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March 18, 2015

G.R. No. 199113

RENATO M. DAVID, Petitioner,


vs.
EDITHA A. AGBAY and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

VILLARAMA, JR., J.:

This is a petition for review under Rule 45 seeking to reverse the Order1 dated October 8, 2011 of the
Regional Trial Court (RTC) of Pinamalayan, Oriental Mindoro, which denied the petition for certiorari
filed by Renato(petitioner)M. David. Petitioner assailed the Order2 dated March 22, 2011 of the
Municipal Trial Court (MTC) of Socorro, Oriental Mindoro denying his motion for redetermination of
probable cause.

The factual antecedents:

In 1974, petitioner migrated to Canada where he became a Canadian citizen by naturalization. Upon
their retirement, petitioner and his wife returned to the Philippines. Sometime in 2000, they purchased
a 600-square meter lot along the beach in Tambong, Gloria, Oriental Mindoro where they constructed a
residential house. However, in the year 2004, they came to know that the portion where they built their
house is public land and part of the salvage zone.

On April 12, 2007, petitioner filed a Miscellaneous Lease Application3 (MLA) over the subject land with
the Department of Environment and Natural Resources (DENR) at the Community Environment and
Natural Resources Office (CENRO) in Socorro. In the said application, petitioner indicated that he is a
Filipino citizen.

Private respondent Editha A. Agbay opposed the application on the ground that petitioner, a Canadian
citizen, is disqualified to own land. She also filed a criminal complaint for falsification of public
documents under Article 172 of the Revised Penal Code (RPC) (I.S. No. 08-6463) against the petitioner.

Meanwhile, petitioner re-acquired his Filipino citizenship under the provisions of Republic Act No.
9225,4 (R.A. 9225) as evidenced by Identification Certificate No. 266-10-075 issued by the Consulate
General of the Philippines (Toronto) on October 11, 2007.

In his defense, petitioner averred that at the time he filed his application, he had intended to re-acquire
Philippine citizenship and that he had been assured by a CENRO officer that he could declare himself as
a Filipino. He further alleged that he bought the property from the Agbays who misrepresented to him
that the subject property was titled land and they have the right and authority to convey the same. The
dispute had in fact led to the institution of civil and criminal suits between him and private respondent’s
family.
On January 8, 2008,6 the Office of the Provincial Prosecutor issued its Resolution7 finding probable cause
to indict petitioner for violation of Article 172 of the RPC and recommending the filing of the
corresponding information in court. Petitioner challenged the said resolution in a petition for review he
filed before the Department of Justice (DOJ).

On June 3, 2008, the CENRO issued an order rejecting petitioner’s MLA. It ruled that petitioner’s
subsequent re-acquisition of Philippine citizenship did not cure the defect in his MLA which was void ab
initio.8

In the meantime, on July 26, 2010, the petition for review filed by petitioner was denied by the DOJ
which held that the presence of the elements of the crime of falsification of public document suffices to
warrant indictment of the petitioner notwithstanding the absence of any proof that he gained or
intended to injure a third person in committing the act of falsification.9 Consequently, an information for
Falsification of Public Document was filed before the MTC (Criminal Case No. 2012) and a warrant of
arrest was issued against the petitioner.

On February 11, 2011, after the filing of the Information and before his arrest, petitioner filed an Urgent
Motion for Re-Determination of Probable Cause10 in the MTC. Interpreting the provisions of the law
relied upon by petitioner, the said court denied the motion, holding that R.A. 9225 makes a distinction
between those who became foreign citizens during its effectivity, and those who lost their Philippine
citizenship before its enactment when the governing law was Commonwealth Act No. 6311 (CA 63). Since
the crime for which petitioner was charged was alleged and admitted to have been committed on April
12, 2007 before he had re- acquired his Philippine citizenship, the MTC concluded that petitioner was at
that time still a Canadian citizen. Thus, the MTC ordered:

WHEREFORE, for lack of jurisdiction over the person of the accused, and for lack of merit, the motion
is DENIED.

SO ORDERED.12

In his motion for reconsideration,13 petitioner questioned the foregoing order denying him relief on the
ground of lack of jurisdiction and insisted that the issue raised is purely legal. He argued that since his
application had yet to receive final evaluation and action by the DENR Region IV-B office in Manila, it is
academic to ask the citizenship of the applicant (petitioner) who had re-acquired Philippine citizenship
six months after he applied for lease of public land. The MTC denied the motion for reconsideration.14

Dissatisfied, petitioner elevated the case to the RTC via a petition15 for certiorari under Rule 65, alleging
grave abuse of discretion on the part of the MTC. He asserted that first, jurisdiction over the person of
an accused cannot be a pre-condition for the re-determination of probable cause by the court that
issues a warrant of arrest; and second, the March 22, 2011 Order disregarded the legal fiction that once
a natural-born Filipino citizen who had been naturalized in another country re-acquires his citizenship
under R.A. 9225, his Filipino citizenship is thus deemed not to have been lost on account of said
naturalization.

In his Comment and Opposition,16 the prosecutor emphasized that the act of falsification was already
consummated as petitioner has not yet re-acquired his Philippine citizenship, and his subsequent oath
to re-acquire Philippine citizenship will only affect his citizenship status and not his criminal act which
was long consummated prior to said oath of allegiance.

On October 8, 2011, the RTC issued the assailed Order denying the petition for certiorari after finding no
grave abuse of discretion committed by the lower court, thus:

ACCORDINGLY, the petition is hereby DENIED. At any rate petitioner is not left without any remedy or
recourse because he can proceed to trial where he can make use of his claim to be a Filipino citizen as
his defense to be adjudicated in a full blown trial, and in case of conviction, to appeal such conviction.

SO ORDERED.17

Petitioner is now before us arguing that –

A. By supporting the prosecution of the petitioner for falsification, the lower court has
disregarded the undisputed fact that petitioner is a natural-born Filipino citizen, and that by re-
acquiring the same status under R.A. No. 9225 he was by legal fiction "deemed not to have lost"
it at the time of his naturalization in Canada and through the time when he was said to have
falsely claimed Philippine citizenship.

B. By compelling petitioner to first return from his legal residence in Canada and to surrender or
allow himself to be arrested under a warrant for his alleged false claim to Philippine citizenship,
the lower court has pre-empted the right of petitioner through his wife and counsel to question
the validity of the said warrant of arrest against him before the same is implemented, which is
tantamount to a denial of due process.18

In his Comment, the Solicitor General contends that petitioner’s argument regarding the retroactivity of
R.A. 9225 is without merit.1âwphi1 It is contended that this Court’s rulings in Frivaldo v. Commission on
Elections19 and Altarejos v. Commission on Elections20 on the retroactivity of one’s re- acquisition of
Philippine citizenship to the date of filing his application therefor cannot be applied to the case of herein
petitioner. Even assuming for the sake of argument that such doctrine applies in the present situation, it
will still not work for petitioner’s cause for the simple reason that he had not alleged, much less proved,
that he had already applied for reacquisition of Philippine citizenship before he made the declaration in
the Public Land Application that he is a Filipino. Moreover, it is stressed that in falsification of public
document, it is not necessary that the idea of gain or intent to injure a third person be present. As to
petitioner’s defense of good faith, such remains to be a defense which may be properly raised and
proved in a full- blown trial.

On the issue of jurisdiction over the person of accused (petitioner), the Solicitor General opines that in
seeking an affirmative relief from the MTC when he filed his Urgent Motion for Re-determination of
Probable Cause, petitioner is deemed to have submitted his person to the said court’s jurisdiction by his
voluntary appearance. Nonetheless, the RTC correctly ruled that the lower court committed no grave
abuse of discretion in denying the petitioner’s motion after a judicious, thorough and personal
evaluation of the parties’ arguments contained in their respective pleadings, and the evidence
submitted before the court.
In sum, the Court is asked to resolve whether (1) petitioner may be indicted for falsification for
representing himself as a Filipino in his Public Land Application despite his subsequent re-acquisition of
Philippine citizenship under the provisions of R.A. 9225; and (2) the MTC properly denied petitioner’s
motion for re-determination of probable cause on the ground of lack of jurisdiction over the person of
the accused (petitioner).

R.A. 9225, otherwise known as the "Citizenship Retention and Re- acquisition Act of 2003," was signed
into law by President Gloria Macapagal-Arroyo on August 29, 2003. Sections 2 and 3 of said law read:

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. (Emphasis
supplied)

While Section 2 declares the general policy that Filipinos who have become citizens of another country
shall be deemed "not to have lost their Philippine citizenship," such is qualified by the phrase "under the
conditions of this Act." Section 3 lays down such conditions for two categories of natural-born Filipinos
referred to in the first and second paragraphs. Under the first paragraph are those natural-born Filipinos
who have lost their citizenship by naturalization in a foreign country who shall re-acquire their Philippine
citizenship upon taking the oath of allegiance to the Republic of the Philippines. The second paragraph
covers those natural-born Filipinos who became foreign citizens after R.A. 9225 took effect, who
shall retain their Philippine citizenship upon taking the same oath. The taking of oath of allegiance is
required for both categories of natural-born Filipino citizens who became citizens of a foreign country,
but the terminology used is different, "re-acquired" for the first group, and "retain" for the second
group.

The law thus makes a distinction between those natural-born Filipinos who became foreign citizens
before and after the effectivity of R.A. 9225. Although the heading of Section 3 is "Retention of
Philippine Citizenship", the authors of the law intentionally employed the terms "re-acquire" and
"retain" to describe the legal effect of taking the oath of allegiance to the Republic of the Philippines.
This is also evident from the title of the law using both re-acquisition and retention.
In fine, for those who were naturalized in a foreign country, they shall be deemed to have re-acquired
their Philippine citizenship which was lost pursuant to CA 63, under which naturalization in a foreign
country is one of the ways by which Philippine citizenship may be lost. As its title declares, R.A. 9225
amends CA 63 by doing away with the provision in the old law which takes away Philippine citizenship
from natural-born Filipinos who become naturalized citizens of other countries and allowing dual
citizenship,21 and also provides for the procedure for re-acquiring and retaining Philippine citizenship. In
the case of those who became foreign citizens after R.A. 9225 took effect, they shall retain Philippine
citizenship despite having acquired foreign citizenship provided they took the oath of allegiance under
the new law.

Petitioner insists we should not distinguish between re-acquisition and retention in R.A. 9225. He asserts
that in criminal cases, that interpretation of the law which favors the accused is preferred because it is
consistent with the constitutional presumption of innocence, and in this case it becomes more relevant
when a seemingly difficult question of law is expected to have been understood by the accused, who is a
non-lawyer, at the time of the commission of the alleged offense. He further cites the letter-reply dated
January 31, 201122 of the Bureau of Immigration (BI) to his query, stating that his status as a natural-
born Filipino will be governed by Section 2 of R.A. 9225.

These contentions have no merit.

That the law distinguishes between re-acquisition and retention of Philippine citizenship was made clear
in the discussion of the Bicameral Conference Committee on the Disagreeing Provisions of House Bill No.
4720 and Senate Bill No. 2130 held on August 18, 2003, where Senator Franklin Drilon was responding
to the query of Representative Exequiel Javier:

REP. JAVIER. I have some questions in Section 3. Here, under Section 3 of the Senate version, "Any
provision of law on the contrary notwithstanding, natural-born citizens of the Philippines who, after the
effectivity of this Act, shall… and so forth, ano, shall retain their Philippine citizenship.

Now in the second paragraph, natural-born citizens who have lost their citizenship by reason of their
naturalization after the effectivity of this Act are deemed to have reacquired…

THE CHAIRMAN (SEN. DRILON). Prior to the effectivity.

REP. JAVIER. Well, you have two kinds of natural-born citizens here. Natural-born citizens who acquired
foreign citizenship after the effectivity of this act are considered to have retained their citizenship. But
natural-born citizens who lost their Filipino citizenship before the effectivity of this act are considered to
have reacquired. May I know the distinction? Do you mean to say that natural-born citizens who
became, let’s say, American citizens after the effectivity of this act are considered natural-born?

Now in the second paragraph are the natural-born citizens who lost their citizenship before the
effectivity of this act are no longer natural born citizens because they have just reacquired their
citizenship. I just want to know this distinction, Mr. Chairman.

THE CHAIRMAN (SEN. DRILON). The title of the Senate version is precisely retention and
reacquisition. The reacquisition will apply to those who lost their Philippine citizenship by virtue of
Commonwealth Act 63.Upon the effectivity -- assuming that we can agree on this, upon the effectivity
of this new measure amending Commonwealth Act 63, the Filipinos who lost their citizenship is deemed
to have reacquired their Philippine citizenship upon the effectivity of the act.

The second aspect is the retention of Philippine citizenship applying to future instances. So that’s the
distinction.

REP. JAVIER. Well, I’m just asking this question because we are here making distinctions between
natural-born citizens. Because this is very important for certain government positions, ‘no, because
natural-born citizens are only qualified for a specific…

THE CHAIRMAN (SEN. DRILON). That is correct.

REP. JAVIER. ...positions under the Constitution and under the law.

THE CHAIRMAN (SEN. DRILON). Yes. We can get to that later on. It’s one of the provisions, yes. But just
for purposes of the explanation, Congressman Javier, that is our conceptualization. Reacquired for
those who previously lost [Filipino citizenship] by virtue of Commonwealth Act 63, and retention for
those in the future. (Emphasis supplied)

Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity of R.A. 9225, he
belongs to the first category of natural- born Filipinos under the first paragraph of Section 3 who lost
Philippine citizenship by naturalization in a foreign country. As the new law allows dual citizenship, he
was able to re-acquire his Philippine citizenship by taking the required oath of allegiance.

For the purpose of determining the citizenship of petitioner at the time of filing his MLA, it is not
necessary to discuss the rulings in Frivaldo and Altarejos on the retroactivity of such reacquisition
because R.A. 9225 itself treats those of his category as having already lost Philippine citizenship, in
contradistinction to those natural-born Filipinos who became foreign citizens after R.A. 9225 came into
force. In other words, Section 2 declaring the policy that considers Filipinos who became foreign citizens
as not to have lost their Philippine citizenship, should be read together with Section 3, the second
paragraph of which clarifies that such policy governs all cases after the new law’s effectivity.

As to the letter-reply of BI, it simply quoted Section 2 of R.A. 9225 without any reference to Section 3 on
the particular application of reacquisition and retention to Filipinos who became foreign citizens before
and after the effectivity of R.A. 9225.

Petitioner’s plea to adopt the interpretation most favorable to the accused is likewise misplaced. Courts
adopt an interpretation more favorable to the accused following the time-honored principle that penal
statutes are construed strictly against the State and liberally in favor of the accused.23 R.A. 9225,
however, is not a penal law.

Falsification of documents under paragraph 1, Article 17224 in relation to Article 17125 of the RPC refers
to falsification by a private individual, or a public officer or employee who did not take advantage of his
official position, of public, private, or commercial documents. The elements of falsification of documents
under paragraph 1, Article 172 of the RPC are:
(1)that the offender is a private individual or a public officer or employee who did not take
advantage of his official position;

(2)that he committed any of the acts of falsification enumerated in Article 171 of the RPC; and

(3)that the falsification was committed in a public, official or commercial document.26

Petitioner made the untruthful statement in the MLA, a public document, that he is a Filipino citizen at
the time of the filing of said application, when in fact he was then still a Canadian citizen. Under CA 63,
the governing law at the time he was naturalized as Canadian citizen, naturalization in a foreign country
was among those ways by which a natural-born citizen loses his Philippine citizenship. While he re-
acquired Philippine citizenship under R.A. 9225 six months later, the falsification was already a
consummated act, the said law having no retroactive effect insofar as his dual citizenship status is
concerned. The MTC therefore did not err in finding probable cause for falsification of public document
under Article 172, paragraph 1.

The MTC further cited lack of jurisdiction over the person of petitioner accused as ground for denying
petitioner’s motion for re- determination of probable cause, as the motion was filed prior to his arrest.
However, custody of the law is not required for the adjudication of reliefs other than an application for
bail.27 In Miranda v. Tuliao,28 which involved a motion to quash warrant of arrest, this Court discussed
the distinction between custody of the law and jurisdiction over the person, and held that jurisdiction
over the person of the accused is deemed waived when he files any pleading seeking an affirmative
relief, except in cases when he invokes the special jurisdiction of the court by impugning such
jurisdiction over his person. Thus:

In arguing, on the other hand, that jurisdiction over their person was already acquired by their filing of
the above Urgent Motion, petitioners invoke our pronouncement, through Justice Florenz D. Regalado,
in Santiago v. Vasquez:

The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is
accomplished either by his pleading to the merits (such as by filing a motion to quash or other pleadings
requiring the exercise of the court’s jurisdiction thereover, appearing for arraignment, entering trial) or
by filing bail. On the matter of bail, since the same is intended to obtain the provisional liberty of the
accused, as a rule the same cannot be posted before custody of the accused has been acquired by the
judicial authorities either by his arrest or voluntary surrender.

Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over the
person. Custody of the law is required before the court can act upon the application for bail, but is not
required for the adjudication of other reliefs sought by the defendant where the mere application
therefor constitutes a waiver of the defense of lack of jurisdiction over the person of the accused.
Custody of the law is accomplished either by arrest or voluntary surrender, while jurisdiction over the
person of the accused is acquired upon his arrest or voluntary appearance. One can be under the
custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a
person arrested by virtue of a warrant files a motion before arraignment to quash the warrant. On the
other hand, one can be subject to the jurisdiction of the court over his person, and yet not be in the
custody of the law, such as when an accused escapes custody after his trial has commenced. Being in the
custody of the law signifies restraint on the person, who is thereby deprived of his own will and liberty,
binding him to become obedient to the will of the law. Custody of the law is literally custody over the
body of the accused. It includes, but is not limited to, detention.

xxxx

While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that, as a
general rule, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of
the court. As we held in the aforecited case of Santiago, seeking an affirmative relief in court, whether
in civil or criminal proceedings, constitutes voluntary appearance.

xxxx

To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of the
accused is deemed waived by the accused when he files any pleading seeking an affirmative relief,
except in cases when he invokes the special jurisdiction of the court by impugning such jurisdiction
over his person.Therefore, in narrow cases involving special appearances, an accused can invoke the
processes of the court even though there is neither jurisdiction over the person nor custody of the law.
However, if a person invoking the special jurisdiction of the court applies for bail, he must first submit
himself to the custody of the law.29 (Emphasis supplied)

Considering that petitioner sought affirmative relief in filing his motion for re-determination of probable
cause, the MTC clearly erred in stating that it lacked jurisdiction over his person. Notwithstanding such
erroneous ground stated in the MTC's order, the RTC correctly ruled that no grave abuse of discretion
was committed by the MTC in denying the said motion for lack of merit.

WHEREFORE, the petition is DENIED. The Order dated October 8, 2011 of the Regional Trial Court of
Pinamalayan, Oriental Mindoro in Civil Case No. SCA-07-11 (Criminal Case No. 2012) is
hereby AFFIRMED and UPHELD.

With costs against the petitioner.

SO ORDERED.

G.R. No. 125793 August 29, 2006

JOEVANIE ARELLANO TABASA, Petitioner,


vs.
HON. COURT OF APPEALS, BUREAU OF IMMIGRATION and DEPORTATION and WILSON
SOLUREN, Respondents.

DECISION

VELASCO, JR., J.:


Citizenship is a priceless possession. Former U.S. Chief Justice Earl Warren fittingly emphasized its
crowning value when he wrote that "it is man’s basic right for it is nothing less than to have
rights." 1 When a person loses citizenship, therefore, the State sees to it that its reacquisition may only
be granted if the former citizen fully satisfies all conditions and complies with the applicable law.
Without doubt, repatriation is not to be granted simply based on the vagaries of the former Filipino
citizen.

The Case

The instant petition for review 2 under Rule 45 of the 1997 Rules of Civil Procedure contests the denial
by the Court of Appeals (CA) of the Petition for Habeas Corpus interposed by petitioner Joevanie
Arellano Tabasa from the Order of Summary Deportation issued by the Bureau of Immigration and
Deportation (BID) for his return to the United States.

The Facts

The facts as culled by the CA from the records show that petitioner Joevanie Arellano Tabasa was a
natural-born citizen of the Philippines. In 1968, 3 when petitioner was seven years old, 4 his father,
Rodolfo Tabasa, became a naturalized citizen 5 of the United States. By derivative naturalization
(citizenship derived from that of another as from a person who holds citizenship by virtue of
naturalization 6), petitioner also acquired American citizenship.

Petitioner arrived in the Philippines on August 3, 1995, and was admitted as a "balikbayan" for one year.
Thereafter, petitioner was arrested and detained by agent Wilson Soluren of the BID on May 23, 1996,
pursuant to BID Mission Order No. LIV-96-72 in Baybay, Malay, Aklan; subsequently, he was brought to
the BID Detention Center in Manila.7

Petitioner was investigated by Special Prosecutor Atty. Edy D. Donato at the Law and Investigation
Division of the BID on May 28, 1996; and on the same day, Tabasa was accused of violating Section 8,
Chapter 3, Title 1, Book 3 of the 1987 Administrative Code, in a charge sheet which alleged:

1. That on 3 August 1995, respondent (petitioner herein [Tabasa]) arrived in the Philippines and was
admitted as a balikbayan;

2. That in a letter dated 16 April 1996, Honorable Kevin Herbert, Consul General of [the] U.S. Embassy,
informed the Bureau that respondent’s Passport No. 053854189 issued on June 10, 1994 in San
Francisco, California, U.S.A., had been revoked by the U.S. Department of State;

3. Hence, respondent [petitioner Tabasa] is now an undocumented and undesirable alien and may be
summarily deported pursuant to Law and Intelligence Instructions No. 53 issued by then Commissioner
Miriam Defensor Santiago to effect his deportation (Exhibit 3). 8

The pertinent portion of the Herbert letter is as follows:

The U.S. Department of State has revoked U.S. passport 053854189 issued on June 10, 1994 in San
Francisco, California under the name of Joevanie Arellano Tabasa, born on February 21, 1959 in the
Philippines. Mr. Tabasa’s passport has been revoked because he is the subject of an outstanding federal
warrant of arrest issued on January 25, 1996 by the U.S. District Court for the Northern District of
California, for violation of Section 1073, "Unlawful Flight to Avoid Prosecution," of Title 18 of the United
States Code. He is charged with one count of a felon in possession of a firearm, in violation of California
Penal Code, Section 12021(A)(1), and one count of sexual battery, in violation of California Penal Code,
Section 243.4 (D). 9

The BID ordered petitioner’s deportation to his country of origin, the United States, on May 29, 1996, in
the following summary deportation order:

Records show that on 16 April 1996, Mr. Kevin F. Herbert, Consul General of the U.S. Embassy in Manila,
filed a request with the Bureau to apprehend and deport the abovenamed [sic] respondent [petitioner
Tabasa] on the ground that a standing warrant for several federal charges has been issued against him,
and that the respondent’s Passport No. 053854189 has been revoked.

By reason thereof, and on the strength of Mission Order No. LIV-96-72, Intelligence operatives
apprehended the respondent in Aklan on 23 May 1996.

In Schonemann vs. Commissioner Santiago, et al., (G.R. No. 81461 [sic, ‘81461’ should be ‘86461’], 30
May 1989), the Supreme Court ruled that if a foreign embassy cancels the passport of an alien, or does
not reissue a valid passport to him, the alien loses the privilege to remain in the country. Further, under
Office Memorandum Order No. 34 issued on 21 August 1989, summary deportation proceedings lie
where the passport of the alien has expired.

It is, thus, apparent that respondent has lost his privilege to remain in the country. 10

Petitioner filed before the CA a Petition for Habeas Corpus with Preliminary Injunction and/or
Temporary Restraining Order 11 on May 29, 1996, which was docketed as CA-G.R. SP No. 40771. Tabasa
alleged that he was not afforded due process; that no warrant of arrest for deportation may be issued
by immigration authorities before a final order of deportation is made; that no notice of the cancellation
of his passport was made by the U.S. Embassy; that he is entitled to admission or to a change of his
immigration status as a non-quota immigrant because he is married to a Filipino citizen as provided in
Section 13, paragraph (a) of the Philippine Immigration Act of 1940; and that he was a natural-born
citizen of the Philippines prior to his derivative naturalization when he was seven years old due to the
naturalization of his father, Rodolfo Tabasa, in 1968.

At the time Tabasa filed said petition, he was already 35 years old. 12

On May 30, 1996, the CA ordered the respondent Bureau to produce the person of the petitioner on
June 3, 1996 and show the cause of petitioner’s detention, and restrained the Bureau from summarily
deporting him. On June 3, 1996, the BID presented Tabasa before the CA; and on June 6, 1996, the CA
granted both parties ten (10) days within which to file their memoranda, after which the case would be
considered submitted for decision. 13Meanwhile, the Commissioner of Immigration granted the
petitioner’s temporary release on bail on a PhP 20,000.00 cash bond. 14

However, on June 13, 1996, petitioner filed a Supplemental Petition alleging that he had acquired
Filipino citizenship by repatriation in accordance with Republic Act No. 8171 (RA 8171), and that because
he is now a Filipino citizen, he cannot be deported or detained by the respondent Bureau. 15
The Ruling of the Court of Appeals

The CA, in its August 7, 1996 Decision, 16 denied Tabasa’s petition on the ground that he had not legally
and successfully acquired––by repatriation––his Filipino citizenship as provided in RA 8171. The court
said that although he became an American citizen by derivative naturalization when his father was
naturalized in 1968, there is no evidence to show that he lost his Philippine citizenship "on account of
political or economic necessity," as explicitly provided in Section 1, RA 8171—the law governing the
repatriation of natural-born Filipinos who have lost their citizenship. The affidavit does not state that
political or economic necessity was the compelling reason for petitioner’s parents to give up their
Filipino citizenship in 1968. Moreover, the court a quo found that petitioner Tabasa did not dispute the
truth of the April 16, 1996 letter of the United States Consul General Kevin F. Herbert or the various
warrants issued for his arrest by the United States court. The court a quo noted that after petitioner was
ordered deported by the BID on May 29, 1996, he successively executed an Affidavit of Repatriation on
June 6, 1996 and took an oath of allegiance to the Republic of the Philippines on June 13, 1996––more
than ten months after his arrival in the country on August 3, 1995. The appellate court considered
petitioner’s "repatriation" as a last ditch effort to avoid deportation and prosecution in the United
States. The appellate court concluded that his only reason to want to reacquire Filipino citizenship is to
avoid criminal prosecution in the United States of America. The court a quo, therefore, ruled against
Tabasa, whose petition is now before us.

The Issue

The only issue to be resolved is whether petitioner has validly reacquired Philippine citizenship under RA
8171. If there is no valid repatriation, then he can be summarily deported for his being an
undocumented alien.

The Court’s Ruling

The Court finds no merit in this petition.

RA 8171, "An Act Providing for the Repatriation of Filipino Women Who Have Lost Their Philippine
Citizenship by Marriage to Aliens and of Natural-Born Filipinos," was enacted on October 23, 1995. It
provides for the repatriation of only two (2) classes of persons, viz:

Filipino women who have lost their Philippine citizenship by marriage to aliens and natural-born Filipinos
who have lost their Philippine citizenship, including their minor children, on account of political or
economic necessity, may reacquire Philippine citizenship through repatriation in the manner provided in
Section 4 of Commonwealth Act No. 63, as amended: Provided, That the applicant is not a:

(1) Person opposed to organized government or affiliated with any association or group of persons who
uphold and teach doctrines opposing organized government;

(2) Person defending or teaching the necessity or propriety of violence, personal assault, or association
for the predominance of their ideas;

(3) Person convicted of crimes involving moral turpitude; or


(4) Person suffering from mental alienation or incurable contagious diseases. 17 (Emphasis supplied.)

Does petitioner Tabasa qualify as a natural-born Filipino who had lost his Philippine citizenship by reason
of political or economic necessity under RA 8171?

He does not.

Persons qualified for repatriation under RA 8171

To reiterate, the only persons entitled to repatriation under RA 8171 are the following:

a. Filipino women who lost their Philippine citizenship by marriage to aliens; and

b. Natural-born Filipinos including their minor children who lost their Philippine citizenship on account
of political or economic necessity.

Petitioner theorizes that he could be repatriated under RA 8171 because he is a child of a natural-born
Filipino, and that he lost his Philippine citizenship by derivative naturalization when he was still a minor.

Petitioner overlooks the fact that the privilege of repatriation under RA 8171 is available only to natural-
born Filipinos who lost their citizenship on account of political or economic necessity, and to
the minor children of said natural-born Filipinos. This means that if a parent who had renounced his
Philippine citizenship due to political or economic reasons later decides to repatriate under RA 8171, his
repatriation will also benefit his minor children according to the law. This includes a situation where a
former Filipino subsequently had children while he was a naturalized citizen of a foreign country. The
repatriation of the former Filipino will allow him to recover his natural-born citizenship and
automatically vest Philippine citizenship on his children of jus sanguinis or blood relationship: 18 the
children acquire the citizenship of their parent(s) who are natural-born Filipinos. To claim the benefit of
RA 8171, however, the children must be of minor age at the time the petition for repatriation is filed by
the parent. This is so because a child does not have the legal capacity for all acts of civil life much less
the capacity to undertake a political act like the election of citizenship. On their own, the minor children
cannot apply for repatriation or naturalization separately from their parents.

In the case at bar, there is no dispute that petitioner was a Filipino at birth. In 1968, while he was still a
minor, his father was naturalized as an American citizen; and by derivative naturalization, petitioner
acquired U.S. citizenship. Petitioner now wants us to believe that he is entitled to automatic repatriation
as a child of natural-born Filipinos who left the country due to political or economic necessity. This is
absurd. Petitioner was no longer a minor at the time of his "repatriation" on June 13, 1996. The privilege
under RA 8171 belongs to children who are of minor age at the time of the filing of the petition for
repatriation.

Neither can petitioner be a natural-born Filipino who left the country due to political or economic
necessity. Clearly, he lost his Philippine citizenship by operation of law and not due to political or
economic exigencies. It was his father who could have been motivated by economic or political reasons
in deciding to apply for naturalization. The decision was his parent’s and not his. The privilege of
repatriation under RA 8171 is extended directly to the natural-born Filipinos who could prove that they
acquired citizenship of a foreign country due to political and economic reasons, and extended indirectly
to the minor children at the time of repatriation.

In sum, petitioner is not qualified to avail himself of repatriation under RA 8171. However, he can
possibly reacquire Philippine citizenship by availing of the Citizenship Retention and Re-acquisition Act
of 2003 (Republic Act No. 9225) by simply taking an oath of allegiance to the Republic of the Philippines.

Where to file a petition for repatriation pursuant to RA 8171

Even if we concede that petitioner Tabasa can avail of the benefit of RA 8171, still he failed to follow the
procedure for reacquisition of Philippine citizenship. He has to file his petition for repatriation with the
Special Committee on Naturalization (SCN), which was designated to process petitions for repatriation
pursuant to Administrative Order No. 285 (A.O. No. 285) dated August 22, 1996, to wit:

Section 1. Composition.—The composition of the Special Committee on Naturalization, with the Solicitor
General as Chairman, the Undersecretary of Foreign Affairs and the Director-General of the National
Intelligence Coordinating Agency, as members, shall remain as constituted.

Sec. 2. Procedure.—Any person desirous of repatriating or reacquiring Filipino citizenship pursuant to


R.A. No. 8171 shall file a petition with the Special Committee on Naturalization which shall process the
same. If their applications are approved[,] they shall take the necessary oath of allegiance to the
Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship.
The Commission on Immigration and Deportation shall thereupon cancel their certificate of registration
(emphasis supplied).

Sec. 3. Implementing Rules.—The Special Committee is hereby authorized to promulgate rules and
regulations and prescribe the appropriate forms and the required fees for the processing of petitions.

Sec. 4. Effectivity.—This Administrative Order shall take effect immediately.

In the Amended Rules and Regulations Implementing RA 8171 issued by the SCN on August 5, 1999,
applicants for repatriation are required to submit documents in support of their petition such as their
birth certificate and other evidence proving their claim to Filipino citizenship. 19 These requirements
were imposed to enable the SCN to verify the qualifications of the applicant particularly in light of the
reasons for the renunciation of Philippine citizenship.

What petitioner simply did was that he took his oath of allegiance to the Republic of the Philippines;
then, executed an affidavit of repatriation, which he registered, together with the certificate of live
birth, with the Office of the Local Civil Registrar of Manila. The said office subsequently issued him a
certificate of such registration. 20 At that time, the SCN was already in place and operational by virtue of
the June 8, 1995 Memorandum issued by President Fidel V. Ramos. 21 Although A.O. No. 285 designating
the SCN to process petitions filed pursuant to RA 8171 was issued only on August 22, 1996, it is merely a
confirmatory issuance according to the Court in Angat v. Republic. 22 Thus, petitioner should have
instead filed a petition for repatriation before the SCN.

Requirements for repatriation under RA 8171


Even if petitioner––now of legal age––can still apply for repatriation under RA 8171, he nevertheless
failed to prove that his parents relinquished their Philippine citizenship on account of political or
economic necessity as provided for in the law. Nowhere in his affidavit of repatriation did he mention
that his parents lost their Philippine citizenship on account of political or economic reasons. It is notable
that under the Amended Rules and Regulations Implementing RA 8171, the SCN requires a petitioner for
repatriation to set forth, among others, "the reason/s why petitioner lost his/her Filipino citizenship,
whether by marriage in case of Filipino woman, or whether by political or economic necessity in case of
[a] natural-born Filipino citizen who lost his/her Filipino citizenship. In case of the latter, such political or
economic necessity should be specified." 23

Petitioner Tabasa asserts, however, that the CA erred in ruling that the applicant for repatriation must
prove that he lost his Philippine citizenship on account of political or economic necessity. He theorizes
that the reference to ‘political or economic reasons’ is "merely descriptive, not restrictive, of the widely
accepted reasons for naturalization in [a] foreign country." 24

Petitioner’s argument has no leg to stand on.

A reading of Section 1 of RA 8171 shows the manifest intent of the legislature to limit the benefit of
repatriation only to natural-born Filipinos who lost their Philippine citizenship on account of political or
economic necessity, in addition to Filipino women who lost their Philippine citizenship by marriage to
aliens. The precursor of RA 8171, Presidential Decree No. 725 (P.D. 725), 25 which was enacted on June
5, 1975 amending Commonwealth Act No. 63, also gives to the same groups of former Filipinos the
opportunity to repatriate but without the limiting phrase, "on account of political or economic
necessity" in relation to natural-born Filipinos. By adding the said phrase to RA 8171, the lawmakers
clearly intended to limit the application of the law only to political or economic migrants, aside from the
Filipino women who lost their citizenship by marriage to aliens. This intention is more evident in the
following sponsorship speech of Rep. Andrea B. Domingo on House Bill No. 1248, the origin of RA 8171,
to wit:

Ms. Domingo: x x x

From my experience as the Commissioner of the Bureau of Immigration and Deportation, I observed
that there are only four types of Filipinos who leave the country.

The first is what we call the "economic refugees" who go abroad to work because there is no work to be
found in the country. Then we have the "political refugees" who leave the country for fear of their lives
because they are not in consonance with the prevailing policy of government. The third type is those
who have committed crimes and would like to escape from the punishment of said crimes. Lastly, we
have those Filipinos who feel that they are not Filipinos, thereby seeking other citizenship elsewhere.

Of these four types of Filipinos, Mr. Speaker, the first two have to leave the country not of choice, but
rather out of sacrifice to look for a better life, as well as for a safer abode for themselves and their
families. It is for these two types of Filipinos that this measure is being proposed for approval by this
body. (Emphasis supplied.)

xxxx
x x x [I]f the body would recall, I mentioned in my short sponsorship speech the four types of Filipinos
who leave their country. And the two types—the economic and political refugees—are the ones being
addressed by this proposed law, and they are not really Filipino women who lost their citizenship
through marriage. We had a lot of problems with these people who left the country because of political
persecution or because of pressing economic reasons, and after feeling that they should come back to
the country and get back their citizenship and participate as they should in the affairs of the country,
they find that it is extremely difficult to get their citizenship back because they are treated no different
from any other class of alien. 26

From these two sources, namely, P.D. 725 and the sponsorship speech on House Bill No. 1248, it is
incontrovertible that the intent of our legislators in crafting Section 1 of RA 8171, as it is precisely
worded out, is to exclude those Filipinos who have abandoned their country for reasons other than
political or economic necessity.

Petitioner contends it is not necessary to prove his political or economic reasons since the act of
renouncing allegiance to one’s native country constitutes a "necessary and unavoidable shifting of his
political allegiance," and his father’s loss of Philippine citizenship through naturalization "cannot
therefore be said to be for any reason other than political or economic necessity." 27

This argument has no merit.

While it is true that renunciation of allegiance to one’s native country is necessarily a political act, it does
not follow that the act is inevitably politically or economically motivated as alleged by petitioner. To
reiterate, there are other reasons why Filipinos relinquish their Philippine citizenship. The sponsorship
speech of former Congresswoman Andrea B. Domingo illustrates that aside from economic and political
refugees, there are Filipinos who leave the country because they have committed crimes and would like
to escape from punishment, and those who really feel that they are not Filipinos and that they deserve a
better nationality, and therefore seek citizenship elsewhere.

Thus, assuming petitioner Tabasa is qualified under RA 8171, it is incumbent upon him to prove to the
satisfaction of the SCN that the reason for his loss of citizenship was the decision of his parents to forfeit
their Philippine citizenship for political or economic exigencies. He failed to undertake this crucial step,
and thus, the sought relief is unsuccessful.

Repatriation is not a matter of right, but it is a privilege granted by the State. This is mandated by the
1987 Constitution under Section 3, Article IV, which provides that citizenship may be lost or reacquired
in the manner provided by law. The State has the power to prescribe by law the qualifications,
procedure, and requirements for repatriation. It has the power to determine if an applicant for
repatriation meets the requirements of the law for it is an inherent power of the State to choose who
will be its citizens, and who can reacquire citizenship once it is lost. If the applicant, like petitioner
Tabasa, fails to comply with said requirements, the State is justified in rejecting the petition for
repatriation.

Petitioner: an undocumented alien subject to summary deportation

Petitioner claims that because of his repatriation, he has reacquired his Philippine citizenship; therefore,
he is not an undocumented alien subject to deportation.
This theory is incorrect.

As previously explained, petitioner is not entitled to repatriation under RA 8171 for he has not shown
that his case falls within the coverage of the law.

Office Memorandum No. 34 dated August 21, 1989 of the BID is enlightening on summary deportation:

2. The Board of Special Inquiry and the Hearing Board IV shall observe summary deportation
proceedings in cases where the charge against the alien is overstaying, or the expiration or cancellation
by his government of his passport. In cases involving overstaying aliens, BSI and the Hearing Board IV
shall merely require the presentation of the alien’s valid passport and shall decide the case on the basis
thereof.

3. If a foreign embassy cancels the passport of the alien, or does not reissue a valid passport to him, the
alien loses the privilege to remain in the country, under the Immigration Act, Sections 10 and 15
(Schonemann v. Santiago, et al., G.R. No. 81461 [sic, should be ‘86461’], 30 May 1989). The automatic
loss of the privilege obviates deportation proceedings. In such instance, the Board of Commissioners
may issue summary judgment of deportation which shall be immediately executory. 28

In addition, in the case of Schonemann v. Defensor Santiago, et al., this Court held:

It is elementary that if an alien wants to stay in the Philippines, he must possess the necessary
documents. One of these documents is a valid passport. There are, of course, exceptions where in the
exercise of its sovereign prerogatives the Philippines may grant refugee status, refuse to extradite an
alien, or otherwise allow him or her to stay here even if he [the alien] has no valid passport or Philippine
visa. "Boat people" seeking residence elsewhere are examples. However, the grant of the privilege of
staying in the Philippines is discretionary on the part of the proper authorities. There is no showing of
any grave abuse of discretion, arbitrariness, or whimsicality in the questioned summary judgment. x x
x 29

Petitioner Tabasa, whose passport was cancelled after his admission into the country, became an
undocumented alien who can be summarily deported. His subsequent "repatriation" cannot bar such
deportation especially considering that he has no legal and valid reacquisition of Philippine citizenship.

WHEREFORE, this petition for review is DISMISSED, and the August 7, 1996 Decision of the Court of
Appeals is AFFIRMED. No costs to the petitioner.

SO ORDERED.

MAYOR JOSE UGDORACION, JR., G.R. No. 179851


Petitioner,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - AZCUNA,*
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

COMMISSION ON ELECTIONS and EPHRAIM Promulgated:


M. TUNGOL,
Respondents. April 18, 2008
x-----------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

At bar is a petition for certiorari and prohibition under Rule 64 of the Rules of Court filed by
petitioner Jose Ugdoracion, Jr., pursuant to Article IX-A, Section 7 of the Constitution, challenging the
May 8, 2007 and September 28, 2007 Resolutions[1] of the public respondent Commission on Elections
(COMELEC) First Division and En Banc, respectively.

The facts:

Ugdoracion and private respondent, Ephraim Tungol, were rival mayoralty candidates in
the Municipality of Albuquerque, Province of Bohol in the May 14, 2007 elections. Both filed their
respective Certificates of Candidacy (COC).

On April 11, 2007, Tungol filed a Petition to Deny Due Course or Cancel the Certificate of
Candidacy of Jose Ugdoracion, Jr., contending that Ugdoracions declaration of eligibility for Mayor
constituted material misrepresentation because Ugdoracion is actually a green card holder or a
permanent resident of the United States of America (USA). Specifically, Ugdoracion stated in his COC
that he had resided in Albuquerque, Bohol, Philippinesfor forty-one years before May 14, 2007 and he is
not a permanent resident or an immigrant to a foreign country.

It appears that Ugdoracion became a permanent resident of the USA on September 26, 2001.
Accordingly, the United States Immigration and Naturalization Services[2] (USINS) issued him Alien
Number 047-894-254.[3]

For his part, Ugdoracion argued that, in our jurisdiction, domicile is equivalent to residence, and
he retained his domicile of origin (Albuquerque, Bohol) notwithstanding his ostensible acquisition of
permanent residency in the USA. Ugdoracion then pointed to the following documents as proof of his
substantial compliance with the residency requirement: (1) a residence certificate dated May 5, 2006;
(2) an application for a new voters registration dated October 12, 2006; and (3) a photocopy of
Abandonment of Lawful Permanent Resident Status dated October 18, 2006.

On May 8, 2007, the COMELEC First Division promulgated one of the herein questioned
resolutions canceling Ugdoracions COC and removing his name from the certified list of candidates for
the position of Mayor of Albuquerque, Bohol. Posthaste, on May 11, 2007, Ugdoracion filed a motion for
reconsideration of the aforesaid resolution arguing in the main that his status as a green card holder was
not of his own making but a mere offshoot of a petition filed by his sister. He admitted his intermittent
travels to the USA, but only to visit his siblings, and short working stint thereat to cover his subsistence
for the duration of his stay.

In yet another setback, the COMELEC En Banc issued the other questioned resolution denying
Ugdoracions motion for reconsideration and affirming the First Divisions finding of material
misrepresentation in Ugdoracions COC.

Hence, this petition imputing grave abuse of discretion to the COMELEC. Subsequently, Tungol
and the COMELEC filed their respective Comments[4] on the petition. On March 7, 2008, Ugdoracion filed
an Extremely Urgent Motion to Reiterate Issuance of an Injunctive Writ.[5] On March 11, 2008, we issued
a Status Quo Order. The next day, March 12, 2008, Ugdoracion filed a Consolidated Reply to
respondents Comments.

Ugdoracions argument focuses on his supposed involuntary acquisition of a permanent resident


status in the USA which, as he insists, did not result in the loss of his domicile of origin. He bolsters this
contention with the following facts:
1. He was born in Albuquerque, Bohol, on October 15, 1940 and as such, is a natural-
born Filipino citizen;

2. He was baptized in the Catholic Church of Sta. Monica Paris


in Albuquerque, Bohol on February 2, 1941;

3. He was raised in said municipality;

4. He grew up in said municipality;

5. He raised his own family and established a family home thereat;

6. He served his community for twelve (12) years and had been the former Mayor for
three (3) terms;

7. From 1986 to 1988, he was appointed as Officer-in-Charge;

8. He ran for the same position in 1988 and won;

9. He continued his public service as Mayor until his last term in the year 1998;

10. After his term as Mayor, he served his people again as Councilor;

11. He built his house at the very place where his ancestral home was situated;

12. He still acquired several real properties at the same place;

13. He never lost contact with the people of his town; and

14. He secured a residence certificate on May 5, 2006 at Western


[6]
Poblacion, Albuquerque, Bohol and faithfully paid real property taxes.

The sole issue for our resolution is whether the COMELEC committed grave abuse of discretion
in canceling Ugdoracions COC for material misrepresentation. Essentially, the issue hinges on whether
the representations contained in Ugdoracions COC, specifically, that he complied with the residency
requirement and that he does not have green card holder status, are false.

We find no grave abuse of discretion in the COMELECs cancellation of Ugdoracions COC for
material misrepresentation. Accordingly, the petition must fail.

Section 74, in relation to Section 78 of the Omnibus Election Code, in unmistakable terms,
requires that the facts stated in the COC must be true, and any false representation therein of a material
fact shall be a ground for cancellation thereof, thus:
SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state
that the person filing it is announcing his candidacy for the office stated therein and that
he is eligible for said office; if for Member of the Batasang Pambansa, the province,
including its component cities, highly urbanized city or district or sector which he seeks
to represent; the political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and will maintain
true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or
immigrant to a foreign country; that the obligation assumed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that the facts stated
in the certificate of candidacy are true to the best of his knowledge.

xxxx
SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed
by any 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.

The false representation contemplated by Section 78 of the Code pertains to material fact, and
is not simply an innocuous mistake. A material fact refers to a candidates qualification for elective office
such as ones citizenship and residence.[7] Our holding in Salcedo II v. COMELEC[8] reiterated in Lluz v.
COMELEC[9] is instructive, thus:

In case there is a material misrepresentation in the certificate of candidacy, the


Comelec is authorized to deny due course to or cancel such certificate upon the filing of
a petition by any person pursuant to Section 78. x x x

xxxx

As stated in the law, in order to justify the cancellation of the certificate of candidacy
under Section 78, it is essential that the false representation mentioned therein
pertain[s] to a material matter for the sanction imposed by this provision would affect
the substantive rights of a candidate the right to run for the elective post for which he
filed the certificate of candidacy. Although the law does not specify what would be
considered as a material representation, the court has interpreted this phrase in a line
of decisions applying Section 78 of [B.P. 881].

xxxx
Therefore, it may be concluded that the material misrepresentation contemplated by
Section 78 of the Code refer[s] to qualifications for elective office. This conclusion is
strengthened by the fact that the consequences imposed upon a candidate guilty of
having made a false representation in [the] certificate of candidacy are graveto prevent
the candidate from running or, if elected, from serving, or to prosecute him for violation
of the election laws. It could not have been the intention of the law to deprive a person
of such a basic and substantive political right to be voted for a public office upon just
any innocuous mistake.

xxxx

Aside from the requirement of materiality, a false representation under Section 78 must
consist of a deliberate attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible. In other words, it must be made with an
intention to deceive the electorate as to ones qualifications for public office.

Viewed in this light, the question posed by Ugdoracion is hardly a novel one.

Ugdoracion urges us, however, that he did not lose his domicile of origin because his acquisition
of a green card was brought about merely by his sisters petition. He maintains that, except for this
unfortunate detail, all other facts demonstrate his retention of residence in Albuquerque, Bohol.
Believing in the truth of these circumstances, he simply echoed in his COC a truthful statement that he is
a resident of Albuquerque, Bohol, and, therefore, eligible and qualified to run for Mayor thereof.

We are not convinced. Ugdoracions assertions miss the mark completely. The dust had long
settled over the implications of a green card holder status on an elective officials qualification for public
office. We ruled in Caasi v. Court of Appeals[10] that a Filipino citizens acquisition of a permanent
resident status abroad constitutes an abandonment of his domicile and residence in the Philippines. In
short, the green card status in the USA is a renunciation of ones status as a resident of the Philippines.[11]

We agree with Ugdoracion that residence, in contemplation of election laws, is synonymous to


domicile. Domicile is the place where one actually or constructively has his permanent home, where he,
no matter where he may be found at any given time, eventually intends to return (animus revertendi)
and remain (animus manendi).[12] It consists not only in the intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of such intention.[13]

Domicile is classified into (1) domicile of origin, which is acquired by every person at birth; (2) domicile
of choice, which is acquired upon abandonment of the domicile of origin; and (3) domicile by operation
of law, which the law attributes to a person independently of his residence or intention.
In a controversy such as the one at bench, given the parties naturally conflicting perspectives on
domicile, we are guided by three basic rules, namely: (1) a man must have a residence or domicile
somewhere; (2) domicile, once established, remains until a new one is validly acquired; and (3) a man
can have but one residence or domicile at any given time.[14]

The general rule is that the domicile of origin is not easily lost; it is lost only when there is an actual
removal or change of domicile, a bona fide intention of abandoning the former residence and
establishing a new one, and acts which correspond with such purpose.[15] In the instant case, however,
Ugdoracions acquisition of a lawful permanent resident status in the United States amounted to an
abandonment and renunciation of his status as a resident of the Philippines; it constituted a change
from his domicile of origin, which was Albuquerque, Bohol, to a new domicile of choice, which is
the USA.

The contention that Ugdoracions USA resident status was acquired involuntarily, as it was simply the
result of his sisters beneficence, does not persuade. Although immigration to the USA through a petition
filed by a family member (sponsor) is allowed by USA immigration laws,[16] the petitioned party is very
much free to accept or reject the grant of resident status. Permanent residency in the USA is not
conferred upon the unwilling; unlike citizenship, it is not bestowed by operation of law.[17] And to
reiterate, a person can have only one residence or domicile at any given time.

Moreover, Ugdoracions contention is decimated by Section 68[18] of the Omnibus Election Code and
Section 40(f)[19] of the Local Government Code, which disqualifies a permanent resident of, or an
immigrant to, a foreign country, unless said person waives his status. Corollary thereto, we are in
complete accord with the COMELECs ruling on the validity and effect of the waiver of permanent
resident status supposedly executed by Ugdoracion, to wit:

Following the Caasi case, in order to reacquire residency in the Philippines, there must
be a waiver of status as a greencard holder as manifested by some acts or acts
independent of and prior to the filing of the certificate of candidacy. In the case at bar,
[Ugdoracion] presented a photocopy of a document entitled Abandonment of Lawful
Permanent Resident Status dated October 18, 2006. A close scrutiny of this document
however discloses that it is a mere application for abandonment of his status as lawful
permanent resident of the USA. It does not bear any note of approval by the
concerned US official. Thus, [w]e cannot consider the same as sufficient waiver of
[Ugdoracions] status of permanent residency in the USA. Besides, it is a mere
photocopy, unauthenticated and uncertified by the legal custodian of such document.
Assuming arguendo that said application was duly approved, [Ugdoracion] is still
disqualified for he failed to meet the one-year residency requirement. [Ugdoracion] has
applied for abandonment of residence only on 18 October 2006 or for just about seven
(7) months prior to the May 14, 2007 elections, which clearly fall short of the required
period.

The Permanent Resident Card or the so-called greencard issued by the US government
to respondent does not merely signify transitory stay in the USA for purpose of work,
pleasure, business or study but to live there permanently. This is the reason why the law
considers immigrants to have lost their residency in the Philippines.[20]

Concededly, a candidates disqualification to run for public office does not necessarily constitute
material misrepresentation which is the sole ground for denying due course to, and for the cancellation
of, a COC. Further, as already discussed, the candidates misrepresentation in his COC must not only refer
to a material fact (eligibility and qualifications for elective office), but should evince a deliberate intent
to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. It must be
made with an intention to deceive the electorate as to ones qualifications to run for public office.[21]

Ugdoracion claims that he did not misrepresent his eligibility for the public office of Mayor. He
categorically declares that he merely stated in his COC that he is a resident of the Philippines and in
possession of all the qualifications and suffers from none of the disqualifications prescribed by law.
Unfortunately for Ugdoracion, Section 74 specifically requires a statement in the COC that the candidate
is not a permanent resident or an immigrant to a foreign country. Ugdoracions cause is further lost
because of the explicit pronouncement in his COC that he had resided in Albuquerque, Bohol,
Philippines before the May 14, 2007 elections for forty-one (41) years.[22]Ineluctably, even if Ugdoracion
might have been of the mistaken belief that he remained a resident of the Philippines, he hid the fact of
his immigration to the USA and his status as a green card holder.

Finally, we are not unmindful of the fact that Ugdoracion appears to have won the election as
Mayor of Albuquerque, Bohol. Sadly, winning the election does not substitute for the specific
requirements of law on a persons eligibility for public office which he lacked, and does not cure his
material misrepresentation which is a valid ground for the cancellation of his COC.

WHEREFORE, premises considered, the petition is hereby DENIED. The COMELEC Resolutions
dated May 8, 2007 and September 28, 2007 are AFFIRMED. The STATUS QUO Order issued on March 11,
2008 is hereby LIFTED.

SO ORDERED.
NARDO M. VELASCO, G.R. No. 180051

Petitioner, Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,*
CARPIO MORALES,
AZCUNA,
- versus - TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

Promulgated:

COMMISSION ON ELECTIONS and MOZART P. December 24, 2008


PANLAQUI,

Respondents.

x ----------------------------------------------------------------------------------------------x

DECISION

BRION, J.:

This petition for certiorari filed by Nardo M. Velasco (Velasco) under Rule 64, in relation with Rule 65, of
the Revised Rules of Court seeks to set aside and annul [1] the Resolution dated July 6, 2007 of the
Second Division of the Commission on Elections (COMELEC) and [2] the Resolution dated October 15,
2007 of the COMELEC en banc, in SPA Case No. 07-148 entitled Mozart P. Panlaqui v. Nardo M.
Velasco. The assailed resolutions denied due course to the Certificate of Candidacy (COC) Velasco had
filed for the position of Mayor of the Municipality of Sasmuan, Pampanga.

THE ANTECEDENTS

Velasco was born in San Antonio, Sasmuan, Pampanga on June 22, 1952 to Arsenio Velasco and Lucia
Mangalindan.He married Evelyn D. Castillo on June 29, 1975 at the Roman Catholic Church of
Sasmuan. In 1983, he moved to and worked in the United States of America where he subsequently
became a citizen.

Sometime in 2006, Velasco applied for dual citizenship under Republic Act No. 9225, otherwise known
as the Citizenship Retention and Re-Acquisition Act of 2003. His application was approved on July 31,
2006. On the same day, he took his oath of allegiance to the Republic of the Philippines before the
Philippine Consulate General in San Francisco. He returned to the Philippines on September 14,
2006 and has not left since, except for a 3-day Hongkong trip from September 26, 2006 to September
29, 2009.

Soon thereafter or on October 13, 2006, Velasco applied for registration as a voter of Sasmuan,
Pampanga. The Election Registration Board (ERB) denied his application. Thereupon, Velasco filed a
petition for the inclusion of his name in the list of voters with the Municipal Trial Court of Sasmuan
(MTC). The MTC, finding no evidence of Velascos change of domicile, granted Velascos petition
on February 9, 2007; it reversed the ERBs decision and ordered Velascos inclusion in the List of Voters of
Sasmuan.

On March 1, 2007, Branch 52 of the Regional Trial Court of Guagua, Pampanga (RTC) reversed
and set aside, on appeal, the MTC decision. The RTC reasoned out that Velasco lost his domicile of origin
[Sasmuan, Pampanga] when he became a US citizen; under Philippine immigration laws, he could only
stay in the Philippines as a visitor or as a resident alien. Velasco, according to the RTC, only regained or
reacquired his Philippine residency on July 31, 2006 when he reacquired his Filipino citizenship. The RTC
based this conclusion on our ruling in Caasi v. Court of Appeals[1] that naturalization in a foreign country
results in the abandonment of domicile in the Philippines. Thus, the RTC found that Velasco failed to
comply with the residency requirement under the Constitution, making him ineligible to vote in the May
14, 2007 elections.
Velasco appealed the RTC decision to the Court of Appeals (CA) via a petition for review under
Rule 42 of the Rules of Court; the appeal was docketed as CA-G.R. SP No. 98259.

It was against this factual backdrop that Velasco filed on March 28, 2007 his COC for the
position of Mayor of Sasmuan. Velascos COC contains, among others, the required information that he
is a registered voter of Precinct No. 103-A of Sasmuan, Pampanga. He executed on even date an
Affidavit renouncing, abandoning, and relinquishing his American citizenship.

The next day, private respondent Mozart Panlaqui (Panlaqui), who also filed his COC for the
position of Mayor of Sasmuan, filed a Petition to Deny Due Course To and/or To Cancel Velascos COC,
claiming that: (1) contrary to Velascos claim, he is not a registered voter of Precinct No. 103-A, as his
name is not included in the list of voters; (2) the RTC has rendered a decision denying Velascos petition
for inclusion as voter; (3) Velasco does not possess the constitutional requirement of legal residency
(i.e., one year residency in the Philippines immediately preceding the election as provided under Section
1, Article V of the Constitution) to register as voter; he arrived in the Philippines only last September 14,
2006; and (4) Velasco is not eligible to run for office since he is not a qualified voter. Panlaqui asked for
the annulment, revocation and cancellation of, or denial of due course to, Velascos COC that allegedly
contained obvious and gross material misrepresentation. The case was docketed as SPA Case No. 07-
148.

In his Answer, Velasco denied the allegations of Panlaquis petition and claimed in defense that:
(1) he possesses all the qualifications of a voter of Sasmuan, as he is a domiciliary and permanent
resident of the Philippines and Sasmuan since birth; that, when he took his oath of allegiance on July 31,
2006, he is considered not to have lost his Philippine citizenship and therefore continues to enjoy full
civic and political rights under the Constitution and the statutes; (2) the appeal or review of the RTC
decision is pending resolution with the Court of Appeals; (3) he did not act with malice, bad faith and
gross misrepresentation when he stated that he is a registered voter of Precinct No. 103-A of Sasmuan
in his COC, as the MTC decision has not been reversed with finality; (4) he has renounced his American
citizenship on March 29, 2007 or prior to the filing of his COC, making him eligible to seek elective public
office pursuant to Republic Act No. 9255; and (5) he possesses all the qualifications of a voter of
Sasmuan and of a candidate for Municipal Mayor, Sasmuan being his domicile of origin and permanent
residence. He claimed that he is qualified to vote and seek public office until a final judgment is
rendered saying otherwise; hence, he did not commit any misrepresentation and Panlaquis petition
should be dismissed.

Velasco garnered 7,822 votes [the most number] for the position of Mayor of Sasmuan in
the May 14, 2007election. As the COMELEC failed to resolve Panlaquis petition prior to the election,
Velasco was proclaimed Mayor of Sasmuan on May 16, 2007. He took his oath of office and assumed the
powers and functions of the office on June 30, 2007.

On July 6, 2007, the Second Division of the COMELEC issued a Resolution the first of the
interrelated resolutions assailed in the present petition canceling Velascos COC and declaring his
proclamation as Mayor of Sasmuan null and void. Citing Section 138 of the Omnibus Election Code
(OEC)[2] which declared the decision of the RTC in the voters inclusion/exclusion proceedings final and
executory, the Second Division of the COMELEC found Velasco guilty of material misrepresentation
when he claimed in his COC filed on March 28, 2007 that he is a registered voter of Sasmuan,
Pampanga. This defect, according to the Second Division, effectively voided Velascos COC.

Velasco moved to reconsider the Second Divisions Resolution, but the COMELEC en banc in a
Resolution dated October 15, 2007 (also assailed in this petition) denied the motion. The COMELEC en
banc essentially affirmed the Second Divisions ruling. Additionally, the COMELEC pointed out that in the
absence of a writ or order issued by the CA (where the appeal from the RTC decision in the
inclusion/exclusion case was then pending) enjoining the enforcement of the RTC decision, it had to
apply Section 138 of the OEC. Velasco responded to this development by filing the present petition with
this Court.

THE PETITION, COMMENTS AND RELATED DEVELOPMENTS


The petition is based on the following grounds/arguments:
1. Respondent Comelec committed grave abuse of discretion when it decided the
issue on petitioners right to vote despite its apparent lack of jurisdiction on this
issue and the pendency of such prejudicial issue before the CA.

2. Respondent Comelec committed grave abuse of discretion when it ruled that


the March 1, 2008 decision of the RTC of Guagua, Pampanga reversing the earlier
decision of the MTC of Sasmuan, Pampanga is already final and executory.

3. Respondent COMELEC committed grave abuse of discretion when it annulled the


proclamation of the petitioner without notice and hearing.

4. Respondent Comelec committed grave abuse of discretion when it ruled that


petitioner committed material misrepresentation in his COC by merely relying on
private respondents baseless allegations in the petition to deny due course to
petitioners COC without taking into consideration that petitioner possesses all the
qualifications and none of the disqualification of a voter.

In his comment, Panlaqui asserts that: (1) Velasco committed forum shopping, as another case
involving the same issues is on appeal and pending resolution with the CA; and (2) in light of this appeal,
not all the requisites for a petition for certiorari are present; in the alternative and assuming certiorari to
be proper, the COMELEC did not commit grave abuse of discretion, as the RTC decision is final,
executory, and non-appealable.

The Office of the Solicitor General (OSG) filed a Comment in behalf of the COMELEC. The OSG
argues that the COMELEC did not commit grave abuse of discretion. The COMELEC has jurisdiction under
Section 78 of Batas Pambansa Blg. 881, as amended, or the OEC over petitions to deny due course
and/or cancel a COC (COC-denial/cancellation). There was likewise no denial of due process; Velasco
filed an Answer to Panlaquis petition and was fully heard before the COMELEC denied due course to his
COC. The OSG also argues that Velascos immigration to the United States and subsequent acquisition
of US citizenship constituted an abandonment of his Philippine domicile and residence. Finally, the OSG
claims that Velasco committed misrepresentation in declaring his residence at Sasmuan in his COC a
ground for the cancellation of COC under Section 78 of the OEC. The real issue, according to the OSG, is
not Velascos right to vote, but the misrepresentation he committed when he filed his COC.

On March 5, 2008, the COMELEC issued a writ of execution to implement the assailed
resolutions. The CA, on the other hand, rendered on March 13, 2008 its decision in CA-GR SP No. 98259
granting Velascos appeal, thereby reversing and setting aside the RTC decision. The appellate court ruled
that, contrary to the RTCs finding, Velasco effectively reacquired his residence when he decided to
relocate in the Philippines for good in 2003; from 2003-2006, Velasco stayed in the Philippines for a total
of almost two (2) years for the last three (3) years immediately preceding the May 14, 2007 election;
from the totality of these acts, Velasco revealed his intention to reacquire his rights as a Filipino
citizen. Citing Macalintal v. Commission on Elections,[3] the CA considered Velasco a qualified voter.

On Velascos motion, we issued a status quo ante order enjoining the COMELEC from
implementing the assailed resolutions.

In an interesting twist, the CA issued on August 19, 2008 an Amended Decision in response to a
motion for reconsideration of its earlier decision dismissing Velascos Rule 42 petition for lack of
jurisdiction. It reversed its earlier ruling that it has jurisdiction to entertain the appeal, explicitly stating
that the jurisprudence it cited to support its appellate jurisdiction in voters inclusion/exclusion
proceeding is no longer good law because of the amendments to the election law on which its cited
jurisprudence was based. It declared that Section 138 of the OEC being explicit that the decision on
appeal by the RTC in inclusion and exclusion cases is immediately final and executory appears to be a
clear mandate for this Court (the CA) not to entertain instant petition for lack of jurisdiction.
Based on these submissions, we are called upon to resolve the following issues: (1) whether
Velasco forum-shopped; and (2) whether the COMELEC gravely abused its discretion in canceling
Velascos COC.

THE COURTS RULING

We find the petition devoid of merit.

Grave Abuse of Discretion.

The well-settled rule is that this Court will not interfere with a COMELEC decision unless the
COMELEC is shown to have committed grave abuse of discretion.[4] Correctly understood, grave abuse of
discretion is such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction,
or [an] exercise of power in an arbitrary and despotic manner by reason of passion or personal hostility,
or an exercise of judgment so patent and gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform the duty enjoined, or to act in a manner not at all in contemplation of law.[5]

Velasco imputes grave abuse of discretion on the COMELEC for canceling his COC on the sole
ground that he committed false representation when he claimed that he is a registered voter of Precinct
No. 103-A. This imputation directly poses to us the question: was the COMELEC ruling capriciously,
whimsically, and arbitrarily made?

In answering this question, we recognize at the outset that together with the cancellation of the
COC that is directly before us, we have to consider the effect and impact of the inclusion/exclusion
proceedings that Velasco brought before the MTC which, on appeal to the RTC, ultimately led to the
denial of his listing as a voter in Sasmuan.While this inclusion/exclusion case is not before us, it was the
ruling in this proceeding that the COMELEC cited as ground for the cancellation of Velascos COC after
Velasco claimed that he is a registered voter of Precinct No. 103-A of Sasmuan, Pampanga.

The COC Denial/Cancellation Proceedings.

Section 74, in relation with Section 78 of the OEC governs the cancellation of, and grant or
denial of due course to, COCs. The combined application of these sections requires that the facts stated
in the COC by the would-be candidate be true, as any false representation of a material fact is a ground
for the COCs cancellation or the withholding of due course. To quote these provisions:

SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall


state that the person filing it is announcing his candidacy for the office stated therein
and that he is eligible for said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or district or sector which
he seeks to represent; the political party to which he belongs; civil status; his date of
birth; residence; his post office address for all election purposes; his profession or
occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and
decrees promulgated by the duly constituted authorities; that he is not a permanent
resident or immigrant to a foreign country; that the obligation assumed by his oath is
assumed voluntarily, without mental reservation or purpose of evasion; and that the
facts stated in the certificate of candidacy are true to the best of his knowledge.

xxxx

SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed
by any 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.

The false representation that these provisions mention must necessarily pertain to a material fact, not
to a mere innocuous mistake. This is emphasized by the consequences of any material falsity: a
candidate who falsifies a material fact cannot run; if he runs and is elected, cannot serve; in both cases,
he or she can be prosecuted for violation of the election laws. Obviously, these facts are those that refer
to a candidates qualification for

elective office, such as his or her citizenship and residence.[6] The candidates status as a registered voter
similarly falls under this classification as it is a requirement that, by law (the Local Government Code),
must be reflected in the COC. The reason for this is obvious: the candidate, if he or she wins, will work
for and represent the local government under which he is running.

Separately from the requirement of materiality, a false representation under Section 78 must consist of
a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate
ineligible. In other words, it must be made with the intention to deceive the electorate as to the would-
be candidates qualifications for public office.[7]

The Voters Inclusion/Exclusion Proceedings.

The process of voters inclusion/exclusion, as part of the voters registration process, is provided
and defined under Sections 138, 139 and 143 of the OEC. These sections provide:

Sec. 138. Jurisdiction in inclusion and exclusion cases. The Municipal and
Metropolitan Trial Courts shall have original and exclusive jurisdiction over all cases of
inclusion and exclusion of voters from the list in their respective cities or
municipalities. Decisions of the Municipal or Metropolitan Trial Courts may be appealed
by the aggrieved party to the Regional Trial Courts within five (5) days from receipt of
notice thereof. Otherwise, said decision shall become final and executory. The regional
trial court shall decide the appeal within ten (10) days from the time it is received and
the decision shall become final and executory. No motion for reconsideration shall be
entertained [As amended by Section 33 of Republic Act No. 8189 (RA 8189)].

Sec. 139. Petition for inclusion of voters in the list. Any person whose
application for registration has been disapproved by the Board or whose name has been
stricken out from the list may file with the court a petition to include his name in the
permanent list of voters in his precinct at any time except one hundred five (105) days
prior to a regular election or seventy-five (75) days prior to a special election. It shall be
supported by a certificate of disapproval of his application and proof of service of notice
of his petition upon the Board. The petition shall be decided within fifteen (15) days
after its filing.

If the decision is for the inclusion of voters in the permanent list of voters, the
Board shall place the application for registration previously disapproved in the
corresponding book of voters and indicate in the application for registration the date of
the order of inclusion and the court which issued the same [As amended by Section 34
of RA 8189].

Section 143. Common rules governing judicial proceedings in the matter of


inclusion, exclusion and correction of names of voters.
(a) Petition for inclusion, exclusion, or correction of names of voters shall be
filed during office hours;

(b) Notice of the place, date and time of the hearing of the petition shall be
served upon the members of the Board and the challenged voter upon the filing of the
petition. Service of such notice may be made by sending a copy thereof by personal
delivery or by leaving it in the possession of a person of sufficient discretion in the
residence of the challenged voter, or by registered mail. Should the foregoing
procedures be not practicable, the notice shall be posted in the bulletin board of the city
or municipal hall and in two (2) other conspicuous places within the city or municipality;

xxx

(c) A petition shall refer only one to one (1) precinct and implead the Board as
respondents;.

(d) No costs shall be assessed against any party in these proceedings. However,
if the court should find that the application has been filed solely to harass the adverse
party and cause him to incur expenses, it shall order the culpable party to pay the costs
and incidental expenses.

(e) Any voter, candidate or political party who may be affected by the
proceedings may intervene and present his evidence.

(f) The decision shall be based on the evidence presented and in no case
rendered upon a stipulation of facts. x x x

(g) The petition shall be heard and decided within ten (10) days from the date of
its filing. Cases appealed to the Regional Trial Court shall be decided within ten (10) days
from receipt of the appeal. In all, cases, the court shall decide these petitions not later
than fifteen (15) days before the election and the decision shall be immediately final
and executory. [As amended by Section 32 of RA 8189]

Inclusion/exclusion proceedings essentially involve the simple issue of whether a petitioner shall be
included in or excluded from the list of voters based on the qualifications required by law and the facts
presented to show possession of these qualifications.

The Proceedings Compared.


In terms of purpose, voters inclusion/exclusion and COC denial/cancellation are different
proceedings; one refers to the application to be registered as a voter to be eligible to vote, while the
other refers to the application to be a candidate. Because of their differing purposes, they also involve
different issues and entail different reliefs although the facts on which they rest may have
commonalities where they may be said to converge or interface. One such commonality is on the matter
of residence. Section 9 of Republic Act 8189, otherwise known as the Voters Registration Act (VRA),
requires that voters shall have resided in the Philippines for at least one (1) year, and in the place
wherein they propose to vote, at least six (6) months immediately preceding the election. The OEC, on
the other hand, requires under its Section 74 that the would-be candidate state material facts such as,
among others, his residence. Under the combined application of Section 65 of the OEC and Section 39 of
the Local Government Code(LGC), a local official must among others have the same residency
requirement as required under the VRA. Another point of convergence is on the candidates status as a
registered voter; a candidate for a local government position must be a registered voter in
the barangay, municipality, province, or city where he or she intends to run for office.

The remedies available in the two proceedings likewise differ. Velascos remedy from the
adverse decision in his petition for inclusion as voter is as provided under Section 138 of the OEC quoted
above. From the MTC, the recourse is to the RTC whose decision is final and executory, correctible by
the Court of Appeals only by a writ of certiorari based on grave abuse of discretion amounting to lack of
jurisdiction. On the other hand, the approval of a certificate of candidacy or its denial is a matter directly
cognizable by the COMELEC, with the decision of its Division reviewable by the COMELEC en banc whose
decision is in turn reviewable by this Court under Rule 64 of the Rules of Court and Section 7, of Article
IX-A of the 1987 Constitution.

No Grave Abuse of Discretion.

In the present case, the ERB denied Velascos registration as a voter, which denial the RTC
subsequently supported. As already mentioned, this denial by the RTC is, by law, final and
executory. Since Velascos knowledge of the RTC decision at the time he filed his COC is not disputed, the
COMELEC concluded that he committed a material misrepresentation when he stated under oath in his
COC that he is a registered voter of Sasmuan.
Under these facts and legal situation, we cannot hold that the COMELECs conclusion is legally
erroneous, much less that it is tainted by grave abuse of discretion. It is a matter of record, appearing in
a final RTC judgment no less, that Velasco was not a registered voter of Sasmuan at the time he filed his
COC. His claim in this regard was therefore false and was a material misrepresentation. Other than his
active misrepresentation, Velasco likewise was inexplicably silent about, and thus knowingly omitted any
mention of, the denial of his registration. As the COMELEC did, we can only conclude that he deliberately
concealed the existence of the final and executory RTC ruling when he filed his COC. He could not
disclose this fact as the unavoidable consequence of disclosure was to render him unqualified to be a
candidate.[8]

That the COMELEC relied on the RTC ruling in canceling the COC of Velasco cannot likewise be a
legal error as Section 138 of the OEC is clear and categorical in its terms: Decisions of the Municipal or
Metropolitan Trial Courts may be appealed by the aggrieved party to the Regional Trial Courts within five
(5) days from receipt of notice thereof. Otherwise, said decision shall become final and executory. The
regional trial court shall decide the appeal within ten days from the time the appeal was received and its
decision shall be final and executory. We note that when Velasco sought recourse with the Court of
Appeals, he did so by way of appeal under Rule 42 of the Rules of Court a recourse that was not
available to him because an RTC ruling in an inclusion/exclusion is final and executory. This led the
appellate court to recognize in its Amended Decision of August 19, 2008, albeit on motion for
reconsideration, that it had no jurisdiction to entertain Velascos appeal.

The Right to Vote

The above discussions, particularly on the distinctions between inclusion/exclusion proceedings


and COC denial/cancellation proceedings, refute and belie Velascos position that the COMELEC
improperly ruled on his right to vote when it cancelled his COC. The tribunals given authority by law and
who actually ruled on whether Velasco should have the right to vote in Sasmuan, Pampanga were the
ERB, the MTC, and subsequently, the RTC. The COMELEC did not so rule; it merely recognized the RTCs
final and executory ruling on the matter.

This conclusion is not a hairsplitting sophistry, but one based on clear distinctions drawn by the
law. As above pointed out, inclusion/exclusion and COC denial/cancellation proceedings, while they may
ultimately have common factual bases, are still proceedings poles apart in terms of the issues, reliefs,
and remedies involved. That at some point they may converge (as in this case, where the COC
denial/cancellation proceeding relied on and used the results of the voters inclusion/exclusion
proceeding) does not erase the distinctions between them. In the context of this case, it does not mean
that the COMELEC commonly with the ERB, the MTC and the RTC ruled on Velascos right to vote
because the COMELEC relied on the latters ruling.

In Domino v. COMELEC[9] where this Court faced the contention that the decision of the first
level court in an exclusion proceeding on the issue of residence is final and conclusive on the COMELEC
hearing a COC denial/cancellation proceeding under Section 78 of the OED we ruled that the factual
findings of the trial court and its resultant conclusions in the inclusion/exclusion proceedings on
matters other than the right to vote in the precinct within its territorial jurisdiction are not conclusive on
and do not rise to the level of a res judicata ruling with respect to the COMELEC.[10] The reason is that
inclusion/exclusion proceedings, while judicial in character, are summary proceedings.[11] We further
added that a decision in an inclusion/exclusion proceeding does not operate as a bar to any future
action in any other election that a party may take concerning his right to be registered as a
voter.[12]Otherwise stated, a ruling on the right to vote by the trial court for a specific election is binding
on the COMELEC.By clear implication, the COMELEC itself does not rule on the right to vote by
recognizing in a Sec. 78 COC denial/cancellation proceeding the final and executory ruling by a court, as
mandated by law, in an inclusion/exclusion proceeding.

Velascos Qualifications/Disqualifications as a Voter

Whether Velasco possesses all the qualifications and none of the disqualifications to register as
a voter of Sasmuan, Pampanga is a matter that is not directly before us as his inclusion as a Sasmuan
voter is not before us. As the COMELEC did, we rely on the final and executory RTC ruling excluding
Velasco from the Sasmuan voters list. We observe, however, that at the time he filed his application for
registration with the COMELEC local office on October 13, 2006, Velasco was a dual citizen. The records
show that Velasco renounced his American citizenship only on March 28, 2007,[13] although he secured
his dual citizenship status as early as July 31, 2006 at the Philippine Consulate in San
Francisco, California.[14] Under his dual citizenship status, he possessed the right to vote in Philippine
elections through the absentee voting scheme under Republic Act No. 9189 (the Oversees Absentee
Voting Law or the OAVL)[15] as we ruled in Nicolas-Lewis v. COMELEC.[16] In Macalintal v. COMELEC,[17] we
significantly said that absentee voters are exempted from the constitutional residency requirement for
regular Philippine voters. Thus, the residency requirements we cited above under the VRA and the LGC
do not apply to Velasco, assuming he registered as a dual citizen/absentee voter.

By law, however, the right of dual citizens who vote as absentee voters pertains only to the
election of nationalofficials, specifically: the president, the vice-president, the senators, and party-list
representatives.[18] Thus, Velasco was not eligible to vote as an absentee voter in the local election of
2007. In fact, the records do not show that Velasco ever registered as an absentee voter for the 2007
election.[19]

On the other hand, Velasco could not have registered as a regular voter because he did not
possess the residency requirement of one-year stay in the Philippines and six-months stay in the
municipality where he proposed to vote at the time of the election. The records show that he arrived in
the Philippines only on September 14, 2006 and applied for registration on October 13 of that year[20] for
the election to be held in May of the following year (2007). To hark back and compare his case to a
similar case, Coquilla v. COMELEC,[21] Velasco, before acquiring his dual citizenship status, was an
American citizen who had lost his residency and domiciliary status in the Philippines; whose sojourn in
the Philippines was via a visitors visa; and who never established permanent residence in
the Philippines. Like Coquilla before him, Velasco could not have therefore validly registered as a regular
voter eight months before the May 2007 local elections.

The Due Process Issue.

Finally, we see no merit in Velascos argument that the COMELEC annulled his proclamation as
Mayor without due process. The nullification of his proclamation as a winning candidate was an outcome
- a necessary legal consequence of the cancellation of his COC pursuant to Section 78 of the OEC. A COC
cancellation proceeding essentially partakes of the nature of a disqualification case.[22] In the present
case, Velasco filed an Answer to Panlaquis petition to cancel or deny due course to his (Velascos) COC;
hence, he was afforded the opportunity to be heard in the cancellation of his COC.

Under the combined application of Sections 6[23] and 7[24] of Republic Act No. 6646,[25] candidates
who are disqualified by final judgment before the election shall not be voted for and the votes cast for
them shall not be counted. If the disqualification or COC cancellation/denial case is not resolved before
election day, the proceedings shall continue even after the election and the proclamation of the
winner.[26] In the meanwhile, the candidate may be voted for and be proclaimed if he or she wins, but
the COMELECs jurisdiction to deny due course and cancel his or her COC continues. This rule applies
even if the candidate facing disqualification is voted for and receives the highest number of votes,[27] and
even if the candidate is proclaimed and has taken his oath of office.[28] The only exception to this rule is
in the case of congressional or senatorial candidates with unresolved disqualification or COC
denial/cancellation cases after the elections. Pursuant to Section 17 of Article VI of the Constitution, the
COMELEC ipso jure loses jurisdiction over these unfinished cases in favor of the respective Senate or the
House of Representatives electoral tribunals after the candidates take their oath of office.[29]
Under these circumstances, Velascos claim of denial of due process is misplaced since he was
given the opportunity to be heard in a proceeding that would result in the annulment of his
proclamation; due process was duly served because its essence is the opportunity to be heard and this
was fully given to Velasco.[30]

In sum, the COMELEC resolutions canceling Velascos COC are procedurally and substantively
correct, thus negating the grave abuse of discretion that Velasco alleges.

As our final point, we are aware that Velasco won the May 14, 2007 mayoralty election in
Sasmuan. We recognize, too, that we have ruled in the past that a candidates victory in the election may
be considered a sufficient basis to rule in favor of the candidate sought to be disqualified if the main
issue involves defects in the candidates certificate of candidacy. We said that while provisions relating to
certificates of candidacy are mandatory in terms, it is an established rule of interpretation as regards
election laws, that mandatory provisions requiring certain steps before elections will be construed as
directory after the elections, to give effect to the will of the people. We so ruled in Quizon v.
COMELEC and Saya-ang v. COMELEC.[31]

The present case perhaps presents the proper time and opportunity to fine-tune our above ruling. We
say this with the realization that a blanket and unqualified reading and application of this ruling can be
fraught with dangerous significance for the rule of law and the integrity of our elections. For one, such
blanket/unqualified reading may provide a way around the law that effectively negates election
requirements aimed at providing the electorate with the basic information to make an informed choice
about a candidates eligibility and fitness for office.

The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC
which specifies the basic qualifications of local government officials. Equally susceptive of being
rendered toothless is Section 74 of the OEC that sets out what should be stated in a COC. Section 78
may likewise be emasculated as mere delay in the resolution of the petition to cancel or deny due
course to a COC can render a Section 78 petition useless if a candidate with false COC data wins. To state
the obvious, candidates may risk falsifying their COC qualifications if they know that an election victory
will cure any defect that their COCs may have. Election victory then becomes a magic formula to bypass
election eligibility requirements.
In the process, the rule of law suffers; the clear and unequivocal legal command, framed by a
Congress representing the national will, is rendered inutile because the people of a given locality has
decided to vote a candidate into office despite his or her lack of the qualifications Congress has
determined to be necessary.

In the present case, Velasco is not only going around the law by his claim that he is registered
voter when he is not, as has been determined by a court in a final judgment. Equally important is that he
has made a material misrepresentation under oath in his COC regarding his qualification. For these
violations, he must pay the ultimate price the nullification of his election victory. He may also have to
account in a criminal court for making a false statement under oath, but this is a matter for the proper
authorities to decide upon.

We distinguish our ruling in this case from others that we have made in the past by the
clarification that COC defects beyond matters of form and that involve material
misrepresentations cannot avail of the benefit of our ruling that COC mandatory requirements before
elections are considered merely directory after the people shall have spoken. A mandatory and material
election law requirement involves more than the will of the people in any given locality. Where
a material COC misrepresentation under oath is made, thereby violating both our election and criminal
laws, we are faced as well with an assault on the will of the people of the Philippines as expressed in our
laws. In a choice between provisions on material qualifications of elected officials, on the one hand, and
the will of the electorate in any given locality, on the other, we believe and so hold that we cannot
choose the electorate will. The balance must always tilt in favor of upholding and enforcing the law. To
rule otherwise is to slowly gnaw at the rule of law.

WHEREFORE, we DISMISS the petition for lack of merit. The Status Quo Order we issued is hereby
ordered IMMEDIATELY LIFTED. We DECLARE that there is no more legal impediment or obstacle to the
implementation of the assailed COMELEC resolutions. No costs.

SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. 193237 October 9, 2012

DOMINADOR G. JALOSJOS, JR., Petitioner,


vs.
COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents.

x-----------------------x

G.R. No. 193536

AGAPITO J. CARDINO, Petitioner,


vs.
DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS, Respondents.

DECISION

CARPIO, J.:

These are two special civil actions for certiorari1 questioning the resolutions of the Commission on
Elections (COMELEC) in SPA No. 09-076 (DC). In G.R. No. 193237, Dominador G. Jalosjos, Jr. (Jalosjos)
seeks to annul the 10 May 2010 Resolution2 of the COMELEC First Division and the 11 August 2010
Resolution3 of the COMELEC En Banc, which both ordered the cancellation of his certificate of candidacy
on the ground of false material representation. In G.R. No. 193536, Agapito J. Cardino (Cardino)
challenges the 11 August 2010 Resolution of the COMELEC En Banc, which applied the rule on
succession under the Local Government Code in filling the vacancy in the Office of the Mayor of Dapitan
City, Zamboanga del Norte created by the cancellation of Jalosjos’ certificate of candidacy.

The Facts

Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga del Norte in the May
2010 elections. Jalosjos was running for his third term. Cardino filed on 6 December 2009 a petition
under Section 78 of the Omnibus Election Code to deny due course and to cancel the certificate of
candidacy of Jalosjos. Cardino asserted that Jalosjos made a false material representation in his
certificate of candidacy when he declared under oath that he was eligible for the Office of Mayor.

Cardino claimed that long before Jalosjos filed his certificate of candidacy, Jalosjos had already been
convicted by final judgment for robbery and sentenced to prisión mayor by the Regional Trial Court,
Branch 18 (RTC) of Cebu City, in Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted that Jalosjos has
not yet served his sentence. Jalosjos admitted his conviction but stated that he had already been
granted probation. Cardino countered that the RTC revoked Jalosjos’ probation in an Order dated 19
March 1987. Jalosjos refuted Cardino and stated that the RTC issued an Order dated 5 February 2004
declaring that Jalosjos had duly complied with the order of probation. Jalosjos further stated that during
the 2004 elections the COMELEC denied a petition for disqualification filed against him on the same
grounds.4
The COMELEC En Banc narrated the circumstances of Jalosjos’ criminal record as follows:

As backgrounder, Jalosjos and three (3) others were accused of the crime of robbery on January 22,
1969 in Cebu City. On April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit Criminal Court of
Cebu City found him and his co-accused guilty of robbery and sentenced them to suffer the penalty of
prision correccional minimum to prision mayor maximum. Jalosjos appealed this decision to the Court of
Appeals but his appeal was dismissed on August 9, 1973. It was only after a lapse of several years or
more specifically on June 17, 1985 that Jalosjos filed a Petition for Probation before the RTC Branch 18
of Cebu City which was granted by the court. But then, on motion filed by his Probation Officer, Jalosjos’
probation was revoked by the RTC Cebu City on March 19, 1987 and the corresponding warrant for his
arrest was issued. Surprisingly, on December 19, 2003, Parole and Probation Administrator Gregorio F.
Bacolod issued a Certification attesting that respondent Jalosjos, Jr., had already fulfilled the terms and
conditions of his probation. This Certification was the one used by respondent Jalosjos to secure the
dismissal of the disqualification case filed against him by Adasa in 2004, docketed as SPA No. 04-235.

This prompted Cardino to call the attention of the Commission on the decision of the Sandiganbayan
dated September 29, 2008 finding Gregorio F. Bacolod, former Administrator of the Parole and
Probation Administration, guilty of violating Section 3(e) of R.A. 3019 for issuing a falsified Certification
on December 19, 2003 attesting to the fact that respondent Jalosjos had fully complied with the terms
and conditions of his probation. A portion of the decision of the Sandiganbayan is quoted hereunder:

The Court finds that the above acts of the accused gave probationer Dominador Jalosjos, Jr.,
unwarranted benefits and advantage because the subject certification, which was issued by the accused
without adequate or official support, was subsequently utilized by the said probationer as basis of the
Urgent Motion for Reconsideration and to Lift Warrant of Arrest that he filed with the Regional Trial
Court of Cebu City, which prompted the said court to issue the Order dated February 5, 2004 in Crim.
Case No. CCC-XIV-140-CEBU, declaring that said probationer has complied with the order of probation
and setting aside its Order of January 16, 2004 recalling the warrant or [sic] arrest; and that said
Certification was also used by the said probationer and became the basis for the Commission on
Elections to deny in its Resolution of August 2, 2004 the petition or [sic] private complainant James
Adasa for the disqualification of the probationer from running for re-election as Mayor of Dapitan City in
the National and Local Elections of 2004.5

The COMELEC’s Rulings

On 10 May 2010, the COMELEC First Division granted Cardino’s petition and cancelled Jalosjos’
certificate of candidacy. The COMELEC First Division concluded that "Jalosjos has indeed committed
material misrepresentation in his certificate of candidacy when he declared, under oath, that he is
eligible for the office he seeks to be elected to when in fact he is not by reason of a final judgment in a
criminal case, the sentence of which he has not yet served."6 The COMELEC First Division found that
Jalosjos’ certificate of compliance of probation was fraudulently issued; thus, Jalosjos has not yet served
his sentence. The penalty imposed on Jalosjos was the indeterminate sentence of one year, eight
months and twenty days of prisión correccional as minimum, to four years, two months and one day of
prisión mayor as maximum. The COMELEC First Division ruled that Jalosjos "is not eligible by reason of
his disqualification as provided for in Section 40(a) of Republic Act No. 7160."7

On 11 August 2010, the COMELEC En Banc denied Jalosjos’ motion for reconsideration. The pertinent
portions of the 11 August 2010 Resolution read:
With the proper revocation of Jalosjos’ earlier probation and a clear showing that he has not yet served
the terms of his sentence, there is simply no basis for Jalosjos to claim that his civil as well as political
rights have been violated. Having been convicted by final judgment,

Jalosjos is disqualified to run for an elective position or to hold public office. His proclamation as the
elected mayor in the May 10, 2010 election does not deprive the Commission of its authority to resolve
the present petition to its finality, and to oust him from the office he now wrongfully holds.

WHEREFORE, in view of the foregoing, the Motion for Reconsideration is denied for utter lack of merit.
Jalosjos is hereby OUSTED from office and ordered to CEASE and DESIST from occupying and discharging
the functions of the Office of the Mayor of Dapitan City, Zamboanga. Let the provisions of the Local
Government Code on succession apply.

SO ORDERED.8

Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237, while Cardino filed his
petition on 17 September 2010, docketed as G.R. No. 193536.

On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237.

WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DISMISSED. The assailed
Resolution dated May 10, 2010 and Resolution dated August 11, 2010 of the Commission on Elections in
SPA Case No. 09-076 (DC) are hereby AFFIRMED.9

Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial notice of its
resolution in G.R. No. 193237. Jalosjos filed a Motion for Reconsideration10 on 22 March 2011. On 29
March 2011, this Court resolved11 to consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos then
filed a Manifestation on 1 June 2012 which stated that "he has resigned from the position of Mayor of
the City of Dapitan effective 30 April 2012, which resignation was accepted by the Provincial Governor of
Zamboanga del Norte, Atty. Rolando E. Yebes."12 Jalosjos’ resignation was made "in deference with the
provision of the Omnibus Election Code in relation to his candidacy as Provincial Governor of
Zamboanga del Sur in May 2013."13

These cases are not rendered moot by Jalosjos’ resignation. In resolving Jalosjos’ Motion for
Reconsideration in G.R. No. 193237 and Cardino’s Petition in G.R. No. 193536, we address not only
Jalosjos’ eligibility to run for public office and the consequences of the cancellation of his certificate of
candidacy, but also COMELEC’s constitutional duty to enforce and administer all laws relating to the
conduct of elections.

The Issues

In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave abuse of discretion amounting
to lack or excess of jurisdiction when it (1) ruled that Jalosjos’ probation was revoked; (2) ruled that
Jalosjos was disqualified to run as candidate for Mayor of Dapitan City, Zamboanga del Norte; and (3)
cancelled Jalosjos’ certificate of candidacy without making a finding that Jalosjos committed a deliberate
misrepresentation as to his qualifications, as Jalosjos relied in good faith upon a previous COMELEC
decision declaring him eligible for the same position from which he is now being ousted. Finally, the
Resolutions dated 10 May 2010 and 11 August 2010 were issued in violation of the COMELEC Rules of
Procedure.

In G.R. No. 193536, Cardino argues that the COMELEC acted with grave abuse of discretion amounting
to lack or excess of jurisdiction when it added to the dispositive portion of its 11 August 2010 Resolution
that the provisions of the Local Government Code on succession should apply.

This Court’s Ruling

The perpetual special disqualification against Jalosjos arising from his criminal conviction by final
judgment is a material fact involving eligibility which is a proper ground for a petition under Section 78
of the Omnibus Election Code. Jalosjos’ certificate of candidacy was void from the start since he was not
eligible to run for any public office at the time he filed his certificate of candidacy. Jalosjos was never a
candidate at any time, and all votes for Jalosjos were stray votes. As a result of Jalosjos’ certificate of
candidacy being void ab initio, Cardino, as the only qualified candidate, actually garnered the highest
number of votes for the position of Mayor.

The dissenting opinions affirm with modification the 10 May 2010 Resolution of the COMELEC First
Division and the 11 August 2010 Resolution of the COMELEC En Banc. The dissenting opinions
erroneously limit the remedy against Jalosjos to disqualification under Section 68 of the Omnibus
Election Code and apply the rule on succession under the Local Government Code.

A false statement in a certificate of candidacy that a candidate is eligible to run for public office is a false
material representation which is a ground for a petition under Section 78 of the same Code. Sections 74
and 78 read:

Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state that the person
filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if
for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized
city or district or sector which he seeks to represent; the political party to which he belongs; civil status;
his date of birth; residence; his post office address for all election purposes; his profession or
occupation; that he will support and defend the Constitution of the Philippines and will maintain true
faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the
duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that
the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of
evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge.

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition seeking
to deny due course or to cancel a certificate of candidacy may be filed by the 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 supplied)

Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is eligible
for said office." A candidate is eligible if he has a right to run for the public office.14 If a candidate is not
actually eligible because he is barred by final judgment in a criminal case from running for public office,
and he still states under oath in his certificate of candidacy that he is eligible to run for public office,
then the candidate clearly makes a false material representation that is a ground for a petition under
Section 78.

A sentence of prisión mayor by final judgment is a ground for disqualification under Section 40 of the
Local Government Code and under Section 12 of the Omnibus Election Code. It is also a material fact
involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code. Thus, a
person can file a petition under Section 40 of the Local Government Code or under either Section 12 or
Section 78 of the Omnibus Election Code. The pertinent provisions read:

Section 40, Local Government Code:

Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local
position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving
sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political 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.

Section 12, Omnibus Election Code:

Sec. 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 was 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.

Section 68, Omnibus Election Code:


Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared
by final decision by 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.

Revised Penal Code:

Art. 27. Reclusion perpetua. — x x x

Prisión mayor and temporary disqualification. — The duration of the penalties of prisión mayor and
temporary disqualification shall be from six years and one day to twelve years, except when the penalty
of disqualification is imposed as an accessory penalty, in which case, it shall be that of the principal
penalty.

xxxx

Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties of
perpetual or temporary absolute disqualification for public office shall produce the following effects:

1. The deprivation of the public offices and employments which the offender may have held,
even if conferred by popular election.

2. The deprivation of the right to vote in any election for any popular elective office or to be
elected to such office.

3. The disqualification for the offices or public employments and for the exercise of any of the
rights mentioned.

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3


of this article shall last during the term of the sentence.

4. The loss of all rights to retirement pay or other pension for any office formerly held.

Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The penalties of
perpetual or temporary special disqualification for public office, profession or calling shall produce the
following effects:

1. The deprivation of the office, employment, profession or calling affected.


2. The disqualification for holding similar offices or employments either perpetually or during
the term of the sentence, according to the extent of such disqualification.

Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the
right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of
suffrage shall deprive the offender perpetually or during the term of the sentence, according to the
nature of said penalty, of the right to vote in any popular election for any public office or to be elected
to such office. Moreover, the offender shall not be permitted to hold any public office during the period
of his disqualification.

Art. 42. Prisión mayor — its accessory penalties. — The penalty of prisión mayor shall carry with it that
of temporary absolute disqualification and that of perpetual special disqualification from the right of
suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon. (Emphasis supplied)

The penalty of prisión mayor automatically carries with it, by operation of law,15 the accessory penalties
of temporary absolute disqualification and perpetual special disqualification. Under Article 30 of the
Revised Penal Code, temporary absolute disqualification produces the effect of "deprivation of the right
to vote in any election for any popular elective office or to be elected to such office." The duration of
the temporary absolute disqualification is the same as that of the principal penalty. On the other hand,
under Article 32 of the Revised Penal Code perpetual special disqualification means that "the offender
shall not be permitted to hold any public office during the period of his disqualification," which is
perpetually. Both temporary absolute disqualification and perpetual special disqualification constitute
ineligibilities to hold elective public office. A person suffering from these ineligibilities is ineligible to run
for elective public office, and commits a false material representation if he states in his certificate of
candidacy that he is eligible to so run.

In Lacuna v. Abes,16 the Court, speaking through Justice J.B.L. Reyes, explained the import of the
accessory penalty of perpetual special disqualification:

On the first defense of respondent-appellee Abes, it must be remembered that appellee’s conviction of
a crime penalized with prisión mayor which carried the accessory penalties of temporary absolute
disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised
Penal Code); and Section 99 of the Revised Election Code disqualifies a person from voting if he had
been sentenced by final judgment to suffer one year or more of imprisonment.

The accessory penalty of temporary absolute disqualification disqualifies the convict for public office
and for the right to vote, such disqualification to last only during the term of the sentence (Article 27,
paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13
October 1961.

But this does not hold true with respect to the other accessory penalty of perpetual special
disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict of
the right to vote or to be elected to or hold public office perpetually, as distinguished from temporary
special disqualification, which lasts during the term of the sentence. Article 32, Revised Penal Code,
provides:
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the
right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of
suffrage shall deprive the offender perpetually or during the term of the sentence, according to the
nature of said penalty, of the right to vote in any popular election for any public office or to be elected
to such office. Moreover, the offender shall not be permitted to hold any public office during the period
of disqualification.

The word "perpetually" and the phrase "during the term of the sentence" should be applied
distributively to their respective antecedents; thus, the word "perpetually" refers to the perpetual kind
of special disqualification, while the phrase "during the term of the sentence" refers to the temporary
special disqualification. The duration between the perpetual and the temporary (both special) are
necessarily different because the provision, instead of merging their durations into one period, states
that such duration is "according to the nature of said penalty" — which means according to whether the
penalty is the perpetual or the temporary special disqualification. (Emphasis supplied)

Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the
convict of the right to vote or to be elected to or hold public office perpetually."

The accessory penalty of perpetual special disqualification takes effect immediately once the judgment
of conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of
the principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of
Article 32 states that "the offender shall not be permitted to hold any public office during the period of
his perpetual special disqualification." Once the judgment of conviction becomes final, it is immediately
executory. Any public office that the convict may be holding at the time of his conviction becomes
vacant upon finality of the judgment, and the convict becomes ineligible to run for any elective public
office perpetually. In the case of Jalosjos, he became ineligible perpetually to hold, or to run for, any
elective public office from the time his judgment of conviction became final.

Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election
Code because this accessory penalty is an ineligibility, which means that the convict is not eligible to run
for public office, contrary to the statement that Section 74 requires him to state under oath. As used in
Section 74, the word "eligible" means having the right to run for elective public office, that is, having all
the qualifications and none of the ineligibilities to run for public office. As this Court held in Fermin v.
Commission on Elections,17 the false material representation may refer to "qualifications or eligibility."
One who suffers from perpetual special disqualification is ineligible to run for public office. If a person
suffering from perpetual special disqualification files a certificate of candidacy stating under oath that
"he is eligible to run for (public) office," as expressly required under Section 74, then he clearly makes a
false material representation that is a ground for a petition under Section 78. As this Court explained in
Fermin:

Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the
lack of qualifications but on a finding that the candidate made a material representation that is false,
which may relate to the qualifications required of the public office he/she is running for. It is noted that
the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the
OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications
or eligibility for public office. If the candidate subsequently states a material representation in the CoC
that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such
certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto
proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a
candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before
proclamation, while a petition for quo warranto is filed after proclamation of the winning
candidate.18 (Emphasis supplied)

Conviction for robbery by final judgment with the penalty of prisión mayor, to which perpetual special
disqualification attaches by operation of law, is not a ground for a petition under Section 68 because
robbery is not one of the offenses enumerated in Section 68. Insofar as crimes are concerned, Section
68 refers only to election offenses under the Omnibus Election Code and not to crimes under the
Revised Penal Code. For ready reference, we quote again Section 68 of the Omnibus Election Code:

Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared
by final decision by 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 supplied)

There is absolutely nothing in the language of Section 68 that will justify including the crime of robbery
as one of the offenses enumerated in this Section. All the offenses enumerated in Section 68 refer to
offenses under the Omnibus Election Code. The dissenting opinion of Justice Reyes gravely errs when it
holds that Jalosjos’ conviction for the crime of robbery under the Revised Penal Code is a ground for "a
petition for disqualification under Section 68 of the OEC and not for cancellation of COC under Section
78 thereof." This Court has already ruled that offenses punished in laws other than in the Omnibus
Election Code cannot be a ground for a petition under Section 68. In Codilla, Sr. v. de Venecia,19 the
Court declared:

The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of
the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC
jurisdiction.They are criminal and not administrative in nature. (Emphasis supplied)

A candidate for mayor during the 2010 local elections certifies under oath four statements: (1) a
statement that the candidate is a natural born or naturalized Filipino citizen; (2) a statement that the
candidate is not a permanent resident of, or immigrant to, a foreign country; (3) a statement that the
candidate is eligible for the office he seeks election; and (4) a statement of the candidate’s allegiance to
the Constitution of the Republic of the Philippines.20

We now ask: Did Jalosjos make a false statement of a material fact in his certificate of candidacy when
he stated under oath that he was eligible to run for mayor? The COMELEC and the dissenting opinions
all found that Jalosjos was not eligible to run for public office. The COMELEC concluded that Jalosjos
made a false material representation that is a ground for a petition under Section 78. The dissenting
opinion of Justice Reyes, however, concluded that the ineligibility of Jalosjos is a disqualification which is
a ground for a petition under Section 68 and not under Section 78. The dissenting opinion of Justice
Brion concluded that the ineligibility of Jalosjos is a disqualification that is not a ground under Section 78
without, however, saying under what specific provision of law a petition against Jalosjos can be filed to
cancel his certificate of candidacy.

What is indisputably clear is that the false material representation of Jalosjos is a ground for a petition
under Section 78. However, since the false material representation arises from a crime penalized by
prisión mayor, a petition under Section 12 of the Omnibus Election Code or Section 40 of the Local
Government Code can also be properly filed. The petitioner has a choice whether to anchor his petition
on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40 of the Local Government
Code. The law expressly provides multiple remedies and the choice of which remedy to adopt belongs to
the petitioner.

The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A void certificate of candidacy on the
ground of ineligibility that existed at the time of the filing of the certificate of candidacy can never give
rise to a valid candidacy, and much less to valid votes.21 Jalosjos’ certificate of candidacy was cancelled
because he was ineligible from the start to run for Mayor. Whether his certificate of candidacy is
cancelled before or after the elections is immaterial because the cancellation on such ground means he
was never a valid candidate from the very beginning, his certificate of candidacy being void ab initio.
Jalosjos’ ineligibility existed on the day he filed his certificate of candidacy, and the cancellation of his
certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There was only
one qualified candidate for Mayor in the May 2010 elections – Cardino – who received the highest
number of votes.

Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is
disqualified or declared ineligible22 should be limited to situations where the certificate of candidacy of
the first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation
of law that took place, or a legal impediment that took effect, after the filing of the certificate of
candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such void
certificate of candidacy was never a candidate in the elections at any time. All votes for such non-
candidate are stray votes and should not be counted. Thus, such non-candidate can never be a first-
placer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or before the
day, of the election, prevailing jurisprudence holds that all votes for that candidate are stray votes.23 If a
certificate of candidacy void ab initio is cancelled one day or more after the elections, all votes for such
candidate should also be stray votes because the certificate of candidacy is void from the very
beginning. This is the more equitable and logical approach on the effect of the cancellation of a
certificate of candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can
operate to defeat one or more valid certificates of candidacy for the same position.

Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or under
Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the certificate of
candidacy of anyone suffering from the accessory penalty of perpetual special disqualification to run for
public office by virtue of a final judgment of conviction. The final judgment of conviction is notice to the
COMELEC of the disqualification of the convict from running for public office. The law itself bars the
convict from running for public office, and the disqualification is part of the final judgment of conviction.
The final judgment of the court is addressed not only to the Executive branch, but also to other
government agencies tasked to implement the final judgment under the law.

Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification,
it is assumed that the portion of the final judgment on disqualification to run for elective public office is
addressed to the COMELEC because under the Constitution the COMELEC is duty bound to "enforce and
administer all laws and regulations relative to the conduct of an election."24 The disqualification of a
convict to run for public office under the Revised Penal Code, as affirmed by final judgment of a
competent court, is part of the enforcement and administration of "all laws" relating to the conduct of
elections.

To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of one
suffering from perpetual special disqualification will result in the anomaly that these cases so
grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and served
twice as mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce and administer
all laws" relating to the conduct of elections if it does not motu proprio bar from running for public
office those suffering from perpetual special disqualification by virtue of a final judgment.

WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in G.R. No.
193536 is GRANTED. The Resolutions dated 10 May 2010 and 11 August 2010 of the COMELEC First
Division and the COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are AFFIRMED with the
MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010 elections and thus received the
highest number of votes for Mayor. The COMELEC En Bane is DIRECTED to constitute a Special City
Board of Canvassers to proclaim Agapito J. Cardino as the duly elected Mayor of Dapitan City,
Zamboanga del Norte.

Let copies of this Decision be furnished the Secretaries of the Department of Justice and the Department
of Interior and Local Government so they can cause the arrest of, and enforce the jail sentence on,
Dominador G. Jalosjos, Jr. due to his conviction for the crime of robbery in a final judgment issued by the
Regional Trial Court (Branch 18) of Cebu City in Criminal Case No. CCC-XIV-140-CEBU.

SO ORDERED.

G.R. No. 195649 April 16, 2013

CASAN MACODE MAQUILING, Petitioner,


vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G. BALUA, Respondents.

DECISION

SERENO, CJ.:
THE CASE

This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules of Court to review
the Resolutions of the Commission on Elections (COMELEC). The Resolution1 in SPA No. 10-1 09(DC) of
the COMELEC First Division dated 5 October 201 0 is being assailed for applying Section 44 of the Local
Government Code while the Resolution2 of the COMELEC En Banc dated 2 February 2011 is being
questioned for finding that respondent Rommel Arnado y Cagoco (respondent Arnado/Arnado) is solely
a Filipino citizen qualified to run for public office despite his continued use of a U.S. passport.

FACTS

Respondent Arnado is a natural born Filipino citizen.3 However, as a consequence of his subsequent
naturalization as a citizen of the United States of America, he lost his Filipino citizenship. Arnado applied
for repatriation under Republic Act (R.A.) No. 9225 before the Consulate General of the Philippines in
San Franciso, USA and took the Oath of Allegiance to the Republic of the Philippines on 10 July 2008.4 On
the same day an Order of Approval of his Citizenship Retention and Re-acquisition was issued in his
favor.5

The aforementioned Oath of Allegiance states:

I, Rommel Cagoco Arnado, solemnly swear 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.6

On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit of
Renunciation of his foreign citizenship, which states:

I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all allegiance
and fidelity to the UNITED STATES OF AMERICA of which I am a citizen, and I divest myself of full
employment of all civil and political rights and privileges of the United States of America.

I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge and
belief.7

On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del
Norte, which contains, among others, the following statements:

I am a natural born Filipino citizen / naturalized Filipino citizen.

I am not a permanent resident of, or immigrant to, a foreign country.

I am eligible for the office I seek to be elected to.


I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith
and allegiance thereto. I will obey the laws, legal orders and decrees promulgated by the duly
constituted authorities.

I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.8

On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition to
disqualify Arnado and/or to cancel his certificate of candidacy for municipal mayor of Kauswagan, Lanao
del Norte in connection with the 10 May 2010 local and national elections.9

Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that he is
a foreigner, attaching thereto a certification issued by the Bureau of Immigration dated 23 April 2010
indicating the nationality of Arnado as "USA-American."10To further bolster his claim of Arnado’s US
citizenship, Balua presented in his Memorandum a computer-generated travel record11 dated 03
December 2009 indicating that Arnado has been using his US Passport No. 057782700 in entering and
departing the Philippines. The said record shows that Arnado left the country on 14 April 2009 and
returned on 25 June 2009, and again departed on 29 July 2009, arriving back in the Philippines on 24
November 2009.

Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010, certifying
that the name "Arnado, Rommel Cagoco" appears in the available Computer Database/Passenger
manifest/IBM listing on file as of 21 April 2010, with the following pertinent travel records:

DATE OF Arrival : 01/12/2010

NATIONALITY : USA-AMERICAN

PASSPORT : 057782700

DATE OF Arrival : 03/23/2010

NATIONALITY : USA-AMERICAN

PASSPORT : 05778270012

On 30 April 2010, the COMELEC (First Division) issued an Order13 requiring the respondent to personally
file his answer and memorandum within three (3) days from receipt thereof.

After Arnado failed to answer the petition, Balua moved to declare him in default and to present
evidence ex-parte.

Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado garnered
the highest number of votes and was subsequently proclaimed as the winning candidate for Mayor of
Kauswagan, Lanao del Norte.

It was only after his proclamation that Arnado filed his verified answer, submitting the following
documents as evidence:14
1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated 03
April 2009;

2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio Daligdig,
and Jessy Corpin, all neighbors of Arnado, attesting that Arnado is a long-time resident of
Kauswagan and that he has been conspicuously and continuously residing in his family’s
ancestral house in Kauswagan;

3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated 03
June 2010 stating that Arnado is a bona fide resident of his barangay and that Arnado went to
the United States in 1985 to work and returned to the Philippines in 2009;

4. Certification dated 31 May 2010 from the Municipal Local Government Operations Office of
Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from January
1964 to June 1974 and from 15 February 1979 to 15 April 1986; and

5. Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has
been a registered voter of Kauswagan since 03 April 2009.

THE RULING OF THE COMELEC FIRST DIVISION

Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on
misrepresentation,15 the COMELEC First Division considered it as one for disqualification. Balua’s
contention that Arnado is a resident of the United States was dismissed upon the finding that "Balua
failed to present any evidence to support his contention,"16 whereas the First Division still could "not
conclude that Arnado failed to meet the one-year residency requirement under the Local Government
Code."17

In the matter of the issue of citizenship, however, the First Division disagreed with Arnado’s claim that
he is a Filipino citizen.18

We find that although Arnado appears to have substantially complied with the requirements of R.A. No.
9225, Arnado’s act of consistently using his US passport after renouncing his US citizenship on 03 April
2009 effectively negated his Affidavit of Renunciation.

xxxx

Arnado’s continued use of his US passport is a strong indication that Arnado had no real intention to
renounce his US citizenship and that he only executed an Affidavit of Renunciation to enable him to run
for office. We cannot turn a blind eye to the glaring inconsistency between Arnado’s unexplained use of
a US passport six times and his claim that he re-acquired his Philippine citizenship and renounced his US
citizenship. As noted by the Supreme Court in the Yu case, "a passport is defined as an official document
of identity and nationality issued to a person intending to travel or sojourn in foreign countries." Surely,
one who truly divested himself of US citizenship would not continue to avail of privileges reserved solely
for US nationals.19

The dispositive portion of the Resolution rendered by the COMELEC


First Division reads:

WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the certificate of
candidacy of Rommel C. Arnado is hereby GRANTED. Rommel C. Arnado’s proclamation as the winning
candidate for Municipal Mayor of Kauswagan, Lanao del Nore is hereby ANNULLED. Let the order of
succession under Section 44 of the Local Government Code of 1991 take effect.20

The Motion for Reconsideration and


the Motion for Intervention

Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that "the
evidence is insufficient to justify the Resolution and that the said Resolution is contrary to law."21 He
raised the following contentions:22

1. The finding that he is not a Filipino citizen is not supported by the evidence consisting of his
Oath of Allegiance and the Affidavit of Renunciation, which show that he has substantially
complied with the requirements of R.A. No. 9225;

2. The use of his US passport subsequent to his renunciation of his American citizenship is not
tantamount to a repudiation of his Filipino citizenship, as he did not perform any act to swear
allegiance to a country other than the Philippines;

3. He used his US passport only because he was not informed of the issuance of his Philippine
passport, and that he used his Philippine passport after he obtained it;

4. Balua’s petition to cancel the certificate of candidacy of Arnado was filed out of time, and the
First Division’s treatment of the petition as one for disqualification constitutes grave abuse of
discretion amounting to excess of jurisdiction;23

5. He is undoubtedly the people’s choice as indicated by his winning the elections;

6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction over the
case; and

7. The proper remedy to question his citizenship is through a petition for quo warranto, which
should have been filed within ten days from his proclamation.

Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and who
garnered the second highest number of votes in the 2010 elections, intervened in the case and filed
before the COMELEC En Banc a Motion for Reconsideration together with an Opposition to Arnado’s
Amended Motion for Reconsideration. Maquiling argued that while the First Division correctly
disqualified Arnado, the order of succession under Section 44 of the Local Government Code is not
applicable in this case. Consequently, he claimed that the cancellation of Arnado’s candidacy and the
nullification of his proclamation, Maquiling, as the legitimate candidate who obtained the highest
number of lawful votes, should be proclaimed as the winner.
Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion for
Reconsideration. Arnado opposed all motions filed by Maquiling, claiming that intervention is prohibited
after a decision has already been rendered, and that as a second-placer, Maquiling undoubtedly lost the
elections and thus does not stand to be prejudiced or benefitted by the final adjudication of the case.

RULING OF THE COMELEC EN BANC

In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic Act
No. 6646, the Commission "shall continue with the trial and hearing of the action, inquiry or protest
even after the proclamation of the candidate whose qualifications for office is questioned."

As to Maquiling’s intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which allows
intervention in proceedings for disqualification even after elections if no final judgment has been
rendered, but went on further to say that Maquiling, as the second placer, would not be prejudiced by
the outcome of the case as it agrees with the dispositive portion of the Resolution of the First Division
allowing the order of succession under Section 44 of the Local Government Code to take effect.

The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for
disqualification, and ruled that the petition was filed well within the period prescribed by law,24 having
been filed on 28 April 2010, which is not later than 11 May 2010, the date of proclamation.

However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted
Arnado’s Motion for Reconsideration, on the following premises:

First:

By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his Philippine
citizenship as though he never became a citizen of another country. It was at that time, April 3, 2009,
that the respondent became a pure Philippine Citizen again.

xxxx

The use of a US passport … does not operate to revert back his status as a dual citizen prior to his
renunciation as there is no law saying such. More succinctly, the use of a US passport does not operate
to "un-renounce" what he has earlier on renounced. The First Division’s reliance in the case of In Re:
Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The petitioner in the said
case is a naturalized citizen who, after taking his oath as a naturalized Filipino, applied for the renewal of
his Portuguese passport. Strict policy is maintained in the conduct of citizens who are not natural born,
who acquire their citizenship by choice, thus discarding their original citizenship. The Philippine State
expects strict conduct of allegiance to those who choose to be its citizens. In the present case,
respondent is not a naturalized citizen but a natural born citizen who chose greener pastures by working
abroad and then decided to repatriate to supposedly help in the progress of Kauswagan. He did not
apply for a US passport after his renunciation. Thus the mentioned case is not on all fours with the case
at bar.

xxxx
The respondent presented a plausible explanation as to the use of his US passport. Although he applied
for a Philippine passport, the passport was only issued on June 18, 2009. However, he was not notified
of the issuance of his Philippine passport so that he was actually able to get it about three (3) months
later. Yet as soon as he was in possession of his Philippine passport, the respondent already used the
same in his subsequent travels abroad. This fact is proven by the respondent’s submission of a certified
true copy of his passport showing that he used the same for his travels on the following dates: January
31, 2010, April 16, 2010, May 20, 2010, January 12, 2010, March 31, 2010 and June 4, 2010. This then
shows that the use of the US passport was because to his knowledge, his Philippine passport was not yet
issued to him for his use. As probably pressing needs might be undertaken, the respondent used
whatever is within his control during that time.25

In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of foreign
passport is not one of the grounds provided for under Section 1 of Commonwealth Act No. 63 through
which Philippine citizenship may be lost.

"The application of the more assimilative principle of continuity of citizenship is more appropriate in this
case. Under said principle, once a person becomes a citizen, either by birth or naturalization, it is
assumed that he desires to continue to be a citizen, and this assumption stands until he voluntarily
denationalizes or expatriates himself. Thus, in the instant case respondent after reacquiring his
Philippine citizenship should be presumed to have remained a Filipino despite his use of his American
passport in the absence of clear, unequivocal and competent proof of expatriation. Accordingly, all
doubts should be resolved in favor of retention of citizenship."26

On the other hand, Commissioner Rene V. Sarmiento dissented, thus:

Respondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to the
United States. The latter’s continued use of his US passport and enjoyment of all the privileges of a US
citizen despite his previous renunciation of the afore-mentioned citizenship runs contrary to his
declaration that he chose to retain only his Philippine citizenship. Respondent’s submission with the
twin requirements was obviously only for the purpose of complying with the requirements for running
for the mayoralty post in connection with the May 10, 2010 Automated National and Local Elections.

Qualifications for elective office, such as citizenship, are continuing requirements; once any of them is
lost during his incumbency, title to the office itself is deemed forfeited. If a candidate is not a citizen at
the time he ran for office or if he lost his citizenship after his election to office, he is disqualified to serve
as such. Neither does the fact that respondent obtained the plurality of votes for the mayoralty post
cure the latter’s failure to comply with the qualification requirements regarding his citizenship.

Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the highest
number of votes does not validate his election. It has been held that where a petition for disqualification
was filed before election against a candidate but was adversely resolved against him after election, his
having obtained the highest number of votes did not make his election valid. His ouster from office does
not violate the principle of vox populi suprema est lex because the application of the constitutional and
statutory provisions on disqualification is not a matter of popularity. To apply it is to breath[e] life to the
sovereign will of the people who expressed it when they ratified the Constitution and when they elected
their representatives who enacted the law.27
THE PETITION BEFORE THE COURT

Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run for
public office despite his continued use of a US passport, and praying that Maquiling be proclaimed as
the winner in the 2010 mayoralty race in Kauswagan, Lanao del Norte.

Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc for
ruling that Arnado is a Filipino citizen despite his continued use of a US passport, Maquiling now seeks to
reverse the finding of the COMELEC En Banc that Arnado is qualified to run for public office.

Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Division’s
disqualification of Arnado, Maquiling also seeks the review of the applicability of Section 44 of the Local
Government Code, claiming that the COMELEC committed reversible error in ruling that "the succession
of the vice mayor in case the respondent is disqualified is in order."

There are three questions posed by the parties before this Court which will be addressed seriatim as the
subsequent questions hinge on the result of the first.

The first question is whether or not intervention is allowed in a disqualification case.

The second question is whether or not the use of a foreign passport after renouncing foreign citizenship
amounts to undoing a renunciation earlier made.

A better framing of the question though should be whether or not the use of a foreign passport after
renouncing foreign citizenship affects one’s qualifications to run for public office.

The third question is whether or not the rule on succession in the Local Government Code is applicable
to this case.

OUR RULING

Intervention of a rival candidate in a


disqualification case is proper when
there has not yet been any
proclamation of the winner.

Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion for
Reconsideration of the First Division Resolution before the COMELEC En Banc. As the candidate who
garnered the second highest number of votes, Maquiling contends that he has an interest in the
disqualification case filed against Arnado, considering that in the event the latter is disqualified, the
votes cast for him should be considered stray and the second-placer should be proclaimed as the winner
in the elections.

It must be emphasized that while the original petition before the COMELEC is one for cancellation of the
certificate of candidacy and / or disqualification, the COMELEC First Division and the COMELEC En Banc
correctly treated the petition as one for disqualification.
The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:

Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission 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.

Mercado v. Manzano28

clarified the right of intervention in a disqualification case. In that case, the Court said:

That petitioner had a right to intervene at that stage of the proceedings for the disqualification against
private respondent is clear from Section 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.29

Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc has
already ruled that Maquiling has not shown that the requisites for the exemption to the second-placer
rule set forth in Sinsuat v. COMELEC30 are present and therefore would not be prejudiced by the
outcome of the case, does not deprive Maquiling of the right to elevate the matter before this Court.

Arnado’s claim that the main case has attained finality as the original petitioner and respondents therein
have not appealed the decision of the COMELEC En Banc, cannot be sustained. The elevation of the case
by the intervenor prevents it from attaining finality. It is only after this Court has ruled upon the issues
raised in this instant petition that the disqualification case originally filed by Balua against Arnado will
attain finality.

The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of
representation as to one’s nationality and citizenship; it does not divest Filipino citizenship regained
by repatriation but it recants the Oath of Renunciation required to qualify one to run for an elective
position.

Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:

Those who retain or re-acquire 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:
xxxx

(2)Those seeking elective public in the Philippines shall meet the qualification 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 before any public officer
authorized to administer an oath.

x x x31

Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of
Allegiance and renounced his foreign citizenship. There is no question that after performing these twin
requirements required under Section 5(2) of R.A. No. 9225 or the Citizenship Retention and Re-
acquisition Act of 2003, he became eligible to run for public office.

Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when he
applied for repatriation before the Consulate General of the Philippines in San Francisco, USA, and again
on 03 April 2009 simultaneous with the execution of his Affidavit of Renunciation. By taking the Oath of
Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the time, however, he
likewise possessed American citizenship. Arnado had therefore become a dual citizen.

After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing an
Affidavit of Renunciation, thus completing the requirements for eligibility to run for public office.

By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the
effect of such renunciation under the laws of the foreign country.32

However, this legal presumption does not operate permanently and is open to attack when, after
renouncing the foreign citizenship, the citizen performs positive acts showing his continued possession
of a foreign citizenship.33

Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign
citizenship, he continued to use his US passport to travel in and out of the country before filing his
certificate of candidacy on 30 November 2009. The pivotal question to determine is whether he was
solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby rendering
him eligible to run for public office.

Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the date
he filed his COC, he used his US passport four times, actions that run counter to the affidavit of
renunciation he had earlier executed. By using his foreign passport, Arnado positively and voluntarily
represented himself as an American, in effect declaring before immigration authorities of both countries
that he is an American citizen, with all attendant rights and privileges granted by the United States of
America.

The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time,
only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign
citizenship and a full divestment of all civil and political rights granted by the foreign country which
granted the citizenship.
Mercado v. Manzano34 already hinted at this situation when the Court declared:

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 anyone who, in
electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.

While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No.
63 constituting renunciation and loss of Philippine citizenship,35 it is nevertheless an act which
repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of
another country to be qualified to run for a local elective position.

When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his
American citizenship, he recanted his Oath of Renunciation36 that he "absolutely and perpetually
renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA"37 and that he "divest(s)
himself of full employment of all civil and political rights and privileges of the United States of
America."38

We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of
his Filipino citizenship, which he acquired by repatriation. However, by representing himself as an
American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such
reversion was not retroactive; it took place the instant Arnado represented himself as an American
citizen by using his US passport.

This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid for
public office, as it effectively imposed on him a disqualification to run for an elective local position.

Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a positive
act of applying for naturalization. This is distinct from those considered dual citizens by virtue of birth,
who are not required by law to take the oath of renunciation as the mere filing of the certificate of
candidacy already carries with it an implied renunciation of foreign citizenship.39 Dual citizens by
naturalization, on the other hand, are required to take not only the Oath of Allegiance to the Republic of
the Philippines but also to personally renounce foreign citizenship in order to qualify as a candidate for
public office.

By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen
enjoying the rights and privileges of Filipino and American citizenship. He was qualified to vote, but by
the express disqualification under Section 40(d) of the Local Government Code,40 he was not qualified to
run for a local elective position.

In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or from 3
April 2009 until 14 April 2009, on which date he first used his American passport after renouncing his
American citizenship.
This Court has previously ruled that:

Qualifications for public office are continuing requirements and must be possessed not only at the time
of appointment or election or assumption of office but during the officer's entire tenure. Once any of
the required qualifications is lost, his title may be seasonably challenged. x x x.41

The citizenship requirement for elective public office is a continuing one. It must be possessed not just
at the time of the renunciation of the foreign citizenship but continuously. Any act which violates the
oath of renunciation opens the citizenship issue to attack.

We agree with the pronouncement of the COMELEC First Division that "Arnado’s act of consistently
using his US passport effectively negated his "Affidavit of Renunciation."42 This does not mean, that he
failed to comply with the twin requirements under R.A. No. 9225, for he in fact did.

It was after complying with the requirements that he performed positive acts which effectively
disqualified him from running for an elective public office pursuant to Section 40(d) of the Local
Government Code of 1991.

The purpose of the Local Government Code in disqualifying dual citizens from running for any elective
public office would be thwarted if we were to allow a person who has earlier renounced his foreign
citizenship, but who subsequently represents himself as a foreign citizen, to hold any public office.

Arnado justifies the continued use of his US passport with the explanation that he was not notified of
the issuance of his Philippine passport on 18 June 2009, as a result of which he was only able to obtain
his Philippine passport three (3) months later.43

The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought
naturalization as a Filipino citizen and later applied for the renewal of his Portuguese passport. That
Arnado did not apply for a US passport after his renunciation does not make his use of a US passport less
of an act that violated the Oath of Renunciation he took. It was still a positive act of representation as a
US citizen before the immigration officials of this country.

The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in possession of his
Philippine passport, the respondent already used the same in his subsequent travels abroad."44 We
cannot agree with the COMELEC. Three months from June is September. If indeed, Arnado used his
Philippine passport as soon as he was in possession of it, he would not have used his US passport on 24
November 2009.

Besides, Arnado’s subsequent use of his Philippine passport does not correct the fact that after he
renounced his foreign citizenship and prior to filing his certificate of candidacy, he used his US passport.
In the same way that the use of his foreign passport does not undo his Oath of Renunciation, his
subsequent use of his Philippine passport does not undo his earlier use of his US passport.

Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and
political rights accorded by the state to its citizens. It likewise demands the concomitant duty to
maintain allegiance to one’s flag and country. While those who acquire dual citizenship by choice are
afforded the right of suffrage, those who seek election or appointment to public office are required to
renounce their foreign citizenship to be deserving of the public trust. Holding public office demands full
and undivided allegiance to the Republic and to no other.

We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has
recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code applies to
his situation. He is disqualified not only from holding the public office but even from becoming a
candidate in the May 2010 elections.

We now resolve the next issue.

Resolving the third issue necessitates revisiting Topacio v. Paredes45 which is the jurisprudential spring
of the principle that a second-placer cannot be proclaimed as the winner in an election contest. This
doctrine must be re-examined and its soundness once again put to the test to address the ever-recurring
issue that a second-placer who loses to an ineligible candidate cannot be proclaimed as the winner in
the elections.

The Facts of the case are as follows:

On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office of
municipal president. The petitioner, Felipe Topacio, and the respondent, Maximo Abad, were opposing
candidates for that office. Topacio received 430 votes, and Abad 281. Abad contested the election upon
the sole ground that Topacio was ineligible in that he was reelected the second time to the office of the
municipal president on June 4, 1912, without the four years required by Act No. 2045 having
intervened.46

Abad thus questioned the eligibility of To p a c i o on the basis of a statutory prohibition for seeking a
second re-election absent the four year interruption.

The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be transferred from
an ineligible candidate to any other candidate when the sole question is the eligibility of the one
receiving a plurality of the legally cast ballots."47

This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing "the
effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the
elections x x x with that produced by declaring a person ineligible to hold such an office."

The complete sentence where the phrase is found is part of a comparison and contrast between the two
situations, thus:

Again, the effect of a decision that a candidate is not entitled to the office because of fraud or
irregularities in the elections is quite different from that produced by declaring a person ineligible to
hold such an office. In the former case the court, after an examination of the ballots may find that some
other person than the candidate declared to have received a plurality by the board of canvassers
actually received the greater number of votes, in which case the court issues its mandamus to the board
of canvassers to correct the returns accordingly; or it may find that the manner of holding the election
and the returns are so tainted with fraud or illegality that it cannot be determined who received a
plurality of the legally cast ballots. In the latter case, no question as to the correctness of the returns or
the manner of casting and counting the ballots is before the deciding power, and generally the only
result can be that the election fails entirely. In the former, we have a contest in the strict sense of the
word, because of the opposing parties are striving for supremacy. If it be found that the successful
candidate (according to the board of canvassers) obtained a plurality in an illegal manner, and that
another candidate was the real victor, the former must retire in favor of the latter. In the other case,
there is not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality
of the legally cast ballots. In the one case the question is as to who received a plurality of the legally cast
ballots; in the other, the question is confined to the personal character and circumstances of a single
individual.48 (Emphasis supplied)

Note that the sentence where the phrase is found starts with "In the other case, there is not, strictly
speaking, a contest" in contrast to the earlier statement, "In the former, we have a contest in the strict
sense of the word, because of the opposing parties are striving for supremacy."

The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory cannot be
transferred from an ineligible candidate to any other candidate when the sole question is the eligibility
of the one receiving a plurality of the legally cast ballots."

A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is
without jurisdiction to try a disqualification case based on the eligibility of the person who obtained the
highest number of votes in the election, its jurisdiction being confined "to determine which of the
contestants has been duly elected" the judge exceeded his jurisdiction when he "declared that no one
had been legally elected president of the municipality of Imus at the general election held in that town
on 4 June 1912" where "the only question raised was whether or not Topacio was eligible to be elected
and to hold the office of municipal president."

The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be
proclaimed in his stead. The Court therein ruled:

For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his
jurisdiction in declaring in those proceedings that no one was elected municipal president of the
municipality of Imus at the last general election; and that said order and all subsequent proceedings
based thereon are null and void and of no effect; and, although this decision is rendered on
respondents' answer to the order to show cause, unless respondents raised some new and additional
issues, let judgment be entered accordingly in 5 days, without costs. So ordered.49

On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to
stand on. It was a mere pronouncement of the Court comparing one process with another and
explaining the effects thereof. As an independent statement, it is even illogical.

Let us examine the statement:

"x x x the wreath of victory cannot be transferred from an ineligible candidate to any other candidate
when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots."

What prevents the transfer of the wreath of victory from the ineligible candidate to another candidate?
When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of the
legally cast ballots and ineligibility is thereafter established, what stops the Court from adjudging
another eligible candidate who received the next highest number of votes as the winner and bestowing
upon him that "wreath?"

An ineligible candidate who receives the highest number of votes is a wrongful winner. By express legal
mandate, he could not even have been a candidate in the first place, but by virtue of the lack of material
time or any other intervening circumstances, his ineligibility might not have been passed upon prior to
election date. Consequently, he may have had the opportunity to hold himself out to the electorate as a
legitimate and duly qualified candidate. However, notwithstanding the outcome of the elections, his
ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his qualifications as a
candidate but necessarily affects his right to hold public office. The number of ballots cast in his favor
cannot cure the defect of failure to qualify with the substantive legal requirements of eligibility to run
for public office.

The popular vote does not cure the


ineligibility of a candidate.

The ballot cannot override the constitutional and statutory requirements for qualifications and
disqualifications of candidates. When the law requires certain qualifications to be possessed or that
certain disqualifications be not possessed by persons desiring to serve as elective public officials, those
qualifications must be met before one even becomes a candidate. When a person who is not qualified is
voted for and eventually garners the highest number of votes, even the will of the electorate expressed
through the ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to
trample upon and rent asunder the very law that sets forth the qualifications and disqualifications of
candidates. We might as well write off our election laws if the voice of the electorate is the sole
determinant of who should be proclaimed worthy to occupy elective positions in our republic.

This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC50 when we pronounced:

x x x. 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.51 (Emphasis supplied)

This issue has also been jurisprudentially clarified in Velasco v. COMELEC52 where the Court ruled that
the ruling in Quizon and Saya-ang cannot be interpreted without qualifications lest "Election victory x x x
becomes a magic formula to bypass election eligibility requirements."53

We have ruled in the past that a candidate’s victory in the election may be considered a sufficient basis
to rule in favor of the candidate sought to be disqualified if the main issue involves defects in the
candidate’s certificate of candidacy. We said that while provisions relating to certificates of candidacy
are mandatory in terms, it is an established rule of interpretation as regards election laws, that
mandatory provisions requiring certain steps before elections will be construed as directory after the
elections, to give effect to the will of the people. We so ruled in Quizon v. COMELEC and Saya-ang v.
COMELEC:

The present case perhaps presents the proper time and opportunity to fine-tune our above ruling. We
say this with the realization that a blanket and unqualified reading and application of this ruling can be
fraught with dangerous significance for the rule of law and the integrity of our elections. For one, such
blanket/unqualified reading may provide a way around the law that effectively negates election
requirements aimed at providing the electorate with the basic information to make an informed choice
about a candidate’s eligibility and fitness for office.

The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC which
specifies the basic qualifications of local government officials. Equally susceptive of being rendered
toothless is Section 74 of the OEC that sets out what should be stated in a COC. Section 78 may likewise
be emasculated as mere delay in the resolution of the petition to cancel or deny due course to a COC
can render a Section 78 petition useless if a candidate with false COC data wins. To state the obvious,
candidates may risk falsifying their COC qualifications if they know that an election victory will cure any
defect that their COCs may have. Election victory then becomes a magic formula to bypass election
eligibility requirements. (Citations omitted)

What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any
disqualification, and employing every strategy to delay any disqualification case filed against him so he
can submit himself to the electorate and win, if winning the election will guarantee a disregard of
constitutional and statutory provisions on qualifications and disqualifications of candidates?

It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring that its
exercise respects the rule of law. To allow the sovereign voice spoken through the ballot to trump
constitutional and statutory provisions on qualifications and disqualifications of candidates is not
democracy or republicanism. It is electoral anarchy. When set rules are disregarded and only the
electorate’s voice spoken through the ballot is made to matter in the end, it precisely serves as an open
invitation for electoral anarchy to set in.1âwphi1

Maquiling is not a second-placer as


he obtained the highest number of
votes from among the qualified
candidates.

With Arnado’s disqualification, Maquiling then becomes the winner in the election as he obtained the
highest number of votes from among the qualified candidates.

We have ruled in the recent cases of Aratea v. COMELEC54 and Jalosjos v. COMELEC55 that a void COC
cannot produce any legal effect.

Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the
winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still
respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the sole
and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate candidates
form part of that voice and must also be respected.

As in any contest, elections are governed by rules that determine the qualifications and disqualifications
of those who are allowed to participate as players. When there are participants who turn out to be
ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any
of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates.

There is no need to apply the rule cited in Labo v. COMELEC56 that when the voters are well aware
within the realm of notoriety of a candidate’s disqualification and still cast their votes in favor said
candidate, then the eligible candidate obtaining the next higher number of votes may be deemed
elected. That rule is also a mere obiter that further complicated the rules affecting qualified candidates
who placed second to ineligible ones.

The electorate’s awareness of the candidate’s disqualification is not a prerequisite for the
disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes the
candidate ineligible. Knowledge by the electorate of a candidate’s disqualification is not necessary
before a qualified candidate who placed second to a disqualified one can be proclaimed as the winner.
The second-placer in the vote count is actually the first-placer among the qualified candidates.

That the disqualified candidate has already been proclaimed and has assumed office is of no moment.
The subsequent disqualification based on a substantive ground that existed prior to the filing of the
certificate of candidacy voids not only the COC but also the proclamation.

Section 6 of R.A. No. 6646 provides:

Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.

There was no chance for Arnado’s proclamation to be suspended under this rule because Arnado failed
to file his answer to the petition seeking his disqualification. Arnado only filed his Answer on 15 June
2010, long after the elections and after he was already proclaimed as the winner.

The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship. It does not
involve the commission of election offenses as provided for in the first sentence of Section 68 of the
Omnibus Election Code, the effect of which is to disqualify the individual from continuing as a candidate,
or if he has already been elected, from holding the office.
The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was both
a Filipino and an American citizen when he filed his certificate of candidacy. He was a dual citizen
disqualified to run for public office based on Section 40(d) of the Local Government Code.

Section 40 starts with the statement "The following persons are disqualified from running for any
elective local position." The prohibition serves as a bar against the individuals who fall under any of the
enumeration from participating as candidates in the election.

With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus rendered
void from the beginning. It could not have produced any other legal effect except that Arnado rendered
it impossible to effect his disqualification prior to the elections because he filed his answer to the
petition when the elections were conducted already and he was already proclaimed the winner.

To hold that such proclamation is valid is to negate the prohibitory character of the disqualification
which Arnado possessed even prior to the filing of the certificate of candidacy. The affirmation of
Arnado's disqualification, although made long after the elections, reaches back to the filing of the
certificate of candidacy. Arnado is declared to be not a candidate at all in the May 201 0 elections.

Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves
Maquiling as the qualified candidate who obtained the highest number of votes. Therefore, the rule on
succession under the Local Government Code will not apply.

WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the COMELEC En Bane
dated 2 February 2011 is hereby ANNULLED and SET ASIDE. Respondent ROMMEL ARNADO y CAGOCO is
disqualified from running for any local elective position. CASAN MACODE MAQUILING is hereby
DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte in the 10 May 2010 elections.

This Decision is immediately executory.

Let a copy of this Decision be served personally upon the parties and the Commission on Elections.

No pronouncement as to costs.

SO ORDERED.