G.R. No.
88831 November 8, 1990 including the plebiscite on February 2,1987 for the
MATEO CAASI, petitioner,
vs.
THE HON. COURT OF APPEALS and MERITO C.
MIGUEL, respondents.
G.R. No. 84508 November 13, 1990
ANECITO CASCANTE petitioner,
vs.
THE COMMISSION ON ELECTIONS and MERITO C.
MIGUEL, respondents.
Ireneo B. Orlino for petitioner in G.R. Nos. 88831 &
84508.
Montemayor & Montemayor Law Office for private
respondent.
GRIÑO-AQUINO, J.:
These two cases were consolidated because they have
the same objective; the disqualification under Section
68 of the Omnibus Election Code of the private
respondent, Merito Miguel for the position of municipal
mayor of Bolinao, Pangasinan, to which he was elected
in the local elections of January 18, 1988, on the
ground that he is a green card holder, hence, a
permanent resident of the United States of America,
not of Bolinao.
G.R. No. 84508 is a petition for review on certiorari of
the decision dated January 13, 1988 of the COMELEC
First Division, dismissing the three (3) petitions of
Anecito Cascante (SPC No. 87-551), Cederico Catabay
(SPC No. 87-595) and Josefino C. Celeste (SPC No.
87-604), for the disqualification of Merito C. Miguel
filed prior to the local elections on January 18, 1988.
G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et
al., is a petition for review of the decision dated June
21, 1989, of the Court of Appeals in CA-G.R. SP No.
14531 dismissing the petition for quo warranto filed by
Mateo Caasi, a rival candidate for the position of
municipal mayor of Bolinao, Pangasinan, also to
disqualify Merito Miguel on account of his being a
green card holder.
In his answer to both petitions, Miguel admitted that
he holds a green card issued to him by the US
Immigration Service, but he denied that he is a
permanent resident of the United States. He allegedly
obtained the green card for convenience in order that
he may freely enter the United States for his periodic
medical examination and to visit his children there. He
alleged that he is a permanent resident of Bolinao,
Pangasinan, that he voted in all previous elections,
1
ratification of the 1987 Constitution, and the
congressional elections on May 18,1987.
After hearing the consolidated petitions before it, the
COMELEC with the exception of Commissioner
Anacleto Badoy, Jr., dismissed the petitions on the
ground that:
The possession of a green card by the respondent
(Miguel) does not sufficiently establish that he has
abandoned his residence in the Philippines. On the
contrary, inspite (sic) of his green card, Respondent
has sufficiently indicated his intention to continuously
reside in Bolinao as shown by his having voted in
successive elections in said municipality. As the
respondent meets the basic requirements of
citizenship and residence for candidates to elective
local officials (sic) as provided for in Section 42 of the
Local Government Code, there is no legal obstacle to
his candidacy for mayor of Bolinao, Pangasinan. (p.
12, Rollo, G.R. No. 84508).
In his dissenting opinion, Commissioner Badoy, Jr.
opined that:
A green card holder being a permanent resident of or
an immigrant of a foreign country and respondent
having admitted that he is a green card holder, it is
incumbent upon him, under Section 68 of the Omnibus
Election Code, to prove that he "has waived his status
as a permanent resident or immigrant" to be qualified
to run for elected office. This respondent has not
done. (p. 13, Rollo, G.R. No. 84508.)
In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court
of Appeals and Merito Miguel, respondents," the
petitioner prays for a review of the decision dated
June 21, 1989 of the Court of Appeals in CA-G.R. SP
No. 14531 "Merito C. Miguel, petitioner vs. Hon.
Artemio R. Corpus, etc., respondents," reversing the
decision of the Regional Trial Court which denied
Miguel's motion to dismiss the petition for quo
warranto filed by Caasi. The Court of Appeals ordered
the regional trial court to dismiss and desist from
further proceeding in the quo warranto case. The
Court of Appeals held:
... it is pointless for the Regional Trial Court to hear
the case questioning the qualification of the petitioner
as resident of the Philippines, after the COMELEC has
ruled that the petitioner meets the very basic
requirements of citizenship and residence for
candidates to elective local officials (sic) and that
there is no legal obstacles (sic) for the candidacy of
the petitioner, considering that decisions of the
Regional Trial Courts on quo warranto cases under the
Election Code are appealable to the COMELEC. (p. 22,
Rollo, G.R. No. 88831.)
These two cases pose the twin issues of: (1) whether
or not a green card is proof that the holder is a
permanent resident of the United States, and (2)
whether respondent Miguel had waived his status as a
permanent resident of or immigrant to the U.S.A. prior
to the local elections on January 18, 1988.
Section 18, Article XI of the 1987 Constitution
provides:
Sec. 18. Public officers and employees owe the State
and this Constitution allegiance at all times, and any
public officer or employee who seeks to change his
citizenship or acquire the status of an immigrant of
another country during his tenure shall be dealt with
by law.
In the same vein, but not quite, Section 68 of the
Omnibus Election Code of the Philippines (B.P. Blg.
881) provides:
SEC. 68. Disqualifications ... 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. (Sec.
25, 1971, EC).
In view of current rumor that a good number of
elective and appointive public officials in the present
administration of President Corazon C. Aquino are
holders of green cards in foreign countries, their effect
on the holders' right to hold elective public office in
the Philippines is a question that excites much interest
in the outcome of this case.
In the case of Merito Miguel, the Court deems it
significant that in the "Application for Immigrant Visa
and Alien Registration" (Optional Form No. 230,
Department of State) which Miguel filled up in his own
handwriting and submitted to the US Embassy in
Manila before his departure for the United States in
1984, Miguel's answer to Question No. 21 therein
regarding his "Length of intended stay (if
permanently, so state)," Miguel's answer
was, "Permanently."
On its face, the green card that was subsequently
issued by the United States Department of Justice and
Immigration and Registration Service to the
respondent Merito C. Miguel identifies him in clear bold
letters as a RESIDENT ALIEN. On the back of the card,
the upper portion, the following information is printed:
Alien Registration Receipt Card.
2
Person identified by this card is entitled to reside
permanently and work in the United States." (Annex A
pp. 189-190, Rollo of G.R. No. 84508.)
Despite his vigorous disclaimer, Miguel's immigration
to the United States in 1984 constituted an
abandonment of his domicile and residence in the
Philippines. For he did not go to the United States
merely to visit his children or his doctor there; he
entered the limited States with the intention to have
there permanently as evidenced by his application for
an immigrant's (not a visitor's or tourist's) visa. Based
on that application of his, he was issued by the U.S.
Government the requisite green card or authority to
reside there permanently.
Immigration is the removing into one place from
another; the act of immigrating the entering into a
country with the intention of residing in it.
An immigrant is a person who removes into a country
for the purpose of permanent residence. As shown
infra 84, however, statutes sometimes give a broader
meaning to the term "immigrant." (3 CJS 674.)
As a resident alien in the U.S., Miguel owes temporary
and local allegiance to the U.S., the country in which
he resides (3 CJS 527). This is in return for the
protection given to him during the period of his
residence therein.
Aliens reading in the limited States, while they are
permitted to remain, are in general entitled to the
protection of the laws with regard to their rights of
person and property and to their civil and criminal
responsibility.
In general, aliens residing in the United States, while
they are permitted to remain are entitled to the
safeguards of the constitution with regard to their
rights of person and property and to their civil and
criminal responsibility. Thus resident alien friends are
entitled to the benefit of the provision of the
Fourteenth Amendment to the federal constitution that
no state shall deprive "any person" of life liberty, or
property without due process of law, or deny to any
person the equal protection of the law, and the
protection of this amendment extends to the right to
earn a livelihood by following the ordinary occupations
of life. So an alien is entitled to the protection of the
provision of the Fifth Amendment to the federal
constitution that no person shall be deprived of life,
liberty, or property without due process of law. (3 CJS
529-530.)
Section 18, Article XI of the 1987 Constitution which
provides that "any public officer or employee who
seeks to change his citizenship or acquire the status of
an immigrant of another country during his tenure
shall be dealt with by law" is not applicable to Merito
Miguel for he acquired the status of an immigrant of
the United States before he was elected to public
office, not "during his tenure" as mayor of Bolinao,
Pangasinan.
The law applicable to him is Section 68 of the Omnibus
Election Code (B.P. Blg. 881), which provides:
xxx xxx xxx
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 such 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.'
Did Miguel, by returning to the Philippines in
November 1987 and presenting himself as a candidate
for mayor of Bolinao in the January 18,1988 local
elections, waive his status as a permanent resident or
immigrant of the United States?
To be "qualified to run for elective office" in the
Philippines, the law requires that the candidate who is
a green card holder must have "waived his status as a
permanent resident or immigrant of a foreign
country." Therefore, his act of filing a certificate of
candidacy for elective office in the Philippines, did not
of itself constitute a waiver of his status as a
permanent resident or immigrant of the United States.
The waiver of his green card should be manifested by
some act or acts independent of and done prior to
filing his candidacy for elective office in this country.
Without such prior waiver, he was "disqualified to run
for any elective office" (Sec. 68, Omnibus Election
Code).
Respondent Merito Miguel admits that he holds a
green card, which proves that he is a permanent
resident or immigrant it of the United States, but the
records of this case are starkly bare of proof that he
had waived his status as such before he ran for
election as municipal mayor of Bolinao on January 18,
1988. We, therefore, hold that he was disqualified to
become a candidate for that office.
The reason for Section 68 of the Omnibus Election
Code is not hard to find. Residence in the municipality
where he intends to run for elective office for at least
one (1) year at the time of filing his certificate of
candidacy, is one of the qualifications that a candidate
for elective public office must possess (Sec. 42, Chap.
1, Title 2, Local Government Code). Miguel did not
possess that qualification because he was a permanent
resident of the United States and he resided in Bolinao
for a period of only three (3) months (not one year)
after his return to the Philippines in November 1987
3
and before he ran for mayor of that municipality on
January 18, 1988.
In banning from elective public office Philippine
citizens who are permanent residents or immigrants of
a foreign country, the Omnibus Election Code has laid
down a clear policy of excluding from the right to hold
elective public office those Philippine citizens who
possess dual loyalties and allegiance. The law has
reserved that privilege for its citizens who have cast
their lot with our country "without mental reservations
or purpose of evasion." The assumption is that those
who are resident aliens of a foreign country are
incapable of such entire devotion to the interest and
welfare of their homeland for with one eye on their
public duties here, they must keep another eye on
their duties under the laws of the foreign country of
their choice in order to preserve their status as
permanent residents thereof.
Miguel insists that even though he applied for
immigration and permanent residence in the United
States, he never really intended to live there
permanently, for all that he wanted was a green card
to enable him to come and go to the U.S. with ease.
In other words, he would have this Court believe that
he applied for immigration to the U.S. under false
pretenses; that all this time he only had one foot in
the United States but kept his other foot in the
Philippines. Even if that were true, this Court will not
allow itself to be a party to his duplicity by permitting
him to benefit from it, and giving him the best of both
worlds so to speak.
Miguel's application for immigrant status and
permanent residence in the U.S. and his possession of
a green card attesting to such status are conclusive
proof that he is a permanent resident of the U.S.
despite his occasional visits to the Philippines. The
waiver of such immigrant status should be as
indubitable as his application for it. Absent clear
evidence that he made an irrevocable waiver of that
status or that he surrendered his green card to the
appropriate U.S. authorities before he ran for mayor of
Bolinao in the local elections on January 18, 1988, our
conclusion is that he was disqualified to run for said
public office, hence, his election thereto was null and
void.
WHEREFORE, the appealed orders of the COMELEC
and the Court of Appeals in SPC Nos. 87-551, 87-595
and 87-604, and CA-G.R. SP No. 14531 respectively,
are hereby set aside. The election of respondent
Merito C. Miguel as municipal mayor of Bolinao,
Pangasinan is hereby annulled. Costs against the said
respondent.
SO ORDERED.
G.R. No. 119976 September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO, respondents.
KAPUNAN, J.:
A constitutional provision should be construed as to
give it effective operation and suppress the mischief at
which it is aimed.1 The 1987 Constitution mandates
that an aspirant for election to the House of
Representatives be "a registered voter in the district in
which he shall be elected, and a resident thereof for a
period of not less than one year immediately
preceding the election."2 The mischief which this
provision — reproduced verbatim from the 1973
Constitution — seeks to prevent is the possibility of a
"stranger or newcomer unacquainted with the
conditions and needs of a community and not
identified with the latter, from an elective office to
serve that community."3
Petitioner Imelda Romualdez-Marcos filed her
Certificate of Candidacy for the position of
Representative of the First District of Leyte with the
Provincial Election Supervisor on March 8, 1995,
providing the following information in item no. 8:4
RESIDENCE IN THE CONSTITUENCY
WHERE I SEEK TO BE ELECTED
IMMEDIATELY PRECEDING THE
ELECTION: __________ Years
and seven Months.
On March 23, 1995, private respondent Cirilo Roy
Montejo, the incumbent Representative of the First
District of Leyte and a candidate for the same position,
filed a "Petition for Cancellation and
Disqualification"5 with the Commission on Elections
alleging that petitioner did not meet the constitutional
requirement for residency. In his petition, private
respondent contended that Mrs. Marcos lacked the
Constitution's one year residency requirement for
candidates for the House of Representatives on the
evidence of declarations made by her in Voter
Registration Record 94-No. 33497726 and in her
Certificate of Candidacy. He prayed that "an order be
issued declaring (petitioner) disqualified and canceling
the certificate of candidacy."7
On March 29, 1995, petitioner filed an
Amended/Corrected Certificate of Candidacy, changing
the entry "seven" months to "since childhood" in item
no. 8 of the amended certificate.8 On the same day,
the Provincial Election Supervisor of Leyte informed
petitioner that:
4
[T]his office cannot receive or accept the
aforementioned Certificate of Candidacy on the ground
that it is filed out of time, the deadline for the filing of
the same having already lapsed on March 20, 1995.
The Corrected/Amended Certificate of Candidacy
should have been filed on or before the March 20,
1995 deadline.9
Consequently, petitioner filed the Amended/Corrected
Certificate of Candidacy with the COMELEC's Head
Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's
petition in SPA No. 95-009 was likewise filed with the
head office on the same day. In said Answer,
petitioner averred that the entry of the word "seven"
in her original Certificate of Candidacy was the result
of an "honest misinterpretation" 10 which she sought
to rectify by adding the words "since childhood" in her
Amended/Corrected Certificate of Candidacy and that
"she has always maintained Tacloban City as her
domicile or residence. 11 Impugning respondent's
motive in filing the petition seeking her
disqualification, she noted that:
When respondent (petitioner herein) announced that
she was intending to register as a voter in Tacloban
City and run for Congress in the First District of Leyte,
petitioner immediately opposed her intended
registration by writing a letter stating that "she is not
a resident of said city but of Barangay Olot, Tolosa,
Leyte. After respondent had registered as a voter in
Tolosa following completion of her six month actual
residence therein, petitioner filed a petition with the
COMELEC to transfer the town of Tolosa from the First
District to the Second District and pursued such a
move up to the Supreme Court, his purpose being to
remove respondent as petitioner's opponent in the
congressional election in the First District. He also filed
a bill, along with other Leyte Congressmen, seeking
the creation of another legislative district to remove
the town of Tolosa out of the First District, to achieve
his purpose. However, such bill did not pass the
Senate. Having failed on such moves, petitioner now
filed the instant petition for the same objective, as it is
obvious that he is afraid to submit along with
respondent for the judgment and verdict of the
electorate of the First District of Leyte in an honest,
orderly, peaceful, free and clean elections on May 8,
1995. 12
On April 24, 1995, the Second Division of the
Commission on Elections (COMELEC), by a vote of 2 to
1, 13 came up with a Resolution 1) finding private
respondent's Petition for Disqualification in SPA 95-
009 meritorious; 2) striking off petitioner's
Corrected/Amended Certificate of Candidacy of March
31, 1995; and 3) canceling her original Certificate of
Candidacy. 14 Dealing with two primary issues,
namely, the validity of amending the original
Certificate of Candidacy after the lapse of the deadline
for filing certificates of candidacy, and petitioner's
compliance with the one year residency requirement,
the Second Division held:
Respondent raised the affirmative defense in her
Answer that the printed word "Seven" (months) was a
result of an "honest misinterpretation or honest
mistake" on her part and, therefore, an amendment
should subsequently be allowed. She averred that she
thought that what was asked was her "actual and
physical" presence in Tolosa and not residence of
origin or domicile in the First Legislative District, to
which she could have responded "since childhood." In
an accompanying affidavit, she stated that her
domicile is Tacloban City, a component of the First
District, to which she always intended to return
whenever absent and which she has never abandoned.
Furthermore, in her memorandum, she tried to
discredit petitioner's theory of disqualification by
alleging that she has been a resident of the First
Legislative District of Leyte since childhood, although
she only became a resident of the Municipality of
Tolosa for seven months. She asserts that she has
always been a resident of Tacloban City, a component
of the First District, before coming to the Municipality
of Tolosa.
Along this point, it is interesting to note that prior to
her registration in Tolosa, respondent announced that
she would be registering in Tacloban City so that she
can be a candidate for the District. However, this
intention was rebuffed when petitioner wrote the
Election Officer of Tacloban not to allow respondent
since she is a resident of Tolosa and not Tacloban. She
never disputed this claim and instead implicitly
acceded to it by registering in Tolosa.
This incident belies respondent's claim of "honest
misinterpretation or honest mistake." Besides, the
Certificate of Candidacy only asks for RESIDENCE.
Since on the basis of her Answer, she was quite aware
of "residence of origin" which she interprets to be
Tacloban City, it is curious why she did not cite
Tacloban City in her Certificate of Candidacy. Her
explanation that she thought what was asked was her
actual and physical presence in Tolosa is not easy to
believe because there is none in the question that
insinuates about Tolosa. In fact, item no. 8 in the
Certificate of Candidacy speaks clearly of
"Residency in the CONSTITUENCY where I seek to be
elected immediately preceding the election." Thus, the
explanation of respondent fails to be persuasive.
From the foregoing, respondent's defense of an honest
mistake or misinterpretation, therefore, is devoid of
merit.
To further buttress respondent's contention that an
amendment may be made, she cited the case of Alialy
v. COMELEC (2 SCRA 957). The reliance of respondent
on the case of Alialy is misplaced. The case only
applies to the "inconsequential deviations which
5
cannot affect the result of the election, or deviations
from provisions intended primarily to secure timely
and orderly conduct of elections." The Supreme Court
in that case considered the amendment only as a
matter of form. But in the instant case, the
amendment cannot be considered as a matter of form
or an inconsequential deviation. The change in the
number of years of residence in the place where
respondent seeks to be elected is a substantial matter
which determines her qualification as a candidacy,
specially those intended to suppress, accurate material
representation in the original certificate which
adversely affects the filer. To admit the amended
certificate is to condone the evils brought by the
shifting minds of manipulating candidate, of the
detriment of the integrity of the election.
Moreover, to allow respondent to change the seven
(7) month period of her residency in order to prolong
it by claiming it was "since childhood" is to allow an
untruthfulness to be committed before this
Commission. The arithmetical accuracy of the 7
months residency the respondent indicated in her
certificate of candidacy can be gleaned from her entry
in her Voter's Registration Record accomplished on
January 28, 1995 which reflects that she is a resident
of Brgy. Olot, Tolosa, Leyte for 6 months at the time
of the said registration (Annex A, Petition). Said
accuracy is further buttressed by her letter to the
election officer of San Juan, Metro Manila, dated
August 24, 1994, requesting for the cancellation of her
registration in the Permanent List of Voters thereat so
that she can be re-registered or transferred to Brgy.
Olot, Tolosa, Leyte. The dates of these three (3)
different documents show the respondent's consistent
conviction that she has transferred her residence to
Olot, Tolosa, Leyte from Metro Manila only for such
limited period of time, starting in the last week of
August 1994 which on March 8, 1995 will only sum up
to 7 months. The Commission, therefore, cannot be
persuaded to believe in the respondent's contention
that it was an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected
Certificate of Candidacy cannot be admitted by this
Commission.
xxx xxx xxx
Anent the second issue, and based on the foregoing
discussion, it is clear that respondent has not complied
with the one year residency requirement of the
Constitution.
In election cases, the term "residence" has always
been considered as synonymous with "domicile" which
imports not only the intention to reside in a fixed place
but also personal presence in-that place, coupled with
conduct indicative of such intention. Domicile denotes
a fixed permanent residence to which when absent for
business or pleasure, or for like reasons, one intends
to return. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil
294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In
respondent's case, when she returned to the
Philippines in 1991, the residence she chose was not
Tacloban but San Juan, Metro Manila. Thus,
her animus revertendi is pointed to Metro Manila and
not Tacloban.
This Division is aware that her claim that she has been
a resident of the First District since childhood is
nothing more than to give her a color of qualification
where she is otherwise constitutionally disqualified. It
cannot hold ground in the face of the facts admitted
by the respondent in her affidavit. Except for the time
that she studied and worked for some years after
graduation in Tacloban City, she continuously lived in
Manila. In 1959, after her husband was elected
Senator, she lived and resided in San Juan, Metro
Manila where she was a registered voter. In 1965, she
lived in San Miguel, Manila where she was again a
registered voter. In 1978, she served as member of
the Batasang Pambansa as the representative of the
City of Manila and later on served as the Governor of
Metro Manila. She could not have served these
positions if she had not been a resident of the City of
Manila. Furthermore, when she filed her certificate of
candidacy for the office of the President in 1992, she
claimed to be a resident of San Juan, Metro Manila. As
a matter of fact on August 24, 1994, respondent wrote
a letter with the election officer of San Juan, Metro
Manila requesting for the cancellation of her
registration in the permanent list of voters that she
may be re-registered or transferred to Barangay Olot,
Tolosa, Leyte. These facts manifest that she could not
have been a resident of Tacloban City since childhood
up to the time she filed her certificate of candidacy
because she became a resident of many places,
including Metro Manila. This debunks her claim that
prior to her residence in Tolosa, Leyte, she was a
resident of the First Legislative District of Leyte since
childhood.
In this case, respondent's conduct reveals her lack of
intention to make Tacloban her domicile. She
registered as a voter in different places and on several
occasions declared that she was a resident of Manila.
Although she spent her school days in Tacloban, she is
considered to have abandoned such place when she
chose to stay and reside in other different places. In
the case of Romualdez vs. RTC (226 SCRA 408) the
Court explained how one acquires a new domicile by
choice. There must concur: (1) residence or bodily
presence in the new locality; (2) intention to remain
there; and (3) intention to abandon the old domicile.
In other words there must basically be animus
manendi with animus non revertendi. When
respondent chose to stay in Ilocos and later on in
Manila, coupled with her intention to stay there by
registering as a voter there and expressly declaring
that she is a resident of that place, she is deemed to
6
have abandoned Tacloban City, where she spent her
childhood and school days, as her place of domicile.
Pure intention to reside in that place is not sufficient,
there must likewise be conduct indicative of such
intention. Respondent's statements to the effect that
she has always intended to return to Tacloban, without
the accompanying conduct to prove that intention, is
not conclusive of her choice of residence. Respondent
has not presented any evidence to show that her
conduct, one year prior the election, showed intention
to reside in Tacloban. Worse, what was evident was
that prior to her residence in Tolosa, she had been a
resident of Manila.
It is evident from these circumstances
that she was not a resident of the First
District of Leyte "since childhood."
To further support the assertion that
she could have not been a resident of
the First District of Leyte for more than
one year, petitioner correctly pointed
out that on January 28, 1995
respondent registered as a voter at
precinct No. 18-A of Olot, Tolosa,
Leyte. In doing so, she placed in her
Voter Registration Record that she
resided in the municipality of Tolosa
for a period of six months. This may
be inconsequential as argued by the
respondent since it refers only to her
residence in Tolosa, Leyte. But her
failure to prove that she was a
resident of the First District of Leyte
prior to her residence in Tolosa leaves
nothing but a convincing proof that
she had been a resident of the district
for six months only. 15
In a Resolution promulgated a day before the May 8,
1995 elections, the COMELEC en banc denied
petitioner's Motion for Reconsideration 16 of the April
24, 1995 Resolution declaring her not qualified to run
for the position of Member of the House of
Representatives for the First Legislative District of
Leyte. 17 The Resolution tersely stated:
After deliberating on the Motion for
Reconsideration, the Commission
RESOLVED to DENY it, no new
substantial matters having been raised
therein to warrant re-examination of
the resolution granting the petition for
disqualification. 18
On May 11, 1995, the COMELEC issued a Resolution
allowing petitioner's proclamation should the results of
the canvass show that she obtained the highest
number of votes in the congressional elections in the
First District of Leyte. On the same day, however, the
COMELEC reversed itself and issued a second
Resolution directing that the proclamation of petitioner
be suspended in the event that she obtains the
highest number of votes. 19
In a Supplemental Petition dated 25 May 1995,
petitioner averred that she was the overwhelming
winner of the elections for the congressional seat in
the First District of Leyte held May 8, 1995 based on
the canvass completed by the Provincial Board of
Canvassers on May 14, 1995. Petitioner alleged that
the canvass showed that she obtained a total of
70,471 votes compared to the 36,833 votes received
by Respondent Montejo. A copy of said Certificate of
Canvass was annexed to the Supplemental Petition.
On account of the Resolutions disqualifying petitioner
from running for the congressional seat of the First
District of Leyte and the public respondent's
Resolution suspending her proclamation, petitioner
comes to this court for relief.
Petitioner raises several issues in her Original and
Supplemental Petitions. The principal issues may be
classified into two general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a
resident, for election purposes, of the
First District of Leyte for a period of
one year at the time of the May 9,
1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly
exercised its jurisdiction in
disqualifying petitioner outside the
period mandated by the Omnibus
Election Code for disqualification cases
under Article 78 of the said Code.
b) After the Elections
Whether or not the House of
Representatives Electoral Tribunal
assumed exclusive jurisdiction over
the question of petitioner's
qualifications after the May 8, 1995
elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second
Division reveals a startling confusion in the application
of settled concepts of "Domicile" and "Residence" in
election law. While the COMELEC seems to be in
7
agreement with the general proposition that for the
purposes of election law, residence is synonymous
with domicile, the Resolution reveals a tendency to
substitute or mistake the concept of domicile for
actual residence, a conception not intended for the
purpose of determining a candidate's qualifications for
election to the House of Representatives as required
by the 1987 Constitution. As it were, residence, for
the purpose of meeting the qualification for an elective
position, has a settled meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the
exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their
place of habitual residence." In Ong
vs. Republic 20 this court took the concept of domicile
to mean an individual's "permanent home", "a place to
which, whenever absent for business or for pleasure,
one intends to return, and depends on facts and
circumstances in the sense that they disclose
intent." 21Based on the foregoing, domicile includes
the twin elements of "the fact of residing or physical
presence in a fixed place" and animus manendi, or the
intention of returning there permanently.
Residence, in its ordinary conception, implies the
factual relationship of an individual to a certain place.
It is the physical presence of a person in a given area,
community or country. The essential distinction
between residence and domicile in law is that
residence involves the intent to leave when the
purpose for which the resident has taken up his abode
ends. One may seek a place for purposes such as
pleasure, business, or health. If a person's intent be to
remain, it becomes his domicile; if his intent is to
leave as soon as his purpose is established it is
residence. 22 It is thus, quite perfectly normal for an
individual to have different residences in various
places. However, a person can only have a single
domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of
choice. In Uytengsu vs. Republic, 23 we laid this
distinction quite clearly:
There is a difference between domicile and residence.
"Residence" is used to indicate a place of abode,
whether permanent or temporary; "domicile" denotes
a fixed permanent residence to which, when absent,
one has the intention of returning. A man may have a
residence in one place and a domicile in another.
Residence is not domicile, but domicile is residence
coupled with the intention to remain for an unlimited
time. A man can have but one domicile for the same
purpose at any time, but he may have numerous
places of residence. His place of residence is generally
his place of domicile, but it is not by any means
necessarily so since no length of residence without
intention of remaining will constitute domicile.
For political purposes the concepts of residence and
domicile are dictated by the peculiar criteria of political
laws. As these concepts have evolved in our election
law, what has clearly and unequivocally emerged is
the fact that residence for election purposes is used
synonymously with domicile.
In Nuval vs. Guray, 24 the Court held that "the term
residence. . . is synonymous with domicile which
imports not only intention to reside in a fixed place,
but also personal presence in that place, coupled with
conduct indicative of such intention." 25 Larena
vs. Teves 26 reiterated the same doctrine in a case
involving the qualifications of the respondent therein
to the post of Municipal President of Dumaguete,
Negros Oriental. Faypon vs. Quirino, 27 held that the
absence from residence to pursue studies or practice a
profession or registration as a voter other than in the
place where one is elected does not constitute loss of
residence. 28 So settled is the concept (of domicile) in
our election law that in these and other election law
cases, this Court has stated that the mere absence of
an individual from his permanent residence without
the intention to abandon it does not result in a loss or
change of domicile.
The deliberations of the 1987 Constitution on the
residence qualification for certain elective positions
have placed beyond doubt the principle that when the
Constitution speaks of "residence" in election law, it
actually means only "domicile" to wit:
Mr. Nolledo: With respect to Section 5, I remember
that in the 1971 Constitutional Convention, there was
an attempt to require residence in the place not less
than one year immediately preceding the day of the
elections. So my question is: What is the Committee's
concept of residence of a candidate for the legislature?
Is it actual residence or is it the concept of domicile or
constructive residence?
Mr. Davide: Madame President, insofar as the regular
members of the National Assembly are concerned, the
proposed section merely provides, among others, "and
a resident thereof", that is, in the district for a period
of not less than one year preceding the day of the
election. This was in effect lifted from the 1973
Constitution, the interpretation given to it was
domicile. 29
xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7,
page 2. I think Commissioner Nolledo has raised the
same point that "resident" has been interpreted at
times as a matter of intention rather than actual
residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman
consider at the proper time to go back to actual
residence rather than mere intention to reside?
8
Mr. De los Reyes: But we might encounter some
difficulty especially considering that a provision in the
Constitution in the Article on Suffrage says that
Filipinos living abroad may vote as enacted by law. So,
we have to stick to the original concept that it should
be by domicile and not physical residence. 30
In Co vs. Electoral Tribunal of the House of
Representatives, 31 this Court concluded that the
framers of the 1987 Constitution obviously adhered to
the definition given to the term residence in election
law, regarding it as having the same meaning as
domicile. 32
In the light of the principles just discussed, has
petitioner Imelda Romualdez Marcos satisfied the
residency requirement mandated by Article VI, Sec. 6
of the 1987 Constitution? Of what significance is the
questioned entry in petitioner's Certificate of
Candidacy stating her residence in the First Legislative
District of Leyte as seven (7) months?
It is the fact of residence, not a statement in a
certificate of candidacy which ought to be decisive in
determining whether or not and individual has
satisfied the constitution's residency qualification
requirement. The said statement becomes material
only when there is or appears to be a deliberate
attempt to mislead, misinform, or hide a fact which
would otherwise render a candidate ineligible. It would
be plainly ridiculous for a candidate to deliberately and
knowingly make a statement in a certificate of
candidacy which would lead to his or her
disqualification.
It stands to reason therefore, that petitioner merely
committed an honest mistake in jotting the word
"seven" in the space provided for the residency
qualification requirement. The circumstances leading
to her filing the questioned entry obviously resulted in
the subsequent confusion which prompted petitioner
to write down the period of her actual stay in Tolosa,
Leyte instead of her period of residence in the First
district, which was "since childhood" in the space
provided. These circumstances and events are amply
detailed in the COMELEC's Second Division's
questioned resolution, albeit with a different
interpretation. For instance, when herein petitioner
announced that she would be registering in Tacloban
City to make her eligible to run in the First District,
private respondent Montejo opposed the same,
claiming that petitioner was a resident of Tolosa, not
Tacloban City. Petitioner then registered in her place
of actual residence in the First District, which is
Tolosa, Leyte, a fact which she subsequently noted
down in her Certificate of Candidacy. A close look at
said certificate would reveal the possible source of the
confusion: the entry for residence (Item No. 7) is
followed immediately by the entry for residence in the
constituency where a candidate seeks election thus:
 7. RESIDENCE (complete constitute loss of residence. Thus, the assertion by the
Address): Brgy. Olot, Tolosa, Leyte COMELEC that "she could not have been a resident of
Tacloban City since childhood up to the time she filed
POST OFFICE ADDRESS FOR her certificate of candidacy because she became a
ELECTION PURPOSES: Brgy. Olot, resident of many places" flies in the face of settled
Tolosa, Leyte jurisprudence in which this Court carefully made
distinctions between (actual) residence and domicile
for election law purposes. In Larena
8. RESIDENCE IN THE CONSTITUENCY
vs. Teves, 33 supra, we stressed:
WHERE I SEEK TO
BE ELECTED IMMEDIATELY
PRECEDING THE [T]his court is of the opinion and so holds that a
ELECTION:_________ Years person who has his own house wherein he lives with
and Seven Months. his family in a municipality without having ever had
the intention of abandoning it, and without having
lived either alone or with his family in another
Having been forced by private respondent to register
municipality, has his residence in the former
in her place of actual residence in Leyte instead of
municipality, notwithstanding his having registered as
petitioner's claimed domicile, it appears that petitioner
an elector in the other municipality in question and
had jotted down her period of stay in her legal
having been a candidate for various insular and
residence or domicile. The juxtaposition of entries in
provincial positions, stating every time that he is a
Item 7 and Item 8 — the first requiring actual
resident of the latter municipality.
residence and the second requiring domicile — coupled
with the circumstances surrounding petitioner's
registration as a voter in Tolosa obviously led to her More significantly, in Faypon vs. Quirino, 34 We
writing down an unintended entry for which she could explained that:
be disqualified. This honest mistake should not,
however, be allowed to negate the fact of residence in A citizen may leave the place of his birth to look for
the First District if such fact were established by "greener pastures," as the saying goes, to improve his
means more convincing than a mere entry on a piece lot, and that, of course includes study in other places,
of paper. practice of his avocation, or engaging in business.
When an election is to be held, the citizen who left his
We now proceed to the matter of petitioner's domicile. birthplace to improve his lot may desire to return to
his native town to cast his ballot but for professional
or business reasons, or for any other reason, he may
In support of its asseveration that petitioner's domicile
not absent himself from his professional or business
could not possibly be in the First District of Leyte, the
activities; so there he registers himself as voter as he
Second Division of the COMELEC, in its assailed
has the qualifications to be one and is not willing to
Resolution of April 24,1995 maintains that "except for
give up or lose the opportunity to choose the officials
the time when (petitioner) studied and worked for
who are to run the government especially in national
some years after graduation in Tacloban City, she
elections. Despite such registration, the animus
continuously lived in Manila." The Resolution
revertendi to his home, to his domicile or residence of
additionally cites certain facts as indicative of the fact
origin has not forsaken him. This may be the
that petitioner's domicile ought to be any place where
explanation why the registration of a voter in a place
she lived in the last few decades except Tacloban,
other than his residence of origin has not been
Leyte. First, according to the Resolution, petitioner, in
deemed sufficient to constitute abandonment or loss
1959, resided in San Juan, Metro Manila where she
of such residence. It finds justification in the natural
was also registered voter. Then, in 1965, following the
desire and longing of every person to return to his
election of her husband to the Philippine presidency,
place of birth. This strong feeling of attachment to the
she lived in San Miguel, Manila where she as a voter.
place of one's birth must be overcome by positive
In 1978 and thereafter, she served as a member of
proof of abandonment for another.
the Batasang Pambansa and Governor of Metro
Manila. "She could not, have served these positions if
she had not been a resident of Metro Manila," the From the foregoing, it can be concluded that in its
COMELEC stressed. Here is where the confusion lies. above-cited statements supporting its proposition that
petitioner was ineligible to run for the position of
Representative of the First District of Leyte, the
We have stated, many times in the past, that an
COMELEC was obviously referring to petitioner's
individual does not lose his domicile even if he has
various places of (actual) residence, not her domicile.
lived and maintained residences in different places.
In doing so, it not only ignored settled jurisprudence
Residence, it bears repeating, implies a factual
on residence in election law and the deliberations of
relationship to a given place for various purposes. The
the constitutional commission but also the provisions
absence from legal residence or domicile to pursue a
of the Omnibus Election Code (B.P. 881). 35
profession, to study or to do other things of a
temporary or semi-permanent nature does not

9
What is undeniable, however, are the following set of
facts which establish the fact of petitioner's domicile,
which we lift verbatim from the COMELEC's Second
Division's assailed Resolution: 36
In or about 1938 when respondent was a little over 8
years old, she established her domicile in Tacloban,
Leyte (Tacloban City). She studied in the Holy Infant
Academy in Tacloban from 1938 to 1949 when she
graduated from high school. She pursued her college
studies in St. Paul's College, now Divine Word
University in Tacloban, where she earned her degree
in Education. Thereafter, she taught in the Leyte
Chinese School, still in Tacloban City. In 1952 she
went to Manila to work with her cousin, the late
speaker Daniel Z. Romualdez in his office in the House
of Representatives. In 1954, she married ex-President
Ferdinand E. Marcos when he was still a congressman
of Ilocos Norte and registered there as a voter. When
her husband was elected Senator of the Republic in
1959, she and her husband lived together in San Juan,
Rizal where she registered as a voter. In 1965, when
her husband was elected President of the Republic of
the Philippines, she lived with him in Malacanang
Palace and registered as a voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her
family were abducted and kidnapped to Honolulu,
Hawaii. In November 1991, she came home to Manila.
In 1992, respondent ran for election as President of
the Philippines and filed her Certificate of Candidacy
wherein she indicated that she is a resident and
registered voter of San Juan, Metro Manila.
Applying the principles discussed to the facts found by
COMELEC, what is inescapable is that petitioner held
various residences for different purposes during the
last four decades. None of these purposes
unequivocally point to an intention to abandon her
domicile of origin in Tacloban, Leyte. Moreover, while
petitioner was born in Manila, as a minor she naturally
followed the domicile of her parents. She grew up in
Tacloban, reached her adulthood there and eventually
established residence in different parts of the country
for various reasons. Even during her husband's
presidency, at the height of the Marcos Regime's
powers, petitioner kept her close ties to her domicile
of origin by establishing residences in Tacloban,
celebrating her birthdays and other important personal
milestones in her home province, instituting well-
publicized projects for the benefit of her province and
hometown, and establishing a political power base
where her siblings and close relatives held positions of
power either through the ballot or by appointment,
always with either her influence or consent. These
well-publicized ties to her domicile of origin are part of
the history and lore of the quarter century of Marcos
power in our country. Either they were entirely
ignored in the COMELEC'S Resolutions, or the majority
of the COMELEC did not know what the rest of the
country always knew: the fact of petitioner's domicile
in Tacloban, Leyte.
10
Private respondent in his Comment, contends that
Tacloban was not petitioner's domicile of origin
because she did not live there until she was eight
years old. He avers that after leaving the place in
1952, she "abandoned her residency (sic) therein for
many years and . . . (could not) re-establish her
domicile in said place by merely expressing her
intention to live there again." We do not agree.
First, minor follows the domicile of his parents. As
domicile, once acquired is retained until a new one is
gained, it follows that in spite of the fact of petitioner's
being born in Manila, Tacloban, Leyte was her domicile
of origin by operation of law. This domicile was not
established only when her father brought his family
back to Leyte contrary to private respondent's
averments.
Second, domicile of origin is not easily lost. To
successfully effect a change of domicile, one must
demonstrate: 37
1. An actual removal or an actual
change of domicile;
2. A bona fide intention of abandoning
the former place of residence and
establishing a new one; and
3. Acts which correspond with the
purpose.
In the absence of clear and positive proof based on
these criteria, the residence of origin should be
deemed to continue. Only with evidence showing
concurrence of all three requirements can the
presumption of continuity or residence be rebutted, for
a change of residence requires an actual and
deliberate abandonment, and one cannot have two
legal residences at the same time. 38 In the case at
bench, the evidence adduced by private respondent
plainly lacks the degree of persuasiveness required to
convince this court that an abandonment of domicile
of origin in favor of a domicile of choice indeed
occurred. To effect an abandonment requires the
voluntary act of relinquishing petitioner's former
domicile with an intent to supplant the former domicile
with one of her own choosing (domicilium
voluntarium).
In this connection, it cannot be correctly argued that
petitioner lost her domicile of origin by operation of
law as a result of her marriage to the late President
Ferdinand E. Marcos in 1952. For there is a clearly
established distinction between the Civil Code
concepts of "domicile" and "residence." 39 The
presumption that the wife automatically gains the
husband's domicile by operation of law upon marriage
cannot be inferred from the use of the term
"residence" in Article 110 of the Civil Code because the
Civil Code is one area where the two concepts are well
delineated. Dr. Arturo Tolentino, writing on this
specific area explains:
In the Civil Code, there is an obvious
difference between domicile and
residence. Both terms imply relations
between a person and a place; but in
residence, the relation is one of fact
while in domicile it is legal or juridical,
independent of the necessity of
physical presence. 40
Article 110 of the Civil Code provides:
Art. 110. — The husband shall fix the
residence of the family. But the court
may exempt the wife from living with
the husband if he should live abroad
unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to
the concepts of domicile or residence as they affect
the female spouse upon marriage yields nothing which
would suggest that the female spouse automatically
loses her domicile of origin in favor of the husband's
choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the
Spanish Civil Code of 1889 which states:
La mujer esta obligada a seguir a su
marido donde quiera que fije su
residencia. Los Tribunales, sin
embargo, podran con justa causa
eximirla de esta obligacion cuando el
marido transende su residencia a
ultramar o' a pais extranjero.
Note the use of the phrase "donde quiera su fije de
residencia" in the aforequoted article, which means
wherever (the husband) wishes to establish residence.
This part of the article clearly contemplates only actual
residence because it refers to a positive act of fixing a
family home or residence. Moreover, this
interpretation is further strengthened by the phrase
"cuando el marido translade su residencia" in the
same provision which means, "when the husband shall
transfer his residence," referring to another positive
act of relocating the family to another home or place
of actual residence. The article obviously cannot be
understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the
possibility of transferring from one place to another
not only once, but as often as the husband may deem
fit to move his family, a circumstance more consistent
with the concept of actual residence.
The right of the husband to fix the actual residence is
in harmony with the intention of the law to strengthen
and unify the family, recognizing the fact that the
husband and the wife bring into the marriage different
11
domiciles (of origin). This difference could, for the
sake of family unity, be reconciled only by allowing the
husband to fix a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found
under Title V under the heading: RIGHTS AND
OBLIGATIONS BETWEEN HUSBAND AND WIFE.
Immediately preceding Article 110 is Article 109 which
obliges the husband and wife to live together, thus:
Art. 109. — The husband and wife are
obligated to live together, observe
mutual respect and fidelity and render
mutual help and support.
The duty to live together can only be fulfilled if the
husband and wife are physically together. This takes
into account the situations where the couple has many
residences (as in the case of the petitioner). If the
husband has to stay in or transfer to any one of their
residences, the wife should necessarily be with him in
order that they may "live together." Hence, it is
illogical to conclude that Art. 110 refers to "domicile"
and not to "residence." Otherwise, we shall be faced
with a situation where the wife is left in the domicile
while the husband, for professional or other reasons,
stays in one of their (various) residences. As Dr.
Tolentino further explains:
Residence and Domicile — Whether the word
"residence" as used with reference to particular
matters is synonymous with "domicile" is a question of
some difficulty, and the ultimate decision must be
made from a consideration of the purpose and intent
with which the word is used. Sometimes they are used
synonymously, at other times they are distinguished
from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring
to the physical presence of a person in a place. A
person can have two or more residences, such as a
country residence and a city residence. Residence is
acquired by living in place; on the other hand,
domicile can exist without actually living in the place.
The important thing for domicile is that, once
residence has been established in one place, there be
an intention to stay there permanently, even if
residence is also established in some other
place. 41
In fact, even the matter of a common residence
between the husband and the wife during the
marriage is not an iron-clad principle; In cases
applying the Civil Code on the question of a common
matrimonial residence, our jurisprudence has
recognized certain situations 42 where the spouses
could not be compelled to live with each other such
that the wife is either allowed to maintain a residence
different from that of her husband or, for obviously
practical reasons, revert to her original domicile (apart
from being allowed to opt for a new one). In De la
Vina vs.Villareal 43 this Court held that "[a] married
woman may acquire a residence or domicile separate
from that of her husband during the existence of the
marriage where the husband has given cause for
divorce." 44 Note that the Court allowed the wife either
to obtain new residence or to choose a new domicile in
such an event. In instances where the wife actually
opts, .under the Civil Code, to live separately from her
husband either by taking new residence or reverting to
her domicile of origin, the Court has held that the wife
could not be compelled to live with her husband on
pain of contempt. In Arroyo vs. Vasques de
Arroyo 45 the Court held that:
Upon examination of the authorities, we are convinced
that it is not within the province of the courts of this
country to attempt to compel one of the spouses to
cohabit with, and render conjugal rights to, the other.
Of course where the property rights of one of the pair
are invaded, an action for restitution of such rights can
be maintained. But we are disinclined to sanction the
doctrine that an order, enforcible (sic) by process of
contempt, may be entered to compel the restitution of
the purely personal right of consortium. At best such
an order can be effective for no other purpose than to
compel the spouses to live under the same roof; and
he experience of those countries where the courts of
justice have assumed to compel the cohabitation of
married people shows that the policy of the practice is
extremely questionable. Thus in England, formerly the
Ecclesiastical Court entertained suits for the restitution
of conjugal rights at the instance of either husband or
wife; and if the facts were found to warrant it, that
court would make a mandatory decree, enforceable by
process of contempt in case of disobedience, requiring
the delinquent party to live with the other and render
conjugal rights. Yet this practice was sometimes
criticized even by the judges who felt bound to enforce
such orders, and in Weldon v. Weldon (9 P.D. 52),
decided in 1883, Sir James Hannen, President in the
Probate, Divorce and Admiralty Division of the High
Court of Justice, expressed his regret that the English
law on the subject was not the same as that which
prevailed in Scotland, where a decree of adherence,
equivalent to the decree for the restitution of conjugal
rights in England, could be obtained by the injured
spouse, but could not be enforced by imprisonment.
Accordingly, in obedience to the growing sentiment
against the practice, the Matrimonial Causes Act
(1884) abolished the remedy of imprisonment; though
a decree for the restitution of conjugal rights can still
be procured, and in case of disobedience may serve in
appropriate cases as the basis of an order for the
periodical payment of a stipend in the character of
alimony.
In the voluminous jurisprudence of the
United States, only one court, so far as
we can discover, has ever attempted
to make a preemptory order requiring
12
one of the spouses to live with the
other; and that was in a case where a
wife was ordered to follow and live
with her husband, who had changed
his domicile to the City of New
Orleans. The decision referred to
(Bahn v. Darby, 36 La. Ann., 70) was
based on a provision of the Civil Code
of Louisiana similar to article 56 of the
Spanish Civil Code. It was decided
many years ago, and the doctrine
evidently has not been fruitful even in
the State of Louisiana. In other states
of the American Union the idea of
enforcing cohabitation by process of
contempt is rejected. (21 Cyc., 1148).
In a decision of January 2, 1909, the
Supreme Court of Spain appears to
have affirmed an order of the
Audiencia Territorial de Valladolid
requiring a wife to return to the
marital domicile, and in the
alternative, upon her failure to do so,
to make a particular disposition of
certain money and effects then in her
possession and to deliver to her
husband, as administrator of the
ganancial property, all income, rents,
and interest which might accrue to her
from the property which she had
brought to the marriage. (113 Jur.
Civ., pp. 1, 11) But it does not appear
that this order for the return of the
wife to the marital domicile was
sanctioned by any other penalty than
the consequences that would be
visited upon her in respect to the use
and control of her property; and it
does not appear that her disobedience
to that order would necessarily have
been followed by imprisonment for
contempt.
Parenthetically when Petitioner was married to then
Congressman Marcos, in 1954, petitioner was obliged
— by virtue of Article 110 of the Civil Code — to follow
her husband's actual place of residence fixed by him.
The problem here is that at that time, Mr. Marcos had
several places of residence, among which were San
Juan, Rizal and Batac, Ilocos Norte. There is no
showing which of these places Mr. Marcos did fix as his
family's residence. But assuming that Mr. Marcos had
fixed any of these places as the conjugal residence,
what petitioner gained upon marriage was actual
residence. She did not lose her domicile of origin.
On the other hand, the common law concept of
"matrimonial domicile" appears to have been
incorporated, as a result of our jurisprudential
experiences after the drafting of the Civil Code of
1950, into the New Family Code. To underscore the
difference between the intentions of the Civil Code and
the Family Code drafters, the term residence has been
supplanted by the term domicile in an entirely new
provision (Art. 69) distinctly different in meaning and
spirit from that found in Article 110. The provision
recognizes revolutionary changes in the concept of
women's rights in the intervening years by making the
choice of domicile a product of mutual agreement
between the spouses. 46
Without as much belaboring the point, the term
residence may mean one thing in civil law (or under
the Civil Code) and quite another thing in political law.
What stands clear is that insofar as the Civil Code is
concerned-affecting the rights and obligations of
husband and wife — the term residence should only be
interpreted to mean "actual residence." The
inescapable conclusion derived from this unambiguous
civil law delineation therefore, is that when petitioner
married the former President in 1954, she kept her
domicile of origin and merely gained a new home, not
a domicilium necessarium.
Even assuming for the sake of argument that
petitioner gained a new "domicile" after her marriage
and only acquired a right to choose a new one after
her husband died, petitioner's acts following her return
to the country clearly indicate that she not only
impliedly but expressly chose her domicile of origin
(assuming this was lost by operation of law) as her
domicile. This "choice" was unequivocally expressed in
her letters to the Chairman of the PCGG when
petitioner sought the PCGG's permission to
"rehabilitate (our) ancestral house in Tacloban and
Farm in Olot, Leyte. . . to make them livable for the
Marcos family to have a home in our
homeland." 47 Furthermore, petitioner obtained her
residence certificate in 1992 in Tacloban, Leyte, while
living in her brother's house, an act which supports
the domiciliary intention clearly manifested in her
letters to the PCGG Chairman. She could not have
gone straight to her home in San Juan, as it was in a
state of disrepair, having been previously looted by
vandals. Her "homes" and "residences" following her
arrival in various parts of Metro Manila merely
qualified as temporary or "actual residences," not
domicile. Moreover, and proceeding from our
discussion pointing out specific situations where the
female spouse either reverts to her domicile of origin
or chooses a new one during the subsistence of the
marriage, it would be highly illogical for us to assume
that she cannot regain her original domicile upon the
death of her husband absent a positive act of selecting
a new one where situations exist within the
subsistence of the marriage itself where the wife gains
a domicile different from her husband.
In the light of all the principles relating to residence
and domicile enunciated by this court up to this point,
we are persuaded that the facts established by the
parties weigh heavily in favor of a conclusion
13
supporting petitioner's claim of legal residence or
domicile in the First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC
had already lapsed considering that the assailed
resolutions were rendered on April 24, 1995, fourteen
(14) days before the election in violation of Section 78
of the Omnibus Election Code. 48 Moreover, petitioner
contends that it is the House of Representatives
Electoral Tribunal and not the COMELEC which has
jurisdiction over the election of members of the House
of Representatives in accordance with Article VI Sec.
17 of the Constitution. This is untenable.
It is a settled doctrine that a statute requiring
rendition of judgment within a specified time is
generally construed to be merely directory, 49 "so that
non-compliance with them does not invalidate the
judgment on the theory that if the statute had
intended such result it would have clearly indicated
it." 50 The difference between a mandatory and a
directory provision is often made on grounds of
necessity. Adopting the same view held by several
American authorities, this court in Marcelino
vs. Cruz held that: 51
The difference between a mandatory
and directory provision is often
determined on grounds of expediency,
the reason being that less injury
results to the general public by
disregarding than enforcing the letter
of the law.
In Trapp v. Mc Cormick, a case calling
for the interpretation of a statute
containing a limitation of thirty (30)
days within which a decree may be
entered without the consent of
counsel, it was held that "the statutory
provisions which may be thus departed
from with impunity, without affecting
the validity of statutory proceedings,
are usually those which relate to the
mode or time of doing that which is
essential to effect the aim and purpose
of the Legislature or some incident of
the essential act." Thus, in said case,
the statute under examination was
construed merely to be directory.
The mischief in petitioner's contending that the
COMELEC should have abstained from rendering a
decision after the period stated in the Omnibus
Election Code because it lacked jurisdiction, lies in the
fact that our courts and other quasi-judicial bodies
would then refuse to render judgments merely on the
ground of having failed to reach a decision within a
given or prescribed period.
In any event, with the enactment of Sections 6 and 7
of R.A. 6646 in relation to Section 78 of B.P. 881, 52 it
is evident that the respondent Commission does not
lose jurisdiction to hear and decide a pending
disqualification case under Section 78 of B.P. 881 even
after the elections.

As to the House of Representatives Electoral Tribunal's

supposed assumption of jurisdiction over the issue of
petitioner's qualifications after the May 8, 1995
elections, suffice it to say that HRET's jurisdiction as
the sole judge of all contests relating to the elections,
returns and qualifications of members of Congress
begins only after a candidate has become a member of
the House of Representatives. 53 Petitioner not being a
member of the House of Representatives, it is obvious
that the HRET at this point has no jurisdiction over the
question.

It would be an abdication of many of the ideals

enshrined in the 1987 Constitution for us to either to
ignore or deliberately make distinctions in law solely
on the basis of the personality of a petitioner in a
case. Obviously a distinction was made on such a
ground here. Surely, many established principles of
law, even of election laws were flouted for the sake
perpetuating power during the pre-EDSA regime. We
renege on these sacred ideals, including the meaning
and spirit of EDSA ourselves bending established
principles of principles of law to deny an individual
what he or she justly deserves in law. Moreover, in
doing so, we condemn ourselves to repeat the
mistakes of the past.

WHEREFORE, having determined that petitioner

possesses the necessary residence qualifications to
run for a seat in the House of Representatives in the
First District of Leyte, the COMELEC's questioned
Resolutions dated April 24, May 7, May 11, and May
25, 1995 are hereby SET ASIDE. Respondent
COMELEC is hereby directed to order the Provincial
Board of Canvassers to proclaim petitioner as the duly
elected Representative of the First District of Leyte.

SO ORDERED.

14
G.R. No. 120265 September 18, 1995
AGAPITO A. AQUINO, petitioner,
vs.
COMMISSION ON ELECTIONS, MOVE MAKATI,
MATEO BEDON and JUANITO ICARO, respondents.
KAPUNAN, J.:
The sanctity of the people's will must be observed at
all times if our nascent democracy is to be preserved.
In any challenge having the effect of reversing a
democratic choice, expressed through the ballot, this
Court should be ever so vigilant in finding solutions
which would give effect to the will of the majority, for
sound public policy dictates that all elective offices are
filled by those who have received the highest number
of votes cast in an election. When a challenge to a
winning candidate's qualifications however becomes
inevitable, the ineligibility ought to be so noxious to
the Constitution that giving effect to the apparent will
of the people would ultimately do harm to our
democratic institutions.
On March 20, 1995, petitioner Agapito A. Aquino filed
his Certificate of Candidacy for the position of
Representative for the new Second Legislative District
of Makati City. Among others, Aquino provided the
following information in his certificate of
candidacy, viz:.
On April 24, 1995, Move Makati, a duly registered
political party, and Mateo Bedon, Chairman of the
LAKAS-NUCD-UMDP of Barangay Cembo, Makati City,
filed a petition to disqualify Agapito A. Aquino 2 on the
ground that the latter lacked the residence
qualification as a candidate for congressman which,
under Section 6, Art. VI of the 1987 the Constitution,
should be for a period not less than one (1) year
immediately preceding the May 8, 1995 elections. The
petition was docketed as SPA No. 95-113 and was
assigned to the Second Division of the Commission on
Elections (COMELEC).
On April 25, 1995, a day after said petition for
disqualification was filed, petitioner filed another
certificate of candidacy amending the certificate dated
March 20, 1995. This time, petitioner stated in Item 8
of his certificate that he had resided in the
constituency where he sought to be elected for one (l)
year and thirteen (13) days.3
On May 2, 1995, petitioner filed his Answer dated April
29, 1995 praying for the dismissal of the
disqualification case.4
On the same day, May 2, 1995, a hearing was
conducted by the COMELEC wherein petitioner testified
and presented in evidence, among others, his Affidavit
dated May 2, 1995,5 lease contract between petitioner
and Leonor Feliciano dated April 1, 1994,6 Affidavit of
Leonor Feliciano dated April 28,19957 and Affidavit of
Daniel Galamay dated April 28, 1995.8

After hearing of the petition for disqualification, the

(7) RESIDENCE (Complete Address):
Second Division of the COMELEC promulgated a
284 AMAPOLA COR. ADALLA STS.,
Resolution dated May 6, 1995, the decretal portion of
PALM VILLAGE, MAKATI.
which reads:

xxx xxx xxx

WHEREFORE, in view of the foregoing,
this Commission (Second Division)
(8) RESIDENCE IN THE RESOLVES to DISMISS the instant:
CONSTITUENCY WHERE I SEEK TO BE petition for Disqualification against
ELECTED IMMEDIATELY PRECEDING respondent AGAPITO AQUINO and
THE ELECTION: ______ Years declares him ELIGIBLE to run for the
and 10 Months. Office of Representative in the Second
Legislative District of Makati City.
xxx xxx xxx
SO ORDERED.9
THAT I AM ELIGIBLE for said Office;
That I will support and defend the On May 7, 1995, Move Makati and Mateo Bedon filed a
Constitution of the Republic of the Motion for Reconsideration of the May 6, 1995
Philippines and will maintain true faith resolution with the COMELEC en banc.
and allegiance thereto; That I will obey
the law, rules and decrees
Meanwhile, on May 8, 1995, elections were held. In
promulgated by the duly constituted
Makati City where three (3) candidates vied for the
authorities; That the obligation
congressional seat in the Second District, petitioner
imposed to such is assumed
garnered thirty eight thousand five hundred forty
voluntarily, without mental reservation
seven (38,547) votes as against another candidate,
or purpose of evasion, and that the
Agusto Syjuco, who obtained thirty five thousand nine
facts therein are true to the best of my
hundred ten (35,910) votes.10
knowledge.1

15
On May 10, 1995, private respondents Move Makati
and Bedon filed an Urgent Motion Ad Cautelum to
Suspend Proclamation of petitioner. Thereafter, they
filed an Omnibus Motion for Reconsideration of the
COMELEC's Second Division resolution dated May 6,
1995 and a 2nd Urgent Motion Ad Cautelum to
Suspend Proclamation of petitioner.
On May 15, 1995, COMELEC en banc issued an Order
suspending petitioner's proclamation. The dispositive
portion of the order reads:
WHEREFORE, pursuant to the
provisions of Section 6 of Republic Act
No. 6646, the Board of Canvassers of
the City of Makati is hereby directed to
complete the canvassing of election
returns of the Second District of
Makati, but to suspend the
proclamation of respondent Agapito A.
Aquino should he obtain the winning
number of votes for the position of
Representative of the Second District
of the City of Makati, until the motion
for reconsideration filed by the
petitioners on May 7, 1995, shall have
been resolved by the Commission.
The Executive Director, this
Commission, is directed to cause the
immediate implementation of this
Order. The Clerk of Court of the
Commission is likewise directed to
inform the parties by the fastest
means available of this Order, and to
calendar the hearing of the Motion for
Reconsideration on May 17, 1995, at
10:00 in the morning, PICC Press
Center, Pasay City.
SO ORDERED.11
On May 16, 1995, petitioner filed his
Comment/Opposition with urgent motion to lift order
of suspension of proclamation.
On June 1, 1995, petitioner filed a "Motion to File
Supplemental Memorandum and Motion to Resolve
Urgent Motion to Resolve Motion to Lift Suspension of
Proclamation" wherein he manifested his intention to
raise, among others, the issue of whether of not the
determination of the qualifications of petitioner after
the elections is lodged exclusively in the House of
Representatives Electoral Tribunal pursuant to Section
17, Article VI of the 1987 Constitution.
Resolving petitioner's motion to lift suspension of his
proclamation, the COMELEC en banc issued an Order
on June 2, 1995, the decretal portion thereof residing:
16
Pursuant to the said provisions and
considering the attendant
circumstances of the case, the
Commission RESOLVED to proceed
with the promulgation but to suspend
its rules, to accept the filing of the
aforesaid motion, and to allow the
parties to be heard thereon because
the issue of jurisdiction now before the
Commission has to be studied with
more reflection and judiciousness. 12
On the same day, June 2, 1995, the COMELEC en
banc issued a Resolution reversing the resolution of
the Second Division dated May 6, 1995.
The fallo reads as follows:
WHEREFORE, in view of the foregoing,
petitioners' Motion for Reconsideration
of the Resolution of the Second
Division, promulgated on May 6, 1995,
is GRANTED. Respondent Agapito A.
Aquino is declared ineligible and thus
disqualified as a candidate for the
Office of Representative of the Second
Legislative District of Makati City in the
May 8, 1995 elections, for lack of the
constitutional qualification of
residence. Consequently, the order of
suspension of proclamation of the
respondent should he obtain the
winning number of votes, issued by
this Commission on May 15, 1995 is
now made permanent.
Upon the finality of this Resolution, the
Board of Canvassers of the City of
Makati shall immediately reconvene
and, on the basis of the completed
canvass of election returns, determine
the winner out of the remaining
qualified candidates, who shall be
immediately be proclaimed.
SO ORDERED. 13
Hence, the instant Petition for Certiorari 14 assailing
the orders dated May 15, 1995 and June 2, 1995, as
well as the resolution dated June 2, 1995 issued by
the COMELEC en banc. Petitioner's raises the following
errors for consideration, to wit:
A
THE COMELEC HAS NO JURISDICTION
TO DETERMINE AND ADJUDGE THE
DISQUALIFICATION ISSUE INVOLVING
CONGRESSIONAL CANDIDATES AFTER
THE MAY 8, 1995 ELECTIONS, SUCH
DETERMINATION BEING RESERVED TO
AND LODGE EXCLUSIVELY WITH THE
HOUSE OF REPRESENTATIVE DISTRICTS WHICH WERE ONLY
ELECTORAL TRIBUNAL EXISTING FOR LESS THAN A YEAR AT
THE TIME OF THE ELECTION AND
B BARELY FOUR MONTHS IN THE CASE
OF PETITIONER'S DISTRICT IN
MAKATI OF CONGRESSIONAL.
ASSUMING ARGUENDO THAT THE
COMELEC HAS JURISDICTION, SAID
JURISDICTION CEASED IN THE F
INSTANT CASE AFTER THE
ELECTIONS, AND THE REMEDY/IES THE COMELEC COMMITTED SERIOUS
AVAILABLE TO THE ADVERSE PARTIES ERROR AMOUNTING TO LACK OF
LIE/S IN ANOTHER FORUM WHICH, IT JURISDICTION WHEN IT ORDERED
IS SUBMITTED, IS THE HRET THE BOARD OF CANVASSERS TO
CONSISTENT WITH SECTION 17, "DETERMINE AND PROCLAIM THE
ARTICLE VI OF THE 1987 WINNER OUT OF THE REMAINING
CONSTITUTION QUALIFIED CANDIDATES" AFTER THE
ERRONEOUS DISQUALIFICATION OF
C YOUR PETITIONER IN THAT SUCH
DIRECTIVE IS IN TOTAL DISREGARD
OF THE WELL SETTLED DOCTRINE
THE COMELEC COMMITTED GRAVE
THAT A SECOND PLACE CANDIDATE
ABUSE OF DISCRETION WHEN IT
OR PERSON WHO WAS REPUDIATED
PROCEEDED TO PROMULGATE ITS
BY THE ELECTORATE IS A LOSER AND
QUESTIONED DECISION (ANNEX "C",
CANNOT BE PROCLAIMED AS
PETITION) DESPITE IT OWN
SUBSTITUTE
RECOGNITION THAT A THRESHOLD
WINNER.15
ISSUE OF JURISDICTION HAS TO BE
JUDICIOUSLY REVIEWED AGAIN,
ASSUMING ARGUENDO THAT THE I
COMELEC HAS JURISDICTION, THE
COMELEC COMMITTED GRAVE ABUSE In his first three assignments of error, petitioner
OF DISCRETION, AND SERIOUS vigorously contends that after the May 8, 1995
ERROR IN DIRECTING WITHOUT elections, the COMELEC lost its jurisdiction over the
NOTICE THE SUSPENSION OF THE question of petitioner's qualifications to run for
PROCLAMATION OF THE PETITIONER member of the House of Representatives. He claims
AS THE WINNING CONGRESSIONAL that jurisdiction over the petition for disqualification is
CANDIDATE AND DESPITE THE exclusively lodged with the House of Representatives
MINISTERIAL NATURE OF SUCH DUTY Electoral Tribunal (HRET). Given the yet unresolved
TO PROCLAIM (PENDING THE question of jurisdiction, petitioner avers that the
FINALITY OF THE DISQUALIFICATION COMELEC committed serious error and grave abuse of
CASE AGAINST THE PETITIONER) IF discretion in directing the suspension of his
ONLY NOT TO THWART THE PEOPLE'S proclamation as the winning candidate in the Second
WILL. Congressional District of Makati City. We disagree.

D Petitioner conveniently confuses the distinction

between an unproclaimed candidate to the House of
THE COMELEC'S FINDING OF NON- Representatives and a member of the same. Obtaining
COMPLIANCE WITH THE RESIDENCY the highest number of votes in an election does not
REQUIREMENT OF ONE YEAR AGAINST automatically vest the position in the winning
THE PETITIONER IS CONTRARY TO candidate. Section 17 of Article VI of the 1987
EVIDENCE AND TO APPLICABLE LAWS Constitution reads:
AND JURISPRUDENCE.
The Senate and the House of
E Representatives shall have an Electoral
Tribunal which shall be the sole judge
of all contests relating to the election,
IN ANY CASE, THE COMELEC
returns and qualifications of their
CRITICALLY ERRED IN FAILING TO
respective Members.
APPRECIATE THE LEGAL
IMPOSSIBILITY OF ENFORCING THE
ONE YEAR RESIDENCY REQUIREMENT Under the above-stated provision, the electoral
OF CONGRESSIONAL CANDIDATES IN tribunal clearly assumes jurisdiction over all contests
NEWLY CREATED POLITICAL relative to the election, returns and qualifications of
17
candidates for either the Senate or the House only
when the latter become members of either the Senate
or the House of Representatives. A candidate who has
not been proclaimed 16 and who has not taken his oath
of office cannot be said to be a member of the House
of Representatives subject to Section. 17 of the
Constitution. While the proclamation of a winning
candidate in an election is ministerial, B.P. 881 in
conjunction with Sec 6 of R.A. 6646 allows suspension
of proclamation under circumstances mentioned
therein. Thus, petitioner's contention that "after the
conduct of the election and (petitioner) has been
established the winner of the electoral exercise from
the moment of election, the COMELEC is automatically
divested of authority to pass upon the question of
qualification" finds no basis, because even after the
elections the COMELEC is empowered by Section 6 (in
relation to Section 7) of R.A. 6646 to continue to hear
and decide questions relating to qualifications of
candidates Section 6 states:
Sec. 6. Effect of Disqualification Case.
— Any candidate, who has been
declared by final judgment to be
disqualified shall not be voted for, and
the votes cast for him shall not be
counted. If for any reason a candidate
is not declared by final judgment
before an election to be disqualified
and he is voted for and receives the
winning number of votes in such
election, the Court or Commission
shall continue with the trial and
hearing of the action, inquiry or
protest and, upon motion of the
complainant or any intervenor, may
during the pendency thereof order the
suspension of the proclamation of such
candidate whenever the evidence of
guilt is strong.
Under the above-quoted provision, not only is a
disqualification case against a candidate allowed to
continue after the election (and does not oust the
COMELEC of its jurisdiction), but his obtaining the
highest number of votes will not result in the
suspension or termination of the proceedings against
him when the evidence of guilt is strong. While the
phrase "when the evidence of guilt is strong" seems to
suggest that the provisions of Section 6 ought to be
applicable only to disqualification cases under Section
68 of the Omnibus Election Code, Section 7 of R.A.
6646 allows the application of the provisions of
Section 6 to cases involving disqualification based on
ineligibility under Section 78 of B.P. 881. Section 7
states:
Sec. 7. Petition to Deny Due Course or
to Cancel a Certificate of Candidacy. —
The procedure hereinabove provided
shall apply to petition to deny due
course to or cancel a certificate of
18
candidacy based on Sec. 78 of Batas
Pambansa 881.
II
We agree with COMELEC's contention that in order
that petitioner could qualify as a candidate for
Representative of the Second District of Makati City
the latter "must prove that he has established not just
residence but domicile of choice. 17
The Constitution requires that a person seeking
election to the House of Representatives should be
a resident of the district in which he seeks election for
a period of not less than one (l) year prior to the
elections. 18 Residence, for election law purposes, has
a settled meaning in our jurisdiction.
In Co v. Electoral Tribunal of the House of
Representatives 19 this Court held that the term
"residence" has always been understood as
synonymous with "domicile" not only under the
previous Constitutions but also under the 1987
Constitution. The Court there held: 20
The deliberations of the Constitutional Commission
reveal that the meaning of residence vis-a-vis the
qualifications of a candidate for Congress continues to
remain the same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember
that in the 1971 Constitutional Convention, there was
an attempt to require residence in the place not less
than one year immediately preceding the day of
elections. So my question is: What is the Committee's
concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular
members of the National Assembly are concerned, the
proposed section merely provides, among others, and
a resident thereof', that is, in the district, for a period
of not less than one year preceding the day of the
election. This was in effect lifted from the 1973
Constitution, the interpretation given to it was
domicile (emphasis ours) Records of the 1987
Constitutional Convention, Vol. II, July 22, 1986, p.
87).xxx xxx xxx
Mrs. Rosario Braid: The next question is on section 7,
page 2. I think Commissioner Nolledo has raised the
same point that "resident" has been interpreted at
times as a matter of intention rather than actual
residence.
Mr. De Los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentlemen
consider at the proper time to go back to actual
residence rather than mere intention to reside?
Mr. De los Reyes: But We might encounter some
difficulty especially considering that the provision in
the Constitution in the Article on Suffrage says that
Filipinos living abroad may vote as enacted by law.
So, we have to stick to the original concept that it
should be by domicile and not physical and actual
residence. (Records of the 1987 Constitutional
Commission, Vol. II, July 22, 1986, p. 110).
The framers of the Constitution
adhered to the earlier definition given
to the word "residence" which
regarded it as having the same
meaning as domicile.
Clearly, the place "where a party actually or
constructively has his permanent home," 21 where he,
no matter where he may be found at any given time,
eventually intends to return and remain, i.e., his
domicile, is that to which the Constitution refers when
it speaks of residence for the purposes of election law.
The manifest purpose of this deviation from the usual
conceptions of residency in law as explained in Gallego
vs. Vera at 22 is "to exclude strangers or newcomers
unfamiliar with the conditions and needs of the
community" from taking advantage of favorable
circumstances existing in that community for electoral
gain. While there is nothing wrong with the practice of
establishing residence in a given area for meeting
election law requirements, this nonetheless defeats
the essence of representation, which is to place
through the assent of voters those most cognizant and
sensitive to the needs of a particular district, if a
candidate falls short of the period of residency
mandated by law for him to qualify. That purpose
could be obviously best met by individuals who have
either had actual residence in the area for a given
period or who have been domiciled in the same area
either by origin or by choice. It would, therefore, be
imperative for this Court to inquire into the threshold
question as to whether or not petitioner actually was a
resident for a period of one year in the area now
encompassed by the Second Legislative District of
Makati at the time of his election or whether or not he
was domiciled in the same.
As found by the COMELEC en banc petitioner in his
Certificate of Candidacy for the May 11, 1992
elections, indicated not only that he was a resident of
San Jose, Concepcion, Tarlac in 1992 but that he was
a resident of the same for 52 years immediately
preceding that election. 23 At the time, his certificate
indicated that he was also a registered voter of the
same district. 24 His birth certificate places
Concepcion, Tarlac as the birthplace of both of his
parents Benigno and Aurora. 25 Thus, from data
furnished by petitioner himself to the COMELEC at
various times during his political career, what stands
consistently clear and unassailable is that
this domicile of origin of record up to the time of filing
of his most recent certificate of candidacy for the 1995
elections was Concepcion, Tarlac.
19
Petitioner's alleged connection with the Second District
of Makati City is an alleged lease agreement of
condominium unit in the area. As the COMELEC, in its
disputed Resolution noted:
The intention not to establish a permanent home in
Makati City is evident in his leasing a condominium
unit instead of buying one. While a lease contract
maybe indicative of respondent's intention to reside in
Makati City it does not engender the kind of
permanency required to prove abandonment of one's
original domicile especially since, by its terms, it is
only for a period of two (2) years, and respondent
Aquino himself testified that his intention was really
for only one (l) year because he has other
"residences" in Manila or Quezon City. 26
While property ownership is not and should never be
an indicia of the right to vote or to be voted upon, the
fact that petitioner himself claims that he has other
residences in Metro Manila coupled with the short
length of time he claims to be a resident of the
condominium unit in Makati (and the fact, of his stated
domicile in Tarlac) "indicate that the sole purpose of
(petitioner) in transferring his physical residence" 27 is
not to acquire's new residence or domicile "but only to
qualify as a candidate for Representative of the
Second District of Makati City." 28 The absence of clear
and positive proof showing a successful abandonment
of domicile under the conditions stated above, the lack
of identification — sentimental, actual or otherwise —
with the area, and the suspicious circumstances under
which the lease agreement was effected all belie
petitioner's claim of residency for the period required
by the Constitution, in the Second District of Makati.
As the COMELEC en banc emphatically pointed out:
[T]he lease agreement was executed
mainly to support the one year
residence requirement as a
qualification for a candidate of
Representative, by establishing a
commencement date of his residence.
If a perfectly valid lease agreement
cannot, by itself establish;
a domicile of choice, this particular
lease agreement cannot do better. 29
Moreover, his assertion that he has transferred
his domicile from Tarlac to Makati is a bare assertion
which is hardly supported by the facts in the case at
bench. Domicile of origin is not easily lost. To
successfully effect a change of domicile, petitioner
must prove an actual removal or an actual change
of domicile; a bona fide intention of abandoning the
former place of residence and establishing a new one
and definite acts which correspond with the
purpose.30 These requirements are hardly met by the
evidence adduced in support of petitioner's claims of a
change of domicile from Tarlac to the Second District
of Makati. In the absence of clear and positive proof,
the domicile of origin be deemed to continue
requirements are hardly met by the evidence adduced
in support of petitioner's claims of a change of
domicile from Tarlac to the Second District of Makati.
In the absence of clear and positive proof,
the domicile of origin should be deemed to continue.
Finally, petitioner's submission that it would be legally
impossible to impose the one year residency
requirement in a newly created political district is
specious and lacks basis in logic. A new political
district is not created out of thin air. It is carved out
from part of a real and existing geographic area, in
this case the old Municipality of Makati. That people
actually lived or were domiciled in the area
encompassed by the new Second District cannot be
denied. Modern-day carpetbaggers cannot be allowed
take advantage of the creation of new political districts
by suddenly transplanting themselves in such new
districts, prejudicing their genuine residents in the
process of taking advantage of existing conditions in
these areas. It will be noted, as COMELEC did in its
assailed resolution, that petitioner was disqualified
from running in the Senate because of the
constitutional two-term limit, and had to shop around
for a place where he could run for public office.
Nothing wrong with that, but he must first prove with
reasonable certainty that he has effected a change of
residence for election law purposes for the period
required by law. This he has not effectively done.
III
The next issue here is whether or not the COMELEC
erred in issuing it Order instructing the Board of
Canvassers of Makati City to proclaim as winner the
candidate receiving the next higher number of votes.
The answer must be in the negative.
To contend that Syjuco should be proclaimed because
he was the "first" among the qualified candidates in
the May 8, 1995 elections is to misconstrue the nature
of the democratic electoral process and the
sociological and psychological underpinnings behind
voters' preferences. The result suggested by private
respondent would lead not only to our reversing the
doctrines firmly entrenched in the two cases
of Labo vs. Comelec 31 but also to a massive
disenfranchisement of the thousands of voters who
cast their vote in favor of a candidate they believed
could be validly voted for during the elections. Had
petitioner been disqualified before the elections, the
choice, moreover, would have been different. The
votes for Aquino given the acrimony which attended
the campaign, would not have automatically gone to
second placer Syjuco. The nature of the playing field
would have substantially changed. To simplistically
assume that the second placer would have received
the other votes would be to substitute our judgment
for the mind of the voter. The second placer is just
that, a second placer. He lost the elections. He was
repudiated by either a majority or plurality of voters.
He could not be considered the first among qualified
20
candidates because in a field which excludes the
disqualified candidate, the conditions would have
substantially changed. We are not prepared to
extrapolate the results under such circumstances.
In these cases, the pendulum of judicial opinion in our
country has swung from one end to the other. In the
early case of Topacio v. Paredes. 32 we declared as
valid, votes cast in favor of a disqualified, ineligilble or
dead candidate provided the people who voted for
such candidate believed in good faith that at the time
of the elections said candidate was either qualified,
eligible or alive. The votes cast in favor of a
disqualified, ineligible or dead candidate who obtained
the next higher number of votes cannot be proclaimed
as winner. According to this Court in the said case,
"there is not, strictly speaking, a contest, that wreath
of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole
question is the eligibility of the one receiving the
plurality of the legally cast ballots."
Then in Ticson v. Comelec, 33 this Court held that
votes cast in favor of a non-candidate in view of his
unlawful change of party affiliation (which was then a
ground for disqualification) cannot be considered in
the canvassing of election returns and the votes fall
into the category of invalid and nonexistent votes
because a disqualified candidate is no candidate at all
and is not a candidate in the eyes of the law. As a
result, this Court upheld the proclamation of the only
candidate left in the disputed position.
In Geronimo v. Ramos 34 we reiterated our ruling
in Topacio v. Paredes that the candidate who lost in an
election cannot be proclaimed the winner in the event
the candidate who ran for the portion is ineligible. We
held in Geronimo:
[I]t would be extremely repugnant to the basic
concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the
majority or plurality of votes is proclaimed a winner
and imposed as the representative of a constituency,
the majority of which have positively declared through
their ballots that they do not choose him.
Sound policy dictates that public elective offices are
filled by those who have received the highest number
of votes cast in the election for that office, and it is
fundamental idea in all republican forms of
government that no one can be declared elected and
no measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast
in the elections. (20 Corpus Juris 2nd, S 243, p. 676.)
However, in Santos v. Comelec 35 we made a
turnabout from our previous ruling in Geronimo
v. Ramos and pronounced that "votes cast for a
disqualified candidate fall within the category of invalid
or non-existent votes because a disqualified candidate
is no candidate at all in the eyes of the law," reverting
to our earlier ruling in Ticson v. Comelec.
In the more recent cases of Labo,
Jr. v. Comelec 36 Abella v. Comelec; 37 and Benito
v. Comelec, 38 this Court reiterated and upheld the
ruling in Topacio v. Paredes and Geronimo
v. Ramos to the effect that the ineligibility of a
candidate receiving the next higher number of votes to
be declared elected, and that a minority or defeated
candidate cannot be declared elected to the office. In
these cases, we put emphasis on our pronouncement
in Geronimo v. Ramos that:
The fact that a candidate who obtained the highest
number of votes is later declared to be disqualified or
not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the
winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may be valid to
vote the winner into office or maintain him there.
However, in the absence of a statute which clearly
asserts a contrary political and legislative policy on the
matter, if the votes were cast in sincere belief that
candidate was alive, qualified, or eligible; they should
not be treated as stray, void or meaningless.
Synthesizing these rulings we declared in the latest
case of Labo, Jr. v. COMELEC that: 39
While Ortega may have garnered the second highest
number of votes for the office of city mayor, the fact
remains that he was not the choice of the sovereign
will. Petitioner Labo was overwhelmingly voted by the
electorate for the office of mayor in the belief that he
was then qualified to serve the people of Baguio City
and his subsequent disqualification does not make
respondent Ortega the mayor-elect. This is the import
of the recent case of Abella v. Comelec (201 SCRA 253
[1991]), wherein we held that:
While it is true that SPC No. 88-546 was originally a
petition to deny due course to the certificate of
candidacy of Larrazabal and was filed before
Larrazabal could be proclaimed the fact remains that
the local elections of Feb. 1, 1988 in the province of
Leyte proceeded with Larrazabal considered as a bona
fide candidate. The voters of the province voted for
her in the sincere belief that she was a qualified
candidate for the position of governor.Her votes was
counted and she obtained the highest number of
votes. The net effect is that petitioner lost in the
election. He was repudiated by the electorate. . . What
matters is that in the event a candidate for an elected
position who is voted for and who obtains the highest
number of votes is disqualified for not possessing the
eligibility, requirements at the time of the election as
provided by law, the candidate who obtains the second
highest number of votes for the same position cannot
assume the vacated position. (Emphasis supplied).
21
Our ruling in Abella applies squarely to
the case at bar and we see no
compelling reason to depart
therefrom. Like Abella, petitioner
Ortega lost in the election. He was
repudiated by the electorate. He was
obviously not the choice of the people
of Baguio City.
Thus, while respondent Ortega (G.R. No. 105111)
originally filed a disqualification case with the Comelec
(docketed as SPA-92-029) seeking to deny due course
to petitioner's (Labo's) candidacy, the same did not
deter the people of Baguio City from voting for
petitioner Labo, who, by then, was allowed by the
respondent Comelec to be voted upon, the resolution
for his disqualification having yet to attain the degree
of finality (Sec. 78, Omnibus Election Code).
And in the earlier case of Labo
v. Comelec. (supra), We held:
Finally, there is the question of whether or not the
private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor.
He cannot. The simple reason is that as he obtained
only the second highest number of votes in the
election, he was obviously not the choice of the people
of Baguio City.
The latest ruling of the Court in this issue is Santos
v. Commission on Election, (137 SCRA 740) decided in
1985. In that case, the candidate who placed second
was proclaimed elected after the votes for his winning
rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregarded as
stray. In effect, the second placer won by default.
That decision was supported by eight members of the
Court then (Cuevas J., ponente, with Makasiar,
Concepcion, Jr., Escolin, Relova, De la Fuente,
Alampay, and Aquino, JJ., concurring) with three
dissenting (Teehankee, acting C.J., Abad Santos and
Melencio-Herrera) and another two reserving their
votes (Plana and Gutierrez, Jr.). One was on official
leave (Fernando, C.J.)
Re-examining that decision, the Court finds, and so
holds, that it should be reversed in favor of the earlier
case of Geronimo v. Santos (136 SCRA 435), which
represents the more logical and democratic rule. That
case, which reiterated the doctrine first announced in
1912 in Topacio vs. Paredes (23 Phil. 238) was
supported by ten members of the Court. . . .
The rule, therefore, is: the ineligibility of a candidate
receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes
to be declared elected. A minority or defeated
candidate cannot be deemed elected to the office.
Indeed, this has been the rule in the United States
since 1849 (State ex rel. Dunning v. Giles, 52 Am.
Dec. 149).
It is therefore incorrect to argue that since a candidate
has been disqualified, the votes intended for the
disqualified candidate should, in effect, be considered
null and void. This would amount to disenfranchising
the electorate in whom, sovereignty resides. At the
risk of being repetitious, the people of Baguio City
opted to elect petitioner Labo bona fide without any
intention to missapply their franchise, and in the
honest belief that Labo was then qualified to be the
person to whom they would entrust the exercise of the
powers of the government. Unfortunately, petitioner
Labo turned out to be disqualified and cannot assume
the office.
Whether or not the candidate whom the majority
voted for can or cannot be installed, under no
circumstances can a minority or defeated candidate be
deemed elected to the office. Surely, the 12,602 votes
cast for petitioner Ortega is not a larger number than
the 27,471 votes cast for petitioner Labo (as certified
by the Election Registrar of Baguio City; rollo, p. 109;
G.R. No. 105111).
respondent commission's finding that petitioner lacks
the one year residence in the district mandated by the
1987 Constitution. A democratic government is
necessarily a government of laws. In a republican
government those laws are themselves ordained by
the people. Through their representatives, they dictate
the qualifications necessary for service in government
positions. And as petitioner clearly lacks one of the
essential qualifications for running for membership in
the House of Representatives, not even the will of a
majority or plurality of the voters of the Second
District of Makati City would substitute for a
requirement mandated by the fundamental law itself.
WHEREFORE, premises considered, the instant petition
is hereby DISMISSED. Our Order restraining
respondent COMELEC from proclaiming the candidate
garnering the next highest number of votes in the
congressional elections for the Second District of
Makati City is made PERMANENT.
SO ORDERED.

This, it bears repeating, expresses the more logical

and democratic view. We cannot, in another shift of
the pendulum, subscribe to the contention that the
runner-up in an election in which the winner has been
disqualified is actually the winner among the
remaining qualified candidates because this clearly
represents a minority view supported only by a
scattered number of obscure American state and
English court decisions. 40 These decisions neglect the
possibility that the runner-up, though obviously
qualified, could receive votes so measly and
insignificant in number that the votes they receive
would be tantamount to rejection. Theoretically, the
"second placer" could receive just one vote. In such a
case, it is absurd to proclaim the totally repudiated
candidate as the voters' "choice." Moreover, even in
instances where the votes received by the second
placer may not be considered numerically insignificant,
voters preferences are nonetheless so volatile and
unpredictable that the result among qualified
candidates, should the equation change because of the
disqualification of an ineligible candidate, would not be
self-evident. Absence of the apparent though ineligible
winner among the choices could lead to a shifting of
votes to candidates other than the second placer. By
any mathematical formulation, the runner-up in an
election cannot be construed to have obtained a
majority or plurality of votes cast where an "ineligible"
candidate has garnered either a majority or plurality of
the votes.

In fine, we are left with no choice but to affirm the

COMELEC's conclusion declaring herein petitioner
ineligible for the elective position of Representative of
Makati City's Second District on the basis of
22
G.R. No. 186006 October 16, 2009
NORLAINIE MITMUG LIMBONA, Petitioner,
vs.
COMMISSION ON ELECTIONS and MALIK
"BOBBY" T. ALINGAN, Respondents.
RESOLUTION
NACHURA, J.:
Before this Court is a Petition for Certiorari under Rule
65, in relation to Rule 64, assailing the
Resolution1 dated November 23, 2007 of the Second
Division of the Commission on Elections (Comelec) and
the Resolution2 of the Comelec En Banc dated January
14, 2009 in SPA No. 07-621.
The factual and procedural antecedents are as follows:
Prior to the May 14, 2007 elections, petitioner
Norlainie Mitmug Limbona and her husband,
Mohammad "Exchan" Limbona, each filed a Certificate
of Candidacy for Mayor of Pantar, Lanao del Norte. On
April 2, 2007, private respondent Malik "Bobby"
Alingan filed a disqualification case against Mohammad
before the Provincial Election Supervisor of Lanao del
Norte. On April 12, 2007, Alingan also filed a petition
for disqualification against petitioner.3Both
disqualification cases were premised on the ground
that petitioner and her husband lacked the one-year
residency requirement and both were not registered
voters of Pantar.4
On April 17, 2007, petitioner executed an Affidavit of
Withdrawal of her certificate of candidacy,5 which was
subsequently approved by the Comelec.6 Petitioner
also filed a Motion to Dismiss the disqualification case
against her for being moot and academic.7
On election day, May 14, 2007, the Comelec resolved
to postpone the elections in Pantar because there was
no final list of voters yet. A special election was
scheduled for July 23, 2007.8
On May 24, 2007, the Comelec First Division
promulgated a Resolution disqualifying Mohammad as
candidate for mayor for failure to comply with the one-
year residency requirement.9 Petitioner then filed her
Certificate of Candidacy as substitute candidate on
July 21, 2007. On July 23, 2007, Alingan filed a
petition for disqualification against petitioner for,
among others, lacking the one-year residency
requirement (SPA No. 07-621).10
In a Resolution in SPA No. 07-62111 dated November
23, 2007, the Comelec Second Division ruled that
petitioner was disqualified from running for Mayor of
Pantar. The Comelec held that petitioner only became
a resident of Pantar in November 2006. It explained
23
that petitioner’s domicile of origin was Maguing, Lanao
del Norte, her birthplace. When she got married, she
became a resident of Barangay Rapasun, Marawi City,
where her husband was Barangay Chairman until
November 2006. Barangay Rapasun, the Comelec
said, was petitioner’s domicile by operation of law
under the Family Code. The Comelec found that the
evidence petitioner adduced to prove that she has
abandoned her domicile of origin or her domicile in
Marawi City two years prior to the elections consisted
mainly of self-serving affidavits and were not
corroborated by independent and competent evidence.
The Comelec also took note of its resolution in another
case where it was found that petitioner was not even a
registered voter in Pantar. Petitioner filed a Motion for
Reconsideration.12
The Comelec resolved the motion in an En Banc
Resolution dated January 14, 2009,13 affirming the
Second Division’s Resolution disqualifying petitioner.
The Comelec said that the issue of whether petitioner
has complied with the one-year residency rule has
been decided by the Supreme Court in Norlainie
Mitmug Limbona v. Commission on Elections and Malik
"Bobby" T. Alingan promulgated on June 25, 2008.
The Comelec noted that, in said case, the Supreme
Court upheld the Comelec First Division’s Decision in
SPA No. 07-611 disqualifying petitioner from running
for mayor of Pantar for failure to comply with the
residency requirement.
Petitioner is now before this Court assailing the
Comelec’s November 23, 2007 and January 14, 2009
Resolutions. She posits that the Comelec erred in
disqualifying her for failure to comply with the one-
year residency requirement. She alleges that in a
disqualification case against her husband filed by
Nasser Macauyag, another mayoralty candidate, the
Comelec considered her husband as a resident of
Pantar and qualified to run for any elective office
there. Petitioner avers that since her husband was
qualified to run in Pantar, she is likewise qualified to
run.141avvphi1
Petitioner also stresses that she was actually residing
and was physically present in that municipality for
almost two years prior to the May 2007 elections.
During the time she had been residing in Pantar, she
associated and mingled with residents there, giving
her ample time to know the needs, difficulties,
aspirations, and economic potential of the
municipality. This, she said, is proof of her intention to
establish permanent residency there and her intent to
abandon her domicile in Marawi City.
She next argues that, even as her husband was
Punong Barangay of Rapasun, Marawi City, he never
abandoned Pantar as his hometown and domicile of
origin. She avers that the performance of her
husband’s duty in Rapasun did not prevent the latter
from having his domicile elsewhere. Hence, it was
incorrect for the Comelec to have concluded that her
husband changed his domicile only on November 11,
2006.15 At the very least, petitioner says, the
Comelec’s conflicting resolutions on the issue of her
husband’s residence should create a doubt that should
be resolved in her and her husband’s favor.16
She further contends that to disqualify her would
disenfranchise the voters of Pantar, the overwhelming
majority of whom elected her as mayor during the July
23, 2007 special elections.17
The Comelec, through the Office of the Solicitor
General (OSG), filed its Comment, insisting that the
Comelec correctly disqualified petitioner from running
as mayor for lack of the one-year residency
requirement.18 The OSG argues that there is no
evidence that petitioner has abandoned her domicile of
origin or her domicile in Marawi City.19 Moreover, the
OSG said that this Court has ruled on the issue of
petitioner’s residency in Norlainie Mitmug Limbona v.
Commission on Elections and Malik "Bobby" T.
Alingan.20 Lastly, the OSG contends that the Comelec’s
ruling in Nasser A. Macauyag v. Mohammad Limbona
is not binding on petitioner because she was not a
party to the case.21
We dismiss the Petition.
The issue of petitioner’s disqualification for failure to
comply with the one-year residency requirement has
been resolved by this Court in Norlainie Mitmug
Limbona v. Commission on Elections and Malik
"Bobby" T. Alingan.22This case stemmed from the first
disqualification case filed by herein respondent against
petitioner, docketed as SPA No. 07-611. Although the
petitioner had withdrawn the Certificate of Candidacy
subject of the disqualification case, the Comelec
resolved the petition and found that petitioner failed to
comply with the one-year residency requirement, and
was, therefore, disqualified from running as mayor of
Pantar.
A unanimous Court upheld the findings of the
Comelec, to wit:
WHEREFORE, the petition for certiorari is DISMISSED.
The September 4, 2007 Resolution of the Commission
on Elections in SPA Case No. 07-611 disqualifying
petitioner Norlainie Mitmug Limbona from running for
office of the Mayor of Pantar, Lanao del Norte, and the
January 9, 2008 Resolution denying the motion for
reconsideration, are AFFIRMED. In view of the
permanent vacancy in the Office of the Mayor, the
proclaimed Vice-Mayor shall SUCCEED as Mayor. The
temporary restraining order issued on January 29,
2008 is ordered LIFTED.
SO ORDERED.23
The Court found that petitioner failed to satisfy the
one-year residency requirement. It held:
24
The Comelec correctly found that petitioner failed to
satisfy the one-year residency requirement. The term
"residence" as used in the election law is synonymous
with "domicile," which imports not only intention to
reside in a fixed place but also personal presence in
that place, coupled with conduct indicative of such
intention. The manifest intent of the law in fixing a
residence qualification is to exclude a stranger or
newcomer, unacquainted with the conditions and
needs of a community and not identified with the
latter, from an elective office to serve that community.
For purposes of election law, the question of residence
is mainly one of intention. There is no hard and fast
rule by which to determine where a person actually
resides. Three rules are, however, well established:
first, that a man must have a residence or domicile
somewhere; second, that where once established it
remains until a new one is acquired; and third, a man
can have but one domicile at a time.
In order to acquire a domicile by choice, there must
concur (1) residence or bodily presence in the new
locality, (2) an intention to remain there, and (3) an
intention to abandon the old domicile. A person’s
"domicile" once established is considered to continue
and will not be deemed lost until a new one is
established.
To successfully effect a change of domicile one must
demonstrate an actual removal or an actual change of
domicile; a bona fide intention of abandoning the
former place of residence and establishing a new one,
and definite acts which correspond with the purpose.
In other words, there must basically be animus
manendi coupled with animus non revertendi. The
purpose to remain in or at the domicile of choice must
be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the
place chosen for the new domicile must be actual.
Petitioner’s claim that she has been physically present
and actually residing in Pantar for almost 20 months
prior to the elections, is self-serving and
unsubstantiated. As correctly observed by the
Comelec:
In the present case, the evidence adduced by
respondent, which consists merely of self-serving
affidavits cannot persuade Us that she has abandoned
her domicile of origin or her domicile in Marawi City. It
is alleged that respondent "has been staying, sleeping
and doing business in her house for more than 20
months" in Lower Kalanganan and yet, there is no
independent and competent evidence that would
corroborate such statement.
Further, We find no other act that would indicate
respondent’s intention to stay in Pantar for an
indefinite period of time. The filing of her Certificate of
Candidacy in Pantar, standing alone, is not sufficient
to hold that she has chosen Pantar as her new Petition merely restates issues already passed upon by
residence. We also take notice of the fact that in SPA the Comelec and affirmed by this Court.
No. 07-611, this Commission has even found that she
is not a registered voter in the said municipality WHEREFORE, the foregoing premises considered, the
warranting her disqualification as a candidate. Petition is DISMISSED and the Resolution dated
November 23, 2007 of the Second Division of the
We note the findings of the Comelec that petitioner’s Commission on Elections and the Resolution of the
domicile of origin is Maguing, Lanao del Norte, which is Commission on Elections En Banc dated January 14,
also her place of birth; and that her domicile by 2009 in SPA No. 07-621 are AFFIRMED.
operation of law (by virtue of marriage) is Rapasun,
Marawi City. The Comelec found that Mohammad, SO ORDERED.
petitioner’s husband, effected the change of his
domicile in favor of Pantar, Lanao del Norte only on
November 11, 2006. Since it is presumed that the
husband and wife live together in one legal residence,
then it follows that petitioner effected the change of
her domicile also on November 11, 2006. Articles 68
and 69 of the Family Code provide:

Art. 68. The husband and wife are obliged to live

together, observe mutual love, respect and fidelity,
and render mutual help and support.

Art. 69. The husband and wife shall fix the family
domicile. In case of disagreement, the court shall
decide. The court may exempt one spouse from living
with the other if the latter should live abroad or there
are other valid and compelling reasons for the
exemption. However, such exemption shall not apply if
the same is not compatible with the solidarity of the
family. (Emphasis ours)

Considering that petitioner failed to show that she

maintained a separate residence from her husband,
and as there is no evidence to prove otherwise,
reliance on these provisions of the Family Code is
proper and is in consonance with human experience.

Thus, for failure to comply with the residency

requirement, petitioner is disqualified to run for the
office of mayor of Pantar, Lanao del Norte. x x x.24

Petitioner’s Motion for Reconsideration of the above-

quoted Decision was denied with finality on March 3,
2009.25Petitioner filed another Motion for
Reconsideration,26 which the Court treated as a
Second Motion for Reconsideration and, consequently,
denied in a Resolution dated June 2, 2009.27 Of late,
petitioner has filed a "Manifestation" that raises yet
again the issues already resolved in the petition and
which the Court has, accordingly, merely noted
without action.28 Thus, our ruling therein has now
attained finality.

Consequently, the issue of petitioner’s compliance with

the one-year residency requirement is now settled. We
are bound by this Court’s ruling in the earlier Limbona
case where the issue was squarely raised and
categorically resolved. We cannot now rule anew on
the merits of this case, especially since the present

25
G.R. No. 86564 August 1, 1989
RAMON L. LABO, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN
BANC AND LUIS L. LARDIZABAL, respondents
Estelito P. Mendoza for petitioner.
Rillera and Quintana for private respondent.
CRUZ, J.:
The petitioner asks this Court to restrain the
Commission on Elections from looking into the
question of his citizenship as a qualification for his
office as Mayor of Baguio City. The allegation that he
is a foreigner, he says, is not the issue. The issue is
whether or not the public respondent has jurisdiction
to conduct any inquiry into this matter, considering
that the petition for quo warranto against him was not
filed on time.
It is noteworthy that this argument is based on the
alleged tardiness not of the petition itself but of the
payment of the filing fee, which the petitioner
contends was an indispensable requirement. The fee
is, curiously enough, all of P300.00 only. This brings to
mind the popular verse that for want of a horse the
kingdom was lost. Still, if it is shown that the petition
was indeed filed beyond the reglementary period,
there is no question that this petition must be granted
and the challenge abated.
The petitioner's position is simple. He was proclaimed
mayor-elect of Baguio City, on January 20, 1988. The
petition for quo warranto was filed by the private
respondent on January 26, 1988, but no filing fee was
paid on that date. This fee was finally paid on
February 10, 1988, or twenty-one days after his
proclamation. As the petition by itself alone was
ineffectual without the filing fee, it should be deemed
filed only when the fee was paid. This was done
beyond the reglementary period provided for under
Section 253 of the Omnibus Election Code reading as
follows:
SEC. 253. Petition for quo warranto. —
Any voter contesting the election of a
Member of the Batasang Pambansa,
regional, provincial, or city officer on
the ground of ineligibility or of
disloyalty to the Republic of the
Philippines shall file a sworn petition
for quo warranto with the Commission
within ten days after the proclamation
of the result of the election.
26
The petitioner adds that the payment of the filing fee
is required under Rule 36, Section 5, of the Procedural
Rules of the COMELEC providing that —
Sec. 5. No petition for quo
warranto shall be given due course
without the payment of a filing fee in
the amount of Three Hundred Pesos
(P300.00) and the legal research fee
as required by law.
and stresses that there is abundant jurisprudence
holding that the payment of the filing fee is essential
to the timeliness of the filling of the petition itself. He
cites many rulings of the Court to this effect,
specifically Manchester v. Court of Appeals. 1
For his part, the private respondent denies that the
filing fee was paid out of time. In fact he says, it was
flied ahead of time. His point is that when he filed his
"Petition for Quo Warranto with Prayer for Immediate
Annulment of Proclamation and Restraining Order or
Injunction" on January 26, 1988, the COMELEC
treated it as a pre-proclamation controversy and
docketed it as SPC Case No. 88-288. No docket fee
was collected although it was offered. It was only on
February 8, 1988, that the COMELEC decided to treat
his petition as solely for quo warranto and re-docketed
it as EPC Case No. 88-19, serving him notice on
February 10, 1988. He immediately paid the filing fee
on that date.
The private respondent argues further that during the
period when the COMELEC regarded his petition as a
pre-proclamation controversy, the time for filing an
election protest or quo warranto proceeding was
deemed suspended under Section 248 of the Omnibus
Election Code. 2 At any rate, he says, Rule 36, Section
5, of the COMELEC Rules of Procedure cited by the
petitioner, became effective only on November 15,
1988, seven days after publication of the said Rules in
the Official Gazette pursuant to Section 4, Rule 44
thereof. 3 These rules could not retroact to January
26,1988, when he filed his petition with the COMELEC.
In his Reply, the petitioner argues that even if the
Omnibus Election Code did not require it, the payment
of filing fees was still necessary under Res. No. 1996
and, before that, Res. No. 1450 of the respondent
COMELEC, promulgated on January 12, 1988, and
February 26, 1980, respectively. To this, the private
respondent counters that the latter resolution was
intended for the local elections held on January 30,
1980, and did not apply to the 1988 local elections,
which were supposed to be governed by the first-
mentioned resolution. However, Res. No. 1996 took
effect only on March 3, 1988, following the lapse of
seven days after its publication as required by RA No.
6646, otherwise known as the Electoral Reform Law of
1987, which became effective on January 5, 1988. Its
Section 30 provides in part:
 Sec. 30. Effectivity of Regulations and
Orders of the Commission. — The
rules and regulations promulgated by
the Commission shall take effect on
the seventh day after their publication
in the Official Gazette or in at least (2)
daily newspapers of general circulation
in the Philippines.
The Court has considered the arguments of the parties
and holds that the petition for quo warranto was filed
on time. We agree with the respondents that the fee
was paid during the ten-day period as extended by the
pendency of the petition when it was treated by the
COMELEC as a pre-proclamation proceeding which did
not require the payment of a filing fee. At that, we
reach this conclusion only on the assumption that the
requirement for the payment of the fees in quo
warranto proceedings was already effective. There is
no record that Res. No. 1450 was even published; and
as for Res. No. 1996, this took effect only on March 3,
1988, seven days after its publication in the February
25, 1988 issues of the Manila Chronicle and the
Philippine Daily Inquirer, or after the petition was filed.
The petitioner forgets Tañ;ada v. Tuvera 4 when he
argues that the resolutions became effective
"immediately upon approval" simply because it was so
provided therein. We held in that case that publication
was still necessary under the due process clause
despite such effectivity clause.
In any event, what is important is that the filing fee
was paid, and whatever delay there may have been is
not imputable to the private respondent's fault or
neglect. It is true that in the Manchester Case, we
required the timely payment of the filing fee as a
precondition for the timeliness of the filing of the case
itself. In Sun Insurance Office, Ltd. v.
Asuncion, 5 however this Court, taking into account
the special circumstances of that case, declared:
This Court reiterates the rule that the
trial court acquires jurisdiction over a
case only upon the payment of the
prescribed filing fee. However, the
court may allow the payment of the
said fee within a reasonable time. In
the event of non-compliance
therewith, the case shall be dismissed.
The same idea is expressed in Rule 42, Section 18, of
the COMELEC Rules of Procedure adopted on June 20,
1988, thus:
Sec. 18. Non-payment of prescribed
fees. — If the fees above prescribed
are not paid, the Commission may
refuse to take action thereon until they
are paid and may dismiss the action or
the proceeding. (Emphasis supplied.)
27
The Court notes that while arguing the technical point
that the petition for quo warranto should be dismissed
for failure to pay the filing fee on time, the petitioner
would at the same time minimize his alleged lack of
citizenship as "a futile technicality," It is regrettable,
to say the least, that the requirement of citizenship as
a qualification for public office can be so demeaned.
What is worse is that it is regarded as an even less
important consideration than the reglementary period
the petitioner insists upon.
This matter should normally end here as the sole issue
originally raised by the petitioner is the timeliness of
the quo warranto proceedings against him. However,
as his citizenship is the subject of that proceeding, and
considering the necessity for an early resolution of
that more important question clearly and urgently
affecting the public interest, we shall directly address
it now in this same action.
The Court has similarly acted in a notable number of
cases, thus:
From the foregoing brief statement of
the nature of the instant case, it would
appear that our sole function in this
proceeding should be to resolve the
single issue of whether or not the
Court of Appeals erred in ruling that
the motion for new trial of the GSIS in
question should indeed be deemed pro
forma.But going over the extended
pleadings of both parties, the Court is
immediately impressed that
substantial justice may not be timely
achieved, if we should decide this case
upon such a technical ground alone.
We have carefully read all the
allegations and arguments of the
parties, very ably and
comprehensively expounded by
evidently knowledgeable and unusually
competent counsel, and we feel we
can better serve the interests of
justice by broadening the scope of our
inquiry, for as the record before us
stands, we see that there is enough
basis for us to end the basic
controversy between the parties here
and now, dispensing, however, with
procedural steps which would not
anyway affect substantially the merits
of their respective claims. 6
xxx
While it is the fault of the petitioner for
appealing to the wrong court and
thereby allowing the period for appeal
to lapse, the more correct procedure
was for the respondent court to
forward the case to the proper court
which was the Court of Appeals for
appropriate action. Considering,
however, the length of time that this
case has been pending, we apply the
rule in the case of Del Castillo v.
Jaymalin, (112 SCRA 629) and follow
the principle enunciated in Alger
Electric, Inc. v. Court of Appeals, (135
SCRA 37) which states:
... it is a cherished rule
of procedure for this
Court to always strive
to settle the entire
controversy in a single
proceeding leaving no
root or branch to bear
the seeds of future
litigation. No useful
purpose will be served
if this case is
remanded to the trial
court only to have its
decision raised again
to the Intermediate
Appellate Court and
from there to this
Court. (p. 43)
Only recently in the case of Beautifont,
Inc., et al. v. Court of Appeals, et
al. (G.R. No. 50141, January 29,
1988), we stated that:
... But all those relevant facts are now
before this Court. And those facts
dictate the rendition of a verdict in the
petitioner's favor. There is therefore
no point in referring the case back to
the Court of Appeals. The facts and the
legal propositions involved will not
change, nor should the ultimate
judgment. Considerable time has
already elapsed and, to serve the ends
of justice, it is time that the
controversy is finally laid to rest. (See
Sotto v. Samson, 5 SCRA 733;
Republic v. Paredes, 108 Phil. 57;
Lianga Lumber Co. v. Lianga Timber
Co., Inc., 76 SCRA 197; Erico v. Heirs
of Chigas, 98 SCRA 575; Francisco v.
City of Davao, 12 SCRA 628; Valencia
v. Mabilangan, 105 Phil.
162).lâwphî1.ñèt Sound practice seeks
to accommodate the theory which
avoids waste of time, effort and
expense, both to the parties and the
government, not to speak of delay in
the disposal of the case (cf. Fernandez
v. Garcia, 92 Phil. 592, 597). A
marked characteristic of our judicial
28
set-up is that where the dictates of
justice so demand ... the Supreme
Court should act, and act with
finality.' (Li Siu Liat v. Republic, 21
SCRA 1039, 1046, citing Samal v. CA,
99 Phil. 230 and U.S. v. Gimenez, 34
Phil. 74). In this case, the dictates of
justice do demand that this Court act,
and act with finality. 7
xxx
Remand of the case to the lower court
for further reception of evidence is not
necessary where the court is in a
position to resolve the dispute based
on the records before it. On many
occasions, the Court, in the public
interest and the expeditious
administration of justice, has resolved
actions on the merits instead of
remanding them to the trial court for
further proceedings, such as where the
ends of justice would not be subserved
by the remand of the case or when
public interest demands an early
disposition of the case or where the
trial court had already received all the
evidence of the parties. 8
This course of action becomes all the more justified in
the present case where, to repeat for stress, it is
claimed that a foreigner is holding a public office.
We also note in his Reply, the petitioner says:
In adopting private respondent's
comment, respondent COMELEC
implicitly adopted as "its own" private
respondent's repeated assertion that
petitioner is no longer a Filipino
citizen. In so doing, has not
respondent COMELEC effectively
disqualified itself, by reason of
prejudgment, from resolving the
petition for quo warranto filed by
private respondent still pending before
it? 9
This is still another reason why the Court has seen fit
to rule directly on the merits of this case.
Going over the record, we find that there are two
administrative decisions on the question of the
petitioner's citizenship. The first was rendered by the
Commission on Elections on May 12, 1982, and found
the petitioner to be a citizen of the Philippines. 10 The
second was rendered by the Commission on
Immigration and Deportation on September 13, 1988,
and held that the petitioner was not a citizen of the
Philippines. 11
The first decision was penned by then COMELEC
Chigas, Vicente Santiago, Jr., with Commissioners
Pabalate Savellano and Opinion concurring in full and
Commissioner Bacungan concurring in the dismissal of
the petition "without prejudice to the issue of the
respondent's citizenship being raised anew in a proper
case." Commissioner Sagadraca reserved his vote,
while Commissioner Felipe was for deferring decision
until representations shall have been made with the
Australian Embassy for official verification of the
petitioner's alleged naturalization as an Australian.
The second decision was unanimously rendered by
Chairman Miriam Defensor-Santiago and
Commissioners Alano and Geraldez of the Commission
on Immigration and Deportation. It is important to
observe that in the proceeding before the COMELEC,
there was no direct proof that the herein petitioner
had been formally naturalized as a citizen of Australia.
This conjecture, which was eventually rejected, was
merely inferred from the fact that he had married an
Australian citizen, obtained an Australian passport,
and registered as an alien with the CID upon his
return to this country in 1980.
On the other hand, the decision of the CID took into
account the official statement of the Australian
Government dated August 12, 1984, through its
Consul in the Philippines, that the petitioner was still
an Australian citizen as of that date by reason of his
naturalization in 1976. That statement 12 is
reproduced in full as follows:
I, GRAHAM COLIN WEST, Consul of Australia in the
Philippines, by virtue of a certificate of appointment
signed and sealed by the Australian Minister of State
for Foreign Affairs on 19 October 1983, and recognized
as such by Letter of Patent signed and sealed by the
Philippines Acting Minister of Foreign Affairs on 23
November 1983, do hereby provide the following
statement in response to the subpoena Testificandum
dated 9 April 1984 in regard to the Petition for
disqualification against RAMON LABO, JR. Y LOZANO
(SPC No. 84-73), and do hereby certify that the
statement is true and correct.
STATEMENT
A) RAMON LABO, JR. Y LOZANO, date
of birth 23 December 1934, was
married in the Philippines to an
Australian citizen. As the spouse of an
Australian citizen, he was not required
to meet normal requirements for the
grant of citizenship and was granted
Australian citizenship by Sydney on 28
July 1976.
B) Any person over the age of 16
years who is granted Australian
citizenship must take an oath of
29
allegiance or make an affirmation of
allegiance. The wording of the oath of
affirmation is: "I ..., renouncing all
other allegiance ..." etc. This need not
necessarily have any effect on his
former nationality as this would
depend on the citizenship laws of his
former country.
C) The marriage was declared void in
the Australian Federal Court in Sydney
on 27 June 1980 on the ground that
the marriage had been bigamous.
D) According to our records LABO is
still an Australian citizen.
E) Should he return to Australia, LABO
may face court action in respect of
Section 50 of Australian Citizenship Act
1948 which relates to the giving of
false or misleading information of a
material nature in respect of an
application for Australian citizenship. If
such a prosecution was successful, he
could be deprived of Australian
citizenship under Section 21 of the
Act.
F) There are two further ways in which
LABO could divest himself of Australian
citizenship:
(i) He could make a declaration of
Renunciation of Australian citizenship
under Section 18 of the Australian
Citizenship Act, or
(ii) If he acquired another nationality,
(for example, Filipino) by a formal and
voluntary act other than marriage,
then he would automatically lose as
Australian citizenship under Section 17
of the Act.
IN WITNESS WHEREOF, I HAVE
HEREUNTO SET MAY HAND AND SEAL
OF THE AUSTRALIAN EMBASSY,
MANILA, THIS 12th DAY OF APRIL
1984. DONE AT MANILA IN THE
PHILIPPINES.
(Signed) GRAHAM C. WEST Consul
This was affirmed later by the letter of
February 1, 1988, addressed to the
private respondent by the Department
of Foreign Affairs reading as follows: 13
Sir:
 With reference to your letter dated 1
February 1988, I wish to inform you
that inquiry made with the Australian
Government through the Embassy of
the Philippines in Canberra has elicited
the following information:
1) That Mr. Ramon L. Labo, Jr.
acquired Australian citizenship on 28
July 1976.
2) That prior to 17 July 1986, a
candidate for Australian citizenship
had to either swear an oath of
allegiance or make an affirmation of
allegiance which carries a renunciation
of "all other allegiance.
Very truly yours, For the Secretary of
Foreign Affairs: (SGD) RODOLFO
SEVERINO, JR. Assistant Secretary
The decision also noted the oath of allegiance taken by
every naturalized Australian reading as follows:
OATH OF ALLEGIANCE
I, A.B., renouncing all other allegiance,
swear by Almighty God that I will be
faithful and bear true allegiance to Her
Majesty Elizabeth the Second, Queen
of Australia, Her heirs and successors
according to law, and that I will
faithfully observe the laws of Australia
and fulfill my duties as an Australian
citizen. 14
and the Affirmation of Allegiance, which declares:
AFFIRMATION OF ALLEGIANCE
I, A.B., renouncing all other allegiance,
solemnly and sincerely promise and
declare that I will be faithful and bear
true allegiance to Her Majesty
Elizabeth the Second, Queen of
Australia, Her heirs and successors
according to law, and that I will
faithfully observe the Laws of Australia
and fulfill my duties as an Australian
citizen. 15
The petitioner does not question the authenticity of
the above evidence. Neither does he deny that he
obtained Australian Passport No. 754705, which he
used in coming back to the Philippines in 1980, when
he declared before the immigration authorities that he
was an alien and registered as such under Alien
Certificate of Registration No. B-323985. 16 He later
asked for the change of his status from immigrant to a
30
returning former Philippine citizen and was granted
Immigrant Certificate of Residence No. 223809. 17 He
also categorically declared that he was a citizen of
Australia in a number of sworn statements voluntarily
made by him and. even sought to avoid the
jurisdiction of the barangay court on the ground that
he was a foreigner. 18
The decision of the COMELEC in 1982 quaintly
dismisses all these acts as "mistakes" that did not
divest the petitioner of his citizenship, although, as
earlier noted, not all the members joined in this
finding. We reject this ruling as totally baseless. The
petitioner is not an unlettered person who was not
aware of the consequences of his acts, let alone the
fact that he was assisted by counsel when he
performed these acts.
The private respondent questions the motives of the
COMELEC at that time and stresses Labo's political
affiliation with the party in power then, but we need
not go into that now.
There is also the claim that the decision can no longer
be reversed because of the doctrine of res judicata,
but this too must be dismissed. This doctrine does not
apply to questions of citizenship, as the Court has
ruled in several cases. 19 Moreover, it does not appear
that it was properly and seasonably pleaded, in a
motion to dismiss or in the answer, having been
invoked only when the petitioner filed his reply 20 to
the private respondent's comment. Besides, one of the
requisites of res judicata, to wit, identity of parties, is
not present in this case.
The petitioner's contention that his marriage to an
Australian national in 1976 did not automatically
divest him of Philippine citizenship is irrelevant. There
is no claim or finding that he automatically ceased to
be a Filipino because of that marriage. He became a
citizen of Australia because he was naturalized as such
through a formal and positive process, simplified in his
case because he was married to an Australian citizen.
As a condition for such naturalization, he formally took
the Oath of Allegiance and/or made the Affirmation of
Allegiance, both quoted above. Renouncing all other
allegiance, he swore "to be faithful and bear true
allegiance to Her Majesty Elizabeth the Second, Queen
of Australia ..." and to fulfill his duties "as an
Australian citizen."
The petitioner now claims that his naturalization in
Australia made him at worst only a dual national and
did not divest him of his Philippine citizenship. Such a
specious argument cannot stand against the clear
provisions of CA No. 63, which enumerates the modes
by which Philippine citizenship may be lost. Among
these are: (1) naturalization in a foreign country; (2)
express renunciation of citizenship; and (3)
subscribing to an oath of allegiance to support the
Constitution or laws of a foreign country, all of which
are applicable to the petitioner. It is also worth
mentioning in this connection that under Article IV,
Section 5, of the present Constitution, "Dual allegiance
of citizens is inimical to the national interest and shall
be dealt with by law."
Even if it be assumed that, as the petitioner asserts,
his naturalization in Australia was annulled after it was
found that his marriage to the Australian citizen was
bigamous, that circumstance alone did not
automatically restore his Philippine citizenship. His
divestiture of Australian citizenship does not concern
us here. That is a matter between him and his adopted
country. What we must consider is the fact that he
voluntarily and freely rejected Philippine citizenship
and willingly and knowingly embraced the citizenship
of a foreign country. The possibility that he may have
been subsequently rejected by Australia, as he claims,
does not mean that he has been automatically
reinstated as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725,
Philippine citizenship may be reacquired by direct act
of Congress, by naturalization, or by repatriation. It
does not appear in the record, nor does the petitioner
claim, that he has reacquired Philippine citizenship by
any of these methods. He does not point to any
judicial decree of naturalization as to any statute
directly conferring Philippine citizenship upon him.
Neither has he shown that he has complied with PD
No. 725, providing that:
... (2) natural-born Filipinos who have
lost their Philippine citizenship may
reacquire Philippine citizenship through
repatriation by applying with the
Special Committee on Naturalization
created by Letter of Instruction No.
270, and, if their applications are
approved, taking the necessary oath of
allegiance to the Republic of the
Philippines, after which they shall be
deemed to have reacquired Philippine
citizenship. The Commission on
Immigration and Deportation shall
thereupon cancel their certificate of
registration. (Emphasis supplied.)
That is why the Commission on Immigration and
Deportation rejected his application for the
cancellation of his alien certificate of registration. And
that is also the reason we must deny his present claim
for recognition as a citizen of the Philippines.
The petitioner is not now, nor was he on the day of
the local elections on January 18, 1988, a citizen of
the Philippines. In fact, he was not even a qualified
voter under the Constitution itself because of his
alienage. 21 He was therefore ineligible as a candidate
for mayor of Baguio City, under Section 42 of the
31
Local Government Code providing in material part as
follows:
Sec. 42. Qualifications. — An elective
local official must be a citizen of the
Philippines, at least twenty-three years
of age on election day, a qualified
voter registered as such in the
barangay, municipality, city or
province where he proposes to be
elected, a resident therein for at least
one year at the time of the filing of his
certificate of candidacy, and able to
read and write English, Filipino, or any
other local language or dialect.
The petitioner argues that his alleged lack of
citizenship is a "futile technicality" that should not
frustrate the will of the electorate of Baguio City, who
elected him by a "resonant and thunderous majority."
To be accurate, it was not as loud as all that, for his
lead over the second-placer was only about 2,100
votes. In any event, the people of that locality could
not have, even unanimously, changed the
requirements of the Local Government Code and the
Constitution. The electorate had no power to permit a
foreigner owing his total allegiance to the Queen of
Australia, or at least a stateless individual owing no
allegiance to the Republic of the Philippines, to preside
over them as mayor of their city. Only citizens of the
Philippines have that privilege over their countrymen.
The probability that many of those who voted for the
petitioner may have done so in the belief that he was
qualified only strengthens the conclusion that the
results of the election cannot nullify the qualifications
for the office now held by him. These qualifications are
continuing requirements; once any of them is lost
during incumbency, title to the office itself is deemed
forfeited. In the case at bar, the citizenship and voting
requirements were not subsequently lost but were not
possessed at all in the first place on the day of the
election. The petitioner was disqualified from running
as mayor and, although elected, is not now qualified
to serve as such.
Finally, there is the question of whether or not the
private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor.
He cannot. The simple reason is that as he obtained
only the second highest number of votes in the
election, he was obviously not the choice of the people
of Baguio city.
The latest ruling of the Court on this issue is Santos v.
Commission on Elections 22 decided in 1985. In that
case, the candidate who placed second was
proclaimed elected after the votes for his winning
rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregarded as
stray. In effect, the second placer won by default.
That decision was supported by eight members of the
Court then 23 with three dissenting 24 and another two
reserving their vote. 25 One was on official leave. 26
Re-examining that decision, the Court finds, and so
holds, that it should be reversed in favor of the earlier
case of Geronimo v. Ramos, 27 Which represents the
more logical and democratic rule. That case, which
reiterated the doctrine first announced in 1912
in Topacio vs. Paredes 28 was supported by ten
members of the Court 29 without any dissent, although
one reserved his vote, 30 another took no part 31 and
two others were on leave. 32 There the Court held:
... it would be extremely repugnant to
the basic concept of the
constitutionally guaranteed right to
suffrage if a candidate who has not
acquired the majority or plurality of
votes is proclaimed a winner and
imposed as the representative of a
constituency, the majority of which
have positively declared through their
ballots that they do not choose him.
Sound policy dictates that public
elective offices are filled by those who
have received the highest number of
votes cast in the election for that
office, and it is a fundamental Idea in
all republican forms of government
that no one can be declared elected
and no measure can be declared
carried unless he or it receives a
majority or plurality of the legal votes
cast in the election. (20 Corpus Juris
2nd, S 243, p. 676.)
priceless gift that, out of more than a hundred other
nationalities, God has seen fit to grant him. Having
been so endowed, he must not lightly yield this
precious advantage, rejecting it for another land that
may offer him material and other attractions that he
may not find in his own country. To be sure, he has
the right to renounce the Philippines if he sees fit and
transfer his allegiance to a state with more
allurements for him. 33 But having done so, he cannot
expect to be welcomed back with open arms once his
taste for his adopted country turns sour or he is
himself disowned by it as an undesirable alien.
Philippine citizenship is not a cheap commodity that
can be easily recovered after its renunciation. It may
be restored only after the returning renegade makes a
formal act of re-dedication to the country he has
abjured and he solemnly affirms once again his total
and exclusive loyalty to the Republic of the Philippines.
This may not be accomplished by election to public
office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby
declared NOT a citizen of the Philippines and therefore
DISQUALIFIED from continuing to serve as Mayor of
Baguio City. He is ordered to VACATE his office and
surrender the same to the Vice-Mayor of Baguio City,
once this decision becomes final and executory. The
temporary restraining order dated January 31, 1989,
is LIFTED.
Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes,
Griñ;o-Aquino Medialdea and Regalado, JJ., concur.

The fact that the candidate who

obtained the highest number of votes
is later declared to be disqualified or
not eligible for the office to which he
was elected does not necessarily
entitle the candidate who obtained the
second highest number of votes to be
declared the winner of the elective
office. The votes cast for a dead,
disqualified, or non-eligible person
may not be valid to vote the winner
into office or maintain him there.
However, in the absence of a statute
which clearly asserts a contrary
political and legislative policy on the
matter, if the votes were cast in the
sincere belief that the candidate was
alive, qualified, or eligible, they should
not be treated as stray, void or
meaningless.

It remains to stress that the citizen of the Philippines

must take pride in his status as such and cherish this

32
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
33
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.
34
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.
35
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:
36
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 of guilt is strong. Under this provision, intervention
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
37
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
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
38
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.
39
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
40
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
41
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.
42
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 This Decision is immediately executory.
suspended under this rule because Arnado failed to file
his answer to the petition seeking his disqualification. Let a copy of this Decision be served personally upon
Arnado only filed his Answer on 15 June 2010, long the parties and the Commission on Elections.
after the elections and after he was already
proclaimed as the winner.
No pronouncement as to costs.

The disqualifying circumstance surrounding Arnado’s

SO ORDERED.
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.
43
G.R. No. 150605 December 10, 2002
EUFROCINO M. CODILLA, SR., petitioner,
vs.
HON. JOSE DE VENECIA, ROBERTO P. NAZARENO,
in their official capacities as Speaker
and Secretary-General of the House of
Representatives, respectively,
and MA. VICTORIA L. LOCSIN, respondents.
DECISION
PUNO, J.:
In a democracy, the first self-evident principle is that
he who has been rejected by the people cannot
represent the people. Respondent Ma. Victoria L.
Locsin lost to petitioner Eufrocino M. Codilla, Sr. by
17,903 votes in the May 14, 2001 elections as
Representative of the 4th legislative district of Leyte.
The most sophisticated legal alchemy cannot justify
her insistence that she should continue governing the
people of Leyte against their will. The enforcement of
the sovereign will of the people is not subject to the
discretion of any official of the land.
This is a Petition for Mandamus and Quo Warranto
directed against respondents Speaker Jose De Venecia
and Secretary-General Roberto P. Nazareno of the
House of Representatives to compel them to
implement the decision of the Commission on
Elections en banc by (a) administering the oath of
office to petitioner as the duly-elected Representative
of the 4th legislative district of Leyte, and (b)
registering the name of the petitioner in the Roll of
Members of the House of Representatives, and against
respondent Ma. Victoria L. Locsin for usurping,
intruding into, and unlawfully holding and exercising
the said public office on the basis of a void
proclamation.
The facts are uncontroverted. Petitioner and
respondent Locsin were candidates for the position of
Representative of the 4th legislative district of Leyte
during the May 14, 2001 elections. At that time,
petitioner was the Mayor of Ormoc City while
respondent Locsin was the sitting Representative of
the 4th legislative district of Leyte. On May 8, 2001,
one Josephine de la Cruz, a registered voter of
Kananga, Leyte, filed directly with the COMELEC main
office a Petition for Disqualification1 against the
petitioner for indirectly soliciting votes from the
registered voters of Kananga and Matag-ob, Leyte, in
violation of Section 68 (a) of the Omnibus Election
Code. It was alleged that the petitioner used the
equipments and vehicles owned by the City
Government of Ormoc to extract, haul and distribute
gravel and sand to the residents of Kananga and
Matag-ob, Leyte, for the purpose of inducing,
influencing or corrupting them to vote for him.
Attached to the petition are the (a) Affidavits of Basilio
44
Bates,2 Danilo D. Maglasang,3 Cesar A. Laurente;4 (b)
Joint Affidavit of Agripino C. Alferez and Rogelio T.
Salvera;5 (c) Extract Records from the Police Blotter
executed by Police Superintendent Elson G.
Pecho;6 and (d) Photographs showing government
dump trucks, haulers and surfacers and portions of
public roads allegedly filled-in and surfaced through
the intercession of the respondent.7 The case was
docketed as SPA No. 01-208 and assigned to the
COMELEC's Second Division.
On May 10, 2001, the COMELEC Second Division
issued an Order delegating the hearing and reception
of evidence on the disqualification case to the Office of
the Regional Director of Region VIII.8 On May 11,
2001, the COMELEC Second Division sent a telegram
informing the petitioner that a disqualification case
was filed against him and that the petition was
remanded to the Regional Election Director for
investigation.9
At the time of the elections on May 14, 2001, the
Regional Election Director had yet to hear the
disqualification case. Consequently, petitioner was
included in the list of candidates for district
representative and was voted for. The initial results
showed that petitioner was the winning candidate.
On May 16, 2001, before the counting could be
finished, respondent Locsin joined as intervenor in SPA
No. 128 and filed a "Most Urgent Motion to
Suspend Proclamation of Respondent [herein
petitioner]" with the COMELEC Second
Division.10 Respondent Locsin alleged that "the
evidence on record against respondent is very strong
and unless rebutted remains." She urged the
Commission to set the hearing of the disqualification
case and prayed for the suspension of the
proclamation of the respondent "so as not to render
the present disqualification case moot and
academic." A copy of the Motion was allegedly
served on petitioner by registered mail but no
registry receipt was attached thereto.11
On May 18, 2001, respondent Locsin filed a "Second
Most Urgent Motion to Suspend Proclamation of
Respondent" stating "there is clear and convincing
evidence showing that the respondent is undoubtedly
guilty of the charges against him and this remains
unrebutted by the respondent." A copy of the Motion
was sent to the petitioner and the corresponding
registry receipt was attached to the pleading.12 The
records, however, do not show the date the petitioner
received the motion.
On the same day, May 18, 2001, the COMELEC
Second Division issued an Ex-Parte Order13 directing
the Provincial Board of Canvassers of Leyte to suspend
the proclamation of petitioner in case he obtains the
highest number of votes by reason of "the seriousness
of the allegations in the petition for
disqualification."14 It also directed the Regional
Election Director to speed up the reception of evidence
and to forward immediately the complete records
together with its recommendation to the Office of the
Clerk of the Commission.15 As a result, petitioner was
not proclaimed as winner even though the final
election results showed that he garnered 71,350 votes
as against respondent Locsin's 53,447 votes.16
At the time that the COMELEC Second Division issued
its Order suspending his proclamation, the petitioner
has yet to be summoned to answer the petition for
disqualification. Neither has said petition been set for
hearing. It was only on May 24, 2001 that petitioner
was able to file an Answer to the petition for his
disqualification with the Regional Election Director,
alleging that: (a) he has not received the summons
together with the copy of the petition; (b) he became
aware of the matter only by virtue of the telegram
sent by the COMELEC Second Division informing him
that a petition was filed against him and that the
Regional Election Director was directed to investigate
and receive evidence therewith; and (c) he obtained a
copy of the petition from the COMELEC Regional Office
No. 8 at his own instance.17 Petitioner further alleged
that the maintenance, repair and rehabilitation of
barangay roads in the municipalities of Matag-ob and
Kananga were undertaken without his authority,
participation or directive as City Mayor of Ormoc. He
attached in his Answer the following: (a) Affidavit of
Alex B. Borinaga;18 (b) Copy of the Excerpt from the
Minutes of the Regular Session of Barangay
Monterico;19 (c) Affidavit of Wilfredo A. Fiel;20 (d)
Supplemental Affidavit of Wilfredo A. Fiel;21 and (e)
Affidavit of Arnel Y. Padayao.22
On May 25, 2001, petitioner filed a Motion to Lift
Order of Suspension,23 alleging that (a) he did not
receive a copy of the Motion to Suspend his
Proclamation and hence, was denied the right to rebut
and refute the allegations in the Motion; (b) that he
did not receive a copy of the summons on the petition
for disqualification and after personally obtaining a
copy of the petition, filed the requisite answer only on
May 24, 2001; and (c) that he received the telegraph
Order of the COMELEC Second Division suspending his
proclamation only on May 22, 2001. He attached
documentary evidence in support of his Motion to Lift
the Suspension of his proclamation, and requested the
setting of a hearing on his Motion.24
On May 30, 2001, an oral argument was conducted on
the petitioner's Motion and the parties were ordered to
submit their respective memoranda.25 On June 4,
2001, petitioner submitted his Memorandum26 in
support of his Motion assailing the suspension of his
proclamation on the grounds that: (a) he was not
afforded due process; (b) the order has no legal and
factual basis; and (c) evidence of his guilt is patently
inexistent for the purpose of suspending his
proclamation. He prayed that his proclamation as
winning congressional candidate be expediently made,
45
even while the disqualification case against him
continue upon due notice and hearing. He attached
the following additional evidence in his Memorandum:
(a) Copy of certification issued by PNP Senior
Inspector Benjamin T. Gorre;27 (b) Certification issued
by Elena S. Aviles, City Budget Officer;28 (c) Copy of
certification issued by Wilfredo A. Fiel, City Engineer of
Ormoc;29 (d) Joint Affidavit of Antonio Patenio and
Pepito Restituto;30and (e) Affidavits of Demetrio
Brion,31 Igmedio Rita32 and Gerardo
Monteza.33 Respondent Locsin's memorandum also
contained additional affidavits of his witnesses.34
Petitioner's Motion to Lift the Order of
Suspension, however, was not resolved. Instead,
on June 14, 2001, the COMELEC Second Division
promulgated its Resolution35 in SPA No. 01-
208 which found the petitioner guilty of indirect
solicitation of votes and ordered his disqualification.
It directed the "immediate proclamation of the
candidate who garnered the highest number of
votes xxx." A copy of said Resolution was sent by
fax to the counsel of petitioner in Cebu City in the
afternoon of the following day.36
By virtue of the said Resolution, the votes cast for
petitioner, totaling 71,350, were declared stray
even before said Resolution could gain finality.
On June 15, 2001, respondent Locsin was proclaimed
as the duly elected Representative of the 4th
legislative district of Leyte by the Provincial Board of
Canvassers of Leyte. It issued a Certificate of Canvass
of Votes and Proclamation of the Winning Candidates
for Member of the House of Representatives stating
that "MA. VICTORIA LARRAZABAL LOCSIN obtained a
total of FIFTY THREE THOUSAND FOUR HUNDRED
FORTY SEVEN (53,447) votes representing
the highest number of votes legally cast in the
legislative district for said office."37 Respondent
Locsin took her oath of office on June 18, 2001
and assumed office on June 30, 2001.
On June 20, 2001, petitioner seasonably filed with
the COMELEC en banc a Motion for
Reconsideration38from the June 14, 2001 Resolution
of the COMELEC Second Division which ordered his
disqualification, as well as an Addendum to the Motion
for Reconsideration.39 Petitioner alleged in his Motion
for Reconsideration that the COMELEC Second Division
erred: (1) in disqualifying petitioner on the
basis solely of the dubious declaration of the
witnesses for respondent Locsin; (2) in adopting in
toto the allegations of the witnesses for respondent
Locsin; and (3) in promulgating the resolution in
violation of its own rules of procedure and in directing
therein the immediate proclamation of the second
highest 'vote getter.' Respondent Locsin and her co-
petitioner in SPA No. 01-208 filed a joint Opposition to
the Motion for Reconsideration.40
On June 21, 2001, petitioner filed with the COMELEC
en banc a Petition for Declaration of Nullity of
Proclamation,41 docketed as SPC No. 01-324,
assailing the validity of the proclamation of respondent
Locsin who garnered only the second highest
number of votes. Respondent Locsin filed her Answer
alleging that: (1) the Commission lost jurisdiction to
hear and decide the case because of the proclamation
of Locsin and that any question on the "election,
returns, and qualification" of Locsin can only be taken
cognizance of by the House of Representatives
Electoral Tribunal (HRET); (2) the case should be filed
and heard in the first instance by a Division of the
Commission and not directly by the Commission en
banc; and (3) the proclamation of Locsin was valid
because she received the highest number of valid
votes cast, the votes of Codilla being stray.
On June 28, 2001, petitioner filed an Urgent
Manifestation42 stating that he was deprived of a fair
hearing on the disqualification case because while the
documentary evidence adduced in his
Memorandum was in support of his Motion for
the lifting of the suspension of his proclamation,
the COMELEC Second Division instead ruled on
the main disqualification case. In consonance with
his prayer that a full-dress hearing be conducted on
the disqualification case, he submitted Affidavits of
additional witnesses43 which he claims would refute
and substantially belie the allegations of
petitioner's/intervenor's witnesses. A Eufrocino M. Codilla, Sr., and to
Reply,44 Rejoinder45 and Sur-Rejoinder46were
respectively filed by the parties. Consequently, the
motion for reconsideration in SPA No. 01-208 and the
petition for declaration of nullity in SPC No. 01-324
were submitted for resolution.
From the records, it appears that initially, a
"Resolution" penned by Commissioner Rufino S.B.
Javier, dated July 24, 2001, was submitted to the
Office of the Chairman, dismissing the petition for
declaration of nullity for lack of jurisdiction and
denying the motion for reconsideration filed by
petitioner Codilla.47 Commissioners Florentino A.
Tuason, Jr. and Resurreccion Z. Borra submitted their
respective dissenting opinions48 to the Javier
resolution. It bears emphasis that Commissioner
Tuason, Jr. was the ponente of the Resolution of the
COMELEC Second Division which ordered the
disqualification of petitioner but after considering the
additional evidence presented by the latter, he
concluded that the totality of the evidence was clearly
in petitioner's favor. Equally worth mentioning is the
fact that Commissioner Ralph C. Lantion, who was the
Presiding Commissioner of the Second Division, also
dissented and voted to grant Codilla's motion for
reconsideration on the ground that "[T]he people of
Leyte have spoken and I respect the electorate's will.
x x x." 49
On August 29, 2001, then COMELEC Chairman Alfredo
L. Benipayo issued a "Vote and Opinion and Summary
of Votes" reversing the resolution of the Second
Division and declaring the proclamation of
46
respondent Locsin as null and void. The dispositive
portion reads:
"JUDGMENT
WHEREFORE, in view of all the foregoing
considerations, I concur with Commissioner
Resurreccion Z. Borra, Commissioner Florentino A.
Tuason, Jr. and Commissioner Ralph C. Lantion, in
SPA No. 01-208, to GRANT the motion for
reconsideration and to REVERSE the resolution of the
Commission (Second Division) promulgated on June 1,
2001, disqualifying Codilla; and subsequently, in SPC
No. 01-324, to GRANT the petition of Eufrocino M.
Codilla, Sr., and declare as null and void the
proclamation of losing candidate Locsin.
Accordingly:
1. On the Motion for Reconsideration of the
disqualification resolution against Codilla,
promulgated by the Commission (Second
Division) on June 14, 2001 (SPA No. 01-208),
I vote:
(a) to GRANT the Motion for
Reconsideration of respondent-movant
REVERSE the Resolution of the
Commission (Second Division)
promulgated on June 14, 2001, for
insufficiency of evidence;
(b) to lift the order of suspension of
proclamation of petitioner Codilla,
issued by the Commission (Second
Division) on May 18, 2001, having
been issued without hearing and
without any finding that the evidence
of guilt of petitioner Codilla is strong
and, thus, null and void;
(c) to nullify the order contained in the
Resolution of the Commission (Second
Division) promulgated on June 14,
2001, for "(t)he immediate
proclamation of the candidate who
garnered the highest number of votes,
to the exclusion of respondent" and
the concurrent order for "the Provincial
Board of Canvasser (sic) of Leyte to
immediately reconvene and thereafter
proclaim forthwith the candidate who
obtained the highest number of votes
counting out the Respondent" the
same being violative of election laws,
established jurisprudence, and
resolutions of the Commission;
(d) to nullify the ruling contained in
the Resolution of the Commission
 (Second Division) promulgated o June
14, 2001, that the votes of respondent
Codilla are "considered stray and
invalid" said ruling being issued on the
basis of an inapplicable decision, and
contrary to established jurisprudence;
(e) to order the Provincial Board of
Canvassers of Leyte, upon the finality
of this resolution, to reconvene and
proclaim petitioner Codilla as the
winning candidate for Representative
of the Fourth Legislative district of
Leyte to comply with its ministerial
duty to proclaim the candidate who
garnered the highest number of votes
in the elections for that position; and
(f) to order intervenor-oppositor
Locsin, upon the finality of this
resolution, to vacate the office of
Representative of the House of
Representatives representing the
Fourth legislative district of Leyte and,
for this purpose, to inform the House
of Representatives through the
Honorable Speaker of this resolution
for its attention and guidance; and
2. On the petition for Declaration of Nullity of
proclamation of respondent Ma. Victoria L. Locsin (SPC
No. 01-324), I vote:
(a) to GRANT the petition of Eufrocino M.
Codilla, Sr., and declare as null and void the
proclamation of losing candidate Locsin, the
proclamation being violative of election laws,
established jurisprudence, and resolutions of
the Commission on Elections;
(b) to lift the order of suspension of
proclamation of petitioner Codilla, issued by
the Commission (Second Division) on May 18,
2001, in SPA No. 01-208, having been issued
without hearing and without any finding that
the evidence of guilt of petitioner Codilla is
strong and, thus, null and void;
(c) to nullify the order contained in the
Resolution of the Commission (Second
Division) promulgated on June 14, 2001, in
SPA No. 01-208, for "(t)he immediate
proclamation of the candidate who garnered
the highest number of votes, to the exclusion
of respondent" and the concurrent order for
"the provincial Board of Canvasser (sic) of
Leyte to immediately reconvene and thereafter
proclaim forthwith the candidate who obtained
the highest number of votes counting out the
Respondent" the same being violative of
47
election laws, established jurisprudence, and
resolutions of the Commission;
(d) to nullify the ruling contained in the
Resolution of the Commission (Second
Division) promulgated on June 14, 2001, in
SPA No. 01-208, that the votes of respondent
Codilla are "considered stray and invalid" said
ruling being issued on the basis of an
inapplicable decision, and contrary to
established jurisprudence;
(e) to order the provincial Board of Canvassers
of Leyte, upon the finality of this resolution, to
reconvene and proclaim petitioner Codilla as
the winning candidate for Representative of
the Fourth legislative district of Leyte he (sic)
having garnered the highest number of votes
in the elections for the position; and
(f) to order respondent Locsin, upon the
finality of this resolution, to vacate the office
of Representative of the House of
Representatives representing the Fourth
Legislative district of Leyte and, for this
purpose, to inform the House of
Representatives through the Honorable
Speaker of this resolution for its attention and
guidance.
Summary of Votes
Considering the FOUR (4) VOTES of the Chairman and
Commissioners Resurreccion Z. Borra, Florentino A.
Tuason, Jr., and Ralph C. Lantion, to grant the Motion
for Reconsideration of Codilla and reverse the
disqualification Resolution of the Commission (Second
Division) in SPA No. 01-208, promulgated on June 14,
2001, and as an inevitable consequence, in voting to
grant the petition for declaration of nullity of the
proclamation of Ma. Victoria L. Locsin in SPC No. 01-
324, the verdict/opinion of the Chairman and the three
(3) Commissioners taken together now stands, as it is,
the MAJORITY DECISION of the Commission En Banc
in both cases; and the "Resolution" submitted by three
(3) Commissioners, namely, Commissioner Rufino S.B.
Javier, Commissioner Luzviminda G. Tancangco, and
Commissioner Mehol K. Sadain, is considered, as it is,
the MINORITY DECISION of the Commission En Banc
in both cases.
The MAJORTIY DECISION was arrived at after proper
consultation with those who joined the majority. The
Chairman and the three (3) Commissioners comprising
the majority decided that no one will be assigned to
write a Majority Decision. Instead, each one will write
his own separate opinion. Commissioners Borra,
Tuason, Jr. and the undersigned Chairman submitted
separate opinions. Commissioner Lantion wrote an
explanation on his vote."50
The aforequoted judgment was adopted in a "Vote of
Adoption" signed by Commissioners Ralph C. Lantion,
Resurreccion Z. Borra and Florentino A. Tuason, Jr.51
Respondent Locsin did not appeal from this
decision annulling her proclamation. Instead, she
filed a "Comment and Manifestation"52 with the
COMELEC en banc questioning the procedure and the
manner by which the decision was issued. In addition,
respondent Locsin requested and was issued an
opinion by House of Representatives Executive
Director and Chief Legal Counsel Leonardo B. Palicte
III declaring that the COMELEC has no jurisdiction to
nullify the proclamation of respondent Locsin after she
had taken her oath and assumed office since it is the
HRET which is the sole judge of election, returns and
qualifications of Members of the House.53Relying on
this opinion, respondent Locsin submitted a written
privileged speech to the House during its regular
session on September 4, 2001, where she declared
that she will not only disregard but will openly defy
and disobey the COMELEC en banc resolution ordering
her to vacate her position.54
On September 6, 2001, the COMELEC en banc issued
an Order55 constituting the members of the Provincial
Board of Canvassers of Leyte to implement the
aforesaid decision. It likewise ordered the Board to
reconvene and "proclaim the candidate who obtained
the highest number of votes in the district, as the
duly-elected Representative of the Fourth Legislative
district of Leyte, and accordingly issue a Certificate of
Canvass and Proclamation of Winning Candidate for
Member of the House of Representatives x x x, based
on the city/municipal certificates of canvass submitted
beforehand to the previous Provincial Board of
Canvassers of Leyte x x x."
On September 12, 2001, petitioner Codilla was
proclaimed by the Provincial Board of
Canvassers as the duly-elected Representative of
the 4th legislative district of Leyte, having
obtained a total of 71,350 votes representing the
highest number of votes cast in the district.56 On the
same day, petitioner took his oath of office before
Executive Judge Fortunito L. Madrona of the Regional
Trial Court of Ormoc City.57
On September 14, 2001, petitioner wrote the House of
Representatives, thru respondent Speaker De Venecia,
informing the House of the August 29, 2001 COMELEC
en banc resolution annulling the proclamation of
respondent Locsin, and proclaiming him as the duly-
elected Representative of the 4th legislative district of
Leyte.58 Petitioner also served notice that "I am
assuming the duties and responsibilities
Representative of the fourth legislative district of Leyte
to which position I have been lawfully elected and
proclaimed. On behalf of my constituents, I therefore
expect that all rights and privileges intended for the
position of Representative of the fourth legislative
district of Leyte be accorded to me, including all
physical facilities and staff support." On the basis of
this letter, a Memorandum59 dated October 8, 2001
was issued by Legal Affairs Deputy Secretary-General
Gaudencio A. Mendoza, Jr., for Speaker De Venecia,
stating that "there is no legal obstacle to complying
with the duly promulgated – and now final and
executory – COMELEC Decision of August 29, 2001 x x
x."
These notwithstanding, and despite receipt by the
House of Representatives of a copy of the COMELEC
en banc resolution on September 20, 2001,60 no action
was taken by the House on the letter-appeal of
petitioner. Hence, petitioner sought the assistance of
his party, LAKAS-NUCD-UMDP, which sent a
letter61 addressed to respondent Speaker De Venecia,
dated October 25, 2001, and signed by Party President
Teofisto T. Guingona, Jr., Secretary-General Heherson
T. Alvarez, and Region VIII Party Chairman Sergio
Antonio F. Apostol, requesting the House of
Representatives to act decisively on the matter in
order that petitioner "can avail of whatever remedy is
available should their action remain unfavorable or
otherwise undecisive."
In response, Speaker De Venecia sent a letter62 dated
October 30, 2001, stating that:
"We recognize the finality of the COMELEC decision
and we are inclined to sustain it. However, Rep. Locsin
has officially notified the HOUSE in her privilege
speech, inserted in the HOUSE Journal dated
September 4, 2001, that she shall 'openly defy and
disobey' the COMELEC ruling. This ultimately means
that implementing the decision would result in the
spectacle of having two (2) legislators occupying the
same congressional seat, a legal situation, the only
consideration, that effectively deters the HOUSE's
liberty to take action.
In this light, the accepted wisdom is that the
implementation of the COMELEC decision is a
matter that can be best, and with finality,
adjudicated by the Supreme Court, which,
hopefully, shall act on it most expeditiously."
(emphases supplied)
Hence, the present petition for mandamus and quo
warranto.
Petitioner submits that by virtue of the resolution of
the COMELEC en banc which has become final and
executory for failure of respondent Locsin to appeal
therefrom, it has become the ministerial duty: (1) of
the Speaker of the House of Representatives, as its
as
Administrative Head and Presiding Officer, to
implement the said resolution of the COMELEC en banc
by installing him as the duly-elected Representative of
the 4th legislative district of Leyte; and (2) of the
Secretary-General, as official custodian of the records
of the House, to formally register his name in the Roll
48
of Members of the House and delete the name of
respondent Locsin therefrom. Petitioner further
contends that respondent Locsin has been usurping
and unlawfully holding the public office of
Representative of the 4th legislative district of Leyte
considering that her premature proclamation has been
declared null and void by the COMELEC en banc. He
alleges that the action or inaction of public
respondents has deprived him of his lawful right to
assume the office of Representative of the 4th
legislative district of Leyte.
In his Comment,63 public respondent Speaker De
Venecia alleged that mandamus will not lie to compel
the implementation of the COMELEC decision which is
not merely a ministerial duty but one which requires
the exercise of discretion by the Speaker of the House
considering that: (1) it affects the membership of the
House; and (2) there is nothing in the Rules of the
House of Representatives which imposes a duty on the
House Speaker to implement a COMELEC decision that
unseats an incumbent House member.
In his Comment,64 public respondent Secretary-
General Nazareno alleged that in reading the name of
respondent Locsin during the roll call, and in allowing
her to take her oath before the Speaker-elect and sit
as Member of the House during the Joint Session of
Congress, he was merely performing official acts in
compliance with the opinions65 rendered by House of
Representatives Chief Counsel and Executive Director
Leonardo C. Palicte III stating that the COMELEC has
no jurisdiction to declare the proclamation of
respondent Locsin as null and void since it is the HRET
which is the sole judge of all election, returns and
qualifications of Members of the House. He also
contends that the determination of who will sit as
Member of the House of Representatives is not a
ministerial function and cannot, thus, be compelled by
mandamus.
Respondent Locsin, in her Comment,66 alleged that the
Supreme Court has no original jurisdiction over an
action for quo warranto involving a member of the
House of Representatives for under Section 17, Article
VI of the Constitution it is the HRET which is the sole
judge of all contests relating to the election, returns
and qualifications of Members of the House of
Representatives. She likewise asserts that this Court
cannot issue the writ of mandamus against a co-equal
legislative department without grossly violating the
principle of separation of powers. She contends that
the act of recognizing who should be seated as a bona
fide member of the House of Representatives is not a
ministerial function but a legislative prerogative, the
performance of which cannot be compelled by
mandamus. Moreover, the prayer for a writ of
mandamus cannot be directed against the Speaker
and Secretary-General because they do not have the
authority to enforce and implement the resolution of
the COMELEC.
49
Additionally, respondent Locsin urges that the
resolution of the COMELEC en banc is null and void for
lack of jurisdiction. First, it should have dismissed the
case pending before it after her proclamation and after
she had taken her oath of office. Jurisdiction then was
vested in the HRET to unseat and remove a Member of
the House of Representatives. Second, the petition for
declaration of nullity is clearly a pre-proclamation
controversy and the COMELEC en banc has no original
jurisdiction to hear and decide a pre-proclamation
controversy. It must first be heard by a COMELEC
Division. Third, the questioned decision is actually a
"hodge-podge" decision because of the peculiar
manner in which the COMELEC disposed of the case.
Finally, respondent Locsin asserts that the matter of
her qualification and eligibility has been categorically
affirmed by the HRET when it dismissed the quo
warranto case filed against her, docketed as HRET
Case No. 01-043, entitled "Paciano Travero vs. Ma.
Victoria Locsin," on the ground that "the allegations
stated therein are not proper grounds for a petition for
quo warranto against a Member of the House of
Representatives under section 253 of the Omnibus
Election Code and Rule 17 of the HRET Rules, and that
the petition was filed late."67
In his Reply,68 petitioner asserts that the remedy of
respondent Locsin from the COMELEC decision was to
file a petition for certiorari with the Supreme Court,
not to seek an opinion from the Chief Legal Counsel of
the House of Representatives; that the HRET has no
jurisdiction over a petition for declaration of nullity of
proclamation which is based not on ineligibility or
disloyalty, but by reason that the candidate
proclaimed as winner did not obtain the highest
number of votes; that the petition for annulment of
proclamation is a pre-proclamation controversy and,
hence, falls within the exclusive jurisdiction of the
COMELEC pursuant to section 242 of B.P. Blg.
88169 and section 3, Article IX (C) of the Constitution;
that respondent Speaker De Venecia himself
recognizes the finality of the COMELEC decision but
has decided to refer the matter to the Supreme Court
for adjudication; that the enforcement and
implementation of a final decision of the COMELEC
involves a ministerial act and does not encroach on
the legislative power of Congress; and that the power
to determine who will sit as Member of the House does
not involve an exercise of legislative power but is
vested in the sovereign will of the electorate.
The core issues in this case are: (a) whether the
proclamation of respondent Locsin by the COMELEC
Second Division is valid; (b) whether said
proclamation divested the COMELEC en banc of
jurisdiction to review its validity; and (c) assuming the
invalidity of said proclamation, whether it is the
ministerial duty of the public respondents to recognize
petitioner Codilla, Sr. as the legally elected
Representative of the 4th legislative district of Leyte
vice respondent Locsin.
I 2.e having violated any of Sections 80,
Whether the proclamation of respondent Locsin is
valid.
After carefully reviewing the records of this case, we
find that the proclamation of respondent Locsin is null
and void for the following reasons:
First. The petitioner was denied due process
during the entire proceedings leading to the
proclamation of respondent Locsin.
COMELEC Resolution Nos. 340270 sets the procedure
for disqualification cases pursuant to section 68 of the
Omnibus Election Code, viz:
"C. PETITION TO DISQUALIFY A CANDIDATE
PURSUANT TO SEC. 68 OF THE OMNIBUS ELECTION
CODE AND PETITION TO DISQUALIFY FOR LACK OF
QUALIFICATIONS OR POSSESSING SAME GROUNDS
FOR DISQUALIFICATION
(1) The verified petition to disqualify a
candidate pursuant to Sec. 68 of the Omnibus
Election Code and the verified petition to
disqualify a candidate for lack of qualifications
or possessing same grounds for
disqualification, may be filed any day after the
last day for filing of certificates of candidacy
but not later than the date of proclamation.
(2) The petition to disqualify a candidate
pursuant to Sec. 68 of the Omnibus Election
Code shall be filed in ten (10) legible copies by
any citizen of voting age, or duly registered
political party, organization or coalition of
political parties against any candidate who in
an action or protest in which he is a party is
declared by final decision of a competent court
guilty of, or found by the Commission of:
2.a having given money or other
material consideration to influence,
induce or corrupt the voters or public
officials performing electoral functions;
2.b having committed acts of terrorism
to enhance his candidacy;
2.c having spent in his election
campaign an amount in excess of that
allowed by the Omnibus Election Code;
2.d having solicited, received or made
any contribution prohibited under
Sections 89, 95, 96, 97 and 104 of the
Omnibus Election Code;
50
83, 85, 86 and 261, paragraphs d, e,
k, v, and cc, sub-paragraph 6 of the
Omnibus Election Code, shall be
disqualified from continuing as a
candidate, or if he has been elected,
from holding the office.
xxxxxxxxx
(4) Upon payment of the filing fee of
P1,000.00 and legal research fee of P20.00,
the offices concerned shall docket the petition
and assign to it a docket number which must
be consecutive, according to the order of
receipt and must bear the year and prefixed as
SPA with the corresponding initial of the name
of the office, i.e. SPA (RED) No. C01-001; SPA
(PES) No. C01-001;
(5) Within three (3) days from filing of the
petitions, the offices concerned shall issue
summons to the respondent candidate
together with a copy of the petition and its
enclosures, if any;
(6) The respondent shall be given three (3)
days from receipt of summons within which to
file his verified answer (not a motion to
dismiss) to the petition in ten (10) legible
copies, serving a copy thereof upon the
petitioner. Grounds for Motion to Dismiss may
be raised as an affirmative defense;
(7) The proceeding shall be summary in
nature. In lieu of the testimonies, the parties
shall submit their affidavits or counter-
affidavits and other documentary evidences
including their position paper;
(8) The hearing must be completed within ten
(10) days from the date of the filing of the
answer. The hearing officer concerned shall
submit to the Clerk of the Commission through
the fastest means of communication, his
findings, reports and recommendations within
five (5) days from the completion of the
hearing and reception of evidence together
with the complete records of the case;
(9) Upon receipt of the records of the case of
the findings, reports and recommendation of
the hearing officer concerned, the Clerk of the
Commission shall immediately docket the case
consecutively and calendar the same for raffle
to a division;
(10) The division to whom the case is raffled,
shall after consultation, assign the same to a
member who shall pen the decision, within five
(5) days from the date of consultation."
Resolution No. 3402 clearly requires the COMELEC,
through the Regional Election Director, to issue
summons to the respondent candidate together with a
copy of the petition and its enclosures, if any, within
three (3) days from the filing of the petition for
disqualification. Undoubtedly, this is to afford the
respondent candidate the opportunity to answer the
allegations in the petition and hear his side. To ensure
compliance with this requirement, the COMELEC Rules
of Procedure requires the return of the summons
together with the proof of service to the Clerk of Court
of the COMELEC when service has been
completed, viz:
"Rule 14. Summons
xxxxxxxxx
Section 5. Return.- When the service has been
completed by personal service, the server shall give
notice thereof, by registered mail, to the protestant or
his counsel and shall return the summons to the Clerk
of Court concerned who issued it, accompanied with
the proof of service.
Section 6. Proof of Service.- Proof of service of
summons shall be made in the manner provided for in
the Rules of Court in the Philippines."
Thereafter, hearings, to be completed within ten (10)
days from the filing of the Answer, must be conducted.
The hearing officer is required to submit to the Clerk
of the Commission his findings, reports and
recommendations within five (5) days from the
completion of the hearing and reception of evidence
together with the complete records of the case.
(a) Petitioner was not notified of the petition for
his disqualification through the service of
summons nor of the Motions to suspend his
proclamation.
The records of the case do not show that summons
was served on the petitioner. They do not contain a
copy of the summons allegedly served on the
petitioner and its corresponding proof of service.
Furthermore, private respondent never rebutted
petitioner's repeated assertion that he was not
properly notified of the petition for his disqualification
because he never received summons.71 Petitioner
claims that prior to receiving a telegraphed Order from
the COMELEC Second Division on May 22, 2001,
directing the District Board of Canvassers to suspend
his proclamation, he was never summoned nor
furnished a copy of the petition for his disqualification.
He was able to obtain a copy of the petition and the
May 22 Order of the COMELEC Second Division by
personally going to the COMELEC Regional Office on
May 23, 2001. Thus, he was able to file his Answer to
the disqualification case only on May 24, 2001.
51
More, the proclamation of the petitioner was
suspended in gross violation of section 72 of the
Omnibus Election Code which provides:
"Sec. 72. Effects of disqualification cases and priority.-
The Commission and the courts shall give priority to
cases of disqualification by reason of violation of this
Act to the end that a final decision shall be
rendered not later than seven days before the
election in which the disqualification is sought.
Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be
counted. Nevertheless, if for any reason, a
candidate is not declared by final judgment
before an election to be disqualified and he is
voted for and receives the winning number of
votes in such election, his violation of the
provisions of the preceding sections shall not
prevent his proclamation and assumption to
office." (emphases supplied)
In the instant case, petitioner has not been
disqualified by final judgment when the elections were
conducted on May 14, 2001. The Regional Election
Director has yet to conduct hearing on the petition for
his disqualification. After the elections, petitioner was
voted in office by a wide margin of 17,903. On May
16, 2001, however, respondent Locsin filed a Most
Urgent Motion for the suspension of petitioner's
proclamation. The Most Urgent Motion contained a
statement to the effect that a copy was served to the
petitioner through registered mail. The records reveal
that no registry receipt was attached to prove such
service.72 This violates COMELEC Rules of Procedure
requiring notice and service of the motion to all
parties, viz:
"Section 4. Notice.- Notice of a motion shall be served
by the movant to all parties concerned, at least three
(3) days before the hearing thereof, together with a
copy of the motion. For good cause shown, the motion
may be heard on shorter notice, especially on matters
which the Commission or the Division may dispose of
on its own motion.
The notice shall be directed to the parties concerned
and shall state the time and place of the hearing of
the motion.
Section 5. Proof of Service.- No motion shall be acted
upon by the Commission without proof of service of
notice thereof, except when the Commission or a
Division is satisfied that the rights of the adverse party
or parties are not affected."
Respondent's Most Urgent Motion does not fall under
the exceptions to notice and service of motions. First,
the suspension of proclamation of a winning candidate
is not a matter which the COMELEC Second Division
can dispose of motu proprio. Section 6 of R.A. No.
664673 requires that the suspension must be "upon
motion by the complainant or any intervenor", viz:
"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 (COMELEC)
shall continue with the trial or 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." (emphases
supplied)
Second, the right of an adverse party, in this case, the
petitioner, is clearly affected. Given the lack of service
of the Most Urgent Motion to the petitioner, said
Motion is a mere scrap of paper.74 It cannot be acted
upon by the COMELEC Second Division.
On May 18, 2001 at exactly 5:00 p.m.,75 respondent
Locsin filed a Second Most Urgent Motion for the
suspension of petitioner's proclamation. Petitioner was
served a copy of the Second Motion again by
registered mail. A registry receipt76 was attached
evidencing service of the Second Most Urgent Motion
to the petitioner but it does not appear when the
petitioner received a copy thereof. That same day, the
COMELEC Second Division issued an Order suspending
the proclamation of petitioner. Clearly, the petitioner
was not given any opportunity to contest the
allegations contained in the petition for
disqualification. The Order was issued on the very
same day the Second Most Urgent Motion was filed.
The petitioner could not have received the Second
Most Urgent Motion, let alone answer the same on
time as he was served a copy thereof by registered
mail.
Under section 6 of R.A. No. 6646, the COMELEC can
suspend proclamation only when evidence of the
winning candidate's guilt is strong. In the case at
bar, the COMELEC Second Division did not make
any specific finding that evidence of petitioner's
guilt is strong. Its only basis in suspending the
proclamation of the petitioner is the "seriousness of
the allegations" in the petition for disqualification.
Pertinent portion of the Order reads:
"Without giving due course to the petition xxx the
Commission (2nd Division), pursuant to Section 72 of
the Omnibus Election Code in relation to Section 6,
Republic Act No. 6646 xxx and considering the
serious allegations in the petition, hereby directs
the Provincial Board of Canvassers of Leyte to
52
suspend the proclamation of respondent, if
winning, until further orders."77 (emphases
supplied)
We hold that absent any finding that the evidence on
the guilt of the petitioner is strong, the COMELEC
Second Division gravely abused its power when it
suspended his proclamation.
(b) The COMELEC Second Division did not give
ample opportunity to the petitioner to adduce
evidence in support of his defense in the petition
for his disqualification.
All throughout the proceeding, no hearing was
conducted on the petition for disqualification in gross
violation of section 6 of R.A. No. 6646 which
specifically enjoins the COMELEC to "continue with
the trial or hearing of the action, inquiry, or
protest." This is also in violation of COMELEC
Resolution No. 3402 requiring the Regional Election
Director to complete the hearing and reception of
evidence within ten (10) days from the filing of the
Answer, and to submit his findings, reports, and
recommendations within the five (5) days from
completion of the hearing and the reception of
evidence.
Petitioner filed a Motion to Lift the Order of
Suspension of his proclamation on May 25, 2001.
Although an oral argument on this Motion was held,
and the parties were allowed to file their respective
memoranda, the Motion was not acted upon. Instead,
the COMELEC Second Division issued a Resolution on
the petition for disqualification against the petitioner.
It was based on the following evidence: (a) the
affidavits attached to the Petition for Disqualification;
(b) the affidavits attached to the Answer; and (c) the
respective memoranda of the parties.
On this score, it bears emphasis that the hearing for
Motion to Lift the Order of Suspension cannot be
substituted for the hearing in the disqualification case.
Although intrinsically linked, it is not to be supposed
that the evidence of the parties in the main
disqualification case are the same as those in the
Motion to Lift the Order of Suspension. The parties
may have other evidence which they may deem
proper to present only on the hearing for the
disqualification case. Also, there may be evidence
which are unavailable during the hearing for the
Motion to Lift the Order of Suspension but which may
be available during the hearing for the disqualification
case.
In the case at bar, petitioner asserts that he submitted
his Memorandum merely to support his Motion to Lift
the Order of Suspension. It was not intended to
answer and refute the disqualification case against
him. This submission was sustained by the COMELEC
en banc. Hence, the members of the COMELEC en
banc concluded, upon consideration of the additional
affidavits attached in his Urgent Manifestation, that
the evidence to disqualify the petitioner was
insufficient. More specifically, the ponente of the
challenged Resolution of the COMELEC Second Division
held:
"Indeed, I find from the records that the May 30, 2001
hearing of the COMELEC (Second Division) concerns
only the incident relating to the Motion to Lift Order of
Suspension of Proclamation. It also appears that the
order for the submission of the parties' respective
memoranda was in lieu of the parties' oral argument
on the motion. This would explain the fact that
Codilla's Memorandum refers mainly to the validity of
the issuance of the order of suspension of
proclamation. There is, however, no record of any
hearing on the urgent motion for the suspension of
proclamation. Indeed, it was only upon the filing of
the Urgent Manifestation by Codilla that the
Members of the Commission (Second Division)
and other Members of the Commission en banc
had the opportunity to consider Codilla's
affidavits. This time, Codilla was able to present
his side, thus, completing the presentation of
evidentiary documents from both
sides."78 (emphases supplied)
Indeed, careful reading of the petitioner's
Memorandum shows that he confined his arguments in
support of his Motion to Lift the Order of Suspension.
In said Memorandum, petitioner raised the following
issues: (a) he was utterly deprived of procedural due
process, and consequently, the order suspending his
proclamation is null and void; (b) the said order of
suspension of proclamation has no legal and factual
basis; and (c) evidence of guilt on his part is patently
inexistent for the purpose of directing the suspension
of his proclamation.79 He urged the COMELEC Second
Division to conduct a full dress hearing on the main
disqualification case should the suspension be lifted.80
(c) the Resolution of the COMELEC Second
Division disqualifying the petitioner is not based
on substantial evidence.
The Resolution of the COMELEC Second Division
cannot be considered to be based on substantial
evidence. It relied merely on affidavits of witnesses
attached to the petition for disqualification. As
stressed, the COMELEC Second Division gave credence
to the affidavits without hearing the affiants. In
reversing said Resolution, the COMELEC en banc
correctly observed:
"Lacking evidence of Codilla, the Commission (Second
Division) made its decisions based mainly on the
allegation of the petitioner and the supporting
affidavits. With this lopsided evidence at hand, the
result was predictable. The Commission (Second
Division) had no choice. Codilla was disqualified."81
53
Worse, the Resolution of the COMELEC Second
Division, even without the evidence coming from the
petitioner, failed to prove the gravamen of the offense
for which he was charged.82
Petitioner allegedly violated section 68 (a) of the
Omnibus Election Code which reads:
"Section 68. Disqualifications.- Any candidate who, in
action or protest in which he is a party is declared by
final decision of a competent court guilty of, or found
by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt
the voters or public officials performing official
functions, xxx shall be disqualified from continuing as
candidate, or if he has been elected, from holding
office"
To be disqualified under the above-quoted provision,
the following elements must be proved: (a) the
candidate, personally or through his instructions, must
have given money or other material consideration;
and (b) the act of giving money or other material
consideration must be for the purpose of influencing,
inducing, or corrupting the voters or public officials
performing electoral functions.
In the case at bar, the petition for disqualification
alleged that (a) petitioner ordered the extraction,
hauling and distribution of gravel and sand, and (b)
his purpose was to induce and influence the voters of
Kananga and Matag-ob, Leyte to vote for him.
Pertinent portion of the petition reads:
"[T]he respondent [herein petitioner], within the
election period, took advantage of his current elective
position as City Mayor of Ormoc City by illegally and
unlawfully using during the prohibited period, public
equipments and vehicles belonging to and owned by
the City Government of Ormoc City in extracting,
hauling and distributing gravel and sand to the
residents and voters of the Municipalities of Kananga
and Matag-ob Leyte, well within the territorial limits of
the 4th Congressional District of Leyte, which acts
were executed without period, and clearly for the illicit
purpose of unduly inducing or directly corrupting
various voters of Kananga and Matag-ob, within the
4th legislative district of Leyte, for the precise purpose
of inducing and influencing the voters/beneficiaries of
Kananga and Matag-ob, Leyte to cast their votes for
said respondent."83
The affidavits relied upon by the COMELEC Second
Division failed to prove these allegations. For instance,
Cesar A. Laurente merely stated that he saw three (3)
ten-wheeler dump trucks and a Hyundai Payloader
with the markings "Ormoc City Government"
extracting and hauling sand and gravel from the
riverbed adjacent to the property owned by the Codilla
family.84
Agripino C. Alferez and Rogelio T. Sulvera in their Joint
Affidavit merely stated that they saw white trucks
owned by the City Government of Ormoc dumping
gravel and sand on the road of Purok 6, San Vicente,
Matag-ob, Leyte. A payloader then scattered the sand
and gravel unloaded by the white trucks.85
On the other hand, Danilo D. Maglasang, a temporary
employee of the City Government of Ormoc assigned
to check and record the delivery of sand and gravel for
the different barangays in Ormoc, stated as follows:
"3. That on April 20, 2001, I was ordered by Engr.
Arnel Padayo, an employee of the City Engineering
Office, Ormoc City to go to Tagaytay, Kangga (sic),
Leyte as that will be the source of the sand and
gravel. I inquired why we had to go to Kananga but
Engr. Padayao said that it's not a problem as it was
Mayor Eufrocino M. Codilla, Sr. who ordered this and
the property is owned by the family of Mayor Codilla.
We were to deliver sand and gravel to whoever
requests from Mayor Codilla."86
Similarly, the Affidavit of Basilio Bates cannot prove
the offense charged against the petitioner. He alleged
that on April 18, 2001, a white truck with the marking
"City Government of Ormoc" came to his lot at
Montebello, Kananga, Leyte and unloaded mixed sand
and that the driver of the truck told him to "vote for
Codilla as a (sic) congressman during election."87 His
statement is hearsay. He has no personal knowledge
of the supposed order of the petitioner to distribute
gravel and sand for the purpose of inducing the voters
to vote for him. The same could be said about the
affidavits of Randy T. Merin,88 Alfredo C. De la
Peña,89 Miguel P. Pandac,90 Paquito Bregeldo, Cristeta
Alferez , Glicerio Rios,91 Romulo Alkuino, Sr.,92 Abner
Casas,93 Rita Trangia,94 and Judith Erispe95 attached to
respondent Locsin's Memorandum on the Motion to Lift
the Suspension of Proclamation.
Also valueless are the affidavits of other witnesses96 of
respondent Locsin, all similarly worded, which alleged
that the petitioner ordered the repair of the road in
Purok 6, Barangay San Vicente, Matag-ob, Leyte and
the flattening of the area where the cockfights were to
be held. These allegations are extraneous to the
charge in the petition for disqualification. More
importantly, these allegations do not constitute a
ground to disqualify the petitioner based on section 68
of the Omnibus Election Code.
To be sure, the petition for disqualification also
ascribed other election offenses against the petitioner,
particularly section 261 of the Omnibus Election Code,
viz:
"Section 261. Prohibited Acts.- The following shall be
guilty of an election offense:
54
(a) Vote-buying and vote-selling.- (1) Any
person who gives, offers or promises money or
anything of value, gives or promises any office
or employment, franchise or grant, public or
private, or make or offers to make an
expenditure, directly or indirectly, or cause an
expenditure to be made to any person,
association, corporation, entity or community
in order to induce anyone or the public in
general, to vote for or against any candidate
or withhold his vote in the election, or to vote
for or against any aspirant for the nomination
or choice of a candidate in a convention or
similar selection process of a political party.
xxxxxxxxx
(o) Use of public funds, money deposited in
trust, equipment, facilities owned or controlled
by the government for an election campaign.-
Any person who uses under any guise
whatsoever directly or indirectly, xxx (3) any
equipment, vehicle, facility, apparatus, or
paraphernalia owned by the government or by
its political subdivisions, agencies including
government-owned or controlled corporations,
or by the Armed Forces of the Philippines for
any election campaign or for any partisan
political activity x x x."
However, 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.97 They are criminal and not
administrative in nature. Pursuant to sections
265 and 268 of the Omnibus Election Code,
the power of the COMELEC is confined to the
conduct of preliminary investigation on the
alleged election offenses for the purpose of
prosecuting the alleged offenders before the
regular courts of justice, viz:
"Section 265. Prosecution.- The Commission
shall, through its duly authorized legal officers,
have the exclusive power to conduct
preliminary investigation of all election
offenses punishable under this Code, and to
prosecute the same. The Commission may
avail of the assistance of other prosecuting
arms of the government: Provided, however,
That in the event that the Commission fails to
act on any complaint within four months from
his filing, the complainant may file the
complaint with the office of the fiscal or with
the Ministry of Justice for proper investigation
and prosecution, if warranted.
xxxxxxxxx
Section 268. Jurisdiction.- The regional trial court
shall have the exclusive original jurisdiction to try and
decide any criminal action or proceeding for violation
of this Code, except those relating to the offense of
failure to register or failure to vote which shall be
under the jurisdictions of metropolitan or municipal
trial courts. From the decision of the courts, appeal
will lie as in other criminal cases."
The COMELEC Second Division grievously erred when
it decided the disqualification case based on section
261 (a) and (o), and not on section 68 of the Omnibus
Election Code.
(d) Exclusion of the votes in favor of the
petitioner and the proclamation of respondent
Locsin was done with undue haste.
The COMELEC Second Division ordered the exclusion
of the votes cast in favor of the petitioner, and the
proclamation of the respondent Locsin, without
affording the petitioner the opportunity to challenge
the same. In the morning of June 15, 2001, the
Provincial Board of Canvassers convened, and on the
strength of the said Resolution excluding the votes
received by the petitioner, certified that respondent
Locsin received the highest number of votes. On this
basis, respondent Locsin was proclaimed.
Records reveal that the petitioner received notice of
the Resolution of the COMELEC Second Division only
through his counsel via a facsimile message in the
afternoon of June 15, 200198 when everything was
already fait accompli. Undoubtedly, he was not able to
contest the issuance of the Certificate of Canvass and
the proclamation of respondent Locsin. This is plain
and simple denial of due process.
The essence of due process is the opportunity to be
heard. When a party is deprived of that basic fairness,
any decision by any tribunal in prejudice of his rights
is void.
Second. The votes cast in favor of the petitioner
cannot be considered "stray" and respondent
cannot be validly proclaimed on that basis.
The Resolution of the COMELEC Second Division in
SPA No. 01-208 contains two dispositions: (1) it ruled
that the petitioner was disqualified as a candidate for
the position of Congressman of the Fourth District of
Leyte; and (2) it ordered the immediate proclamation
of the candidate who garnered the highest number of
votes, to the exclusion of the respondent [herein
petitioner].
As previously stated, the disqualification of the
petitioner is null and void for being violative of due
process and for want of substantial factual basis. Even
assuming, however, that the petitioner was validly
disqualified, it is still improper for the COMELEC
55
Second Division to order the immediate exclusion of
votes cast for the petitioner as stray, and on this
basis, proclaim the respondent as having garnered the
next highest number of votes.
(a) The order of disqualification is not yet final,
hence, the votes cast in favor of the petitioner
cannot be considered "stray."
Section 6 of R.A. No. 6646 and section 72 of the
Omnibus Election Code require a final judgment
before the election for the votes of a disqualified
candidate to be considered "stray." Hence, when a
candidate has not yet been disqualified by final
judgment during the election day and was voted for,
the votes cast in his favor cannot be declared stray. To
do so would amount to disenfranchising the electorate
in whom sovereignty resides.99 For in voting for a
candidate who has not been disqualified by final
judgment during the election day, the people voted for
him bona fide, without any intention to misapply their
franchise, and in the honest belief that the candidate
was then qualified to be the person to whom they
would entrust the exercise of the powers of
government.100
This principle applies with greater force in the case at
bar considering that the petitioner has not been
declared by final judgment to be disqualified not
only before but even after the elections. The
Resolution of the COMELEC Second Division
disqualifying the petitioner did not attain finality, and
hence, could not be executed, because of the timely
filing of a Motion for Reconsideration. Section 13, Rule
18 of the COMELEC Rules of Procedure on Finality of
Decisions and Resolutions reads:
"Sec. 13. Finality of Decisions or Resolutions.- (a) In
ordinary actions, special proceedings, provisional
remedies and special reliefs, a decision or resolution of
the Commission en banc shall become final and
executory after thirty (30) days from its promulgation.
(b) In Special Actions and Special Cases a decision or
resolution of the Commission en banc shall become
final and executory after five (5) days in Special
Actions and Special Cases and after fifteen (15) days
in all other proceedings, following their promulgation.
(c) Unless a motion for reconsideration is
seasonably filed, a decision or resolution of a
Division shall become final and executory after
the lapse of five (5) days in Special Actions and
Special Cases and after fifteen (15) days in all
other actions or proceedings, following its
promulgation." (emphasis supplied)
In this wise, COMELEC Resolution No. 4116,101 issued
in relation to the finality of resolutions or decisions in
disqualification cases, provides:
"This pertains to the finality of decisions or resolutions
of the Commission en banc or division, particularly on
Special Actions (Disqualification Cases).
Special Action cases refer to the following:
(a) Petition to deny due course to a certificate
of candidacy;
(b) Petition to declare a candidate as a
nuisance candidate;
(c) Petition to disqualify a candidate; and
(d) Petition to postpone or suspend an
election.
Considering the foregoing and in order to guide field
officials on the finality of decisions or resolutions on
special action cases (disqualification cases) the
Commission, RESOLVES, as it is hereby RESOLVED, as
follows:
(1) the decision or resolution of the En Banc of
the Commission on disqualification cases shall
become final and executory after five (5) days
from its promulgation unless restrained by the
Supreme Court;
(2) the decision or resolution of a Division on
disqualification cases shall become final and
executory after the lapse of five (5) days
unless a motion for reconsideration is
seasonably filed;
(3) where the ground for disqualification case
is by reason of non-residence, citizenship,
violation of election laws and other analogous
cases and on the day of the election the
resolution has not become final and executory
the BEI shall tally and count the votes for such
disqualified candidate;
(4) the decision or resolution of the En Banc
on nuisance candidates, particularly whether
the nuisance candidate has the same name as
the bona fide candidate shall be immediately
executory;
(5) the decision or resolution of a DIVISION on
nuisance candidate, particularly where the
nuisance candidate has the same name as the
bona fide candidate shall be immediately
executory after the lapse of five (5) days
unless a motion for reconsideration is
seasonably filed. In which case, the votes cast
shall not be considered stray but shall be
counted and tallied for the bona fide
candidate.
56
All resolutions, orders and rules inconsistent herewith
are hereby modified or repealed."
Considering the timely filing of a Motion for
Reconsideration, the COMELEC Second Division
gravely abused its discretion in ordering the
immediate disqualification of the petitioner and
ordering the exclusion of the votes cast in his favor.
Section 2, Rule 19 of the COMELEC Rules of Procedure
is very clear that a timely Motion for Reconsideration
shall suspend the execution or implementation of the
resolution, viz:
Section 2. Period for filing Motion for Reconsideration.-
A motion to reconsider a decision, resolution, order, or
ruling of a Division shall be filed within five (5) days
from the promulgation thereof. Such motion, if not
pro forma, suspends the execution or
implementation of the decision, resolution, order
or ruling." (emphases supplied)
(b) Respondent Locsin, as a mere second placer,
cannot be proclaimed.
More brazen is the proclamation of respondent Locsin
which violates the settled doctrine that the candidate
who obtains the second highest number of votes may
not be proclaimed winner in case the winning
candidate is disqualified.102 In every election, the
people's choice is the paramount consideration and
their expressed will must at all times be given effect.
When the majority speaks and elects into office a
candidate by giving him the highest number of votes
cast in the election for the office, no one can be
declared elected in his place.103 In Domino v.
COMELEC,104 this Court ruled, viz:
"It would be extremely repugnant to the basic concept
of the constitutionally guaranteed right to suffrage if a
candidate who has not acquired the majority or
plurality of votes is proclaimed winner and imposed as
representative of a constituency, the majority of which
have positively declared through their ballots that they
do not choose him. To simplistically assume that the
second placer would have received that (sic) other
votes would be to substitute our judgment for the
mind of the voters. He could not be considered the
first among the qualified candidates because in a field
which excludes the qualified candidate, the conditions
would have substantially changed.
xxxxxxxxx
The effect of a decision declaring a person ineligible to
hold an office is only that the election fails entirely,
that the wreath of victory cannot be transferred from
the disqualified winner to the repudiated loser because
the law then as now only authorizes a declaration in
favor of the person who has obtained a plurality of
votes, and does not entitle the candidate receiving the
next highest number of votes to be declared elected.
In such case, the electors have failed to make a choice
and the election is a nullity. To allow the defeated and
repudiated candidate to take over the elective position
despite his rejection by the electorate is to
disenfranchise the electorate without any fault on their
part and to undermine the importance and meaning of
democracy and the people's right to elect officials of
their choice."105
Respondent Locsin proffers a distinction between a
disqualification based on personal circumstances such
as age, residence or citizenship and disqualification
based on election offenses. She contends that the
election of candidates later disqualified based on
election offenses like those enumerated in section 68
of the Omnibus Election Code should be invalidated
because they violate the very essence of suffrage and
as such, the votes cast in his favor should not be
considered.106
This contention is without merit. In the recent case
of Trinidad v. COMELEC,107 this Court ruled that the
effect of a judgment disqualifying a candidate, after
winning the election, based on personal circumstances
or section 68 of the Omnibus Election Code is the
same: the second placer could not take the place of
the disqualified winner.
II
Whether the proclamation of respondent Locsin
divested the COMELEC en banc of jurisdiction to
review its validity.
Respondent Locsin submits that the COMELEC en banc
has no jurisdiction to annul her proclamation. She
maintains that the COMELEC en banc was been
divested of jurisdiction to review the validity of her
proclamation because she has become a member of
the House of Representatives. Thus, she contends that
the proper forum to question her membership to the
House of Representatives is the House of
Representative Electoral Tribunal (HRET).
We find no merit in these contentions.
First. The validity of the respondent's
proclamation was a core issue in the Motion for
Reconsideration seasonably filed by the
petitioner.
In his timely Motion for Reconsideration with the
COMELEC en banc, petitioner argued that the
COMELEC Second Division erred thus:
"(1) in disqualifying petitioner on the basis
solely of the dubious declaration of the
witnesses for respondent Locsin;
57
(2) in adopting in toto the allegations of the
witnesses for respondent Locsin; and
(3) in promulgating the resolution in
violation of its own rules of procedure
and in directing therein the immediate
proclamation of the second highest 'vote
getter.'" (emphases supplied)
In support of his third assignment of error, petitioner
argued that "the Second Division's directive for the
immediate proclamation of the second highest vote-
getter is premature considering that the Resolution
has yet to become final and executory."108 Clearly, the
validity of respondent Locsin's proclamation was made
a central issue in the Motion for Reconsideration
seasonably filed by the petitioner. Without doubt, the
COMELEC en banc has the jurisdiction to rule on the
issue.
The fact that the Petition for Nullity of Proclamation
was filed directly with the COMELEC en banc is of no
moment. Even without said Petition, the COMELEC en
banc could still rule on the nullity of respondent's
proclamation because it was properly raised in the
Motion for Reconsideration.
Section 3, Article IX-C of the 1987 Constitution
empowers the COMELEC en banc to review, on motion
for reconsideration, decisions or resolutions decided by
a division, viz:
"Sec. 3. The Commission on Elections may sit en banc
or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election
cases, including pre-proclamation controversies. All
such election cases shall be heard and decided in
division, provided that motions for reconsideration of
decision shall be decided by the Commission en banc."
Pursuant to this Constitutional mandate, the COMELEC
Rules of Procedure provides:
"Rule 19. Motions for Reconsideration.-
Section 1. Grounds for Motion for
Reconsideration.- A motion for reconsideration
may be filed on the grounds that the evidence
is insufficient to justify the decision, order or
ruling, or that the said decision, order or ruling
is contrary to law.
Section 2. Period for filing Motion for
Reconsideration.- A motion to reconsider a
decision, resolution, order, or ruling of a
Division shall be filed within five (5) days from
the promulgation thereof. Such motion, if
not pro forma, suspends the execution or
implementation of the decision,
resolution, order or ruling."
 Section 3. Form and Contents of Motion for
Reconsideration.- The motion shall be verified
and shall point out specifically the findings or
conclusions of the decision, resolution, order
or ruling which are not supported by the
evidence or which are contrary to law, making
express reference to the testimonial or
documentary evidence or to the provisions of
law alleged to be contrary to such findings or
resolutions.
Section 4. Effect of Motion for Reconsideration
on Period to Appeal.- A motion to reconsider a
decision, resolution, order or ruling when not
pro forma, suspends the running of the period
to elevate the matter to the Supreme Court.
Section 5. How Motion for Reconsideration
Disposed Of.- Upon the filing of a motion to
reconsider a decision, resolution, order or
ruling of a Division, the Clerk of Court
concerned shall, within twenty-four (24) hours
from the filing thereof, notify the Presiding
Commissioner. The latter shall within two (2)
days thereafter certify the case to the
Commission en banc.
Section 6. Duty of the Clerk of Court of the
Commission to set Motion for Hearing.- The
Clerk of Court concerned shall calendar the
motion for reconsideration for the resolution of
the Commission en banc within ten (10) days
from the certification thereof." (emphases
supplied)
Since the petitioner seasonably filed a Motion for
Reconsideration of the Order of the Second Division
suspending his proclamation and disqualifying him, the
COMELEC en banc was not divested of its jurisdiction
to review the validity of the said Order of the Second
Division. The said Order of the Second Division was
yet unenforceable as it has not attained finality; the
timely filing of the motion for reconsideration
suspends its execution. It cannot, thus, be used as the
basis for the assumption in office of the respondent as
the duly elected Representative of the 4th legislative
district of Leyte.
Second. It is the House of Representatives
Electoral Tribunal (HRET) which has no
jurisdiction in the instant case.
Respondent contends that having been proclaimed and
having taken oath as representative of the 4th
legislative district of Leyte, any question relative to
her election and eligibility should be brought before
the HRET pursuant to section 17 of Article VI of the
1987 Constitution.109
We reject respondent's contention.
58
(a) The issue on the validity of the Resolution of
the COMELEC Second Division has not yet been
resolved by the COMELEC en banc.
To stress again, at the time of the proclamation of
respondent Locsin, the validity of the Resolution of the
COMELEC Second Division was seasonably challenged
by the petitioner in his Motion for Reconsideration. The
issue was still within the exclusive jurisdiction of the
COMELEC en banc to resolve. Hence, the HRET cannot
assume jurisdiction over the matter.
In Puzon vs. Cua,110 even the HRET ruled that the
"doctrinal ruling that once a proclamation has been
made and a candidate-elect has assumed office, it is
this Tribunal that has jurisdiction over an election
contest involving members of the House of
Representatives, could not have been immediately
applicable due to the issue regarding the validity
of the very COMELEC pronouncements
themselves." This is because the HRET has no
jurisdiction to review resolutions or decisions of the
COMELEC, whether issued by a division or en banc.
(b) The instant case does not involve the
election and qualification of respondent Locsin.
Respondent Locsin maintains that the proper recourse
of the petitioner is to file a petition for quo
warranto with the HRET.
A petition for quo warranto may be filed only on the
grounds of ineligibility and disloyalty to the Republic of
the Philippines.111 In the case at bar, neither the
eligibility of the respondent Locsin nor her loyalty to
the Republic of the Philippines is in question. There is
no issue that she was qualified to run, and if she won,
to assume office.
A petition for quo warranto in the HRET is directed
against one who has been duly elected and proclaimed
for having obtained the highest number of votes but
whose eligibility is in question at the time of such
proclamation. It is evident that respondent Locsin
cannot be the subject of quo warranto proceeding in
the HRET. She lost the elections to the petitioner by a
wide margin. Her proclamation was a patent nullity.
Her premature assumption to office as Representative
of the 4th legislative district of Leyte was void from
the beginning. It is the height of absurdity for the
respondent, as a loser, to tell petitioner Codilla, Sr.,
the winner, to unseat her via a quo warranto
proceeding.
III
Whether it is the ministerial duty of the public
respondents to
recognize petitioner Codilla, Sr. as the legally elected the rule of law except the reign of chaos and
Representative confusion.

of the 4th legislative district of Leyte vice respondent IN VIEW WHEREOF, the Petition for Mandamus is
Locsin. granted. Public Speaker of the House of
Representatives shall administer the oath of petitioner
Under Rule 65, section 3 of the 1997 Rules of Civil EUFROCINO M. CODILLA, SR., as the duly-elected
Procedure, any person may file a verified petition for Representative of the 4th legislative district of Leyte.
mandamus "when any tribunal, corporation, board, Public respondent Secretary-General shall likewise
officer or person unlawfully neglects the performance register the name of the petitioner in the Roll of
of an act which the law specifically enjoins as a duty Members of the House of Representatives after he has
resulting from an office, trust, or station, or unlawfully taken his oath of office. This decision shall be
excludes another from the use and enjoyment of a immediately executory.
right or office to which such other is entitled, and
there is no other plain, speedy and adequate remedy SO ORDERED.
in the ordinary course of law."112 For a petition for
mandamus to prosper, it must be shown that the
subject of the petition for mandamus is
a ministerial act or duty, and not purely
discretionary on the part of the board, officer or
person, and that the petitioner has a well-defined,
clear and certain right to warrant the grant thereof.

The distinction between a ministerial and discretionary

act is well delineated. A purely ministerial act or duty
is one which an officer or tribunal performs in a given
state of facts, in a prescribed manner, in obedience to
the mandate of a legal authority, without regard to or
the exercise of his own judgment upon the propriety
or impropriety of the act done. If the law imposes a
duty upon a public officer and gives him the right to
decide how or when the duty shall be performed, such
duty is discretionary and not ministerial. The duty is
ministerial only when the discharge of the same
requires neither the exercise of official discretion or
judgment.113

In the case at bar, the administration of oath and the

registration of the petitioner in the Roll of Members of
the House of Representatives representing the 4th
legislative district of Leyte is no longer a matter of
discretion on the part of the public respondents. The
facts are settled and beyond dispute: petitioner
garnered 71,350 votes as against respondent Locsin
who only got 53, 447 votes in the May 14, 2001
elections. The COMELEC Second Division initially
ordered the proclamation of respondent Locsin; on
Motion for Reconsideration the COMELEC en banc set
aside the order of its Second Division and ordered the
proclamation of the petitioner. The Decision of the
COMELEC en banc has not been challenged before this
Court by respondent Locsin and said Decision has
become final and executory.

In sum, the issue of who is the rightful Representative

of the 4th legislative district of Leyte has been finally
settled by the COMELEC en banc, the constitutional
body with jurisdiction on the matter. The rule of law
demands that its Decision be obeyed by all
officials of the land. There is no alternative to

59
G.R. No. 154512 November 12, 2002 On the same date, the PRA passed Resolution No. 01-
02 ("Recall Resolution" for brevity) which declared its
VICTORINO DENNIS M. SOCRATES, Mayor of loss of confidence in Socrates and called for his recall.
Puerto Princesa City, petitioner, The PRA requested the COMELEC to schedule the
vs. recall election for mayor within 30 days from receipt of
THE COMMISSION ON ELECTIONS, THE the Recall Resolution.
PREPARATORY RECALL ASSEMBLY (PRA) of
Puerto Princesa City, PRA Interim Chairman On July 16, 2002, Socrates filed with the COMELEC a
Punong Bgy. MARK DAVID HAGEDORN, PRA petition, docketed as E.M. No. 02-010 (RC), to nullify
Interim Secretary Punong Bgy. BENJAMIN and deny due course to the Recall Resolution.
JARILLA, PRA Chairman and Presiding Officer
Punong Bgy. EARL S. BUENVIAJE and PRA On August 14, 2002, the COMELEC en
Secretary Punong Bgy. CARLOS ABALLA, banc3 promulgated a resolution dismissing for lack of
JR. respondents. merit Socrates' petition. The COMELEC gave due
course to the Recall Resolution and scheduled the
----------------------------- recall election on September 7, 2002.

G.R. No. 154683 November 12, 2002 On August 21, 2002, the COMELEC en
banc promulgated Resolution No. 5673 prescribing the
VICENTE S. SANDOVAL, JR., petitioner, calendar of activities and periods of certain prohibited
vs. acts in connection with the recall election. The
THE COMMISSION ON ELECTIONS, respondent. COMELEC fixed the campaign period from August 27,
2002 to September 5, 2002 or a period of 10 days.
-----------------------------
On August 23, 2002, Edward M. Hagedorn
("Hagedorn" for brevity) filed his certificate of
G.R. Nos. 155083-84 November 12, 2002
candidacy for mayor in the recall election.

MA. FLORES P. ADOVO, MERCY E. GILO and

BIENVENIDO OLLAVE, SR., petitioners,
vs.
THE COMMISSION ON ELECTIONS, and EDWARD
S. HAGEDORN, respondents.
DECISION
CARPIO, J.:
The Case
Before us are consolidated petitions for
certiorari1 seeking the reversal of the resolutions
issued by the Commission on Elections ("COMELEC"
for brevity) in relation to the recall election for mayor
of Puerto Princesa City, Palawan.
The Antecedents
On July 2, 2002, 312 out of 528 members of the then
incumbent barangay officials of the Puerto Princesa
convened themselves into a Preparatory Recall
Assembly ("PRA" for brevity) at the Gymnasium of
Barangay San Jose from 9:00 a.m. to 12:00 noon. The
PRA was convened to initiate the recall 2 of Victorino
Dennis M. Socrates ("Socrates" for brevity) who
assumed office as Puerto Princesa's mayor on June 30,
2001. The members of the PRA designated Mark David
M. Hagedorn, president of the Association of Barangay
Captains, as interim chair of the PRA.
On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for
brevity) and Merly E. Gilo ("Gilo" for brevity) filed a
petition before the COMELEC, docketed as SPA No. 02-
492, to disqualify Hagedorn from running in the recall
election and to cancel his certificate of candidacy. On
August 30, 2002, a certain Bienvenido Ollave, Sr.
("Ollave" for brevity) filed a petition-in-intervention in
SPA No. 02-492 also seeking to disqualify Hagedorn.
On the same date, a certain Genaro V. Manaay filed
another petition, docketed as SPA No. 02-539, against
Hagedorn alleging substantially the same facts and
involving the same issues. The petitions were all
anchored on the ground that "Hagedorn is disqualified
from running for a fourth consecutive term, having
been elected and having served as mayor of the city
for three (3) consecutive full terms immediately prior
to the instant recall election for the same post."
Subsequently, SPA Nos. 02-492 and 02-539 were
consolidated.
In a resolution promulgated on September 20, 2002,
the COMELEC's First Division4 dismissed for lack of
merit SPA Nos. 02-492 and 02-539. The COMELEC
declared Hagedorn qualified to run in the recall
election. The COMELEC also reset the recall election
from September 7, 2002 to September 24, 2002.
On September 23, 2002, the COMELEC en
banc promulgated a resolution denying the motion for
reconsideration of Adovo and Gilo. The COMELEC
affirmed the resolution declaring Hagedorn qualified to
run in the recall election.

60
Hence, the instant consolidated petitions.
G.R. No. 154512
Petitioner Socrates seeks to nullify the COMELEC en
banc resolution dated August 14, 2002 in E.M. No. 02-
010 (RC) which gave due course to the Recall
Resolution and scheduled the recall election on
September 7, 2002.
Socrates alleges that the COMELEC gravely abused its
discretion in upholding the Recall Resolution. Socrates
cites the following circumstances as legal infirmities
attending the convening of the PRA and its issuance of
the Recall Resolution: (1) not all members of the PRA
were notified of the meeting to adopt the resolution;
(2) the proof of service of notice was palpably and
legally deficient; (3) the members of the PRA were
themselves seeking a new electoral mandate from
their respective constituents; (4) the adoption of the
resolution was exercised with grave abuse of
authority; and (5) the PRA proceedings were
conducted in a manner that violated his and the
public's constitutional right to information.
G.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul
COMELEC Resolution No. 5673 dated August 21, 2002
insofar as it fixed the recall election on September 7,
2002, giving the candidates only a ten-day campaign
period. He prayed that the COMELEC be enjoined from
holding the recall election on September 7, 2002 and
that a new date be fixed giving the candidates at least
an additional 15 days to campaign.
In a resolution dated September 3, 2002, the Court en
banc enjoined the COMELEC from implementing
Resolution No. 5673 insofar as it fixed the date of the
recall election on September 7, 2002. The Court
directed the COMELEC to give the candidates an
additional fifteen 15 days from September 7, 2002
within which to campaign.
Accordingly, on September 9, 2002, the COMELEC en
banc issued Resolution No. 5708 giving the candidates
an additional 15 days from September 7, 2002 within
which to campaign. Thus, the COMELEC reset the
recall election to September 24, 2002.
G.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the
COMELEC's resolutions dated September 20, 2002 and
September 23, 2002 in SPA Nos. 02-492 and 02-539
declaring Hagedorn qualified to run for mayor in the
recall election. They likewise prayed for the issuance
of a temporary restraining order to enjoin the
proclamation of the winning candidate in the recall
election.
61
Petitioners argue that the COMELEC gravely abused its
discretion in upholding Hagedorn's qualification to run
for mayor in the recall election despite the
constitutional and statutory prohibitions against a
fourth consecutive term for elective local officials.
In a resolution dated September 24, 2002, the Court
ordered the COMELEC to desist from proclaiming any
winning candidate in the recall election until further
orders from the Court. Petitioners were required to
post a P20,000 bond.
On September 27, 2002, Socrates filed a motion for
leave to file an attached petition for intervention
seeking the same reliefs as those sought by Adovo,
Gilo and Ollave.
In the meantime, Hagedorn garnered the highest
number of votes in the recall election with 20,238
votes. Rival candidates Socrates and Sandoval
obtained 17,220 votes and 13,241 votes, respectively.
Hagedorn filed motions to lift the order restraining the
COMELEC from proclaiming the winning candidate and
to allow him to assume office to give effect to the will
of the electorate.
On October 1, 2002, the Court granted Socrates'
motion for leave to file a petition for intervention.
The Issues
The issues for resolution of the Court are:
1. In G.R. No. 154512, whether the COMELEC
committed grave abuse of discretion in giving
due course to the Recall Resolution and
scheduling the recall election for mayor of
Puerto Princesa.
2. In G.R. Nos.155083-84, whether Hagedorn
is qualified to run for mayor in the recall
election of Puerto Princesa on September 24,
2002.
In G.R. No. 154683, the issue of whether the
COMELEC committed grave abuse of discretion in
fixing a campaign period of only 10 days has become
moot. Our Resolution of September 3, 2002 and
COMELEC Resolution No. 5708 granted an additional
15 days for the campaign period as prayed for by
petitioner.
First Issue: Validity of the Recall Resolution.
Petitioner Socrates argues that the COMELEC
committed grave abuse of discretion in upholding the
Recall Resolution despite the absence of notice to 130
PRA members and the defective service of notice to
other PRA members. The COMELEC, however, found
that –
"On various dates, in the month of June 2002, the
proponents for the Recall of incumbent City Mayor
Victorino Dennis M. Socrates sent notices of the
convening of the PRA to the members thereof
pursuant to Section 70 of the Local Government Code.
Copies of the said notice are in Volumes I and II
entitled Notices to PRA. Likewise, Proof of Service for
each of the said notices were attached to the Petition
and marked as Annex "G" of Volumes II and III of the
Petition.
Notices were likewise posted in conspicuous places
particularly at the Barangay Hall. Photos establishing
the same were attached to the Petition and marked as
Annex "H". The proponents likewise utilized the
broadcast mass media in the dissemination of the
convening of the PRA.
Notices of the convening of the Puerto Princesa PRA
were also sent to the following: [a list of 25 names of
provincial elective officials, print and broadcast media
practitioners, PNP officials, COMELEC city, regional and
national officials, and DILG officials].
xxx
The City Election Officer of Puerto Princesa City in her
Certification dated 10 July 2002 certified that upon a
'thorough and careful verification of the signatures
appearing in PRA Resolution 01-02, x x x the majority
of all members of the PRA concerned approved said
resolution.' She likewise certified 'that not a single
member/signatory of the PRA complained or objected
as to the veracity and authenticity of their signatures.'
The Provincial Election Supervisor of Palawan, Atty.
Urbano Arlando, in his Indorsement dated 10 July
2002, stated, 'upon proper review, all documents
submitted are found in order.'
The Acting Director IV, Region IV, in his study dated
30 July 2002 submitted the following
recommendations:
'This Office, after evaluating the documents filed, finds
the instant Petition sufficient in form and substance.
That the PRA was validly constituted and that the
majority of all members thereof approved Resolution
No. 01-02 calling for the recall of Mayor Victorino
Dennis M. Socrates.'
x x x ."
This Court is bound by the findings of fact of the
COMELEC on matters within the competence and
expertise of the COMELEC, unless the findings are
patently erroneous. In Malonzo v. COMELEC,5 which
62
also dealt with alleged defective service of notice to
PRA members, we ruled that –
"Needless to state, the issue of propriety of the notices
sent to the PRA members is factual in nature, and the
determination of the same is therefore a function of
the COMELEC. In the absence of patent error, or
serious inconsistencies in the findings, the Court
should not disturb the same. The factual findings of
the COMELEC, based on its own assessments and duly
supported by gathered evidence, are conclusive upon
the court, more so, in the absence of a substantiated
attack on the validity of the same."
In the instant case, we do not find any valid reason to
hold that the COMELEC's findings of fact are patently
erroneous.
Socrates also claims that the PRA members had no
authority to adopt the Recall Resolution on July 2,
2002 because a majority of PRA members were
seeking a new electoral mandate in the barangay
elections scheduled on July 15, 2002. This argument
deserves scant consideration considering that when
the PRA members adopted the Recall Resolution their
terms of office had not yet expired. They were all de
jure sangguniang barangay members with no legal
disqualification to participate in the recall assembly
under Section 70 of the Local Government Code.
Socrates bewails that the manner private respondents
conducted the PRA proceedings violated his
constitutional right to information on matters of public
concern. Socrates, however, admits receiving notice of
the PRA meeting and of even sending his
representative and counsel who were present during
the entire PRA proceedings. Proponents of the recall
election submitted to the COMELEC the Recall
Resolution, minutes of the PRA proceedings, the
journal of the PRA assembly, attendance sheets,
notices sent to PRA members, and authenticated
master list of barangay officials in Puerto Princesa.
Socrates had the right to examine and copy all these
public records in the official custody of the COMELEC.
Socrates, however, does not claim that the COMELEC
denied him this right. There is no legal basis in
Socrates' claim that respondents violated his
constitutional right to information on matters of public
concern.
Thus, we rule that the COMELEC did not commit grave
abuse of discretion in upholding the validity of the
Recall Resolution and in scheduling the recall election
on September 24, 2002.
Second Issue: Hagedorn's qualification to run for
mayor
in the recall election of September 24, 2002.
The three-term limit rule for elective local officials is
found in Section 8, Article X of the Constitution, which
states:
"Section 8. The term of office of elective local officials,
except barangay officials, which shall be determined
by law, shall be three years and no such official shall
serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of his service for the full term for which he
was elected."
This three-term limit rule is reiterated in Section 43
(b) of RA No. 7160, otherwise known as the Local
Government Code, which provides:
"Section 43. Term of Office. – (a) x x x
(b) No local elective official shall serve for
more than three (3) consecutive terms in the
same position. Voluntary renunciation of the
office for any length of time shall not be
considered as an interruption in the continuity
of service for the full term for which the
elective official was elected."
These constitutional and statutory provisions have two
parts. The first part provides that an elective local
official cannot serve for more than three consecutive
terms. The clear intent is that only consecutive terms
count in determining the three-term limit rule. The
second part states that voluntary renunciation of office
for any length of time does not interrupt the continuity
of service. The clear intent is that involuntary
severance from office for any length of time interrupts
continuity of service and prevents the service before
and after the interruption from being joined together
to form a continuous service or consecutive terms.
After three consecutive terms, an elective local official
cannot seek immediate reelection for a fourth term.
The prohibited election refers to the next regular
election for the same office following the end of the
third consecutive term. Any subsequent election, like a
recall election, is no longer covered by the prohibition
for two reasons. First, a subsequent election like a
recall election is no longer an immediate reelection
after three consecutive terms. Second, the intervening
period constitutes an involuntary interruption in the
continuity of service.
When the framers of the Constitution debated on the
term limit of elective local officials, the question asked
was whether there would be no further election after
three terms, or whether there would be "no immediate
reelection" after three terms. This is clear from the
following deliberations of the Constitutional
Commission:
63
"THE PRESIDENT: The Acting Floor Leader is
recognized.
MR. ROMULO:6 We are now ready to discuss
the two issues, as indicated on the blackboard,
and these are Alternative No. I where there is
no further election after a total of three terms
and Alternative No. 2 where there is no
immediate reelection after three successive
terms."7
The Journal of the Constitutional Commission reports
the following manifestation on the term of elective
local officials:
"MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested
that the Body would proceed to the consideration of
two issues on the term of Representatives and local
officials, namely: 1) Alternative No. 1 (no further
reelection after a total of three terms), and 2)
Alternative No. 2 (no immediate reelection after three
successive terms)."8
The framers of the Constitution used the same "no
immediate reelection" question in voting for the term
limits of Senators9 and Representatives of the
House.10
Clearly, what the Constitution prohibits is an
immediate reelection for a fourth term following three
consecutive terms. The Constitution, however, does
not prohibit a subsequent reelection for a fourth term
as long as the reelection is not immediately after the
end of the third consecutive term. A recall election
mid-way in the term following the third consecutive
term is a subsequent election but not an immediate
reelection after the third term.
Neither does the Constitution prohibit one barred from
seeking immediate reelection to run in any other
subsequent election involving the same term of office.
What the Constitution prohibits is a consecutive fourth
term. The debates in the Constitutional Commission
evidently show that the prohibited election referred to
by the framers of the Constitution is the immediate
reelection after the third term, not any other
subsequent election.
If the prohibition on elective local officials is applied to
any election within the three-year full term following
the three-term limit, then Senators should also be
prohibited from running in any election within the six-
year full term following their two-term limit. The
constitutional provision on the term limit of Senators is
worded exactly like the term limit of elective local
officials, thus:
"No Senator shall serve for more than two consecutive
terms. Voluntary renunciation of the office for any
length of time shall not be considered as an
interruption in the continuity of his service for the full
term for which he was elected."11
In the debates on the term limit of Senators, the
following exchange in the Constitutional Convention is
instructive:
"GASCON:12 I would like to ask a question with
regard to the issue after the second term. We
will allow the Senator to rest for a period of
time before he can run again?
DAVIDE:13 That is correct.
GASCON: And the question that we left behind
before - if the Gentleman will remember -
was: How long will that period of rest be? Will
it be one election which is three years or one
term which is six years?
DAVIDE: If the Gentleman will remember,
Commissioner Rodrigo expressed the view that
during the election following the expiration of
the first 12 years, whether such election will
be on the third or on the sixth year thereafter,
this particular member of the Senate can run.
So, it is not really a period of hibernation for
six years. That was the Committee's stand.
GASCON: So, effectively, the period of rest
would be three years at the
least."14 (Emphasis supplied)
The framers of the Constitution thus clarified that a
Senator can run after only three years15 following his
completion of two terms. The framers expressly
acknowledged that the prohibited election refers only
to the immediate reelection, and not to any
subsequent election, during the six-year period
following the two term limit. The framers of the
Constitution did not intend "the period of rest" of an
elective official who has reached his term limit to be
the full extent of the succeeding term.
In the case of Hagedorn, his candidacy in the recall
election on September 24, 2002 is not an immediate
reelection after his third consecutive term which ended
on June 30, 2001. The immediate reelection that the
Constitution barred Hagedorn from seeking referred to
the regular elections in 2001. Hagedorn did not seek
reelection in the 2001 elections.
Hagedorn was elected for three consecutive terms in
the 1992, 1995 and 1998 elections and served in full
his three consecutive terms as mayor of Puerto
Princesa. Under the Constitution and the Local
Government Code, Hagedorn could no longer run for
64
mayor in the 2001 elections. The Constitution and the
Local Government Code disqualified Hagedorn, who
had reached the maximum three-term limit, from
running for a fourth consecutive term as mayor. Thus,
Hagedorn did not run for mayor in the 2001
elections.16 Socrates ran and won as mayor of Puerto
Princesa in the 2001 elections. After Hagedorn ceased
to be mayor on June 30, 2001, he became a private
citizen until the recall election of September 24, 2002
when he won by 3,018 votes over his closest
opponent, Socrates.
From June 30, 2001 until the recall election on
September 24, 2002, the mayor of Puerto Princesa
was Socrates. During the same period, Hagedorn was
simply a private citizen. This period is clearly an
interruption in the continuity of Hagedorn's service as
mayor, not because of his voluntary renunciation, but
because of a legal prohibition. Hagedorn's three
consecutive terms ended on June 30, 2001.
Hagedorn's new recall term from September 24, 2002
to June 30, 2004 is not a seamless continuation of his
previous three consecutive terms as mayor. One
cannot stitch together Hagedorn's previous three-
terms with his new recall term to make the recall term
a fourth consecutive term because factually it is not.
An involuntary interruption occurred from June 30,
2001 to September 24, 2002 which broke the
continuity or consecutive character of Hagedorn's
service as mayor.
In Lonzanida v. Comelec,17 the Court had occasion to
explain interruption of continuity of service in this
manner:
"x x x The second sentence of the constitutional
provision under scrutiny states, "Voluntary
renunciation of office for any length of time shall not
be considered as an interruption in the continuity of
service for the full term for which he was elected." The
clear intent of the framers of the constitution to bar
any attempt to circumvent the three-term limit by a
voluntary renunciation of office and at the same time
respect the people's choice and grant their elected
official full service of a term is evident in this
provision. Voluntary renunciation of a term does not
cancel the renounced term in the computation of the
three-term limit; conversely, involuntary severance
from office for any length of time short of the full term
provided by law amounts to an interruption of
continuity of service. x x x." (Emphasis supplied)
In Hagedorn's case, the nearly 15-month period he
was out of office, although short of a full term of three
years, constituted an interruption in the continuity of
his service as mayor. The Constitution does not
require the interruption or hiatus to be a full term of
three years. The clear intent is that interruption "for
any length of time," as long as the cause is
involuntary, is sufficient to break an elective local
official's continuity of service.
In the recent case of Adormeo v. Comelec and
Talaga,18 a unanimous Court reiterated the rule that
an interruption consisting of a portion of a term of
office breaks the continuity of service of an elective
local official. In Adormeo, Ramon Y. Talaga, Jr. had
served two consecutive full terms as mayor of Lucena
City. In his third bid for election as mayor in 1998,
Talaga lost to Bernard G. Tagarao. However, in the
recall election of May 12, 2000, Talaga won and
served the unexpired term of Tagarao from May 12,
2000 to June 30, 2001. When Talaga ran again for
mayor in the 2001 elections, Raymundo Adormeo, the
other candidate for mayor, petitioned for Talaga's
disqualification on the ground that Talaga had already
served three consecutive terms as mayor.
Thus, the issue in Adormeo was whether Talaga's
recall term was a continuation of his previous two
terms so that he was deemed to have already served
three consecutive terms as mayor. The Court ruled
that Talaga was qualified to run in the 2001 elections,
stating that the period from June 30, 1998 to May 12,
2000 when Talaga was out of office interrupted the
continuity of his service as mayor. Talaga's recall term
as mayor was not consecutive to his previous two
terms because of this interruption, there having been
a break of almost two years during which time
Tagarao was the mayor.
We held in Adormeo that the period an elective local
official is out of office interrupts the continuity of his
service and prevents his recall term from being
stitched together as a seamless continuation of his
previous two consecutive terms. In the instant case,
we likewise hold that the nearly 15 months Hagedorn
was out of office interrupted his continuity of service
and prevents his recall term from being stitched
together as a seamless continuation of his previous
three consecutive terms. The only difference between
Adormeo and the instant case is the time of the
interruption. In Adormeo, the interruption occurred
after the first two consecutive terms. In the instant
case, the interruption happened after the first three
consecutive terms. In both cases, the respondents
were seeking election for a fourth term.
In Adormeo, the recall term of Talaga began only from
the date he assumed office after winning the recall
election. Talaga's recall term did not retroact to
include the tenure in office of his predecessor. If
Talaga's recall term was made to so retroact, then he
would have been disqualified to run in the 2001
elections because he would already have served three
consecutive terms prior to the 2001 elections. One
who wins and serves a recall term does not serve the
full term of his predecessor but only the unexpired
term. The period of time prior to the recall term, when
another elective official holds office, constitutes an
interruption in continuity of service. Clearly, Adormeo
established the rule that the winner in the recall
election cannot be charged or credited with the full
65
term of three years for purposes of counting the
consecutiveness of an elective official's terms in office.
In the same manner, Hagedorn's recall term does not
retroact to include the tenure in office of Socrates.
Hagedorn can only be disqualified to run in the
September 24, 2002 recall election if the recall term is
made to retroact to June 30, 2001, for only then can
the recall term constitute a fourth consecutive term.
But to consider Hagedorn's recall term as a full term of
three years, retroacting to June 30, 2001, despite the
fact that he won his recall term only last September
24, 2002, is to ignore reality. This Court cannot
declare as consecutive or successive terms of office
which historically and factually are not.
Worse, to make Hagedorn's recall term retroact to
June 30, 2001 creates a legal fiction that unduly
curtails the freedom of the people to choose their
leaders through popular elections. The concept of term
limits is in derogation of the sovereign will of the
people to elect the leaders of their own choosing.
Term limits must be construed strictly to give the
fullest possible effect to the sovereign will of the
people. As this Court aptly stated in Borja, Jr. v.
Comelec:
"Thus, a consideration of the historical background of
Art. X, §8 of the Constitution reveals that the
members of the Constitutional Commission were as
much concerned with preserving the freedom of choice
of the people as they were with preventing the
monopolization of political power. Indeed, they
rejected a proposal put forth by Commissioner
Edmundo F. Garcia that after serving three
consecutive terms or nine years there should be no
further reelection for local and legislative officials.
Instead, they adopted the alternative proposal of
Commissioner Christian Monsod that such officials be
simply barred from running for the same position in
the succeeding election following the expiration of the
third consecutive term. Monsod warned against
'prescreening candidates [from] whom the people will
choose' as a result of the proposed absolute
disqualification, considering that the draft constitution
contained provisions 'recognizing people's
power.'"19 (Emphasis supplied)
A necessary consequence of the interruption of
continuity of service is the start of a new term
following the interruption. An official elected in recall
election serves the unexpired term of the recalled
official. This unexpired term is in itself one term for
purposes of counting the three-term limit. This is clear
from the following discussion in the Constitutional
Commission:
"SUAREZ:20 For example, a special election is called
for a Senator, and the Senator newly elected would
have to serve the unexpired portion of the term.
Would that mean that serving the unexpired portion of
the term is already considered one term? So, half a
term, which is actually the correct statement, plus one
term would disqualify the Senator concerned from
running? Is that the meaning of this provision on
disqualification, Madam President?

DAVIDE: Yes, because we speak of 'term,' and if there

is a special election, he will serve only for the
unexpired portion of that particular term plus one
more term for the Senator and two more terms for the
Members of the Lower House."21

Although the discussion referred to special elections

for Senators and Representatives of the House, the
same principle applies to a recall election of local
officials. Otherwise, an elective local official who
serves a recall term can serve for more than nine
consecutive years comprising of the recall term plus
the regular three full terms. A local official who serves
a recall term should know that the recall term is in
itself one term although less than three years. This is
the inherent limitation he takes by running and
winning in the recall election.

In summary, we hold that Hagedorn is qualified to run

in the September 24, 2002 recall election for mayor of
Puerto Princesa because:

1. Hagedorn is not running for immediate

reelection following his three consecutive
terms as mayor which ended on June 30,
2001;

2. Hagedorn's continuity of service as mayor

was involuntarily interrupted from June 30,
2001 to September 24, 2002 during which
time he was a private citizen;

3. Hagedorn's recall term from September 24,

2002 to June 30, 2004 cannot be made to
retroact to June 30, 2001 to make a fourth
consecutive term because factually the recall
term is not a fourth consecutive term; and

4. Term limits should be construed strictly to

give the fullest possible effect to the right of
the electorate to choose their leaders.

WHEREFORE, the petitions in G.R. Nos. 154512,

154683 and 155083-84 are DISMISSED. The
temporary restraining order issued by this Court on
September 24, 2002 enjoining the proclamation of the
winning candidate for mayor of Puerto Princesa in the
recall election of September 24, 2002 is lifted. No
costs.

SO ORDERED.

66
G.R. No. 184836 December 23, 2009
SIMON B. ALDOVINO, JR., DANILO B. FALLER
AND FERDINAND N. TALABONG, Petitioners,
vs.
COMMISSION ON ELECTIONS AND WILFREDO F.
ASILO, Respondents.
DECISION
BRION, J.:
Is the preventive suspension of an elected public
official an interruption of his term of office for
purposes of the three-term limit rule under Section 8,
Article X of the Constitution and Section 43(b) of
Republic Act No. 7160 (RA 7160, or the Local
Government Code)?
The respondent Commission on Elections (COMELEC)
ruled that preventive suspension is an effective
interruption because it renders the suspended public
official unable to provide complete service for the full
term; thus, such term should not be counted for the
purpose of the three-term limit rule.
The present petition1 seeks to annul and set aside this
COMELEC ruling for having been issued with grave
abuse of discretion amounting to lack or excess of
jurisdiction.
THE ANTECEDENTS
The respondent Wilfredo F. Asilo (Asilo) was elected
councilor of Lucena City for three consecutive terms:
for the 1998-2001, 2001-2004, and 2004-2007 terms,
respectively. In September 2005 or during his 2004-
2007 term of office, the Sandiganbayan preventively
suspended him for 90 days in relation with a criminal
case he then faced. This Court, however, subsequently
lifted the Sandiganbayan’s suspension order; hence,
he resumed performing the functions of his office and
finished his term.
In the 2007 election, Asilo filed his certificate of
candidacy for the same position. The petitioners Simon
B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N.
Talabong (the petitioners) sought to deny due course
to Asilo’s certificate of candidacy or to cancel it on the
ground that he had been elected and had served for
three terms; his candidacy for a fourth term therefore
violated the three-term limit rule under Section 8,
Article X of the Constitution and Section 43(b) of RA
7160.
The COMELEC’s Second Division ruled against the
petitioners and in Asilo’s favour in its Resolution of
November 28, 2007. It reasoned out that the three-
term limit rule did not apply, as Asilo failed to render
67
complete service for the 2004-2007 term because of
the suspension the Sandiganbayan had ordered.
The COMELEC en banc refused to reconsider the
Second Division’s ruling in its October 7, 2008
Resolution; hence, the PRESENT PETITION raising the
following ISSUES:
1. Whether preventive suspension of an
elected local official is an interruption of the
three-term limit rule; and
2. Whether preventive suspension is
considered involuntary renunciation as
contemplated in Section 43(b) of RA 7160
Thus presented, the case raises the direct issue of
whether Asilo’s preventive suspension constituted an
interruption that allowed him to run for a 4th term.
THE COURT’S RULING
We find the petition meritorious.
General Considerations
The present case is not the first before this Court on
the three-term limit provision of the Constitution, but
is the first on the effect of preventive suspension on
the continuity of an elective official’s term. To be sure,
preventive suspension, as an interruption in the term
of an elective public official, has been mentioned as an
example in Borja v. Commission on
Elections.2 Doctrinally, however, Borja is not a
controlling ruling; it did not deal with preventive
suspension, but with the application of the three-term
rule on the term that an elective official acquired by
succession.
a. The Three-term Limit Rule:
The Constitutional Provision Analyzed
Section 8, Article X of the Constitution states:
Section 8. The term of office of elective local officials,
except barangay officials, which shall be determined
by law, shall be three years and no such official shall
serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of his service for the full term for which he
was elected.
Section 43 (b) of RA 7160 practically repeats the
constitutional provision, and any difference in wording
does not assume any significance in this case.
As worded, the constitutional provision fixes the term
of a local elective office and limits an elective official’s
stay in office to no more than three consecutive terms.
This is the first branch of the rule embodied in Section
8, Article X.
Significantly, this provision refers to a "term" as a
period of time – three years – during which an official
has title to office and can serve. Appari v. Court of
Appeals,3 a Resolution promulgated on November 28,
2007, succinctly discusses what a "term" connotes, as
follows:
The word "term" in a legal sense means a fixed
and definite period of time which the law
describes that an officer may hold an
office. According to Mechem, the term of office is the
period during which an office may be held. Upon
expiration of the officer’s term, unless he is authorized
by law to holdover, his rights, duties and authority as
a public officer must ipso facto cease. In the law of
public officers, the most and natural frequent method
by which a public officer ceases to be such is by the
expiration of the terms for which he was elected or
appointed. [Emphasis supplied].1avvphi1
A later case, Gaminde v. Commission on
Audit,4 reiterated that "[T]he term means the time
during which the officer may claim to hold office as of
right, and fixes the interval after which the several
incumbents shall succeed one another."
The "limitation" under this first branch of the provision
is expressed in the negative – "no such official shall
serve for more than three consecutive terms." This
formulation – no more than three consecutive terms –
is a clear command suggesting the existence of an
inflexible rule. While it gives no exact indication of
what to "serve. . . three consecutive terms" exactly
connotes, the meaning is clear – reference is to the
term, not to the service that a public official may
render.1awphi1 In other words, the limitation refers to
the term.
The second branch relates to the provision’s express
initiative to prevent any circumvention of the
limitation through voluntary severance of ties with the
public office; it expressly states that voluntary
renunciation of office "shall not be considered as an
interruption in the continuity of his service for the full
term for which he was elected." This declaration
complements the term limitation mandated by the first
branch.
A notable feature of the second branch is that it does
not textually state that voluntary renunciation is the
only actual interruption of service that does not affect
"continuity of service for a full term" for purposes of
the three-term limit rule. It is a pure declaratory
statement of what does not serve as an interruption of
service for a full term, but the phrase "voluntary
68
renunciation," by itself, is not without significance in
determining constitutional intent.
The word "renunciation" carries the dictionary
meaning of abandonment. To renounce is to give up,
abandon, decline, or resign.5 It is an act that
emanates from its author, as contrasted to an act that
operates from the outside. Read with the definition of
a "term" in mind, renunciation, as mentioned under
the second branch of the constitutional provision,
cannot but mean an act that results in cutting short
the term, i.e., the loss of title to office. The descriptive
word "voluntary" linked together with "renunciation"
signifies an act of surrender based on the surenderee’s
own freely exercised will; in other words, a loss of title
to office by conscious choice. In the context of the
three-term limit rule, such loss of title is not
considered an interruption because it is presumed to
be purposely sought to avoid the application of the
term limitation.
The following exchanges in the deliberations of the
Constitutional Commission on the term "voluntary
renunciation" shed further light on the extent of the
term "voluntary renunciation":
MR. MAAMBONG. Could I address the clarificatory
question to the Committee? This term "voluntary
renunciation" does not appear in Section 3 [of Article
VI]; it also appears in Section 6 [of Article VI].
MR DAVIDE. Yes.
MR. MAAMBONG. It is also a recurring phrase all over
the Constitution. Could the Committee please
enlighten us exactly what "voluntary renunciation"
mean? Is this akin to abandonment?
MR. DAVIDE. Abandonment is voluntary. In other
words, he cannot circumvent the restriction by merely
resigning at any given time on the second term.
MR. MAAMBONG. Is the Committee saying that the
term "voluntary renunciation" is more general than
abandonment and resignation?
MR. DAVIDE. It is more general, more embracing.6
From this exchange and Commissioner Davide’s
expansive interpretation of the term "voluntary
renunciation," the framers’ intent apparently was to
close all gaps that an elective official may seize to
defeat the three-term limit rule, in the way that
voluntary renunciation has been rendered unavailable
as a mode of defeating the three-term limit rule.
Harking back to the text of the constitutional
provision, we note further that Commissioner Davide’s
view is consistent with the negative formulation of the
first branch of the provision and the inflexible
interpretation that it suggests.
This examination of the wording of the constitutional
provision and of the circumstances surrounding its
formulation impresses upon us the clear intent to
make term limitation a high priority constitutional
objective whose terms must be strictly construed and
which cannot be defeated by, nor sacrificed for, values
of less than equal constitutional worth. We view
preventive suspension vis-à-vis term limitation with
this firm mindset.
b. Relevant Jurisprudence on the
Three-term Limit Rule
Other than the above-cited materials, jurisprudence
best gives us a lead into the concepts within the
provision’s contemplation, particularly on the
"interruption in the continuity of service for the full
term" that it speaks of.
Lonzanida v. Commission on Elections7 presented the
question of whether the disqualification on the basis of
the three-term limit applies if the election of the public
official (to be strictly accurate, the proclamation as
winner of the public official) for his supposedly third
term had been declared invalid in a final and
executory judgment. We ruled that the two requisites
for the application of the disqualification (viz., 1. that
the official concerned has been elected for three
consecutive terms in the same local government post;
and 2. that he has fully served three consecutive
terms) were not present. In so ruling, we said:
The clear intent of the framers of the constitution to
bar any attempt to circumvent the three-term limit by
a voluntary renunciation of office and at the same
time respect the people’s choice and grant their
elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not
cancel the renounced term in the computation of the
three term limit; conversely, involuntary severance
from office for any length of time short of the full term
provided by law amounts to an interruption of
continuity of service. The petitioner vacated his post a
few months before the next mayoral elections, not by
voluntary renunciation but in compliance with the legal
process of writ of execution issued by the COMELEC to
that effect. Such involuntary severance from office is
an interruption of continuity of service and thus, the
petitioner did not fully serve the 1995-1998 mayoral
term. [Emphasis supplied]
Our intended meaning under this ruling is clear: it is
severance from office, or to be exact, loss of title, that
renders the three-term limit rule inapplicable.
Ong v. Alegre8 and Rivera v. COMELEC,9 like
Lonzanida, also involved the issue of whether there
had been a completed term for purposes of the three-
term limit disqualification. These cases, however,
presented an interesting twist, as their final judgments
69
in the electoral contest came after the term of the
contested office had expired so that the elective
officials in these cases were never effectively
unseated.
Despite the ruling that Ong was never entitled to the
office (and thus was never validly elected), the Court
concluded that there was nevertheless an election and
service for a full term in contemplation of the three-
term rule based on the following premises: (1) the
final decision that the third-termer lost the election
was without practical and legal use and value, having
been promulgated after the term of the contested
office had expired; and (2) the official assumed and
continuously exercised the functions of the office from
the start to the end of the term. The Court noted in
Ong the absurdity and the deleterious effect of a
contrary view – that the official (referring to the
winner in the election protest) would, under the three-
term rule, be considered to have served a term by
virtue of a veritably meaningless electoral protest
ruling, when another actually served the term
pursuant to a proclamation made in due course after
an election. This factual variation led the Court to rule
differently from Lonzanida.
In the same vein, the Court in Rivera rejected the
theory that the official who finally lost the election
contest was merely a "caretaker of the office" or a
mere "de facto officer." The Court obeserved that
Section 8, Article X of the Constitution is violated and
its purpose defeated when an official fully served in
the same position for three consecutive terms.
Whether as "caretaker" or "de facto" officer, he
exercised the powers and enjoyed the perquisites of
the office that enabled him "to stay on indefinitely."
Ong and Rivera are important rulings for purposes of
the three-term limitation because of what they directly
imply. Although the election requisite was not actually
present, the Court still gave full effect to the three-
term limitation because of the constitutional intent to
strictly limit elective officials to service for three
terms. By so ruling, the Court signalled how zealously
it guards the three-term limit rule. Effectively, these
cases teach us to strictly interpret the term limitation
rule in favor of limitation rather than its exception.
Adormeo v. Commission on Elections10 dealt with the
effect of recall on the three-term limit disqualification.
The case presented the question of whether the
disqualification applies if the official lost in the regular
election for the supposed third term, but was elected
in a recall election covering that term. The Court
upheld the COMELEC’s ruling that the official was not
elected for three (3) consecutive terms. The Court
reasoned out that for nearly two years, the official was
a private citizen; hence, the continuity of his
mayorship was disrupted by his defeat in the election
for the third term.
Socrates v. Commission on Elections11 also tackled
recall vis-à-vis the three-term limit disqualification.
Edward Hagedorn served three full terms as mayor. As
he was disqualified to run for a fourth term, he did not
participate in the election that immediately followed
his third term. In this election, the petitioner Victorino
Dennis M. Socrates was elected mayor. Less than 1 ½
years after Mayor Socrates assumed the functions of
the office, recall proceedings were initiated against
him, leading to the call for a recall election. Hagedorn
filed his certificate of candidacy for mayor in the recall
election, but Socrates sought his disqualification on
the ground that he (Hagedorn) had fully served three
terms prior to the recall election and was therefore
disqualified to run because of the three-term limit
rule. We decided in Hagedorn’s favor, ruling that:
After three consecutive terms, an elective local official
cannot seek immediate reelection for a fourth term.
The prohibited election refers to the next regular
election for the same office following the end of the
third consecutive term. Any subsequent election, like a
recall election, is no longer covered by the prohibition
for two reasons. First, a subsequent election like a
recall election is no longer an immediate reelection
after three consecutive terms. Second, the intervening
period constitutes an involuntary interruption in the
continuity of service.
When the framers of the Constitution debated on the
term limit of elective local officials, the question asked
was whether there would be no further election after
three terms, or whether there would be "no immediate
reelection" after three terms.
xxxx
Clearly, what the Constitution prohibits is an
immediate reelection for a fourth term following three
consecutive terms. The Constitution, however, does
not prohibit a subsequent reelection for a fourth term
as long as the reelection is not immediately after the
end of the third consecutive term. A recall election
mid-way in the term following the third consecutive
term is a subsequent election but not an immediate
reelection after the third term.
Neither does the Constitution prohibit one barred from
seeking immediate reelection to run in any other
subsequent election involving the same term of office.
What the Constitution prohibits is a consecutive fourth
term.12
Latasa v. Commission on Elections13 presented the
novel question of whether a municipal mayor who had
fully served for three consecutive terms could run as
city mayor in light of the intervening conversion of the
municipality into a city. During the third term, the
municipality was converted into a city; the cityhood
charter provided that the elective officials of the
municipality shall, in a holdover capacity, continue to
70
exercise their powers and functions until elections
were held for the new city officials. The Court ruled
that the conversion of the municipality into a city did
not convert the office of the municipal mayor into a
local government post different from the office of the
city mayor – the territorial jurisdiction of the city was
the same as that of the municipality; the inhabitants
were the same group of voters who elected the
municipal mayor for 3 consecutive terms; and they
were the same inhabitants over whom the municipal
mayor held power and authority as their chief
executive for nine years. The Court said:
This Court reiterates that the framers of the
Constitution specifically included an exception to the
people’s freedom to choose those who will govern
them in order to avoid the evil of a single person
accumulating excessive power over a particular
territorial jurisdiction as a result of a prolonged stay in
the same office. To allow petitioner Latasa to vie for
the position of city mayor after having served for three
consecutive terms as a municipal mayor would
obviously defeat the very intent of the framers when
they wrote this exception. Should he be allowed
another three consecutive terms as mayor of the City
of Digos, petitioner would then be possibly holding
office as chief executive over the same territorial
jurisdiction and inhabitants for a total of
eighteen consecutive years. This is the very scenario
sought to be avoided by the Constitution, if not
abhorred by it.14
Latasa instructively highlights, after a review of
Lonzanida, Adormeo and Socrates, that no three-term
limit violation results if a rest period or break in the
service between terms or tenure in a given elective
post intervened. In Lonzanida, the petitioner was a
private citizen with no title to any elective office for a
few months before the next mayoral elections.
Similarly, in Adormeo and Socrates, the private
respondents lived as private citizens for two years and
fifteen months, respectively. Thus, these cases
establish that the law contemplates a complete break
from office during which the local elective official steps
down and ceases to exercise power or authority over
the inhabitants of the territorial jurisdiction of a
particular local government unit.
Seemingly differing from these results is the case of
Montebon v. Commission on Elections,15 where the
highest-ranking municipal councilor succeeded to the
position of vice-mayor by operation of law. The
question posed when he subsequently ran for
councilor was whether his assumption as vice-mayor
was an interruption of his term as councilor that would
place him outside the operation of the three-term limit
rule. We ruled that an interruption had intervened so
that he could again run as councilor. This result
seemingly deviates from the results in the cases
heretofore discussed since the elective official
continued to hold public office and did not become a
private citizen during the interim. The common thread
that identifies Montebon with the rest, however, is that
the elective official vacated the office of councilor and
assumed the higher post of vice-mayor by operation of
law. Thus, for a time he ceased to be councilor – an
interruption that effectively placed him outside the
ambit of the three-term limit rule.
c. Conclusion Based on Law and Jurisprudence
suspension being only one of them. To quote Latasa v.
Comelec:16
Indeed, [T]he law contemplates a rest period during
which the local elective official steps down from office
and ceases to exercise power or authority over the
inhabitants of the territorial jurisdiction of a particular
local government unit. [Emphasis supplied].

From all the above, we conclude that the Preventive Suspension and the Three-Term Limit Rule
"interruption" of a term exempting an elective official
from the three-term limit rule is one that involves no a. Nature of Preventive Suspension
less than the involuntary loss of title to office. The
elective official must have involuntarily left his office
Preventive suspension – whether under the Local
for a length of time, however short, for an effective
Government Code,17 the Anti-Graft and Corrupt
interruption to occur. This has to be the case if the
Practices Act,18or the Ombudsman Act19 – is an interim
thrust of Section 8, Article X and its strict intent are to
remedial measure to address the situation of an
be faithfully served, i.e., to limit an elective official’s
official who have been charged administratively or
continuous stay in office to no more than three
criminally, where the evidence preliminarily indicates
consecutive terms, using "voluntary renunciation" as
the likelihood of or potential for eventual guilt or
an example and standard of what does not constitute
liability.
an interruption.

Preventive suspension is imposed under the Local

Thus, based on this standard, loss of office by
Government Code "when the evidence of guilt is
operation of law, being involuntary, is an effective
strong and given the gravity of the offense, there is a
interruption of service within a term, as we held in
possibility that the continuance in office of the
Montebon. On the other hand, temporary inability or
respondent could influence the witnesses or pose a
disqualification to exercise the functions of an elective
threat to the safety and integrity of the records and
post, even if involuntary, should not be considered an
other evidence." Under the Anti-Graft and Corrupt
effective interruption of a term because it does not
Practices Act, it is imposed after a valid information
involve the loss of title to office or at least an effective
(that requires a finding of probable cause) has been
break from holding office; the office holder, while
filed in court, while under the Ombudsman Act, it is
retaining title, is simply barred from exercising the
imposed when, in the judgment of the Ombudsman,
functions of his office for a reason provided by law.
the evidence of guilt is strong; and (a) the charge
involves dishonesty, oppression or grave misconduct
An interruption occurs when the term is broken or neglect in the performance of duty; or (b) the
because the office holder lost the right to hold on to charges would warrant removal from the service; or
his office, and cannot be equated with the failure to (c) the respondent’s continued stay in office may
render service. The latter occurs during an office prejudice the case filed against him.
holder’s term when he retains title to the office but
cannot exercise his functions for reasons established
Notably in all cases of preventive suspension, the
by law. Of course, the term "failure to serve" cannot
suspended official is barred from performing the
be used once the right to office is lost; without the
functions of his office and does not receive salary in
right to hold office or to serve, then no service can be
the meanwhile, but does not vacate and lose title to
rendered so that none is really lost.
his office; loss of office is a consequence that only
results upon an eventual finding of guilt or liability.
To put it differently although at the risk of repetition,
Section 8, Article X – both by structure and substance
Preventive suspension is a remedial measure that
– fixes an elective official’s term of office and limits his
operates under closely-controlled conditions and gives
stay in office to three consecutive terms as an
a premium to the protection of the service rather than
inflexible rule that is stressed, no less, by citing
to the interests of the individual office holder. Even
voluntary renunciation as an example of a
then, protection of the service goes only as far as a
circumvention. The provision should be read in the
temporary prohibition on the exercise of the functions
context of interruption of term, not in the context of
of the official’s office; the official is reinstated to the
interrupting the full continuity of the exercise of the
exercise of his position as soon as the preventive
powers of the elective position. The "voluntary
suspension is lifted. Thus, while a temporary
renunciation" it speaks of refers only to the elective
incapacity in the exercise of power results, no position
official’s voluntary relinquishment of office and loss of
is vacated when a public official is preventively
title to this office. It does not speak of the temporary
suspended. This was what exactly happened to Asilo.
"cessation of the exercise of power or authority" that
may occur for various reasons, with preventive

71
That the imposition of preventive suspension can be
abused is a reality that is true in the exercise of all
powers and prerogative under the Constitution and the
laws. The imposition of preventive suspension,
however, is not an unlimited power; there are
limitations built into the laws20 themselves that the
courts can enforce when these limitations are
transgressed, particularly when grave abuse of
discretion is present. In light of this well-defined
parameters in the imposition of preventive suspension,
we should not view preventive suspension from the
extreme situation – that it can totally deprive an
elective office holder of the prerogative to serve and is
thus an effective interruption of an election official’s
term.
Term limitation and preventive suspension are two
vastly different aspects of an elective officials’ service
in office and they do not overlap. As already
mentioned above, preventive suspension involves
protection of the service and of the people being
served, and prevents the office holder from
temporarily exercising the power of his office. Term
limitation, on the other hand, is triggered after an
elective official has served his three terms in office
without any break. Its companion concept –
interruption of a term – on the other hand, requires
loss of title to office. If preventive suspension and
term limitation or interruption have any commonality
at all, this common point may be with respect to the
discontinuity of service that may occur in both. But
even on this point, they merely run parallel to each
other and never intersect; preventive suspension, by
its nature, is a temporary incapacity to render
service during an unbroken term; in the context of
term limitation, interruption of service occurs after
there has been a break in the term.
b. Preventive Suspension and the Intent of the
Three-Term Limit Rule
Strict adherence to the intent of the three-term limit
rule demands that preventive suspension should not
be considered an interruption that allows an elective
official’s stay in office beyond three terms. A
preventive suspension cannot simply be a term
interruption because the suspended official continues
to stay in office although he is barred from exercising
the functions and prerogatives of the office within the
suspension period. The best indicator of the
suspended official’s continuity in office is the absence
of a permanent replacement and the lack of the
authority to appoint one since no vacancy exists.
To allow a preventively suspended elective official to
run for a fourth and prohibited term is to close our
eyes to this reality and to allow a constitutional
violation through sophistry by equating the temporary
inability to discharge the functions of office with the
interruption of term that the constitutional provision
contemplates. To be sure, many reasons exist,
voluntary or involuntary – some of them personal and
72
some of them by operation of law – that may
temporarily prevent an elective office holder from
exercising the functions of his office in the way that
preventive suspension does. A serious extended
illness, inability through force majeure, or the
enforcement of a suspension as a penalty, to cite
some involuntary examples, may prevent an office
holder from exercising the functions of his office for a
time without forfeiting title to office. Preventive
suspension is no different because it disrupts actual
delivery of service for a time within a term. Adopting
such interruption of actual service as the standard to
determine effective interruption of term under the
three-term rule raises at least the possibility of
confusion in implementing this rule, given the many
modes and occasions when actual service may be
interrupted in the course of serving a term of office.
The standard may reduce the enforcement of the
three-term limit rule to a case-to-case and possibly
see-sawing determination of what an effective
interruption is.
c. Preventive Suspension and Voluntary
Renunciation
Preventive suspension, because it is imposed by
operation of law, does not involve a voluntary act on
the part of the suspended official, except in the
indirect sense that he may have voluntarily committed
the act that became the basis of the charge against
him. From this perspective, preventive suspension
does not have the element of voluntariness that
voluntary renunciation embodies. Neither does it
contain the element of renunciation or loss of title to
office as it merely involves the temporary incapacity to
perform the service that an elective office demands.
Thus viewed, preventive suspension is – by its very
nature – the exact opposite of voluntary renunciation;
it is involuntary and temporary, and involves only the
actual delivery of service, not the title to the office.
The easy conclusion therefore is that they are, by
nature, different and non-comparable.
But beyond the obvious comparison of their respective
natures is the more important consideration of how
they affect the three-term limit rule.
Voluntary renunciation, while involving loss of office
and the total incapacity to render service, is disallowed
by the Constitution as an effective interruption of a
term. It is therefore not allowed as a mode of
circumventing the three-term limit rule.
Preventive suspension, by its nature, does not involve
an effective interruption of a term and should
therefore not be a reason to avoid the three-term
limitation. It can pose as a threat, however, if we shall
disregard its nature and consider it an effective
interruption of a term. Let it be noted that a
preventive suspension is easier to undertake than
voluntary renunciation, as it does not require
relinquishment or loss of office even for the briefest
time. It merely requires an easily fabricated
administrative charge that can be dismissed soon after
a preventive suspension has been imposed. In this
sense, recognizing preventive suspension as an
effective interruption of a term can serve as a
circumvention more potent than the voluntary
renunciation that the Constitution expressly disallows
as an interruption.

Conclusion

To recapitulate, Asilo’s 2004-2007 term was not

interrupted by the Sandiganbayan-imposed preventive
suspension in 2005, as preventive suspension does
not interrupt an elective official’s term. Thus, the
COMELEC refused to apply the legal command of
Section 8, Article X of the Constitution when it granted
due course to Asilo’s certificate of candidacy for a
prohibited fourth term. By so refusing, the COMELEC
effectively committed grave abuse of discretion
amounting to lack or excess of jurisdiction; its action
was a refusal to perform a positive duty required by
no less than the Constitution and was one undertaken
outside the contemplation of law.21

WHEREFORE, premises considered, we GRANT the

petition and accordingly NULLIFY the assailed
COMELEC rulings. The private respondent Wilfredo F.
Asilo is declared DISQUALIFIED to run, and perforce to
serve, as Councilor of Lucena City for a prohibited
fourth term. Costs against private respondent Asilo.

SO ORDERED.

73
G.R. No. 147927 February 4, 2002
RAYMUNDO M. ADORMEO, petitioner,
vs.
COMMISSION ON ELECTIONS and RAMON Y.
TALAGA, JR., respondents.
DECISION
QUISUMBING, J.:
Before us is a petition for certiorari, with a prayer for a
writ of preliminary injunction and/or temporary
restraining order, to nullify and set aside the
resolution dated May 9, 2001 of public respondent
Commission on Elections in Comelec SPA No. 01-055,
which granted the motion for reconsideration and
declared private respondent Ramon Y. Talaga, Jr.,
qualified to run for Mayor in Lucena City for the May
14, 2001 election. Petitioner prays that votes cast in
private respondent’s favor should not be counted; and
should it happen that private respondent had been
already proclaimed the winner, his proclamation
should be declared null and void.
The uncontroverted facts are as follows:
Petitioner and private respondent were the only
candidates who filed their certificates of candidacy for
mayor of Lucena City in the May 14, 2001 elections.
Private respondent was then the incumbent mayor.
Private respondent Talaga, Jr. was elected mayor in
May 1992. He served the full term. Again, he was re-
elected in 1995-1998. In the election of 1998, he lost
to Bernard G. Tagarao. In the recall election of May
12, 2000, he again won and served the unexpired
term of Tagarao until June 30, 2001.
On March 2, 2001, petitioner filed with the Office of
the Provincial Election Supervisor, Lucena City a
Petition to Deny Due Course to or Cancel Certificate of
Candidacy and/or Disqualification of Ramon Y. Talaga,
Jr., on the ground that the latter was elected and had
served as city mayor for three (3) consecutive terms
as follows: (1) in the election of May 1992, where he
served the full term; (2) in the election of May 1995,
where he again served the full term; and, (3) in the
recall election of May 12, 2000, where he served only
the unexpired term of Tagarao after having lost to
Tagarao in the 1998 election. Petitioner contended
that Talaga’s candidacy as Mayor constituted a
violation of Section 8, Article X of the 1987
Constitution which provides:
Sec. 8. – The term of office of elective local officials,
except barangay officials, which shall be determined
by law, shall be three years and no such official shall
serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of
74
time shall not be considered as an interruption in the
continuity of his service for the full term for which he
was elected.
On March 9, 2001, private respondent responded that
he was not elected City Mayor for three (3)
consecutive terms but only for two (2) consecutive
terms. He pointed to his defeat in the 1998 election by
Tagarao. Because of his defeat the consecutiveness of
his years as mayor was interrupted, and thus his
mayorship was not for three consecutive terms of
three years each. Respondent added that his service
from May 12, 2001 until June 30, 2001 for 13 months
and eighteen (18) days was not a full term, in the
contemplation of the law and the Constitution. He
cites Lonzanida vs. COMELEC, G.R. No. 135150, 311
SCRA 602, 611 (1999), as authority to the effect that
to apply disqualification under Section 8, Article X of
the Constitution, two (2) conditions must concur, to
wit: (a) that the official concerned has been elected
for three consecutive terms in the same local
government post, and (b) that he has fully served
three (3) consecutive terms.
On April 20, 2001, the COMELEC, through the First
Division, found private respondent Ramon Y. Talaga,
Jr. disqualified for the position of city mayor on the
ground that he had already served three (3)
consecutive terms, and his Certificate of Candidacy
was ordered withdrawn and/or cancelled.
On April 27, 2001, private respondent filed a motion
for reconsideration reiterating that "three (3)
consecutive terms" means continuous service for nine
(9) years and that the two (2) years service from
1998 to 2000 by Tagarao who defeated him in the
election of 1998 prevented him from having three
consecutive years of service. He added that Tagarao’s
tenure from 1998 to 2000 could not be considered as
a continuation of his mayorship. He further alleged
that the recall election was not a regular election, but
a separate special election specifically to remove
incompetent local officials.
On May 3, 2001, petitioner filed his Opposition to
private respondent’s Motion for Reconsideration
stating therein that serving the unexpired term of
office is considered as one (1) term.1 Petitioner further
contended that Article 8 of the Constitution speaks of
"term" and does not mention "tenure". The fact that
private respondent was not elected in the May 1998
election to start a term that began on June 30, 1998
was of no moment, according to petitioner, and what
matters is that respondent was elected to an
unexpired term in the recall election which should be
considered one full term from June 30, 1998 to June
30, 2001.
On May 9, 2001, the COMELEC en banc ruled in favor
of private respondent Ramon Y. Talaga, Jr.. It
reversed the First Division’s ruling and held that 1)
respondent was not elected for three (3) consecutive
terms because he did not win in the May 11, 1998
elections; 2) that he was installed only as mayor by
reason of his victory in the recall elections; 3) that his
victory in the recall elections was not considered a
term of office and is not included in the 3-term
disqualification rule, and 4) that he did not fully serve
the three (3) consecutive terms, and his loss in the
May 11, 1998 elections is considered an interruption in
the continuity of his service as Mayor of Lucena City.
On May 19, 2001, after canvassing, private
respondent was proclaimed as the duly elected Mayor
of Lucena City.
Petitioner is now before this Court, raising the sole
issue:
WHETHER OR NOT PUBLIC RESPONDENT COMELEC
ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT ISSUED ITS RESOLUTION DATED MAY 9,
2001, DECLARING PRIVATE RESPONDENT RAMON Y.
TALAGA, JR., QUALIFIED TO RUN FOR MAYOR IN
LUCENA CITY FOR THE MAY 14, 2001 ELECTIONS.2
Stated differently, was private respondent disqualified
to run for mayor of Lucena City in the May 14, 2001
elections?3 This issue hinges on whether, as provided
by the Constitution, he had already served three
consecutive terms in that office.
Petitioner contends that private respondent was
disqualified to run for city mayor by reason of the
three-term rule because the unexpired portion of the
term of office he served after winning a recall election,
covering the period May 12, 2000 to June 30, 2001 is
considered a full term. He posits that to interpret
otherwise, private respondent would be serving four
(4) consecutive terms of 10 years, in violation of
Section 8, Article X of 1987 Constitution4 and Section
43 (b) of R.A. 7160, known as the Local Government
Code.
Section 43. Term of Office.—
xxx
(b) No local elective official shall serve for more than
three (3) consecutive terms in the same position.
Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of service for the full term for which the
elective official concerned was elected.
Private respondent, in turn, maintains that his service
as city mayor of Lucena is not consecutive. He lost his
bid for a second re-election in 1998 and between June
30, 1998 to May 12, 2000, during Tagarao’s
75
incumbency, he was a private citizen, thus he had not
been mayor for 3 consecutive terms.
In its comment, the COMELEC restated its position
that private respondent was not elected for three (3)
consecutive terms having lost his third bid in the May
11, 1998 elections, said defeat is an interruption in the
continuity of service as city mayor of Lucena.
The issue before us was already addressed in Borja,
Jr. vs. COMELEC, 295 SCRA 157, 169 (1998), where
we held,
To recapitulate, the term limit for elective local
officials must be taken to refer to the right to be
elected as well as the right to serve in the same
elective position.1âwphi1 Consequently, it is not
enough that an individual has served three
consecutive terms in an elective local office, he must
also have been elected to the same position for the
same number of times before the disqualification can
apply. This point can be made clearer by considering
the following case or situation:
xxx
Case No. 2. Suppose B is elected mayor and, during
his first term, he is twice suspended for misconduct for
a total of 1 year. If he is twice reelected after that, can
he run for one more term in the next election?
Yes, because he has served only two full terms
successively.
xxx
To consider C as eligible for reelection would be in
accord with the understanding of the Constitutional
Commission that while the people should be protected
from the evils that a monopoly of political power may
bring about, care should be taken that their freedom
of choice is not unduly curtailed.
Likewise, in the case of Lonzanida vs. COMELEC, 311
SCRA 602, 611 (1999), we said,
This Court held that the two conditions for the
application of the disqualification must concur: a) that
the official concerned has been elected for three
consecutive terms in the same local government post
and 2) that he has fully served three consecutive
terms.
Accordingly, COMELEC’s ruling that private respondent
was not elected for three (3) consecutive terms should
be upheld. For nearly two years he was a private
citizen. The continuity of his mayorship was disrupted
by his defeat in the 1998 elections.
Patently untenable is petitioner’s contention that
COMELEC in allowing respondent Talaga, Jr. to run in
the May 1998 election violates Article X, Section 8 of
1987 Constitution.5 To bolster his case, respondent
adverts to the comment of Fr. Joaquin Bernas, a
Constitutional Commission member, stating that in
interpreting said provision that "if one is elected
representative to serve the unexpired term of another,
that unexpired, no matter how short, will be
considered one term for the purpose of computing the
number of successive terms allowed."6

As pointed out by the COMELEC en banc, Fr. Bernas’

comment is pertinent only to members of the House of
Representatives. Unlike local government officials,
there is no recall election provided for members of
Congress.7

Neither can respondent’s victory in the recall election

be deemed a violation of Section 8, Article X of the
Constitution as "voluntary renunciation" for clearly it is
not.1âwphi1 In Lonzanida vs. COMELEC, we said:

…The second sentence of the constitutional provision

under scrutiny states, "Voluntary renunciation of
office for any length of time shall not be considered as
an interruption in the continuity of service for the full
term for which he was elected." The clear intent of the
framers of the constitution to bar any attempt to
circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the
people’s choice and grant their elected official full
service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced
term in the computation of the three term limit;
conversely, involuntary severance from office for any
length of time short of the full term provided by law
amounts to an interruption of continuity of service.
The petitioner vacated his post a few months before
the next mayoral elections, not by voluntary
renunciation but in compliance with the legal process
of writ of execution issued by the COMELEC to that
effect. Such involuntary severance from office is an
interruption of continuity of service and thus, the
petitioner did not fully serve the 1995-1998 mayoral
term.8

WHEREFORE, the instant petition is hereby

DISMISSED. The resolution of public respondent
Commission on Elections dated May 9, 2001, in
Comelec SPA No. 01-055 is AFFIRMED. Costs against
petitioner.

SO ORDERED.

76
G.R. No. 133495 September 3, 1998 18, 1988 local elections. He succeeded
to such office by operation of law and
BENJAMIN U. BORJA, JR., petitioner, served for the unexpired term of his
vs. predecessor. Consequently, such
COMMISSION ON ELECTIONS and JOSE T. succession into office is not counted as
CAPCO, JR., respondents. one (1) term for purposes of the
computation of the three-term
limitation under the Constitution and
the Local Government Code.

Accordingly, private respondent was voted for in the

MENDOZA, J.:
elections. He received 16,558 votes against
petitioner's 7,773 votes and was proclaimed elected
This case presents for determination the scope of the by the Municipal Board of Canvassers.
constitutional provision barring elective local officials,
with the exception of barangay officials, from serving
This is a petition for certiorari brought to set aside the
more than three consecutive terms. In particular, the
resolution, dated My 7, 1998, of the COMELEC and to
question is whether a vice-mayor who succeeds to the
seek a declaration that private respondent is
office of mayor by operation of law and serves the
disqualified to serve another term as mayor of
remainder of the term is considered to have served a
Pateros, Metro Manila.
term in that office for the purpose of the three-term
limit.
Petitioner contends that private respondent Capco's
service as mayor from September 2, 1989 to June 30,
Private respondent Jose T. Capco, Jr. was elected vice-
1992 should be considered as service for one full term,
mayor of Pateros on January 18, 1988 for a term
and since he thereafter served from 1992 to 1998 two
ending June 30, 1992. On September 2, 1989, he
more terms as mayor, he should be considered to
became mayor, by operation of law, upon the death of
have served three consecutive terms within the
the incumbent, Cesar Borja. On May 11, 1992, he ran
contemplation of Art. X, §8 of the Constitution and
and was elected mayor for a term of three years which
§43(b) of the Local Government Code. Petitioner
ended on June 30, 1995. On May 8, 1995, he was
stresses the fact that, upon the death of Mayor Cesar
reelected mayor for another term of three years
Borja on September 2, 1989, private respondent
ending June 30, 1998.1
became the mayor and thereafter served the
remainder of the term. Petitioner argues that it is
On March 27, 1998, private respondent Capco filed a irrelevant that private respondent became mayor by
certificate of candidacy for mayor of Pateros relative to succession because the purpose of the constitutional
the May 11, 1998 elections. Petitioner Benjamin U. provision in limiting the number of terms elective local
Borja Jr., who was also a candidate for mayor, sought officials may serve is to prevent a monopolization of
Capco's disqualification on the theory that the latter political power.
would have already served as mayor for three
consecutive terms by June 30, 1998 and would
This contention will not bear analysis. Article X, §8 of
therefore be ineligible to serve for another term after
the Constitution provides:
that.

Sec. 8. The term of office of elective

On April 30, 1998, the Second Division of the
local officials, except barangay
Commission on Elections ruled in favor of petitioner
officials, which shall be determined by
and declared private respondent Capco disqualified
law, shall be three years and no such
from running for reelection as mayor of
official shall serve for more than three
Pateros. 2 However, on motion of private respondent
consecutive terms. Voluntary
the COMELEC en banc, voting 5-2, reversed the
renunciation of the office for any
decision and declared Capco eligible to run for mayor
length of time shall not be considered
in the May 11, 1998 elections. 3 The majority stated in
as an interruption in the continuity of
its decision:
his service for the full term for which
he was elected.
In both the Constitution and the Local
Government Code, the three-term
This provision is restated in §43(b) of the Local
limitation refers to the term of office
Government Code (R.A. No. 7160):
for which the local official was elected.
It made no reference to succession to
an office to which he was not elected. Sec. 43. Term of Office. — . . .
In the case before the Commission,
respondent Capco was not elected to (b) No local elective official shall serve
the position of Mayor in the January for more than three (3) consecutive
77
 terms in the same position. Voluntary
renunciation of the office for any
length of time shall not be considered
as an interruption in the continuity of
service for the full term for which the
elective official concerned was elected.
...
First, to prevent the establishment of political
dynasties is not the only policy embodied in the
constitutional provision in question. The other policy is
that of enhancing the freedom of choice of the people.
To consider, therefore, only stay in office regardless of
how the official concerned came to that office —
whether by election or by succession by operation of
law — would be to disregard one of the purposes of
the constitutional provision in question.
Thus, a consideration of the historical background of
Article X, §8 of the Constitution reveals that the
members of the Constitutional Commission were as
much concerned with preserving the freedom of choice
of the people as they were with preventing the
monopolization of political power. Indeed, they
rejected a proposal put forth by Commissioner
Edmundo F. Garcia that after serving three
consecutive terms or nine years there should be no
further reelection for local and legislative officials.
Instead, they adopted the alternative proposal of
Commissioner Christian Monsod that such officials be
simply barred from running for the same position in
the of the succeeding election following the expiration
of the third consecutive term. 4 Monsod warned
against "prescreening candidates [from] whom the
people will choose" as a result of the proposed
absolute disqualification, considering that the draft
constitution contained provisions "recognizing people's
power." 5
Commissioner Blas F. Ople, who supported the Monsod
proposal, said:
The principle involved is really whether
this Commission shall impose a
temporary or a perpetual
disqualification on those who have
served their terms in accordance with
the limits on consecutive service as
decided by the Constitutional
Commission. I would be very wary
about this Commission exercising a
sort of omnipotent power in order to
disqualify those who will already have
served their terms from perpetuating
themselves in office. I think the
Commission achieves its purpose in
establishing safeguards against the
excessive accumulation of power as a
result of consecutive terms. We do put
a cap on consecutive service — in the
case of the President, six years, in the
case of the Vice-President, unlimited;
78
and in the case of the Senators, one
reelection. In the case of the Members
of Congress, both from the legislative
districts and from the party list and
sectoral representation, this is now
under discussion and later on the
policy concerning local officials will be
taken up by the Committee on Local
Governments. The principle remains
the same. I think we want to prevent
future situations where, as a result of
continuous service and frequent
reelections, officials from the President
down to the municipal mayor tend to
develop a proprietary interest in their
positions and to accumulate those
powers and perquisites that permit
them to stay on indefinitely or to
transfer these posts to members of
their families in a subsequent election.
I think that is taken care of because
we put a gap on the continuity or the
unbroken service of all of these
officials. But where we now decide to
put these prospective servants of the
people or politicians, if we want to use
the coarser term, under a perpetual
disqualification, I have a feeling that
we are taking away too much from the
people, whereas we should be giving
as much to the people as we can in
terms of their own freedom of choice. .
..6
Other commissioners went on record against
"perpetually disqualifying" elective officials who have
served a certain number of terms as this would deny
the right of the people to choose. As Commissioner
Yusup R. Abubakar asked, "why should we arrogate
unto ourselves the right to decide what the people
want?" 7
Commissioner Felicitas S. Aquino spoke in the same
vein when she called on her colleagues to "allow the
people to exercise their own sense of proportion and
[rely] on their own strength to curtail power when it
overreaches itself." 8
Commissioner Teodoro C. Bacani stressed: "Why
should we not leave [perpetual disqualification after
serving a number of terms] to the premise accepted
by practically everybody here that our people are
politically mature? Should we use this assumption only
when it is convenient for us, and not when it may also
lead to a freedom of choice for the people and for
politicians who may aspire to serve them longer?" 9
Two ideas thus emerge from a consideration of the
proceedings of the Constitutional Commission. The
first is the notion of service of term, derived from the
concern about the accumulation of power as a result of
a prolonged stay in office. The second is the idea
of election, derived from the concern that the right of
the people to choose those whom they wish to govern
them be preserved.
It is likewise noteworthy that, in discussing term
limits, the drafters of the Constitution did so on the
assumption that the officials concerned were serving
by reason of election. This is clear from the following
exchange in the Constitutional Commission concerning
term limits, now embodied in Art. VI, §§4 and 7 of the
Constitution, for members of Congress:
MR. GASCON. I would like to ask a
question with regard to the issue after
the second term. We will allow the
Senator to rest for a period of time
before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that
we left behind before — if the
Gentlemen will remember — was: How
long will that period of rest be? Will it
be one election which is three years or
one term which is six years?
MR. DAVIDE. If the Gentlemen will
remember, Commissioner Rodrigo
expressed the view that during
the election following the expiration of
the first 12 years, whether
such election will be on the third year
or on the sixth year thereafter, this
particular member of the Senate
can run. So, it is not really a period of
hibernation for six years. That was the
Committee's stand. 10
Indeed a fundamental tenet of representative
democracy is that the people should be allowed to
choose those whom they please to govern them. 11 To
bar the election of a local official because he has
already served three terms, although the first as a
result of succession by operation of law rather than
election, would therefore be to violate this principle.
Second, not only historical examination but textual
analysis as well supports the ruling of the COMELEC
that Art. X, §8 contemplates service by local officials
for three consecutive terms as a result of election. The
first sentence speaks of "the term of office
of elective local officials" and bars "such official[s]"
from serving for more than three consecutive terms.
The second sentence, in explaining when an elective
local official may be deemed to have served his full
term of office, states that "voluntary renunciation of
the office for any length of time shall not be
considered as an interruption in the continuity of his
service for the full term for which he was elected." The
term served must therefore be one "for which [the
79
official concerned] was elected." The purpose of this
provision is to prevent a circumvention of the
limitation on the number of terms an elective local
official may serve. Conversely, if he is not serving a
term for which he was elected because he is simply
continuing the service of the official he succeeds, such
official cannot be considered to have fully served the
term notwithstanding his voluntary renunciation of
office prior to its expiration.
Reference is made to Commissioner Bernas' comment
on Art. VI, §7, which similarly bars members of the
House of Representatives from serving for more than
three terms. Commissioner Bernas states that "if one
is elected Representative to serve the unexpired term
of another, that unexpired term, no matter how short,
will be considered one term for the purpose of
computing the number of successive terms
allowed." 12
This is actually based on the opinion expressed by
Commissioner Davide in answer to a query of
Commissioner Suarez: "For example, a special election
is called for a Senator, and the Senator newly elected
would have to serve the unexpired portion of the term.
Would that mean that serving the unexpired portion of
the term is already considered one term? So, half a
term, which is actually the correct statement, plus one
term would disqualify the Senator concerned from
running? Is that the meaning of this provision on
disqualification, Madam President?" Commissioner
Davide said: "Yes, because we speak of "term," and if
there is a special election, he will serve only for the
unexpired portion of that particular term plus one
more term for the Senator and two more terms for the
Members of the Lower House." 13
There is a difference, however, between the case of a
vice-mayor and that of a member of the House of
Representatives who succeeds another who dies,
resigns, becomes incapacitated, or is removed from
office. The vice-mayor succeeds to the mayorship by
operation of law. 14 On the other hand, the
Representative is elected to fill the vacancy. 15 In a
real sense, therefore, such Representative serves a
term for which he was elected. As the purpose of the
constitutional provision is to limit the right to be
elected and to serve in Congress, his service of the
unexpired term is rightly counted as his first term.
Rather than refute what we believe to be the
intendment of Art. X, §8 with regard to elective local
officials, the case of a Representative who succeeds
another confirms the theory.
Petitioner also cites Art. VII, §4 of the Constitution
which provides for succession of the Vice-President to
the Presidency in case of vacancy in that office. After
stating that "The President shall not be eligible for any
reelection," this provision says that "No person who
has succeeded as President and has served as such for
more than four years shall be qualified for election to
the same office at any time." Petitioner contends that,
by analogy, the vice-mayor should likewise be
considered to have served a full term as mayor if he
succeeds to the latter's office and serves for the
remainder of the term.
The framers of the Constitution included such a
provision because, without it, the Vice-President, who
simply steps into the Presidency by succession, would
be qualified to run President even if he has occupied
that office for more than four years. The absence of a
similar provision in Art. X, §8 on elective local officials
throws in bold relief the difference between the two
cases. It underscores the constitutional intent to cover
only the terms of office to which one may have
been elected for purposes of the three-term limit on
local elective officials, disregarding for this purpose
service by automatic succession.
There is another reason why the Vice-President who
succeeds to the Presidency and serves in that office
for more than four years is ineligible for election as
President. The Vice-President is elected primarily to
succeed the President in the event of the latter's
death, permanent disability, removal, or resignation.
While he may be appointed to the cabinet, his
becoming, so is entirely dependent on the good graces
of the President. In running for Vice-President, he may
thus be said to also seek the Presidency. For their
part, the electors likewise choose as Vice-President the
candidate who they think can fill the Presidency in the
event it becomes vacant. Hence, service in the
Presidency for more than four years may rightly be
considered as service for a full term.
This is not so in the case of the vice-mayor. Under the
Local Government Code, he is the presiding officer of
the sanggunian and he appoints all officials and
employees of such local assembly. He has distinct
powers and functions, succession to mayorship in the
event of vacancy therein being only one of
them. 16 It cannot be said of him, as much as of the
Vice-President in the event of a vacancy in the
Presidency, that, in running for vice-mayor, he also
seeks the mayorship. His assumption of the mayorship
in the event of vacancy is more a matter of chance
than of design. Hence, his service in that office should
not be counted in the application of any term limit.
To recapitulate, the term limit for elective local
officials must be taken to refer to the right to be
elected as well as the right to serve in the same
elective position. Consequently, it is not enough that
an individual has served three consecutive terms in an
elective local office, he must also have been elected to
the same position for the same number of times
before the disqualification can apply. This point can be
made clearer by considering the following cases or
situations:
Case No. 1. Suppose A is a vice-mayor
who becomes mayor by reason of the
80
death of the incumbent. Six months
before the next election, he resigns
and is twice elected thereafter. Can he
run again for mayor in the next
election?
Yes, because although he has already
first served as mayor by succession
and subsequently resigned from office
before the full term expired, he has
not actually served three full terms in
all for the purpose of applying the
term limit. Under Art. X, §8, voluntary
renunciation of the office is not
considered as an interruption in the
continuity of his service for the full
term only if the term is one "for which
he was elected." Since A is only
completing the service of the term for
which the deceased and not he was
elected, A cannot be considered to
have completed one term. His
resignation constitutes an interruption
of the full term.
Case No. 2. Suppose B is elected
mayor and, during his first term, he is
twice suspended for misconduct for a
total of 1 year. If he is twice reelected
after that, can he run for one
more term in the next election?
Yes, because he has served only two
full terms successively.
In both cases, the mayor is entitled to run for
reelection because the two conditions for the
application of the disqualification provisions have not
concurred, namely, that the local official concerned
has been elected three consecutive times and that he
has fully served three consecutive terms. In the first
case, even if the local official is considered to have
served three full terms notwithstanding his resignation
before the end of the first term, the fact remains that
he has not been elected three times. In the second
case, the local official has been elected three
consecutive times, but he has not fully served three
consecutive terms.
Case No. 3. The case of vice-
mayor C who becomes mayor by
succession involves a total failure of
the two conditions to concur for the
purpose of applying Art. X, §8.
Suppose he is twice elected after that
term, is he qualified to run again in the
next election?
Yes, because he was not elected to the
office of mayor in the first term but
simply found himself thrust into it by
 operation of law. Neither had he
served the full term because he only
continued the service, interrupted by
the death, of the deceased mayor.

To consider C in the third case to have served the first

term in full and therefore ineligible to run a third time
for reelection would be not only to falsify reality but
also to unduly restrict the right of the people to
choose whom they wish to govern them. If the vice-
mayor turns out to be a bad mayor, the people can
remedy the situation by simply not reelecting him for
another term. But if, on the other hand, he proves to
be a good mayor, there will be no way the people can
return him to office (even if it is just the third time he
is standing for reelection) if his service of the first
term is counted as one for the purpose of applying the
term limit.

To consider C as eligible for reelection would be in

accord with the understanding of the Constitutional
Commission that while the people should be protected
from the evils that a monopoly of political power may
bring about, care should be taken that their freedom
of choice is not unduly curtailed.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

81
G.R. No. 154829 December 10, 2003
ARSENIO A. LATASA, petitioner,
vs.
COMMISSION ON ELECTIONS, and ROMEO
SUNGA, respondents
DECISION
AZCUNA, J.:
This is a petition for certiorari under Rule 65 of the
Rules of Court which seeks to challenge the resolution
issued by the First Division of the Commission on
Elections (COMELEC) dated April 27, 2001 in SPA Case
No. 01-059 entitled, Romeo M. Sunga, petitioner,
versus Arsenio A. Latasa, respondent, and the
Resolution of the COMELEC en banc denying herein
petitioner’s Motion for Reconsideration. The assailed
Resolution denied due course to the certificate of
candidacy of petitioner Arsenio A. Latasa, declaring
him disqualified to run for mayor of Digos City, Davao
del Sur Province in the May 14, 2001 elections,
ordering that all votes cast in his favor shall not be
counted, and if he has been proclaimed winner,
declaring said proclamation null and void.
The facts are fairly simple.
Petitioner Arsenio A. Latasa, was elected mayor of the
Municipality of Digos, Davao del Sur in the elections of
1992, 1995, and 1998. During petitioner’s third term,
the Municipality of Digos was declared a component
city, to be known as the City of Digos. A plebiscite
conducted on September 8, 2000 ratified Republic Act
No. 8798 entitled, "An Act Converting the Municipality
of Digos, Davao del Sur Province into a Component
City to be known as the City of Digos" or the Charter
of the City of Digos. This event also marked the end of
petitioner’s tenure as mayor of the Municipality of
Digos. However, under Section 53, Article IX of the
Charter, petitioner was mandated to serve in a hold-
over capacity as mayor of the new City of Digos.
Hence, he took his oath as the city mayor.
On February 28, 2001, petitioner filed his certificate of
candidacy for city mayor for the May 14, 2001
elections. He stated therein that he is eligible therefor,
and likewise disclosed that he had already served for
three consecutive terms as mayor of the Municipality
of Digos and is now running for the first time for the
position of city mayor.
On March 1, 2001, private respondent Romeo M.
Sunga, also a candidate for city mayor in the said
elections, filed before the COMELEC a Petition to Deny
Due Course, Cancel Certificate of Candidacy and/ or
For Disqualification1against petitioner Latasa.
Respondent Sunga alleged therein that petitioner
falsely represented in his certificate of candidacy that
he is eligible to run as mayor of Digos City since
82
petitioner had already been elected and served for
three consecutive terms as mayor from 1992 to 2001.
On March 5, 2001, petitioner Latasa filed his
Answer,2 arguing that he did not make any false
representation in his certificate of candidacy since he
fully disclosed therein that he had served as mayor of
the Municipality of Digos for three consecutive terms.
Moreover, he argued that this fact does not bar him
from filing a certificate of candidacy for the May 14,
2001 elections since this will be the first time that he
will be running for the post of city mayor.
Both parties submitted their position papers on March
19, 2001.3
On April 27, 2001, respondent COMELEC’s First
Division issued a Resolution, the dispositive portion of
which reads, as follows:
Wherefore, premises considered, the respondent’s
certificate of candidacy should be cancelled for being a
violation of the three (3)-term rule proscribed by the
1987 Constitution and the Local Government Code of
1991.4
Petitioner filed his Motion for Reconsideration dated
May 4, 2001,5 which remained unacted upon until the
day of the elections, May 14, 2001. On May 16, 2001,
private respondent Sunga filed an Ex Parte Motion for
Issuance of Temporary Restraining Order Enjoining the
City Board of Canvassers From Canvassing or
Tabulating Respondent’s Votes, and From Proclaiming
Him as the Duly Elected Mayor if He Wins the
Elections.6 Despite this, however, petitioner Latasa
was still proclaimed winner on May 17, 2001, having
garnered the most number of votes. Consequently,
private respondent Sunga filed, on May 27, 2001, a
Supplemental Motion7 which essentially sought the
annulment of petitioner’s proclamation and the
suspension of its effects.
On July 1, 2001, petitioner was sworn into and
assumed his office as the newly elected mayor of
Digos City. It was only on August 27, 2002 that the
COMELEC en banc issued a Resolution denying
petitioner’s Motion for Reconsideration.
Hence, this petition.
It cannot be denied that the Court has previously held
in Mamba-Perez v. COMELEC8 that after an elective
official has been proclaimed as winner of the elections,
the COMELEC has no jurisdiction to pass upon his
qualifications. An opposing party’s remedies after
proclamation would be to file a petition for quo
warranto within ten days after the proclamation.
On the other hand, certain peculiarities in the present
case reveal the fact that its very heart is something
which this Court considers of paramount interest. This
Court notes from the very beginning that petitioner
himself was already entertaining some doubt as to
whether or not he is indeed eligible to run for city
mayor in the May 14, 2001 elections. In his certificate
of candidacy, after the phrase "I am eligible",
petitioner inserted a footnote and indicated:
*Havingserved three (3) term[s] as municipal mayor
and now running for the first time as city mayor.9
Time and again, this Court has held that rules of
procedure are only tools designed to facilitate the
attainment of justice, such that when rigid application
of the rules tend to frustrate rather than promote
substantial justice, this Court is empowered to
suspend their operation. We will not hesitate to set
aside technicalities in favor of what is fair and just.10
The spirit embodied in a Constitutional provision must
not be attenuated by a rigid application of procedural
rules.
The present case raises a novel issue with respect to
an explicit Constitutional mandate: whether or not
petitioner Latasa is eligible to run as candidate for the
position of mayor of the newly-created City of Digos
immediately after he served for three consecutive
terms as mayor of the Municipality of Digos.
As a rule, in a representative democracy, the people
should be allowed freely to choose those who will
govern them. Article X, Section 8 of the Constitution is
an exception to this rule, in that it limits the range of
choice of the people.
Section 8. The term of office of elective local officials,
except barangay officials, which shall be determined
by law, shall be three years and no such official shall
serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of his service for the full term for which he
was elected.
An examination of the historical background of the
subject Constitutional provision reveals that the
members of the Constitutional Commission were as
much concerned with preserving the freedom of choice
of the people as they were with preventing the
monopolization of political power. In fact, they
rejected a proposal set forth by Commissioner
Edmundo Garcia that after serving three consecutive
terms or nine years, there should be no further re-
election for local and legislative officials.11 The
members, instead, adopted the alternative proposal of
Commissioner Christian Monsod that such officials be
simply barred from running for the same position in
the succeeding election following the expiration of the
third consecutive term:
83
MR. MONSOD: Madam President, I was reflecting on
this issue earlier and I asked to speak because in this
draft Constitution, we are recognizing people’s power.
We have said that now there is a new awareness, a
new kind of voter, a new kind of Filipino. And yet at
the same time, we are prescreening candidates among
whom they will choose. We are saying that this 48-
member Constitutional Commission has decreed that
those who have served for a period of nine years are
barred from running for the same position.
The argument is that there may be other positions.
But there are some people who are very skilled and
good at legislation, and yet are not of a national
stature to be Senators. They may be perfectly honest,
perfectly competent and with integrity. They get voted
into office at the age of 25, which is the age we
provide for Congressmen. And at 34 years old we put
them into pasture.
Second, we say that we want to broaden the choices
of the people. We are talking here only of
congressional or senatorial seats. We want to broaden
the people’s choice but we are making prejudgment
today because we exclude a certain number of people.
We are, in effect, putting an additional qualification for
office – that the officials must have not have served a
total of more than a number of years in their lifetime.
Third, we are saying that by putting people to pasture,
we are creating a reserve of statesmen, but the future
participation of these statesmen is limited. Their skills
may be only in some areas, but we are saying that
they are going to be barred from running for the same
position.
Madam President, the ability and capacity of a
statesman depend as well on the day-to-day honing of
his skills and competence, in intellectual combat, in
concern and contact with the people, and here we are
saying that he is going to be barred from the same
kind of public service.
I do not think it is in our place today to make such a
very important and momentous decision with respect
to many of our countrymen in the future who may
have a lot more years ahead of them in the service of
their country.
If we agree that we will make sure that these people
do not set up structures that will perpetuate them,
then let us give them this rest period of three years or
whatever it is. Maybe during that time, we would even
agree that their fathers or mothers or relatives of the
second degree should not run. But let us not bar them
for life after serving the public for number of years.12
The framers of the Constitution, by including this
exception, wanted to establish some safeguards
against the excessive accumulation of power as a
result of consecutive terms. As Commissioner Blas
Ople stated during the deliberations:
x x x I think we want to prevent future situations
where, as a result of continuous service and frequent
re-elections, officials from the President down to the
municipal mayor tend to develop a proprietary interest
in their positions and to accumulate these powers and
perquisites that permit them to stay on indefinitely or
to transfer these posts to members of their families in
a subsequent election. x x x 13
An elective local official, therefore, is not barred from
running again in for same local government post,
unless two conditions concur: 1.) that the official
concerned has been elected for three consecutive
terms to the same local government post, and 2.) that
he has fully served three consecutive terms.14
In the present case, petitioner states that a city and a
municipality have separate and distinct personalities.
Thus they cannot be treated as a single entity and
must be accorded different treatment consistent with
specific provisions of the Local Government Code. He
does not deny the fact that he has already served for
three consecutive terms as municipal mayor. However,
he asserts that when Digos was converted from a
municipality to a city, it attained a different juridical
personality. Therefore, when he filed his certificate of
candidacy for city mayor, he cannot be construed as
vying for the same local government post.
For a municipality to be converted into a city, the
Local Government Code provides:
SECTION 450. Requisites for Creation. - (a) A
municipality or a cluster of barangays may be
converted into a component city it has an average
annual income, as certified by the Department of
Finance, of at least Twenty million pesos
(20,000,000.00) for the last two (2) consecutive years
based on 1991 constant prices, and if it has either of
the following requisites:
(i) a contiguous territory of at least
one hundred (100) square kilometers,
as certified by the Land Management
Bureau; or,
(ii) a population of not less than one
hundred fifty thousand (150,000)
inhabitants, as certified by the
National Statistics Office.
Provided, That, the creation thereof shall not
reduce the land area, population, and income
of the original unit or units at the time of said
creation to less than the minimum
requirements prescribed herein.
84
(b) The territorial jurisdiction of a newly-
created city shall be properly identified by
metes and bounds. The requirement on land
are shall not apply where the city proposed to
be created is composed of one (1) or more
island. The territory need not be contiguous if
it comprises two (2) or more islands.
(c) The average annual income shall include
the income accruing to the general fund,
exclusive of special funds, transfers, and non-
recurring income.15
Substantial differences do exist between a municipality
and a city. For one, there is a material change in the
political and economic rights of the local government
unit when it is converted from a municipality to a city
and undoubtedly, these changes affect the people as
well.16 It is precisely for this reason why Section 10,
Article X of the Constitution mandates that no
province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary
substantially altered, without the approval by a
majority of the votes cast in a plebiscite in the political
units directly affected.
As may be gleaned from the Local Government Code,
the creation or conversion of a local government unit
is done mainly to help assure its economic viability.
Such creation or conversion is based on verified
indicators:
Section 7. Creation and Conversion. --- As a general
rule, the creation of a local government unit or its
conversion from one level to another shall be based on
verifiable indicators or viability and projected capacity
to provide services, to wit:
(a) Income. --- It must be sufficient, based on
acceptable standards, to provide for all
essential government facilities and services
and special functions commensurate with the
size of its population, as expected of the local
government unit concerned;
(b) Population. --- It shall be determined as
the total number of inhabitants within the
territorial jurisdiction of the local government
unit concerned; and
(c) Land Area. --- It must be contiguous,
unless it comprises two (2) or more islands or
is separated by a local government unit
independent of the others; properly identified
by metes and bounds with technical
descriptions; and sufficient to provide for such
basic services and facilities to meet the
requirements of its populace.
Compliance with the foregoing indicators shall be
attested to by the Department of Finance (DOF), the
National Statistics Office (NSO), and the Lands
Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR).17
On the other hand, Section 2 of the Charter of the City
of Digos provides:
Section 2. The City of Digos --- The Municipality of
Digos shall be converted into a component city to be
known as the City of Digos, hereinafter referred to as
the City, which shall comprise the present territory of
the Municipality of Digos, Davao del Sur Province. The
territorial jurisdiction of the City shall be within the
present metes and bounds of the Municipality of
Digos. x x x
Moreover, Section 53 of the said Charter further
states:
Section 53. Officials of the City of Digos. --- The
present elective officials of the Municipality of Digos
shall continue to exercise their powers and functions
until such a time that a new election is held and the
duly-elected officials shall have already qualified and
assumed their offices. x x x.
As seen in the aforementioned provisions, this Court
notes that the delineation of the metes and bounds of
the City of Digos did not change even by an inch the
land area previously covered by the Municipality of
Digos. This Court also notes that the elective officials
of the Municipality of Digos continued to exercise their
powers and functions until elections were held for the
new city officials.
True, the new city acquired a new corporate existence
separate and distinct from that of the municipality.
This does not mean, however, that for the purpose of
applying the subject Constitutional provision, the office
of the municipal mayor would now be construed as a
different local government post as that of the office of
the city mayor. As stated earlier, the territorial
jurisdiction of the City of Digos is the same as that of
the municipality. Consequently, the inhabitants of the
municipality are the same as those in the city. These
inhabitants are the same group of voters who elected
petitioner Latasa to be their municipal mayor for three
consecutive terms. These are also the same
inhabitants over whom he held power and authority as
their chief executive for nine years.
This Court must distinguish the present case from
previous cases ruled upon this Court involving the
same Constitutional provision.
In Borja, Jr. v. COMELEC,18 the issue therein was
whether a vice-mayor who became the mayor by
operation of law and who served the remainder of the
mayor’s term should be considered to have served a
term in that office for the purpose of the three-term
limit under the Constitution. Private respondent in that
85
case was first elected as vice-mayor, but upon the
death of the incumbent mayor, he occupied the
latter’s post for the unexpired term. He was,
thereafter, elected for two more terms. This Court
therein held that when private respondent occupied
the post of the mayor upon the incumbent’s death and
served for the remainder of the term, he cannot be
construed as having served a full term as
contemplated under the subject constitutional
provision. The term served must be one "for which
[the official concerned] was elected."
It must also be noted that in Borja, the private
respondent therein, before he assumed the position of
mayor, first served as the vice-mayor of his local
government unit. The nature of the responsibilities
and duties of the vice-mayor is wholly different from
that of the mayor. The vice-mayor does not hold office
as chief executive over his local government unit. In
the present case, petitioner, upon ratification of the
law converting the municipality to a city, continued to
hold office as chief executive of the same territorial
jurisdiction. There were changes in the political and
economic rights of Digos as local government unit, but
no substantial change occurred as to petitioner’s
authority as chief executive over the inhabitants of
Digos.
In Lonzanida v. COMELEC,19 petitioner was elected and
served two consecutive terms as mayor from 1988 to
1995. He then ran again for the same position in the
May 1995 elections, won and discharged his duties as
mayor. However, his opponent contested his
proclamation and filed an election protest before the
Regional Trial Court, which ruled that there was a
failure of elections and declared the position of mayor
vacant. The COMELEC affirmed this ruling and
petitioner acceded to the order to vacate the post.
During the May 1998 elections, petitioner therein
again filed his certificate of candidacy for mayor. A
petition to disqualify him was filed on the ground that
he had already served three consecutive terms. This
Court ruled, however, that petitioner therein cannot be
considered as having been duly elected to the post in
the May 1995 elections, and that said petitioner did
not fully serve the 1995-1998 mayoral term by reason
of involuntary relinquishment of office.
In the present case, petitioner Latasa was, without a
doubt, duly elected as mayor in the May 1998
elections. Can he then be construed as having
involuntarily relinquished his office by reason of the
conversion of Digos from municipality to city? This
Court believes that he did involuntarily relinquish his
office as municipal mayor since the said office has
been deemed abolished due to the conversion.
However, the very instant he vacated his office as
municipal mayor, he also assumed office as city
mayor. Unlike in Lonzanida, where petitioner therein,
for even just a short period of time, stepped down
from office, petitioner Latasa never ceased from acting
as chief executive of the local government unit. He
never ceased from discharging his duties and
responsibilities as chief executive of Digos.
In Adormeo v. COMELEC,20 this Court was confronted
with the issue of whether or not an assumption to
office through a recall election should be considered as
one term in applying the three-term limit rule. Private
respondent, in that case, was elected and served for
two consecutive terms as mayor. He then ran for his
third term in the May 1998 elections, but lost to his
opponent. In June 1998, his opponent faced recall
proceedings and in the recall elections of May 2000,
private respondent won and served for the unexpired
term. For the May 2001 elections, private respondent
filed his certificate of candidacy for the office of
mayor. This was questioned on the ground that he had
already served as mayor for three consecutive terms.
This Court held therein that private respondent cannot
be construed as having been elected and served for
three consecutive terms. His loss in the May 1998
elections was considered by this Court as an
interruption in the continuity of his service as mayor.
For nearly two years, private respondent therein lived
as a private citizen. The same, however, cannot be
said of petitioner Latasa in the present case.
Finally, in Socrates v. COMELEC,21 the principal issue
was whether or not private respondent Edward M.
Hagedorn was qualified to run during the recall
elections. Therein respondent Hagedorn had already
served for three consecutive terms as mayor from
1992 until 2001 and did not run in the immediately
following regular elections. On July 2, 2002, the
barangay officials of Puerto Princesa convened
themselves into a Preparatory Recall Assembly to
initiate the recall of the incumbent mayor, Victorino
Dennis M. Socrates. On August 23, 2002, respondent
Hagedorn filed his certificate of candidacy for mayor in
the recall election. A petition for his disqualification
was filed on the ground that he cannot run for the said
post during the recall elections for he was disqualified
from running for a fourth consecutive term. This
Court, however, ruled in favor of respondent
Hagedorn, holding that the principle behind the three-
term limit rule is to prevent consecutiveness of the
service of terms, and that there was in his case a
break in such consecutiveness after the end of his
third term and before the recall election.
It is evident that in the abovementioned cases, there
exists a rest period or a break in the service of the
local elective official. In Lonzanida, petitioner therein
was a private citizen a few months before the next
mayoral elections. Similarly, in Adormeo and Socrates,
the private respondents therein lived as private
citizens for two years and fifteen months respectively.
Indeed, the law contemplates a rest period during
which the local elective official steps down from office
and ceases to exercise power or authority over the
inhabitants of the territorial jurisdiction of a particular
local government unit.1âwphi1
86
This Court reiterates that the framers of the
Constitution specifically included an exception to the
people’s freedom to choose those who will govern
them in order to avoid the evil of a single person
accumulating excessive power over a particular
territorial jurisdiction as a result of a prolonged stay in
the same office. To allow petitioner Latasa to vie for
the position of city mayor after having served for three
consecutive terms as a municipal mayor would
obviously defeat the very intent of the framers when
they wrote this exception. Should he be allowed
another three consecutive terms as mayor of the City
of Digos, petitioner would then be possibly holding
office as chief executive over the same territorial
jurisdiction and inhabitants for a total of
eighteen consecutive years. This is the very scenario
sought to be avoided by the Constitution, if not
abhorred by it.
Finally, respondent Sunga claims that applying the
principle in Labo v. COMELEC,22 he should be deemed
the mayoralty candidate with the highest number of
votes. On the contrary, this Court held in Labo that
the disqualification of a winning candidate does not
necessarily entitle the candidate with the highest
number of votes to proclamation as the winner of the
elections. As an obiter, the Court merely mentioned
that the rule would have been different if the
electorate, fully aware in fact and in law of a
candidate’s disqualification so as to bring such
awareness within the realm of notoriety, would
nonetheless cast their votes in favor of the ineligible
candidate. In such case, the electorate may be said to
have waived the validity and efficacy of their votes by
notoriously misapplying their franchise or throwing
away their votes, in which case, the eligible candidate
obtaining the next higher number of votes may be
deemed elected. The same, however, cannot be said
of the present case.
This Court has consistently ruled that the fact that a
plurality or a majority of the votes are cast for an
ineligible candidate at a popular election, or that a
candidate is later declared to be disqualified to hold
office, does not entitle the candidate who garnered the
second highest number of votes to be declared
elected. The same merely results in making the
winning candidate’s election a nullity.23 In the present
case, moreover, 13,650 votes were cast for private
respondent Sunga as against the 25,335 votes cast for
petitioner Latasa.24 The second placer is obviously not
the choice of the people in that particular election. In
any event, a permanent vacancy in the contested
office is thereby created which should be filled by
succession.25
WHEREFORE, the petition is DISMISSED. No
pronouncement as to costs.
SO ORDERED.
G.R. No. 163295 January 23, 2006
FRANCIS G. ONG, Petitioner,
vs.
JOSEPH STANLEY ALEGRE and COMMISSION ON
ELECTIONS, Respondents.
x---------------------x
G.R. No. 163354 January 23, 2006
ROMMEL G. ONG, Petitioner,
vs.
JOSEPH STANLEY ALEGRE and COMMISSION ON
ELECTIONS, Respondents.
DECISION
GARCIA, J.:
Before the Court are these two separate petitions
under Rule 65 of the Rules of Court to nullify and set
aside certain issuances of the Commission on Elections
(COMELEC) en banc.
The first, docketed as G.R. No. 163295, is a petition
for certiorari with petitioner Francis G. Ong impugning
the COMELEC en banc resolution1 dated May 7, 2004
in SPA Case No. 04-048, granting private respondent
Joseph Stanley Alegre's motion for reconsideration of
the resolution dated March 31, 2004 2 of the
COMELEC’s First Division.
The second, G.R. No. 163354, is for certiorari,
prohibition and mandamus, with application for
injunctive relief, filed by petitioner Rommel Ong,
brother of Francis, seeking, among other things, to
stop the COMELEC from enforcing and implementing
its aforesaid May 7, 2004 en banc resolution in SPA
Case No. 04-048 pending the outcome of the petition
in G.R. No. 163295.
Per its en banc Resolution of June 1, 2004, the Court
ordered the consolidation of these petitions.
The recourse stemmed from the following essential
and undisputed factual backdrop:
Private respondent Joseph Stanley Alegre (Alegre) and
petitioner Francis Ong (Francis) were candidates who
filed certificates of candidacy for mayor of San
Vicente, Camarines Norte in the May 10, 2004
elections. Francis was then the incumbent mayor.
On January 9, 2004, Alegre filed with the COMELEC
Provincial Office a Petition to Disqualify, Deny Due
Course and Cancel Certificate of Candidacy3 of Francis.
Docketed as SPA Case No. 04-048, the petition to
disqualify was predicated on the three-consecutive
87
term rule, Francis having, according to Alegre, ran in
the May 1995, May 1998, and May 2001 mayoralty
elections and have assumed office as mayor and
discharged the duties thereof for three (3) consecutive
full terms corresponding to those elections.
To digress a bit, the May 1998 elections saw both
Alegre and Francis opposing each other for the office
of mayor of San Vicente, Camarines Norte, with the
latter being subsequently proclaimed by COMELEC
winner in that contest. Alegre subsequently filed an
election protest, docketed as Election Case No.
6850 before the Regional Trial Court (RTC) at Daet,
Camarines Norte. In it, the RTC declared Alegre as the
duly elected mayor in that 1998 mayoralty
contest,4 albeit the decision came out only on July 4,
2001, when Francis had fully served the 1998-2001
mayoralty term and was in fact already starting to
serve the 2001-2004 term as mayor-elect of the
municipality of San Vicente.
Acting on Alegre’s petition to disqualify and to cancel
Francis’ certificate of candidacy for the May 10, 2004
elections, the First Division of the COMELEC rendered
on March 31, 2004 a resolution5 dismissing the said
petition of Alegre, rationalizing as follows:
We see the circumstances in the case now before us
analogous to those obtaining in the sample situations
addressed by the Highest Court in the Borja case.
Herein, one of the requisites for the application of the
three term rule is not present. Francis Ong might have
indeed fully served the mayoral terms of 1995 to
1998; 1998 to 2001 and 2001 to 2004. The mayoral
term however, from 1998 to 2001 cannot be
considered his because he was not duly elected
thereto. The [RTC] of Daet, Camarines Norte, Branch
41 has voided his election for the 1998 term when it
held, in its decision that Stanley Alegre was the
"legally elected mayor in the 1998 mayoralty election
in San Vicente, Camarines Norte." This disposition had
become final after the [COMELEC] dismissed the
appeal filed by Ong, the case having become moot and
academic.
xxx xxx xxx
On the basis of the words of the Highest Court
pronounced in the Lonzanida case and applicable in
the case at bench, Ong could not be considered as
having served as mayor from 1998 to 2001 because
"he was not duly elected to the post; he merely
assumed office as a presumptive winner; which
presumption was later overturned … when [the RTC]
decided with finality that [he] lost in the May 1998
elections." (Words in bracket and emphasis in the
original).
Undaunted, Alegre filed a timely motion for
reconsideration, contending, in the main, that there
was a misapplication of the three-term rule, as applied
in the cited cases of Borja vs. Comelec and Lonzanida
vs. Comelec, infra.
On May 7, 2004, the COMELEC en banc issued, in SPA
No. 04-048, a resolution6 reversing the March 31,
2004 resolution of the COMELEC’s First Division and
thereby (a) declaring Francis "as disqualified to run for
mayor of San Vicente, Camarines Norte in the …May
10, 2004"; (b) ordering the deletion of Francis’ name
from the official list of candidates; and (c) directing
the concerned board of election inspectors not to
count the votes cast in his favor.
The following day, May 8, Francis received a fax
machine copy of the aforecited May 7, 2004
resolution, sending him posthaste to seek the
assistance of his political party, the Nationalist
People’s Coalition, which immediately nominated his
older brother, Rommel Ong (Rommel), as substitute
candidate. At about 5:05 p.m. of the very same day -
which is past the deadline for filing a certificate of
candidacy, Rommel filed his own certificate of
candidacy for the position of mayor, as substitute
candidate for his brother Francis.
The following undisputed events then transpired:
1. On May 9, 2004, or a day before the May
10 elections, Alegre filed a Petition to Deny
Due Course to or Cancel Certificate of Rommel
Ong.
2. Atty. Evillo C. Pormento, counsel for the
Ong brothers, addressed a letter7 to Provincial
Election Supervisor (PES) of Camarines Norte
Liza Z. Cariño and Acting Election Officer Emily
G. Basilonia in which he appealed that, owing
to the COMELEC’s inaction on Alegre's petition
to cancel Rommel’s certificate of candidacy,
the name "Rommel Ong" be included in the
official certified list of candidates for mayor of
San Vicente, Camarines Norte. The desired
listing was granted by the PES Carino.
3. On May 10, 2004, Alegre wrote8
to then
COMELEC Commissioner Virgilio Garcillano,
Commissioner-in-Charge for Regions IV and V,
seeking clarification on the legality of the
action thus taken by the PES Cariño.
Responding, Commissioner Garcillano issued a
Memorandum under date May 10,
20049 addressed to PES Liza D. Zabala-Cariño,
ordering her to implement the resolution of
the COMELEC en banc in SPA No. 04-048
promulgated on May 7, 2004.10 Said
Memorandum partly stated:
The undersigned ADOPTS the recommendation of Atty.
Alioden D. Dalaig [Director IV, Law Department],
which he quote your stand, "that substitution is not
proper if the certificate of the substituted candidacy is
88
denied due course. In the Resolution of the
Commission En banc, the Certificate of candidacy of
Francis Ong was denied due course," and elaborated
further that:
"x x x there is an existing policy of the Commission
not to include the name of a substitute candidate in
the certified list of candidates unless the substitution is
approved by the Commission.
In view, thereof, it is recommended that 1) the
substitute certificate of candidacy of Rommel Ong Gan
Ong, should be denied due course; and 2) the election
officer be directed to delete his name from the list of
candidates."
The above position of the Commission was in line with
the pronouncement of Supreme Court in Miranda vs.
Abaya (311 SCRA 617) which states:
"There can no valid substitution where a candidate is
excluded not only by disqualification but also by denial
and cancellation of his certificate of candidacy."
In view thereof, you are hereby directed to faithfully
implement the said Resolution of the Commission En
Banc in SPA No. 04-048 promulgated on May 7, 2004.
(Emphasis in the original; words in bracket added].
4. Owing to the aforementioned Garcillano
Memorandum, it would seem that the
Chairman of the Municipal Board of Canvasser
of San Vicente issued an order enjoining all
concerned not to canvass the votes cast for
Rommel, prompting the latter to file a protest
with that Board.11
5. On May 11, 2004, the Municipal Board of
Canvassers proclaimed Alegre as the winning
candidate for the mayoralty post in San
Vicente, Camarines Norte.12
On May 12, 2004, Francis filed before the Court a
petition for certiorari, presently docketed as G.R. No.
163295. His brother Rommel’s petition in G.R. No.
163354 followed barely a week after.
In our en banc resolution dated June 1, 2004, G.R. No.
163295 and G.R. No. 163354 were consolidated.13
Meanwhile, on June 4, 2004, the COMELEC issued an
order dismissing private respondent Alegre’s Petition
to Deny Due Course to or Cancel Certificate of
Candidacy of Rommel Ong, for being moot and
academic.14
The issues for resolution of the Court are:
In G.R. No. 163295, whether the COMELEC acted with
grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing its en banc resolution dated
May 7, 2004 declaring petitioner Francis as disqualified
to run for Mayor of San Vicente, Camarines Norte in
the May 10, 2004 elections and consequently ordering
the deletion of his name from the official list of
candidates so that any vote cast in his favor shall be
considered stray.
In G.R. No. 163354, whether the COMELEC committed
grave abuse of discretion when it denied due course to
Rommel’s certificate of candidacy in the same
mayoralty election as substitute for his brother
Francis.
A resolution of the issues thus formulated hinges on
the question of whether or not petitioner Francis’s
assumption of office as Mayor of San Vicente,
Camarines Norte for the mayoralty term 1998 to 2001
should be considered as full service for the purpose of
the three-term limit rule.
Respondent COMELEC resolved the question in the
affirmative. Petitioner Francis, on the other hand,
disagrees. He argues that, while he indeed assumed
office and discharged the duties as Mayor of San
Vicente for three consecutive terms, his proclamation
as mayor-elect in the May 1998 election was contested
and eventually nullified per the decision of the RTC of
Daet, Camarines Norte dated July 4, 2001. Pressing
the point, petitioner argues, citing Lonzanida vs.
Comelec15, that a proclamation subsequently declared
void is no proclamation at all and one assuming office
on the strength of a protested proclamation does so as
a presumptive winner and subject to the final outcome
of the election protest.
The three-term limit rule for elective local officials is
found in Section 8, Article X of the 1987 Constitution,
which provides:
Sec. 8. The term of office of elective local officials,
except barangay officials, which shall be determined
by law, shall be three years and no such official shall
serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of his service for the full term for which he
was elected.
Section 43 (b) of the Local Government Code restates
the same rule as follows:
Sec. 43. Term of Office.
xxx xxx xxx
(b) No local elective official shall serve for more than
three consecutive years in the same position.
Voluntary renunciation of the office for any length of
time shall not be considered an interruption in the
89
continuity of service for the full term for which the
elective official concerned was elected.
For the three-term limit for elective local government
officials to apply, two conditions or requisites must
concur, to wit: (1) that the official concerned has been
elected for three (3) consecutive terms in the same
local government post, and (2) that he has fully
served three (3) consecutive terms.16
With the view we take of the case, the disqualifying
requisites are present herein, thus effectively barring
petitioner Francis from running for mayor of San
Vicente, Camarines Norte in the May 10, 2004
elections. There can be no dispute about petitioner
Francis Ong having been duly elected mayor of that
municipality in the May 1995 and again in the May
2001 elections and serving the July 1, 1995- June 30,
1998 and the July 1, 2001-June 30, 2004 terms in full.
The herein controversy revolves around the 1998-
2001 mayoral term, albeit there can also be no
quibbling that Francis ran for mayor of the same
municipality in the May 1998 elections and actually
served the 1998-2001 mayoral term by virtue of a
proclamation initially declaring him mayor-elect of the
municipality of San Vicente. The question that begs to
be addressed, therefore, is whether or not Francis’s
assumption of office as Mayor of San Vicente,
Camarines Norte from July 1, 1998 to June 30, 2001,
may be considered as one full term service in the
context of the consecutive three-term limit rule.
We hold that such assumption of office constitutes, for
Francis, "service for the full term", and should be
counted as a full term served in contemplation of the
three-term limit prescribed by the constitutional and
statutory provisions, supra, barring local elective
officials from being elected and serving for more than
three consecutive term for the same position.
It is true that the RTC-Daet, Camarines Norte ruled in
Election Protest Case No. 6850,17 that it was Francis’
opponent (Alegre) who "won" in the 1998 mayoralty
race and, therefore, was the legally elected mayor of
San Vicente. However, that disposition, it must be
stressed, was without practical and legal use and
value, having been promulgated after the term of the
contested office has expired. Petitioner Francis’
contention that he was only a presumptive winner in
the 1998 mayoralty derby as his proclamation was
under protest did not make him less than a duly
elected mayor. His proclamation by the Municipal
Board of Canvassers of San Vicente as the duly
elected mayor in the 1998 mayoralty election coupled
by his assumption of office and his continuous exercise
of the functions thereof from start to finish of the
term, should legally be taken as service for a full term
in contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary
view is not hard to discern. Such contrary view would
mean that Alegre would – under the three-term rule -
be considered as having served a term by virtue of a
veritably meaningless electoral protest ruling, when
another actually served such term pursuant to a
proclamation made in due course after an election.
Petitioner cites, but, to our mind, cannot seek refuge
from the Court’s ruling in, Lonzanida vs.
Comelec,18 citingBorja vs. Comelec19. In Lonzanida,
petitioner Lonzanida was elected and served for two
consecutive terms as mayor of San Antonio, Zambales
prior to the May 8, 1995 elections. He then ran again
for the same position in the May 1995 elections, won
and discharged his duties as Mayor. However, his
opponent contested his proclamation and filed an
election protest before the RTC of Zambales, which, in
a decision dated January 9, 1997, ruled that there was
a failure of elections and declared the position vacant.
The COMELEC affirmed this ruling and petitioner
Lonzanida acceded to the order to vacate the post.
Lonzanida assumed the office and performed his
duties up to March 1998 only. Now, during the May
1998 elections, Lonzanida again ran for mayor of the
same town. A petition to disqualify, under the three-
term rule, was filed and was eventually granted.
There, the Court held that Lonzanida cannot be
considered as having been duly elected to the post in
the May 1995 election, and that he did not fully serve
the 1995-1998 mayoralty term by reason of
involuntary relinquishment of office. As the Court
pointedly observed, Lonzanida "cannot be deemed to
have served the May 1995 to 1998 term because he
was ordered to vacate [and in fact vacated] his post
before the expiration of the term."
The difference between the case at bench
and Lonzanida is at once apparent. For one,
in Lonzanida, the result of the mayoralty election was
declared a nullity for the stated reason of "failure of
election", and, as a consequence thereof, the
proclamation of Lonzanida as mayor-elect was
nullified, followed by an order for him to vacate the
office of mayor. For another, Lonzanida did not fully
serve the 1995-1998 mayoral term, there being an
involuntary severance from office as a result of legal
processes. In fine, there was an effective interruption
of the continuity of service.
On the other hand, the failure-of-election factor does
not obtain in the present case. But more importantly,
here, there was actually no interruption or break in
the continuity of Francis’ service respecting the 1998-
2001 term. Unlike Lonzanida, Francis was never
unseated during the term in question; he never
ceased discharging his duties and responsibilities as
mayor of San Vicente, Camarines Norte for the entire
period covering the 1998-2001 term.
The ascription, therefore, of grave abuse of discretion
on the part of the COMELEC en banc when it
disqualified Francis from running in the May 10, 2004
elections for the mayoralty post of San Vicente and
90
denying due course to his certificate of candidacy by
force of the constitutional and statutory provisions
regarding the three-term limit rule for any local
elective official cannot be sustained. What the
COMELEC en banc said in its May 7, 2004 assailed
Resolution commends itself for concurrence:
As correctly pointed out by Petitioner-Movant
[Alegre]in applying the ruling in
the Borja and Lonzanida cases in the instant petition
will be erroneous because the factual milieu in those
cases is different from the one obtaining here.
Explicitly, the three-term limit was not made
applicable in the cases
of Borja and Lonzanida because there was an
interruption in the continuity of service of the three
consecutive terms. Here, Respondent Ong would have
served continuously for three consecutive terms, from
1995 to 2004. His full term from 1998 to 2001 could
not be simply discounted on the basis that he was not
duly elected thereto on account of void proclamation
because it would have iniquitous effects producing
outright injustice and inequality as it rewards a legally
disqualified and repudiated loser with a crown of
victory. (Word in bracket added; emphasis in the
original)
Given the foregoing consideration, the question of
whether or not then Commissioner Virgilio Garcillano
overstepped his discretion when he issued the May 10,
2004 Memorandum, ordering the implementation of
aforesaid May 7, 2004 COMELEC en banc resolution
even before its finality20 is now of little moment and
need not detain us any longer.
Just as unmeritorious as Francis’ petition in G.R. No.
163295 is Rommel’s petition in G.R. No. 163354 in
which he (Rommel) challenges the COMELEC's act of
not including his name as a substitute candidate in the
official list of candidates for the May 10, 2004
elections. As it were, existing COMELEC
policy21 provides for the non-inclusion of the name of
substitute candidates in the certified list of candidates
pending approval of the substitution.
Not to be overlooked is the Court’s holding in Miranda
vs. Abaya,22 that a candidate whose certificate of
candidacy has been cancelled or not given due course
cannot be substituted by another belonging to the
same political party as that of the former, thus:
While there is no dispute as to whether or not a
nominee of a registered or accredited political party
may substitute for a candidate of the same party who
had been disqualified for any cause, this does not
include those cases where the certificate of candidacy
of the person to be substituted had been denied due
course and cancelled under Section 78 of the Code.
Expressio unius est exclusio alterius. While the law
enumerated the occasions where a candidate may be
validly substituted, there is no mention of the case
where a candidate is excluded not only by
disqualification but also by denial and cancellation of
his certificate of candidacy. Under the foregoing rule,
there can be no valid substitution for the latter case,
much in the same way that a nuisance candidate
whose certificate of candidacy is denied due course
and/or cancelled may not be substituted. If the intent
of the lawmakers were otherwise, they could have so
easily and conveniently included those persons whose
certificates of candidacy have been denied due course
and/or cancelled under the provisions of Section 78 of
the Code.

xxx xxx xxx

A person without a valid certificate of candidacy

cannot be considered a candidate in much the same
way as any person who has not filed any certificate of
candidacy at all can not, by any stretch of the
imagination, be a candidate at all.

xxx xxx xxx

After having considered the importance of a certificate

of candidacy, it can be readily understood why in
Bautista [Bautista vs. Comelec, G.R. No. 133840,
November 13, 1998] we ruled that a person with a
cancelled certificate is no candidate at all. Applying
this principle to the case at bar and considering that
Section 77 of the Code is clear and unequivocal that
only an official candidate of a registered or accredited
party may be substituted, there demonstrably cannot
be any possible substitution of a person whose
certificate of candidacy has been cancelled and denied
due course.

In any event, with the hard reality that the May 10,
2004 elections were already passé, Rommel Ong’s
petition in G.R. No. 163354 is already moot and
academic.

WHEREFORE, the instant petitions

are DISMISSED and the assailed en banc Resolution
dated May 7, 2004 of the COMELEC, in SPA No. 04-
048 AFFIRMED.

Costs against petitioners.

SO ORDERED.

91