the law." The Court had to
likewise concede to the Solicitor General when he
then said that the term "includes not only those
who flee after conviction to avoid punishment but
likewise those who, after being charged, flee to
avoid prosecution" for, certainly, the statement
was not incorrect. But what indeed, could be
perplexing was how it could be possible for the
Court's ruling in G.R. No. 112889 to be so
misconstrued as to supposedly convey any idea of
exclusivity or preclusivity that, to begin with, was
not even considered at the time.
There should be nothing erroneous, in my view,
when COMELEC did ultimately come up with its
own concluding observation that "the mere fact
that there are pending charges in the United
States and that petitioner Rodriguez is in the
Philippines make petitioner a fugitive from
justice."
And so I hold, in resume, as follows: That —
1. The filing with the COMELEC of the
disqualification case in SPA No. 95-089 was not an
act of forum shopping on the part of herein
private respondent Marquez.
2. Section 40(e) of the Local Government Code of
1991 did not partake of an ex post facto law or a
bill of attainder.
3. Section 40(e) of the Local Government Code,
not Section 72 of the Omnibus Election Code,
should govern.
4. The COMELEC did not abuse its discretion in
denying herein petitioner's motion for a
suspension of hearing in SPA Case No. 95-089 and
in allowing herein private respondent to present
his evidence ex-parte, considering its close
proximity to the 1995 elections.
5. In consolidating EPC No. 92-28 (the quo
warranto case) and SPA No. 95-089 (the
disqualification case), the COMELEC acted in
conformity with its Rules of Procedure.
6. Given the factual settings and the
circumstances, I must conclude that petitioner is a
"fugitive from justice" within the intent and
meaning of Section 40(e) of the Local Government
Code of 1991.
WHEREFORE, I vote for the DISMISSAL of the
petition.
The first case was G.R. No. 105310, entitled,
“Bienvenido Marquez, Jr. vs. Eduardo Rodriguez,”
the second case was G.R. No. 112889 entitled,
“Bienvenido Marquez, Jr. v. Eduardo Rodriguez,”
the third case was G.R. No. 119807 entitled,
“Eduardo Rodriguez v. COMELEC, et al.,” and now,
the case at bench, G.R. No. 120099.
In its decision, dated 18 April 1995, the Court
sustained Marquez in contending that conviction
was not a requirement of the disqualifying law
and thereby remanded the case for further
proceedings.
Rodriguez alleged that when SPA No. 95-089 was
called for hearing by the Second Division of the
respondent Commission on 26 April 1995 at two
o’clock in the afternoon, there was no quorum.
Only Commissioner Teresita D.L. Flores was
present. He alleged that since Presiding
Commissioner of the Second Division, Remedios
Salazar-Fernando and Manolo Gorospe were not
present, how was it possible for a single
Commissioner to constitute a quorum for the
transaction of the business of the Second Division.
Rollo, p. 97.
People vs. Court of Appeals, 101 SCRA 450.
Victronics Computers, Inc. vs. Regional Trial
Court, Branch 63, Makati, 217 SCRA 517.
R. Transport Corporation vs. Laguesma, 227 SCRA
826.
To be ex post facto, the law must: (1) refer to
criminal matters; (2) be retroactive in its
application; and (3) to the prejudice of the
accused. (Isagani A. Cruz, Constitutional Law,
1989 ed., p. 244)
A bill of attainder is a legislative fiat that inflicts
punishment without trial (People vs. Carlos, 78
Phil. 535), its essence being the substitution of
legislative fiat for a judicial determination of guilt
(Cruz, supra, pp. 246-247).
See Marcelino vs. Cruz, 121 SCRA 51.
The two other members were Commissioners
Remedios Fernando and Manolo Gorospe.
The Court, in response, said in its decision of 18
April 1995 that conviction was not indispensable,
albeit some reservations expressed by the
ponente.
Rollo, p. 413.
Rollo, p. 466.
Sec. 40. Disqualifications. The following persons
are disqualified from running for any elective local
position:
xxx xxx xxx
(e) Fugitive from justice in criminal or non-
political cases here or abroad(.)
116 U.S. 80, 29 Led. 544.
A person charged in any state with treason,
felony, or other crime, who shall flee from justice
and be found in another state, shall on demand of
the executive authority of the state from which he
fled, be delivered up, to be removed to the state
having jurisdiction of the crime (Art. 4, Sec. 2).
Whenever the executive authority of any state or
territory demands any person as a fugitive from
justice, of the e ecutive authority of any state or
territory to which such person has fled, and
produces a copy of an indictment found or an
affidavit made before a magistrate of any state or
territory, charging the person demanded with
having committed treason, felony, or other crime,
certified as authentic by the governor or chief
magistrate of the state or territory from whence
the person so charged has fled, it shall be the
duty of the executive authority of the state or
territory to which such person has fled to cause
him to be arrested and secured, and to cause
notice of the arrest to be given to the executive
authority making such demand, or to the agent of
such authority appointed to receive the fugitive,
and to cause the fugitive to be delivered to such
agent when he shall appear. (See U.S. Comp. St.
1901, P. 3597).
203 U.S. 222, 51 Led. 161.
Illinois ex rel. McNichols v. Pease, 207 U.S. 100,
52, L. ed. 121; Biddinger v. Police Commissioners,
245 U.S. 128, 62, L ed. 193; Hogan v. O’Neill, 255
U.S. 52, 65 L ed. 497.
The U.S. Supreme Court in Appleyard went
cursorily through a number of such cases
(hereunder re-arranged for convenience) thusly:
“In Kingsbury’s Case, 106 Mass. 223, 227, 228,
the contention of the fugitive from justice was
that, as she went into the demanding state and
returned to her home in the other state before the
alleged crime was known, she could not be
deemed to have fled from justice. But the court
said: ‘The material facts are, that the prisoner is
charged with a crime in the manner prescribed,
and has gone beyond the jurisdiction of the state,
so that there has been no reasonable opportunity
to prosecute him after the facts were known. The
fact in this case, that she returned to her
permanent home, cannot be material . . . It is
sufficient that the crime of larceny has been
properly charged, and that the prisoner is a
fugitive, and a requisition has been properly
made.’
“In State ex. rel. Burner v. Richter, 37 Minn, 436,
438, 35 N.W. 9, the contention was that to
constitute a fugitive from justice a person must
have left the state where the crime was
committed for the purpose of escaping the legal
consequences of his crime. Referring to Roberts
v. Reilly, abovecited, as authoritative and binding,
and as in accordance with is own views, the
Supreme Court of Minnesota well said: ‘The sole
purpose of this statute, and of the constitutional
provision which it was designed to carry into
effect, was to secure the return of persons who
had committed crime within one state, and had
left it before answering the demands of justice.
The important thing is not their purpose in
leaving, but the fact that they had left, and hence
were beyond the reach of the process of the state
where the crime was committed. Whether the
motive for leaving was to escape prosecution or
something else, their return to answer the
charges against them is equally within the spirit
and purpose of the statute; and the simple fact
that they are not within the state to answer its
criminal process, when required, renders them, in
legal intendment, fugitive from justice, regardless
of their purpose in leaving.’
“In re: Voorhees, 32 N.J.L. 141, 150, the Court
said: ‘A person who commits a crime within a
state, and withdraws himself from such
jurisdiction without waiting to abide the
consequences of such act, must be regarded as a
fugitive from the justice of the state whose laws
he has infringed. Any other construction would
not only be inconsistent with good sense and with
the obvious import of the word to be interpreted
in the context in which it stands, but would
likewise destroy, for most practical purposes, the
efficacy of the entire constitutional provision.’
“In ex-parte Swearingen, 13 S.C. 74, 80, the court
held that the terms ‘fugitive from justice’ were
intended to embrace not only a case where a
party, after committing a crime, actually flees, in
the literal sense of that term, from the state
where such crime was committed, but also a case
where a citizen of one state, who, within the
territorial limits of another state, commits a crime,
and then simply returns to his own home. The
object of the Constitution was to enable a state
whose laws had been violated, to secure the
arrest of the person charged with such violation,
even though such person might be beyond the
reach of the ordinary process of such state.
“In Re: Mohr, 73 Ala. 503, 512, 49 Am. Rep. 63,
the court, referring to the words in the
Constitution, ‘who shall flee from justice and be
found in another state,’ said: ‘There is a
difference of opinion as to what must be the exact
nature of this flight on the part of the criminal, but
the better view, perhaps, is that any person is a
fugitive within the purview of the constitution,
‘who goes into a state, commits a crime, and then
returns home.’
“In Hibler v. State, 43 Tex. 197, 201, the court
said: ‘The words fugitive from justice’ as used in
this connection, must not be understood in a
literal sense, but in reference to the subject-
matter, considering the general object of the
Constitution and laws of the United States in
relation thereto. A person who commits a crime
in one state, for which he is indicted and departs
therefrom, and is found in another state, may well
be regarded as a fugitive from justice in the sense
in which it is here used.”
See Black’s Law Dictionary.
See Webster’s Third New International Dictionary.
Sec. 40(e), R.A. No. 7160.
G.R. No. 112889, 18 April 1995.
Rollo, pp. 95-96.
Rollo, pp. 536-537.
Signed by Hon. Teresita Dy-Liacco Flores, writing
for the Commission, concurred in by Hon.
Bernardo P. Pardo, Chairman. Hon. Julio F.
Desamito, Commissioner, Hon. Graduacion A.
Reyes-Claravall, Commissioner, Hon. Manolo B.
Gorospe, Commissioner, and separately
concurred in by Hon. Regalado E. Maambong,
Commissioner, and Hon. Remedios A. Salazar-
Fernando, Commissioner.
Evidence of the Parties and Commission’s
Evaluation, pp. 4-9.
EN BANC
[G.R. No. 120295. June 28, 1996]
JUAN G. FRIVALDO, petitioner, vs. COMMISSION
ON ELECTIONS, and RAUL R. LEE, respondents.
[G.R. No. 123755. June 28, 1996]
RAUL R. LEE, petitioner, vs. COMMISSION ON
ELECTIONS and JUAN G. FRIVALDO, respondents.
DECISION
PANGANIBAN, J.:
The ultimate question posed before this Court in
these twin cases is: Who should be declared the
rightful governor of Sorsogon—
(i) Juan G. Frivaldo, who unquestionably obtained
the highest number of votes in three successive
elections but who was twice declared by this
Court to be disqualified to hold such office due to
his alien citizenship, and who now claims to have
re-assumed his lost Philippine citizenship thru
repatriation;
(ii) Raul R. Lee, who was the second placer in the
canvass, but who claims that the votes cast in
favor of Frivaldo should be considered void; that
the electorate should be deemed to have
intentionally thrown away their ballots; and that
legally, he secured the most number of valid
votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri,
who obviously was not voted directly to the
position of governor, but who according to
prevailing jurisprudence should take over the said
post inasmuch as, by the ineligibility of Frivaldo, a
"permanent vacancy in the contested office has
occurred"?
In ruling for Frivaldo, the Court lays down new
doctrines on repatriation,
clarifies/reiterates/amplifies existing jurisprudence
on citizenship and elections, and upholds the
superiority of substantial justice over pure
legalisms.
G.R. No. 123755.
This is a special civil action under Rules 65 and 58
of the Rules of Court for certiorari and preliminary
injunction to review and annul a Resolution of the
respondent Commission on Elections (Comelec),
First Division,1 promulgated on December
19,19952 and another Resolution of the Comelec
en bane promulgated February 23, 19963 denying
petitioner's motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G.
Frivaldo filed his Certificate of Candidacy for the
office of Governor of Sorsogon in the May 8, 1995
elections. On March 23, 1995, petitioner Raul R.
Lee, another candidate, filed a petition4 with the
Comelec docketed as SPA No. 95-028 praying that
Frivaldo "be disqualified from seeking or holding
any public office or position by reason of not yet
being a citizen of the Philippines," and that his
Certificate of Candidacy be cancelled. On May 1,
1995, the Second Division of the Comelec
promulgated a Resolution5 granting the petition
with the following disposition:6
"WHEREFORE, this Division resolves to GRANT the
petition and declares that respondent is
DISQUALIFIED to run for the Office of Governor of
Sorsogon on the ground that he is NOT a citizen of
the Philippines. Accordingly, respondent's
certificate of candidacy is cancelled."
The Motion for Reconsideration filed by Frivaldo
remained unacted upon until after the May 8,
1995 elections. So, his candidacy continued and
he was voted for during the elections held on said
date. On May 11, 1995, the Comelec en banc7
affirmed the aforementioned Resolution of the
Second Division.
The Provincial Board of Canvassers completed the
canvass of the election returns and a Certificate
of Votes8.dated May 27, 1995 was issued showing
the following votes obtained by the candidates for
the position of Governor of Sorsogon:
Antonio H. Escudero,
Jr. 51,060
Juan G.
Frivaldo
73,440
RaulR.Lee
53,304
Isagani P.
Ocampo
1,925
On June 9, 1995, Lee filed in said SPA No. 95-028,
a (supplemental) petition9 praying for his
proclamation as the duly-elected Governor of
Sorsogon.
In an order10 dated June 21, 1995, but
promulgated according to the petition "only on
June 29, 1995," the Comelec en bane directed
"the Provincial Board of Canvassers of Sorsogon
to reconvene for the purpose of proclaiming
candidate Raul Lee as the winning gubernatorial
candidate in the province of Sorsogon on June
29,1995 x x x." Accordingly, at 8:30 in the
evening of June 30,1995, Lee was proclaimed
governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a
new petition,11 docketed as SPC No. 95-317,
praying for the annulment of the June 30, 1995
proclamation of Lee and for his own proclamation.
He alleged that on June 30, 1995, at 2:00 in the
afternoon, he took his oath of allegiance as a
citizen of the Philippines after "his petition for
repatriation under P.D. 725 which he filed with the
Special Committee on Naturalization in
September 1994 had been granted." As such,
when "the said order (dated June 21, 1995) (of the
Comelec) x x x was released and received by
Frivaldo on June 30, 1995 at 5:30 o'clock in the
evening, there was no more legal impediment to
the proclamation (of Frivaldo) as governor x x x."
In the alternative, he averred that pursuant to the
two cases of Labo vs. Comelec,12 the Vice-
Governor— not Lee — should occupy said position
of governor.
On December 19, 1995, the Comelec First Division
promulgated the herein assailed Resolution13
holding that Lee, "not having garnered the
highest number of votes," was not legally entitled
to be proclaimed as duly-elected governor; and
that Frivaldo, "having garnered the highest
number of votes, and xxx having reacquired his
Filipino citizenship by repatriation on June 30,
1995 under the provisions of Presidential Decree
No. 725 xxx (is) qualified to hold the office of
governor of Sorsogon"; thus:
"PREMISES CONSIDERED, the Commission (First
Division), therefore RESOLVES to GRANT the
Petition.
Consistent with the decisions of the Supreme
Court, the proclamation of Raul R. Lee as
Governor of Sorsogon is hereby ordered annulled,
being contrary to law, he not having garnered the
highest number of votes to warrant his
proclamation.
Upon the finality of the annulment of the
proclamation of Raul R. Lee, the Provincial Board
of Canvassers is directed to immediately
reconvene and, on the basis of the completed
canvass, proclaim petitioner Juan G. Frivaldo as
the duly elected Governor of Sorsogon having
garnered the highest number of votes, and he
having reacquired his Filipino citizenship by
repatriation on June 30,1995 under the provisions
of Presidential Decree No. 725 and, thus, qualified
to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus
Election Code (B.P. Blg. 881), the Clerk of the
Commission is directed to notify His Excellency
the President of the Philippines, and the Secretary
of the Sangguniang Panlalawigan of the Province
of Sorsogon of this resolution immediately upon
the due implementation thereof."
On December 26,1995, Lee filed a motion for
reconsideration which was denied by the Comelec
en banc in its Resolution14 promulgated on
February 23, 1996. On February 26, 1996, the
present petition was filed. Acting on the prayer for
a temporary restraining order, this Court issued
on February 27, 1996 a Resolution which inter alia
directed the parties "to maintain the status quo
prevailing prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand
briefly be capsulized in the following
propositions":15
"First - The initiatory petition below was so far
insufficient in form and substance to warrant the
exercise by the COMELEC of its jurisdiction with
the result that, in effect, the COMELEC acted
without jurisdiction in taking cognizance of and
deciding said petition;
Second- The judicially declared disqualification of
respondent was a continuing condition and
rendered him ineligible to run for, to be elected to
and to hold the Office of Governor;
Third - The alleged repatriation of respondent was
neither valid nor is the effect thereof retroactive
as to cure his ineligibility and qualify him to hold
the Office of Governor; and
Fourth - Correctly read and applied, the Labo
Doctrine fully supports the validity of petitioner's
proclamation as duly elected Governor of
Sorsogon."
G.R. No. 120295
This is a petition to annul three Resolutions of the
respondent Comelec, the first two of which are
also at issue in G.R. No. 123755, as follows:
1. Resolution16 of the Second Division,
promulgated on May 1, 1995, disqualifying
Frivaldo from running for governor of Sorsogon in
the May 8, 1995 elections "on the ground that he
is not a citizen of the Philippines";
2. Resolution17 of the Comelec en bane,
promulgated on May 11, 1995; and
3. Resolution18 of the Comelec en bane,
promulgated also on May 11, 1995 suspending
the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as
those in G.R. No. 123755. However, Frivaldo
assails the above-mentioned resolutions on a
different ground: that under Section 78 of the
Omnibus Election Code, which is reproduced
hereinunder:
"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 the filing of the
certificate of candidacy and shall be decided,
after notice and hearing, not later than fifteen
days before the election." (Italics supplied.)
the Comelec had no jurisdiction to issue said
Resolutions because they were not rendered
"within the period allowed by law," i.e., "not later
than fifteen days before the election."
Otherwise stated, Frivaldo contends that the
failure of the Comelec to act on the petition for
disqualification within the period of fifteen days
prior to the election as provided by law is a
jurisdictional defect which renders the said
Resolutions null and void.
By Resolution on March 12, 1996, the Court
consolidated G.R. Nos. 120295 and 123755 since
they are intimately related in their factual
environment and are identical in the ultimate
question raised, viz., who should occupy the
position of governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral
argument from the parties and required them
thereafter to file simultaneously their respective
memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated
issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal?
If so, did it seasonably cure his lack of citizenship
as to qualify him to be proclaimed and to hold the
Office of Governor? If not, may it be given
retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification
for lack of Filipino citizenship a continuing bar to
his eligibility to run for, be elected to or hold the
governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction
over the initiatory petition in SPC No. 95-317
considering that : said petition is not "a pre-
proclamation case, an election protest or a quo
warranto case"?
4. Was the proclamation of Lee, a runner-up in the
election, valid and legal in light of existing
jurisprudence?
5. Did the respondent Commission on Elections
exceed its jurisdiction in promulgating the
assailed Resolutions, all of which prevented
Frivaldo from assuming the governorship of
Sorsogon, considering that they were not
rendered within ( the period referred to in Section
78 of the Omnibus Election Code, viz., "not later
than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's
repatriation is the lis mota, the threshold legal
issue in this case. All the other matters raised are
secondary to this.
The Local Government Code of 199119 expressly
requires Philippine citizenship as a qualification
for elective local officials, including that of
provincial governor, thus:
"Sec. 39. Qualifications. — (a) An elective local
official must be a citizen of the Philippines; a
registered voter in the barangay, municipality,
city, or province or, in the case of a member of
the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district
where he intends to be elected; a resident therein
for at least one (1) year immediately preceding
the day of the election; and able to read and write
Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice
governor or member of the sangguniang
panlalawigan, or mayor, vice mayor or member of
the sangguniang panlungsod of highly urbanized
cities must be at least twenty-three (23) years of
age on election day.
xxx
xxx xxx
Inasmuch as Frivaldo had been declared by this
Court20 as a non-citizen, it is therefore incumbent
upon him to show that he has reacquired
citizenship; in fine, that he possesses the
qualifications prescribed under the said statute
(R. A. 7160).
Under Philippine law,21 citizenship may be
reacquired by direct act of Congress, by
naturalization or by repatriation. Frivaldo told this
Court in G.R. No. 10465422 and during the oral
argument in this case that he tried to resume his
citizenship by direct act of Congress, but that the
bill allowing him to do so "failed to materialize,
notwithstanding the endorsement of several
members of the House of Representatives" due,
according to him, to the "maneuvers of his
political rivals." In the same case, his attempt at
naturalization was rejected by this Court because
of jurisdictional, substantial and procedural
defects.
Despite his lack of Philippine citizenship, Frivaldo
was overwhelmingly elected governor by the
electorate of Sorsogon, with a margin of 27,000
votes in the 1988 elections, 57,000 in 1992, and
20,000 in 1995 over the same opponent Raul Lee.
Twice, he was judicially declared a non-Filipino
and thus twice disqualified from holding and
discharging his popular mandate. Now, he comes
to us a third time, with a fresh vote from the
people of Sorsogon and a favorable decision from
the Commission on Elections to boot. Moreover,
he now boasts of having successfully passed
through the third and last mode of reacquiring
citizenship: by repatriation under P.D. No. 725,
with no less than the Solicitor General himself,
who was the prime opposing counsel in the
previous cases he lost, this time, as counsel for
co-respondent Comelec, arguing the validity of his
cause (in addition to his able private counsel Sixto
S. Brillantes, Jr.). That he took his oath of
allegiance under the provisions of said Decree at
2:00 p.m. on June 30, 1995 is not disputed.
Hence, he insists that he—not Lee—should have
been proclaimed as the duly-elected governor of
Sorsogon when the Provincial Board of Canvassers
met at 8:30 p.m. on the said date since, clearly
and unquestionably, he garnered the highest
number of votes in the elections and since at that
time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's
repatriation is tainted ; with serious defects, which
we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been
effectively repealed," asserting that "then
President Corazon Aquino exercising legislative
powers under the Transitory Provisions of the
1987 Constitution, forbade the grant of citizenship
by Presidential Decree or Executive Issuances as
the same poses a serious and contentious issue of
policy which the present government, in the
exercise of prudence and sound discretion, should
best leave to the judgment of the first Congress
under the 1987 Constitution," adding that in her
memorandum dated March 27,1987 to the
members of the Special Committee on
Naturalization constituted for purposes of
Presidential Decree No. 725, President Aquino
directed them "to cease and desist from
undertaking any and all proceedings within your
functional area of responsibility as defined under
Letter of Instructions (LOI) No. 270 dated April 11,
1975, as amended."23
This memorandum dated March 27, 198724
cannot by any stretch of legal hermeneutics be
construed as a law sanctioning or authorizing a
repeal of P.D. No. 725. Laws are repealed only by
subsequent ones25 and a repeal may be express
or implied. It is obvious that no express repeal
was made because then President Aquino in her
memorandum — based on the copy furnished us
by Lee — did not categorically and/or impliedly
state that P.D. 725 was being repealed or was
being rendered without any legal effect. In fact,
she did not even mention it specifically by its
number or text. On the other hand, it is a basic
rule of statutory construction that repeals by
implication are not favored. An implied repeal will
not be allowed "unless it is convincingly and
unambiguously demonstrated that the two laws
are clearly repugnant and patently inconsistent
that they cannot co-exist."26
The memorandum of then President Aquino
cannot even be regarded as a legislative
enactment, for not every pronouncement of the
Chief Executive even under the Transitory
Provisions of the 1987 Constitution can nor should
be regarded as an exercise of her law-making
powers. At best, it could be treated as an
executive policy addressed to the Special
Committee to halt the acceptance and processing
of applications for repatriation pending whatever
"judgment the first Congress under the 1987
Constitution" might make. In other words, the
former President did not repeal P.D. 725 but left it
to the first Congress — once created—to deal with
the matter. If she had intended to repeal such
law, she should have unequivocally said so
instead of referring the matter to Congress. The
fact is she carefully couched her presidential
issuance in terms that clearly indicated the
intention of "the present government, in the
exercise of prudence and sound discretion" to
leave the matter of repeal to the new Congress.
Any other interpretation of the said Presidential
Memorandum, such as is now being proffered to
the Court by Lee, would visit unmitigated violence
not only upon statutory construction but on
common sense as well.
Second. Lee also argues that "serious congenital
irregularities flawed the repatriation proceedings,"
asserting that Frivaldo's application therefor was
"filed on June 29, 1995 x x x (and) was approved
in just one day or on June 30, 1995 x x x," which
"prevented a judicious review and evaluation of
the merits thereof." Frivaldo counters that he filed
his application for repatriation with the Office of
the President in Malacanang Palace on August 17,
1994. This is confirmed by the Solicitor General.
However, the Special Committee was reactivated
only on June 8, 1995, when presumably the said
Committee started processing his application. On
June 29, 1995, he filled up and re-submitted the
FORM that the Committee required. Under these
circumstances, it could not be said that there was
"indecent haste" in the processing of his
application.
Anent Lee's charge that the "sudden
reconstitution of the Special Committee on
Naturalization was intended solely for the
personal interest of respondent,"27 the Solicitor
General explained during the oral argument on
March 19, 1996 that such allegation is simply
baseless as there were many others who applied
and were considered for repatriation, a list of
whom was submitted by him to this Court,
through a Manifestation28 filed on April 3, 1996.
On the basis of the parties' submissions, we are
convinced that the presumption of regularity in
the performance of official duty and the
presumption of legality in the repatriation of
Frivaldo have not been successfully rebutted by
Lee. The mere fact that the proceedings were
speeded up is by itself not a ground to conclude
that such proceedings were necessarily tainted.
After all, the requirements of repatriation under
P.D. No. 725 are not difficult to comply with, nor
are they tedious and cumbersome. In fact, P.D.
72529 itself requires very little of an applicant,
and even the rules and regulations to implement
the said decree were left to the Special
Committee to promulgate. This is not unusual
since, unlike in naturalization where an alien
covets a first-time entry into Philippine political
life, in repatriation the applicant is a former
natural-born Filipino who is merely seeking to
reacquire his previous citizenship. In the case of
Frivaldo, he was undoubtedly a natural-born
citizen who openly and faithfully served his
country and his province prior to his naturalization
in the United States — a naturalization he insists
was made necessary only to escape the iron
clutches of a dictatorship he abhorred and could
not in conscience embrace — and who, after the
fall of the dictator and the re-establishment of
democratic space, wasted no time in returning to
his country of birth to offer once more his talent
and services to his people.
So too, the fact that ten other persons, as
certified to by the Solicitor General, were granted
repatriation argues convincingly and conclusively
against the existence of favoritism vehemently
posited by Raul Lee. At any rate, any contest on
the legality of Frivaldo's repatriation should have
been pursued before the Committee itself, and,
failing there, in the Office of the President,
pursuant to the doctrine of exhaustion of
administrative remedies.
Third. Lee further contends that assuming the
assailed repatriation to be valid, nevertheless it
could only be effective as at 2:00 p.m. of June 30,
1995 whereas the citizenship qualification
prescribed by the Local Government Code "must
exist on the date of his election, if not when the
certificate of candidacy is filed," citing our
decision in G.R. 10465430 which held that "both
the Local Government Code and the Constitution
require that only Philippine citizens can run and
be elected to Public office" Obviously, however,
this was a mere obiter as the only issue in said
case was whether Frivaldo's naturalization was
valid or not — and NOT the effective date thereof.
Since the Court held his naturalization to be
invalid, then the issue of when an aspirant for
public office should be a citizen was NOT resolved
at all by the Court. Which question we shall now
directly rule on.
Under Sec. 39 of the Local Government Code,
"(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay,
municipality, city, or province x x x where
he intends to be elected;
* a resident therein for at least one (1) year
immediately preceding the day of the
election;
* able to read and write Filipino or any other
local language or dialect."
* In addition, "candidates for the position of
governor x x x must be at least twenty-
three (23) years of age on election day."
From the above, it will be noted that the law does
not specify any particular date or time when the
candidate must possess citizenship, unlike that for
residence (which must consist of at least one
year's residency immediately preceding the day
of election) and age (at least twenty three years
of age on election day).
Philippine citizenship is an indispensable
requirement for holding an elective public
office,31 and the purpose of the citizenship
qualification is none other than to ensure that no
alien, i.e., no person owing allegiance to another
nation, shall govern our people and our country or
a unit of territory thereof. Now, an official begins
to govern or to discharge his functions only upon
his proclamation and on the day the law
mandates his term of office to begin. Since
Frivaldo re-assumed his citizenship on June 30,
1995—the very day32 the term of office of
governor (and other elective officials) began—he
was therefore already qualified to be proclaimed,
to hold such office and to discharge the functions
and responsibilities thereof as of said date. In
short, at that time, he was already qualified to
govern his native Sorsogon. This is the liberal
interpretation that should give spirit, life and
meaning to our law on qualifications consistent
with the purpose for which such law was enacted.
So too, even from a literal (as distinguished from
liberal) construction, it should be noted that
Section 39 of the Local Government Code speaks
of "Qualifications" of "ELECTIVE OFFICIALS," not of
candidates. Why then should such qualification be
required at the time of election or at the time of
the filing of the certificates of candidacies, as Lee
insists? Literally, such qualifications — unless
otherwise expressly conditioned, as in the case of
age and residence — should thus be possessed
when the "elective [or elected] official" begins to
govern, i.e., at the time he is proclaimed and at
the start of his term — in this case, on June 30,
1995. Paraphrasing this Court's ruling in Vasquez
vs. Giapand Li Seng Giap & Sons,33 if the purpose
of the citizenship requirement is to ensure that
our people and country do not end up being
governed by aliens, i.e., persons owing allegiance
to another nation, that aim or purpose would not
be thwarted but instead achieved by construing
the citizenship qualification as applying to the
time of proclamation of the elected official and at
the start of his term.
But perhaps the more difficult objection was the
one raised during the oral argument34 to the
effect that the citizenship qualification should be
possessed at the time the candidate (or for that
matter the elected official) registered as a voter.
After all, Section 39, apart from requiring the
official to be a citizen, also specifies as another
item of qualification, that he be a "registered
voter." And, under the law35 a "voter" must be a
citizen of the Philippines. So therefore, Frivaldo
could not have been a voter-much less a validly
registered one — if he was not a citizen at the
time of such registration.
The answer to this problem again lies in
discerning the purpose of the requirement. If the
law intended the citizenship qualification to be
possessed prior to election consistent with the
requirement of being a registered voter, then it
would not have made citizenship a SEPARATE
qualification. The law abhors a redundancy. It
therefore stands to reason that the law intended
CITIZENSHIP to be a qualification distinct from
being a VOTER, even if being a voter presumes
being a citizen first. It also stands to reason that
the voter requirement was included as another
qualification (aside from "citizenship"), not to
reiterate the need for nationality but to require
that the official be registered as a voter IN THE
AREA OR TERRITORY he seeks to govern, i.e., the
law states: "a registered voter in the barangay,
municipality, city, or province x x x where he
intends to be elected." It should be emphasized
that the Local Government Code requires an
elective official to be a registered voter. It does
not require him to vote actually. Hence,
registration—not the actual voting—is the core of
this "qualification." In other words, the law's
purpose in this second requirement is to ensure
that the prospective official is actually registered
in the area he seeks to govern — and not
anywhere else.
Before this Court, Frivaldo has repeatedly
emphasized—and Lee has not disputed — that he
"was and is a registered voter of Sorsogon, and
his registration as a voter has been sustained as
valid by judicial declaration x x x In fact, he cast
his vote in his precinct on May 8, 1995."36
So too, during the oral argument, his counsel
stead-fastly maintained that "Mr. Frivaldo has
always been a registered voter of Sorsogon. He
has voted in 1987,1988,1992, then he voted
again in 1995. In fact, his eligibility as a voter was
questioned, but the court dismissed (sic) his
eligibility as a voter and he was allowed to vote as
in fact, he voted in all the previous elections
including on May 8,1995.37
It is thus clear that Frivaldo is a registered voter
in the province where he intended to be elected.
There is yet another reason why the prime issue
of citizenship should be reckoned from the date of
proclamation, not necessarily the date of election
or date of filing of the certificate of candidacy.
Section 253 of the Omnibus Election Code38 gives
any voter, presumably including the defeated
candidate, the opportunity to question the
ELIGIBILITY (or the disloyalty) of a candidate. This
is the only provision of the Code that authorizes a
remedy on how to contest before the Comelec an
incumbent's ineligibility arising from failure to
meet the qualifications enumerated under Sec. 39
of the Local Government Code. Such remedy of
Quo Warranto can be availed of "within ten days
after proclamation" of the winning candidate.
Hence, it is only at such time that the issue of
ineligibility may be taken cognizance of by the
Commission. And since, at the very moment of
Lee's proclamation (8:30 p.m., June 30, 1995),
Juan G. Frivaldo was already and indubitably a
citizen, having taken his oath of allegiance earlier
in the afternoon of the same day, then he should
have been the candidate proclaimed as he
unquestionably garnered the highest number of
votes in the immediately preceding elections and
such oath had already cured his previous
"judicially-declared" alienage. Hence, at such
time, he was no longer ineligible.
But to remove all doubts on this important issue,
we also hold that the repatriation of Frivaldo
RETRO ACTED to the date of the filing of his
application on August 17,1994.
It is true that under the Civil Code of the
Philippines,39 "(l)aws shall have no retroactive
effect, unless the contrary is provided." But there
are settled exceptions40 to this general rule, such
as when the statute is CURATIVE or REMEDIAL in
nature or when it CREATES NEW RIGHTS.
According to Tolentino,41 curative statutes are
those which undertake to cure errors and
irregularities, thereby validating judicial or
administrative proceedings, acts of public officers,
or private deeds and contracts which otherwise
would not produce their intended consequences
by reason of some statutory disability or failure to
comply with some technical requirement. They
operate on conditions already existing, and are
necessarily retroactive in operation. Agpalo,42 on
the other hand, says that curative statutes are
"healing acts x x x curing defects and adding to
the means of enforcing existing obligations x x x
(and) are intended to supply defects, abridge
superfluities in existing laws, and curb certain
evils x x x By their very nature, curative statutes
are retroactive xxx (and) reach back to past
events to correct errors or irregularities and to
render valid and effective attempted acts which
would be otherwise ineffective for the purpose the
parties intended."
On the other hand, remedial or procedural laws,
i.e., those statutes relating to remedies or modes
of procedure, which do not create new or take
away vested rights, but only operate in
furtherance of the remedy or confirmation of such
rights, ordinarily do not come within the legal
meaning of a retrospective law, nor within the
general rule against the retrospective operation of
statutes.43
A reading of P.D. 725 immediately shows that it
creates a new right, and also provides for a new
remedy, thereby filling certain voids in our laws.
Thus, in its preamble, P.D. 725 expressly
recognizes the plight of "many Filipino women
(who) had lost their Philippine citizenship by
marriage to aliens" and who could not, under the
existing law (C. A. No. 63, as amended) avail of
repatriation until "after the death of their
husbands or the termination of their marital
status" and who could neither be benefitted by
the 1973 Constitution's new provision allowing "a
Filipino woman who marries an alien to retain her
Philippine citizenship xxx" because "such
provision of the new Constitution does not apply
to Filipino women who had married aliens before
said constitution took effect." Thus, P.D. 725
granted a new right to these women—the right to
re-acquire Filipino citizenship even during their
marital coverture, which right did not exist prior
to P.D. 725. On the other hand, said statute also
provided a new remedy and a new right in favor
of other "natural born Filipinos who (had) lost
their Philippine citizenship but now desire to re-
acquire Philippine citizenship," because prior to
the promulgation of P.D. 725 such former Filipinos
would have had to undergo the tedious and
cumbersome process of naturalization, but with
the advent of P.D. 725 they could now re-acquire
their Philippine citizenship under the simplified
procedure of repatriation.
The Solicitor General44 argues:
"By their very nature, curative statutes are
retroactive, (DBP vs. CA, 96 SCRA 342), since they
are intended to supply defects, abridge
superfluities in existing laws (Del Castillo vs.
Securities and Exchange Commission, 96 Phil.
119) and curb certain evils (Santos vs. Duata, 14
SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the
defect in the existing naturalization law,
specifically C. A. No. 63 wherein married Filipino
women are allowed to repatriate only upon the
death of their husbands, and natural-born
Filipinos who lost their citizenship by
naturalization and other causes faced the
difficulty of undergoing the rigid procedures of
C.A. 63 for reacquisition of Filipino citizenship by
naturalization.
Presidential Decree No. 725 provided a remedy
for the aforementioned legal aberrations and thus
its provisions are considered essentially remedial
and curative."
In light of the foregoing, and prescinding from the
wording of the preamble, it is unarguable that the
legislative intent was precisely to give the statute
retroactive operation. "(A) retrospective operation
is given to a statute or amendment where the
intent that it should so operate clearly appears
from a consideration of the act as a whole, or
from the terms thereof."45 It is obvious to the
Court that the statute was meant to "reach back"
to those persons, events and transactions not
otherwise covered by prevailing law and
jurisprudence. And inasmuch as it has been held
that citizenship is a political and civil right equally
as important as the freedom of speech, liberty of
abode, the right against unreasonable searches
and seizures and other guarantees enshrined in
the Bill of Rights, therefore the legislative intent
to give retrospective operation to P.D. 725 must
be given the fullest effect possible. "(I)t has been
said that a remedial statute must be so construed
as to make it effect the evident purpose for
-which it was enacted, so that if the reason of the
statute extends to past transactions, as well as to
those in the future, then it will be so applied
although the statute does not in terms so direct,
unless to do so would impair some vested right or
violate some constitutional guaranty."46 This is all
the more true of P.D. 725, which did not specify
any restrictions on or delimit or qualify the right of
repatriation granted therein.
At this point, a valid question may be raised: How
can the retroactivity of P.D. 725 benefit Frivaldo
considering that said law was enacted on June
5,1975, while Frivaldo lost his Filipino citizenship
much later, on January 20, 1983, and applied for
repatriation even later, on August 17, 1994?
While it is true that the law was already in effect
at the time that Frivaldo became an American
citizen, nevertheless, it is not only the law itself
(P.D. 725) which is tobe given retroactive effect,
but even the repatriation granted under said law
to Frivaldo on June 30, 1995 is to be deemed to
have retroacted to the date of his application
therefor, August 17, 1994. The reason for this is
simply that if, as in this case, it was the intent of
the legislative authority that the law should apply
to past events — i.e., situations and transactions
existing even before the law came into being — in
order to benefit the greatest number of former
Filipinos possible thereby enabling them to enjoy
and exercise the constitutionally guaranteed right
of citizenship, and such legislative intention is to
be given the fullest effect and expression, then
there is all the more reason to have the law apply
in a retroactive or retrospective manner to
situations, events and transactions subsequent to
the passage of such law. That is, the repatriation
granted to Frivaldo on June 30, 1995 can and
should be made to take effect as of date of his
application. As earlier mentioned, there is nothing
in the law that would bar this or would show a
contrary intention on the part of the legislative
authority; and there is no showing that damage or
prejudice to anyone, or anything unjust or
injurious would result from giving retroactivity to
his repatriation. Neither has Lee shown that there
will result the impairment of any contractual
obligation, disturbance of any vested right or
breach of some constitutional guaranty.
Being a former Filipino who has served the people
repeatedly, Frivaldo deserves a liberal
interpretation of Philippine laws and whatever
defects there were in his nationality should now
be deemed mooted by his repatriation.
Another argument for retroactivity to the date of
filing is that it would prevent prejudice to
applicants. If P.D. 725 were not to be given
retroactive effect, and the Special Committee
decides not to act, i.e., to delay the processing of
applications for any substantial length of time,
then the former Filipinos who may be stateless, as
Frivaldo—having already renounced his American
citizenship — was, may be prejudiced for causes
outside their control. This should not be. In case
of doubt in the interpretation or application of
laws, it is to be presumed that the law-making
body intended right and justice to prevail.47
And as experience will show, the Special
Committee was able to process, act upon and
grant applications for repatriation within relatively
short spans of time after the same were filed.48
The fact that such interregna were relatively
insignificant minimizes the likelihood of prejudice
to the government as a result of giving
retroactivity to repatriation. Besides, to the mind
of the Court, direct prejudice to the government is
possible only where a person's repatriation has
the effect of wiping out a liability of his to the
government arising in connection with or as a
result of his being an alien, and accruing only
during the interregnum between application and
approval, a situation that is not present in the
instant case.
And it is but right and just that the mandate of the
people, already twice frustrated, should now
prevail. Under the circumstances, there is nothing
unjust or iniquitous in treating Frivaldo's
repatriation as having become effective as of the
date of his application, i.e., on August 17, 1994.
This being so, all questions about his possession
of the nationality qualification— whether at the
date of proclamation (June 30, 1995) or the date
of election (May 8, 1995) or date of filing his
certificate of candidacy (March 20, 1995) would
become moot.
Based on the foregoing, any question regarding
Frivaldo's status as a registered voter would also
be deemed settled. Inasmuch as he is considered
as having been repatriated—i.e., his Filipino
citizenship restored — as of August 17, 1994, his
previous registration as a voter is likewise
deemed validated as of said date.
It is not disputed that on January 20, 1983
Frivaldo became an American. Would the
retroactivity of his repatriation not effectively give
him dual citizenship, which under Sec. 40 of the
Local Government Code would disqualify him
"from running for any elective local position?"49
We answer this question in the negative, as there
is cogent reason to hold that Frivaldo was really
STATELESS at the time he took said oath of
allegiance and even before that, when he ran for
governor in 1988. In his Comment, Frivaldo wrote
that he "had long renounced and had long
abandoned his American citizenship—long before
May 8, 1995. At best, Frivaldo was stateless in the
interim — when he abandoned and renounced his
US citizenship but before he was repatriated to his
Filipino citizenship."50
On this point, we quote from the assailed
Resolution dated December 19, 1995:51
"By the laws of the United States, petitioner
Frivaldo lost his American citizenship when he
took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in
1992, and in 1995. Every certificate of candidacy
contains an oath of allegiance to the Philippine
Government."
These factual findings that Frivaldo has lost his
foreign nationality long before the elections of
1995 have not been effectively rebutted by Lee.
Furthermore, it is basic that such findings of the
Commission are conclusive upon this Court,
absent any showing of capriciousness or
arbitrariness or abuse.52
The Second Issue: Is Lack of Citizenship a
Continuing Disqualification?
Lee contends that the May 1,1995 Resolution53 of
the Comelec Second Division in SPA No. 95-028 as
affirmed in toto by Comelec En Banc in its
Resolution of May 11, 1995 "became final and
executory after five (5) days or on May 17,1995,
no restraining order having been issued by this
Honorable Court."54 Hence, before Lee "was
proclaimed as the elected governor on June 30,
1995, there was already a final and executory
judgment disqualifying" Frivaldo. Lee adds that
this Court's two rulings (which Frivaldo now
concedes were legally "correct") declaring
Frivaldo an alien have also become final and
executory way before the 1995 elections, and
these "judicial pronouncements of his political
status as an American citizen absolutely and for
all time disqualified (him) from running for, and
holding any public office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No.
87193 disqualifying Frivaldo was rendered in
connection with the 1988 elections while that in
G.R. No. 104654 was in connection with the 1992
elections. That he was disqualified for such
elections is final and can no longer be changed. In
the words of the respondent Commission (Second
Division) in its assailed Resolution:55
"The records show that the Honorable Supreme
Court had decided that Frivaldo was not a Filipino
citizen and thus disqualified for the purpose of the
1988 and 1992 elections. However, there is no
record of any 'final judgment' of the
disqualification of Frivaldo as a candidate for the
May 8, 1995 elections. What the Commission said
in its Order of June 21, 1995 (implemented on
June 30, 1995), directing the proclamation of Raul
R. Lee, was that Frivaldo was not a Filipino citizen
'having been declared by the Supreme Court in its
Order dated March 25, 1995, not a citizen of the
Philippines.' This declaration of the Supreme
Court, however, was in connection with the 1992
elections."
Indeed, decisions declaring the acquisition or
denial of citizenship cannot govern a person's
future status with finality. This is because a
person may subsequently reacquire, or for that
matter lose, his citizenship under any of the
modes recognized by law for the purpose. Hence,
in Lee vs. Commissioner of Immigration,56 we
held:
"Everytime the citizenship of a person is material
or indispensable in a judicial or administrative
case, whatever the corresponding court or
administrative authority decides therein as to
such citizenship is generally not considered res
judicata, hence it has to be threshed out again
and again, as the occasion demands."
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no
jurisdiction to entertain the petition in SPC No. 95-
317 because the only "possible types of
proceedings that may be entertained by the
Comelec are a pre-proclamation case, an election
protest or a quo warranto case." Again, Lee
reminds us that he was proclaimed on June 30,
1995 but that Frivaldo filed SPC No. 95-317
questioning his (Lee's) proclamation only on July
6, 1995 — "beyond the 5-day reglementary
period." Hence, according to him, Frivaldo's
"recourse was to file either an election protest or
a quo warranto action."
This argument is not meritorious. The
Constitution57 has given the Comelec ample
power to "exercise exclusive original jurisdiction
over all contests relating to the elections, returns
and qualifications of all elective x x x provincial x
x x officials." Instead of dwelling at length on the
various petitions that Comelec, in the exercise of
its constitutional prerogatives, may entertain,
suffice
it to say that this Court has invariably recognized
the Commission's authority to hear and decide
petitions for annulment of proclamations —of
which SPC No. 95-317 obviously is one.58 Thus, in
Mentang vs. COMELEC,59 we ruled:
"The petitioner argues that after proclamation and
assumption of office, a pre-proclamation
controversy is no longer viable. Indeed, we are
aware of cases holding that pre-proclamation
controversies may no longer be entertained by
the COMELEC after the winning candidate has
been proclaimed, (citing Gallardo vs. Rimando,
187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA
513; Casimiro vs. COMELEC, 171 SCRA 468.) This
rule, however, is premised on an assumption that
the proclamation is no proclamation at all and the
proclaimed candidate's assumption of office
cannot deprive the COMELEC of the power to
make such declaration of nullity. (citing Aguam
vs. COMELEC, 23 SCRA 883; Agbayani vs.
COMELEC, 186 SCRA 484.)"
The Court however cautioned that such power to
annul a proclamation must "be done within ten
(10) days following the proclamation." Inasmuch
as Frivaldo's petition was filed only six (6) days
after Lee's proclamation, there is no question that
the Comelec correctly acquired jurisdiction over
the same.
The Fourth Issue: Was Lee's Proclamation Valid
Frivaldo assails the validity of the Lee
proclamation. We uphold him for the following
reasons:
First. To paraphrase this Court in Labo vs.
COMELEC,60 "the fact remains that he (Lee) was
not the choice of the sovereign will," and in
Aquino vs. COMELEC,61 Lee is "a second placer,
xxx just that, a second placer."
In spite of this, Lee anchors his claim to the
governorship on the pronouncement of this Court
in the aforesaid Labo62 case, as follows:
"The rule would have been different if the
electorate fully aware in fact and in law of a
candidate's disqualification so as to bring such
awareness within the realm of notoriety, would
nonetheless cast their votes in favor of the
ineligible candidate. In such case, the electorate
may be said to have waived the validity and
efficacy of their votes by notoriously misapplying
their franchise or throwing away their votes, in
which case, the eligible candidate obtaining the
next higher number of votes may be deemed
elected."
But such holding is qualified by the next
paragraph, thus:
"But this is not the situation obtaining in the
instant dispute. It has not been shown, and none
was alleged, that petitioner Labo was notoriously
known as an ineligible candidate, much less the
electorate as having known of such fact. On the
contrary, petitioner Labo was even allowed by no
less than the Comelec itself in its resolution dated
May 10, 1992 to be voted for the office of the city
mayor as its resolution dated May 9,1992 denying
due course to petitioner Labo's certificate of
candidacy had not yet become final and subject to
the final outcome of this case."
The last-quoted paragraph in Labo, unfortunately
for Lee, is the ruling appropriate in this case
because Frivaldo was in 1995 in an identical
situation as Labo was in 1992 when the Comelec's
cancellation of his certificate of candidacy was not
yet final on election day as there was in both
cases a pending motion for reconsideration, for
which reason Comelec issued an (omnibus)
resolution declaring that Frivaldo (like Labo in
1992) and several others can still be voted for in
the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient
evidence presented to show that the electorate of
Sorsogon was "fully aware in fact and in law" of
Frivaldo's alleged disqualification as to "bring
such awareness within the realm of notoriety", in
other words, that the voters intentionally wasted
their ballots knowing that, in spite of their voting
for him, he was ineligible. If Labo has any
relevance at all, it is that the vice-governor and
not Lee—should be proclaimed, since in losing the
election, Lee was, to paraphrase Labo again,
"obviously not the choice of the people" of
Sorsogon. This is the emphatic teaching of Labo:
"The rule, therefore, is: the ineligibility of a
candidate receiving majority votes does not
entitle the eligible candidate receiving the next
highest number of votes to be declared elected. A
minority or defeated candidate cannot be deemed
elected to the office."
Second. As we have earlier declared Frivaldo to
have seasonably re-acquired his citizenship and
inasmuch as he obtained the highest number of
votes in the 1995 elections, he—not Lee —should
be proclaimed. Hence, Lee's proclamation was
patently erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the Election Code
Mandatory?
In G.R. No. 120295, Frivaldo claims that the
assailed Resolution of the Comelec (Second
Division) dated May 1, 1995 and the confirmatory
en banc Resolution of May 11, 1995 disqualifying
him for want of citizenship should be annulled
because they were rendered beyond the fifteen
(15) day period prescribed by Section 78 of the
Omnibus Election Code which reads as follows:
"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 the filing of the
certificate of candidacy and shall be decided after
notice and hearing, not later than fifteen days
before the election" (italics supplied.)
This claim is now moot and academic inasmuch as
these resolutions are deemed superseded by the
subsequent ones issued by the Commission (First
Division) on December 19, 1995, affirmed en
banc63 on February 23, 1996, which both upheld
his election. At any rate, it is obvious that Section
78 is merely directory as Section 6 of R.A. No.
6646 authorizes the Commission to try and decide
petitions for disqualifications even after the
elections, thus:
"SEC. 6. Effect of Disqualification Case.— Any
candidate who has been declared by final
judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final
judgment before an election to be disqualified
and he is voted for and receives the -winning
number of votes in such election, the Court or
Commission shall continue with the trial and
hearing of the action, inquiry or protest and, upon
motion of the complainant or any intervenor, may
during the pendency thereof order the suspension
of the proclamation of such candidate whenever
the evidence of his guilt is strong." (Italics
supplied)
Refutation of Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice
Hilario G. Davide, Jr. argues that President
Aquino's memorandum dated March 27, 1987
should be viewed as a suspension (not a repeal,
as urged by Lee) of P.D. 725. But whether it
decrees a suspension or a repeal is a purely
academic distinction because the said issuance is
not a statute that can amend or abrogate an
existing law. The existence and subsistence of
P.D. 725 were recognized in the first Frivaldo
case;64 viz, "(u)nder CA No. 63 as amended by
CA No. 473 and P.D. No. 725, Philippine
citizenship maybe reacquired by xxx repatriation"
He also contends that by allowing Frivaldo to
register and to remain as a registered voter, the
Comelec and in effect this Court abetted a
"mockery" of our two previous judgments
declaring him a non-citizen. We do not see such
abetting or mockery. The retroactivity of his
repatriation, as discussed earlier, legally cured
whatever defects there may have been in his
registration as a voter for the purpose of the 1995
elections. Such retroactivity did not change his
disqualifications in 1988 and 1992, which were
the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo
Warranto is not the sole remedy to question the
ineligibility of a candidate, citing the Comelec's
authority under Section 78 of the Omnibus
Election Code allowing the denial of a certificate
of candidacy on the ground of a false material
representation therein as required by Section 74.
Citing Loong, he then states his disagreement
with our holding that Section 78 is merely
directory. We really have no quarrel. Our point is
that Frivaldo was in error in his claim in G.R. No.
120295 that the Comelec Resolutions
promulgated on May 1, 1995 and May 11, 1995
were invalid because they were issued "not later
than fifteen days before the election" as
prescribed by Section 78. In dismissing the
petition in G.R. No. 120295, we hold that the
Comelec did not commit grave abuse of discretion
because "Section 6 of R. A. 6646 authorizes the
Comelec to try and decide disqualifications even
after the elections." In spite of his disagreement
with us on this point, i.e., that Section 78 "is
merely directory," we note that just like us, Mr.
Justice Davide nonetheless votes to "DISMISS G.R.
No. 120295." One other point. Loong, as quoted in
the dissent, teaches that a petition to deny due
course under Section 78 must be filed within the
25-day period prescribed therein. The present
case however deals with the period during which
the Comelec may decide such petition. And we
hold that it may be decided even after the fifteen
day period mentioned in Section 78. Here, we rule
that a decision promulgated by the Comelec even
after the elections is valid but Loong held that a
petition filed beyond the 25-day period is out of
time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's
holding that, given the unique factual
circumstances of Frivaldo, repatriation may be
given retroactive effect. He argues that such
retroactivity "dilutes" our holding in the first
Frivaldo case. But the first (and even the second
Frivaldo) decision did not directly involve
repatriation as a mode of acquiring citizenship. If
we may repeat, there is no question that Frivaldo
was not a Filipino for purposes of determining his
qualifications in the 1988 and 1992 elections.
That is settled. But his supervening repatriation
has changed his political status — not in 1988 or
1992, but only in the 1995 elections.
Our learned colleague also disputes our holding
that Frivaldo was stateless prior to his
repatriation, saying that "informal renunciation or
abandonment is not a ground to lose American
citizenship." Since our courts are charged only
with the duty of the determining who are
Philippine nationals, we cannot rule on the legal
question of who are or who are not Americans. It
is basic in international law that a State
determines ONLY those who are its own citizens
— not who are the citizens of other countries.65
The issue here is: the Comelec made a finding of
fact that Frivaldo was stateless and such finding
has not been shown by Lee to be arbitrary or
whimsical. Thus, following settled case law, such
finding is binding and final.
The dissenting opinion also submits that Lee who
lost by chasmic margins to Frivaldo in all three
previous elections, should be declared winner
because "Frivaldo's ineligibility for being an
American was publicly known." First, there is
absolutely no empirical evidence for such "public"
knowledge. Second, even if there is, such
knowledge can be true post facto only of the last
two previous elections. Third, even the Comelec
and now this Court were/are still deliberating on
his nationality before, during and after the 1995
elections. How then can there be such "public"
knowledge?
Mr. Justice Davide submits that Section 39 of the
Local Government Code refers to the
qualifications of elective local officials, i.e.,
candidates, and not elected officials, and that the
citizenship qualification [under par. (a) of that
section] must be possessed by candidates, not
merely at the commencement of the term, but by
election day at the latest. We see it differently.
Section 39, par. (a) thereof speaks of "elective
local official" while par. (b) to (f) refer to
"candidates." If the qualifications under par. (a)
were intended to apply to "candidates" and not
elected officials, the legislature would have said
so, instead of differentiating par. (a) from the rest
of the paragraphs. Secondly, if Congress had
meant that the citizenship qualification should be
possessed at election day or prior thereto, it
would have specifically stated such detail, the
same way it did in pars. (b) to (f) for other
qualifications of candidates for governor, mayor,
etc.
Mr. Justice Davide also questions the giving of
retroactive effect to Frivaldo's repatriation on the
ground, among others, that the law specifically
provides that it is only after taking the oath of
allegiance that applicants shall be deemed to
have reacquired Philippine citizenship. We do not
question what the provision states. We hold
however that the provision should be understood
thus: that after taking the oath of allegiance the
applicant is deemed to have reacquired Philippine
citizenship, which reacquisition (or repatriation) is
deemed for all purposes and intents to have
retroacted to the date of his application therefor.
In any event, our "so too" argument regarding the
literal meaning of the word "elective" in reference
to Section 39 of the Local Government Code, as
well as regarding Mr. Justice Davide's thesis that
the very wordings of P.D. 725 suggest non-
retroactivity, were already taken up rather
extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion
call: "This Court must be the first to uphold the
Rule of Law." We agree — we must all follow the
rule of law. But that is NOT the issue here. The
issue is how should the law be interpreted and
applied in this case so it can be followed, so it can
rule!
At balance, the question really boils down to a
choice of philosophy and perception of how to
interpret and apply laws relating to elections:
literal or liberal; the letter or the spirit; the naked
provision or its ultimate purpose; legal syllogism
or substantial justice; in isolation or in the context
of social conditions; harshly against or gently in
favor of the voters' obvious choice. In applying
election laws, it would be far better to err in favor
of popular sovereignty than to be right in complex
but little understood legalisms. Indeed, to inflict a
thrice rejected candidate upon the electorate of
Sorsogon would constitute unmitigated judicial
tyranny and an unacceptable assault upon this
Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in
the Local Government Code is to be possessed by
an elective official at the latest as of the time he
is proclaimed and at the start of the term of office
to which he has been elected. We further hold
P.D. No. 725 to be in full force and effect up to the
present, not having been suspended or repealed
expressly nor impliedly at any time, and Frivaldo's
repatriation by virtue thereof to have been
properly granted and thus valid and effective.
Moreover, by reason of the remedial or curative
nature of the law granting him a new right to
resume his political status and the legislative
intent behind it, as well as his unique situation of
having been forced to give up his citizenship and
political aspiration as his means of escaping a
regime he abhorred, his repatriation is to be given
retroactive effect as of the date of his application
therefor, during the pendency of which he was
stateless, he having given ' up his U. S.
nationality. Thus, in contemplation of law, he
possessed the vital requirement of Filipino
citizenship as of the start of the term of office of
governor, and should have been proclaimed
instead of Lee. Furthermore, since his
reacquisition of citizenship retroacted to August
17, 1994, his registration as a voter of Sorsogon is
deemed to have been validated as of said date as
well. The foregoing, of course, are precisely
consistent with our holding that lack of the
citizenship requirement is not a continuing
disability or disqualification to run for and hold
public office. And once again, we emphasize
herein our previous rulings recognizing the
Comelec's authority and jurisdiction to hear and
decide petitions for annulment of proclamations.
This Court has time and again liberally and
equitably construed the electoral laws of our
country to give fullest effect to the manifest will of
our people,66 for in case of doubt, political laws
must be
interpreted to give life and spirit to the popular
mandate freely expressed through the ballot.
Otherwise stated, legal niceties and technicalities
cannot stand in the way of the sovereign will.
Consistently, we have held:
"x x x (L)aws governing election contests must be
liberally construed to the end that the will of the
people in the choice of public officials may not be
defeated by mere technical objections (citations
omitted)."67
The law and the courts must accord Frivaldo
every possible protection, defense and refuge, in
deference to the popular will. Indeed, this Court
has repeatedly stressed the importance of giving
effect to the sovereign will in order to ensure the
survival of our democracy. In any action involving
the possibility of a reversal of the popular
electoral choice, this Court must exert utmost
effort to resolve the issues in a manner that would
give effect to the will of the majority, for it is
merely sound public policy to cause elective
offices to be filled by those who are the choice of
the majority. To successfully challenge a winning
candidate's qualifications, the petitioner must
clearly demonstrate that the ineligibility is so
patently antagonistic68 to constitutional and legal
principles that overriding such ineligibility and
thereby giving effect to the apparent will of the
people, would ultimately create greater prejudice
to the very democratic institutions and juristic
traditions that our Constitution and laws so
zealously protect and promote. In this
undertaking, Lee has miserably failed.
In Frivaldo's case, it would have been technically
easy to find fault with his cause. The Court could
have refused to grant retroactivity to the effects
of his repatriation and hold him still ineligible due
to his failure to show his citizenship at the time he
registered as a voter before the 1995 elections.
Or, it could have disputed the factual findings of
the Comelec that he was stateless at the time of
repatriation and thus hold his consequent dual
citizenship as a disqualification "from running for
any elective local position." But the real essence
of justice does not emanate from quibblings over
patchwork legal technicality. It proceeds from the
spirit's gut consciousness of the dynamic role of
law as a brick in the ultimate development of the
social edifice. Thus, the Court struggled against
and eschewed the easy, legalistic, technical and
sometimes harsh anachronisms of the law in
order to evoke substantial justice in the larger
social context consistent with Frivaldo's unique
situation approximating venerability in Philippine
political life. Concededly, he sought American
citizenship only to escape the clutches of the
dictatorship. At this stage, we cannot seriously
entertain any doubt about his loyalty and
dedication to this country. At the first opportunity,
he returned to this land, and sought to serve his
people once more. The people of Sorsogon
overwhelmingly voted for him three times. He
took an oath of allegiance to this Republic every
time he filed his certificate of candidacy and
during his failed naturalization bid. And let it not
be overlooked, his demonstrated tenacity and
sheer determination to re-assume his nationality
of birth despite several legal set-backs speak
more loudly, in spirit, in fact and in truth than any
legal technicality, of his consuming intention and
burning desire to re-embrace his native
Philippines even now at the ripe old age of 81
years. Such loyalty to and love of country as well
as nobility of purpose cannot be lost on this Court
of justice and equity. Mortals of lesser mettle
would have given up. After all, Frivaldo was
assured of a life of ease and plenty as a citizen of
the most powerful country in the world. But he
opted, nay, single-mindedly insisted on returning
to and serving once more his struggling but
beloved land of birth. He therefore deserves every
liberal interpretation of the law which can be
applied in his favor. And in the final analysis, over
and above Frivaldo himself, the indomitable
people of Sorsogon most certainly deserve to be
governed by a leader of their overwhelming
choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby
DISMISSED. The assailed Resolutions of the
respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also
DISMISSED for being moot and academic. In any
event, it has no merit.
No costs.
SO ORDERED.
Davide, Jr., J. dissenting opinion
Puno., J. concurring opinion
Francisco, Hermosisima, Jr., and Torres, JJ.,
concur.
Padilla, Regalado, Romero, and Bellosillo, JJ.,
pro hac vice.
Melo, Vitug, and Kapunan, JJ., concur in the
result.
Narvasa, C.J. and Mendoza, J., took no part.
1 Composed of Pres. Comm. Regalado E.
Maambong, ponente; Comm. Graduacion A.R.
Claravall, concurring, and Comm. Julio F.
Desamito, dissenting.
2 In SPC No. 95-317, entitled Juan G. Frivaldo,
petitioner, vs. Raul R. Lee, respondent; Rollo, pp.
110-129.
3 Signed by Chairman Bernardo P. Pardo, Comms.
Regalado E. Maambong, Remedios A. Salazar-
Fernando, Manolo B. Gorospe and Teresita Dy-
Liaco Flores. Chairman Pardo certified that
"Commissioner Julio F. Desamito was on official
travel at the time of the deliberation and
resolution of this case. However, the Commission
has reserved to Comm. Desamito the right to
submit a dissenting opinion." Rollo, pp. 159-171.
4 Rollo, pp. 46-49.
5 Rollo, pp. 50-55. The Second Division was
composed of Pres. Comm. Remedies A. Salazar-
Fernando, ponente; Comm. Teresita Dy-Liaco
Flores, concurring, and Comm. Manolo B. Gorospe
("on official business").
6 Frivaldo was naturalized as an American citizen
on January 20, 1983. In G.R. No. 87193, Frivaldo
vs. Commission on Elections, 174 SCRA 245 (June
23, 1989), the Supreme Court, by reason of such
naturalization, declared Frivaldo "not a citizen of
the Philippines and therefore DISQUALIFIED from
serving as Governor of the Province of Sorsogon."
On February 28, 1992, the Regional Trial Court of
Manila granted the petition for naturalization of
Frivaldo. However, the Supreme Court in G.R. No.
104654, Republic of the Philippines vs. De la
Rosa, et al, 232 SCRA 785 (June 6,1994),
overturned this grant, and Frivaldo was "declared
not a citizen of the Philippines" and ordered to
vacate his office. On the basis of this latter
Supreme Court ruling, the Comelec disqualified
Frivaldo in SPA No. 95-028.
7 Signed by Chairman Bernardo P. Pardo and the
six incumbent commissioners, namely, Regalado
E. Maambong, Remedios A. Salazar-Femando,
Manolo B. Gorospe, Graduacion A. Reyes-
Claravall, Julio F. Desamito and Teresita Dy-Liaco
Flores; Rollo, pp. 56-57.
8. Rollo, p. 60.
9 Rollo, pp. 61-67.
10 Rollo, pp. 86-87. The Comelec considered the
votes cast for Frivaldo as "stray votes," and thus
Lee was held as having garnered the "highest
number of votes."
11 Rollo, pp. 88-97. This is the forerunner of the
present case.
12 211 SCRA 297 (July 3, 1992) and 176 SCRA 1
(August 1, 1989).
13 Rollo, pp. 110-128.
14 Rollo, pp. 159-170.
15 Rollo, pp. 16-17; petition, pp. 14-15.
16 Rollo, pp. 10-15. This is the same resolution
referred to in footnote no. 5.
17 Rollo, pp. 16-17. This is the same resolution
referred to in footnote no. 7.
18 Rollo, pp. 18-21. This is signed also by the
Chairman and the six other Comelec
Commissioners
19 Republic Act No. 7160.
20 See footnote no. 6, supra.
21 In debunking Frivaldo's claim of citizenship,
this Court in G.R. No. 87193, supra, p. 254,
observed that "(i)f he (Frivaldo) really wanted to
disavow his American citizenship and reacquire
Philippine citizenship, petitioner should have done
so in accordance with the laws of our country.
Under C.A. No. 63 as amended by C.A. No. 473
and P.D. 725, Philippine citizenship may be
reacquired by direct act of Congress, by
naturalization, or by repatriation."
22 Supra, p. 794.
23 Petition, p. 27; Rollo, p. 29.
24 The full text of said memorandum reads as
follows:
"MEMORANDUM
TO : The Solicitor General
The Undersecretary of Foreign Affairs
The Director-General
National Intelligence Coordinating Agency
The previous administration's practice of granting
citizenship by Presidential Decree or any other
executive issuance, and the derivative
administrative authority thereof, poses a serious
and contentious issue of policy which the present
government, in the exercise of prudence and
sound discretion, should best leave to the
judgment of the first Congress under the 1987
Constitution.
In view of the foregoing, you as Chairman and
members of the Special Committee on
Naturalization, are hereby directed to cease and
desist from undertaking any and all proceedings
within your functional area of responsibility, as
defined in Letter of Instructions No. 270 dated
April 11, 1975, as amended, Presidential Decree
No. 836 dated December 3, 1975, as amended,
and Presidential Decree No. 1379 dated May 17,
1978, relative to the grant of citizenship under
the said laws, and any other related laws, orders,
issuances and rules and regulations.
(Sgd.) Corazon C. Aquino
Manila, March 27, 1987. "
25 Art. 7, Civil Code of the Philippines.
26 Cf. Ty, et al. vs. Trampe, et al, G.R. No. 117577
(December 1, 1995).
27 Petition, p. 28; Rollo p. 30.
28 The aforesaid Manifestation reads as follows:
"MANIFESTATION
The Solicitor General, as Chairman of the Special
Committee on Naturalization, hereby manifests
that the following persons have been repatriated
by virtue of Presidential Decree No. 725, since
June 8, 1995:
1. Juan Gallanosa Frivaldo R-000900
2. Manuel Reyes Sanchez 901
3. Ma. Nelly Dessalla Ty 902
4. Terry Herrera and
Antonio Ching 903
5. Roberto Salas Benedicto 904
6. Winthrop Santos Liwag 905
7. Samuel M. Buyco 906
8. Joselito Holganza Ruiz 907
9. Samuel Villanueva 908
10. Juan Leonardo Collas, Jr. 909
11. Felicilda Otilla Sacnanas-Chua 910”
29 The text of P.D. 725 is reproduced below:
"PRESIDENTIAL DECREE No. 725
PROVIDING FOR REPATRIATION OF FILIPINO
WOMEN WHO HAD LOST THEIR PHILIPPINE
CITIZENSHIP BY MARRIAGE TO ALIENS AND OF
NATURAL BORN FILIPINOS.
WHEREAS, there are many Filipino women who
had lost their Philippine citizenship by marriage to
aliens;
WHEREAS, while the new Constitution allows a
Filipino woman who marries an alien to retain her
Philippine citizenship unless by her act or
omission, she is deemed under the law to have
renounced her Philippine citizenship, such
provision of the new Constitution does not apply
to Filipino women who had married aliens before
said constitution took effect;
WHEREAS, the existing law (C.A. No. 63, as
amended) allows the repatriation of Filipino
women who lost their citizenship by reason of
their marriage to aliens only after the death of
their husbands or the termination of their marital
status; and
WHEREAS, there are natural born Filipinos who
have lost their Philippine citizenship but now
desire to re-acquire Philippine citizenship;
Now, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the
powers in me vested by the Constitution, do
hereby decree and order that: (1) Filipino women
who lost their Philippine citizenship by marriage to
aliens; and (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 Instructions
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.
The aforesaid Special Committee is hereby
authorized to promulgate rules and regulations
and prescribe the appropriate forms and the
required fees for the effective implementation of
this Decree.
This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of June, in
the year of Our Lord, nineteen hundred and
seventy-five. "
30 See footnote no. 6, supra
31 Cf. Labo, Jr. vs. Comelec, 211 SCRA 297 (July 3,
1992).
32 "The term of office of all local elective officials
elected after the effectivity of this Code shall be
three (3) years, starting from noon of June 30,
1992 or such date as may be provided for by law,
x x x." Sec. 43, Local Government Code.
33 96 Phil. 447,453 (1955).
34 The following are excerpts from the transcript
of stenographic notes of the oral argument held
on March 19, 1996:
"JUSTICE PANGANIBAN: Mr. Counsel, it is your
position then that the candidate should be a
citizen at the time of proclamation?
ATTY. BRILLANTES: Yes, Your Honor, it is required
that he must be a citizen at the time of
proclamation and not only that, at the time that
he assumes the office he must have the
continuing qualification as a citizen.
JUSTICE PANGANIBAN: Should that not be
reckoned from the time of filing of certificate of
candidacy or at least the day of the election?
ATTY. BRILLANTES: Yes, Your Honor, there are
positions taken that it should be reckoned from
the date of certificate of candidacy as in the case
of qualification for Batasang Pambansa before
under B.P. 53 — it says that for purposes of
residence it must be reckoned x x x from the time
of the filing of the certificate, for purposes of age,
from the time of the date of the election. But
when we go over all the provisions of law under
current laws, Your Honor, there is no qualification
requirement insofar as citizenship is concern(ed)
as to when, as to when you should be a citizen of
the Philippines and we say that if there is no
provision under any existing law which requires
that you have to be a citizen of the Philippines on
the date of the filing or on the date of election
then it has to be equitably interpreted to mean
that if you are already qualified at the time that
the office is supposed to be assumed then you
should be allowed to assume the office.
JUSTICE PANGANIBAN: Is it not also true that
under the Local Autonomy Code the candidate
should also be a registered voter and to be a
registered voter one must be a citizen?
ATTY. BRILLANTES: Yes, Your Honor, in fact, Mr.
Frivaldo has always been a registered voter of
Sorsogon. He has voted in 1987, 1988, 1992, then
he voted again in 1995. In fact, his eligibility as a
voter was questioned but the Court dismissed
(sic) his eligibility as a voter and he was allowed
to vote as in fact, he voted in all the previous
elections including on May 8, 1995.
JUSTICE PANGANIBAN: But the fact that he voted
does not make him a citizen. The fact is, he was
declared not a citizen by this Court twice.
ATTY. BRILLANTES: That is true, Your Honor, we
admit that he has been twice declared not citizen
and we admit the ruling of the Supreme Court is
correct but the fact is, Your Honor, the matter of
his eligibility to vote as being a registered voter
was likewise questioned before the judiciary.
There was a ruling by the Municipal Court, there
was a ruling by the Regional Trial Court and he
was sustained as a valid voter, so he voted.
JUSTICE PANGANIBAN: I raised this question in
connection with your contention that citizenship
should be determined as of the time of
proclamation and not as of the time of the
election or at the time'of the filing of the
certificate of candidacy.
ATTY. BRILLANTES: That is true, Your Honor.
JUSTICE PANGANIBAN: And is it your contention
that under the law, particularly the Local
Autonomy Code, the law does not specify when
citizenship should be possessed by the candidate,
is that not correct?
ATTY. BRILLANTES: That is right, Your Honor,
there is no express provision.
JUSTICE PANGANIBAN: I am also asking you that
under the Local Autonomy Code the candidate for
governor or for other local positions should be a
voter and to be a voter one must be a citizen?
ATTY. BRILLANTES: That is right, Your Honor, but
the fact of voting is not an issue here because he
was allowed to vote and . he did in fact vote and
in fact, he was a registered voter." (TSN, March
19. 1996.)
35 Section 117, Batas Pambansa Blg. 881,
otherwise known as "The Omnibus Election Code
of the Philippines," as amended, provides for the
various qualifications of voters, one of which is
Filipino citizenship
36 Comment, p. 11; Rollo, p. 259.
37 See footnote no. 33.
38 Section 253 reads as follows:
"Section 253. Petition for quo warranto.— Any
voter contesting the election of any member of
the Congress, regional, provincial, or city officer
on the ground of ineligibility or of disloyalty to the
Republic of the Philippines shall file a sworn
petition for quo warranto with the Commission
within ten days after the proclamation of the
results of the election. (Art. XIV, Sec. 60, BP 697;
Art. XVIII, Sec. 189, par. 2, 1978 EC).
Any voter contesting the election of any municipal
or barangay officer on the ground of ineligibility or
of disloyally to the Republic of the Philippines
shall file a sworn petition for quo warranto with
the regional trial court or metropolitan or
municipal trial court, respectively, within ten days
after the proclamation of the results of the
election. (Art. XVIII, Sec. 189, par. 2, 1978 EC)."
39 Art. 4, New Civil Code. See also Gallardo vs.
Borromeo, 161 SCRA 500 (May 25,1988), and Nilo
vs. Court of Appeals, 128 SCRA 519 (April 2,1984).
40 Tolentino, Commentaries and Jurisprudence on
the Civil Code of the Philippines, Vol. I, 1990 ed.,
p. 23 states:
"Exceptions to Rule. — Statutes can be given
retroactive effect in the following cases: (1) when
the law itself so expressly provides, (2) in case of
remedial statutes, (3) in case of curative statutes,
(4) in case of laws interpreting others, and (5) in
case of laws creating new rights."
41 id., p. 25.
42 Agpalo, Statutory Construction, 1990 ed., pp.
270-271.
43 73 Am Jur 2d, sec. 354, p. 489, cited in Castro
vs. Sagales, 94 Phil. 208,210 (1953).
44 Memorandum, p. 9.
45 73 Am Jur 2d, Sec. 351, p. 488.
46 73 Am Jur 2d, Sec. 354, p. 490; italics supplied.
47 Art. 10, Civil Code of the Philippines.
48 Based on the "Corrected Compliance" dated
May 16, 1996 filed by Solicitor General, it appears
that, excluding the case of Frivaldo, the longest
interval between date of filing of an application
for repatriation and its approval was three months
and ten days; the swiftest action was a same-day
approval.
49 "SEC. 40. Disqualifications.— The following
persons are disqualified from running for any
elective local position:
xxx xxx xxx
(d) Those with dual citizenship";
50 P. 11; Rollo, p. 259.
51 Resolution, p. 12; Rollo, p. 121.
52 Cf. Navarro vs. Commission on Elections, 228
SCRA 596 (December 17, 1993); Arao vs.
Commission on Elections, 210 SCRA 290 (June 23,
1992).
53 The dispositive portion of said Resolution
reads:
"WHEREFORE, this Division resolves to GRANT the
petition and declares that respondent is
DISQUALIFIED to run for the office of Provincial
Governor of Sorsogon on the ground that he is not
a citizen of the Philippines. Accordingly
respondent's certificate of candidacy is
cancelled."
54 Petition, p. 19; Rollo, p. 21.
55 Resolution promulgated on December 19,
1995, p. 7; Rollo, p. 116
56 42 SCRA 561, 565 (December 20, 1971), citing
Moy Ya Lim Yao vs. Commissioner of Immigration,
L-21289, October 4, 1971.
57 Art. IX, Sec. 2.
58 SPC No. 95-317 is entitled "Annulment of
Proclamation" and contains the following prayer:
"WHEREFORE, it is most respectfully prayed of
this Honorable Commission that after due notice
and hearing an Oder (sic) /Resolution/ Decision be
issued as follows:
a) Annulling/setting aside the 30 June 1995
proclamation of respondent as the duly election
(sic), Governor of Sorsogon for being contrary to
law;
b) Ordering the proclamation of the petitioner as
duly elected governor of Sorsogon;
xxx xxx xxx
59 229 SCRA 666, 674 (February 4, 1994).
60 211 SCRA 297, 309 (July 3, 1992),
61 G.R. No. 120265, September 18, 1995.
62 Supra, at p. 312.
63 See footnotes 2 and 3.
64 174 SCRA 245, 254 (June 23,1959).
65 Salonga and Yap, Public International Law,
1966 ed., p. 239.
66 In Espinosa vs. Aquino, (Electoral Case No. 9,
Senate Electoral Tribunal [SET]), the election of
the late Senator Benigno S. Aquino, Jr. was
upheld, despite his not being of the required age
on the day of the election, although he celebrated
his thirty-fifth birthday before his proclamation.
Much later, in 1990, this Court held in Aznar vs.
Comelec (185 SCRA 703, May 25, 1990) that even
if Emilio "Lito" Osmena held an Alien Certificate of
Registration as an American citizen, he was still
not disqualified from occupying the local elective
post of governor, since such certificate did not
preclude his being "still a Filipino." The holding in
Aquino was subsequently nullified by the adoption
of the 1987 Constitution (Art. VI, Sec. 3), which
specified that the age qualification must be
possessed on the day of the elections, and not on
the day of the proclamation of the winners by the
board of canvassers. On the other hand, Sec. 40
of Republic Act No. 7160 (Local Government Code
of 1991 ) which took effect on January 1, 1992 ,
provides that those with dual citizenship are
disqualified from running for any elective local
position, and effectively overturns the ruling in
Aznar. But the point is that to the extent possible,
and unless there exist provisions to the contrary,
the laws have always been interpreted to give
fullest effect to the political will.
67 Benito vs. Commission on Elections, 235 SCRA
436, 442 (August 17, 1994).
68 This antagonism was clearly present in the
two earlier cases involving Frivaldo. See footnote
no. 6.
SECOND DIVISION
[G.R. No. 130872. March 25, 1999]
FRANCISCO M. LECAROZ and LENLIE LECAROZ,
petitioners, vs. SANDIGANBAYAN and PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
FRANCISCO M. LECAROZ and LENLIE LECAROZ,
father and son, were convicted by the
Sandiganbayan of thirteen (13) counts of estafa
through falsification of public documents. They
now seek a review of their conviction as they
insist on their innocence.
Petitioner Francisco M. Lecaroz was the Municipal
Mayor of Santa Cruz, Marinduque, while his son,
his co-petitioner Lenlie Lecaroz, was the outgoing
chairman of the Kabataang Barangay (KB) of
Barangay Bagong Silang, Municipality of Santa
Cruz, and concurrently a member of its
Sangguniang Bayan (SB) representing the
Federation of Kabataang Barangays.
In the 1985 election for the Kabataang Barangay
Jowil Red won as KB Chairman of Barangay
Matalaba, Santa Cruz. Parenthetically, Lenlie
Lecaroz did not run as candidate in this electoral
exercise as he was no longer qualified for the
position after having already passed the age limit
fixed by law.
Sometime in November 1985 Red was appointed
by then President Ferdinand Marcos as member of
the Sangguniang Bayan of Santa Cruz
representing the KBs of the municipality. Imee
Marcos-Manotoc, then the National Chairperson of
the organization, sent a telegram to Red
confirming his appointment and advising him
further that copies of his appointment papers
would be sent to him in due time through the KB
Regional Office. Red received the telegram on 2
January 1986 and showed it immediately to Mayor
Francisco M. Lecaroz.
On 7 January 1986, armed with the telegram and
intent on assuming the position of sectoral
representative of the KBs to the SB, Red attended
the meeting of the Sanggunian upon the invitation
of one of its members, Kagawad Rogato
Lumawig. In that meeting, Mayor Francisco M.
Lecaroz informed Red that he could not yet sit as
member of the municipal council until his
appointment had been cleared by the Governor of
Marinduque. Nonetheless, the telegram was
included in the agenda as one of the subjects
discussed in the meeting.
Red finally received his appointment papers
sometime in January 1986. But it was only on 23
April 1986, when then President Corazon C.
Aquino was already in power, that he forwarded
these documents to Mayor Lecaroz. This
notwithstanding, Red was still not allowed by the
mayor to sit as sectoral representative in the
Sanggunian.
Meanwhile, Mayor Lecaroz prepared and approved
on different dates the payment to Lenlie Lecaroz
of twenty-six (26) sets of payrolls for the twenty-
six (26) quincenas covering the period 16 January
1986 to 30 January 1987. Lenlie Lecaroz signed
the payroll for 1-15 January 1986 and then
authorized someone else to sign all the other
payrolls for the succeeding quincenas and claim
the corresponding salaries in his behalf.
On 25 October 1989, or three (3) years and nine
(9) months from the date he received his
appointment papers from President Marcos, Red
was finally able to secure from the Aquino
Administration a confirmation of his appointment
as KB Sectoral Representative to the Sanggunian
Bayan of Santa Cruz.
Subsequently, Red filed with the Office of the
Ombudsman several criminal complaints against
Mayor Francisco Lecaroz and Lenlie Lecaroz
arising from the refusal of the two officials to let
him assume the position of KB sectoral
representative. After preliminary investigation,
the Ombudsman filed with the Sandiganbayan
thirteen (13) Informations for estafa through
falsification of public documents against
petitioners, and one (1) Information for violation
of Sec. 3, par. (e), of RA No. 3019, the Anti-Graft
and Corrupt Practices Act, against Mayor Lecaroz
alone.
On 7 October 1994 the Sandiganbayan rendered a
decision finding the two (2) accused guilty on all
counts of estafa through falsification of public
documents and sentenced each of them to -
a) imprisonment for an indeterminate period
ranging from a minimum of FIVE (5) YEARS,
ELEVEN (11) MONTHS AND ONE (1) DAY of prision
correccional to a maximum of TEN (10) YEARS
AND ONE (1) DAY of prison mayor FOR EACH OF
THE ABOVE CASES;
b) a fine in the amount of FIVE THOUSAND PESOS
(P5,000) FOR EACH OF THE ABOVE CASES or a
total of SIXTY-FIVE THOUSAND PESOS (P65,000),
and
c) perpetual special disqualification from public
office in accordance with Art. 214 of the Revised
Penal Code.
x x x (and) to pay jointly and severally the amount
of TWENTY-THREE THOUSAND SIX HUNDRED
SEVENTY-FIVE PESOS (P23,675), the amount
unlawfully obtained, to the Municipality of Sta.
Cruz, Marinduque in restitution.
The Sandiganbayan ruled that since Red was
elected president of the KB and took his oath of
office sometime in 1985 before then
Assemblywoman Carmencita O. Reyes his
assumption of the KB presidency upon the
expiration of the term of accused Lenlie Lecaroz
was valid. Conversely, the accused Lenlie Lecaroz
ceased to be a member of the KB on the last
Sunday of November 1985 and, as such, was no
longer the legitimate representative of the youth
sector in the municipal council of Sta. Cruz,
Marinduque.
In convicting both accused on the falsification
charges, the Sandiganbayan elucidated -
x x x x when, therefore, accused MAYOR
FRANCISCO LECAROZ entered the name of his
son, the accused LENLIE LECAROZ, in the payroll
of the municipality of Sta. Cruz for the payroll
period starting January 15, 1986, reinstating
accused LENLIE LECAROZ to his position in the
Sangguniang Bayan, he was deliberately stating a
falsity when he certified that LENLIE LECAROZ
was a member of the Sangguniang Bayan. The
fact is that even accused LENLIE LECAROZ himself
no longer attended the sessions of the
Sangguniang Bayan of Sta. Cruz, and starting with
the payroll for January 16 to 31, 1986, did not
personally pick up his salaries anymore.
The accused MAYOR's acts would fall under Art.
171, par. 4, of The Revised Penal Code which
reads:
Art. 171. Falsification by public officer, employee
or notary or ecclesiastical minister. - The penalty
of prision mayor and a fine not to exceed 5,000
pesos shall be imposed upon any public officer,
employee, or notary public who, taking advantage
of his official position, shall falsify a document by
committing any of the following acts: x x x x 4.
Making untruthful statements in a narration of
facts.
xxxx
Clearly, falsification of public documents has been
committed by accused MAYOR LECAROZ.
Likewise from these acts of falsification, his son,
accused LENLIE LECAROZ, was able to draw
salaries from the municipality to which he was not
entitled for services he had admittedly not
rendered. This constitutes Estafa x x x x the
deceit being the falsification made, and the
prejudice being that caused to the municipality of
Sta. Cruz, Marinduque for having paid salaries to
LENLIE LECAROZ who was not entitled thereto.
Conspiracy was alleged in the Informations
herein, and the Court found the allegation
sufficiently substantiated by the evidence
presented.
There is no justifiable reason why accused MAYOR
LECAROZ should have reinstated his son LENLIE in
the municipal payrolls from January 16, 1986 to
January 31, 1987, yet he did so. He could not
have had any other purpose than to enable his
son LENLIE to draw salaries thereby. This
conclusion is inescapable considering that the
very purpose of a payroll is precisely that -- to
authorize the payment of salaries. And LENLIE
LECAROZ did his part by actually drawing the
salaries during the periods covered, albeit
through another person whom he had authorized.
By the facts proven, there was conspiracy in the
commission of Estafa between father and son.
However, with respect to the charge of violating
Sec. 3, par. (e), of RA No. 3.019, the
Sandiganbayan acquitted Mayor Francisco
Lecaroz. It found that Red was neither authorized
to sit as member of the SB because he was not
properly appointed thereto nor had he shown to
the mayor sufficient basis for his alleged right to a
seat in the municipal council. On this basis, the
court a quo concluded that Mayor Lecaroz was
legally justified in not allowing Red to assume the
position of Kagawad.
On 1 October 1994 the Sandiganbayan denied the
motion for reconsideration of its decision filed by
the accused. This prompted herein petitioners to
elevate their cause to us charging that the
Sandiganbayan erred:
First, in holding that Red had validly and
effectively assumed the office of KB Federation
President by virtue of his oath taken before then
Assemblywoman Carmencita Reyes on 27
September 1985, and in concluding that the
tenure of accused Lenlie Lecaroz as president of
the KB and his coterminous term of office as KB
representative to the SB had accordingly expired;
Second, assuming arguendo that the term of
office of the accused Lenlie Lecaroz as youth
representative to the SB had expired, in holding
that accused Lenlie Lecaroz could no longer
occupy the office, even in a holdover capacity,
despite the vacancy therein;
Third, granting arguendo that the tenure of the
accused Lenlie Lecaroz as federation president
had expired, in holding that by reason thereof
accused Lenlie Lecaroz became legally
disqualified from continuing in office as KB
Sectoral Representative to the SB even in a
holdover capacity;
Fourth, in not holding that under Sec. 2 of the
Freedom Constitution and pursuant to the
provisions of the pertinent Ministry of Interior and
Local Governments (MILG) interpretative circulars,
accused Lenlie Lecaroz was legally entitled and
even mandated to continue in office in a holdover
capacity;
Fifth, in holding that the accused had committed
the crime of falsification within the contemplation
of Art. 171 of The Revised Penal Code, and in not
holding that the crime of estafa of which they had
been convicted required criminal intent and
malice as essential elements;
Sixth, assuming arguendo that the accused Lenlie
Lecaroz was not legally entitled to hold over, still
the trial court erred in not holding - considering
the difficult legal questions involved - that the
accused acted in good faith and committed
merely an error of judgment, without malice and
criminal intent; and,
Seventh, in convicting the accused for crimes
committed in a manner different from that alleged
in the Information under which the accused were
arraigned and tried.
The petition is meritorious. The basic propositions
upon which the Sandiganbayan premised its
conviction of the accused are: (a) although Jowil
Red was duly elected KB Chairman he could not
validly assume a seat in the Sanggunian as KB
sectoral representative for failure to show a valid
appointment; and, (b) Lenlie Lecaroz who was the
incumbent KB representative could not hold over
after his term expired because pertinent laws do
not provide for holdover.
To resolve these issues, it is necessary to refer to
the laws on the terms of office of KB youth
sectoral representatives to the SB and of the KB
Federation Presidents. Section 7 of BP Blg. 51
and Sec. 1 of the KB Constitution respectively
provide -
Sec. 7. Term of Office. - Unless sooner removed
for cause, all local elective officials hereinabove
mentioned shall hold office for a term of six (6)
years, which shall commence on the first Monday
of March 1980.
In the case of the members of the sanggunian
representing the association of barangay councils
and the president of the federation of kabataang
barangay, their terms of office shall be
coterminous with their tenure is president of their
respective association and federation .
xxxx
Sec 1. All incumbent officers of the Kabataang
Barangay shall continue to hold office until the
last Sunday of November 1985 or such time that
the newly elected officers shall have qualified and
assumed office in accordance with this
Constitution.
The theory of petitioners is that Red failed to
qualify as KB sectoral representative to the SB
since he did not present an authenticated copy of
his appointment papers; neither did he take a
valid oath of office. Resultantly, this enabled
petitioner Lenlie Lecaroz to continue as member
of the SB although in a holdover capacity since his
term had already expired. The Sandiganbayan
however rejected this postulate declaring that the
holdover provision under Sec. 1 quoted above
pertains only to positions in the KB, clearly
implying that since no similar provision is found in
Sec. 7 of B.P. Blg. 51, there can be no holdover
with respect to positions in the SB.
We disagree with the Sandiganbayan. The
concept of holdover when applied to a public
officer implies that the office has a fixed term and
the incumbent is holding onto the succeeding
term. It is usually provided by law that officers
elected or appointed for a fixed term shall remain
in office not only for that term but until their
successors have been elected and qualified.
Where this provision is found, the office does not
become vacant upon the expiration of the term if
there is no successor elected and qualified to
assume it, but the present incumbent will carry
over until his successor is elected and qualified,
even though it be beyond the term fixed by law.
In the instant case, although BP Blg. 51 does not
say that a Sanggunian member can continue to
occupy his post after the expiration of his term in
case his successor fails to qualify, it does not also
say that he is proscribed from holding over.
Absent an express or implied constitutional or
statutory provision to the contrary, an officer is
entitled to stay in office until his successor is
appointed or chosen and has qualified. The
legislative intent of not allowing holdover must be
clearly expressed or at least implied in the
legislative enactment, otherwise it is reasonable
to assume that the law-making body favors the
same.
Indeed, the law abhors a vacuum in public offices,
and courts generally indulge in the strong
presumption against a legislative intent to create,
by statute, a condition which may result in an
executive or administrative office becoming, for
any period of time, wholly vacant or unoccupied
by one lawfully authorized to exercise its
functions. This is founded on obvious
considerations of public policy, for the principle of
holdover is specifically intended to prevent public
convenience from suffering because of a vacancy
and to avoid a hiatus in the performance of
government functions.
The Sandiganbayan maintained that by taking his
oath of office before Assemblywoman Reyes in
1985 Red validly assumed the presidency of the
KB upon the expiration of the term of Lenlie
Lecaroz. It should be noted however that under
the provisions of the Administrative Code then in
force, specifically Sec. 21, Art. VI thereof,
members of the then Batasang Pambansa were
not authorized to administer oaths. It was only
after the approval of RA No. 6733on 25 July 1989
and its subsequent publication in a newspaper of
general circulation that members of both Houses
of Congress were vested for the first time with the
general authority to administer oaths. Clearly,
under this circumstance, the oath of office taken
by Jowil Red before a member of the Batasang
Pambansa who had no authority to administer
oaths, was invalid and amounted to no oath at all.
To be sure, an oath of office is a qualifying
requirement for a public office; a prerequisite to
the full investiture with the office. Only when the
public officer has satisfied the prerequisite of oath
that his right to enter into the position becomes
plenary and complete. Until then, he has none at
all. And for as long as he has not qualified, the
holdover officer is the rightful occupant. It is thus
clear in the present case that since Red never
qualified for the post, petitioner Lenlie Lecaroz
remained KB representative to the Sanggunian,
albeit in a carry over capacity, and was in every
aspect a de jure officer, or at least a de facto
officer entitled to receive the salaries and all the
emoluments appertaining to the position. As
such, he could not be considered an intruder and
liable for encroachment of public office.
On the issue of criminal liability of petitioners,
clearly the offenses of which petitioners were
convicted, i.e., estafa through falsification of
public documents under Art. 171, par. 4, of The
Revised Penal Code, are intentional felonies for
which liability attaches only when it is shown that
the malefactors acted with criminal intent or
malice. If what is proven is mere judgmental error
on the part of the person committing the act, no
malice or criminal intent can be rightfully imputed
to him. Was criminal intent then demonstrated to
justify petitioners' conviction? It does not so
appear in the case at bar.
Ordinarily, evil intent must unite with an unlawful
act for a crime to exist. Actus non facit reum, nisi
mens sit rea. There can be no crime when the
criminal mind is wanting. As a general rule,
ignorance or mistake as to particular facts, honest
and real, will exempt the doer from felonious
responsibility. The exception of course is neglect
in the discharge of a duty or indifference to
consequences, which is equivalent to a criminal
intent, for in this instance, the element of
malicious intent is supplied by the element of
negligence and imprudence In the instant case,
there are clear manifestations of good faith and
lack of criminal intent on the part of petitioners.
First. When Jowil Red showed up at the meeting of
the Sanggunian on 7 January 1986, what he
presented to Mayor Francisco Lecaroz was a mere
telegram purportedly sent by Imee Marcos-
Manotoc informing him of his supposed
appointment to the SB, together with a photocopy
of a "Mass Appointment." Without authenticated
copies of the appointment papers, Red had no
right to assume office as KB representative to the
Sanggunian, and petitioner Mayor Lecaroz had
every right to withhold recognition, as he did, of
Red as a member of the Sanggunian.
Second. It appears from the records that although
Red received his appointment papers signed by
President Marcos in January 1986, he forwarded
the same to Mayor Francisco Lecaroz only on 23
April 1986 during which time President Marcos
had already been deposed and President Aquino
had already taken over the helm of government.
On 25 March 1986 the Freedom Constitution
came into being providing in Sec. 2 of Art. III
thereof that -
Sec. 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 of their successors if such
appointment is made within a period of one (1)
year from February 26, 1986 (underscoring
supplied).
Duty bound to observe the constitutional
mandate, petitioner Francisco Lecaroz through
the provincial governor forwarded the papers of
Jowil Red to then Minister of Interior and Local
Government Aquilino Pimentel, Jr., requesting
advice on the validity of the appointment signed
by former President Marcos. The response was
the issuance of MILG Provincial Memorandum-
Circular No. 86-02 and Memorandum-Circular No.
86-17 stating that -
PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02
2. That newly elected KB Federation Presidents,
without their respective authenticated
appointments from the president, cannot, in any
way, represent their associations in any
sangguniang bayan/sangguniang panlalawigan, as
the case may be, although they are still
considered presidents of their federations by
virtue of the July 1985 elections.
MEMORANDUM CIRCULAR NO. 86-17
It is informed, however, that until replaced by the
Office of the President or by this Ministry the
appointive members of the various Sangguniang
Bayan, Sangguniang Panlunsod, and the
Sangguniang Panlalawigan shall continue to hold
office and to receive compensation due them
under existing laws, rules and regulations.
The pertinent provisions of the Freedom
Constitution and the implementing MILG Circulars
virtually confirmed the right of incumbent KB
Federation Presidents to hold and maintain their
positions until duly replaced either by the
President herself or by the Interior Ministry.
Explicit therein was the caveat that newly elected
KB Federation Presidents could not assume the
right to represent their respective associations in
any Sanggunian unless their appointments were
authenticated by then President Aquino herself.
Truly, prudence impelled Mayor Lecaroz to take
the necessary steps to verify the legitimacy of
Red's appointment to the Sanggunian.
Third. Petitioners presented six (6) certified copies
of opinions of the Secretaries of Justice of
Presidents Macapagal, Marcos and Aquino
concerning the doctrine of holdover. This
consistently expressed the view espoused by the
executive branch for more than thirty (30) years
that the mere fixing of the term of office in a
statute without an express prohibition against
holdover is not indicative of a legislative intent to
prohibit it, in light of the legal principle that just
as nature abhors a vacuum so does the law abhor
a vacancy in the government. Reliance by
petitioners on these opinions, as well as on the
pertinent directives of the then Ministry of Interior
and Local Government, provided them with an
unassailable status of good faith in holding over
and acting on such basis; and,
Fourth. It is difficult to accept that a person,
particularly one who is highly regarded and
respected in the community, would deliberately
blemish his good name, and worse, involve his
own son in a misconduct for a measly sum of
P23,675.00, such as this case before us. As aptly
deduced by Justice Del Rosario
If I were to commit a crime, would I involve my
son in it? And if I were a town mayor, would I ruin
my name for the measly sum of P1,894.00 a
month? My natural instinct as a father to protect
my own son and the desire, basic in every man, to
preserve one's honor and reputation would
suggest a resounding NO to both questions. But
the prosecution ventured to prove in these
thirteen cases that precisely because they were
father and son and despite the relatively small
amount involved, accused Mayor Francisco
Lecaroz conspired with Lenlie Lecaroz to falsify
several municipal payrolls for the purpose of
swindling their own town of the amount of
P1,894.00 a month, and the majority has found
them guilty. I find discomfort with this verdict
basically for the reason that there was no criminal
intent on their part to falsify any document or to
swindle the government.
The rule is that any mistake on a doubtful or
difficult question of law may be the basis of good
faith. In Cabungcal v. Cordova we affirmed the
doctrine that an erroneous interpretation of the
meaning of the provisions of an ordinance by a
city mayor does not amount to bad faith that
would entitle an aggrieved party to damages
against that official. We reiterated this principle
in Mabutol v. Pascual which held that public
officials may not be liable for damages in the
discharge of their official functions absent any
bad faith. Sanders v. Veridiano II expanded the
concept by declaring that under the law on public
officers, acts done in the performance of official
duty are protected by the presumption of good
faith.
In ascribing malice and bad faith to petitioner
Mayor Lecaroz, the Sandiganbayan cited two (2)
circumstances which purportedly indicated
criminal intent. It pointed out that the name of
accused Lenlie Lecaroz was not in the municipal
payroll for the first quincena of 1986 which meant
that his term had finally ended, and that the
reinstatement of Lenlie Lecaroz by Mayor
Francisco Lecaroz in the payroll periods from 15
January 1986 and thereafter for the next twelve
and a half (12 -1/2) months was for no other
purpose than to enable him to draw salaries from
the municipality. There is however no evidence,
documentary or otherwise, that Mayor Francisco
Lecaroz himself caused the name of Lenlie
Lecaroz to be dropped from the payroll for the
first quincena of January 1986. On the contrary, it
is significant that while Lenlie Lecaroz' name did
not appear in the payroll for the first quincena of
January 1986, yet, in the payroll for the next
quincena accused Lenlie Lecaroz was paid for
both the first and second quincenas, and not
merely for the second half of the month which
would have been the case if he was actually
"dropped" from the payroll for the first fifteen (15)
days and then "reinstated" in the succeeding
payroll period, as held by the court a quo.
From all indications, it is possible that the
omission was due to the inadequate
documentation of Red's appointment to and
assumption of office, or the result of a mere
clerical error which was later rectified in the
succeeding payroll. This however cannot be
confirmed by the evidence at hand. But since a
doubt is now created about the import of such
omission, the principle of equipoise should
properly apply. This rule demands that all
reasonable doubt intended to demonstrate error
and not a crime should be resolved in favor of the
accused. If the inculpatory facts and
circumstances are capable of two or more
explanations, one of which is consistent with the
innocence of the accused and the other with his
guilt, then the evidence does not fulfill the test of
moral certainty and is not sufficient to support a
conviction.
Petitioners have been convicted for falsification of
public documents through an untruthful narration
of facts under Art. 171, par. 4, of The Revised
Penal Code. For the offense to be established, the
following elements must concur: (a) the offender
makes in a document statements in a narration of
facts; (b) the offender has a legal obligation to
disclose the truth of the facts narrated; (c) the
facts narrated by the offender are absolutely
false; and, (d) the perversion of truth in the
narration of facts was made with the wrongful
intent of injuring a third person.
The first and third elements of the offense have
not been established in this case. In approving
the payment of salaries to Lenlie Lecaroz, Mayor
Francisco Lecaroz signed uniformly-worded
certifications thus -
I hereby certify on my official oath that the above
payroll is correct, and that the services above
stated have been duly rendered. Payment for
such services is also hereby approved from the
appropriations indicated.
When Mayor Lecaroz certified to the correctness
of the payroll, he was making not a narration of
facts but a conclusion of law expressing his belief
that Lenlie Lecaroz was legally holding over as
member of the Sanggunian and thus entitled to
the emoluments attached to the position. This is
an opinion undoubtedly involving a legal matter,
and any "misrepresentation" of this kind cannot
constitute the crime of false pretenses. In People
v. Yanza we ruled -
Now then, considering that when defendant
certified she was eligible for the position, she
practically wrote a conclusion of law which turned
out to be inexact or erroneous - not entirely
groundless - we are all of the opinion that she
may not be declared guilty of falsification,
specially because the law which she has allegedly
violated (Art. 171, Revised Penal Code, in
connection with other provisions), punishes the
making of untruthful statements in a narration of
facts - emphasis on facts x x x x Unfortunately,
she made a mistake of judgment; but she could
not be held thereby to have intentionally made a
false statement of fact in violation of Art. 171
above-mentioned.
The third element requiring that the narration of
facts be absolutely false is not even adequately
satisfied as the belief of Mayor Francisco Lecaroz
that Lenlie Lecaroz was a holdover member of the
Sanggunian was not entirely bereft of basis,
anchored as it was on the universally accepted
doctrine of holdover. La mera inexactitude no es
bastante para integrar este delito. If the
statements are not altogether false, there being
some colorable truth in them, the crime of
falsification is deemed not to have been
committed.
Finally, contrary to the finding of the
Sandiganbayan, we hold that conspiracy was not
proved in this case. The court a quo used as
indication of conspiracy the fact that the accused
Mayor certified the payrolls authorizing payment
of compensation to his son Lenlie Lecaroz and
that as a consequence thereof the latter collected
his salaries. These are not legally acceptable
indicia, for they are the very same acts alleged in
the Informations as constituting the crime of
estafa through falsification. They cannot qualify
as proof of complicity or unity of criminal intent.
Conspiracy must be established separately from
the crime itself and must meet the same degree
of proof, i.e., proof beyond reasonable doubt.
While conspiracy need not be established by
direct evidence, for it may be inferred from the
conduct of the accused before, during and after
the commission of the crime, all taken together
however, the evidence must reasonably be strong
enough to show community of criminal design.
Perhaps subliminally aware of the paucity of
evidence to support it, and if only to buttress its
finding of conspiracy, the Sandiganbayan stressed
that the two accused are father and son.
Granting that this is not even ad hominem, we are
unaware of any presumption in law that a
conspiracy exists simply because the conspirators
are father and son or related by blood.
WHEREFORE, the petition is GRANTED. The
assailed Decision of 7 October 1994 and
Resolution of 1 October 1997 of the
Sandiganbayan are REVERSED and SET ASIDE,
and petitioners FRANCISCO M. LECAROZ and
LENLIE LECAROZ are ACQUITTED of all the
thirteen (13) counts of estafa through falsification
of public documents (Crim. Cases Nos. 13904-
13916). The bail bonds posted for their
provisional liberty are cancelled and released.
Costs de oficio.
SO ORDERED.
Puno, Mendoza, Quisumbing, and Buena, JJ.,
concur.
Crim. Cases Nos. 13904-13916, People v.
Francisco M. Lecaroz and Lenlie Lecaroz, assigned
to the First Division, Sandiganbayan.
Also referred to in the records as "Joel Red."
Rollo, p. 68.
TSN, 23 October 1991, p. 30.
Id., pp. 32-33.
State v. Simon, 26 P. 170, 20 Or. 365, 377.
Mechem, A Treatise on the Law of Public Offices
and Officers, Sec. 397, pp. 257-258. See Nuevo v.
Angeles, 76 Phil. 12 (1946).
46 Corpus Juris 964, 968.
See Note 7.
See Duldulao v. Ramos, 91 Phil. 261 (1952).
Johnson v. Collins, 464 P.2d 647, 11 Ariz. App.
327.
State ex rel. Barnes v. Holbrook, 70 A.2d 556, 136
Conn. 312.
Foley v. McNab, 248 N.Y.S.2d 354, 42 Misc.2d
460.
"An Act to Amend Section 21, Title I, Book I of the
Revised Administrative Code, and Section 41,
Book I of the Administrative Code of 1987,
Granting Members of Both Houses of the
Congress of the Philippines the General Authority
to Administer Oaths, and for Other Purposes."
Smith v. County Engineering of San Diego County,
72 Cal. Rptr. 501, 266 C.A. 2d 645.
Tappy v. State ex rel. Byington, 82 So. 2d 161.
Kreidler v. State, 24 Ohio St. 22.
Ibid.
People v. Beronilla, 96 Phil. 566 (1955).
People v. Pacana, 47 Phil. 49 (1924).
Records, p. 119, Annex "I-1."
Id., pp.101-102, Annex "F."
Rollo, pp. 135-147, Annexes "D" to "I."
Concurring and Dissenting Opinion of Justice Del
Rosario; Rollo, p. 167, Annex "A-2."
Mendiola v. People, G.R. Nos. 89983-84, 6 March
1992, 207 SCRA 85, 96.
No. L-16934, 31 July, 1964, 11 SCRA 584.
G.R. No. 60898, 29 September 1983, 124 SCRA
867.
No. L-46930, 10 June 1988, 162 SCRA 88.
Decision, pp. 20-23, Annex "A."
See Note 20.
22 Am. Jur. 454, cited in People v. Yanza, 107 Phil.
888 (1960).
Ibid.
Reyes, The Revised Penal Code, Bk. II, 1981 Rev.
Ed., p. 222, citing Cuello Calon, Derecho Penal,
6th Ed., Vol. II, p. 216.
Magcusi v. Sandiganbayan, G.R. No. 101545, 3
January 1995, 240 SCRA 13.
``` Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 160869 May 11, 2007
AASJS (ADVOCATES AND ADHERENTS OF
SOCIAL JUSTICE FOR SCHOOL TEACHERS
AND ALLIED WORKERS) MEMBER - HECTOR
GUMANGAN CALILUNG, Petitioner,
vs.
THE HONORABLE SIMEON DATUMANONG, in
his official capacity as the Secretary of
Justice, Respondent.
DECISION
QUISUMBING, J.:
This is an original action for prohibition under Rule
65 of the 1997 Revised Rules of Civil Procedure.
Petitioner filed the instant petition against
respondent, then Secretary of Justice Simeon
Datumanong, the official tasked to implement
laws governing citizenship.1 Petitioner prays that
a writ of prohibition be issued to stop respondent
from implementing Republic Act No. 9225,
entitled "An Act Making the Citizenship of
Philippine Citizens Who Acquire Foreign
Citizenship Permanent, Amending for the Purpose
Commonwealth Act No. 63, As Amended, and for
Other Purposes." Petitioner avers that Rep. Act
No. 9225 is unconstitutional as it violates Section
5, Article IV of the 1987 Constitution that states,
"Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law."
Rep. Act No. 9225, signed into law by President
Gloria M. Arroyo on August 29, 2003, reads:
SECTION 1. Short Title.-This Act shall be known as
the "Citizenship Retention and Reacquisition Act
of 2003."
SEC. 2. Declaration of Policy.-It is hereby declared
the policy of the State that all Philippine citizens
who become citizens of another country shall be
deemed not to have lost their Philippine
citizenship under the conditions of this Act.
SEC. 3. Retention of Philippine Citizenship.-Any
provision of law to the contrary notwithstanding,
natural-born citizens of the Philippines who have
lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country are
hereby deemed to have reacquired Philippine
citizenship upon taking the following oath of
allegiance to the Republic:
"I ___________________________, solemnly swear (or
affirm) that I will support and defend the
Constitution of the Republic of the Philippines and
obey the laws and legal orders promulgated by
the duly constituted authorities of the Philippines;
and I hereby declare that I recognize and accept
the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and
that I impose this obligation upon myself
voluntarily without mental reservation or purpose
of evasion."
Natural-born citizens of the Philippines who, after
the effectivity of this Act, become citizens of a
foreign country shall retain their Philippine
citizenship upon taking the aforesaid oath.
SEC. 4. Derivative Citizenship. - The unmarried
child, whether legitimate, illegitimate or adopted,
below eighteen (18) years of age, of those who
reacquire Philippine citizenship upon effectivity of
this Act shall be deemed citizens of the
Philippines.
SEC. 5. Civil and Political Rights and Liabilities. -
Those who retain or reacquire Philippine
citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant
liabilities and responsibilities under existing laws
of the Philippines and the following conditions:
(1) Those intending to exercise their right
of suffrage must meet the requirements
under Section 1, Article V of the
Constitution, Republic Act No. 9189,
otherwise known as "The Overseas
Absentee Voting Act of 2003" and other
existing laws;
(2) Those seeking elective public office in
the Philippines shall meet the
 qualifications for holding such public office
as required by the Constitution and
existing laws and, at the time of the filing
of the certificate of candidacy, make a
personal and sworn renunciation of any
and all foreign citizenship before any
public officer authorized to administer an
oath;
(3) Those appointed to any public office
shall subscribe and swear to an oath of
allegiance to the Republic of the
Philippines and its duly constituted
authorities prior to their assumption of
office: Provided, That they renounce their
oath of allegiance to the country where
they took that oath;
(4) Those intending to practice their
profession in the Philippines shall apply
with the proper authority for a license or
permit to engage in such practice; and
(5) That right to vote or be elected or
appointed to any public office in the
Philippines cannot be exercised by, or
extended to, those who:
(a) are candidates for or are occupying any
public office in the country of which they
are naturalized citizens; and/or
(b) are in the active service as
commissioned or noncommissioned
officers in the armed forces of the country
which they are naturalized citizens.
SEC. 6. Separability Clause. - If any section or
provision of this Act is held unconstitutional or
invalid, any other section or provision not affected
thereby shall remain valid and effective.
SEC. 7. Repealing Clause. - All laws, decrees,
orders, rules and regulations inconsistent with the
provisions of this Act are hereby repealed or
modified accordingly.
SEC. 8. Effectivity Clause. - This Act shall take
effect after fifteen (15) days following its
publication in the Official Gazette or two (2)
newspapers of general circulation.
In this petition for prohibition, the following issues
have been raised: (1) Is Rep. Act No. 9225
unconstitutional? (2) Does this Court have
jurisdiction to pass upon the issue of dual
allegiance?
We shall discuss these issues jointly.
Petitioner contends that Rep. Act No. 9225
cheapens Philippine citizenship. He avers that
Sections 2 and 3 of Rep. Act No. 9225, together,
allow dual allegiance and not dual citizenship.
Petitioner maintains that Section 2 allows all
Filipinos, either natural-born or naturalized, who
become foreign citizens, to retain their Philippine
citizenship without losing their foreign citizenship.
Section 3 permits dual allegiance because said
law allows natural-born citizens of the Philippines
to regain their Philippine citizenship by simply
taking an oath of allegiance without forfeiting
their foreign allegiance.2 The Constitution,
however, is categorical that dual allegiance is
inimical to the national interest.
The Office of the Solicitor General (OSG) claims
that Section 2 merely declares as a state policy
that "Philippine citizens who become citizens of
another country shall be deemed not to have lost
their Philippine citizenship." The OSG further
claims that the oath in Section 3 does not allow
dual allegiance since the oath taken by the former
Filipino citizen is an effective renunciation and
repudiation of his foreign citizenship. The fact that
the applicant taking the oath recognizes and
accepts the supreme authority of the Philippines
is an unmistakable and categorical affirmation of
his undivided loyalty to the Republic.3
In resolving the aforecited issues in this case,
resort to the deliberations of Congress is
necessary to determine the intent of the
legislative branch in drafting the assailed law.
During the deliberations, the issue of whether
Rep. Act No. 9225 would allow dual allegiance had
in fact been the subject of debate. The record of
the legislative deliberations reveals the following:
xxxx
Pursuing his point, Rep. Dilangalen noted that
under the measure, two situations exist - - the
retention of foreign citizenship, and the
reacquisition of Philippine citizenship. In this case,
he observed that there are two citizenships and
therefore, two allegiances. He pointed out that
under the Constitution, dual allegiance is inimical
to public interest. He thereafter asked whether
with the creation of dual allegiance by reason of
retention of foreign citizenship and the
reacquisition of Philippine citizenship, there will
now be a violation of the Constitution…
Rep. Locsin underscored that the measure does
not seek to address the constitutional injunction
on dual allegiance as inimical to public interest.
He said that the proposed law aims to facilitate
the reacquisition of Philippine citizenship by
speedy means. However, he said that in one
sense, it addresses the problem of dual
citizenship by requiring the taking of an oath. He
explained that the problem of dual citizenship is
transferred from the Philippines to the foreign
country because the latest oath that will be taken
by the former Filipino is one of allegiance to the
Philippines and not to the United States, as the
case may be. He added that this is a matter which
the Philippine government will have no concern
and competence over.
Rep. Dilangalen asked why this will no longer be
the country's concern, when dual allegiance is
involved.
Rep. Locsin clarified that this was precisely his
objection to the original version of the bill, which
did not require an oath of allegiance. Since the
measure now requires this oath, the problem of
dual allegiance is transferred from the Philippines
to the foreign country concerned, he explained.
xxxx
Rep. Dilangalen asked whether in the particular
case, the person did not denounce his foreign
citizenship and therefore still owes allegiance to
the foreign government, and at the same time,
owes his allegiance to the Philippine government,
such that there is now a case of dual citizenship
and dual allegiance.
Rep. Locsin clarified that by swearing to the
supreme authority of the Republic, the person
implicitly renounces his foreign citizenship.
However, he said that this is not a matter that he
wishes to address in Congress because he is not a
member of a foreign parliament but a Member of
the House.
xxxx
Rep. Locsin replied that it is imperative that those
who have dual allegiance contrary to national
interest should be dealt with by law. However, he
said that the dual allegiance problem is not
addressed in the bill. He then cited the
Declaration of Policy in the bill which states that
"It is hereby declared the policy of the State that
all citizens who become citizens of another
country shall be deemed not to have lost their
Philippine citizenship under the conditions of this
Act." He stressed that what the bill does is
recognize Philippine citizenship but says nothing
about the other citizenship.
Rep. Locsin further pointed out that the problem
of dual allegiance is created wherein a natural-
born citizen of the Philippines takes an oath of
allegiance to another country and in that oath
says that he abjures and absolutely renounces all
allegiance to his country of origin and swears
allegiance to that foreign country. The original Bill
had left it at this stage, he explained. In the
present measure, he clarified, a person is required
to take an oath and the last he utters is one of
allegiance to the country. He then said that the
problem of dual allegiance is no longer the
problem of the Philippines but of the other foreign
country.4 (Emphasis supplied.)
From the above excerpts of the legislative record,
it is clear that the intent of the legislature in
drafting Rep. Act No. 9225 is to do away with the
provision in Commonwealth Act No. 635 which
takes away Philippine citizenship from natural-
born Filipinos who become naturalized citizens of
other countries. What Rep. Act No. 9225 does is
allow dual citizenship to natural-born Filipino
citizens who have lost Philippine citizenship by
reason of their naturalization as citizens of a
foreign country. On its face, it does not recognize
dual allegiance. By swearing to the supreme
authority of the Republic, the person implicitly
renounces his foreign citizenship. Plainly, from
Section 3, Rep. Act No. 9225 stayed clear out of
the problem of dual allegiance and shifted the
burden of confronting the issue of whether or not
there is dual allegiance to the concerned foreign
country. What happens to the other citizenship
was not made a concern of Rep. Act No. 9225.
Petitioner likewise advances the proposition that
although Congress has not yet passed any law on
the matter of dual allegiance, such absence of a
law should not be justification why this Court
could not rule on the issue. He further contends
that while it is true that there is no enabling law
yet on dual allegiance, the Supreme Court,
through Mercado v. Manzano,6 already had drawn
up the guidelines on how to distinguish dual
allegiance from dual citizenship.7
For its part, the OSG counters that pursuant to
Section 5, Article IV of the 1987 Constitution, dual
allegiance shall be dealt with by law. Thus, until a
law on dual allegiance is enacted by Congress,
the Supreme Court is without any jurisdiction to
entertain issues regarding dual allegiance.8
To begin with, Section 5, Article IV of the
Constitution is a declaration of a policy and it is
not a self-executing provision. The legislature still
has to enact the law on dual allegiance. In
Sections 2 and 3 of Rep. Act No. 9225, the
framers were not concerned with dual citizenship
per se, but with the status of naturalized citizens
who maintain their allegiance to their countries of
origin even after their naturalization.9 Congress
was given a mandate to draft a law that would set
specific parameters of what really constitutes dual
allegiance.10 Until this is done, it would be
premature for the judicial department, including
this Court, to rule on issues pertaining to dual (On leave)
allegiance. RENATO C. CONCHITA
CORONA CARPIO MORALES
Neither can we subscribe to the proposition of Associate Justice Asscociate Justice
petitioner that a law is not needed since the case
of Mercado had already set the guidelines for
determining dual allegiance. Petitioner misreads
Mercado. That case did not set the parameters of ADOLFO S.
DANTE O. TINGA
what constitutes dual allegiance but merely made AZCUNA
a distinction between dual allegiance and dual Asscociate Justice
Associate Justice
citizenship.

Moreover, in Estrada v. Sandiganbayan,11 we said

that the courts must assume that the legislature MINITA V. CHICO- CANCIO C.
is ever conscious of the borders and edges of its NAZARIO GARCIA
plenary powers, and passed laws with full Associate Justice Asscociate Justice
knowledge of the facts and for the purpose of
promoting what is right and advancing the welfare
of the majority. Hence, in determining whether
the acts of the legislature are in tune with the ANTONIO
PRESBITERO J.
fundamental law, we must proceed with judicial EDUARDO B.
restraint and act with caution and forbearance.12 VELASCO, JR.
NACHURA
The doctrine of separation of powers demands no Associate Justice
Asscociate Justice
less. We cannot arrogate the duty of setting the
parameters of what constitutes dual allegiance
when the Constitution itself has clearly delegated
the duty of determining what acts constitute dual CERTIFICATION
allegiance for study and legislation by Congress.
Pursuant to Section 13, Article VIII of the
WHEREFORE, the petition is hereby DISMISSED Constitution, I certify that the conclusions in the
for lack of merit. above Decision had been reached in consultation
before the case was assigned to the writer of the
SO ORDERED. opinion of the Court.

LEONARDO A. QUISUMBING REYNATO S. PUNO

Associate Justice Chief Justice

WE CONCUR:

REYNATO S. PUNO Footnotes

Chief Justice
1
Executive Order No. 292, also known as
the "Administrative Code of 1987," Book
CONSUELO ANGELINA IV, Title III, Chapter 1 (on the Department
YNARES- SANDOVAL- of Justice), states:
SANTIAGO GUTIERREZ
Associate Justice Asscociate Justice xxxx

SEC. 3. Powers and Functions. - To

accomplish its mandate, the
(On leave)
Department shall have the
MA. ALICIA following powers and functions:
ANTONIO T.
AUSTRIA-
CARPIO
MARTINEZ xxxx
Associate Justice
Asscociate Justice
(6) Provide immigration and
naturalization regulatory services
and implement the laws governing
 citizenship and the admission and ABUNDO, as members of the Board of the
stay of aliens; National Housing Authority from the period
covering 1991-1996, petitioners, vs. COMMISSION
xxxx ON AUDIT, represented by its Commissioners,
respondents.
2
Rollo, p. 9.
DECISION
3
Id. at 48.
SANDOVAL-GUTIERREZ, J.:
4
11 Journal, House of Representatives
(August 26, 2003). This petition for certiorari assails the Decision No.
98-381 dated September 22, 1998, rendered by
5
An Act Providing for the Ways in which the Commission on Audit (COA), denying
Philippine Citizenship may be Lost or petitioners’ appeal from the Notice of
Reacquired. (Approved on October 21, Disallowance No. 97-011-061 issued by the NHA
1936.) Resident Auditor on October 23, 1997. Such
Notice disallowed payment to petitioners of their
representation allowances and per diems for the
xxxx period from August 19, 1991 to August 31, 1996
in the total amount of P276,600.00.
SECTION 1. How citizenship may
be lost. - A Filipino citizen may lose Petitioners, numbering 20, were members of the
his citizenship in any of the Board of Directors of the National Housing
following ways and/or events: Authority (NHA) from 1991 to 1996.

(1) By naturalization in a foreign On September 19, 1997, the COA issued

country; Memorandum No. 97-038 directing all unit
heads/auditors/team leaders of the national
xxxx government agencies and government-owned and
controlled corporations which have effected
6
G.R. No. 135083, May 26, 1999, 307 payment of any form of additional compensation
SCRA 630. or remuneration to cabinet secretaries, their
deputies and assistants, or their representatives,
7
Id. at 643. in violation of the rule on multiple positions, to (a)
immediately cause the disallowance of such
8
Rollo, pp. 55-56. additional compensation or remuneration given to
and received by the concerned officials, and (b)
9
effect the refund of the same from the time of the
Supra note 7. finality of the Supreme Court En Banc Decision in
the consolidated cases of Civil Liberties Union vs.
10
Records, Constitutional Commission 365 Exexcutive Secretary and Anti-Graft League of the
(July 8, 1986). Philippines, Inc. et al. vs. Secretary of Agrarian
Reform, et al., promulgated on February 22, 1991.
11
G.R. No. 148560, November 19, 2001, The COA Memorandum further stated that the
369 SCRA 394. said Supreme Court Decision, which became final
and executory on August 19, 1991, declared
12
Id. at 431. Executive Order No. 284 unconstitutional insofar
as it allows Cabinet members, their deputies and
EN BANC assistants to hold other offices, in addition to their
primary offices, and to receive compensation
therefor.
[G.R. No. 138489. November 29, 2001]
Accordingly, on October 23, 1997, NHA Resident
ELEANOR DELA CRUZ, FEDERICO LUCHICO, JR., Auditor Salvador J. Vasquez issued Notice of
SOLEDAD EMILIA CRUZ, JOEL LUSTRIA, HENRY Disallowance No. 97-011-061 disallowing in audit
PAREL, HELENA HABULAN, PORFIRIO VILLENA, the payment of representation allowances and per
JOSEPH FRANCIA, CARMELLA TORRES, JOB DAVID, diems of "Cabinet members who were the ex-
CESAR MEJIA, MA. LOURDES V. DEDAL, ALICE officio members of the NHA Board of Directors
TIONGSON, REYDELUZ CONFERIDO, PHILIPPE LIM, and/or their respective alternates who actually
NERISSA SANCHEZ, MARY LUZ ELAINE PURACAN, received the payments." The total disallowed
RODOLFO QUIMBO, TITO GENILO and OSCAR
amount of P276,600 paid as representation DPWH Job
allowances and per diems to each of the David
petitioners named below, covering the period 6,750.00
from August 19, 1991 to August 31, 1996, is (1993-1994)
broken down as follows:
DPWH Cesar
“NATIONAL HOUSING AUTHORITY Mejia
SCHEDULE OF PAID 3,150.00
REPRESENTATION/PER DIEM OF THE (1993)
BOARD OF DIRECTORS
For the period August 19, 1991 to August 31, DOF Ma. Lourdes V. Dedal
1996 2,250.00
(1993)
AGENCY MEMBERS OF BOARD
OF AMOUNT DISALLOWED DTI Alice
Tiongson
DIRECTORS 900.00
(1994)
DOF Eleanor dela
Cruz DOLE Reynaluz
P25,200.00 Conferido 11,250.00
(1991-1993) (1994-1995)

DTI Federico Luchico, DOLE Philippe

Jr. 36,450.00 Lim 4,500.00
(1991-1992) (1994-1995)

DOF Soledad Emilia DOF Nerissa

Cruz 57,300.00 Sanchez
(1992-1995) 2,700.00
(1995)
DOLE Joel
Lustria DOF Mary Luz Elaine
4,500.00 Puracan 1,800.00
(1992) (1995)

DOLE Henry DOLE Rodolfo

Parel 2,250.00 Quimbo 7,200.00
(1992) (1995)

DOF Helena DOLE Tito

Habulan Genilo
4,050.00 14,400.00
(1993-1994) (1995)

DOF Porfirio DPWH Oscar

Villena Abundo
6,750.00 7,200.00
(1993) (1995-
1996)
DTI Joseph _____________
Francia
73,500.00
(1993-1995) P276,600.00”

DOLE Carmela
Torres 4,500.00 ============
(1993)
Petitioners, through then Chairman Dionisio C.
Dela Serna of the NHA Board of Directors,
appealed from the Notice of Disallowance to the
Commission on Audit based on the following
grounds:
1. The Decision of the Supreme Court in Civil
Liberties Union and Anti-Graft League of the
Philippines, Inc. was clarified in the Resolution of
the Court En Banc on August 1, 1991, in that the
constitutional ban against dual or multiple
positions applies only to the members of the
Cabinet, their deputies or assistants. It does not
cover other appointive officials with equivalent
rank or those lower than the position of Assistant
Secretary; and
2. The NHA Directors are not Secretaries,
Undersecretaries or Assistant Secretaries and that
they occupy positions lower than the position of
Assistant Secretary.
On September 22, 1998, the COA issued Decision
No. 98-381 denying petitioners' appeal, thus:
“After circumspect evaluation of the facts and
issues raised herein, this Commission finds the
instant appeal devoid of merit. It must be
stressed at the outset that the Directors
concerned were not sitting in the NHA Board in
their own right but as representatives of cabinet
members and who are constitutionally prohibited
from holding any other office or employment and
receive compensation therefor, during their
tenure (Section 13, Article VII, Constitution; Civil
Liberties Union vs. Executive Secretary, 194 SCRA
317).
“It may be conceded that the directors concerned
occupy positions lower than Assistant Secretary
which may exempt them from the prohibition
(under) the doctrine enunciated in Civil Liberties
Union vs. Executive Secretary, supra. However,
their positions are merely derivative; they derive
their authority as agents of the authority they are
representing; their power and authority is sourced
from the power and authority of the cabinet
members they are sitting for. Sans the cabinet
members, they are non-entities, without power
and without personality to act in any manner with
respect to the official transactions of the NHA.
The agent or representative can only validly act
and receive benefits for such action if the
principal authority he is representing can legally
do so for the agent can only do so much as his
principal can do. The agent can never be larger
than the principal. If the principal is absolutely
barred from holding any position in and absolutely
prohibited from receiving any remuneration from
the NHA or any government agency, for that
matter, so must the agent be. Indeed, the water
cannot rise above its source.”
Hence, this petition.
Presidential Decree No. 757 is the law "Creating
the National Housing Authority and dissolving the
existing housing agencies, defining its powers and
functions, providing funds therefor, and for other
purposes." Section 7 thereof provides:
“SEC. 7. Board of Directors. - The Authority
shall be governed by a Board of Directors,
hereinafter referred to as the Board, which shall
be composed of the Secretary of Public
Works, Transportation and Communication,
the Director-General of the National
Economic and Development Authority, the
Secretary of Finance, the Secretary of
Labor, the Secretary of Industry, the
Executive Secretary and the General
Manager of the Authority. From among the
members, the President will appoint a chairman.
The members of the Board may have their
respective alternates who shall be the officials
next in rank to them and whose acts shall be
considered the acts of their principals with
the right to receive their benefit: Provided, that in
the absence of the Chairman, the Board shall
elect a temporary presiding officer. x x x
(Emphasis ours)
It bears stressing that under the above provisions,
the persons mandated by law to sit as members
of the NHA Board are the following: (1) the
Secretary of Public Works, Transportation and
Communications, (2) the Director-General of the
National Economic and Development Authority,
(3) the Secretary of Finance, (4) the Secretary of
Labor, (5) the Secretary of Industry, (6) the
Executive Secretary, and (7) the General Manager
of the NHA. While petitioners are not among
those officers, however, they are “alternates” of
the said officers, “whose acts shall be considered
the acts of their principals”.
On this point, Section 13, Art. VII of the 1987
Constitution, provides:
“SEC. 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in
this Constitution, hold any other office or
employment during their tenure. They shall not,
during their tenure, directly or indirectly practice
any other profession, participate in any business,
or be financially interested in any contract with, or
in any franchise, or special privilege granted by
the Government or any subdivision, agency or
instrumentality thereof, including any
government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict
of interest in the conduct of their office.
“The spouse and relatives by consanguinity or
affinity within the fourth civil degree of the
President shall not during his tenure be appointed
as Members of the Constitutional Commissions, or
the Office of Ombudsman, or as Secretaries,
Undersecretaries, Chairmen, or heads of bureaus
of offices, including government-owned or
controlled corporations and their subsidiaries.”
Interpreting the foregoing Constitutional
provisions, this Court, in Civil Liberties Union and
Anti-Graft League of the Philippines, Inc., held:
“The prohibition against holding dual or multiple
offices or employment under Section 13, Article
VII of the Constitution must not, however, be
construed as applying to posts occupied by the
Executive officials specified therein without
additional compensation in an ex-officio capacity
as provided by law and as required by the primary
functions of said officials' office. The reason is
that these posts do not comprise ‘any other office’
within the contemplation of the constitutional
prohibition but are properly an imposition of
additional duties and functions on said officials. x
xx
xxx xx
x xxx
“To reiterate, the prohibition under Section 13,
Article VII is not to be interpreted as covering
positions held without additional compensation in
ex-officio capacities as provided by law and as
required by the primary functions of the
concerned official’s office. The term ex-officio
means ‘from office; by virtue of office’. It refers to
an ‘authority derived from official character
merely, not expressly conferred upon the
individual character, but rather annexed to the
official position.’ Ex-officio likewise denotes an
‘act done in an official character, or as a
consequence of office, and without any other
appointment or authority than that conferred by
the office.’ An ex-officio member of a board is
one who is a member by virtue of his title to a
certain office, and without further warrant or
appointment. To illustrate, by express provision
of law, the Secretary of Transportation and
Communications is the ex-officio Chairman of the
Board of the Philippine Ports Authority, and the
Light Rail Transit Authority.
xxx xx
x xxx
“The ex-officio position being actually and
in legal contemplation part of the principal
office, it follows that the official concerned
has no right to receive additional
compensation for his services in the said
position. The reason is that these services
are already paid for and covered by the
compensation attached to his principal
office. It should be obvious that if, say, the
Secretary of Finance attends a meeting of
the Monetary Board as an ex-officio member
thereof, he is actually and in legal
contemplation performing the primary
function of his principal office in defining
policy in monetary banking matters, which
come under the jurisdiction of his
department. For such attendance,
therefore, he is not entitled to collect any
extra compensation, whether it be in the
form of a per diem or an honorarium or an
allowance, or some other such euphemism.
By whatever name it is designated, such
additional compensation is prohibited by the
Constitution.”
xxx xx
x xxx
(Emphasis ours)
Since the Executive Department Secretaries, as
ex-oficio members of the NHA Board, are
prohibited from receiving “extra (additional)
compensation, whether it be in the form of a per
diem or an honorarium or an allowance, or some
other such euphemism," it follows that petitioners
who sit as their alternates cannot likewise be
entitled to receive such compensation. A
contrary rule would give petitioners a better right
than their principals.
We thus rule that in rendering its challenged
Decision, the COA did not gravely abuse its
discretion.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Panganiban, Pardo, Ynares-
Santiago, De Leon , Jr., and Carpio, JJ., concur.
Quisumbing, J., no part. Former DOLE Secretary.
Buena, J., on official leave.
Filed under Rule 65 of the 1997 Rules of Civil
Procedure, as amended.
Annex “B” of Petition; Rollo, pp. 24-25.
G.R. No. 83896 and G.R. No. 83815, 194 SCRA
317 (1991).
Annex “B” of Petition, supra..
Annex “C” of Petition, supra, pp. 26-27.
P. 2 of Annex “C” of Petition, ibid., p. 27.
Pursuant to NHA Board Resolution No. 3819 dated
Nov. 20, 1997 authorizing its Chairman to file the
appeal (Annex “D”, Petition, Rollo, p. 28).
Annex “A” of Petition, supra, pp. 21-23.
Ibid., p. 22.
Supra.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
A.M. No. P-88-269 December 29, 1995
OSCAR ABETO, complainant,
vs.
MANUEL GARCESA, Stenographic Reporter,
Regional Trial Court, Branch 45, Bacolod
City, respondent.
DAVIDE, JR., J.:
In a verified complaint dated 19 October 1988 and
received by the Office of the Court Administrator
on 18 November 1988, the complainant charges
the respondent with having misrepresented
himself as a full-fledged lawyer and having acted
as one of the authorized representatives of the
complainant and his co-complainants in labor
cases filed with Regional Arbitration Branch VI of
the National Labor Relations Commission (NLRC)
of Bacolod City despite the fact that he is a court
employee.
Then Deputy Court Administrator Meynardo A.
Tiro referred the complaint to the respondent
through the Presiding Judge of Branch 45 of the
Regional Trial Court (RTC) of Bacolod City and
required him to comment thereon.
In his Comment/Explanation, the respondent
admits having assisted the complainants in the
aforementioned labor cases; denies having
misrepresented himself as a lawyer; and
explained the nature of the assistance he had
given to the complainants. According to him,
when he first met complainant Abeto in December
1986, he frankly informed the latter that he is
only a court employee and that he is only
assisting or helping Mr. Arturo Ronquillo, for at
that time no lawyer dared to assist the
complainants in filing their cases. This Arturo
Ronquillo is the Vice President of the Workers
Amalgamated Union of the Philippines (WAUP)
whose assistance was sought by complainant
Abeto and the other complainants in the labor
cases for the filing and prosecution of their cases.
The respondent further alleges that the instant
complaint arose out of ill-feeling and is designed
to malign and destroy his name and reputation as
a court employee. He manifests, however, that "in
the event that his good motives and intentions in
helping the poor and downtrodden
workers/employees of BISCOM Central would be
considered not in consonance with Memorandum
Circular No. 17 dated September 4, 1986 issued
by the Executive Department and is prohibited by
Administrative Circular No. 5 issued by the
Supreme Court, Manila, then [he] will readily and
obediently submit to the sound discretion of the
Honorable Supreme Court."
On 28 August 1989, then Deputy Court
Administrator Juanito Bernad submitted a
memorandum recommending that the complaint
against the respondent for misrepresentation be
dismissed, but that he be advised to heed the
Civil Service Rules and this Court's memorandum
circular prohibiting government employees from
engaging in any private business, vocation, or
profession without permission from this Court.
In his Letter-Petition dated 11 July 1995, the
respondent asked for an early resolution of this
case, which he considers baseless as it is but an
offshoot of a petty misunderstanding between
him and the complainant. He also invited the
attention of this Court to the complainant's
affidavit of desistance and letter to the Court
requesting that this case be dismissed. He later
submitted the said affidavit and letter.
In the resolution of 18 September 1995, this Court
directed the Office of the Court Administrator to
reevaluate this case and to submit a report
thereon.
On 13 October 1995, Deputy Court Administrator
Zenaida N. Elepaño submitted a Memorandum,
duly approved by the Court Administrator,
wherein she made the following findings and
conclusion:
It is worth mentioning here Sec. 12,
Rule XVIII of the Revised Civil
Service Rules which provides that:
Sec. 12. No officer or employee
shall engage directly in any private
business, vocation, or profession or
be connected with any commercial,
credit, agricultural or industrial
undertaking without a written
permission from the head of
Department: Provided, That this
prohibition will be absolute in the
case of those officers and
employees whose duties and
responsibilities require that their
entire time be at the disposal of the
Government: Provided, further,
That if an employee is granted
permission to engage, in outside
activities, the time so devoted
outside of office hours should be
fixed by the chief of the agency to
the end that it will not impair in any
way the efficiency of the officer or
employee: And provided, finally,
That no permission is necessary in
the case of investments, made by
an officer or employee, which do
not involve any real or apparent
conflict between his private
interests and public duties, or in
any way influence him in the
discharge of his duties, and he shall
not take part in the management of
the enterprise or become an officer
or member of the board of
directors.
Moreover in Administrative Circular No. 5 dated 4
October 1988 the Court expressed the view that
The entire time of
Judiciary officials and
employees must be
devoted to
government service
to insure efficient and
speedy
administration of
justice considering
the express
prohibition in the
Rules of Court and
the nature of their
work which requires
them to serve with
the highest degree of
efficiency and
responsibility, in
order to maintain
public confidence in
the Judiciary.
These circumstances obtaining, we
believe that the stenographer
Garcesa merits at the very least a
reprimand for engaging in a limited
law practice. (emphasis supplied)
She then recommends:
IN VIEW OF THE FOREGOING, it is
respectfully recommended that the
penalty of REPRIMAND be imposed
on Manuel Garcesa, Stenographer
Reporter, RTC, Branch 45, Bacolod
City for failure to heed the
abovequoted Civil Service rule and
the Supreme Court Administrative
Circular which prohibits
government employees from
engaging in any private business,
vocation, or profession without
permission from the Court.
We agree with the recommendation of Deputy
Court Administrator Elepaño. Indeed, per Annex
"A" of the complaint, the respondent and one
Arturo Ronquillo signed as "Authorized
Representatives" of the complainants in an Ex-
Parte Formal Manifestation dated 11 August 1988
in the following labor cases: RAB VI Cases Nos.
0272-86, 0304-86, 01-0067-87, 06-0295-87, and
04-0202-87. And in his Comment/Explanation, he
admitted having given or extended "casual
assistance" to Mr. Arturo Ronquillo in the filing
and prosecution of the said cases. His justification
therefor — to help the poor and downtrodden
workers of BISCOM Central — will not absolve him
from administrative liability for the violation of
Section 12, Rule XVIII of the Revised Civil Service
Rules and of the rulings of this Court in Valdez
and in Rabanal which were incorporated in
Administrative Circular No. 5 of 4 October 1988.
He could not, however, be liable for unauthorized
practice of law, since there is no convincing
evidence that he misrepresented himself as a
lawyer. Moreover, his appearance was in his
capacity as one of the representatives of the
complainants in the labor cases and not as a
lawyer. Under Section 6, Rule IV of the Revised
Rules of Procedure of the NLRC in force at that
time, a non-lawyer may appear before the NLRC
or any Labor Arbiter if he represents himself as a
party to the case, represents an organization or
its members, or is a duly accredited member of a
free legal aid staff of the Department of Labor and
Employment or of any other legal aid office
accredited by the Department of Justice or the
Integrated Bar of the Philippines.
Neither could he be liable under Memorandum
Circular No. 17 dated 4 September 1986 of the
Office of the President declaring that the authority
to grant permission to any official or employee to
engage in outside activities shall be granted by
the head of the ministry (department) or agency
in accordance with Section 12, Rule XVIII of the
Revised Civil Service Rules. Said Memorandum
Circular No. 17 was declared by this Court
inapplicable to officials or employees of the
courts. Thus, in its Administrative Circular No. 5
dated 4 October 1988, this Court stated:
However, in its En Banc resolution
dated October 1, 1987, denying the
request of Atty. Froilan L. Valdez of
the Office of Associate Justice
Ameurfina Melencio-Herrera, to be
commissioned as a Notary Public,
the Court expressed the view that
the provisions of Memorandum
Circular No. 17 of the Executive
Department are not applicable to
officials or employees of the courts
considering the express prohibition
in the Rules of Court and the nature
of their work which requires them
to serve with the highest degree of
efficiency and responsibility, in
order to maintain public confidence
in the Judiciary. The same policy
was adopted in Administrative
Matter No. 88-6-002-SC, June 21,
1988, where the court denied the
request of Ms. Esther C. Rabanal,
Technical Assistant II, Leave
Section, Office of the Administrative
Services of this Court, to work as an
insurance agent after office hours
including Saturdays, Sundays and
holidays. Indeed, the entire time of
Judiciary officials and employees
must be devoted to government
service to insure efficient and
speedy administration of justice.
ACCORDINGLY, all officials and
employees of the Judiciary are
hereby enjoined from being
commissioned as insurance agents
or from engaging in any such
related activities, and, to
immediately desist therefrom if
presently engaged thereat.
This prohibition is directed against
"moonlighting," which amounts to
malfeasance in office (Biyaheros Mart
Livelihood Association, Inc. vs. Cabusao,
232 SCRA 707 [1994]).
WHEREFORE, for malfeasance in office consisting
in the violation of Section 12, Rule XVIII of the
Revised Civil Service Rules and of the rulings of
this Court of 1 October 1987 in the case of Atty.
Froilan L. Valdez and of 21 June 1988 in the case
of Ms. Esther C. Rabanal embodied in
Administrative Circular No. 5 dated 4 October
1988, respondent MANUEL GARCESA is hereby
REPRIMANDED and warned that the commission
of the same or similar acts in the future shall be
dealt with more severely.
SO ORDERED.
Padilla, Bellosillo, Kapunan and Hermosisima, Jr.,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. P-97-1247 May 14, 1997
(Formerly A.M. OCA I.P.I. 1 No. 95-71-P)
NARITA RABE, complainant,
vs.
DELSA M. FLORES, Interpreter III, RTC,
Branch IV, Panabo, Davao, respondent.
PER CURIAM:
In an administrative complaint for "Conduct
Unbecoming a Government Employee, Acts
Prejudicial to the Interest of the Service and
Abuse of Authority" dated August 18, 1995,
Complainant Narita Rabe, 2 by counsel, charged
Respondent Delsa M. Flores, Interpreter III at the
Regional Trial Court, Branch IV, Panabo, Davao, as
follows: 3
(Mrs.) Flores took advantage of her
position as a court employee by
claiming a stall at the extension of
the Public (sic) Market when she is
(sic) not a member of our client's
association and was never a party
to Civil Case No. 89-23. She herself
knows (sic) that the stalls in the
 said area had already been
awarded to our client's members
pursuant to the decision of the
court on October 30, 1991. Worse,
she took the law into her hands
when she destroyed the stall of our
client and brought the materials to
the police station of Panabo, Davao.
After respondent filed her answer, the Court
issued a Resolution dated January 17, 1996,
absolving her of the charge. In the same
resolution, however, the Court required
respondent to explain why she should no be
administratively dealt with for the following: 4
. . . a) why she obtained a
certification dated June 18, 1991
issued by Atty. Victor R. Ginete,
Clerk of Court, same court, that she
started performing her duties as
(an) interpreter on May 16, 1991
when (1) according to a certification
dated June 17, 1991 issued by Mr.
Jose B. Avenido, Municipal
Treasurer, Panabo Davao, she was
employed in the office of the
Municipal Assessor as Assessment
Clerk I since February 1, 1990 to
June 3, 1991 with her last salary
being paid by said office on June 3,
1991; and (2) she took her oath of
office before Judge Mariano C.
Tupas only on June 17, 1991;
b) why she did not report said
business interest in her sworn
statement of Assets, Liabilities and
Net Worth, Disclosure of Business
Interests and Financial Connections,
and Identification of Relatives in the
Government Service for the years
1991, 1992, 1993, and 1994;
c) why she has not divested herself
of her interest in said business
within sixty (60) days from her
assumption into (sic) office; and
d) why she has indicated in her
DTRs for August 1995 that she
worked on August 15-18, 21, 23-25
and 28-31 and fore September,
1995 that she worked for all its
twenty one (21) working days when
her Contract of Lease with the
Municipal Government of Panabo
for the market stall in its Section 7
clearly states that she has to
personally conduct her business
and be present at the stall
otherwise the same would be
canceled as per its Section 13.
Respondent Flores, in a letter dated February 13,
1996, explains that, as stated in the certification
of Atty. Ginete, she assumed her job in the
Regional Trial Court, Branch IV, Panabo, Davao on
May 16, 1991, in compliance with the directive
from this Court for her to start working on the said
date. Respondent further states that "even prior
to said date (May 16, 1991)" she already reported
to the court in order to familiarize herself with the
scope of her duties. 5
Respondent Flores also admits that she had
received from the municipality a salary for the
period May 16 1991 — May 31, 1991,
notwithstanding her transfer to the judiciary on
May 16, 1991. She submits, however, the
following justification: 6
I admit that I received my last
salary in the amount of One
Thousand and 80/100 (P1,000.80)
Pesos from the Local Government
Unit from May 16-31, 1991 but
farthest from my mind is the intent
to defraud the government. It was
my desire all the time to refund the
amount the moment my salary is
received from the Supreme Court,
unfortunately more often than not
(the salary) is received three or four
months after assumption of office.
As we all know the month of May
and June is the time we enroll our
children in school thus the money I
got that month from the Local
Government Unit came handy in
defraying registration expenses of
my four children. The passage of
time coupled with some intervening
events, made me oblivious of my
obligation to refund the money.
However, when my attention was
called on the day I received the
copy of the resolution, I took no
time in refunding the same.
Respondent alleges that the certification of
Municipal Treasurer Jose V. Avenido is inaccurate
because it was on January 25, 1990 that she was
appointed as Assessment Clerk I. 7 According to
respondent, she took her oath on June 17, 1991,
simply because it was on that date that she
received a copy of her oath form. 8
Respondent avers that she did not divulge any
business interest in her Sworn Statement of
Assets and Liabilities and Financial Disclosure for
the years 1991-1994 because she "was never
engaged in business during said period although I
had a stall in the market." 9
Respondent further avers that her Daily Time
Record indicated that she held office on August
15, 18, 21, 23 to 25 and 28, 31 and all the
working days of September, 1995 "because in
truth and in fact . . . (she) did hold office on those
days." This was because her contract of lease with
the Municipal Government of Panabo was never
implemented as it became the subject of "Civil
Case No. 95-53 — Panabo Public Market Vendors
Assn. Inc. and Pag-ibig Ng Gulayan Ass. Inc. Vs.
Municipality of Panabo, et. al., for Declaration of
Nullity of Mun. Ord. No. XLV, Series of 1994." 10
The Court referred the matter to the Office of the
Court Administrator for evaluation, report and
recommendation. In its report, the OCA found
respondent guilty of dishonesty and failure to
report her business interest, and recommended
that the penalty of dismissal be imposed on her.
The Court finds that the report and
recommendation of the OCA is in accord with the
evidence and the law. We hold the explanation of
respondent unsatisfactory. Respondent's
misconduct is evident from the records.
By her own admission, respondent had collected
her salary from the Municipality of Panabo for the
period of May 16-31, 1991, when she was already
working at the RTC. She knew that she was no
longer entitled to a salary from the municipal
government, but she took it just the same. She
returned the amount only upon receipt of the
Court Resolution dated January 17, 1996, or more
than five (5) years later. We cannot countenance
the same. Respondent's conduct is plain
dishonesty.
Her explanation, as observed earlier, is
unsatisfactory. Her overriding need for money
from the municipal government, aggravated by
the alleged delay in the processing of her initial
salary from the Court, does not justify receipt of a
salary not due her. We sympathize with
respondent's sad plight of being the sole
breadwinner of her family, with her husband and
parents to feed and children to send to school.
This, however, is not an acceptable excuse for her
misconduct. If poverty and pressing financial need
could justify stealing, the government would have
been bankrupt long ago. A public servant should
never expect to become wealthy in government.
But there is really more to respondent's defense
of poverty. If respondents was just driven by dire
pecuniary need, respondent should have returned
the salary she had obtained from the Municipal
Government of Panabo as soon as she obtained
her salary from the court. However, she returned
the money only after receipt of the Court's
Resolution dated January 17, 1996, saying that
she forgot all about it. Forgetfulness or failure to
remember is never a rational or acceptable
explanation.
In Macario Flores vs. Nonilon Caniya, Deputy
Sheriff, RTC, Imus, Cavite, 11 this Court ruled that
a sheriff who failed to issue an official receipt for
the money entrusted to him for the purpose of
satisfying a judgment debt, "had really wanted to
misappropriate the said amount." Inevitably, he
was dismissed from service with forfeiture of all
retirement benefits and accrued leave credits,
with prejudice to re-employment in any branch or
instrumentality of the government, including
government-owned or controlled corporations.
It is well to stress once again the constitutional
declaration that a "(p)ublic office is a public trust.
Public officers and employees must at all times be
accountable to the people, serve them with
utmost responsibility, integrity, loyalty and
efficiency, act with patriotism and justice, and
lead modest lives." 12
We have repeatedly held that although every
office in the government service is a public trust,
no position exacts a greater demand for moral
righteousness and uprightness from an individual
than in the judiciary. Personnel in the judiciary
should conduct themselves in such a manner as
to be beyond reproach and suspicion, and free
from any appearance of impropriety in their
personal behavior, not only in the discharge of
their official duties but also in their everyday life.
They are strictly mandated to maintain good
moral character at all times and to observe
irreproachable behavior so as not to outrage
public decency. 13
This Court, in JPDIO vs. Josephine Calaguas,
Records Officer, OCC, MTCC, Angeles City, 14 held:
The Court must reiterate that a
public office is a public trust. A
public servant is expected to
exhibit, at all times, the highest
degree of honesty and integrity and
should be made accountable to all
those whom he serves.
Respondent's malfeasance is a clear
contravention of the constitutional dictum that
the State shall "maintain honesty and integrity in
the public service and take positive and effective
measures against graft and corruption." 15
Under the Omnibus Rules Implementing Book V of
EO No. 292 known as the "Administrative Code of
1987" and other pertinent Civil Service Laws, the
penalty for dishonesty is dismissal, even for the
first offense. 16 Accordingly, for respondent's
dishonesty in receiving and keeping what she was
not lawfully entitled to, this Court has the duty to
impose on her the penalty prescribed by law:
dismissal.
Apart from the above finding, we also note the
contradiction between the certification issued by
Municipal Treasurer Jose Avenido stating that
respondent had worked as an assessment clerk in
his office up to June 3, 1991, and the certification
of Clerk of Court Victor Ginete stating that
respondent started working as an interpreter on
May 16, 1991. Although specifically asked by the
Court to explain this contradiction, respondent
could only state that the certification of the
treasurer is inaccurate because she assumed her
position as Assessment Clerk on January 25, 1990
and not on February 1, 1990 as written in the said
certification. Respondent, however, failed to
explain the gravamen of the inquiry, i.e., that she
was certified to be still connected with the
Municipal Government of Panabo on June 3, 1991,
notwithstanding her assumption of her post in the
Regional Trial Court as early as May 16, 1991. To
the mind of the Court, respondent's inability to
explain this discrepancy is consistent with her
failure to satisfactorily explain why she knowingly
received and kept a salary she was not entitled
to. Worse, it may be indicative of a conscious
design to hold two positions at the same time.
Aside from dishonesty, however, respondents is
also guilty of failure to perform her legal
obligation to disclose her business interests.
Respondent herself admitted that she "had a stall
in the market." The Office of the Court
Administrator also found that she had been
receiving rental payments from one Rodolfo Luay
for the use of the market stall. That respondent
had a stall in the market was undoubtedly a
business interest which should have been
reported in her Sworn Statement of Assets and
Liabilities. Her failure to do so exposes her to
administrative sanction.
Section 8 of Republic Act No. 6713 provides that it
is the "obligation" of an employee to submit a
sworn statement, as the "public has a right to
know" the employee's assets, liabilities, net worth
and financial and business interest. Section 11 of
the same law prescribes the criminal and
administrative penalty for violation of any
provision thereof. Paragraph (b) of Section 11
provides that "(b) Any violation hereof proven in a
proper administrative proceeding shall sufficient
cause for removal or dismissal of a public official
or employee, even if no criminal prosecution is
instituted against him."
In the present case, the failure of respondent to
disclose her business interest which she herself
admitted is inexcusable and is a clear violation of
Republic Act No. 6713.
The respondent's claim that her contract of lease
of a market stall was never implemented because
it became the subject of a civil case, fails to
convince us. We agree with the finding of the OCA
on respondent's guilt for this separate offense. It
is a finding, which further supports its
recommendation for respondent's dismissal, to
wit: 17
The case respondent is referring to
was filed in 1995. This can be seen
from the number of the case which
is 95-93. Earlier than the filling of
the case, respondent was already
collecting rentals — as early as
February 22, 1991 — from one
Rodolfo Luay who was operating a
business without the necessary
license.
Respondent should have, therefore,
indicated in her "Sworn Statement
of Assets, Liabilities and Net Worth,
Disclosure of Business Interests and
Financial Connections, and
Identification of Relatives in the
Government Service" for the years
1991, 1992, 1993, 1994 and 1995
that she had a market stall in the
Public market of Panabo, Davao.
She admits that she never indicated such in her
sworn statements.
As this Office had earlier stated in its
Memorandum dated November 10, 1995 filed in
connection with the instant complaint:
Such non-disclosure is punishable
with imprisonment not exceeding
five (5) years, or a fine not
exceeding five thousand
(P5,000.00) pesos, or both. But
even if no criminal prosecution is
instituted against the offender, the
offender can be dismissed from the
service if the violation is proven.
Respondent 201 file speaks for
itself.
Furthermore, respondent should
have divested herself of her
 interest in said business within sixty
(60) days from her assumption into
(sic) office. She has not. The
penalty for non-disclosure of
business interests and non-
divestment is the same. (Citations
omitted.)
In her explanation, respondent maintains the
position that she has no business interest,
implicitly contending that there is nothing to
divulge or divest from. As discussed above,
respondent had a business interest. We do not
find her administratively liable, however, for
failure to divest herself of the said interest. The
requirement for public officers, in general, to
divest themselves of business interests upon
assumption of a public office is prompted by the
need to avoid conflict of interests. 18 In the
absence of any showing that a business interest
will result in a conflict of interest, divestment of
the same is unnecessary. In the present case, it
seems a bit far-fetched to imagine that there is a
conflict of interest because an Interpreter III of the
Regional Trial Court has a stall in the market. A
court, generally, is not engaged in the regulation
of public market, nor does it concern itself with
the activities thereof. While respondent may not
be compelled to divest herself of her business
interest, she had the legal obligation of divulging
it.
WHEREFORE, in conformity with the
recommendations of the Office of the Court
Administrator, Interpreter III Delsa M. Flores is
hereby DISMISSED from service with FORFEITURE
of all retirement benefits and accrued leave
credits and with PREJUDICE to re-employment in
any branch or instrumentality of the government,
including government-owned or controlled
corporations.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr.,
Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Francisco, Hermosisima, Jr., Panganiban
and Torres, Jr., JJ., concur.
Footnotes
1 Office of the Court Administrator,
Informal Preliminary Inquiry.
2 In Complainant Rabe's separate
affidavit, she made the following
allegations:
xxx xxx xxx
That on August 14, 1995 at around
4:00 o'clock in the afternoon, Mrs.
Delsa Flores, a Court Interpreter at
the Regional Trial Court of Panabo,
Davao, went to the stall I occupied
and while there, she made several
defamatory utterances against me
in a very menacing, arrogant and
threatening manner and in the
visayan dialect, as follows:
Putang ina mo ka,
akoa nin pwesto,
wala kay ulaw, wala
kay batasan,
mangingilog ug
pwesto
That Mrs. Flores attempted to inflict
injury upon me by scratching my
face but I was able to evade and
with the timely intervention of Mr.
Espiridion Vivas;
That Mrs. Flores made the foregoing
remarks and other remarks of the
same import for several times in a
very loud voice while walking to
and fro;
That Mrs. Flores challenged me to a
fist fight and destroyed the stall I
occupied by removing the wooden
fence and the GI sheets with the
help of her husband; loaded the
materials on a motor vehicle; and
brought them to the police station
of Panabo;
That Mrs. Flores committed the
aforementioned acts during office
hours and in such conduct
unbecoming a government
employee;
xxx xxx xxx
3 Rollo, p. 2.
4 Ibid., p. 25.
5 Ibid., p. 38.
6 Ibid., p. 39.
7 Ibid.
8 Ibid. PUBLIC INTEREST G. R. No. 138965
CENTER INC.,
9 Respondent's explanation, p. 2; LAUREANO T.
rollo, p. 50. ANGELES, and
JOCELYN P.
10 Ibid. CELESTINO,

11 A.M. No. P-95-1133, April 26,

1996. Petitioners,
Pre se nt:

12 Section 1, Article XI, 1987

Constitution.
PAN GAN I B AN , CJ , *
13 Legaspi vs. Garrete, 242 SCRA
679, 701, March 27, 1995 citing - versus -
C hai rman,
Montemayor vs. Collado, Adm.
Matter No. 2519-MJ, September 10,
1981, 107 SCRA 258, 264; YN ARES-
Association of Court Employees of SAN TI AGO , **
Panabo, Davao vs. Tupas, Adm.
Matter No. RTJ-87-141; July 12, AUSTRI A- MARTI N EZ ,
MAGDANGAL B.
1989, 175 SCRA 292, 296; Leynes ELMA, as Chief
vs. Veloso, Adm. Matter No. 689-MJ Presidential Legal C AL L EJ O , SR. , and
and Virrey vs. Veloso, Adm. Matter Counsel and as
No. 809-MJ, the two latter cases Chairman of the C HI C O -N AZ ARI O , J J .
promulgated on April 13, 1978, 82 Presidential
SCRA 352, 328. Commission on Good
Government, and
14 A.M. No. P-95-115, May 15, RONALDO ZAMORA,
1996. as Executive
Secretary,
15 Section 27, Article II, 1987
Constitution. Respondents. Promulgated:
16 Section 23 (a), Rule XIV,
Omnibus Rules Implementing Book
V of EO No. 292 Known as the
"Administrative Code of 1987" and June 30, 2006
other Pertinent Civil Service laws.
x------------------------------------
17 Pages 6-7 of the Memorandum --------------x
of the Court Administrator dated
November 27, 1996, on this case.

18 Section 9 of RA 6713 provides:

"A public official or employees shall
DECISION
avoid conflicts of interest at all
times. When a conflict of interest
arises, he shall resign from his
position in any private business
enterprise within thirty (30) days
from his assumption of office and or CHICO-NAZARIO, J.:
divest himself of his shareholdings
or interest within sixty (60) days
from such assumption."

FIRST DIVISION This is an original action for Certiorari, Prohibition,

and Mandamus, with a Prayer for Temporary
Restraining Order/Writ of Preliminary Injunction
filed on 30 June 1999. This action seeks to
declare as null and void the concurrent
appointments of respondent Magdangal B. Elma
as Chairman of the Presidential Commission on
Good Government (PCGG) and as Chief
Presidential Legal Counsel (CPLC) for being
contrary to Section 13, Article VII and Section 7,
par. 2, Article IX-B of the 1987 Constitution. In
addition, the petitioners further seek the issuance
of the extraordinary writs of prohibition and
mandamus, as well as a temporary restraining
order to enjoin respondent Elma from holding and
discharging the duties of both positions and from
receiving any salaries, compensation or benefits
from such positions during the pendency of this
petition. Respondent Ronaldo Zamora was sued
in his official capacity as Executive Secretary.
On 30 October 1998, respondent Elma was
appointed and took his oath of office as Chairman
of the PCGG. Thereafter, on 11 January 1999,
during his tenure as PCGG Chairman, respondent
Elma was appointed CPLC. He took his oath of
office as CPLC the following day, but he waived
any remuneration that he may receive as CPLC.
Petitioners cited the case of Civil Liberties
Union v. Executive Secretary to support their
position that respondent Elma’s concurrent
appointments as PCGG Chairman and CPLC
contravenes Section 13, Article VII and Section 7,
par. 2, Article IX-B of the 1987 Constitution.
Petitioners also maintained that respondent Elma
was holding incompatible offices.
Citing the Resolution in Civil Liberties
Union v. Executive Secretary, respondents allege
that the strict prohibition against holding multiple
positions provided under Section 13, Article VII of
the 1987 Constitution applies only to heads of
executive departments, their undersecretaries
and assistant secretaries; it does not cover other
public officials given the rank of Secretary,
Undersecretary, or Assistant Secretary.
Respondents claim that it is Section 7, par.
2, Article IX-B of the 1987 Constitution that should
be applied in their case. This provision, according
to the respondents, would allow a public officer to
hold multiple positions if (1) the law allows the
concurrent appointment of the said official; and
(2) the primary functions of either position allows
such concurrent appointment. Respondents also
alleged that since there exists a close relation
between the two positions and there is no
incompatibility between them, the primary
functions of either position would allow
respondent Elma’s concurrent appointments to
both positions. Respondents further add that the
appointment of the CPLC among incumbent public
officials is an accepted practice.
The resolution of this case had already
been overtaken by supervening events. In 2001,
the appointees of former President Joseph Estrada
were replaced by the appointees of the incumbent
president, Gloria Macapagal Arroyo. The present
PCGG Chairman is Camilo Sabio, while the
position vacated by the last CPLC, now Solicitor
General Antonio Nachura, has not yet been filled.
There no longer exists an actual controversy that
needs to be resolved. However, this case raises a
significant legal question as yet unresolved -
whether the PCGG Chairman can concurrently
hold the position of CPLC. The resolution of this
question requires the exercise of the Court’s
judicial power, more specifically its exclusive and
final authority to interpret laws. Moreover, the
likelihood that the same substantive issue raised
in this case will be raised again compels this Court
to resolve it. The rule is that courts will decide a
question otherwise moot and academic if it is
“capable of repetition, yet evading review.”
Supervening events, whether intended or
accidental, cannot prevent the Court from
rendering a decision if there is a grave violation of
the Constitution. Even in cases where To harmonize these two provisions, this
supervening events had made the cases moot, Court, in the case of Civil Liberties Union v.
this Court did not hesitate to resolve the legal or Executive Secretary, construed the prohibition
constitutional issues raised to formulate against multiple offices contained in Section 7,
controlling principles to guide the bench, bar, and Article IX-B and Section 13, Article VII in this
public. manner:

The merits of this case may now be
discussed.
The issue in this case is whether the position of
the PCGG Chairman or that of the CPLC falls under
the prohibition against multiple offices imposed
by Section 13, Article VII and Section 7, par. 2,
Article IX-B of the 1987 Constitution, which
provide that:
[T]hus, while all other appointive officials in the
civil service are allowed to hold other office or
employment in the government during their
tenure when such is allowed by law or by the
primary functions of their positions, members of
the Cabinet, their deputies and assistants may do
so only when expressly authorized by the
Constitution itself. In other words, Section 7,
Article IX-B is meant to lay down the general rule
applicable to all elective and appointive public
officials and employees, while Section 13, Article
VII is meant to be the exception applicable only to
the President, the Vice-President, Members of the
Cabinet, their deputies and assistants.

Art. VII .

xxxx

Section 13. The President,

The general rule contained in Article IX-B
Vice-President, the Members of the
Cabinet, and their deputies or of the 1987 Constitution permits an appointive
assistants shall not, unless
official to hold more than one office only if
otherwise provided in this
Constitution, hold any other office “allowed by law or by the primary functions of his
or employment during their tenure.
position.” In the case of Quimson v. Ozaeta, this
xxx
Court ruled that, “[t]here is no legal objection to a
Art. IX-B.
government official occupying two government
xxxx offices and performing the functions of both as
long as there is no incompatibility.” The
Section 7. No elective
official shall be eligible for crucial test in determining whether incompatibility
appointment or designation in any
exists between two offices was laid out in People
capacity to any public office or
position during his tenure. v. Green - whether one office is subordinate to the
other, in the sense that one office has the right to
Unless otherwise allowed by
law or by the primary functions of interfere with the other.
his position, no appointive official
shall hold any other office or
employment in the Government or
any subdivision, agency or
instrumentality thereof, including [I]ncompatibility between two
government-owned or controlled offices, is an inconsistency in the
corporations or their subsidiaries. functions of the two; x x x Where
one office is not subordinate to the
 other, nor the relations of the one The CPLC shall have the
to the other such as are following duties and functions:
inconsistent and repugnant, there is
not that incompatibility from which a. Exercise administrative
the law declares that the supervision over the Office of the
acceptance of the one is the CPLC;
vacation of the other. The force of
the word, in its application to this b. Review and/or draft legal orders
matter is, that from the nature and referred to her by the President on
relations to each other, of the two the following matters that are
places, they ought not to be held by subject of decisions of the
the same person, from the President;
contrariety and antagonism which
would result in the attempt by one 1. Executive
person to faithfully and impartially Orders,
discharge the duties of one, toward proclamations,
the incumbent of the other. x x x administrative
The offices must subordinate, one orders,
[over] the other, and they must, memorandum
per se, have the right to interfere, orders, and other
one with the other, before they are legal documents
incompatible at common law. x x x initiated by the
President;

2. Decision on
In this case, an incompatibility exists investigation
between the positions of the PCGG Chairman and involving Cabinet
Secretaries,
the CPLC. The duties of the CPLC include giving agency heads, or
independent and impartial legal advice on the Presidential
appointees with
actions of the heads of various executive the rank of
departments and agencies and to review Secretary
conducted by the
investigations involving heads of executive Presidential Anti-
departments and agencies, as well as other Graft Commission
(PAGC);
Presidential appointees. The PCGG is, without
question, an agency under the Executive
Department. Thus, the actions of the PCGG
Chairman are subject to the review of the CPLC.
In Memorandum Order No. 152, issued on 9 July As CPLC, respondent Elma will be required

2004, the Office of the President, in an effort to to give his legal opinion on his own actions as

promote efficiency and effective coordination, PCGG Chairman and review any investigation

clearly delineated and specified the functions and conducted by the Presidential Anti-Graft

duties of its senior officers as such: Commission, which may involve himself as PCGG
Chairman. In such cases, questions on his
impartiality will inevitably be raised. This is the
situation that the law seeks to avoid in imposing
SECTION 1. The Chief Presidential Legal the prohibition against holding incompatible
Counsel (CPLC) shall advise and provide the
President with legal assistance on matters offices.
requiring her action, including matters pertaining
to legislation.
 Having thus ruled that Section 7, Article IX- the Solicitor General affected
thereby. (Underscoring supplied.)
B of the 1987 Constitution enjoins the concurrent
appointments of respondent Elma as PCGG
Chairman and CPLC inasmuch as they are
It is clear from the foregoing that the strict
incompatible offices, this Court will proceed to prohibition under Section 13, Article VII of the
determine whether such appointments violate the 1987 Constitution is not applicable to the PCGG
Chairman nor to the CPLC, as neither of them is a
other constitutional provision regarding multiple secretary, undersecretary, nor an assistant
offices, Section 13, Article VII of the 1987 secretary, even if the former may have the same
rank as the latter positions.
Constitution.

It must be emphasized, however, that

While Section 7, Article IX-B of the 1987
Constitution applies in general to all elective and
appointive officials, Section 13, Article VII, thereof
applies in particular to Cabinet secretaries,
undersecretaries and assistant secretaries. In the
Resolution in Civil Liberties Union v. Executive
Secretary, this Court already clarified the scope of
the prohibition provided in Section 13, Article VII
of the 1987 Constitution. Citing the case of US v.
Mouat, it specifically identified the persons who
are affected by this prohibition as secretaries,
undersecretaries and assistant secretaries; and
despite the non-applicability of Section 13, Article
VII of the 1987 Constitution to respondent Elma,
he remains covered by the general prohibition
under Section 7, Article IX-B and his appointments
must still comply with the standard of
compatibility of officers laid down therein; failing
which, his appointments are hereby pronounced
in violation of the Constitution.
Granting that the prohibition under Section

categorically excluded public officers who merely 13, Article VII of the 1987 Constitution is

have the rank of secretary, undersecretary or applicable to the present case, the defect in

assistant secretary. respondent Elma’s concurrent appointments to

the incompatible offices of the PCGG Chairman
and the CPLC would even be magnified when seen
through the more stringent requirements imposed
Another point of clarification raised by the said constitutional provision. In the
by the Solicitor General refers to
the persons affected by the aforecited case Civil Liberties Union v. Executive
constitutional prohibition. The Secretary, the Court stressed that the language of
persons cited in the constitutional
provision are the “Members of the Section 13, Article VII is a definite and
Cabinet, their deputies and unequivocal negation of the privilege of holding
assistants.” These terms must be
given their common and general multiple offices or employment. The Court
acceptation as referring to the cautiously allowed only two exceptions to the rule
heads of the executive
departments, their undersecretaries against multiple offices: (1) those provided for
and assistant secretaries. Public under the Constitution, such as Section 3, Article
officials given the rank equivalent
to a Secretary, Undersecretary, or VII, authorizing the Vice-President to become a
Assistant Secretary are not member of the Cabinet; or (2) posts occupied by
covered by the prohibition, nor is
the Executive officials specified in Section 13,
Article VII without additional compensation in an undersecretary, or assistant secretary. Even if
ex-officio capacity as provided by law and as this Court assumes, arguendo, that Section 13,
required by the primary functions of said officials’ Article VII is applicable to respondent Elma, he
office. The Court further qualified that additional still could not be appointed concurrently to the
duties must not only be closely related to, but offices of the PCGG Chairman and CPLC because
must be required by the official’s primary neither office was occupied by him in an ex-officio
functions. Moreover, the additional post must be capacity, and the primary functions of one office
exercised in an ex-officio capacity, which do not require an appointment to the other post.
“denotes an act done in an official character, or Moreover, even if the appointments in question
as a consequence of office, and without any other are not covered by Section 13, Article VII of the
appointment or authority than that conferred by 1987 Constitution, said appointments are still
the office.” Thus, it will not suffice that no prohibited under Section 7, Article IX-B, which
additional compensation shall be received by covers all appointive and elective officials, due to
virtue of the second appointment, it is mandatory the incompatibility between the primary functions
that the second post is required by the primary of the offices of the PCGG Chairman and the
functions of the first appointment and is exercised CPLC.
in an ex-officio capacity.

WHEREFORE, premises considered, this

With its forgoing qualifications, it is evident that Court partly GRANTS this petition and declares
even Section 13, Article VII does not sanction this
respondent Magdangal B. Elma’s concurrent
dual appointment. Appointment to the position of
PCGG Chairman is not required by the primary appointments as PCGG Chairman and CPLC as
functions of the CPLC, and vice versa. The
UNCONSTITUTIONAL. No costs.
primary functions of the PCGG Chairman involve
the recovery of ill-gotten wealth accumulated by
former President Ferdinand E. Marcos, his family
and associates, the investigation of graft and
corruption cases assigned to him by the
President, and the adoption of measures to SO ORDERED.
prevent the occurrence of corruption. On the
other hand, the primary functions of the CPLC
encompass a different matter, that is, the review
and/or drafting of legal orders referred to him by
the President. And while respondent Elma did not
receive additional compensation in connection
with his position as CPLC, he did not act as either
M IN ITA V. CH ICO-
CPLC or PGCC Chairman in an ex-officio capacity.
N AZ ARIO
The fact that a separate appointment had to be
made for respondent Elma to qualify as CPLC
negates the premise that he is acting in an ex- Assoc i ate J usti c e
officio capacity.

In sum, the prohibition in Section 13,

W E CO N C UR:
Article VII of the 1987 Constitution does not apply
to respondent Elma since neither the PCGG
Chairman nor the CPLC is a Cabinet secretary,
O n O ffi c i al Le ave
 ARTEMIO V. PANGANIBAN

C hie f J usti c e CERTIFICATION

C hai rman

Pursuant to Article VIII, Section 13 of the

Constitution, and the Division Chairman’s
Attestation, it is hereby certified that the
conclusions in the above Decision were reached in
consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
CON SUEL O YN ARES- M A. AL ICIA AUSTRIA-
SAN TIAGO M ARTIN EZ

Assoc i ate J usti c e Assoc i ate Justi c e

Ac ti ng C hai rman

REYNATO S. PUNO

ROM EO J. CAL L EJO, SR. Acting Chief Justice

Associate Justice

* On official leave.

** Acting Chairman.

ATTESTATION Rollo, p. 3.

Sec. 13. The President, Vice-President,

I attest that the conclusions in the above
Decision were reached in consultation before the
case was assigned to the writer of the opinion of
the Court’s Division.
the Members of the Cabinet, and their
deputies or assistants shall not, unless
otherwise provided in this Constitution,
hold any other office or employment
during their tenure. x x x.

Sec. 7. x x x

Unless otherwise allowed by law or

by the primary functions of his position, no
appointive official shall hold any other
office or employment in the Government
or any subdivision, agency or
CONSUELO YNARES-SANTIAGO
instrumentality thereof, including
government-owned or controlled
corporations or their subsidiaries.

Acting Chairman,Rollo,
First Division
p. 9.

Id. at 4 and 17.

G.R. Nos. 83896 and 83815, 22

February 1991, 194 SCRA 317.

G.R. Nos. 83896 and 83815, 1 August

1991.
 Resolution in Freedom from Debt
Coalition v. Energy Regulatory
Commission, G.R. No. 161113, 9 August
2005.
Gayo v. Verceles, G.R. No. 150477, 28
February 2005, 452 SCRA 504, 514; Viola
v. Hon. Alunan III, 343 Phil. 184, 191
(1997).
Province of Batangas v. Romulo, G.R. No.
152774, 27 May 2004, 429 SCRA 736, 757;
Chavez v. Public Estates Authority, 433
Phil. 506, 522 (2002).
Supra note 6 at 329.
98 Phil. 705, 709 (1956).
People v. Green, 13 Sickels 295, 58 N.Y.
295, 1874 WL 11282 (N.Y.).
Memorandum Order No. 152, 9 July 2004.
Supra note 6.
124 US 303 (1888).
Supra note 6.
Supra note 6 at 333.
Executive Order No. 1, 28 February 1986.
Supra note 14.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 111471 September 26, 1994
CITY MAYOR ROGELIO R. DEBULGADO and
VICTORIA T. DEBULGADO, petitioners,
vs.
CIVIL SERVICE COMMISSION, respondent.
Marlon P. Ontal for petitioners.
FELICIANO, J.:
Petitioner Rogelio R. Debulgado is the incumbent
Mayor of the City of San Carlos, Negros
Occidental. On 1 October 1992, petitioner Mayor
appointed his wife, petitioner Victoria T.
Debulgado, as General Services Officer, that is, as
head of the Office of General Services 1 of the City
Government of San Carlos.
Petitioner Victoria was one of three (3) employees
of the City Government who were considered for
the position of General Services Officer. Before
her promotion in 1992, she had been in the
service of the City Government for about thirty-
two (32) years. She joined the City Government
on 3 January 1961 as Assistant License Clerk.
Through the years, she rose from the ranks,
successively occupying the following positions:
(a) Assistant Chief of the License &
Fees Division, from 1 July 1965 to
30 June 1973;
(b) Chief of the License and Fees
Division, from 1 July 1973 to 1
January 1981;
(c) Cashier, from 2 January 1981 to
30 June 1989; and
(d) Cashier IV, from 1 July 1989 to
30 September 1992. 2
On 1 October 1992, petitioner Victoria
assumed the new post, and commenced
discharging the functions, of General
Services Officer of San Carlos City and
receiving the regular salary attached to
that position.
On 16 December 1992, public respondent Civil
Service Commission ("Commission") received a
letter 3 from Congressman Tranquilino B.
Carmona of the First District of Negros Occidental,
calling attention to the promotional appointment
issued by petitioner Mayor in favor of his wife.
The Commission directed its Regional Office No.
6-Iloilo City to submit a report on the appointment
of petitioner Victoria.
From the report submitted by Director Jesse J.
Caberoy of the Iloilo City-CSRO No. 6, the
Commission found that petitioner Mayor was the
lawful husband of the appointee, petitioner
Victoria, the two (2) having been married
sometime in 1964. Director Caberoy also reported
that the appointment papers prepared by the
Office of the City Mayor of San Carlos were
submitted to the Bacolod City CSC-Field Office on
28 October 1992, and that the appointment was
thereafter approved by Director Purita H. Escobia
of that CSC-Field Office, on 18 November 1992.
Acting on the report of Director Caberoy, the
Commission, in its Resolution No. 93-1427 dated
13 April 1993, recalled the approval issued by
Director Escobia and disapproved the promotion
of petitioner Victoria to the position of General
Services Officer of San Carlos City upon the
ground that that promotion violated the statutory
prohibition against nepotic appointments.
On 14 June 1993, petitioner Mayor and petitioner
Victoria received a copy of Resolution No. 93-
1427 of the Commission. 4 Petitioners moved for
reconsideration, contending that the statutory
prohibition against nepotism was not applicable to
the appointment of Victoria as General Services
Officer. Petitioners also asserted that the
Commission had deprived petitioner Victoria of
her right to due process by unilaterally revoking
her appointment. The motion for reconsideration
was denied by the Commission on 21 July 1993.
In this Petition for Certiorari, petitioner Mayor and
petitioner Victoria contend that the Commission
had gravely abused its discretion in withdrawing
and disapproving petitioner Victoria's promotional
appointment. Petitioners assert that Victoria can
no longer be removed from the position of
General Services Officer without giving her an
opportunity to be heard and to answer the
charged of nepotism.
Petitioner Mayor denies that he had been
motivated by personal reasons when he
appointed his wife to the new post. He states that
his wife was the most qualified among the
candidates for appointment to that position, she
having worked for the City Government for thirty-
two (32) years and being highly recommended by
the OIC-Treasurer of San Carlos City. 5 It is also
claimed by petitioner Mayor that his choice of his
wife for the position was concurred in by the
Sangguniang Panglungsod. 6 He further avers that
he had consulted the Field and Regional Officers
of the Commission in Bacolod City, and raised the
question of applicability of the prohibition against
nepotism to the then proposed promotion of his
wife in one of the seminars conducted by the
Commission's Regional Office held in San Carlos
City on 21 and 22 September 1992. According to
petitioner Mayor, one Gregorio C. Agdon, a
supervising personnel specialist in the
Commission's Bacolod Office, informed him that
the promotional appointment was not covered by
the prohibition. 7
The basic contention of petitioners is that the
prohibition against nepotic appointments is
applicable only to original appointments and not
to promotional appointments. They believe that
because petitioner Victoria was already in the
service of the City Government before she
married petitioner Mayor, the reason behind the
prohibition no longer applied to her promotional
appointment. Petitioners also affirm that
petitioner Victoria deserves to be promoted to
General Services Officer, considering her long and
faithful service to the City Government. 8
The task before this Court is, accordingly,
two-fold:
(1) to determine whether a
promotional appointment is
covered by the legal prohibition
against nepotism, or whether that
prohibition applies only to original
appointments to the Civil Service;
and
(2) to determine whether the
Commission had gravely abused its
discretion in recalling and
disapproving the promotional
appointment given to petitioner
Victoria after the Commission,
through Director Escobia, had
earlier approved that same
appointment, without giving an
opportunity to petitioner Victoria to
explain her side on the matter.
I
The prohibitory norm against nepotism in the
public service is set out in Section 59, Book V of
the Revised Administrative Code of 1987 (also
known as E.O. No. 292). Section 59 reads as
follows:
Sec. 59. Nepotism — (1) All
appointments in the national,
provincial, city and municipal
governments or in any branch or
instrumentality thereof, including
government-owned or controlled
corporations, made in favor of a
relative of the appointing or
recommending authority, or of the
chief of the bureau or office, or of
the persons exercising immediate
supervision over him, are hereby
prohibited.
As used in this Section the word
"relative" and members of the
family referred to are those related
within the third degree either of
consanguinity or of affinity.
 (2) The following are exempted
from the operation of the rules on
nepotism: (a) persons employed in
a confidential capacity, (b)
teachers, (c) physicians, and (d)
members of the Armed Forces of
the Philippines: Provided, however,
That in each particular instance full
report of such appointment shall be
made to the Commission.
The restriction mentioned in
subsection (1) shall not be
applicable to the case of a member
of any family who, after his or her
appointment to any position in an
office or bureau, contracts marriage
with someone in the same office or
bureau, in which event the
employment or retention therein of
both husband and wife may be
allowed.
(3) In order to give immediate
effect to these provisions, cases of
previous appointment which are in
contravention hereof shall be
corrected by transfer and pending
such transfer, no promotion or
salary increase shall be allowed in
favor of the relative or relatives
who were appointed in violation of
these provisions. (Emphasis
supplied).
Section 6 of Rule XVIII, of the "Omnibus Rules
Implementing Book V of Executive Order No. 292
and other Pertinent Civil Service Laws," issued on
27 December 1991, implementing, among other
things, the abovequoted Section 59, provides as
follows:
Sec. 6. No appointments in the
national, provincial, city and
municipal government or in any
branch or instrumentality thereof,
including government-owned or
controlled corporations with original
charters shall be made in favor of a
relative of the appointing or
recommending authority, or of the
chief of the bureau or office, or of
the persons exercising immediate
supervision over the appointee.
Unless otherwise specifically
provided by law, as used in this
Section, the word "relative" and the
members of the family referred to
are those related within the third
degree either of consanguinity or of
affinity.
The following are exempted from
the operation of the rules on
nepotism: (a) persons employed in
a confidential capacity; (b)
teachers; (c) physicians; (d)
members of the Armed Forces of
the Philippines. Provided, however,
That in each particular instance full
report of such appointment shall be
made to the Commission.
The restriction mentioned in the
first paragraph of this Section shall
not be applicable to the case of a
member of any family who after his
or her appointment to any position
in an office or bureau, contracts
marriage with someone in the same
office or bureau, in which event the
employment or retention therein of
both husband and wife may be
allowed.
Cases of previous appointment
which are in contravention hereof
shall be corrected by transfer, and
pending such transfer no promotion
or salary increase shall be allowed
in favor of the relative or relatives
who were appointed in violation of
these provisions. (Emphasis
supplied)
It will be noted that the abovequoted
Section 6 of Implementing Rule XVIII
essentially tracks the provisions of Section
59, Book V of E.O. No. 292. 9
We turn, therefore, to an analysis of Section 59,
Book V of E.O. No. 292, quoted above. The
noteworthy fact may be pointed out, at the
outset, that Section 59 as it exists today has been
in our statute books in substantially identical form
and language for at least thirty (30) years. 10
A textual examination of Section 59 at once
reveals that the prohibition was cast in
comprehensive and unqualified terms. Firstly, it
explicitly covers "all appointments", without
seeking to make any distinction between differing
kinds or types of appointments. Secondly, Section
59 covers all appointments to the national,
provincial, city and municipal government, as well
as any branch or instrumentality thereof and all
government owned or controlled corporations.
Thirdly, there is a list of exceptions set out in
Section 59 itself, but it is a short list:
 (a) persons employed in a
confidential capacity;
(b) teachers;
(c) physicians; and
(d) members of the Armed Forces
of the Philippines.
The list has not been added to or
subtracted from for the past thirty (30)
years. The list does not contain words like
"and other similar positions." Thus, the list
appears to us to be a closed one, at least
closed until lengthened or shortened by
Congress.
Section 59 of Book V, E.O. No. 292 should, of
course, be read in connection with the Omnibus
Implementing Rules. Additional light is shed on
the issue we here address by some provisions of
these Rules. Section 1, Rule V of the Omnibus
Implementing Rules reads as follows:
Sec. 1. All appointments in the
career service shall be made only
according to merit and fitness to be
determined as far as practicable by
competitive examinations.
As used in these Rules, any action
denoting movement or progress of
personnel in the civil service shall
be known as personnel action. Such
action shall include promotion,
transfer, reinstatement,
reemployment, detail, secondment,
reassignment, demotion and
separation. All original
appointments and personnel
actions shall be in accordance with
these Rules and with other
regulations and standards that may
be promulgated by the
Commission. (Emphasis supplied)
Section 1, Rule VII of the same Rules also
bears upon our inquiry:
Sec. 1. The following constitute
personnel actions: original
appointment, appointment through
certification, promotion, transfer,
reinstatement, reemployment,
detail, secondment, demotion and
separation. (Emphasis supplied)
Under the abovequoted provisions of the
Implementing Rules, both an original appointment
and a promotion are particular species of
personnel action. The original appointment of a
civil service employee and all subsequent
personnel actions undertaken by or in respect of
that employee such as promotion, transfer,
reinstatement, reemployment, etc., must comply
with the Implementing Rules including, of course,
the prohibition against nepotism in Rule XVIII. To
the extent that all personnel actions occurring
after an original appointment, require the
issuance of a new appointment to another
position (or to the original position in case of
reinstatement), we believe that such appointment
must comply with all applicable rules and
prohibitions, including the statutory and
regulatory prohibition against nepotism. To limit
the thrust of the prohibition against nepotism to
the appointment issued at the time of initial entry
into the government service, and to insulate from
that prohibition appointments subsequently
issued when personnel actions are thereafter
taken in respect of the same employee, would be
basically to render that prohibition, in the words
of Laurel V, etc. v. Civil Service Commission, 11
"meaningless and toothless."
Inquiry into the basic purpose or objective of the
prohibition against nepotism also strongly
indicates that that prohibition was intended to be
a comprehensive one. Section 1, Book V, E.O. No.
292 sets out the basic policy which pervades all
the provisions of our Civil Service law, including
Section 59 thereof:
Sec. 1. Declaration of Policy. — The
State shall insure and promote the
Constitutional mandate that
appointments in the Civil Service
shall be made only according to
merit and fitness; . . . (Emphasis
supplied)
Put succinctly, that purpose is to ensure
that all appointments and other personnel
actions in the civil service should be based
on merit and fitness and should never
depend on how close or intimate an
appointee is to the appointing power. 12
Laurel V, etc. v. Civil Service Commission supra, is
instructive in this connection. In that case,
petitioner Governor of Batangas Province
appointed or designated his brother, Benjamin
Laurel, who had been holding a promotional
appointment as Civil Security Officer, a position
classified as "primarily confidential" by the Civil
Service, to the position of Provincial
Administrator, a position in the Career Civil
Service. This Court held that the appointment or
designation as Acting Provincial Administrator was
violative of the prohibition against nepotism, then
embodied in Section 49, P.D. No. 807. Moreover,
the Court emphatically agreed with the Civil
Service Commission that "although what was
extended to Benjamin was merely a designation
and not an appointment, . . . the prohibitive
mantle on nepotism would include designation,
because what cannot be done directly, cannot be
done indirectly:"
We cannot accept petitioner's view.
His specious and tenuous
distinction between appointment
and designation is nothing more
than either a ploy ingeniously
conceived to circumvent the rigid
rule on nepotism or a last-ditch
maneuver to cushion the impact of
its violation. The rule admits of no
distinction between appointment
and designation. Designation is also
defined as "an appointment or
assignment to a particular office";
and "to designate" means "to
indicate, select, appoint or set apart
for a purpose of duty." (Black's Law
Dictionary, Fifth ed., 402)
xxx xxx xxx
It seems clear to Us that Section 49
of P.D. No. 807 does not suggest
that designation should be
differentiated from appointment.
Reading this section with Section
25 of said decree, career service
positions may be filled up only by
appointment, either permanent or
temporary; hence a designation of
a person to fill it up because it is
vacant, is necessarily included in
the term appointment, for it
precisely accomplishes the same
purpose. Moreover, if a designation
is not to be deemed included in the
term appointment under Section 49
of P.D. No. 807, then the prohibition
on nepotism would be meaningless
and toothless. Any appointing
authority may circumvent it by
merely designating, and not
appointing, a relative within the
prohibited degree to a vacant
position in the career service.
Indeed, as correctly stated by
public respondent, "what cannot be
done directly cannot be done
indirectly." 13 (Emphasis partly in
the original and partly supplied;
citation omitted)
Thus, the Court was unwilling to restrict
and limit the scope of the prohibition which
is textually very broad and comprehensive.
One of the contentions of petitioner in the case at
bar is that the ratio of the prohibition against
nepotism is not applicable here because
petitioner Victoria was already in the government
service at the time petitioners were married in
1964. It is not disputed that the original 1961
appointment of petitioner Victoria as an Assistant
License Clerk was not a nepotic appointment.
Indeed, Section 59 itself states, in the 4th
paragraph thereof, that the prohibition against
nepotism is not
applicable to the case of a member
of any family who, after his or her
appointment to any position in any
office or bureau, contracts
marriage with someone in the same
office or bureau, in which event the
employment or retention therein of
both husband and wife may be
allowed. (Emphasis supplied)
The subsequent marriage of one to the
other of petitioners did not retroactively
convert the original appointment of
petitioner Victoria into a prohibited nepotic
one. It is the promotional appointment
issued by petitioner Mayor to petitioner
Victoria in 1 October 1982 that is at stake.
Here, the basic argument of petitioners is that to
read the prohibition in Section 59, Book V of E.O.
No. 292 as applicable both to original and
promotional or subsequent appointments, would
be to deprive the government of the services of
loyal and faithful employees who would thereby
be penalized simply because the appointing or
recommending official happens to be related to
the employees within the third degree of
consanguinity or affinity.
A major difficulty with the petitioners' argument is
that it tends to prove too much. For the
appointee, whether in an original or a promotion
appointment, may in fact be quite loyal and
efficient and hard-working; yet that circumstance
will not prevent the application of the prohibition
certainly in respect of the original appointment.
The Court is not unaware of the difficulties that
the comprehensive prohibition against nepotism
would impose upon petitioner Victoria and others
who maybe in the same position. It is essential to
stress, however, that the prohibition applies quite
without regard to the actual merits of the
proposed appointee and to the good intentions of
the appointing or recommending authority, and
that the prohibition against nepotism in
appointments whether original or promotional, is
not intended by the legislative authority to
penalize faithful service.
The purpose of Section 59 which shines through
the comprehensive and unqualified language in
which it was cast and has remained for decades,
is precisely to take out of the discretion of the
appointing and recommending authority the
matter of appointing or recommending for
appointment a relative. In other words, Section 59
insures the objectivity of the appointing or
recommending official by preventing that
objectivity from being in fact tested. The
importance of this statutory objective is difficult to
overstress in the culture in which we live and
work in the Philippines, where family bonds
remain, in general, compelling and cohesive.
The conclusion we reach is that Section 59, Book
V, E.O. No. 292 means exactly what it says in
plain and ordinary language: it refers to "all
appointments" whether original or promotional in
nature. The public policy embodied in Section 59
is clearly fundamental in importance, and the
Court has neither authority nor inclination to
dilute that important public policy by introducing
a qualification here or a distinction there.
It follows that the promotional appointment of
petitioner Victoria by her husband, petitioner
Mayor, falls within the prohibited class of
appointments: the prohibited relationship
between the appointing authority (petitioner
Mayor) and the appointee (wife Victoria) existed
at the time the promotional appointment was
issued. It is scarcely necessary to add that the
reasons which may have moved petitioner Mayor
to issue the prohibited appointment are, as a
matter of law, not relevant in this connection. 14
II
We turn to the second issue where petitioners
contend that when the promotional appointment
of petitioner Victoria was approved by Director
Escobia, CSC Field Office, Bacolod City, that
appointment become complete. When petitioner
Victoria took her oath of office and commenced
the discharge of the duties of a General Services
Officer, she acquired a vested right to that
position and cannot, according to petitioners, be
removed from that position without due process
of law.
This argument misconceives the nature of the
action taken by the respondent Commission. That
action was not the imposition of an administrative
disciplinary measure upon petitioner Victoria, nor
upon petitioner Mayor. There were no
administrative charges in respect of which
petitioner Victoria would have been entitled to
notice and hearing. The Commission, in approving
or disapproving an appointment, only examines
the conformity of the appointment with applicable
provisions of law and whether the appointee
possesses all the minimum qualifications and
none of the disqualifications. At all events, as the
Solicitor General has noted, petitioner Victoria
was afforded an opportunity to be heard when she
filed a motion for reconsideration with the
Commission and there challenged the disapproval
by the Commission.
The action of the Commission was, in other words,
taken in implementation of Section 59, Book V,
E.O. No. 292 and the relevant Implementing
Regulations. Because the promotional
appointment in favor of petitioner Victoria was a
violation of Section 59, it was null and void as
being contra legem. Section 9 of Rule V of the
Omnibus Implementing Regulations sets out the
principal legal consequence of an appointment
issued in disregard of the statutory prohibition:
Sec. 9. An appointment accepted by
the appointee cannot be withdrawn
or revoked by the appointing
authority and shall remain in force
and effect until disapproved by the
Commission. However, an
appointment may be void from the
beginning due to fraud on the part
of the appointee or because it was
issued in violation of law. (Emphasis
supplied)
A void appointment cannot give rise to
security of tenure on the part of the holder
of such appointment.
The Commission is empowered to take
appropriate action on all appointments and other
personnel actions, e.g., promotions. 15 Such power
includes the authority to recall an appointment
initially approved in disregard of applicable
provisions of Civil Service law and regulations.
Section 20 of Rule VI of the Omnibus
Implementing Rules makes this clear:
Sec. 20. Notwithstanding the initial
approval of an appointment, the
same may be recalled on any of the
following grounds:
(a) Non-compliance with the
procedures/criteria provided in the
agency's Merit Promotion Plan;
(b) Failure to pass through the
agency's Selection/Promotion
Board;
(c) Violation of the existing
collective agreement between
 management and employees
relative to promotion; or
(d) Violation of other existing civil
service law, rules and regulations.
(Emphasis supplied).
The recall or withdrawal by the Commission of the
approval which had been issued by one of its Field
Officers, Director Escobia, was accordingly lawful
and appropriate, the promotional appointment of
petitioner Victoria being void "from the
beginning." The approval issued by Director
Escobia did not, as it could not, cure the intrinsic
vice of that appointment.
We conclude, in respect of the second issue, that
petitioners have not shown any grave abuse of
discretion, amounting to lack of excess of
jurisdiction on the part of respondent
Commission.
Petitioners have also complained that the letter of
Congressman Carmona which had precipitated
action on the part of respondent Commission, was
not a verified letter. They contend that the
Commission could not or should not have acted
upon the charges raised in that letter.
We are not aware of any law or regulation
requiring the letter written by the Congressman to
be subscribed under oath before the Commission
could act thereon. Under its own rules and
regulations, the Commission may review motu
proprio personnel actions involving the position of
a Division Chief or above, such as the position of
General Services Officer. 16 We hold that the
respondent Commission had authority, indeed the
duty, to recall on its own initiative the erroneous
initial approval of the promotional appointment
extended to petitioner Victoria, and to review the
same de novo.
WHEREFORE, for all the foregoing, the Petition for
Certiorari must be DISMISSED for lack of merit. No
pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Regalado,
Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Puno, Vitug, Kapunan and
Mendoza, JJ., concur.
Bidin, J., is on leave.
#
Footnotes
1 An office created by the local
Government Code of 1991; Sections
454 and 490, R.A. No. 7160.
2 Annex "C," Rollo, p. 29.
3 Annex "J," Rollo, p. 36.
4 In this Resolution, the
Commission had also instructed
Director Caberoy "to formally
charged Mayor Rogelio R.
Debulgado for violation of the law
on nepotism, conduct the formal
investigation, if necessary, and
submit [his] report and
recommendation to the
Commission immediately." It
appears that the criminal complaint
against petitioner Mayor was later
withdrawn in Resolution No. 93-
3320 of the Commission; Annex
"A," Petitioners' Reply, Rollo, pp.
119-120.
5 Annex "D," Rollo, p. 30.
6 Annex "F," Rollo, p. 32.
7 Annex "H," Rollo, p. 34.
8 The minimum qualifications of a
General Services Officer are
prescribed in Section 490 of the
Local Government Code of 1991:
"Sec. 490. Qualifications, Powers
and Duties. — (a) No person shall
be appointed general services
officer unless he is a citizen of the
Philippines, a resident of the local
government unit concerned, of
good moral character, a holder of a
college degree on public
administration, business
administration and management
from a recognized college or
university, and a first grade civil
service eligible or its equivalent. He
must have acquired experience in
general services, including
management of supply, property,
solid waste disposal, and general
sanitation for at least five (5) years
in the case of the provincial or city
general services officer, and three
(3) years in the case of the
municipal general services officer.
The appointment for a general — persons employed
services officer shall be mandatory in a confidential
for the provincial and city capacity
governments.
— teachers
xxx xxx xxx
— physicians
(Emphasis supplied)
— members of the
9 On 10 September 1993, the Armed Forces of the
Commission issued its Philippines
Memorandum Circular No. 38,
Series of 1993, entitled "Omnibus d. the nepotism rule
Guidelines on Appointments and covers all kinds of
other Personnel Actions" published appointments be
in the Manila Standard, 6 October they original,
1993; text in "Omnibus Rules promotional, transfer
Implementing Book V of E.O. No. or reemployment
292 and other Pertinent Civil regardless of status.
Service Laws (published by the
Commission). Part VII of xxx xxx xxx
Memorandum Circular No. 38 reads
in relevant part as follows:
(Emphasis supplied)
"VII. PROHIBITIONS
ON APPOINTMENTS We note that paragraph 2(d), above
underscored, was added by the
Commission after the controversy
xxx xxx xxx here involved had begun and after
the promotional appointment to
2. No appointment in General Services Officer had been
the national, issued to petitioner Victoria. The
provincial, city and Court will not, of course, rely upon
municipal this paragraph in resolving the first
governments or in issue here presented. Moreover, it
any branch or is necessary to settle the question
instrumentality of whether Part VII, 2(d) of
thereof, including Memorandum Circular No. 38,
government owned Series of 1993 is itself valid or
or controlled whether it has expanded the scope
corporations shall be of the statutory norm in Section 59,
made in favor of a something which an implementing
relative of the regulation obviously cannot do.
appointing or
recommending Paragraph 2(d) of Memorandum
authority, or of the Circular No. 38 is quoted above
chief of the bureau of basically to point out that it sets out
office or of the the understanding of the
persons exercising Commission of the scope and reach
immediate of Section 59, Book V of E.O. No.
supervision over the 292 and that that understanding
appointee. has been cast in a form of a general
[Nepotism] regulation applicable to subsequent
appointments and not limited to the
xxx xxx xxx particular appointment of petitioner
Victoria Debulgado.
c. The following are
exempted from the 10 See Section 30, R.A. No. 2260,
operation of the rules as amended effective 19 June 1959
on nepotism: known as the Civil Service Law of
1959; and Section 49 of P.D. No.
 807 dated 6 October 1975, known
as the Civil Service Decree of the
Philippines.
11 203 SCRA 195 (1991).
12 Teologo v. Civil Service
Commission, 19 SCRA 238 (1990);
Meram v. Edralin, 154 SCRA 238
(1987).
13 203 SCRA at 208-209.
In Sulu Islamic Association of Masjid
Lambayong v. Malik (226 SCRA 193
[1993]), respondent Judge
appointed his nephew (son of his
older sister) to the position of
janitor in his court, and later
promoted him first as MTC Aide and
later as Process Server. The Court
held that he had violated the
prohibition against nepotism found
in Section 59, book VI of E.O. no.
292 for which offense, among
others, respondent was dismissed
from the service. The Court did not
seek to distinguish between the
original appointment of respondent
Judge's nephew as janitor from his
subsequent promotional
appointments.
14 It also follows that subparagraph
2(d) of Part VII, Memorandum
Circular No. 38, Series of 1993
(quoted in footnote 8, supra) does
not unduly expand the scope of the
statutory norm but, to the contrary,
merely faithfully reflects the scope
and reach thereof. Subparagraph
2(d) must hence be held valid and
effective.
15 Section 12(14), Chapter 3, Book
V of E.O. No. 292.
16 See Memorandum Circular No.
41, Series of 1991, dated 12
November 1991.
EN BANC
[G.R. No. 135805. April 29, 1999]
CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO
O. DACOYCOY, respondent.
DECISION
PARDO, J.:
The case before us is an appeal via certiorari
interposed by the Civil Service Commission from a
decision of the Court of Appeals ruling that
respondent Pedro O. Dacoycoy was not guilty of
nepotism and declaring null and void the Civil
Service Commission’s resolution dismissing him
from the service as Vocational School
Administrator, Balicuatro College of Arts and
Trade, Allen, Northern Samar.
The facts may be succinctly related as follows:
On November 29, 1995, George P. Suan, a
Citizens Crime Watch Vice-President, Allen
Chapter, Northern Samar, filed with the Civil
Service Commission, Quezon City, a complaint
against Pedro O. Dacoycoy, for habitual
drunkenness, misconduct and nepotism.
After the fact-finding investigation, the Civil
Service Regional Office No. 8, Tacloban City,
found a prima facie case against respondent, and,
on March 5, 1996, issued the corresponding
formal charge against him. Accordingly, the Civil
Service Commission conducted a formal
investigation, and, on January 28, 1997, the Civil
Service Commission promulgated its resolution
finding no substantial evidence to support the
charge of habitual drunkenness and misconduct.
However, the Civil Service Commission found
respondent Pedro O. Dacoycoy guilty of nepotism
on two counts as a result of the appointment of
his two sons, Rito and Ped Dacoycoy, as driver
and utility worker, respectively, and their
assignment under his immediate supervision and
control as the Vocational School Administrator
Balicuatro College of Arts and Trades, and
imposed on him the penalty of dismissal from the
service.
On February 25, 1997, respondent Dacoycoy filed
a motion for reconsideration; however, on May 20,
1997, the Civil Service Commission denied the
motion.
On July 18, 1997, respondent Dacoycoy filed with
the Court of Appeals a special civil action for
certiorari with preliminary injunction to set aside
the Civil Service Commission’s resolutions.
On July 29, 1998, the Court of Appeals
promulgated its decision reversing and setting
aside the decision of the Civil Service
Commission, ruling that respondent did not
appoint or recommend his two sons Rito and Ped,
and, hence, was not guilty of nepotism. The Court
further held that it is “the person who
recommends or appoints who should be
sanctioned, as it is he who performs the
prohibited act.”
Hence, this appeal.
On November 17, 1998, we required respondent
to comment on the petition within ten (10) days
from notice. On December 11, 1998, respondent
filed his comment
We give due course to the petition.
The basic issue raised is the scope of the ban on
nepotism.
We agree with the Civil Service Commission that
respondent Pedro O. Dacoycoy was guilty of
nepotism and correctly meted out the penalty of
dismissal from the service.
The law defines nepotism as follows:
“Sec. 59. Nepotism. – (1) All appointments to the
national, provincial, city and municipal
governments or in any branch or instrumentality
thereof, including government owned or
controlled corporations, made in favor of a
relative of the appointing or recommending
authority, or of the chief of the bureau or office, or
of the persons exercising immediate supervision
over him, are hereby prohibited.
“As used in this Section, the word “relative” and
members of the family referred to are those
related within the third degree either of
consanguinity or of affinity.
(2) The following are exempted from the
operations of the rules on nepotism: (a) persons
employed in a confidential capacity, (b)
teachers, (c) physicians, and (d) members of the
Armed Forces of the Philippines: Provided,
however, That in each particular instance full
report of such appointment shall be made to the
Commission.”
Under the definition of nepotism, one is guilty of
nepotism if an appointment is issued in favor of a
relative within the third civil degree of
consanguinity or affinity of any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over
the appointee.
Clearly, there are four situations covered. In the
last two mentioned situations, it is immaterial who
the appointing or recommending authority is. To
constitute a violation of the law, it suffices that an
appointment is extended or issued in favor of a
relative within the third civil degree of
consanguinity or affinity of the chief of the bureau
or office, or the person exercising immediate
supervision over the appointee.
Respondent Dacoycoy is the Vocational School
Administrator, Balicuatro College of Arts and
Trades, Allen, Northern Samar. It is true that he
did not appoint or recommend his two sons to the
positions of driver and utility worker in the
Balicuatro College of Arts and Trades. In fact, it
was Mr. Jaime Daclag, Head of the Vocational
Department of the BCAT, who recommended the
appointment of Rito. Mr. Daclag's authority to
recommend the appointment of first level
positions such as watchmen, security guards,
drivers, utility workers, and casuals and
emergency laborers for short durations of three to
six months was recommended by respondent
Dacoycoy and approved by DECS Regional
Director Eladio C. Dioko, with the provision that
such positions shall be under Mr. Daclag’s
immediate supervision. On July 1, 1992, Atty.
Victorino B. Tirol II, Director III, DECS Regional
Office VIII, Palo, Leyte, appointed Rito Dacoycoy
driver of the school. On January 3, 1993, Mr.
Daclag also appointed Ped Dacoycoy casual utility
worker. However, it was respondent Dacoycoy
who certified that “funds are available for the
proposed appointment of Rito Dacoycoy” and
even rated his performance as “very
satisfactory”. On the other hand, his son Ped
stated in his position description form that his
father was “his next higher supervisor”. The
circumvention of the ban on nepotism is quite
obvious. Unquestionably, Mr. Daclag was a
subordinate of respondent Pedro O. Dacoycoy,
who was the school administrator. He authorized
Mr. Daclag to recommend the appointment of first
level employees under his immediate
supervision. Then Mr. Daclag recommended the
appointment of respondent’s two sons and placed
them under respondent’s immediate supervision
serving as driver and utility worker of the school.
Both positions are career positions.
To our mind, the unseen but obvious hand of
respondent Dacoycoy was behind the appointing
or recommending authority in the appointment of
his two sons. Clearly, he is guilty of nepotism.
At this point, we have necessarily to resolve the
question of the party adversely affected who may
take an appeal from an adverse decision of the
appellate court in an administrative civil service
disciplinary case. There is no question that
respondent Dacoycoy may appeal to the Court of
Appeals from the decision of the Civil Service
Commission adverse to him. He was the
respondent official meted out the penalty of
dismissal from the service. On appeal to the
Court of Appeals, the court required the petitioner
therein, here respondent Dacoycoy, to implead
the Civil Service Commission as public respondent
as the government agency tasked with the duty
to enforce the constitutional and statutory
provisions on the civil service.
Subsequently, the Court of Appeals reversed the
decision of the Civil Service Commission and held
respondent not guilty of nepotism. Who now may
appeal the decision of the Court of Appeals to the
Supreme Court? Certainly not the respondent,
who was declared not guilty of the charge. Nor
the complainant George P. Suan, who was merely
a witness for the government. Consequently, the
Civil Service Commission has become the party
adversely affected by such ruling, which seriously
prejudices the civil service system. Hence, as an
aggrieved party, it may appeal the decision of the
Court of Appeals to the Supreme Court. By this
ruling, we now expressly abandon and overrule
extant jurisprudence that “the phrase ‘party
adversely affected by the decision’ refers to the
government employee against whom the
administrative case is filed for the purpose of
disciplinary action which may take the form of
suspension, demotion in rank or salary, transfer,
removal or dismissal from office” and not included
are “cases where the penalty imposed is
suspension for not more then thirty (30) days or
fine in an amount not exceeding thirty days
salary” or “when the respondent is exonerated of
the charges, there is no occasion for appeal.” In
other words, we overrule prior decisions holding
that the Civil Service Law “does not contemplate
a review of decisions exonerating officers or
employees from administrative charges”
enunciated in Paredes v. Civil Service
Commission; Mendez v. Civil Service Commission;
Magpale v. Civil Service Commission; Navarro v.
Civil Service Commission and Export Processing
Zone Authority and more recently Del Castillo v.
Civil Service Commission
The Court of Appeals’ reliance on Debulgado vs.
Civil Service Commission, to support its ruling is
misplaced. The issues in Debulgado are whether
a promotional appointment is covered by the
prohibition against nepotism or the prohibition
applies only to original appointments to the civil
service, and whether the Commission had gravely
abused its discretion in recalling and disapproving
the promotional appointment given to petitioner
after the Commission had earlier approved that
appointment. Debulgado never even impliedly
limited the coverage of the ban on nepotism to
only the appointing or recommending authority
for appointing a relative. Precisely, in Debulgado,
the Court emphasized that Section 59 “means
exactly what it says in plain and ordinary
language: x x x The public policy embodied in
Section 59 is clearly fundamental in importance,
and the Court had neither authority nor inclination
to dilute that important public policy by
introducing a qualification here or a distinction
there.”
Nepotism is one pernicious evil impeding the civil
service and the efficiency of its personnel. In
Debulgado, we stressed that “[T]the basic
purpose or objective of the prohibition against
nepotism also strongly indicates that the
prohibition was intended to be a comprehensive
one.” “The Court was unwilling to restrict and
limit the scope of the prohibition which is textually
very broad and comprehensive.” If not within the
exceptions, it is a form of corruption that must be
nipped in the bud or bated whenever or wherever
it raises its ugly head. As we said in an earlier
case “what we need now is not only to punish the
wrongdoers or reward the ‘outstanding’ civil
servants, but also to plug the hidden gaps and
potholes of corruption as well as to insist on strict
compliance with existing legal procedures in order
to abate any occasion for graft or circumvention
of the law.”
WHEREFORE, the Court hereby GRANTS the
petition and REVERSES the decision of the Court
of Appeals in CA-G.R. SP No. 44711.
ACCORDINGLY, the Court REVIVES and AFFIRMS
the resolutions of the Civil Service Commission
dated January 28, 1998 and September 30, 1998,
dismissing respondent Pedro O. Dacoycoy from
the service.
No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Kapunan, Panganiban,
Purisima, Buena, Gonzaga-Reyes, and Ynares-
Santiago, JJ., concur.
Romero, J., please see dissenting opinion.
Melo, J., concurs and dissent in separate opinion.
Puno, J., please see concurring opinion.
Vitug, and Quisumbing, JJ., join the concurring and
dissenting opinion of Justice Melo.
Mendoza, J., join the concurring opinion of Justice
Puno.
CSC Rollo, pp. 261-262.
Report of Investigation, CSC, Rollo, pp. 154-162.
Resolution No. 970684, dated January 28, 1997,
CSC Rollo, pp. 108-115.
CSC Rollo, pp. 82-92.
Resolution No. 972881, dated May 20, 1997,
Rollo, pp. 44-46.
Petition, CA-G.R. SP No. 44711.
Decision CA-G.R. SP No. 44711, Rollo, pp. 17-22.
Resolution, dated November 17, 1998, Rollo, p.
39.
Section 59, Executive Order 292, dated July 25,
1987.
Rule 43, Section 1, 1997 Rules of Civil Procedure;
R.A. No. 7902.
Resolution adopted on July 23, 1997, in CA-G.R.
SP No. 44711.
Article IX (B), Constitution; Section 12, par. 1,
Book V, Executive Order No. 292, dated July 25,
1987.
Paredes vs. Civil Service Commission, 192 SCRA
84, 99, citing Gonzalo vs. D. Roda, 64 SCRA 120.
Rule 45, Section 1, 1997 Rules of Civil Procedure.
Mendez vs. Civil Service Commission, 204 SCRA
965, 967.
Paredes vs. Civil Service Commission, 192 SCRA
84, 85.
Mendez vs. Civil Service Commission, 204 SCRA
965, 968.
192 SCRA 84.
204 SCRA 965.
215 SCRA 398.
226 SCRA 207.
241 SCRA 317..
237 SCRA 184.
On page 198.
On page 195.
On page 197.
Callanta vs. Office of the Ombudsman, 285 SCRA
648, 669.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-65439 November 13, 1985
PAMANTASAN NG LUNGSOD NG MAYNILA,
petitioner
vs.
HON. INTERMEDIATE APPELLATE COURT,
HON. FILEM0N FERNANDEZ, JR., HON.
ALBINA MANALODANS as Commissioners of
Civil Service Commission and HERNANI P.
ESTEBAN, respondents.
Office of the Legal Officer for petitioner.
GUTIERREZ, JR., J.:
The sole issue raised in this petition is the status
of respondent Hernani Esteban's appointment as
Vice-President for Administration of the
Pamantasan ng Lungsod ng Maynila that is,
whether or not he holds the position in a
permanent capacity as to guarantee as security of
tenure.
Respondent Esteban asserts that his appointment
is permanent whereas the petitioner maintains its
temporary and contractual nature such that the
respondent may be dismissed at any time even
without cause.
Prior to his joining the Pamantasan, Dr. Esteban
had been a permanent employee in the
government service for twenty five (25) years.
Until May 20, 1973, he was officially connected
with the Philippine College of Commerce, a state-
owned educational institution as its Vice-President
for Academic Affairs. Shortly before that date, the
Board of Trustees of the College in a bold move to
streamline the college organization resolve to
abolish the position of Vice-President for
Academic Affairs. Private respondent was given
the option to continue teaching at the Philippine
College of Commerce which he accepted until his
transfer to the Pamantasan ng Lungsod ng
Maynila, upon the invitation of its president, Dr.
Consuelo Blanco.
At the Pamantasan, Dr. Esteban was initially
extended an ad interim temporary appointment
as Vice-President for Administration by Dr.
Consuelo Blanco. Dr. Esteban received from the
Secretary of Pamantasan a 'Notification of
Confirmation of Temporary Appointment' dated
June 28, 1973. His appointment was 'effective
May 21, 1973 until June 30, 1974, unless sooner
terminated.' On July 5, 1974, the Secretary of
Pamantasan sent him a 'Notification of Renewal of
Temporary Appointment' indicating that his
appointment was renewed 'effective July 1, 1974
until August 31, 1974.'
A month later, on August 30, 1974, he received
from the University Secretary another 'notification
of renewal of temporary appointment' informing
him that the Board of Regents, on
recommendation of the President of the University
approved the renewal of his appointment
'effective September 1, 1974 until June 30, 1975'
with an increased salary of P17,160 per annum.
On October 15, 1974, incident to a further
increase of his salary, Dr. Esteban was notified
that his appointment as vice-president for
administration at a salary of P17,600 per annum
had been renewed effective September 1, 1974
until June 30, 1975.
On June 26, 1975, he received another
'Notification of Renewal of Temporary
Appointment' as Vice-President for Administration
with at salary of P21,760 per annum, 'effective
July 1, 1975 until June 30, 1976.'
On July 26, 1975, Dr. E qqqsteban discovered that
he was not included in the list of employees
recommended for permanent appointments. He
wrote Dr. Consuelo Blanco requesting the
conversion of his temporary appointment to a
permanent one, considering his two and half (2½)
years service.
On July 26, 1975, Dr. Esteban received an answer
to his request from President Blanco who
indicated various reasons for her not acting
favorably on his request.
On August 1, 1975, Dr. Esteban received a
'Notification of Ad Interim Appointment notifying
him that the president of the university had
approved his appointment as Professor III with a
salary of P15,600 per annum 'effective August 1,
1975'. He was further designated as Director of
the Institute of Continuing Education and
Community Service with an honorarium of P5,676
per annum, likewise effective August 1, 1975.
On August 7, 1975, Dr. Consuelo Blanco, issued a
memorandum circular terminating Dr. Esteban's
appointment as Vice-President for Administration
effective July 31, 1975. His appointment dated
June 26, 1975 and effective until June 30, 1976
had been withdrawn before it could be confirmed
by the Pamantasan Board of Regents.
On the same date, August 7, 1975, Dr. Esteban
appealed to the Civil Service Commission for the
protection of his tenure in the Pamantasan .
On October 9,1975, the Civil Service Commission
ruled that:
The temporary nature of the
appointment issued to Dr. Esteban
as Vice President for Administration
is conceded. Such being the Case,
his services may be terminated at
any time with or without request
that he be extended permanent
appointment ,or that his temporary
appointment be converted into
permanent one, it may be stated
that the issuance of such
appointment is addressed to the
sound discretion of the appointing
official.
Dr. Esteban flied a motion for the reconsideration
of that ruling. On January 14, 1976, the Civil
Service Commission ruled favorably on Dr.
Esteban's motion. It stated that he was fully
qualified for the position of Vice-President for
Administration and certified him "for appointment
therein under permanent status." The
Commission stated:
In view thereof, and in the absence
of any apparent justifiable reason
why Dr. Esteban should remian
under temporary status for the
length of time prior to the
withdrawal of his appointment as
Vice President for Administration in
that University, and as it further
appears that he is fully qualified for
the position in question in view of
his extensive experience in the
fields of public administration and
management, this Commission
hereby certifies him for
 appointment therein under
permanent status.
The Pamantasan, in turn, asked for the
reconsideration of that ruling.
The Commission, in an undated Resolution No. 75,
Series of 1976, came out with a statement which
confused more than it clarified. It stated that its
certification should not be interpreted as directing
the reinstatement of Dr. Esteban because 'it was
never intended to be so
On May 28, 1976 Esteban asked the commission
to reconsider Resolution No. 75, Series of 1976.
He also asked for the payment of the salaries and
allowances due him as of September 1975, which
the Pamantasan had withheld. His request was
denied by the commission in its undated
resolution No. 158, Series of 1976.
On September 15, 1976 Esteban reiterated his
request for payment of his salaries.
On September 20, 1976, he asked for a review of
the Pamantasan's decision to terminate his
appointment as Vice-President for Administration.
On December 1, 1976, his request for payment of
his salaries was referred by the Commission to
the treasurer of the Pamantasan.
On July 6, 1977, the Commission again modified
its earlier resolution in as case. It ruled that Dr.
Consuelo Blanco, had no authority to extend to
Dr. Esteban an ad interim appointment as Vice
President for Administration as only the Board of
Regents was empowered to do that under Article
55 of the University Charter (Rep. Act 4196).
However, it ruled that, as a de facto officer, he
was entitled to be paid the salary of that position.
Dr. Esteban and the Pamantasan filed motions for
reconsideration of that ruling prompting the
Commission to order them to submit "all papers
and documents pertinent to that case."
On June 6, 1978, Presidential Decree No.1409 was
issued creating a Merits System Board in the Civil
Service Commission to hear and decide cases
brought before it on appeal by officers and
employees who feel aggrieved by the
determination of officials on personnel matters.
The Board required the Pamantasan to submit its
complete records on the appointment and
termination of Dr. Esteban as vice-president for
administration.
While the records officer of the Pamantasan
submitted copies of the notices sent to Esteban
regarding his appointment as vice-president for
administration, he did not submit a copy of the
Board's Resolution No. 485 passed June 20, 1973
confirming the ad interim appointments of several
academic and non-academic personnel of said
university among which was that of Dr. Hernani
Esteban "effective May 21, 1973." He produced a
copy of the memorandum circular dated August 7,
1915 of the President of the Pamantasan
terminating Dr. Esteban's service as of July 31,
1975.
In Resolution No. 597 dated November 11, 1980,
the Commissioner directed the Pamantasan to
submit any document or documents directly or
actually showing that Dr. Hernani Esteban was
appointed vice-president for administration of the
Pamantasan in a permanent capacity.
On January 15, 1981, the Pamantasan by 2nd
Indorsement, despite the existence of Board
Resolution No. 485, replied that "we cannot find
any document showing that Dr. Esteban was
appointed ... in a permanent capacity.
In view of the Pamantasan's failure to produce the
minutes of the regular Board of Regents meeting
on June 20, 1973 when Esteban's appointment
was approved the Commission in its Resolution
No. 81-279 dated March 5, 1981, concluded that
there is truth to the claim of Dr. Esteban that his
appointment as Vice-President for Administration
of the Pamantasan was approved as permanent. It
cited Government of the Philippine Islands vs.
Martinez, (44 Phil. 817) that when a party has it in
his possession or power to produce the best
evidence of which the case in its nature is
susceptible and withholds it, the fair presumption
is that the evidence is withheld for some sinister
motive and that its production would thwart his
evil or fraudulent purpose.
The Commission ruled that "Dr. Hernani Esteban
had been appointed Vice-President for
Administration of Pamantasan with permanent
status and that the temporary appointment issued
to him did not alter his permanent status as he
had 'already acquired a vested right as well as the
right to security of tenure', that he cannot
unceremoniously removed therefrom, nor can the
status of his appointment be changed without
cause, as provided by law and after due process."
The Commission held that the termination of his
services was obviously illegal. It directed his
immediate reinstatement to the position of Vice-
President for Administration of Pamantasan and
the payment of his back salaries, allowances and
other benefits which he failed to receive from the
time he was separated therefrom.
The Pamantasan filed a motion for
reconsideration of that resolution. It also
submitted for the first time a copy of Resolution
No. 485.
The Commission, in Resolution No. 71-510 dated
April 23, 1981 chided the Pamantasan for having
suppressed said piece of evidence from which
"the intention of, or the accurate action taken by
PLM Board of Regents on Dr. Esteban's
appointment in question, may be determined."
Following the decision of the Supreme Court in
the case of Summers v. Ozaeta, (81 Phil. 760), the
Commission denied the Pamantasan's motion for
reconsideration and ruled that "Upon confirmation
of the Board of Regents of the ad interim
appointment of Dr. Esteban the same became
permanent."
Upon getting this ruling, the Pamantasan filed a
petition for certiorari against Dr. Esteban and Civil
Service Commissionssioners Filemon Fernandez,
Jr. and Albina Manalo Dans. The petition was
docketed as Civil Case No. 139840 of the Court of
First Instance of Manila, Branch XIII.
On January 8, 1982, the trial court rendered a
decision reversing the Commission's Resolution
No. 81-279 and adopted the earlier Commission
Resolution dated July 6, 1977 holding that Private
respondent Dr. Esteban's appointment was
invalid, though he may be considered as a de
facto vice-president of the University up to
October 9, 1975, the date when the Commission
ruled that his appointment was temporary and
could be terminated at any time.
The private respondent appealed to the
Intermediate Appellate Court.
On September 26, 1983. the respondent
Intermediate Appellate Court rendered a decision
reversing the trial court's decision. The dispositive
portion of the appellate decision reads:
Wherefore, the appealed decision is
hereby revised and set aside. The
Pamantasan's petition for certiorari
is denied. Resolution No 81-279
dated March 5, 1981, as well as
Resolution No. 81-510 dated April
23, 1981, of the respondent Civil
Service Commission, declaring as
permanent the appointment of the
appellant Dr. Hernani Esteban as
vice- president for administration of
the university under the Board of
Regents' Resolution No. 485 dated
June 20, 1973, and ordering his
immediate reinstatement to that
position with back salaries,
allowances and other benefits, is
affirmed, provided he has not yet
reached the age of compulsory
retirement from the government
service; otherwise, he shall be
entitled to back salaries, allowances
and other benefits only up to the
time he should handle been reared
from the said position.
From the decision of the Intermediate Appellate
Court and after its motion for reconsideration had
been denied petitioner Pamantasan ng Lungsod
ng Maynila filed the present petition, now the
subject of this review.
We find no error in the pronouncements of the
Intermediate Appellate Court. We rule in favor of
the respondents.
From the arguments, it is easy to see why the
petitioner should experience difficulty in
understanding the situation. Private respondent
had been extended several "ad-interim"
appointments which petitioner mistakenly
understands as appointments temporary in
nature. Perhaps, it is the literal translation of the
word "ad interim" which creates such belief. The
term is defined by Black to mean "in the
meantime" or for the time being, Thus, an officer
ad interim is one appointed to fill a vacancy, or to
discharge the duties of the office during the
absence or temporary incapacity of its regular
incumbent (Black's Law Dictionary, Revised
Fourth Edition, 1978). But such is not the meaning
nor the use intended in the context of Philippine
law. In referring to Dr. Esteban's appointments,
the term is not descriptive of the nature of the
appointments given to him. Rather, it is used to
denote the manner in which said appointments
were made, that is, done by the President of the
Pamantasan in the meantime, while the Board of
Regents, which is originally vested by the
University Charter with the power of appointment,
is unable to act. Thus, we held in Summers v.
Ozaeta (81 Phil. 760):
... an ad interim appointment is one
made in pursuance of paragraph
(4), section 10, Article VII of the
Constitution, which provides that
the President shall have the power
to make appointments during the
recess of the Congress, but such
appointments shall be effective
only until disapproval by the
Commission on Appointments or
until the next adjournment of the
Congress.' lt is an appointment
permanent in nature, and the
 circumstance that it is subject to
confirmation by the Commission on
Appointments does not alter its
permanent character. An ad interim
appointment is disapproved
certainly for a reason other than
that its provisional period has
expired. Said appointment is of
course distinguishable from an
'acting' appointment which is
merely temporary, good until
another permanent appointment is
issued.
Not only is the appointment in question an ad
interim appointment, but the same is also a
confirmed ad interim appointment. In its
Resolution No. 485, dated June 20, 1973, the
Pamantasan Board of Regents verified respondent
Esteban's appointment without condition nor
limitation as to tenure. As of that moment, it
became a regular and permanent appointment.
In other words, if the Board of Regents is in
session, the Pamantasan President merely
nominates while the Board issues the
appointment. But when the Board is not in
session, the President is authorized to issue ad
interim appointments. Such appointments are
permanent but their terms are only until the
Board disapproves them. If confirmed, the
appointee's term is converted into the regular
term inherent in the position.
Petitioner centers its arguments and tries to fix
the attention of the court to the fact that all
notices of appointments, renewals, and
confirmation thereof all declare the same to be
temporary, carrying fixed commencement and
termination dates, "unless sooner terminated." As
expressed by public respondent, "... This stubborn
insistence is anchored on the notifications of
temporary appointment sent to private
respondent Esteban by the Secretary of
Pamantasan. However, this insistence deliberately
ignores ... Resolution No. 485 dated June 20, 1973
of the Board of Regents ...". And correctly so
argued. "In case of conflict between a notification
issued by the Secretary of the University which is
supposed to reflect the true content of a Board
Resolution and the Resolution itself of said Board
of Regents of said University, the latter is
controlling for obvious reasons. The Secretary of
the University has no authority to alter or add
something which is not provided for in the
Resolution of the Board of Regents ...". Thus,
respondent Intermediate Appellate Court held:
The permanent nature of
appellant's appointment was not
altered or diminished by the
misleading 'notifications' which
were sent to him by the secretary
of the university president,
referring to his appointment as
'temporary', nor by his uninformed
acceptance thereof without
knowledge of the true contents of
Resolution No. 485 which the
university president appears to
have studiously suppressed.
There is nothing in the Pamantasan Board of
Regents' Resolution No. 485 which suggests that
respondent Esteban's appointment was
temporary. The Board's action was to confirm or
reject an existing ad interim appointment. If
respondent's appointment was intended to be
temporary, it should have been expressly stated.
It cannot be made to rest on inconclusive
evidence, specially because a temporary
appointment divests the temporary appointee of
the constitutional security of tenure against
removal without cause even if he is a civil service
eligible." (Tolentino v. de Jesus, 56 SCRA 167,
cited in Cortez v. Bartolome, 100 SCRA 1).
Further supporting private respondent's stand is
the list of permanent personnel which was
submitted to the Commission by the university
president herself on March 3, 1975 for recognition
of their permanent status by the Commission. The
appellant's name was the first in that list (Exhibit
8-B). The permanent status of private
respondent's appointment as Vice-President for
Administration at Pamantasan was recognized by
the Civil Service Commission in its lst Indorsement
dated April 18, 1975 upon the request of
petitioner. This fact is borne out by the records
and the evidence and found as such by the
Intermediate Appellate Court, the Civil Service
Commission as well as the Court of First Instance.
From the foregoing, there appears an intention to
deprive private respondent of his rights as a
permanent appointee. With strained relations and
differences in professional opinion between the
private respondent and the Pamantasan
President, Dr. Esteban was led to believe that his
services were terminable at pleasure.
The power to appoint is, in essence, discretionary.
The appointing power has the right of choice
which he may exercise freely according to his
judgment, deciding for himself who is best
qualified among those who have the necessary
qualifications and eligibilities. lt is a prerogative of
the appointing power that may be availed of
without liability, provided however, that it is
exercised in good faith for the advancement of
the employer's interest and not for the purpose of
defeating or circumventing the rights of the
employees under special laws or under valid
agreements, and provided further, that such
prerogatives are not exercised in a malicious,
harsh, oppressive, vindictive or wanton manner,
or out of malice or spite (Government Service and
Insurance System v. Ayroso 96 SCRA 213). The
general rule is that the power of appointment
must remain unhampered by judicial intervention.
However, when the law is violated or when there
is grave abuse of discretion, we have to step in.
Otherwise the situation aptly described by
newspaperman Jesus Bigornia would exist as he
had written:
... With the sword of Damocles
hanging over the heads of faculty
members, the university has
spawned a meek, spineless, even
subservient corps of professors and
instructors. (Newsman's Notes,
Bulletin Today, January 23, 1976).
We cannot also sanction the termination of
private respondent's services by petitioner. With
his appointment now settled as permanent., the
Civil Service law and the Constitution guarantee
private respondent's security of tenure as 'No
officer or employe in the Civil Service shall be
suspended or dismissed except for cause as
provided by law" (Section 3, Article XII, the 1973
Philippine Constitution). Petitioner has failed to
substantiate its allegations of incompetence
against respondent Esteban whose record of
government service appears quite impressive.
Esteban was not dimissed for cause after proper
proceedings. His appointment was terminated on
the ground that it was temporary.
The intermediate Appellate Court ordered the
payment of full back salaries to Dr. Esteban
provided he has not reached the age of
compulsory retirement from the government
service.
It is not clear from the records as to when Dr.
Esteban actually ceased working for Pamantasan.
Under the law, he is entitled to full pay,
allowances, and other benefits during the period
that he was actually reporting for work and
rendering services in whatever capacity, whether
teaching, research or administration. As of
backwages, the amount is generally based on the
equivalent of three years' earnings (Philippine
Airlines, Inc. v. National Labor Relations
Commission, 126 SCRA 223; Insular Life
Assurance Co., Ltd. v. National Labor Relations
Commission, 135 SCRA 697). In line with the
policy adopted by this Court to do away with the
attendant delay in awarding backwages because
of the extended hearings necessary to prove the
earnings, elsewhere of each and every employee
(Philippine Airlines, Inc. v. National Labor
Relations Commission, supra, citing Mercury Drug
Co., Inc. v. Court of Industrial Relations, 56 SCRA
694), the formula for computing the same calls for
fixing the award of backwages to three years.
However, in Dy Keh Beng v. International Labor
and Marine Union, 90 SCRA 162, citing Mercury
Drug Co., et al. v. Court of Industrial Relations, 56
SCRA 694, 712), we held the amount of
backwages to be "subject to deduction whre there
are mitigating circumstances in favor of the
employer, but subject to increase whree there are
aggravating circumstances. (Tupas Local Chapter
No. 979, et al. v. National Labor Relations
Commission, et al., G. R. No. 60532-33, November
5,\1985; Progressive Development Corporation v.
Progressive Employees' Union, 80 SCRA 434.)
Considering that in the case at bar, more than ten
(10) years have elpased from the date respondent
Esteban as to the true nature of his appointment
and "studiously suppressing" material data to
effectively deprive the latter of his rights as a
permanent employee, we find an award of five (5)
years backpay to respondent Dr. Esteban just and
equitable under the circumstances, assuming he
has not reached retirement age in the meantime.
WHEREFORE, the petition for review on certiorari
is hereby DISMISSED for lack of merit. The
decision appealed from is affirmed subject to the
modification in the payment of back salaries as
stated above.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana
and Patajo, JJ., concur.
Relova J., is on leave.
Separate Opinions
DE LA FUENTE, J., concurring:
I vote for the affirmance in toto of the decision of
IAC. I believe that under the circumstances there
should be no reduction of the back salaries, etc.
Separate Opinions
DE LA FUENTE, J., concurring:
I vote for the affirmance in toto of the decision of
IAC. I believe that under the circumstances there
should be no reduction of the back salaries, etc.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. NO. L-69137 August 5, 1986
FELIMON LUEGO, petitioner-appellant,
vs.
CIVIL SERVICE COMMISSION and FELICULA
TUOZO, respondents-appellees.
Jose Batiquin for petitioner-appellant.
Fausto F. Tugade for private respondent-appellee.
CRUZ, J.:
Stripped of irrelevant details and impertinent
incidents that have cluttered the voluminous
record, the facts of this case may be briefly
narrated as follows:
The petitioner was appointed Administrative
Officer 11, Office of the City Mayor, Cebu City, by
Mayor Florentino Solon on February 18, 1983. 1
The appointment was described as permanent"
but the Civil Service Commission approved it as
"temporary," subject to the final action taken in
the protest filed by the private respondent and
another employee, and provided "there (was) no
pending administrative case against the
appointee, no pending protest against the
appointment nor any decision by competent
authority that will adversely affect the approval of
the appointment." 2 On March 22, 1984, after
protracted hearings the legality of which does not
have to be decided here, the Civil Service
Commission found the private respondent better
qualified than the petitioner for the contested
position and, accordingly, directed "that Felicula
Tuozo be appointed to the position of
Administrative Officer 11 in the Administrative
Division, Cebu City, in place of Felimon Luego
whose appointment as Administrative Officer II is
hereby revoked." 3 The private respondent was so
appointed on June 28, 1984, by the new mayor,
Mayor Ronald Duterte. 4 The petitioner, invoking
his earlier permanent appointment, is now before
us to question that order and the private
respondent's title.
The issue is starkly simple: Is the Civil Service
Commission authorized to disapprove a
permanent appointment on the ground that
another person is better qualified than the
appointee and, on the basis of this finding, order
his replacement by the latter?
The Solicitor General, rather than face the
question squarely, says the petitioner could be
validly replaced in the instant case because his
appointment was temporary and therefore could
be withdrawn at will, with or without cause.
Having accepted such an appointment, it is
argued, the petitioner waived his security of
tenure and consequently ran the risk of an abrupt
separation from his office without violation of the
Constitution. 5
While the principle is correct, and we have applied
it many times, 6 it is not correctly applied in this
case. The argument begs the question. The
appointment of the petitioner was not temporary
but permanent and was therefore protected by
Constitution. The appointing authority indicated
that it was permanent, as he had the right to do
so, and it was not for the respondent Civil Service
Commission to reverse him and call it temporary.
The stamping of the words "APPROVED as
TEMPORARY" did not change the character of the
appointment, which was clearly described as
"Permanent" in the space provided for in Civil
Service Form No. 33, dated February 18, 1983. 7
What was temporary was the approval of the
appointment, not the appointment it sell And what
made the approval temporary was the fact that it
was made to depend on the condition specified
therein and on the verification of the
qualifications of the appointee to the position.
The Civil Service Commission is not empowered to
determine the kind or nature of the appointment
extended by the appointing officer, its authority
being limited to approving or reviewing the
appointment in the light of the requirements of
the Civil Service Law. When the appointee is
qualified and authorizing the other legal
requirements are satisfied, the Commission has
no choice but to attest to the appointment in
accordance with the Civil Service Laws.
As Justice Ramon C. Fernandez declared in an
earlier case:
It is well settled that the
determination of the kind of
appointment to be extended lies in
the official vested by law with the
appointing power and not the Civil
Service Commission. The
 Commissioner of Civil Service is not
empowered to determine the kind
or nature of the appointment
extended by the appointing officer.
When the appointee is qualified, as
in this case, the Commissioner of
Civil Service has no choice but to
attest to the appointment. Under
the Civil Service Law, Presidential
Decree No. 807, the Commissioner
is not authorized to curtail the
discretion of the appointing official
on the nature or kind of the
appointment to be extended. 8
Indeed, the approval is more appropriately called
an attestation, that is, of the fact that the
appointee is qualified for the position to which he
has been named. As we have repeatedly held,
such attestation is required of the Commissioner
of Civil Service merely as a check to assure
compliance with Civil Service Laws. 9
Appointment is an essentially discretionary power
and must be performed by the officer in which it is
vested according to his best lights, the only
condition being that the appointee should possess
the qualifications required by law. If he does, then
the appointment cannot be faulted on the ground
that there are others better qualified who should
have been preferred. This is a political question
involving considerations of wisdom which only the
appointing authority can decide.
It is different where the Constitution or the law
subjects the appointment to the approval of
another officer or body, like the Commission on
Appointments under 1935 Constitution. 10
Appointments made by the President of the
Philippines had to be confirmed by that body and
could not be issued or were invalidated without
such confirmation. In fact, confirmation by the
Commission on Appointments was then
considered part of the appointing process, which
was held complete only after such confirmation. 11
Moreover, the Commission on Appointments could
review the wisdom of the appointment and had
the power to refuse to concur with it even if the
President's choice possessed all the qualifications
prescribed by law. No similar arrangement is
provided for in the Civil Service Decree. On the
contrary, the Civil Service Commission is limited
only to the non-discretionary authority of
determining whether or not the person appointed
meets all the required conditions laid down by the
law.
It is understandable if one is likely to be misled by
the language of Section 9(h) of Article V of the
Civil Service Decree because it says the
Commission has the power to "approve" and
"disapprove" appointments. Thus, it is provided
therein that the Commission shag have inter alia
the power to:
9(h) Approve all appointments,
whether original or promotional to
positions in the civil service, except
those presidential appointees,
members of the Armed Forces of
the Philippines, police forces,
firemen, and jailguards, and
disapprove those where the
appointees do not possess
appropriate eligibility or required
qualifications. (emphasis supplied)
However, a full reading of the provision, especially
of the underscored parts, will make it clear that all
the Commission is actually allowed to do is check
whether or not the appointee possesses the
appropriate civil service eligibility or the required
qualifications. If he does, his appointment is
approved; if not, it is disapproved. No other
criterion is permitted by law to be employed by
the Commission when it acts on--or as the Decree
says, "approves" or "disapproves" an appointment
made by the proper authorities.
Significantly, the Commission on Civil Service
acknowledged that both the petitioner and the
private respondent were qualified for the position
in controversy. 12 That recognition alone rendered
it functus officio in the case and prevented it from
acting further thereon except to affirm the validity
of the petitioner's appointment. To be sure, it had
no authority to revoke the said appointment
simply because it believed that the private
respondent was better qualified for that would
have constituted an encroachment on the
discretion vested solely in the city mayor.
In preferring the private respondent to the
petitioner, the Commission was probably applying
its own Rule V, Section 9, of Civil Service Rules on
Personnel Actions and Policies, which provides
that "whenever there are two or more employees
who are next-in-rank, preference shall be given to
the employee who is most competent and
qualified and who has the appropriate civil service
eligibility." This rule is inapplicable, however,
because neither of the claimants is next in rank.
Moreover, the next-in-rank rule is not absolute as
the Civil Service Decree allows vacancies to be
filled by transfer of present employees,
reinstatement, re-employment, or appointment of
outsiders who have the appropriate eligibility. 13
There are apparently no political overtones in this
case, which looks to be an honest contention
between two public functionaries who each
sincerely claims to be entitled to the position in
dispute. This is gratifying for politics should never
be permitted to interfere in the apolitical
organization of the Civil Service, which is
supposed to serve all the people regardless of
partisan considerations. This political detachment
will be impaired if the security of tenure clause in
the Constitution is emasculated and appointments
in the Civil Service are revoked and changed at
will to suit the motivations and even the fancies of
whatever party may be in power.
WHEREFORE, the resolution of the respondent
Commission on Civil Service dated March 22,
1984, is set aside, and the petitioner is hereby
declared to be entitled to the office in dispute by
virtue of his permanent appointment thereto
dated February 18, 1983. No costs.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa,
Melencio-Herrera, Alampay, Gutierrez, Jr., and
Paras, JJ., concur.
Footnotes
1 Rollo, p. 52.
2 Rollo, p. 52.
3 Ibid., p. 31.
4 Ibid., pp. 17, 178, 245, 336.
5 Rollo, pp. 350-351.
6 Montero vs. Castellanes, 108 Phil.
744; University of the Philippines, et
al vs. CIR, 107 Phil. 848; Azuelo vs.
Arnaldo, 108 Phil. 293; Atay, et al
vs. Ty Deling, 107 Phil. 1146;
Serrano vs. NSDB, 10 SCRA 626;
Hojilla vs. Marino, 13 SCRA 293;
Aguila vs. Castro, 15 SCRA 656.
7 Rollo, p. 1.
8 In Re: Elvira C. Arcega, 89 SCRA
318, 322.
9 Ibid.; Villanueva vs. Bellalo, 9
SCRA 407-41 1; Said Benzar Ali vs.
Teehankee, 46 SCRA 728, 730-731;
Santos vs. Chico, 25 SCRA 343; City
of Manila vs. Subido, 17 SCRA 231.
10 Article VII, Section l0 (3) and (7),
1935 Constitution.
11 Lacson vs. Romero, 84 SCRA
740, 745.
12 Rollo, pp. 30-31.
13 Section 19(5), Article VIII, P.D.
No. 807.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-26785 May 23, 1991
DEOGRACIAS A. REGIS, JR., petitioner,
vs.
SERGIO OSMEÑA, JR., VICENTE PACIFICO,
CITY OF CEBU, CITY COUNCIL OF CEBU, CITY
TREASURER AND CITY AUDITOR, respondents.
Basilio E. Duaban for petitioner.
DAVIDE, JR., J.:p
This is an appeal from the Decision 1 of the Court
of First Instance of Cebu dated 28 December 1965
in Civil Case No. R-8778, dismissing the petition
for Mandamus filed on 9 March 1965 by petitioner
to compel respondents to reinstate him to his
former position as driver, Motorized Section of the
Cebu City Police Department (CPD), with back
salaries from the date of his ouster until
reinstatement, and to pay him moral and
exemplary damages and attorney's fees. 2
The material operative facts in this case, as
admitted by the parties in the stipulation of facts
they submitted in the court below and as
established by the other evidence introduced by
them pursuant to the reservations they made in
the stipulation of facts are as follows:
I. Per stipulation of facts: 3
1. On January 8, 1958, petitioner
was appointed by then Cebu City
Mayor, Ramon Duterte, as driver,
Motorized Division of the Cebu
Police Department, with a yearly
compensation of P1,440.00, as
shown by a true copy of his
appointment hereto attached and
marked Annex "A";
2. On January 8, 1960, petitioner
was issued another appointment as
"driver" of the Cebu Police
Department, at an increased yearly
compensation at P1,560.00, a true
copy of which is hereto attached
and marked Annex "A-1";
3 On December 21, 1961, petitioner
was issued another appointment by
then Cebu City Mayor Carlos J.
Cuizon as "Driver, Civilian
Employee" of the Cebu Police
Department at the increased yearly
compensation of P1,920.00 a true
copy of which is hereto attached
and marked as Annex "A-2";
4. On November 7, 1963, petitioner
was extended an appointment as
"driver (Radio Patrol) Civilian
Employee" of the Cebu Police
Department at the increased yearly
compensation of P2,040.00, true
copy of which is marked as Annex
"A-3";
5 On April 14, 1964, petitioner was
removed from his position in the
Cebu Police Department without
prior investigation or hearing, the
termination having been made in a
letter of dismissal quoted as
follows:
REPUBLIC OF THE PHILIPPINES
CITY OF CEBU
Office of the Mayor
April 14, 1964
Mr. Deogracias A. Regis, Jr.
Driver, Cebu Police Department
Cebu City
Sir:
There being no more need for your
service as Driver in the Cebu Police
Department, your provisional
appointment thereto is hereby
terminated effective April 16, 1964.
Please turn over any government
property that may have been
issued to you to the proper property
custodian and have yourself cleared
of any accountability during the
period of your service.
Respectf
By order
(SGD.) V
6. Petitioner is a civil service
eligible, having passed the
patrolman and/or detective
(qualified) civil service examination
on July 20, 1963 with a rating of
76.85% as shown in the attached
copy of "Report of Ratings" marked
Annex "B";
7. Petitioner is a fourth year student
in the College of Liberal Arts in the
University of the Visayas as shown
by the attached certification
marked Annex "C";
8. The position of the petitioner,
after his removal, was filled up by
the respondent City Mayor with the
appointment of Eduardo Gabiana, a
non-civil service eligible as shown
in his appointment hereto attached
and marked Annex "D";
9. On August 20, 1964, after his
removal, the petitioner addressed
similarly worded letters to the
President of the Philippines and the
Civil Service Commissioner, hereto
attached as Annexes "E" and "E-1",
protesting and appealing his
unlawful removal and demanding
his reinstatement. Under date of
September 4, 1964, the Executive
Secretary to the President indorsed
the above-mentioned letter to the
Commissioner of Civil Service, as
shown in the first indorsement
hereto attached as Annex "E-2".
Since the filing of the instant action,
the petitioner has not been afforded
the relief of reinstatement by either
the Office of the President of the
Philippines or by the Civil Service
Commissioner.
 Parties, however, will submit
evidence to establish facts not
herein stipulated.
Cebu City, August 20, 1965.
(SGD.) FERNANDO S. RUIZ (SGD.)
JOSE BATIQUIN
(T) FERNANDO S. RUIZ (T) JOSE
BATIQUIN
Attorney for the Assistant City
Fiscal
Petitioner Counsel for the
2nd Floor, Aboitiz Respondents
Building Cebu City
Magallanes corner
Jakosalem
Cebu City
II. Per additional evidence formally adduced
during the hearing:
10. Petitioner received his civil
service eligibility for patrolman-
detective on 8 March 1964, a
photostatic of which was filed, for
record purposes, with the clerk in
charge of the record section of the
CPD on 12 March 1964 (Exhs. "F",
"F-1"); his efficiency rating is 88%,
the highest among the drivers of
the CPD he is the only civil service
eligible among the drivers in the
CPD; after his ouster, the City of
Cebu created positions of drivers;
and he attributed his ouster to
politics, alleging that he was being
suspected as a supporter of the
faction of then Congressman
Durano, the political rival of
respondent Mayor Osmeña; 4 and
11. The records of the Regional
Office of the Civil Service
Commission in Cebu City do not
show that petitioner possesses any
civil service eligibility at the time he
was appointed as driver. 5
This Court further observes that the actions of the
Civil Service Commission on the appointments of
petitioner admitted in the Stipulation of Facts and
attached thereto as Annexes "A", "A-1", "A-2" and
"A-3" were as follows:
1. Appointment dated 8 January
1958 — Noted as temporary
pending receipt of the required
medical certificate, subject to
availability of funds and provided
that there is no pending
administrative or criminal case
against appointee and that the
separation of the former incumbent
is in order;
2. Appointment dated 8 January
1960 — Approved under Section
24(c) or R.A. No. 2260 as an
exception to Section 256 of the
Revised Administrative Code, and
subject to availability of funds;
3. Appointment dated 21 December
1961 — Approved under Section
24(c) of R.A. No. 2260, subject to
availability of funds and as
exceptional case under Sec. 256 of
the Revised Administrative Code,
provided there is no pending
administrative or criminal case
against the appointee and provided
that his efficiency rating for the
semester ending 6-30-61 is not
below 85%; and
4. Appointment dated 7 November
1963—Approved under Section
24(c) of R.A. No. 2260, subject to
availability of funds and subject to
Section 20 of R.A. No. 2260,
provided there is no pending
administrative or criminal case
against the appointee.
The last three appointments were for salary
adjustments.
In its Decision of 28 December 1965, the court
below dismissed the petition on the ground that
petitioner's questioned appointment was
temporary in nature and, therefore, terminable at
the pleasure of the appointing power. Expounding
on this, it says:
xxx xxx xxx
As for the first issue the answer is
that his status at the time of his
ouster on April 16, 1964 was that of
temporary driver of the CPD. His
appointments on January 8, 1958,
January 8, 1960, December 21,
1961 and on November 7, 1963
were all temporary in nature. It is
true that on March 5, 1964 the Civil
Service Commission certified to his
having passed the
patrolman/detective civil service
examination with a rating of
75.85%, but said examination is not
intended for or appropriate to, the
position of driver; hence, it did not
convert his temporary status of
driver to a permanent one. (Sec. 8,
Rule IV, Civil Service Rules.) Then
again, the mere certification of the
Civil Service Commission of his civil
service eligibility for
patrolman/detective did not amount
to his appointment. The appointing
power, the City Mayor, has the right
of choice which he may exercise
freely according to his judgment,
deciding for himself who is best
qualified for any competitive
position in the Civil Service. The
Civil Service Commission does not
ensure any appointment; it only
certifies an eligible to be possessed
of the qualification, as required for
a position classified under its rules.
(Jimenez vs. General Francisco, etc.,
et al., G.R. No. L-9699, Feb. 28,
1957; Vol. 53 O.G. Aug. 15, 1957, p.
4804.)
The appointment of the petitioner
being temporary or provisional in
nature, the duration of temporary
appointment should not exceed six
months. (Sec. 24, Rep. Act 226.)
After the expiration of said period,
petitioner could have been
removed at will by the appointment
power; his continuance thereafter
as a temporary employee was only
an extension of grace. (Jimenez vs.
General Francisco, etc., et al.,
supra.)
Temporary appointment is similar
to one made in an acting capacity,
the essence of which lies in its
temporary character and its
terminability at pleasure by the
appointing power. And one who
bears such an appointment cannot
complain if it is terminated at a
moment's notice. (Cuadra vs.
Cordova, G.R. No. L-11602, April 21,
1958; Vol. 54 O.G. Dec. 8, 1958, p.
8063.) 6
Hence, this appeal.
In his Brief petitioner assigns only one error: The
court a quo erred in dismissing his petition. 7
In support thereof he argues that his removal on
the ground that there was "no more need for your
service" was not real and true but a mere pretext,
for after his ouster one Eduardo Gabiana, a non-
civil service eligible, was appointed to the vacated
position and in the succeeding budget of the City
of Cebu more positions of driver were created; at
the time of his ouster he was already a civil
service eligible, having passed the patrolman-
detective (qualifying) civil service examination
given in July of 1963, and respondents knew of
this fact. Moreover, said removal was not for
cause, and it was done without due process in
violation of Section 32 of R.A. No. 2260 which
provides that 44 no officer or employee in the civil
service shall be removed or suspended except for
cause provided by law and after due process."
Petitioner further argues that his last appointment
of 7 November 1963 was approved under Section
24(c) of R.A. No. 2260; therefore, it was a
provisional and not a temporary appointment as
erroneously classified by the court a quo. Republic
Act No. 2260 makes a distinction between
provisional and temporary appointments. The
former is governed by Section 24(c) while the
latter is covered by Section 24(d) thereof.
According to him, his appointment was provisional
because at the time it was extended he was not
yet a civil service eligible. He was still awaiting for
the results of the examination for patrolman-
detective (qualifying) given by the Civil Service
Commission in July of 1963; however, he received
his report of rating on 8 March 1963 indicating
that he passed it; consequently, instead of
dismissing him, the City Mayor should have
extended to him a permanent appointment
inasmuch as he had already become a civil
service eligible. In short, he claims that his
patrolman-detective eligibility is appropriate to his
position considering the nature of his office prior
to his removal which authorized him to wear the
uniform and badge of a regular member of the
Cebu Police Department, carry an official firearm,
wear an ID as a regular member of the city police,
and to make arrests.
Finally, petitioner submits that as member of the
Cebu City Police at the time of his removal, his
separation from the service could only be done
under R.A. No. 557 under which the City Mayor
can only prefer charges but cannot remove.
Respondents filed their Brief after the expiration xxx xxx xxx
of the reglementary period. Upon motion of
petitioner dated 29 March 1967 8 this Court There is no basis nor logic in
ordered their brief stricken off the record. 9 appellants' contention that there is
no difference between a temporary
We agree with the petitioner that the trial court appointment under Section 24(d) of
erred in holding that his appointment is the Civil Service Act which reads
temporary in nature. Obviously, the trial court thus:
failed to appreciate the clear distinction between
a temporary appointment and a provisional Temporary
appointment. It had either confused one for the Appointment. — A
other or considered one as synonymous with the person may receive a
other as shown in the opening sentence of the temporary
first paragraph of the portions of the decision appointment to a
hereinbefore quoted wherein it categorized the position needed only
appointment of petitioner as "temporary or for a limited period
provisional in nature." not exceeding six
months, provided
As correctly stated by petitioner, provisional that preference in
appointments are governed by paragraph (c) of filing such position be
Section 24 of R.A. No. 2260 while temporary given to persons on
appointments are covered by paragraph (d) of appropriate eligible
said Section. For convenience We quote both lists.
paragraphs:
and a provisional appointment under Section
xxx xxx xxx 24(c) which says:

(c) Provisional appointments — A Provincial

provisional appointment may be appointment. — A
issued upon prior authorization of provisional
the Commissioner in accordance appointment may be
with the provisions of the Act and issued upon the prior
the rules and standards authorization of the
promulgated in pursuance thereto Commissioner in
to a person who has not qualified in accordance with the
an appropriate examination but provisions of this Act
who otherwise meets the and the rules and
requirements for appointment to a standards
regular position in the competitive promulgated in
service, whenever a vacancy occurs pursuance thereto to
and the filling thereof is necessary a person who has not
in the interest of the service and qualified in an
there is no appropriate register of appropriate
eligibles at the time of examination but who
appointment. otherwise meets the
requirements for
(d) Temporary appointment. — A appointment to a
person may receive a temporary regular position in
appointment to a position needed the competitive
only for a limited period not service, whenever a
exceeding six months, provided vacancy occurs and
that a preference in filling such the filling thereof is
position be given to persons on necessary in the
appropriate eligible lists. interest of the service
and there is no
In Festejo vs. Barreras, et al., L-25074, 27 appropriate register
December 1969, 10 We made a distinction of eligibles at the
between a provisional appointment and time of appointment.
temporary appointment thus:
According to appellants, "while they
may be different in the degree of
permanence, in that temporary
appointments are generally for and
within specified periods of time,
their nature as being subject to
termination by the appointing
power remains the same." Such
contention petition is untenable.
Even from a cursory reading of
these two provisions, one can
readily see that each of them
contemplates an entirely different
situation from the other. Indeed, as
pointed out by His Honor, the trial
judge, it is contrary to the ordinary
rules of legal hermeneutics to
assume that the lawmakers
intended these two separate
provisions in a seemingly single
enumeration of categories of
appointments to have the same
import or significance. Whereas a
temporary appointment is designed
to fill "a position needed only for a
limited period not exceeding six
months, a provisional appointment,
on the other hand, is intended for
the contingency that "a vacancy
occurs and the filling thereof is
necessary in the interest of the
service and there is no appropriate
register of eligibles at the time of
appointment." In other words, the
reason for extending a provisional
appointment is not because there is
an occasional work or job to be
done which is expected to be
finished in not more than six
months but because the interest of
the service requires that certain
work be done or functions be
performed by a regular employee,
only that there is no one with
appropriate eligibility, who can be
appointed to do it, hence any other
eligible may be appointed to
perform such work or functions in
the meanwhile that a suitable
eligible does not qualify for the
position. This is clearly implied by
the mandate of the provision that a
provisional appointment may be
extended only to "a person who has
not qualified in an appropriate
examination but who otherwise
meets the requirements for
appointment to a regular position in
the competitive service," meaning
one who must anyway be a civil
service eligible. On the other hand,
again, in the case of a temporary
appointment, all that the law
enjoins is that "preference in filling
such position be given to persons
on appropriate eligible lists." And
merely giving preference, of course,
presupposes that even a non-
eligible may be appointed. As a
matter of fact, under this provision,
even if the appointee has the
required civil service eligibility, his
appointment is still temporary,
simply because such is the nature
of the work to be done. The
decisions cited by appellants are
not in point. They all refer to
temporary appointments as such.
None of them involves a provisional
appointment like the one herein in
question.
In Ata, et al. vs. Namocatcat, et al., L-39703, 30
October 1972, 11 We further elaborated on the
distinction:
. . . A provisional appointment is
one which may be issued, upon the
prior authorization of the
Commissioner of Civil Service in
accordance with the provisions of
the Civil Service Law and the rules
and standards promulgated
thereunder, to a person who has
not qualified in an appropriate
examination but who otherwise
meets the requirements for
appointment to a regular position in
the competitive service, whenever
a vacancy occurs and the filling
thereof is necessary in the interest
of the service and there is no
appropriate register of eligibles at
the time of appointment (Sec.
24(c), supra). On the other hand, a
temporary appointment given to a
non-civil service eligible is without a
definite tenure of office and is
dependent upon the pleasure of the
appointing power." (Citing Cuadra
vs. Cordova, 103 Phil. 391; Pinullar
vs. President of the Senate, 104
Phil. 131, 135).
As early as Piñero, et al. vs. Hechanova, et al., L-
22562, 22 October 1966, 12 We held:
. . . Even in the case of those
holding provisional or probationary
appointments . . . the invalidity
thereof can not be declared unless
it is first shown that there were
 appropriate eligibles at the time
they were appointed . . .
In Ferrer vs. Hechanova, L-24416, 25 January
1967, 13 We held:
. . . A provisional appointment is
good only until replacement by a
civil service eligible and in no case
beyond thirty (30) days from the
date of receipt by the appointing
officer of the certificate of eligibility
(Sec. 24(c), R.A. 2260; Rule VI,
Secs. 13 and 14, Revised Civil
Service Rules; Piñero vs.
Hechanova, supra).
In Ramos vs. Subido, L-26090, September 6,
1967, 14 We ruled:
The position in question is under
the classified service; Ramos
accepted Ms latest appointment
thereto, dated July 1, 1963, without
having the requisite appropriate
civil service eligibility for said
position. Accordingly, his
appointment can only be deemed
provisional and good only until
replacement by one holding such
appropriate eligibility, in no case to
extend more than thirty days from
receipt of the appointing officer of
the list of eligibles (Ferrer vs.
Hechanova, L-24418, January 25,
1967).
In Aguilar vs. Hon. Augusto L. Valencia, et al., L-
30396, 30 July
1971, 15 We affirmed the decision of the trial court
holding that provisional appointments under Sec.
24(c) of R.A. No. 2260 can only by terminated
thirty days after receipt by the appointing power
of a list of eligibles from the Civil Service
Commission.
In Lamata, et al. vs. Cusi, et al., L-32619, 31
October 1972, 16 We reiterated our rulings in
Piñero vs. Hechanova, Ferrer vs. Hechanova, and
Ramos vs. Subido.
Accordingly, since there was no certificate of civil
service eligibility received by respondent City
Mayor, the provisional appointment of petitioner
remained valid and subsisting. Prior to such
receipt petitioner may only be removed for cause
as provided by law under Section 32 of R.A. No.
2260. That there was "no more need" for his
service was not a valid and lawful cause and even
if it were so, it could not be availed of in this case
since, as admitted by the parties, immediately
after the ouster a non-civil service eligible was
appointed to replace petitioner and more driver
positions were included in the succeeding budget
of the City of Cebu. These facts negated the
pretended basis for the dismissal. The real hidden
cause was not that service of the nature and
character rendered by petitioner was no longer
needed, but that petitioner had become
unacceptable to the appointing authority.
Petitioner testified that his removal was politically
motivated, he was suspected of supporting the
faction of Mr. Durano, a political enemy of
respondent City Mayor. We are not inclined to
give full faith and credit to this testimony
considering that this point was not even alleged in
the petition.
We agree, however, with the court below that the
patrolman-detective civil service eligibility of
petitioner "is not intended for or appropriate to
the position of driver; hence, it did not convert his
temporary [should be, correctly, provisional]
appointment of driver to a permanent one (Sec. 8,
Rule IV, Civil Service Rules)."
Section 8, Rule IV of the Civil
Service Rules provides:
xxx xxx xxx
Except as otherwise provided by
law, eligibility in a certain
examination shall serve as
qualification for appointment only
to the position or positions for
which examination was held and no
horizontal or vertical conversion of
eligibility or examination rating
shall be allowed.
xxx xxx xxx
In Police Commission vs. Lood, et al., L-34637, 24
February 1984, 17 We ruled:
Under the civil service law then in
force, the fact that private
respondent subsequently became a
civil service eligible did not ipso
facto render permanent the nature
of his temporary appointment as to
make the question moot and
academic.
Although this case refers to a temporary
appointment, the rule laid down equally applies to
a provisional appointment.
This matter, however, had been subsequently
categorically resolved in favor of holders of
provisional appointments by R.A. No. 6040, which
took effect on 4 August 1969. Section 18 thereof
provides:
. . . all provisional appointments
made or appointments approved by
the Civil Service Commission under
Section 24(C) of Republic Act
Numbered Two thousand two
hundred sixty prior to the approval
of this Act shall automatically be
permanent under the provisions of
Section twenty-four (b) thereof as
amended by this Act, subject to the
provisions of Section 16(h) of said
Act as herein amended. (emphasis
supplied).
Pursuant thereto, petitioner's provisional
appointment of 7 November 1963 automatically
became permanent effective 4 August 1969.
We therefore rule that petitioner's dismissal was
illegal and that he should be reinstated.
He should also be granted back salaries.
However, the award for back salaries should not
be from the date of his dismissal until
reinstatement. In similar cases, We limited the
award for a period of five (5) years. 18
In Ginson vs. Municipality of Murcia, et al., We
ruled:
Considering however, the lapse of
time spanning almost twenty years
—since this controversy rose, and
considering the probability that the
petitioner might have, in the
interim, acquired a new
employment, we are constrained to
grant her the payment of back
salaries equivalent to five (5) years
without deduction or qualification.
(Citing Laganapan vs. Asedillo,
supra).
We likewise order her
reinstatement, subject to the
condition that she has not obtained
any other employment in Murcia
municipal dentist or any position for
which she is qualified by reason of
civil service eligibility and subject to
the requisites of age and physical
fitness. . . .
As to who of the respondents should pay the back
salaries, We rule that only respondent City of
Cebu should be liable therefor. Respondent City of
Cebu did not oppose the dismissal of petitioner
and the appointment in his stead of another
whose salaries it thereafter paid. All respondents
were represented by the Assistant City Fiscal of
Cebu City and interposed the same defenses. 19
Moreover, after respondent Mayor Osmeña
vacated his office his successor, Carlos J. Cuizon,
without the objection on the part of the City of
Cebu, filed a manifestation in the court below to
the effect that he adopted the position of his
predecessor, Mayor Osmeña, in respect to the
course of action taken against petitioner 20 In
short, respondent City of Cebu confirmed or
ratified the action of the Mayor.
IN VIEW OF ALL THE FOREGOING, judgment is
hereby rendered REVERSING the Decision
appealed from the ORDERING the respondent City
of Cebu to (a) reinstate petitioner, subject to the
condition that he has not obtained any other
employment, to his position under his
appointment of 7 November 1963, or to any
position of equivalent rank, or for which he is
qualified by reason of civil service eligibility and
subject to the requisites of age and physical
fitness, (b) pay petitioner back salaries, at the
rate last received by him, for a period of five (5)
years without qualification and deduction and
with interest at the legal rate from the date of his
illegal dismissal until the same shall have been
fully paid, and (c) pay the costs.
SO ORDERED.
Fernan C.J., Gutierrez, Jr., Feliciano and Bidin, JJ.,
concur.
Footnotes
1 Per then Judge Mateo Canonoy;
Original record, 93-101.
2 Original record, 1-4.
3 Original record, 33-35.
4 TSN, December 28, 1965, pp. 15-
22.
5 TSN, December 28, 1965, pp. 46-
47.
6 Original record, 99-100.
 7 Brief for Appellant, p. 1; Rollo, 12.
8 Rollo, 37.
9 Resolution of 27 April 1967; Rollo,
45.
10 30 SCRA 873, 876, 78.
11 47 SCRA 314, 319-20.
12 18 SCRA 417, 425.
13 19 SCRA 105.
14 21 SCRA 44.
15 40 SCRA 210.
16 47 SCRA 385.
17 127 SCRA 757, 764.
18 Cristobal vs. Melchor, et al., L-
43202, 29 July 1977, 78 SCRA 175,
187; Balquidra vs. CFI, et al., L-
40490, 28 October 1977, 80 SCRA
123, Laganapan vs. Asedillo, et al.,
L-28353, 30 September 1987, 154
SCRA 377, 387; Ginson vs.
Municipality of Murcia, et al., L-
46585, 8 February 1988, 158 SCRA
1, 8; Antiporda vs. Ticao et al., L-
30796, 15 April 1988, 160 SCRA 40,
42; San Luis, et al., vs. Court of
Appeals, et al., G.R. No. 80160, 26
June 1989, 174 SCRA 258, 273.
19 Answer, pp. 16-20 of Original
Record.
20 Manifestation, p. 68, Original
Record.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 93023 March 13, 1991
TOMAS D. ACHACOSO, petitioner
vs.
CATALINO MACARAIG and RUBEN D.
TORRES, in their capacities as Executive
Secretary and Secretary of the Department
of Labor and Employment (DOLE),
respectively; and JOSE N. SARMIENTO,
respondents.
Padilla, Jimenez, Kintanar and Asuncion Law
Office for petitioner.
CRUZ, J:p
The petitioner invokes security of tenure against
his claimed removal without legal cause. The
respondents assert he is not entitled to the
guaranty because he is not a career official. These
are the legal issues. The facts are as follows:
Tomas D. Achacoso was appointed Administrator
of the Philippine Overseas Employment
Administration on October 16, 1987, and assumed
office on October 27, 1987. On January 2, 1990, in
compliance with a request addressed by the
President of the Philippines to "all Department
Heads, Undersecretaries, Assistant Secretaries,
Bureau Heads," and other government officials,
he filed a courtesy resignation. This was accepted
by the President on April 3, 1990, "with deep
regrets." On April 10, 1990, the Secretary of Labor
requested him to turn over his office to the
Deputy Administrator as officer in-charge. In a
letter dated April 19, 1990, he protested his
replacement and declared he was not
surrendering his office because his resignation
was not voluntary but filed only in obedience to
the President's directive. On the same date,
respondent Jose N. Sarmiento was appointed
Administrator of the POEA, vice the petitioner.
Achacoso was informed thereof the following day
and was again asked to vacate his office. He filed
a motion for reconsideration on April 23, 1990,
but this was denied on April 30, 1990. He then
came to this Court for relief.
In this petition for prohibition and mandamus, this
Court is asked to annul the appointment of
Sarmiento and to prohibit the respondents from
preventing the petitioner from discharging his
duties as Administrator of the POEA.
Achacoso contends that he is a member of the
Career Service of the Civil Service and so enjoys
security of tenure, which is one of the
characteristics of the Career Service as
distinguished from the Non-Career Service. 1
Claiming to have the rank of undersecretary, he
says he comes under Article IV, Section 5 of P.D.
807, otherwise known as the Civil Service Decree,
which includes in the Career Service:
 3. Positions in the Career Executive
Service; namely, Undersecretary,
Assistant Secretary, Bureau
Director, Assistant Bureau Director,
Regional Director, Assistant
Regional Director, Chief of
Department Service and other
officers of equivalent rank as may
be identified by the Career
Executive Service Board, all of
whom are appointed by the
President.
His argument is that in view of the security of
tenure enjoyed by the above-named officials, it
was "beyond the prerogatives of the President" to
require them to submit courtesy resignations.
Such courtesy resignations, even if filed, should
be disregarded for having been submitted "under
duress," as otherwise the President would have
the power to remove career officials at pleasure,
even for capricious reasons. In support of this
contention, he invokes Ortiz vs. Commission on
Elections, 2 where we observed that "to constitute
a complete and operative act of resignation, the
officer or employee must show a clear intention to
relinquish" and that "a courtesy resignation
cannot properly be interpreted as a resignation in
the legal sense for it is not necessarily a reflection
of a public official's intention to surrender his
position." He concludes that as his removal was
illegal, there was no vacancy in the disputed
office to which respondent Sarmiento could have
been validly appointed.
In his Comment, the Solicitor General concedes
that the office of POEA Administrator is a career
executive service position but submits that the
petitioner himself is not a career executive
service official entitled to security of tenure. He
offers the following certification from the Civil
Service Commission to show that the petitioner
did not possess the necessary qualifications when
he was appointed Administrator of the POEA in
1987:
CERTIFICATION
This is to certify that per records of
the Career Executive Service Board
(CESB), Mr. Tomas D. Achacoso III
has not participated in a Career
Executive Service Development
Program (CESDP) and is not a CES
eligible. This is to certify further
that Mr. Achacoso was not
appointed to a rank in the CES and
is not therefore a member of the
Career Executive Service.
xxx xxx xxx
(Sgd
Reference is also made to the following rules
embodied in Part III, Article IV, Integrated
Reorganization Plan as approved by P.D. 1 and
amended by P.D. 336 and P.D. 337, on the career
executive service:
c. Appointment. Appointment to
appropriate classes in the Career
Service shall be made by the
President from a list of career
executive eligibles recommended
by the Board. Such appointments
shall be made on the basis of rank;
provided that appointments to the
higher ranks which qualify the
incumbents to assignments as
undersecretary and heads of the
bureaus and offices and equivalent
positions shall be with the
confirmation of the Commission on
Appointments. The President may,
however, in exceptional cases,
appoint any person who is not a
Career Executive Service eligible,
provided that such appointee shall
subsequently take the required
Career Executive Service
examination and that he shall not
be promoted to a higher class until
he qualifies in such examination.
(Emphasis supplied.)
The respondents contend that as the petitioner
was not a career executive service eligible at the
time of his appointment, he came under the
exception to the above rule and so was subject to
the provision that he "shall subsequently take the
required Career Executive Service examination
and that he shall not be promoted to a higher
rank until he qualifies in such examination." Not
having taken that examination, he could not claim
that his appointment was permanent and
guaranteed him security of tenure in his position.
It is settled that a permanent appointment can be
issued only "to a person who meets all the
requirements for the position to which he is being
appointed, including the appropriate eligibility
prescribed." Achacoso did not. At best, therefore,
his appointment could be regarded only as
temporary. And being so, it could be withdrawn at
will by the appointing authority and "at a
moment's notice," conformably to established
jurisprudence.
The Court, having considered these submissions
and the additional arguments of the parties in the
petitioner's Reply and the Solicitor-General's
Rejoinder, must find for the respondents.
The mere fact that a position belongs to the
Career Service does not automatically confer
security of tenure on its occupant even if he does
not possess the required qualifications. Such right
will have to depend on the nature of his
appointment, which in turn depends on his
eligibility or lack of it. A person who does not have
the requisite qualifications for the position cannot
be appointed to it in the first place or, only as an
exception to the rule, may be appointed to it
merely in an acting capacity in the absence of
appropriate eligibles. 3 The appointment extended
to him cannot be regarded as permanent even if it
may be so designated.
The purpose of an acting or temporary
appointment is to prevent a hiatus in the
discharge of official functions by authorizing a
person to discharge the same pending the
selection of a permanent or another appointee. 4
The person named in an acting capacity accepts
the position under the condition that he shall
surrender the office once he is called upon to do
so by the appointing authority.
In these circumstances, the acting appointee is
separated by a method of terminating official
relations known in the law of public officers as
expiration of the term. His term is understood at
the outset as without any fixity and enduring at
the pleasure of the appointing authority. When
required to relinquish his office, he cannot
complain that he is being removed in violation of
his security of tenure because removal imports
the separation of the incumbent before the
expiration of his term. 5 This is allowed by the
Constitution only when it is for cause as provided
by law. The acting appointee is separated
precisely because his term has expired. Expiration
of the term is not covered by the constitutional
provision on security of tenure.
There is a long line of cases affirming the rule
that:
. . . One who holds a temporary
appointment has no fixed tenure of
office; his employment can be
terminated at the pleasure of the
appointing power, there being no
need the show that the termination
is for cause. 6
The petitioner contends that his appointment was
really intended to be permanent because
temporary appointments are not supposed to
exceed twelve months and he was allowed to
serve in his position for more than three years.
This is unacceptable. Even if that intention were
assumed, it would not by itself alone make his
appointment permanent. Such an appointment
did not confer on the petitioner the appropriate
civil service eligibility he did not possess at the
time he was appointed, nor did it vest him with
the right to security of tenure that is available
only to permanent appointees.
The case of Luego vs. Civil Service Commission 7
is not applicable because the facts of that case
are different. The petitioner in Luego was
qualified and was extended a permanent
appointment that could not be withdrawn on the
ground that it was merely temporary. In the case
at bar, the petitioner was not eligible and
therefore could be appointed at best only in a
temporary capacity. The other cases he cites, viz.
Pamantasan ng Lungsod ng Maynila vs.
Intermediate Appellate Court, 8 Palma-Fernandez
vs. De la Paz, 9 and Dario vs. Mison, 10 are also not
pertinent because they also involved permanent
appointees who could not be removed because of
their security of tenure.
It should be obvious from all the above
observations that the petitioner could have been
validly replaced even if he had not filed his
courtesy resignation. We therefore do not have to
rule on its legality. Suffice it to say that it could
have been a graceful way of withdrawing him
from his office with all the formal amenities and
no asperity or discord if only he had not chosen to
contest it. But it was his right to do so, of course,
although his challenge has not succeeded.
WHEREFORE, the petition is DISMISSED, with
costs against the petitioner. It is so ordered.
Fernan, C.J., Melencio-Herrera, Gutierrez, Jr.,
Paras, Feliciano, Gancayco, Bidin, Sarmiento,
Griño-Aquino, Medialdea, Regalado and Davide,
Jr., JJ., concur.
Narvasa and Padilla, JJ., took no part.
Footnotes
1 Article IV, Section 5, P.D. 807.
2 162 SCRA 812.
3 Cuadra v. Cordova, 103 Phil. 391.
4 Austria v. Amante 79 Phil. 780.
5 Manalang v. Quitoriano, 50 O.G.
2515; Alba v. Evangelista, 100 Phil.
683.

6 Mendez v. Ganzon, 101 Phil. 48;

Cuadra v. Cordova, 103 Phil. 391;
U.P., et al. v. CIR, 107 Phil. 848;
Quitiquit v. Villacorta, 107 Phil.
1060; De la Torre v. Trinidad, et al.,
108 Phil. 365; Madrid v. Auditor
General, 108 Phil. 578; Montero v.
Castellanes, 108 Phil. 744.

7 143 SCRA 327.

8 140 SCRA 22.

9 160 SCRA 751.

10 176 SCRA 84.