Republic of the Philippines in Abuyog, part of which he acquired during his stay in
SUPREME COURT Malaybalay.
Manila
EN BANC
G.R. No. L-48641 November 24, 1941
PEDRO GALLEGO, petitioner,
vs.
VICENTE VERRA, respondent.
OZAETA, J.:
This case is before us on petition for certiorari to review
the decision of the Court of Appeals affirming that of the
Court of First Instance of Leyte, which declared illegal
and with the petitioner's election to the office of
municipal mayor of Abuyog, Leyte, in the general
elections of December, 1940, on the ground that he did
not have the residence qualification, ordered that he be
ousted from said office. Respondent Vicente Verra
(petitioner below) was the unsuccessful opponent of the
petitioner Pedro Gallego, who was declared elected by
the municipal board of canvassers with a majority of
nearly 800 votes.
The undisputed facts as found by the trial court and the
Court of Appeals may be briefly stated as follows:
Pedro Gallego is a native of Abuyog, Leyte. After
studying in the Catarman Agricultural School in the
province of Samar, he was employed as a school
teacher in the municipality of Catarman, Samar, as well
as in the municipalities of Burawen, Dulag, and Abuyog,
province of Leyte, and school teacher of Abuyog, Leyte,
and presented his candidacy for municipal mayor of his
home town, but was defeated. After his defeat in that
election, finding himself in debt and unemployed, he
went to Mindanao in search of a job. He first went to
Oriental Misamis, but finding no work there he
proceeded to the sitio of Kaato-an, municipality of
Malaybalay, Bukidnon, whereat he arrived on June 20,
1938, and immediately found employment as
nurseryman in the chichona plantation of the Bureau of
Forestry. On July 30 of the same year he returned to
Abuyog because he had been offered an employment as
teacher in the public school of the barrio of Union,
municipality of Sogod, Leyte; but as he did not accept
the offer he returned to Kaato-an on August 23, 1938,
and resumed his employment there as nurseryman of
the Bureau of Forestry. He stayed in the chinchona
plantation until he resigned in September 1940. But
during the period of his stay, there, his wife and children
remained in Abuyog, and he visited them in the month of
August of the years 1938, and 1940. Altho the
Government offered him a free house in the chinchona
plantation, he never took his family there. Neither did he
avail himself of the offer of the Government of a parcel of
the hectares of land within the reservation of the
chinchona plantation. He and his wife own real property
Nevertheless, On October 1, 1938 he registered himself
as an elector in precinct No. 14 of Lantapan, municipality
of Malaybalay, Bukidnon, and voted there in the election
for assemblymen held in December, 1938. The trial court
noted that in his voter's affidavit (exhibit B) he did not fill
the blank space corresponding to the length of time he
had resided in Malaybalay. On January 20, 1940, he
obtained and paid for his residence certificate from the
municipal treasurer of Malaybalay, in which certificate it
was stated that he had resided in said municipality for
one year and a half.
Based upon the facts stated in the next preceding
paragraph, namely, (1) registration as a voter, (2) his
having actually voted in Malaybalay in the 1938 election
for assemblymen, and (3) his residence certificate for
1940, the trial Court of Appeals declared that the herein
petitioner Pedro Gallego had acquired a residence or
domicile of origin in the municipality of Malaybalay,
Bukidnon, and had lost his domicile of origin in the
municipality of Abuyog, Leyte, at the time he was elected
mayor of the latter municipality, and, that, therefore, his
election was void, following the decisions of this Court in
the cases of Tanseco vs. Arteche, 57 Phil., 227,
and Nuval vs. Gutay, 52 Phil., 645.
In this Court the petitioner assigns the following errors:
1. The Court of Appeals erred in holding that the
petitioner Pedro Gallego was a legal resident of
Malaybalay, Bukidon, and not of Abuyog, Leyte,
at the time of his election as municipal mayor of
the latter municipality on December 10, 1940.
2. The Court of Appeals erred in affirming the
decision of the trial court holding the election of
Pedro Gallego to the office of municipal mayor
of Abuyog, Leyte, null and void and ordering the
exclusion of Gallego from the office to which he
was elected.
The only question presented is whether or not Pedro
Gallego had been resident of Abuyog for at one year
prior to December 10, 1940. That question may be
approached from either of two angles: Did he lose his
domicile in Abuyog by the mere fact that he worked in
Malaybalay as a government employee, registered
himself as a voter and voted there in the election for
assemblymen in December, 1938, and secured his
residence certificate there for the year 1940; and
assuming that he did, had he reacquired his domicile of
origin at least one year prior to his election as mayor of
Abuyog on December 10, 1040?
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 (Nuval vs. Guray, 52 Phil., 645). 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. In other words, there must be
an animus non revertendi and an animus manendi. The
purpose to remain in or at the domicile of choice must be
for an indefinite period of time. The acts of the person
must conform with his purpose. The change of residence
must be voluntary; the residence at the place chosen for
the domicile must be actual; and to the fact of residence
there must be added the animus manendi. (17 am. Jur.,
section 16, pages 599-601.)
In the light of these principles, we are persuaded that the
facts of this case weigh heavily against the theory that
the petitioner had lost his residence or domicile in
Abuyog. We believe he did not reside in Malaybalay with
the intention of remaining there indefinitely and of not
returning to Abuyog. He is a native of Abuyog.
Notwithstanding his periodic absences from there
previous to 1937, when he was employed as teacher in
Samar, Agusan, and other municipalities of Leyte, he
always returned there. In the year 1937 he resigned as a
school teacher and presented his candidacy for the
office of mayor of said municipality. His departure
therefrom after his defeat in that election was temporary
and only for purpose of looking for employment to make
up for the financial drawback he had suffered as a result
of his defeat at the polls. After he had found employment
in Malaybalay, he did take his wife and children thereto.
He bought the offer of a free house by the government.
He bought a piece of land in Abuyog and did not avail
himself of the offer of the Government of ten hectares of
land within the chichona reservation in Malaybalay,
where he worked as a nurseryman. During the short
period of about two years he stayed in Malaybalay as a
government employee, he visited his home town and his
family no less than three times notwithstanding the great
distance between the two places.
The facts of his case are more analogous to those
of Larena vs. Teves (61 Phil., 36), Yra vs. Abaño (52
Phil., 380), and Vivero vs. Murillo (52 Phil., 694) than to
those of Nuval vs. Guray (52 Phil., 645) and Tanseco vs.
Arteche (57 Phil., 227) which were followed herein by
the Court of Appeals. In the Teves case this Court, in
reversing the judgment of the trial court, among other
things said:
In this case the respondent-appellant, Pedro
Teves, from the year 1904 has had his own
house in the municipality of Dumaguete, Oriental
Negros, wherein he has constantly been living
with his family and he has never had any house
in which he lived either alone or with his family in
the municipality of Bacong of said province. All
that he has done in the latter municipality was to
register as elector in 1919, through an affidavit
stating that he was a resident of said
municipality; run for representative for the
second district of the province of Oriental
Negros and vote in said municipality in said
year; run again for reelection in the year 1922;
launch his candidacy for member of the
provincial board of said province 1925, stating
under oath in all his certificates of candidacy that
he was a resident of said municipality of
Bacong.
The affidavit made by him upon registering as
elector in the municipality of Bacong in the year
1919, stating that he was a resident of said
municipality; his two certificates of candidacy for
the office of representative for the second district
of the Province of Oriental Negros, which were
filed, the former in the year 1919 and the latter in
the year 1922, and the certificate of candidacy
for the office of member of the provincial board
filed by him in the year 1925 in every one of
which he stated that he was a resident of the
municipality of Bacong, are at most a prima
facie evidence of the fact of his residence in the
municipality of Bacong, which is required by law
in order that the corresponding officials could
register him as an elector and candidate, and
not conclusive, and may be attacked in a
corresponding judicial proceeding. If, according
to the ruling laid down in the case of Vivero vs.
Maurillo cited above, mere registration in a
municipality in order to be an elector therein
does not make one a resident of said
municipality; if, according to constant rulings the
word "residence" is synonymous with "home" or
"domicile" and denotes a permanent dwelling
place, to which an absent person intends to
return; if the right to vote in a municipality
requires the concurrence of two things, the act
of residing coupled with the intention to do so;
and if the herein respondent-appellant, Pedro
Teves, has always lived with his family in the
municipality of Dumaguete and never in that of
Bacong, he has never lost his residence in
Dumaguete. The fact that his registration as
elector in the municipality of Bacong was
cancelled only on April 5, 1934, upon his
petition, did not disqualify him to be a candidate
for the office of municipal president of said
municipality of Dumaguete on the ground that,
as has been stated in the case of Yra vs.
Abaño cited above, registration in the list of
voters is not one of the conditions prescribed by
section 431 of the Election Law in order to be an
elector; neither does failure to register as such
constitute one of the disqualifications prescribed
in section 432 of said law. (61 Phil., 36, 39-41.)
Applying the foregoing pronouncements to the facts of
present case, we find sufficient ground for the revocation
of the judgment appealed from. Petitioner also contends
that even assuming that he had lost his residence or
domicile in Abuyog, he reacquired it more than one year
prior to December 10, 1940. In support of that contention
he invokes his letter or note, exhibit 9, addressed to
"Varel"(Valeriano Tupa), vice-president of the political
faction to which petitioner belongs, in which note he
announced his intention to launch his candidacy again
for municipal mayor of Abuyog as early as the month of
May, 1939. But we do not deem it necessary to pass
upon said contention in view of the conclusion we have
reached that the petitioner did not lose his domicile of
origin.
We might add that 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; and when the
evidence on the alleged lack of residence qualification is
weak or inconclusive and it clearly appears, as in the
instant case, that the purpose of the law would not be
thwarted by upholding the right to the office, the will of
the electorate should be respected. Petitioner is a native
of Abuyog, had run for the same office of municipal
mayor of said town in the election preceding the one in
question, had only been absent therefrom for about two
years without losing contact with his townspeople and
without intention of remaining and residing indefinitely in
the place of his employment; and he was elected with an
overwhelming majority of nearly 800 votes in a third-
class municipality. These considerations we cannot
disregard without doing violence to the will of the people
of said town.
Wherefore, the judgment of the court of appeals is
reversed, with the costs of this instance against the
respondent. So ordered.
Diaz, Moran, and Horilleno, JJ., concur.
Abad Santos, J., concurs in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 119976 September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO, respondents.
KAPUNAN, J.:
A constitutional provision should be construed as to give
it effective operation and suppress the mischief at which
1
it is aimed. 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
2
than one year immediately preceding the election." 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
3
that community."
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
4
information in item no. 8:
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
5
Disqualification" 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
6
Registration Record 94-No. 3349772 and in her
Certificate of Candidacy. He prayed that "an order be
issued declaring (petitioner) disqualified and canceling
7
the certificate of candidacy."
On March 29, 1995, petitioner filed an
Amended/Corrected Certificate of Candidacy, changing
the entry "seven" months to "since childhood" in item no.
8
8 of the amended certificate. On the same day, the
Provincial Election Supervisor of Leyte informed
petitioner that:
[T]his office cannot receive or accept the
aforementioned Certificate of Candidacy
on the ground that it is filed out of time,
the deadline for the filing of the same
having already lapsed on March 20,
1995. The Corrected/Amended
Certificate of Candidacy should have
been filed on or before the March 20,
9
1995 deadline.
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
10
misinterpretation" 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
11
domicile or residence. 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,
12
1995.
On April 24, 1995, the Second Division of the
Commission on Elections (COMELEC), by a vote of 2 to
13
1, 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
14
Candidacy. Dealing with two primary issues, namely,
the validity of amending the original Certificate of
Candidacy after the lapse of the deadline for filing
certificates of candidacy, and petitioner's compliance
with the one year residency requirement, the Second
Division held:
Respondent raised the affirmative
defense in her Answer that the printed
word "Seven" (months) was a result of
an "honest misinterpretation or honest
mistake" on her part and, therefore, an
amendment should subsequently be
allowed. She averred that she thought
that what was asked was her "actual
and physical" presence in Tolosa and
not residence of origin or domicile in the
First Legislative District, to which she
could have responded "since childhood."
In an accompanying affidavit, she stated
that her domicile is Tacloban City, a
component of the First District, to which
she always intended to return whenever
absent and which she has never
abandoned. Furthermore, in her
memorandum, she tried to discredit
petitioner's theory of disqualification by
alleging that she has been a resident of
the First Legislative District of Leyte
since childhood, although she only
became a resident of the Municipality of
Tolosa for seven months. She asserts
that she has always been a resident of
Tacloban City, a component of the First
District, before coming to the
Municipality of Tolosa.
Along this point, it is interesting to note
that prior to her registration in Tolosa,
respondent announced that she would
be registering in Tacloban City so that
she can be a candidate for the District.
However, this intention was rebuffed
when petitioner wrote the Election
Officer of Tacloban not to allow
respondent since she is a resident of
Tolosa and not Tacloban. She never
disputed this claim and instead implicitly
acceded to it by registering in Tolosa.
This incident belies respondent's claim
of "honest misinterpretation or honest
mistake." Besides, the Certificate of
Candidacy only asks for RESIDENCE.
Since on the basis of her Answer, she
was quite aware of "residence of origin"
which she interprets to be Tacloban
City, it is curious why she did not cite
Tacloban City in her Certificate of
Candidacy. Her explanation that she
thought what was asked was her actual
and physical presence in Tolosa is not
easy to believe because there is none in
the question that insinuates about
Tolosa. In fact, item no. 8 in the
Certificate of Candidacy speaks clearly
of "Residency in the
CONSTITUENCY where I seek to be
elected immediately preceding the
election." Thus, the explanation of
respondent fails to be persuasive.
From the foregoing, respondent's
defense of an honest mistake or
misinterpretation, therefore, is devoid of
merit.
To further buttress respondent's
contention that an amendment may be
made, she cited the case of Alialy
v. COMELEC (2 SCRA 957). The
reliance of respondent on the case of
Alialy is misplaced. The case only
applies to the "inconsequential
deviations which cannot affect the result
of the election, or deviations from
provisions intended primarily to secure
timely and orderly conduct of elections."
The Supreme Court in that case
considered the amendment only as a
matter of form. But in the instant case,
the amendment cannot be considered
as a matter of form or an
inconsequential deviation. The change
in the number of years of residence in
the place where respondent seeks to be
elected is a substantial matter which
determines her qualification as a
candidacy, specially those intended to
suppress, accurate material
representation in the original certificate
which adversely affects the filer. To
admit the amended certificate is to
condone the evils brought by the shifting
minds of manipulating candidate, of the
detriment of the integrity of the election.
Moreover, to allow respondent to
change the seven (7) month period of
her residency in order to prolong it by
claiming it was "since childhood" is to
allow an untruthfulness to be committed
before this Commission. The
arithmetical accuracy of the 7 months
residency the respondent indicated in
her certificate of candidacy can be
gleaned from her entry in her Voter's
Registration Record accomplished on
January 28, 1995 which reflects that she
is a resident of Brgy. Olot, Tolosa, Leyte
for 6 months at the time of the said
registration (Annex A, Petition). Said
accuracy is further buttressed by her
letter to the election officer of San Juan,
Metro Manila, dated August 24, 1994,
requesting for the cancellation of her
registration in the Permanent List of
Voters thereat so that she can be re-
registered or transferred to Brgy. Olot,
Tolosa, Leyte. The dates of these three
(3) different documents show the
respondent's consistent conviction that
she has transferred her residence to
Olot, Tolosa, Leyte from Metro Manila
only for such limited period of time,
starting in the last week of August 1994
which on March 8, 1995 will only sum up
to 7 months. The Commission,
therefore, cannot be persuaded to
believe in the respondent's contention
that it was an error.
xxx xxx xxx
Based on these reasons the
Amended/Corrected Certificate of
Candidacy cannot be admitted by this
Commission.
xxx xxx xxx
Anent the second issue, and based on
the foregoing discussion, it is clear that
respondent has not complied with the
one year residency requirement of the
Constitution.
In election cases, the term "residence"
has always been considered as
synonymous with "domicile" which
imports not only the intention to reside in
a fixed place but also personal presence
in-that place, coupled with conduct
indicative of such intention. Domicile
denotes a fixed permanent residence to
which when absent for business or
pleasure, or for like reasons, one
intends to return. (Perfecto Faypon vs.
Eliseo Quirino, 96 Phil 294; Romualdez
vs. RTC-Tacloban, 226 SCRA 408). In
respondent's case, when she returned
to the Philippines in 1991, the residence
she chose was not Tacloban but San
Juan, Metro Manila. Thus, her animus
revertendi is pointed to Metro Manila
and not Tacloban.
This Division is aware that her claim that
she has been a resident of the First
District since childhood is nothing more
than to give her a color of qualification
where she is otherwise constitutionally
disqualified. It cannot hold ground in the
face of the facts admitted by the
respondent in her affidavit. Except for
the time that she studied and worked for
some years after graduation in Tacloban
City, she continuously lived in Manila. In
1959, after her husband was elected
Senator, she lived and resided in San
Juan, Metro Manila where she was a
registered voter. In 1965, she lived in
San Miguel, Manila where she was
again a registered voter. In 1978, she
served as member of the Batasang
Pambansa as the representative of the
City of Manila and later on served as the
Governor of Metro Manila. She could
not have served these positions if she
had not been a resident of the City of
Manila. Furthermore, when she filed her
certificate of candidacy for the office of
the President in 1992, she claimed to be
a resident of San Juan, Metro Manila.
As a matter of fact on August 24, 1994,
respondent wrote a letter with the
election officer of San Juan, Metro
Manila requesting for the cancellation of
her registration in the permanent list of
voters that she may be re-registered or
transferred to Barangay Olot, Tolosa,
Leyte. These facts manifest that she
could not have been a resident of
Tacloban City since childhood up to the
time she filed her certificate of
candidacy because she became a
resident of many places, including Metro
Manila. This debunks her claim that
prior to her residence in Tolosa, Leyte,
she was a resident of the First
Legislative District of Leyte since
childhood.
In this case, respondent's conduct
reveals her lack of intention to make
Tacloban her domicile. She registered
as a voter in different places and on
several occasions declared that she was
a resident of Manila. Although she spent
her school days in Tacloban, she is
considered to have abandoned such
place when she chose to stay and
reside in other different places. In the
case of Romualdez vs. RTC (226 SCRA
408) the Court explained how one
acquires a new domicile by choice.
There must concur: (1) residence or
bodily presence in the new locality; (2)
intention to remain there; and (3)
intention to abandon the old domicile. In
other words there must basically
be animus manendi with animus non
revertendi. When respondent chose to
stay in Ilocos and later on in Manila,
coupled with her intention to stay there
by registering as a voter there and
expressly declaring that she is a
resident of that place, she is deemed to
have abandoned Tacloban City, where
she spent her childhood and school
days, as her place of domicile.
Pure intention to reside in that place is
not sufficient, there must likewise be
conduct indicative of such intention.
Respondent's statements to the effect
that she has always intended to return
to Tacloban, without the accompanying
conduct to prove that intention, is not
conclusive of her choice of residence.
Respondent has not presented any
evidence to show that her conduct, one
year prior the election, showed intention
to reside in Tacloban. Worse, what was
evident was that prior to her residence
in Tolosa, she had been a resident of
Manila.
It is evident from these circumstances
that she was not a resident of the First
District of Leyte "since childhood."
To further support the assertion that she
could have not been a resident of the
First District of Leyte for more than one
year, petitioner correctly pointed out that
on January 28, 1995 respondent
registered as a voter at precinct No. 18-
A of Olot, Tolosa, Leyte. In doing so,
she placed in her Voter Registration
Record that she resided in the
municipality of Tolosa for a period of six
months. This may be inconsequential as
argued by the respondent since it refers
only to her residence in Tolosa, Leyte.
But her failure to prove that she was a
resident of the First District of Leyte
prior to her residence in Tolosa leaves
nothing but a convincing proof that she
had been a resident of the district for six
15
months only.
In a Resolution promulgated a day before the May 8,
1995 elections, the COMELEC en banc denied
16
petitioner's Motion for Reconsideration of the April 24,
1995 Resolution declaring her not qualified to run for the
position of Member of the House of Representatives for
17
the First Legislative District of Leyte. 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
18
disqualification.
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
19
event that she obtains the highest number of votes.
In a Supplemental Petition dated 25 May 1995, petitioner
averred that she was the overwhelming winner of the
elections for the congressional seat in the First District of
Leyte held May 8, 1995 based on the canvass
completed by the Provincial Board of Canvassers on
May 14, 1995. Petitioner alleged that the canvass
showed that she obtained a total of 70,471 votes
compared to the 36,833 votes received by Respondent
Montejo. A copy of said Certificate of Canvass was
annexed to the Supplemental Petition.
On account of the Resolutions disqualifying petitioner
from running for the congressional seat of the First
District of Leyte and the public respondent's Resolution
suspending her proclamation, petitioner comes to this
court for relief.
Petitioner raises several issues in her Original and
Supplemental Petitions. The principal issues may be
classified into two general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a
resident, for election purposes, of the
First District of Leyte for a period of one
year at the time of the May 9, 1995
elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly
exercised its jurisdiction in disqualifying
petitioner outside the period mandated
by the Omnibus Election Code for
disqualification cases under Article 78 of
the said Code.
b) After the Elections
Whether or not the House of
Representatives Electoral Tribunal
assumed exclusive jurisdiction over the
question of petitioner's qualifications
after the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second
Division reveals a startling confusion in the application of
settled concepts of "Domicile" and "Residence" in
election law. While the COMELEC seems to be in
agreement with the general proposition that for the
purposes of election law, residence is synonymous with
domicile, the Resolution reveals a tendency to substitute
or mistake the concept of domicile for actual residence,
a conception not intended for the purpose of determining
a candidate's qualifications for election to the House of
Representatives as required by the 1987 Constitution.
As it were, residence, for the purpose of meeting the
qualification for an elective position, has a settled
meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the
exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their place
20
of habitual residence." In Ong vs. Republic 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
21
they disclose intent." Based on the foregoing, domicile
includes the twin elements of "the fact of residing or
physical presence in a fixed place" and animus manendi,
or the intention of returning there permanently.
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
22
is established it is residence. It is thus, quite perfectly
normal for an individual to have different residences in
various places. However, a person can only have a
single domicile, unless, for various reasons, he
successfully abandons his domicile in favor of another
23
domicile of choice. In Uytengsu vs. Republic, 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.
24
In Nuval vs. Guray, 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
25
indicative of such intention." Larena
26
vs. Teves reiterated the same doctrine in a case
involving the qualifications of the respondent therein to
the post of Municipal President of Dumaguete, Negros
27
Oriental. Faypon vs. Quirino, 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
28
residence. So settled is the concept (of domicile) in
our election law that in these and other election law
cases, this Court has stated that the mere absence of an
individual from his permanent residence without the
intention to abandon it does not result in a loss or
change of domicile.
The deliberations of the 1987 Constitution on the
residence qualification for certain elective positions have
placed beyond doubt the principle that when the
Constitution speaks of "residence" in election law, it
actually means only "domicile" to wit:
Mr. Nolledo: With respect to Section 5, I
remember that in the 1971
Constitutional Convention, there was an
attempt to require residence in the place
not less than one year immediately
preceding the day of the elections. So
my question is: What is the Committee's
concept of residence of a candidate for
the legislature? Is it actual residence or
is it the concept of domicile or
constructive residence?
Mr. Davide: Madame President, insofar
as the regular members of the National
Assembly are concerned, the proposed
section merely provides, among others,
"and a resident thereof", that is, in the
district for a period of not less than one
year preceding the day of the election.
This was in effect lifted from the 1973
Constitution, the interpretation given to it
was domicile.
29
xxx xxx xxx
Mrs. Rosario Braid: The next question is
on Section 7, page 2. I think
Commissioner Nolledo has raised the
same point that "resident" has been
interpreted at times as a matter of
intention rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the
gentleman consider at the proper time to
go back to actual residence rather than
mere intention to reside?
Mr. De los Reyes: But we might
encounter some difficulty especially
considering that a provision in the
Constitution in the Article on Suffrage
says that Filipinos living abroad may
vote as enacted by law. So, we have to
stick to the original concept that it
should be by domicile and not physical
residence.
30
In Co vs. Electoral Tribunal of the House of
31
Representatives, this Court concluded that the framers
of the 1987 Constitution obviously adhered to the
definition given to the term residence in election law,
32
regarding it as having the same meaning as domicile.
In the light of the principles just discussed, has petitioner
Imelda Romualdez Marcos satisfied the residency
requirement mandated by Article VI, Sec. 6 of the 1987
Constitution? Of what significance is the questioned
entry in petitioner's Certificate of Candidacy stating her
residence in the First Legislative District of Leyte as
seven (7) months?
It is the fact of residence, not a statement in a certificate
of candidacy which ought to be decisive in determining
whether or not and individual has satisfied the
constitution's residency qualification requirement. The
said statement becomes material only when there is or
appears to be a deliberate attempt to mislead,
misinform, or hide a fact which would otherwise render a
candidate ineligible. It would be plainly ridiculous for a
candidate to deliberately and knowingly make a
statement in a certificate of candidacy which would lead
to his or her disqualification.
It stands to reason therefore, that petitioner merely
committed an honest mistake in jotting the word "seven"
in the space provided for the residency qualification
requirement. The circumstances leading to her filing the
questioned entry obviously resulted in the subsequent
confusion which prompted petitioner to write down the
period of her actual stay in Tolosa, Leyte instead of her
period of residence in the First district, which was "since
childhood" in the space provided. These circumstances
and events are amply detailed in the COMELEC's
Second Division's questioned resolution, albeit with a
different interpretation. For instance, when herein
petitioner announced that she would be registering in
Tacloban City to make her eligible to run in the First
District, private respondent Montejo opposed the same,
claiming that petitioner was a resident of Tolosa, not
Tacloban City. Petitioner then registered in her place of
actual residence in the First District, which is Tolosa,
Leyte, a fact which she subsequently noted down in her
Certificate of Candidacy. A close look at said certificate
would reveal the possible source of the confusion: the
entry for residence (Item No. 7) is followed immediately
by the entry for residence in the constituency where a
candidate seeks election thus:
7. RESIDENCE (complete
Address): Brgy. Olot, Tolosa, Leyte
POST OFFICE ADDRESS FOR
ELECTION PURPOSES: Brgy. Olot,
Tolosa, Leyte
8. RESIDENCE IN THE
CONSTITUENCY WHERE I SEEK TO
BE ELECTED IMMEDIATELY
PRECEDING THE
ELECTION:_________ Years
and Seven Months.
Having been forced by private respondent to register in
her place of actual residence in Leyte instead of
petitioner's claimed domicile, it appears that petitioner
had jotted down her period of stay in her legal residence
or domicile. The juxtaposition of entries in Item 7 and
Item 8 — the first requiring actual residence and the
second requiring domicile — coupled with the
circumstances surrounding petitioner's registration as a
voter in Tolosa obviously led to her writing down an
unintended entry for which she could be disqualified.
This honest mistake should not, however, be allowed to
negate the fact of residence in the First District if such
fact were established by means more convincing than a
mere entry on a piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile
could not possibly be in the First District of Leyte, the
Second Division of the COMELEC, in its assailed
Resolution of April 24,1995 maintains that "except for
the time when (petitioner) studied and worked for some
years after graduation in Tacloban City, she continuously
lived in Manila." The Resolution additionally cites certain
facts as indicative of the fact that petitioner's domicile
ought to be any place where she lived in the last few
decades except Tacloban, Leyte. First, according to the
Resolution, petitioner, in 1959, resided in San Juan,
Metro Manila where she was also registered voter. Then,
in 1965, following the election of her husband to the
Philippine presidency, she lived in San Miguel, Manila
where she as a voter. In 1978 and thereafter, she served
as a member of the Batasang Pambansa and Governor
of Metro Manila. "She could not, have served these
positions if she had not been a resident of Metro
Manila," the COMELEC stressed. Here is where the
confusion lies.
We have stated, many times in the past, that an
individual does not lose his domicile even if he has lived
and maintained residences in different places.
Residence, it bears repeating, implies a factual
relationship to a given place for various purposes. The
absence from legal residence or domicile to pursue a
profession, to study or to do other things of a temporary
or semi-permanent nature does not constitute loss of
residence. Thus, the assertion by the COMELEC that
"she could not have been a resident of Tacloban City
since childhood up to the time she filed her certificate of
candidacy because she became a resident of many
places" flies in the face of settled jurisprudence in which
this Court carefully made distinctions between (actual)
residence and domicile for election law purposes.
33
In Larena vs. Teves, supra, we stressed:
[T]his court is of the opinion and so
holds that a person who has his own
house wherein he lives with his family in
a municipality without having ever had
the intention of abandoning it, and
without having lived either alone or with
his family in another municipality, has
his residence in the former municipality,
notwithstanding his having registered as
an elector in the other municipality in
question and having been a candidate
for various insular and provincial
positions, stating every time that he is a
resident of the latter municipality.
34
More significantly, in Faypon vs. Quirino, We
explained that:
A citizen may leave the place of his birth
to look for "greener pastures," as the
saying goes, to improve his lot, and that,
of course includes study in other places,
practice of his avocation, or engaging in
business. When an election is to be
held, the citizen who left his birthplace to
improve his lot may desire to return to
his native town to cast his ballot but for
professional or business reasons, or for
any other reason, he may not absent
himself from his professional or
business activities; so there he registers
himself as voter as he has the
qualifications to be one and is not willing
to give up or lose the opportunity to
choose the officials who are to run the
government especially in national
elections. Despite such registration,
the animus revertendi to his home, to
his domicile or residence of origin has
not forsaken him. This may be the
explanation why the registration of a
voter in a place other than his residence
of origin has not been deemed sufficient
to constitute abandonment or loss of
 such residence. It finds justification in
the natural desire and longing of every
person to return to his place of birth.
This strong feeling of attachment to the
place of one's birth must be overcome
by positive proof of abandonment for
another.
From the foregoing, it can be concluded that in its
above-cited statements supporting its proposition that
petitioner was ineligible to run for the position of
Representative of the First District of Leyte, the
COMELEC was obviously referring to petitioner's various
places of (actual) residence, not her domicile. In doing
so, it not only ignored settled jurisprudence on residence
in election law and the deliberations of the constitutional
commission but also the provisions of the Omnibus
35
Election Code (B.P. 881).
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
36
Division's assailed Resolution:
In or about 1938 when respondent was
a little over 8 years old, she established
her domicile in Tacloban, Leyte
(Tacloban City). She studied in the Holy
Infant Academy in Tacloban from 1938
to 1949 when she graduated from high
school. She pursued her college studies
in St. Paul's College, now Divine Word
University in Tacloban, where she
earned her degree in Education.
Thereafter, she taught in the Leyte
Chinese School, still in Tacloban City. In
1952 she went to Manila to work with
her cousin, the late speaker Daniel Z.
Romualdez in his office in the House of
Representatives. In 1954, she married
ex-President Ferdinand E. Marcos when
he was still a congressman of Ilocos
Norte and registered there as a voter.
When her husband was elected Senator
of the Republic in 1959, she and her
husband lived together in San Juan,
Rizal where she registered as a voter. In
1965, when her husband was elected
President of the Republic of the
Philippines, she lived with him in
Malacanang Palace and registered as a
voter in San Miguel, Manila.
[I]n February 1986 (she claimed that)
she and her family were abducted and
kidnapped to Honolulu, Hawaii. In
November 1991, she came home to
Manila. In 1992, respondent ran for
election as President of the Philippines
and filed her Certificate of Candidacy
wherein she indicated that she is a
resident and registered voter of San
Juan, Metro Manila.
Applying the principles discussed to the facts found by
COMELEC, what is inescapable is that petitioner held
various residences for different purposes during the last
four decades. None of these purposes unequivocally
point to an intention to abandon her domicile of origin in
Tacloban, Leyte. Moreover, while petitioner was born in
Manila, as a minor she naturally followed the domicile of
her parents. She grew up in Tacloban, reached her
adulthood there and eventually established residence in
different parts of the country for various reasons. Even
during her husband's presidency, at the height of the
Marcos Regime's powers, petitioner kept her close ties
to her domicile of origin by establishing residences in
Tacloban, celebrating her birthdays and other important
personal milestones in her home province, instituting
well-publicized projects for the benefit of her province
and hometown, and establishing a political power base
where her siblings and close relatives held positions of
power either through the ballot or by appointment,
always with either her influence or consent. These well-
publicized ties to her domicile of origin are part of the
history and lore of the quarter century of Marcos power
in our country. Either they were entirely ignored in the
COMELEC'S Resolutions, or the majority of the
COMELEC did not know what the rest of the country
always knew: the fact of petitioner's domicile in
Tacloban, Leyte.
Private respondent in his Comment, contends that
Tacloban was not petitioner's domicile of origin because
she did not live there until she was eight years old. He
avers that after leaving the place in 1952, she
"abandoned her residency (sic) therein for many years
and . . . (could not) re-establish her domicile in said
place by merely expressing her intention to live there
again." We do not agree.
First, minor follows the domicile of his parents. As
domicile, once acquired is retained until a new one is
gained, it follows that in spite of the fact of petitioner's
being born in Manila, Tacloban, Leyte was her domicile
of origin by operation of law. This domicile was not
established only when her father brought his family back
to Leyte contrary to private respondent's averments.
Second, domicile of origin is not easily lost. To
successfully effect a change of domicile, one must
37
demonstrate:
1. An actual removal or an actual
change of domicile;
2. A bona fide intention of abandoning
the former place of residence and
establishing a new one; and
3. Acts which correspond with the
purpose.
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
38
cannot have two legal residences at the same time. In
the case at bench, the evidence adduced by private
respondent plainly lacks the degree of persuasiveness
required to convince this court that an abandonment of
domicile of origin in favor of a domicile of choice indeed
occurred. To effect an abandonment requires the
voluntary act of relinquishing 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
39
of "domicile" and "residence." 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
40
presence.
Article 110 of the Civil Code provides:
Art. 110. — The husband shall fix the
residence of the family. But the court
may exempt the wife from living with the
husband if he should live abroad unless
in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the
concepts of domicile or residence as they affect the
female spouse upon marriage yields nothing which
would suggest that the female spouse automatically
loses her domicile of origin in favor of the husband's
choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the
Spanish Civil Code of 1889 which states:
La mujer esta obligada a seguir a su
marido donde quiera que fije su
residencia. Los Tribunales, sin
embargo, podran con justa causa
eximirla de esta obligacion cuando el
marido transende su residencia a
ultramar o' a pais extranjero.
Note the use of the phrase "donde quiera su fije de
residencia" in the aforequoted article, which means
wherever (the husband) wishes to establish residence.
This part of the article clearly contemplates only actual
residence because it refers to a positive act of fixing a
family home or residence. Moreover, this interpretation is
further strengthened by the phrase "cuando el marido
translade su residencia" in the same provision which
means, "when the husband shall transfer his residence,"
referring to another positive act of relocating the family to
another home or place of actual residence. The article
obviously cannot be understood to refer to domicile
which is a fixed,
fairly-permanent concept when it plainly connotes the
possibility of transferring from one place to another not
only once, but as often as the husband may deem fit to
move his family, a circumstance more consistent with
the concept of actual residence.
The right of the husband to fix the actual residence is in
harmony with the intention of the law to strengthen and
unify the family, recognizing the fact that the husband
and the wife bring into the marriage different domiciles
(of origin). This difference could, for the sake of family
unity, be reconciled only by allowing the husband to fix a
single place of actual residence.
Very significantly, Article 110 of the Civil Code is found
under Title V under the heading: RIGHTS AND
OBLIGATIONS BETWEEN HUSBAND AND WIFE.
Immediately preceding Article 110 is Article 109 which
obliges the husband and wife to live together, thus:
Art. 109. — The husband and wife are
obligated to live together, observe
mutual respect and fidelity and render
mutual help and support.
The duty to live together can only be fulfilled if the
husband and wife are physically together. This takes into
account the situations where the couple has many
residences (as in the case of the petitioner). If the
husband has to stay in or transfer to any one of their
residences, the wife should necessarily be with him in
order that they may "live together." Hence, it is illogical
to conclude that Art. 110 refers to "domicile" and not to
"residence." Otherwise, we shall be faced with a
situation where the wife is left in the domicile while the
husband, for professional or other reasons, stays in one
of their (various) residences. As Dr. Tolentino further
explains:
Residence and Domicile — Whether the
word "residence" as used with reference
to particular matters is synonymous with
"domicile" is a question of some
difficulty, and the ultimate decision must
be made from a consideration of the
 purpose and intent with which the word
is used. Sometimes they are used
synonymously, at other times they are
distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material
fact, referring to the physical presence
of a person in a place. A person can
have two or more residences, such as a
country residence and a city residence.
Residence is acquired by living in place;
on the other hand, domicile can exist
without actually living in the place. The
important thing for domicile is that, once
residence has been established in one
place, there be an intention to stay there
permanently, even if residence is also
established in some other
41
place.
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
42
jurisprudence has recognized certain situations 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).
43
In De la Vina vs. Villareal 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
44
divorce." 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 the
45
Court held that:
Upon examination of the authorities, we
are convinced that it is not within the
province of the courts of this country to
attempt to compel one of the spouses to
cohabit with, and render conjugal rights
to, the other. Of course where the
property rights of one of the pair are
invaded, an action for restitution of such
rights can be maintained. But we are
disinclined to sanction the doctrine that
an order, enforcible (sic) by process of
contempt, may be entered to compel the
restitution of the purely personal right of
consortium. At best such an order can
be effective for no other purpose than to
compel the spouses to live under the
same roof; and he experience of those
countries where the courts of justice
have assumed to compel the
cohabitation of married people shows
that the policy of the practice is
extremely questionable. Thus in
England, formerly the Ecclesiastical
Court entertained suits for the restitution
of conjugal rights at the instance of
either husband or wife; and if the facts
were found to warrant it, that court
would make a mandatory decree,
enforceable by process of contempt in
case of disobedience, requiring the
delinquent party to live with the other
and render conjugal rights. Yet this
practice was sometimes criticized even
by the judges who felt bound to enforce
such orders, and in Weldon
v. Weldon (9 P.D. 52), decided in 1883,
Sir James Hannen, President in the
Probate, Divorce and Admiralty Division
of the High Court of Justice, expressed
his regret that the English law on the
subject was not the same as that which
prevailed in Scotland, where a decree of
adherence, equivalent to the decree for
the restitution of conjugal rights in
England, could be obtained by the
injured spouse, but could not be
enforced by imprisonment. Accordingly,
in obedience to the growing sentiment
against the practice, the Matrimonial
Causes Act (1884) abolished the
remedy of imprisonment; though a
decree for the restitution of conjugal
rights can still be procured, and in case
of disobedience may serve in
appropriate cases as the basis of an
order for the periodical payment of a
stipend in the character of alimony.
In the voluminous jurisprudence of the
United States, only one court, so far as
we can discover, has ever attempted to
make a preemptory order requiring one
of the spouses to live with the other; and
that was in a case where a wife was
ordered to follow and live with her
husband, who had changed his domicile
to the City of New Orleans. The decision
referred to (Bahn v. Darby, 36 La. Ann.,
70) was based on a provision of the Civil
Code of Louisiana similar to article 56 of
the Spanish Civil Code. It was decided
many years ago, and the doctrine
evidently has not been fruitful even in
the State of Louisiana. In other states of
the American Union the idea of
enforcing cohabitation by process of
contempt is rejected. (21 Cyc., 1148).
 In a decision of January 2, 1909, the
Supreme Court of Spain appears to
have affirmed an order of the Audiencia
Territorial de Valladolid requiring a wife
to return to the marital domicile, and in
the alternative, upon her failure to do so,
to make a particular disposition of
certain money and effects then in her
possession and to deliver to her
husband, as administrator of the
ganancial property, all income, rents,
and interest which might accrue to her
from the property which she had brought
to the marriage. (113 Jur. Civ., pp. 1,
11) But it does not appear that this order
for the return of the wife to the marital
domicile was sanctioned by any other
penalty than the consequences that
would be visited upon her in respect to
the use and control of her property; and
it does not appear that her disobedience
to that order would necessarily have
been followed by imprisonment for
contempt.
Parenthetically when Petitioner was married to then
Congressman Marcos, in 1954, petitioner was obliged —
by virtue of Article 110 of the Civil Code — to follow her
husband's actual place of residence fixed by him. The
problem here is that at that time, Mr. Marcos had several
places of residence, among which were San Juan, Rizal
and Batac, Ilocos Norte. There is no showing which of
these places Mr. Marcos did fix as his family's residence.
But assuming that Mr. Marcos had fixed any of these
places as the conjugal residence, what petitioner gained
upon marriage was actual residence. She did not lose
her domicile of origin.
On the other hand, the common law concept of
"matrimonial domicile" appears to have been
incorporated, as a result of our jurisprudential
experiences after the drafting of the Civil Code of 1950,
into the New Family Code. To underscore the difference
between the intentions of the Civil Code and the Family
Code drafters, the term residence has been supplanted
by the term domicile in an entirely new provision (Art. 69)
distinctly different in meaning and spirit from that found
in Article 110. The provision recognizes revolutionary
changes in the concept of women's rights in the
intervening years by making the choice of domicile a
46
product of mutual agreement between the spouses.
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
47
homeland." Furthermore, petitioner obtained her
residence certificate in 1992 in Tacloban, Leyte, while
living in her brother's house, an act which supports the
domiciliary intention clearly manifested in her letters to
the PCGG Chairman. She could not have gone straight
to her home in San Juan, as it was in a state of disrepair,
having been previously looted by vandals. Her "homes"
and "residences" following her arrival in various parts of
Metro Manila merely qualified as temporary or "actual
residences," not domicile. Moreover, and proceeding
from our discussion pointing out specific situations
where the female spouse either reverts to her domicile of
origin or chooses a new one during the subsistence of
the marriage, it would be highly illogical for us to assume
that she cannot regain her original domicile upon the
death of her husband absent a positive act of selecting a
new one where situations exist within the subsistence of
the marriage itself where the wife gains a domicile
different from her husband.
In the light of all the principles relating to residence and
domicile enunciated by this court up to this point, we are
persuaded that the facts established by the parties
weigh heavily in favor of a conclusion supporting
petitioner's claim of legal residence or domicile in the
First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC
had already lapsed considering that the assailed
resolutions were rendered on April 24, 1995, fourteen
(14) days before the election in violation of Section 78 of
48
the Omnibus Election Code. 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
49
to be merely directory, "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
 50
clearly indicated it." 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
51
vs. Cruz held that:
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
52
R.A. 6646 in relation to Section 78 of B.P. 881, it is
evident that the respondent Commission does not lose
jurisdiction to hear and decide a pending disqualification
case under Section 78 of B.P. 881 even after the
elections.
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
53
Representatives. Petitioner not being a member of the
House of Representatives, it is obvious that the HRET at
this point has no jurisdiction over the question.
It would be an abdication of many of the ideals
enshrined in the 1987 Constitution for us to either to
ignore or deliberately make distinctions in law solely on
the basis of the personality of a petitioner in a case.
Obviously a distinction was made on such a ground
here. Surely, many established principles of law, even of
election laws were flouted for the sake perpetuating
power during the pre-EDSA regime. We renege on these
sacred ideals, including the meaning and spirit of EDSA
ourselves bending established principles of principles of
law to deny an individual what he or she justly deserves
in law. Moreover, in doing so, we condemn ourselves to
repeat the mistakes of the past.
WHEREFORE, having determined that petitioner
possesses the necessary residence qualifications to run
for a seat in the House of Representatives in the First
District of Leyte, the COMELEC's questioned
Resolutions dated April 24, May 7, May 11, and May 25,
1995 are hereby SET ASIDE. Respondent COMELEC is
hereby directed to order the Provincial Board of
Canvassers to proclaim petitioner as the duly elected
Representative of the First District of Leyte.
SO ORDERED.
Feliciano, J., is on leave.
Separate Opinions
PUNO, J., concurring:
It was Aristotle who taught mankind that things that are
alike should be treated alike, while things that are
unalike should be treated unalike in proportion to their
1
unalikeness. Like other candidates, petitioner has
clearly met the residence requirement provided by
2
Section 6, Article VI of the Constitution. We cannot
disqualify her and treat her unalike, for the Constitution
guarantees equal protection of the law. I proceed from
the following factual and legal propositions:
First. There is no question that petitioner's original
domicile is in Tacloban, Leyte. Her parents were
domiciled in Tacloban. Their ancestral house is in
Tacloban. They have vast real estate in the place.
Petitioner went to school and thereafter worked there. I
consider Tacloban as her initial domicile, both her
domicile of origin and her domicile of choice. Her
domicile of origin as it was the domicile of her parents
when she was a minor; and her domicile of choice, as
she continued living there even after reaching the age of
majority.
Second. There is also no question that in May, 1954,
petitioner married the late President Ferdinand E.
Marcos. By contracting marriage, her domicile became
subject to change by law, and the right to change it was
given by Article 110 of the Civil Code provides:
 Art. 110. The husband shall fix the
residence of the family. But the court
may exempt the wife from living with the
husband if he should live abroad unless
in the service of the
3
Republic. (Emphasis supplied)
4 they lived in Malacañang Palace, and when she
In De la Viña v. Villareal and Geopano, this
Court explained why the domicile of the wife
ought to follow that of the husband. We held:
"The reason is founded upon the theoretic
identity of person and interest between the
husband and the wife, and the presumption that,
from the nature of the relation, the home of one
is the home of the other. It is intended to
promote, strengthen, and secure their interests
in this relation, as it ordinarily exists, where
5 her marriage loses her own domicile and by operation of
union and harmony prevail." In accord with this
objective, Article 109 of the Civil Code also
obligated the husband and wife "to live
together."
Third. The difficult issues start as we determine whether
petitioner's marriage to former President Marcos ipso
facto resulted in the loss of her Tacloban domicile. I
respectfully submit that her marriage by itself alone did
not cause her to lose her Tacloban domicile. Article 110
of the Civil Code merely gave the husband the right to fix
the domicile of the family. In the exercise of the right, the
husband may explicitly choose the prior domicile of his
wife, in which case, the wife's domicile remains
unchanged. The husband can also implicitly acquiesce
to his wife's prior domicile even if it is different. So we
6
held in de la Viña,
. . . . When married women as well as
children subject to parental authority
live, with the acquiescence of their
husbands or fathers, in a place distinct
from where the latter live, they have
their own independent domicile. . . .
It is not, therefore, the mere fact of marriage but
the deliberate choice of a different domicile by
the husband that will change the domicile of a
wife from what it was prior to their marriage. The
domiciliary decision made by the husband in the
exercise of the right conferred by Article 110 of
the Civil Code binds the wife. Any and all acts of
a wife during her coverture contrary to the
domiciliary choice of the husband cannot
change in any way the domicile legally fixed by
the husband. These acts are void not only
because the wife lacks the capacity to choose
her domicile but also because they are contrary
to law and public policy.
In the case at bench, it is not disputed that former
President Marcos exercised his right to fix the family
domicile and established it in Batac, Ilocos Norte, where
he was then the congressman. At that particular point of
time and throughout their married life, petitioner lost her
domicile in Tacloban, Leyte. Since petitioner's Batac
domicile has been fixed by operation of law, it was not
affected in 1959 when her husband was elected as
Senator, when they lived in San Juan, Rizal and where
she registered as a voter. It was not also affected in
1965 when her husband was elected President, when
registered as a voter in San Miguel, Manila. Nor was it
affected when she served as a member of the Batasang
Pambansa, Minister of Human Settlements and
Governor of Metro Manila during the incumbency of her
husband as President of the nation. Under Article 110 of
the Civil Code, it was only her husband who could
change the family domicile in Batac and the evidence
shows he did not effect any such change. To a large
degree, this follows the common law that "a woman on
law, acquires that of her husband, no matter where the
7
wife actually lives or what she believes or intends."
Fourth. The more difficult task is how to interpret the
effect of the death on September 28, 1989 of former
President Marcos on petitioner's Batac domicile. The
issue is of first impression in our jurisdiction and two (2)
schools of thought contend for acceptance. One is
espoused by our distinguished colleague, Mr. Justice
8
Davide, Jr., heavily relying on American authorities. He
echoes the theory that after the husband's death, the
wife retains the last domicile of her husband until she
makes an actual change.
I do not subscribe to this submission. The American
case law that the wife still retains her dead husband's
domicile is based on ancient common law which we can
no longer apply in the Philippine setting today. The
common law identified the domicile of a wife as that of
the husband and denied to her the power of acquiring a
9
domicile of her own separate and apart from him. Legal
scholars agree that two (2) reasons support this
common law doctrine. The first reason as pinpointed by
the legendary Blackstone is derived from the view that
"the very being or legal existence of the woman is
suspended during
the marriage, or at least is incorporated and
10
consolidated into that of the husband." The second
reason lies in "the desirability of having the interests of
each member of the family unit governed by the same
11
law." The presumption that the wife retains the
domicile of her deceased husband is an extension of this
common law concept. The concept and its extension
have provided some of the most iniquitous jurisprudence
against women. It was under common law that the 1873
12
American case of Bradwell v. Illinois was decided
where women were denied the right to practice law. It
was unblushingly ruled that "the natural and proper
timidity and delicacy which belongs to the female sex
evidently unfits it for many of the occupations of civil life .
. . This is the law of the Creator." Indeed, the rulings
13
relied upon by Mr. Justice Davide in CJS and AM JUR
14
2d are American state court decisions handed down
15 16
between the years 1917 and 1938, or before the time
when women were accorded equality of rights with men.
Undeniably, the women's liberation movement resulted
in far-ranging state legislations in the United States to
17
eliminate gender inequality. Starting in the decade of
the seventies, the courts likewise liberalized their rulings
as they started invalidating laws infected with gender-
bias. It was in 1971 when the US Supreme Court
18
in Reed v. Reed, struck a big blow for women equality
when it declared as unconstitutional an Idaho law that
required probate courts to choose male family members
over females as estate administrators. It held that mere
administrative inconvenience cannot justify a sex-based
distinction. These significant changes both in law and in
case law on the status of women virtually obliterated the
iniquitous common law surrendering the rights of married
women to their husbands based on the dubious theory of
the parties' theoretic oneness. The Corpus Juris
Secundum editors did not miss the relevance of this
revolution on women's right as they observed: "However,
it has been declared that under modern
statutes changing the status of married women and
departing from the common law theory of
marriage, there is no reason why a wife may not acquire
a separate domicile for every purpose known to the
19
law." In publishing in 1969 the Restatement of the Law,
Second (Conflict of Laws 2d), the reputable American
Law Institute also categorically stated that the view of
Blackstone ". . . is no longer held. As the result of
statutes and court decisions, a wife now possesses
practically the same rights and powers as her unmarried
20
sister."
In the case at bench, we have to decide whether we
should continue clinging to the anachronistic common
law that demeans women, especially married women. I
submit that the Court has no choice except to break
away from this common law rule, the root of the many
degradations of Filipino women. Before 1988, our laws
particularly the Civil Code, were full of gender
discriminations against women. Our esteemed
colleague, Madam Justice Flerida Ruth Romero, cited a
21
few of them as follows:
xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that
under the Civil Code, wives suffer under
certain restrictions or disabilities. For
instance, the wife cannot accept gifts
from others, regardless of the sex of the
giver or the value of the gift, other than
from her very close relatives, without her
husband's consent. She may accept
only from, say, her parents, parents-in-
law, brothers, sisters and the relatives
within the so-called fourth civil degree.
She may not exercise her profession or
occupation or engage in business if her
husband objects on serious grounds or
if his income is sufficient to support their
family in accordance with their social
standing. As to what constitutes "serious
grounds" for objecting, this is within the
discretion of the husband.
xxx xxx xxx
Because of the present inequitable
situation, the amendments to the Civil
Law being proposed by the University of
the Philippines Law Center would allow
absolute divorce which severes the
matrimonial ties, such that the divorced
spouses are free to get married a year
after the divorce is decreed by the
courts. However, in order to place the
husband and wife on an equal footing
insofar as the bases for divorce are
concerned, the following are specified
as the grounds for absolute divorce: (1)
adultery or having a paramour
committed by the respondent in any of
the ways specified in the Revised Penal
Code or (2) an attempt by the
respondent against the life of the
petitioner which amounts to attempted
parricide under the Revised Penal
Code; (3) abandonment of the petitioner
by the respondent without just cause for
a period of three consecutive years; or
(4) habitual maltreatment.
With respect to property relations, the
husband is automatically the
administrator of the conjugal property
owned in common by the married
couple even if the wife may be the more
astute or enterprising partner. The law
does not leave it to the spouses to
decide who shall act as such
administrator. Consequently, the
husband is authorized to engage in acts
and enter into transactions beneficial to
the conjugal partnership. The wife,
however, cannot similarly bind the
partnership without the husband's
consent.
And while both exercise joint parental
authority over their children, it is the
father whom the law designates as the
legal administrator of the property
pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted
efforts, principally through legislations, to
eliminate inequality between men and women in
our land. The watershed came on August 3,
1988 when our Family Code took effect which,
among others, terminated the unequal treatment
 of husband and wife as to their rights and her mother-in-law and
22
responsibilities. they have constant
quarrels (Del Rosario v.
The Family Code attained this elusive objective by giving Del Rosario, CA, 46 OG
new rights to married women and by abolishing sex- 6122);
based privileges of husbands. Among others, married
women are now given the joint right to administer the (d) Where the husband
family property, whether in the absolute community has continuously carried
23
system or in the system of conjugal partnership; joint illicit relations for 10
parental authority over their minor children, both over years with different
24
their persons as well as their properties; joint women and treated his
25
responsibility for the support of the family; the right to wife roughly and without
26
jointly manage the household; and, the right to object consideration. (Dadivas
to their husband's exercise of profession, occupation, v. Villanueva, 54 Phil.
27
business or activity. Of particular relevance to the case 92);
at bench is Article 69 of the Family Code which took
away the exclusive right of the husband to fix the family (e) Where the husband
domicile and gave it jointly to the husband and the wife, spent his time in
thus: gambling, giving no
money to his family for
Art. 69. The husband and wife shall fix food and necessities,
the family domicile. In case of and at the same time
disagreement, the court shall decide. insulting his wife and
laying hands on her.
The court may exempt one spouse from (Panuncio v. Sula, CA,
living with the other if the latter should 34 OG 129);
live abroad or there are other valid and
compelling reasons for the exemption. (f) If the husband has
However, such exemption shall not no fixed residence and
apply if the same is not compatible with lives a vagabond life as
the solidarity of the family. (Emphasis a tramp (1 Manresa
supplied) 329);

Article 69 repealed Article 110 of the Civil Code. (g) If the husband is
Commenting on the duty of the husband and carrying on a shameful
wife to live together, former Madam Justice Alice business at home
Sempio-Diy of the Court of Appeals specified the (Gahn v. Darby, 38 La.
instances when a wife may now refuse to live Ann. 70).
28
with her husband, thus:
The inescapable conclusion is that our Family
(2) The wife has the duty to live with her Code has completely emancipated the wife from
husband, but she may refuse to do so in the control of the husband, thus abandoning the
certain cases like: parties' theoretic identity of interest. No less than
the late revered Mr. Justice J.B.L. Reyes who
(a) If the place chosen chaired the Civil Code Revision Committee of
by the husband as the UP Law Center gave this insightful view in
29
family residence is one of his rare lectures after retirement:
dangerous to her Life;
xxx xxx xxx
(b) If the husband
subjects her to The Family Code is primarily intended to
maltreatment or abusive reform the family law so as to
conduct or insults, emancipate the wife from the exclusive
making common life control of the husband and to place her
impossible; at parity with him insofar as the family is
concerned. The wife and the husband
(c) If the husband are now placed on equal standing by the
compels her to live with Code. They are now joint administrators
his parents, but she of the family properties and exercise
cannot get along with joint authority over the persons and
properties of their children. This means
 a dual authority in the family. The
husband will no longer prevail over the
wife but she has to agree on all matters
concerning the family. (Emphasis
supplied)
In light of the Family Code which abrogated the
inequality between husband and wife as started
and perpetuated by the common law, there is no
reason in espousing the anomalous rule that the
wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which
provides the statutory support for this stance has
been repealed by Article 69 of the Family Code.
By its repeal, it becomes a dead-letter law, and
we are not free to resurrect it by giving it further
effect in any way or manner such as by ruling
that the petitioner is still bound by the domiciliary
determination of her dead husband.
Aside from reckoning with the Family Code, we have to
consider our Constitution and its firm guarantees of due
process and equal protection of
30
law. It can hardly be doubted that the common law
imposition on a married woman of her dead husband's
domicile even beyond his grave is patently
discriminatory to women. It is a gender-based
discrimination and is not rationally related to the
objective of promoting family solidarity. It cannot survive
a constitutional challenge. Indeed, compared with our
previous fundamental laws, the 1987 Constitution is
more concerned with equality between sexes as it
explicitly commands that the State ". . . shall ensure
fundamental equality before the law of women and
men." To be exact, section 14, Article II provides: "The
State recognizes the role of women in nation building,
and shall ensure fundamental equality before the law of
women and men. We shall be transgressing the sense
and essence of this constitutional mandate if we insist on
giving our women the caveman's treatment.
Prescinding from these premises, I respectfully submit
that the better stance is to rule that petitioner reacquired
her Tacloban domicile upon the death of her husband in
1989. This is the necessary consequence of the view
that petitioner's Batac dictated domicile did not continue
after her husband's death; otherwise, she would have no
domicile and that will violate the universal rule that no
person can be without a domicile at any point of time.
This stance also restores the right of petitioner to choose
her domicile before it was taken away by Article 110 of
the Civil Code, a right now recognized by the Family
Code and protected by the Constitution. Likewise, I
cannot see the fairness of the common law requiring
petitioner to choose again her Tacloban domicile before
she could be released from her Batac domicile. She lost
her Tacloban domicile not through her act but through
the act of her deceased husband when he fixed their
domicile in Batac. Her husband is dead and he cannot
rule her beyond the grave. The law disabling her to
choose her own domicile has been repealed.
Considering all these, common law should not put the
burden on petitioner to prove she has abandoned her
dead husband's domicile. There is neither rhyme nor
reason for this gender-based burden.
But even assuming arguendo that there is need for
convincing proof that petitioner chose to reacquire her
Tacloban domicile, still, the records reveal ample
evidence to this effect. In her affidavit submitted to the
respondent COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to
our beloved country, after several
requests for my return were denied by
President Corazon C. Aquino, and after
I filed suits for our Government to issue
me my passport.
37. But I came home without the mortal
remains of my beloved husband,
President Ferdinand E. Marcos, which
the Government considered a threat to
the national security and welfare.
38. Upon my return to the country, I
wanted to immediately live and reside in
Tacloban City or in Olot, Tolosa, Leyte,
even if my residences there were not
livable as they had been destroyed and
cannibalized. The PCGG, however, did
not permit and allow me.
39. As a consequence, I had to live at
various times in the Westin Philippine
Plaza in Pasay City, a friend's apartment
on Ayala Avenue, a house in South
Forbes Park which my daughter rented,
and Pacific Plaza, all in Makati.
40. After the 1992 Presidential
Elections, I lived and resided in the
residence of my brother in San Jose,
Tacloban City, and pursued my
negotiations with PCGG to recover my
sequestered residences in Tacloban
City and Barangay Olot, Tolosa, Leyte.
40.1 In preparation for
my observance of All
Saints' Day and All
Souls' Day that year, I
renovated my parents'
burial grounds and
entombed their bones
which had been
excalvated, unearthed
and scattered.
41. On November 29, 1993, I formally
wrote PCGG Chairman Magtanggol
Gunigundo for permissions to —
. . . rehabilitate . . . (o)ur
ancestral house in
Tacloban and
farmhouse in Olot,
Leyte . . . to make them
livable for us the
Marcos family to have a
home in our own
motherland.
xxx xxx xxx
42. It was only on 06 June 1994,
however, when PCGG Chairman
Gunigundo, in his letter to Col. Simeon
Kempis, Jr., PCGG Region 8
Representative, allowed me to repair
and renovate my Leyte residences. I
quote part of his letter:
Dear Col. Kempis,
Upon representation by
Mrs. Imelda R. Marcos
to this Commission, that
she intends to visit our
sequestered properties
in Leyte, please allow
her access thereto. She
may also cause repairs
and renovation of the
sequestered properties,
in which event, it shall
be understood that her
undertaking said repairs
is not authorization for
her to take over said
properties, and that all
expenses shall be for
her account and not
reimbursable. Please
extend the necessary
courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live
and stay in the Sto. Niño Shrine
residence in Tacloban City where I
wanted to stay and reside, after repairs
and renovations were completed. In
August 1994, I transferred from San
Jose, Tacloban City, to my residence in
Barangay Olot, Tolosa, Leyte, when
PCGG permitted me to stay and live
there.
It is then clear that in 1992 petitioner
reestablished her domicile in the First District of
Leyte. It is not disputed that in 1992, she first
lived at the house of her brother in San Jose,
Tacloban City and later, in August 1994, she
transferred her residence in Barangay Olot,
Tolosa, Leyte. Both Tacloban City and the
municipality of Olot are within the First District of
Leyte. Since petitioner reestablished her old
domicile in 1992 in the First District of Leyte, she
more than complied with the constitutional
requirement of residence
". . . for a period of not less than one year
immediately preceding the day of the
election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to
negate the Tacloban domicile of petitioner is nil. He
presented petitioner's Voter's Registration Record filed
with the Board of Election Inspectors of Precinct 10-A of
Barangay Olot, Tolosa, Leyte wherein she stated that
her period of residence in said barangay was six (6)
months as of the date of her filing of said Voter's
31
Registration Record on January 28, 1995. This
statement in petitioner's Voter's Registration Record is
a non-prejudicial admission. The Constitution requires at
least one (1) year residence in the district in which the
candidate shall be elected. In the case at bench, the
reference is the First District of Leyte. Petitioner's
statement proved that she resided in Olot six (6) months
before January 28, 1995 but did not disprove that she
has also resided in Tacloban City starting 1992. As
aforestated, Olot and Tacloban City are both within the
First District of Leyte, hence, her six (6) months
residence in Olot should be counted not against, but in
her favor. Private respondent also presented petitioner's
32
Certificate of Candidacy filed on March 8, 1995 where
she placed seven (7) months after Item No. 8 which
called for information regarding "residence in the
constituency where I seek to be elected immediately
preceding the election." Again, this original certificate of
candidacy has no evidentiary value because an March 1,
1995 it was corrected by petitioner. In her
Amended/Corrected Certificate of
33
Candidacy, petitioner wrote "since childhood" after
Item No. 8. The amendment of a certificate of candidacy
to correct a bona fide mistake has been allowed by this
Court as a matter of course and as a matter of right. As
34
we held in Alialy v. COMELEC, viz.:
xxx xxx xxx
The absence of the signature of the
Secretary of the local chapter N.P in the
original certificate of candidacy
presented before the deadline
September 11, 1959, did not render the
certificate invalid. The amendment of
the certificate, although at a date after
the deadline, but before the election,
 was substantial compliance with the law,
and the defect was cured.
It goes without saying that petitioner's erroneous
Certificate of Candidacy filed on March 8, 1995
cannot be used as evidence against her. Private
respondent's petition for the disqualification of
petitioner rested alone on these two (2) brittle
pieces of documentary evidence — petitioner's
Voter's Registration Record and her original
Certificate of Candidacy. Ranged against the
evidence of the petitioner showing her ceaseless
contacts with Tacloban, private respondent's two
(2) pieces of evidence are too insufficient to
disqualify petitioner, more so, to deny her the
right to represent the people of the First District
of Leyte who have overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution
mandates that "bona fide candidates for any public office
shall be free from any form of harassment and
35
discrimination." A detached reading of the records of
the case at bench will show that all forms of legal and
extra-legal obstacles have been thrown against
petitioner to prevent her from running as the people's
representative in the First District of Leyte. In petitioner's
36
Answer to the petition to disqualify her, she averred:
xxx xxx xxx
10. Petitioner's (herein private
respondent Montejo) motive in filing the
instant petition is devious. When
respondent (petitioner herein)
announced that she was intending to
register as a voter in Tacloban City and
run for Congress in the First District of
Leyte, petitioner (Montejo) immediately
opposed her intended registration by
writing a letter stating that "she is not a
resident of said city but of Barangay
Olot, Tolosa, Leyte." (Annex "2" of
respondent's affidavit, Annex "2"). After
respondent (petitioner herein) had
registered as a voter in Tolosa following
completion of her six-month actual
residence therein, petitioner (Montejo)
filed a petition with the COMELEC to
transfer the town of Tolosa from the
First District to the Second District and
pursued such move up to the Supreme
Court in G.R. No. 118702, his purpose
being to remove respondent (petitioner
herein) as petitioner's (Montejo's)
opponent in the congressional election
in the First District. He also filed a bill,
along with other Leyte Congressmen,
seeking to create another legislative
district, to remove the town of Tolosa
out of the First District and to make it a
part of the new district, to achieve his
purpose. However, such bill did not pass
the Senate. Having, failed on such
moves, petitioner now filed the instant
petition, for the same objective, as it is
obvious that he is afraid to submit
himself along with respondent (petitioner
herein) for the judgment and verdict of
the electorate of the First District of
Leyte in an honest, orderly, peaceful,
free and clean elections on May 8,
1995.
These allegations which private respondent did
not challenge were not lost
to the perceptive eye of Commissioner
Maambong who in his Dissenting
37
Opinion, held:
xxx xxx xxx
Prior to the registration date — January
28, 1995 the petitioner (herein private
respondent Montejo) wrote the Election
Officer of Tacloban City not to allow
respondent (petitioner herein) to register
thereat since she is a resident of Tolosa
and not Tacloban City. The purpose of
this move of the petitioner (Montejo) is
not lost to (sic) the Commission. In UND
No. 95-001 (In the matter of the
Legislative Districts of the Provinces of
Leyte, Iloilo, and South Cotabato, Out of
Which the New Provinces of Biliran,
Guimaras and Saranggani Were
Respectively Created), . . . Hon. Cirilo
Roy G. Montejo, Representative, First
District of Leyte, wanted the Municipality
of Tolosa, in the First District of Leyte,
transferred to the Second District of
Leyte. The Hon. Sergio A.F. Apostol,
Representative of the Second District of
Leyte, opposed the move of the
petitioner (Montejo). Under Comelec
Resolution No. 2736 (December 29,
1994), the Commission on Elections
refused to make the proposed transfer.
Petitioner (Montejo) filed "Motion for
Reconsideration of Resolution
No. 2736" which the Commission denied
in a Resolution promulgated on
February 1, 1995. Petitioner (Montejo)
filed a petition for certiorari before the
Honorable Supreme Court (Cirilo Roy G.
Montejo vs. Commission on Elections,
G.R. No. 118702) questioning the
resolution of the Commission. Believing
that he could get a favorable ruling from
the Supreme Court, petitioner (Montejo)
tried to make sure that the respondent
(petitioner herein) will register as a voter
in Tolosa so that she will be forced to
 run as Representative not in the First
but in the Second District.
It did not happen. On March 16, 1995,
the Honorable Supreme Court
unanimously promulgated a "Decision,"
penned by Associate Justice Reynato S.
Puno, the dispositive portion of which
reads:
IN VIEW WHEREOF,
Section 1 of Resolution
No. 2736 insofar as it
transferred the
municipality of
Capoocan of the
Second District and the
municipality of
Palompon of the Fourth
District to the Third
District of the province
of Leyte, is annulled
and set aside. We also
deny the Petition
praying for the transfer
of the municipality of
Tolosa from the First
District to the Second
District of the province
of Leyte. No costs.
Petitioner's (Montejo's) plan did not
work. But the respondent (petitioner
herein) was constrained to register in
the Municipality of Tolosa where her
house is instead of Tacloban City, her
domicile. In any case, both Tacloban
City and Tolosa are in the First
Legislative District.
All these attempts to misuse our laws and legal
processes are forms of rank harassments and
invidious discriminations against petitioner to
deny her equal access to a public office. We
cannot commit any hermeneutic violence to the
Constitution by torturing the meaning of equality,
the end result of which will allow the harassment
and discrimination of petitioner who has lived a
controversial life, a past of alternating light and
shadow. There is but one Constitution for all
Filipinos. Petitioner cannot be adjudged by a
"different" Constitution, and the worst way to
interpret the Constitution is to inject in its
interpretation, bile and bitterness.
38
Sixth. In Gallego v. Vera, we explained that the reason
for this residence requirement is "to exclude a stranger
or newcomer, unacquainted, with the conditions and
needs of a community and not identified with the latter,
from an elective office to serve that community . . . ."
Petitioner's lifetime contacts with the First District of
Leyte cannot be contested. Nobody can claim that she is
not acquainted with its problems because she is a
stranger to the place. None can argue she cannot satisfy
the intent of the Constitution.
Seventh. In resolving election cases, a dominant
consideration is the need to effectuate the will of the
electorate. The election results show that petitioner
received Seventy Thousand Four Hundred Seventy-one
(70,471) votes, while private respondent got only Thirty-
Six Thousand Eight Hundred Thirty-Three (36,833)
votes. Petitioner is clearly the overwhelming choice of
the electorate of the First District of Leyte and this is not
a sleight of statistics. We cannot frustrate this sovereign
will on highly arguable technical considerations. In case
of doubt, we should lean towards a rule that will give life
to the people's political judgment.
A final point. The case at bench provides the Court with
the rare opportunity to rectify the inequality of status
between women and men by rejecting the iniquitous
common law precedents on the domicile of married
women and by redefining domicile in accord with our
own culture, law, and Constitution. To rule that a married
woman is eternally tethered to the domicile dictated by
her dead husband is to preserve the anachronistic and
anomalous balance of advantage of a husband over his
wife. We should not allow the dead to govern the living
even if the glories of yesteryears seduce us to shout
long live the dead! The Family Code buried this gender-
based discrimination against married women and we
should not excavate what has been entombed. More
importantly, the Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's ponencia finding
petitioner qualified for the position of Representative of
the First Congressional District of Leyte. I wish, however,
to express a few comments on the issue of petitioner's
domicile.
Domicile has been defined as that place in which a
person's habitation is fixed, without any present intention
of removing therefrom, and that place is properly the
domicile of a person in which he has voluntarily fixed his
abode, or habitation, not for a mere special or temporary
purpose, but with a present intention of making it his
permanent home (28 C.J.S. §1). It denotes a fixed
permanent residence to which when absent for
business, or pleasure, or for like reasons one intends to
return, and depends on facts and circumstances, in the
sense that they disclose intent. (Ong Huan Tin v.
Republic, 19 SCRA 966, 969)
Domicile is classified into domicile of origin and domicile
of choice. The law attributes to every individual a
domicile of origin, which is the domicile of his parents, or
of the head of his family, or of the person on whom he is
legally dependent at the time of his birth. While the
domicile of origin is generally the place where one is
born or reared, it maybe elsewhere (28 C.J.S. §5).
Domicile of choice, on the other hand, is the place which
the person has elected and chosen for himself to
displace his previous domicile; it has for its true basis or
foundation the intention of the person (28 C.J.S. §6). In
order to hold that a person has abandoned his domicile
and acquired a new one called domicile of choice, the
following requisites must concur, namely, (a) residence
or bodily presence in the new locality, (b) intention to
remain there or animus manendi, and (c) an intention to
abandon the old domicile or animus non
revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226
SCRA 408, 415). A third classification is domicile by
operation of law which attributes to a person a domicile
independent of his own intention or actual residence,
ordinarily resulting from legal domestic relations, as that
of the wife arising from marriage, or the relation of a
parent and a child (28 C.J.S. §7).
In election law, when our Constitution speaks of
residence for election purposes it means domicile (Co v.
Electoral Tribunal of the House of Representatives, 199
SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To
my mind, public respondent Commission on Elections
misapplied this concept, of domicile which led to
petitioner's disqualification by ruling that petitioner failed
to comply with the constitutionally mandated one-year
residence requirement. Apparently, public respondent
Commission deemed as conclusive petitioner's stay and
registration as voter in many places as conduct
disclosing her intent to abandon her established domicile
of origin in Tacloban, Leyte. In several decisions,
though, the Court has laid down the rule that registration
of a voter in a place other than his place of origin is not
sufficient to constitute abandonment or loss of such
residence (Faypon v. Quirino, 96 Phil. 294, 300).
Respondent Commission offered no cogent reason to
depart from this rule except to surmise petitioner's intent
of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin
was supplanted by a new domicile due to her marriage,
a domicile by operation of law. The proposition is that
upon the death of her husband in 1989 she retains her
husband's domicile, i.e., Batac, Ilocos Norte, until she
makes an actual change thereof. I find this proposition
quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which
was involuntarily supplanted with another, i.e., Batac,
Ilocos Norte, upon her marriage in 1954 with then
Congressman Marcos. By legal fiction she followed the
domicile of her husband. In my view, the reason for the
law is for the spouses to fully and effectively perform
1 1994. She later transferred to Olot, Tolosa, Leyte (Annex
their marital duties and obligations to one another. The
question of domicile, however, is not affected by the fact
that it was the legal or moral duty of the individual to
reside in a given place (28 C.J.S. §11). Thus, while the
wife retains her marital domicile so long as the marriage
subsists, she automatically loses it upon the latter's
termination, for the reason behind the law then ceases.
Otherwise, petitioner, after her marriage was ended by
the death of her husband, would be placed in a quite
absurd and unfair situation of having been freed from all
wifely obligations yet made to hold on to one which no
longer serves any meaningful purpose.
It is my view therefore that petitioner reverted to her
original domicile of Tacloban, Leyte upon her husband's
death without even signifying her intention to that effect.
It is for the private respondent to prove, not for petitioner
to disprove, that petitioner has effectively abandoned
Tacloban, Leyte for Batac, Ilocos Norte or for some other
place/s. The clear rule is that it is the party (herein
private respondent) claiming that a person has
abandoned or lost his residence of origin who must show
and prove preponderantly such abandonment or loss
(Faypon v. Quirino, supra at 298; 28 C.J.S. §16),
because the presumption is strongly in favor of an
original or former domicile, as against an acquired one
(28 C.J.S. §16). Private respondent unfortunately failed
to discharge this burden as the record is devoid of
convincing proof that petitioner has acquired whether
voluntarily or involuntarily, a new domicile to replace her
domicile of origin.
The records, on the contrary, clearly show that petitioner
has complied with the constitutional one-year residence
requirement. After her exile abroad, she returned to the
Philippines in 1991 to reside in Olot, Tolosa, Leyte, but
the Presidential Commission on Good Government
which sequestered her residential house and other
properties forbade her necessitating her transient stay in
various places in Manila (Affidavit p.6, attached as
Annex I of the Petition). In 1992, she ran for the position
of president writing in her certificate of candidacy her
residence as San Juan, Metro Manila. After her loss
therein, she went back to Tacloban City, acquired her
2
residence certificate and resided with her brother in San
Jose. She resided in San Jose, Tacloban City until
August of 1994 when she was allowed by the PCGG to
move and reside in her sequestered residential house in
3
Olot, Tolosa, Leyte (Annex I, p. 6). It was in the same
month of August when she applied for the cancellation of
her previous registration in San Juan, Metro Manila in
order to register anew as voter of Olot, Tolosa, Leyte,
which she did on January 28, 1995. From this sequence
of events, I find it quite improper to use as the reckoning
period of the one-year residence requirement the date
when she applied for the cancellation of her previous
registration in San Juan, Metro Manila. The fact which
private respondent never bothered to disprove is that
petitioner transferred her residence after the 1992
presidential election from San Juan, Metro Manila to San
Jose, Tacloban City, and resided therein until August of
I, p. 7). It appearing that both Tacloban City and Tolosa,
Leyte are within the First Congressional District of Leyte,
it indubitably stands that she had more than a year of
residence in the constituency she sought to be elected.
Petitioner, therefore, has satisfactorily complied with the
one-year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J., separate opinion:
Petitioner has appealed to this Court for relief after the
COMELEC ruled that she was disqualified from running
for Representative of her District and that, in the event
that she should, nevertheless, muster a majority vote,
her proclamation should be suspended. Not by a
straightforward ruling did the COMELEC pronounce its
decision as has been its unvarying practice in the past,
but by a startling succession of "reverse somersaults."
Indicative of its shifting stance vis-a-vis petitioner's
certificate of candidacy were first, the action of its
Second Division disqualifying her and canceling her
original Certificate of Candidacy by a vote of 2-1 on April
24, 1995; then the denial by the COMELEC en banc of
her Motion for Reconsideration on May 7, 1995, a day
before the election; then because she persisted in
running, its decision on
May 11, 1995 or three days after the election, allowing
her proclamation in the event that the results of the
canvass should show that she obtained the highest
number of votes (obviously noting that petitioner had
won overwhelmingly over her opponent), but almost
simultaneously reversing itself by directing that even if
she wins, her proclamation should nonetheless be
suspended.
Crucial to the resolution of the disqualification issue
presented by the case at bench is the interpretation to
be given to the one-year residency requirement imposed
by the Constitution on aspirants for a Congressional
1 men.
seat.
Bearing in mind that the term "resident" has been held to
be synonymous with "domicile" for election purposes, it
is important to determine whether petitioner's domicile
was in the First District of Leyte and if so, whether she
had resided there for at least a period of one year.
Undisputed is her domicile of origin, Tacloban, where
her parents lived at the time of her birth. Depending on
what theory one adopts, the same may have been
changed when she married Ferdinand E. Marcos, then
domiciled in Batac, by operation of law. Assuming it did,
his death certainly released her from the obligation to
live with him at the residence fixed by him during his
lifetime. What may confuse the layman at this point is
the fact that the term "domicile" may refer to "domicile of
origin," "domicile of choice," or "domicile by operation of
law," which subject we shall not belabor since it has
been amply discussed by the ponente and in the other
separate opinions.
In any case, what assumes relevance is the divergence
of legal opinion as to the effect of the husband's death
on the domicile of the widow. Some scholars opine that
the widow's domicile remains unchanged; that the
deceased husband's wishes perforce still bind the wife
he has left behind. Given this interpretation, the widow
cannot possibly go far enough to sever the domiciliary tie
imposed by her husband.
It is bad enough to interpret the law as empowering the
husband unilaterally to fix the residence or domicile of
2
the family, as laid down in the Civil Code, but to
continue giving obeisance to his wishes even after the
rationale underlying the mutual duty of the spouses to
live together has ceased, is to close one's eyes to the
stark realities of the present.
At the other extreme is the position that the widow
automatically reverts to her domicile of origin upon the
demise of her husband. Does the law so abhor a
vacuum that the widow has to be endowed somehow
with a domicile? To answer this question which is far
from rhetorical, one will have to keep in mind the basic
principles of domicile. Everyone must have a domicile.
Then one must have only a single domicile for the same
purpose at any given time. Once established, a domicile
remains until a new one is acquired, for no person lives
who has no domicile, as defined by the law be is subject
to.
At this juncture, we are confronted with an unexplored
legal terrain in this jurisdiction, rendered more murky by
the conflicting opinions of foreign legal authorities. This
being the state of things, it is imperative as it is
opportune to illumine the darkness with the beacon light
of truth, as dictated by experience and the necessity of
according petitioner her right to choose her domicile in
keeping with the enlightened global trend to recognize
and protect the human rights of women, no less than
Admittedly, the notion of placing women at par with men,
insofar as civil, political and social rights are concerned,
is a relatively recent phenomenon that took seed only in
the middle of this century. It is a historical fact that for
over three centuries, the Philippines had been colonized
by Spain, a conservative, Catholic country which
transplanted to our shores the Old World cultures, mores
and attitudes and values. Through the imposition on our
government of the Spanish Civil Code in 1889, the
people, both men and women, had no choice but to
accept such concepts as the husband's being the head
of the family and the wife's subordination to his authority.
In such role, his was the right to make vital decisions for
the family. Many instances come to mind, foremost
being what is related to the issue before us, namely, that
"the husband shall fix the residence of the
3
family." Because he is made responsible for the
4
support of the wife and the rest of the family, he is also
empowered to be the administrator of the conjugal
5
property, with a few exceptions and may, therefore,
dispose of the conjugal partnership property for the
6
purposes specified under the law; whereas, as a
general rule, the wife cannot bind the conjugal
7
partnership without the husband's consent. As
regards the property pertaining to the children under
parental authority, the father is the legal
administrator and only in his absence may the
8
mother assume his powers. Demeaning to the
wife's dignity are certain strictures on her personal
freedoms, practically relegating her to the position
of minors and disabled persons. To illustrate a few:
The wife cannot, without the husband's consent,
acquire any gratuitous title, except from her
ascendants, descendants, parents-in-law, and
9
collateral relatives within the fourth degree. With
respect to her employment, the husband wields a
veto power in the case the wife exercises her
profession or occupation or engages in business,
provided his income is sufficient for the family,
according to its social standing and his opposition
10
is founded on serious and valid grounds. Most
offensive, if not repulsive, to the liberal-minded is
the effective prohibition upon a widow to get married
till after three hundred days following the death of
her husband, unless in the meantime, she has given
11
birth to a child. The mother who contracts a
subsequent marriage loses the parental authority
over her children, unless the deceased husband,
father of the latter, has expressly provided in his will
that his widow might marry again, and has ordered
that in such case she should keep and exercise
12
parental authority over their children. Again, an
instance of a husband's overarching influence from
beyond the grave.
All these indignities and disabilities suffered by
Filipino wives for hundreds of years evoked no
protest from them until the concept of human rights
and equality between and among nations and
individuals found hospitable lodgment in the United
Nations Charter of which the Philippines was one of
the original signatories. By then, the Spanish
"conquistadores" had been overthrown by the
American forces at the turn of the century. The
bedrock of the U.N. Charter was firmly anchored on
this credo: "to reaffirm faith in the fundamental
human rights, in the dignity and worth of the human
person, in the equal rights of men and women."
(Emphasis supplied)
It took over thirty years before these
egalitarian doctrines bore fruit, owing largely
to the burgeoning of the feminist movement.
What may be regarded as the international
bill of rights for women was implanted in the
Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW)
adopted by the U.N. General Assembly which
entered into force as an international treaty
on September 3, 1981. In ratifying the
instrument, the Philippines bound itself to
implement its liberating spirit and letter, for
its Constitution, no less, declared that "The
Philippines. . . adopts the generally accepted
principles of international law as part of the
law of the land and adheres to the policy of
peace, equality, justice, freedom,
cooperation, and amity with all
13
nations." One such principle embodied in
the CEDAW is granting to men and women
"the same rights with regard to the law
relating to the movement of persons and
the freedom to choose their residence and
14
domicile." (Emphasis supplied).
CEDAW's pro-women orientation which was not lost
on Filipino women was reflected in the 1987
Constitution of the Philippines and later, in the
15
Family Code, both of which were speedily
approved by the first lady President of the country,
Corazon C. Aquino. Notable for its emphasis on the
human rights of all individuals and its bias for
equality between the sexes are the following
provisions: "The State values the dignity of every
human person and guarantees full respect for
16
human rights" and "The State recognizes the role
of women in nation-building, and shall ensure the
fundamental equality before the law of women and
17
men."
A major accomplishment of women in their quest for
equality with men and the elimination of discriminatory
provisions of law was the deletion in the Family Code of
almost all of the unreasonable strictures on wives and
the grant to them of personal rights equal to that of their
husbands. Specifically, the husband and wife are now
given the right jointly to fix the family
18
domicile; concomitant to the spouses' being jointly
responsible for the support of the family is the right and
duty of both spouses to manage the household; the
19
administration and the enjoyment of the community
20
property shall belong to both spouses jointly; the father
and mother shall now jointly exercise legal guardianship
over the property of their unemancipated common
21
child and several others.
Aware of the hiatus and continuing gaps in the law,
insofar as women's rights are concerned, Congress
passed a law popularly known as "Women in
22
Development and Nation Building Act" Among the
rights given to married women evidencing their capacity
to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain
loans and execute security and credit arrangements
under the same conditions as men;
(2) Women shall have equal access to all government
and private sector programs granting agricultural credit,
loans and non material resources and shall enjoy equal
treatment in agrarian reform and land resettlement
programs;
(3) Women shall have equal rights to act as
incorporators and enter into insurance contracts; and
(4) Married women shall have rights equal to those of
married men in applying for passports, secure visas and
other travel documents, without need to secure the
consent of their spouses.
As the world draws the curtain on the Fourth World
Conference of Women in Beijing, let this Court now be
the first to respond to its clarion call that "Women's
Rights are Human Rights" and that "All obstacles to
women's full participation in decision-making at all
levels, including the family" should be removed. Having
been herself a Member of the Philippine Delegation to
the International Women's Year Conference in Mexico in
1975, this writer is only too keenly aware of the
unremitting struggle being waged by women the world
over, Filipino women not excluded, to be accepted as
equals of men and to tear down the walls of
discrimination that hold them back from their proper
places under the sun.
In light of the inexorable sweep of events, local and
global, legislative, executive and judicial, according more
rights to women hitherto denied them and eliminating
whatever pockets of discrimination still exist in their civil,
political and social life, can it still be insisted that widows
are not at liberty to choose their domicile upon the death
of their husbands but must retain the same, regardless?
I submit that a widow, like the petitioner and others
similarly situated, can no longer be bound by the
domicile of the departed husband, if at all she was
before. Neither does she automatically revert to her
domicile of origin, but exercising free will, she may opt to
reestablish her domicile of origin. In returning to
Tacloban and subsequently, to Barangay Olot, Tolosa,
both of which are located in the First District of Leyte,
petitioner amply demonstrated by overt acts, her election
of a domicile of choice, in this case, a reversion to her
domicile of origin. Added together, the time when she set
up her domicile in the two places sufficed to meet the
one-year requirement to run as Representative of the
First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the
petition.
VITUG, J., separate opinion:
The case at bench deals with explicit Constitutional
mandates.
The Constitution is not a pliable instrument. It is a
bedrock in our legal system that sets up ideals and
directions and render steady our strides hence. It only
looks back so as to ensure that mistakes in the past are
not repeated. A compliant transience of a constitution
belittles its basic function and weakens its goals. A
constitution may well become outdated by the realities of
time. When it does, it must be changed but while it
remains, we owe it respect and allegiance. Anarchy,
open or subtle, has never been, nor must it ever be, the
answer to perceived transitory needs, let alone societal
attitudes, or the Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory
in character unless, either by express statement or by
necessary implication, a different intention is manifest
(see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section
6 and Section 17 of Article VI of the fundamental law.
These provisions read:
Sec. 6. No person shall be a Member of
the House of Representatives unless he
is a natural-born citizen of the
Philippines and, on the day of the
election, is at least twenty-five years of
age, able to read and write, and, except
the party-list representatives, a
registered voter in the district in which
he shall be elected, and a resident
thereof for a period of not less than one
year immediately preceding the day of
the election.
Sec. 17. The Senate and the House of
Representatives shall each have an
Electoral Tribunal which shall be the
sole judge of all contests relating to the
election, returns, and qualifications of
their respective Members. Each
Electoral Tribunal shall be composed of
nine Members, three of whom shall be
Justices of the Supreme Court to be
designated by the Chief Justice, and the
remaining six shall be Members of the
Senate or the House of
Representatives, as the case may be,
who shall be chosen on the basis of
proportional representation from the
political parties and the parties or
organizations registered under the
party-list system represented therein.
The senior Justice in the Electoral
Tribunal shall be its Chairman.
The Commission on Election (the "COMELEC") is
constitutionally bound to enforce and administer "all laws
and regulations relative to the conduct of election . . ."
(Art. IX, C, Sec. 2, Constitution) that, there being nothing
said to the contrary, should include its authority to pass
upon the qualification and disqualification prescribed by
law of candidates to an elective office. Indeed, pre-
proclamation controversies are expressly placed under
the COMELEC's jurisdiction to hear and resolve (Art. IX,
C, Sec. 3, Constitution).
The matter before us specifically calls for the
observance of the constitutional one-year residency
requirement. The issue (whether or not there is here
such compliance), to my mind, is basically a question of
fact or at least inextricably linked to such determination.
The findings and judgment of the COMELEC, in
accordance with the long established rule and subject
only to a number of exceptions under the basic heading
of "grave abuse of discretion," are not reviewable by this
Court.
I do not find much need to do a complex exercise on
what seems to me to be a plain matter. Generally, the
term "residence" has a broader connotation that may
mean permanent (domicile), official (place where one's
official duties may require him to stay) or temporary (the
place where he sojourns during a considerable length of
time). For civil law purposes, i.e., as regards the
exercise of civil rights and the fulfillment of civil
obligations, the domicile of a natural person is the place
of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional
Trial Court, Branch 7, Tacloban City (226 SCRA 408,
409); thus:
In election cases, the Court treats
domicile and residence as synonymous
terms, thus: "(t)he term "residence" as
used in the election law is synonymous
with "domicile," which imports not only
an intention to reside in a fixed place but
also personal presence in that place,
coupled with conduct indicative of such
intention." "Domicile" denotes a fixed
permanent residence to which when
absent for business or pleasure, or for
like reasons, one intends to return. . . . .
Residence thus acquired, however, may
be lost by adopting another choice of
domicile. In order, in turn, to acquire a
new domicile by choice, there must
concur (1) residence or bodily presence
in the new locality, (2) an intention to
remain there, and (3) an intention to
abandon the old domicile. In other
words, there must basically be animus
manendi coupled with animus non
revertendi. The purpose to remain in or
at the domicile of choice must be for an
indefinite period of time; the change of
residence must be voluntary; and the
residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that
we can charge the COMELEC with having
committed grave abuse of discretion in its
assailed resolution.
The COMELEC's jurisdiction, in the case of
congressional elections, ends when the jurisdiction of
the Electoral Tribunal concerned begins. It signifies that
the protestee must have theretofore been duly
proclaimed and has since become a "member" of the
Senate or the House of Representatives. The question
can be asked on whether or not the proclamation of a
candidate is just a ministerial function of the Commission
on Elections dictated solely on the number of votes cast
in an election exercise. I believe, it is not. A ministerial
duty is an obligation the performance of which, being
adequately defined, does not allow the use of further
judgment or discretion. The COMELEC, in its particular
case, is tasked with the full responsibility of ascertaining
all the facts and conditions such as may be required by
law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain
from any undue encroachment on the ultimate exercise
of authority by the Electoral Tribunals on matters which,
by no less than a constitutional fiat, are explicitly within
their exclusive domain. The nagging question, if it were
otherwise, would be the effect of the Court's peremptory
pronouncement on the ability of the Electoral Tribunal to
later come up with its own judgment in a contest
"relating to the election, returns and qualification" of its
members.
Prescinding from all the foregoing, I should like to next
touch base on the applicability to this case of Section 6
of Republic Act No. 6646, in relation to Section 72
of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case.
— Any candidate who has been
declared by final judgment to be
disqualified shall not be voted for, and
the votes cast for him shall not be
counted. If for any reason a candidate is
not declared by final judgment before an
election to be disqualified and he is
voted for and receives the winning
number of votes in such election, the
Court or Commission shall continue with
the trial and hearing of the action,
inquiry or protest and, upon motion of
the complainant or any intervenor, may
during the pendency thereof order the
suspension of the proclamation of such
candidate whenever the evidence of his
guilt is strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
 Sec. 72. Effects of disqualification cases
and priority. — The Commission and the
courts shall give priority to cases of
disqualification by reason of violation of
this Act to the end that a final decision
shall be rendered not later than seven
days before the election in which the
disqualification is sought.
Any candidate who has been declared
by final judgment to be disqualified shall
not be voted for, and the votes cast for
him shall not be counted. Nevertheless,
if for any reason, a candidate is not
declared by final, judgment before an
election to be disqualified, and he is
voted for and receives the winning
number of votes in such election, his
violation of the provisions of the
preceding sections shall not prevent his
proclamation and assumption to office.
I realize that in considering the significance of the law, it
may be preferable to look for not so much the specific
instances they ostensibly would cover as the principle
they clearly convey. Thus, I will not scoff at the argument
that it should be sound to say that votes cast in favor of
the disqualified candidate, whenever ultimately declared
as such, should not be counted in his or her favor and
must accordingly be considered to be stray votes. The
argument, nevertheless, is far outweighed by the
rationale of the now prevailing doctrine first enunciated
in the case of Topacio vs. Paredes (23 Phil. 238 [1912])
which, although later abandoned in Ticzon
vs. Comelec (103 SCRA 687 [1981]), and Santos
vs. COMELEC (137 SCRA 740 [1985]), was restored,
along with the interim case of Geronimo vs. Ramos (136
SCRA 435 [1985]), by the Labo (176 SCRA 1
(1989]), Abella (201 SCRA 253 [1991]), Labo (211
SCRA 297 [1992]) and, most recently, Benito (235
SCRA 436 [1994]) rulings. Benito vs. Comelec was a
unanimous decision penned by Justice Kapunan and
concurred in by Chief Justice Narvasa, Justices
Feliciano, Padilla, Bidin, Regalado, Davide, Romero,
Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz
and Bellosillo were on official leave). For easy reference,
let me quote from the first Labo decision:
Finally, there is the question of whether
or not the private respondent, who filed
the quo warranto petition, can replace
the petitioner as mayor. He cannot. The
simple reason is that as he obtained
only the second highest number of votes
in the election, he was obviously not the
choice of the people of Baguio City.
The latest ruling of the Court on this
issue is Santos v. Commission on
Elections, (137 SCRA 740) decided in
1985. In that case, the candidate who
placed second was proclaimed elected
after the votes for his winning rival, who
was disqualified as a turncoat and
considered a non-candidate, were all
disregard as stray. In effect, the second
placer won by default. That decision
was supported by eight members of the
Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin,
Relova, De la Fuente, Alampay and
Aquino, JJ., concurring.) with three
dissenting (Teehankee, Acting C.J.,
Abad Santos and Melencio-Herrera, JJ.)
and another two reserving their vote.
(Plana and Gutierrez, Jr., JJ.) One was
on official leave. (Fernando, C.J.)
Re-examining that decision, the Court
finds, and so holds, that it should be
reversed in favor of the earlier case
of Geronimo v. Ramos, (136 SCRA 435)
which represents the more logical and
democratic rule. That case, which
reiterated the doctrine first announced in
1912 in Topacio v. Paredes, (23 Phil.
238) was supported by ten members of
the Court, (Gutierrez, Jr., ponente, with
Teehankee, Abad Santos, Melencio-
Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ.,
concurring) without any dissent,
although one reserved his vote,
(Makasiar, J.) another took no part,
(Aquino, J.) and two others were on
leave. (Fernando, C.J. and Concepcion,
Jr., J.) There the Court held:
. . . it would be
extremely repugnant to
the basic concept of the
constitutionally
guaranteed right to
suffrage if a candidate
who has not acquired
the majority or plurality
of votes is proclaimed a
winner and imposed as
the representative of a
constituency, the
majority of which have
positively declared
through their ballots that
they do not choose him.
Sound policy dictates
that public elective
offices are filled by
those who have
received the highest
number of votes cast in
the election for that
 office, and it is a
fundamental idea in all
republican forms of
government that no one
can be declared elected
and no measure can be
declared carried unless
he or it receives a
majority or plurality of
the legal votes cast in
the election. (20 Corpus
Juris 2nd, S 243, p.
676.)
The fact that the candidate who
obtained the highest number of votes is
later declared to be disqualified or not
eligible for the office to which he was
elected does not necessarily entitle the
candidate who obtained the second
highest number of votes to be declared
the winner of the elective office. The
votes cast for a dead, disqualified, or
non-eligible person may not be valid to
vote the winner into office or maintain
him there. However, in the absence of a
statute which clearly asserts a contrary
political and legislative policy on the
matter, if the votes were cast in the
sincere belief that the candidate was
alive, qualified, or eligible, they should
not be treated as stray, void or
meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote
for the dismissal of the petition.
MENDOZA, J., separate opinion:
In my view the issue in this case is whether the
Commission on Elections has the power to disqualify
candidates on the ground that they lack eligibility for the
office to which they seek to be elected. I think that it has
none and that the qualifications of candidates may be
questioned only in the event they are elected, by filing a
petition for quo warranto or an election protest in the
appropriate forum, not necessarily in the COMELEC but,
as in this case, in the House of Representatives
Electoral Tribunal. That the parties in this case took part
in the proceedings in the COMELEC is of no moment.
Such proceedings were unauthorized and were not
rendered valid by their agreement to submit their dispute
to that body.
The various election laws will be searched in vain for
authorized proceedings for determining a candidate's
qualifications for an office before his election. There are
none in the Omnibus Election Code (B.P. Blg. 881), in
the Electoral Reforms Law of 1987 (R.A. No. 6646), or in
the law providing for synchronized elections (R.A. No.
7166). There are, in other words, no provisions for pre-
proclamation contests but only election protests or quo
warranto proceedings against winning candidates.
To be sure, there are provisions denominated for
"disqualification," but they are not concerned with a
declaration of the ineligibility of a candidate. These
provisions are concerned with the incapacity (due to
insanity, incompetence or conviction of an offense) of a
person either to be a candidate or to continue as a
candidate for public office. There is also a provision for
the denial or cancellation of certificates of candidacy, but
it applies only to cases involving false representations as
to certain matters required by law to be stated in the
certificates.
These provisions are found in the following parts of the
Omnibus Election Code:
§ 12. Disqualifications. — Any person
who has been declared by competent
authority insane or incompetent, or has
been sentenced by final judgment for
subversion, insurrection, rebellion or for
any offense for which he has been
sentenced to a penalty of more than
eighteen months or for a crime involving
moral turpitude, shall be disqualified to
be a candidate and to hold any office,
unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate
herein provided shall be deemed
removed upon the declaration by
competent authority that said insanity or
incompetence had been removed or
after the expiration of a period of five
years from his service of sentence,
unless within the same period he again
becomes disqualified. (Emphasis
added)
§ 68. Disqualifications. — Any candidate
who, in an action or protest in which he
is a party is declared by final decision of
a competent court guilty of, or found by
the Commission of having (a) given
money or other material consideration to
influence, induce or corrupt the voters or
public officials performing electoral
functions; (b) committed acts of
terrorism to enhance his candidacy; (c)
spent in his election campaign an
amount in excess of that allowed by this
Code; (d) solicited, received or made
any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86
and 261, paragraphs d, e, k, v, and cc,
sub-paragraph 6, shall be
disqualified from continuing as a
 candidate, or if he has been elected,
from holding the office. Any person who
is a permanent resident of or an
immigrant to a foreign country shall not
be qualified to run for any elective office
under this Code, unless said person has
waived his status as permanent resident
or immigrant of a foreign country in
accordance with the residence
requirement provided for in the election
laws. (Emphasis added)
§ 78. Petition to deny due course to or
cancel a certificate of
candidacy. — A verified petition seeking
to deny due course or to cancel a
certificate of candidacy may be filed by
any person exclusively on the ground
that any material representation
contained therein as required under
Section 74 hereof is false. The petition
may be filed at any time not later than
twenty-five days from the time of the
filing of the certificate of candidacy and
shall be decided, after due notice and
hearing, not later than fifteen days
before the election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No.
6646):
§ 6. Effect of Disqualification Case. —
Any candidate who has been declared
by final judgment to be disqualified shall
not be voted for, and the votes cast for
him shall not be counted. If for
any reason a candidate is not declared
by final judgment before an election to
be disqualified and he is voted for and
receives the winning number of votes in
such election, the Court or Commission
shall continue with the trial and hearing
of the action, inquiry or protest and;
upon motion for the complainant or any
intervenor, may during the pendency
thereof order the suspension of the
proclamation of such
candidate whenever the evidence of his
guilt is strong. (Emphasis added).
§ 7. Petition to Deny Due Course to or
Cancel a Certificate of Candidacy. —
The procedure hereinabove provided
shall apply to petitions to deny due
course to or cancel a certificate of
candidacy as provided in Section 78 of
Batas Pambansa Blg. 881.
and the Local Government Code of 1991 (R.A.
No. 7160):
§ 40. Disqualifications. — The following
persons are disqualified from running for
any elective local position:
(a) Those sentenced by final judgment
for an offense involving moral turpitude
or for an offense punishable by one (1)
year or more of imprisonment, within
two (2) years after serving sentence;
(b) Those removed from office as a
result of on administrative case;
(c) Those convicted by final judgment
for violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or
nonpolitical cases here or abroad;
(f) Permanent residents in a foreign
country or those who have acquired the
right to reside abroad and continue to
avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy
Montejo in the COMELEC, while entitled "For
Cancellation and Disqualification," contained no
allegation that private respondent Imelda Romualdez-
Marcos made material representations in her certificate
of candidacy which were false, it sought her
disqualification on the ground that "on the basis of her
Voter Registration Record and Certificate of Candidacy,
[she] is disqualified from running for the position of
Representative, considering that on election day, May 8,
1995, [she] would have resided less than ten (10)
months in the district where she is seeking to be
elected." For its part, the COMELEC's Second Division,
in its resolution of April 24, 1995, cancelled her
certificate of candidacy and corrected certificate of
candidacy on the basis of its finding that petitioner is "not
qualified to run for the position of Member of the House
of Representatives for the First Legislative District of
Leyte" and not because of any finding that she had
made false representations as to material matters in her
certificate of candidacy.
Montejo's petition before the COMELEC was therefore
not a petition for cancellation of certificate of candidacy
under § 78 of the Omnibus Election Code, but
essentially a petition to declare private respondent
ineligible. It is important to note this, because, as will
presently be explained, proceedings under § 78 have for
their purpose to disqualify a person from being
a candidate, whereas quo warranto proceedings have
for their purpose to disqualify a person from
holding public office. Jurisdiction over quo
warranto proceedings involving members of the House
of Representatives is vested in the Electoral Tribunal of
that body.
Indeed, in the only cases in which this Court dealt with
petitions for the cancellation of certificates of candidacy,
the allegations were that the respondent candidates had
made false representations in their certificates of
candidacy with regard to
1 2 3
their citizenship, age, or residence. But in the
generality of cases in which this Court passed upon the
qualifications of respondents for office, this Court did so
4
in the context of election protests or quo
5
warranto proceedings filed after the proclamation of the
respondents or protestees as winners.
Three reasons may be cited to explain the absence of an
authorized proceeding for determining before
election the qualifications of a candidate.
First is the fact that unless a candidate wins and is
proclaimed elected, there is no necessity for determining
his eligibility for the office. In contrast, whether an
individual should be disqualified as a candidate for acts
constituting election offenses (e.g., vote buying, over
spending, commission of prohibited acts) is a prejudicial
question which should be determined lest he wins
because of the very acts for which his disqualification is
being sought. That is why it is provided that if the
grounds for disqualification are established, a candidate
will not be voted for; if he has been voted for, the votes
in his favor will not be counted; and if for some reason
he has been voted for and he has won, either he will not
6
be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidate's
eligibility, e.g., his citizenship or, as in this case, his
domicile, may take a long time to make, extending
beyond the beginning of the term of the office. This is
amply demonstrated in the companion case (G.R. No.
120265, Agapito A. Aquino v. COMELEC) where the
determination of Aquino's residence was still pending in
the COMELEC even after the elections of May 8, 1995.
This is contrary to the summary character of
proceedings relating to certificates of candidacy. That is
why the law makes the receipt of certificates of
candidacy a ministerial duty of the COMELEC and its
7
officers. The law is satisfied if candidates state in their
certificates of candidacy that they are eligible for the
position which they seek to fill, leaving the determination
of their qualifications to be made after the election and
only in the event they are elected. Only in cases
involving charges of false representations made in
certificates of candidacy is the COMELEC given
jurisdiction.
Third is the policy underlying the prohibition against pre-
proclamation cases in elections for President, Vice
President, Senators and members of the House of
Representatives. (R.A. No. 7166, § 15) The purpose is
to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other
Tribunals as "sole judges" under the Constitution of
the election, returns and qualifications of members of
Congress or of the President and Vice President, as the
case may be.
By providing in § 253 for the remedy of quo warranto for
determining an elected official's qualifications after the
results of elections are proclaimed, while being
conspicuously silent about a pre-proclamation remedy
based on the same ground, the Omnibus Election Code,
or OEC, by its silence underscores the policy of not
authorizing any inquiry into the qualifications of
candidates unless they have been elected.
Apparently realizing the lack of an authorized proceeding
for declaring the ineligibility of candidates, the
COMELEC amended its rules on February 15, 1993 so
as to provide in Rule 25, § 1 the following:
Grounds for disqualification. — Any
candidate who does not possess all the
qualifications of a candidate as provided
for by the Constitution or by existing law
or who commits any act declared by law
to be grounds for disqualification may be
disqualified from continuing as a
candidate.
The lack of provision for declaring the ineligibility of
candidates, however, cannot be supplied by a mere rule.
Such an act is equivalent to the creation of a cause of
action which is a substantive matter which the
COMELEC, in the exercise of its rulemaking power
under Art. IX, A, § 6 of the Constitution, cannot do. It is
noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the
right to vote, which essentially involves an inquiry
into qualifications based on age,
residence and citizenship of voters. (Art. IX, C, § 2(3))
The assimilation in Rule 25 of the COMELEC rules of
grounds for ineligibility into grounds for disqualification is
contrary to the evident intention of the law. For not only
in their grounds but also in their consequences are
proceedings for "disqualification" different from those for
a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds
specified in §§ 12 and 68 of the Omnibus Election Code
and in § 40 of the Local Government Code and are for
the purpose of barring an individual from becoming a
candidate or from continuing as a candidate for public
office. In a word, their purpose is to eliminate a
candidate from the race either from the start or during its
progress. "Ineligibility," on the other hand, refers to the
lack of the qualifications prescribed in the Constitution or
the statutes for holding public office and the purpose of
the proceedings for declaration of ineligibility is
to remove the incumbent from office.
Consequently, that an individual possesses the
qualifications for a public office does not imply that he is
not disqualified from becoming a candidate or continuing
as a candidate for a public office and vice versa. We
have this sort of dichotomy in our Naturalization Law.
(C.A. No. 473) That an alien has the qualifications
prescribed in § 2 of the law does not imply that he does
not suffer from any of disqualifications provided in § 4.
Indeed, provisions for disqualifications on the ground
that the candidate is guilty of prohibited election
practices or offenses, like other pre-proclamation
remedies, are aimed at the detestable practice of
"grabbing the proclamation and prolonging the election
8
protest," through the use of "manufactured" election
returns or resort to other trickery for the purpose of
altering the results of the election. This rationale does
not apply to cases for determining a candidate's
qualifications for office before the election. To the
contrary, it is the candidate against whom a proceeding
for disqualification is brought who could be prejudiced
because he could be prevented from assuming office
even though in end he prevails.
To summarize, the declaration of ineligibility of a
candidate may only be sought in an election protest or
action for quo warranto filed pursuant to § 253 of the
Omnibus Election Code within 10 days after his
proclamation. With respect to elective local officials (e.g.,
Governor, Vice Governor, members of the Sangguniang
Panlalawigan, etc.) such petition must be filed either with
the COMELEC, the Regional Trial Courts, or Municipal
Trial Courts, as provided in Art. IX, C, § 2(2) of the
Constitution. In the case of the President and Vice
President, the petition must be filed with the Presidential
Electoral Tribunal (Art. VII, § 4, last paragraph), and in
the case of the Senators, with the Senate Electoral
Tribunal, and in the case of Congressmen, with the
House of Representatives Electoral Tribunal. (Art. VI, §
17) There is greater reason for not allowing before the
election the filing of disqualification proceedings based
on alleged ineligibility in the case of candidates for
President, Vice President, Senators and members of the
House of Representatives, because of the same policy
prohibiting the filing of pre-proclamation cases against
such candidates.
For these reasons, I am of the opinion that the
COMELEC had no jurisdiction over SPA No. 95-009;
that its proceedings in that case, including its questioned
orders, are void; and that the eligibility of petitioner
Imelda Romualdez-Marcos for the office of
Representative of the First District of Leyte may only be
inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the
proceedings of the Commission on Elections in SPA No.
95-009, including its questioned orders doted April 24,
1995, May 7, 1995, May 11, 1995 and May 25, 1995,
declaring petitioner Imelda Romualdez-Marcos ineligible
and ordering her proclamation as Representative of the
First District of Leyte suspended. To the extent that Rule
25 of the COMELEC Rules of Procedure authorizes
proceedings for the disqualification of candidates on the
ground of ineligibility for the office, it should considered
void.
The provincial board of canvassers should now proceed
with the proclamation of petitioner.
Narvasa, C.J., concurs.
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as
expressed in the well-written ponencia of Mr. Justice
Kapunan.
As in any controversy arising out of a Constitutional
provision, the inquiry must begin and end with the
provision itself. The controversy should not be blurred by
what, to me, are academic disquisitions. In this particular
controversy, the Constitutional provision on point states
that — "no person shall be a member of the House of
Representatives unless he is a natural-born citizen of the
Philippines, and on the day of the election, is at least
twenty-five (25) years of age, able to read and write, and
except the party list representatives, a registered voter in
the district in which he shall be elected, and a resident
thereof for a period of not less than one year
immediately preceding the day of the election." (Article
VI, section 6)
It has been argued that for purposes of our election
laws, the term residence has been understood as
synonymous with domicile. This argument has been
validated by no less than the Court in numerous
1
cases where significantly the factual
circumstances clearly and convincingly proved that a
person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with
his personal presence in the place, coupled with conduct
indicative of such intention.
With this basic thesis in mind, it would not be difficult to
conceive of different modalities within which the phrase
"a resident thereof (meaning, the legislative district) for a
period of not less than one year" would fit.
The first instance is where a person's residence and
domicile coincide in which case a person only has to
prove that he has been domiciled in a permanent
location for not less than a year before the election.
A second situation is where a person maintains a
residence apart from his domicile in which case he
would have the luxury of district shopping, provided of
course, he satisfies the one-year residence period in the
district as the minimum period for eligibility to the
position of congressional representative for the district.
In either case, one would not be constitutionally
disqualified for abandoning his residence in order to
return to his domicile of origin, or better still, domicile of
choice; neither would one be disqualified for abandoning
altogether his domicile in favor of his residence in the
district where he desires to be a candidate.
The most extreme circumstance would be a situation
wherein a person maintains several residences in
different districts. Since his domicile of origin continues
as an option as long as there is no effective
abandonment (animus non revertendi), he can
practically choose the district most advantageous for
him.
All these theoretical scenarios, however, are tempered
by the unambiguous limitation that "for a period of not
less than one year immediately preceding the day of the
election", he must be a resident in the district where he
desires to be elected.
To my mind, the one year residence period is crucial
regardless of whether or not the term "residence" is to
be synonymous with "domicile." In other words, the
candidate's intent and actual presence in one district
must in all situations satisfy the length of time prescribed
by the fundamental law. And this, because of a definite
Constitutional purpose. He must be familiar with the
environment and problems of a district he intends to
represent in Congress and the one-year residence in
said district would be the minimum period to acquire
such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative
facts are distinctly set out in the now assailed decision of
the Comelec 2nd Division dated 24 April 1995 (as
affirmed by the Comelec en banc) —
In or about 1938 when respondent was
a little over 8 years old, she established
her domicile in Tacloban, Leyte
(Tacloban City). She studied in the Holy
Infant Academy in Tacloban from 1938
to 1948 when she graduated from high
school. She pursued her college studies
in St. Paul's College, now Divine Word
University of Tacloban, where she
earned her degree in Education.
Thereafter, she taught in the Leyte
Chinese High School, still in Tacloban
City. In 1952 she went to Manila to work
with her cousin, the late Speaker Daniel
Z. Romualdez in his office in the House
of Representatives. In 1954, she
married ex-president Ferdinand Marcos
when he was still a congressman of
Ilocos Norte. She lived with him in
Batac, Ilocos Norte and registered there
as a voter. When her husband was
elected Senator of the Republic in 1959,
she and her husband lived together in
San Juan, Rizal where she registered as
a voter. In 1965 when her husband was
elected President of the Republic of the
Philippines, she lived with him in
Malacanang Palace and registered as a
voter in San Miguel, Manila.
During the Marcos presidency,
respondent served as a Member of the
Batasang Pambansa, Minister of Human
Settlements and Governor of Metro
Manila. She claimed that in February
1986, she and her family were abducted
and kidnapped to Honolulu, Hawaii. In
November 1991, she came home to
Manila. In 1992 respondent ran for
election as President of the Philippines
and filed her Certificate of Candidacy
wherein she indicated that she is a
resident and registered voter of San
Juan, Metro Manila. On August 24,
1994, respondent filed a letter with the
election officer of San Juan, Metro
Manila, requesting for cancellation of
her registration in the Permanent List of
Voters in Precinct No. 157 of San Juan,
Metro Manila, in order that she may be
re-registered or transferred to Brgy.
Olot, Tolosa, Leyte. (Annex 2-B,
Answer). On August 31, 1994,
respondent filed her Sworn Application
for Cancellation of Voter's Previous
Registration (Annex 2-C, Answer)
stating that she is a duly registered voter
in 157-A, Brgy. Maytunas, San Juan,
Metro that she intends to register at
Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent
registered as a voter at Precinct No. 18-
A of Olot, Tolosa, Leyte. She filed with
the Board of Election Inspectors CE
Form No. 1, Voter Registration Record
No. 94-3349772, wherein she alleged
that she has resided in the municipality
of Tolosa for a period of 6 months
(Annex A, Petition).
On March 8, 1995, respondent filed with
the Office of the Provincial Election
Supervisor, Leyte, a Certificate of
Candidacy for the position of
Representative of the First District of
Leyte wherein she also alleged that she
has been a resident in the constituency
where she seeks to be elected for a
period of 7 months. The pertinent
entries therein are as follows:
7.
PROFE
SSION 10. I
OR AM
OCCU NOT A
PATIO PERMA
N: NENT
House- RESID
wife/ ENT
Teache OF, OR
r/ IMMIG
Social RANT
Worker TO, A
FOREI
8. GN
RESID COUNT
ENCE RY.
(comple
te THAT I AM ELIGIBLE for said office;
address That I will support and defend the
): Brgy. Constitution of the Republic of the
Olot, Philippines and will maintain true faith
Tolosa, and allegiance thereto; That I will obey
Leyte the laws, legal orders and decrees
promulgated by the duly-constituted
Post authorities; That the obligation imposed
Office by my oath is assumed voluntarily,
Addres without mental reservation or purpose of
s for evasion; and That the facts stated
election herein are true to the best of my
purpos knowledge.
es:
Brgy.
Olot,
Tolosa,
Leyte

9.
RESID
ENCE
IN THE
CONST
ITUEN
CY
WHER
EIN I
SEEK
TO BE
ELECT
ED
IMMED
IATELY
PRECE
DING
ELECTI
ON:
______
__
Years S
even M
onths

Petitioner's aforestated certificate of candidacy filed on 8
March 1995 contains the decisive component or seed of
her disqualification. It is contained in her answer under
oath of "seven months" to the query of "residence in the
constituency wherein I seek to be elected immediately
preceding the election."
It follows from all the above that the Comelec committed
no grave abuse of discretion in holding that petitioner is
disqualified from the position of representative for the 1st
congressional district of Leyte in the elections of
8 May 1995, for failure to meet the "not less than one-
year residence in the constituency (1st district, Leyte)
immediately preceding the day of election
(8 May 1995)."
Having arrived at petitioner's disqualification to be a
representative of the first district of Leyte, the next
important issue to resolve is whether or not the Comelec
can order the Board of Canvassers to determine and
proclaim the winner out of the remaining
qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this
Court in the case of Labo vs. Comelec, G.R. 86564,
August 1, 1989, 176 SCRA 1 which gave the rationale
as laid down in the early 1912 case of Topacio
vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public
elective offices are filled by those who
have received the 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
S
i
measure can be declared carried unless
g or it receives a majority or plurality of
he
n legal votes cast in the election. (20
the
a
Corpus Juris 2nd, S 243, p. 676)
t
u
The fact that the candidate who
robtained the highest number of votes is
e
later declared to be disqualified or not
eligible for the office to which he was
o
elected does not necessarily entitle the
fcandidate who obtained the second
highest number of votes to be declared
C
the winner of the elective office. The
a
votes cast for a dead, disqualified, or
n
non-eligible person may not be valid to
d
vote the winner into office or maintain
i
him there. However, in the absence of a
d
statute which clearly asserts a contrary
a
political and legislative policy on the
tmatter, if the votes were cast in the
e
sincere belief that the candidate was
)alive, qualified, or eligible, they should
2
not be treated as stray, void or
meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional
Reforms in the Electoral System and for other purposes)
(84 O.G. 905, 22 February 1988) it is provided that:
. . . — Any candidate who has been
declared by final judgment to be
disqualified shall not be voted for, and
the votes cast for him shall not be
counted. If for any reason a candidate is
not declared by final judgment before an
election to be disqualified and he is
voted for and receives the winning
number of votes in such election, the
Court or Commission shall continue with
the trial and hearing of the action,
inquiry or protest and, upon motion of
the complainant or any intervenor, may,
during the pendency thereof order the
suspension of the proclamation of such
candidate whenever the evidence of his
guilt is strong.
There is no need to indulge in legal hermeneutics to
sense the plain and unambiguous meaning of the
provision quoted above. As the law now stands, the
legislative policy does not limit its concern with the effect
of a final judgement of disqualification only before the
election, but even during or after the election. The law is
clear that in all situations, the votes cast for a
disqualified candidate SHALL NOT BE COUNTED. The
law has also validated the jurisdiction of the Court or
Commission on Election to continue hearing the petition
for disqualification in case a candidate is voted for and
receives the highest number of votes, if for any reason,
he is not declared by final judgment before an election to
be disqualified.
Since the present case is an after election scenario, the
power to suspend proclamation (when evidence of his
guilt is strong) is also explicit under the law. What
happens then when after the elections are over, one is
declared disqualified? Then, votes cast for him "shall not
be counted" and in legal contemplation, he no longer
received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not
make the second placer the winner simply because a
"winning candidate is disqualified," but that the law
considers him as the candidate who had obtained the
highest number of votes as a result of the votes cast for
the disqualified candidate not being counted or
considered.
As this law clearly reflects the legislative policy on the
matter, then there is no reason why this Court should not
re-examine and consequently abandon the doctrine in
the Jun Labo case. It has been stated that "the
qualifications prescribed for elective office cannot be
erased by the electorate alone. The will of the people as
expressed through the ballot cannot cure the vice of
ineligibility" most especially when it is mandated by no
less than the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to
order the Provincial Board of Canvassers of Leyte to
proclaim the candidate receiving the highest number of
votes, from among the qualified candidates, as the duly
elected representative of the 1st district of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
While I agree with same of the factual bases of the
majority opinion, I cannot arrive conjointly at the same
conclusion drawn therefrom Hence, this dissent which
assuredly is not formulated "on the basis of the
personality of a petitioner in a case."
I go along with the majority in their narration of
antecedent facts, insofar as the same are pertinent to
this case, and which I have simplified as follows:
1. Petitioner, although born in Manila,
resided during her childhood in the
present Tacloban City, she being a
legitimate daughter of parents who
appear to have taken up permanent
residence therein. She also went to
school there and, for a time, taught in
one of the schools in that city.
2. When she married then Rep.
Ferdinand E. Marcos who was then
domiciled in Batac, Ilocos Norte, by
operation of law she acquired a new
domicile in that place in 1954.
3. In the successive years and during
the events that happened thereafter, her
husband having been elected as a
Senator and then as President, she
lived with him and their family in San
Juan, Rizal and then in Malacanang
Palace in San Miguel, Manila.
4. Over those years, she registered as a
voter and actually voted in Batac, Ilocos
Norte, then in San Juan, Rizal, and also
in San Miguel, Manila, all these merely
in the exercise of the right of suffrage.
5. It does not appear that her husband,
even after he had assumed those lofty
positions successively, ever abandoned
his domicile of origin in Batac, Ilocos
Norte where he maintained his
residence and invariably voted in all
elections.
6. After the ouster of her husband from
the presidency in 1986 and the sojourn
of the Marcos family in Honolulu,
Hawaii, U.S.A., she eventually returned
to the Philippines in 1991 and resided in
different places which she claimed to
have been merely temporary
residences.
7. In 1992, petitioner ran for election as
President of the Philippines and in her
certificate of candidacy she indicated
that she was then a registered voter and
resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter
for the cancellation of her registration in
the Permanent List of Voters in Precinct
No. 157 of San Juan, Metro Manila in
order that she may "be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte."
On August 31, 1994, she followed this
up with her Sworn Application for
Cancellation of Voter's Previous
Registration wherein she stated that she
was a registered voter in Precinct No.
157-A, Brgy. Maytunas, San Juan,
Metro Manila and that she intended to
register in Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner
registered as a voter at Precinct No. 18-
A of Olot, Tolosa, Leyte, for which
purpose she filed with the therein Board
of Election Inspectors a voter's
 registration record form alleging that she
had resided in that municipality for six
months.
10. On March 8, 1995, petitioner filed
her certificate of candidacy for the
position of Representative of the First
District of Leyte wherein she alleged
that she had been a resident for
"Seven Months" of the constituency
where she sought to be elected.
11. On March 29, 1995, she filed an
"Amended/Corrected Certificate of
Candidacy" wherein her answer in the
original certificate of candidacy to item
"8. RESIDENCE IN THE
CONSTITUENCY WHERE I SEEK, TO
BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION:" was
changed or replaced with a new entry
reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of
her candidacy, petitioner had complied with the
residency requirement of one year as mandated by no
less than Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues
with a dissertation on the difference between residence
and domicile. We have had enough of that and I
understand that for purposes of political law and, for that
matter of international law, residence is understood to be
synonymous with domicile. That is so understood in our
jurisprudence and in American Law, in contradistinction
to the concept of residence for purposes of civil,
commercial and procedural laws whenever an issue
thereon is relevant or controlling.
Consequently, since in the present case the question of
petitioner's residence is integrated in and inseparable
from her domicile, I am addressing the issue from the
standpoint of the concept of the latter term, specifically
its permutations into the domicile of origin, domicile of
choice and domicile by operation of law, as understood
in American law from which for this case we have taken
our jurisprudential bearings.
My readings inform me that the domicile of the parents
at the time of birth, or what is termed the "domicile of
origin," constitutes the domicile of an infant until
abandoned, or until the acquisition of a new domicile in a
1 To get out of this quandary, the majority decision echoes
different place. In the instant case, we may grant that
2 the dissenting opinion of Commissioner Regalado E.
petitioner's domicile of origin, at least as of 1938, was
what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be of
three kinds, that is, domicile by birth, domicile by choice,
and domicile by operation of law. The first is the
common case of the place of birth or domicilium originis,
the second is that which is voluntarily acquired by a
party or domicilium propio motu; the last which is
3
consequential, as that of a wife arising from marriage, is
sometimes called domicilium necesarium. There is no
debate that the domicile of origin can be lost or replaced
by a domicile of choice or a domicile by operation of law
subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then
Rep. Marcos, by operation of law, not only international
4
or American but of our own enactment, she acquired
her husband's domicile of origin in Batac, Ilocos Norte
and correspondingly lost her own domicile of origin in
Tacloban City.
Her subsequent changes of residence — to San Juan,
Rizal, then to San Miguel, Manila, thereafter to Honolulu,
Hawaii, and back to now San Juan, Metro Manila — do
not appear to have resulted in her thereby acquiring new
domiciles of choice. In fact, it appears that her having
resided in those places was by reason of the fortunes or
misfortunes of her husband and his peregrinations in the
assumption of new official positions or the loss of them.
Her residence in Honolulu and, of course, those after her
return to the Philippines were, as she claimed, against
her will or only for transient purposes which could not
have invested them with the status of domiciles of
5
choice.
After petitioner's return to the Philippines in 1991 and up
to the present imbroglio over her requisite residency in
Tacloban City or Olot, Tolosa, Leyte, there is no showing
that she ever attempted to acquire any other domicile of
choice which could have resulted in the abandonment of
her legal domicile in Batac, Ilocos Norte. On that score,
6
we note the majority's own submission that, to
successfully effect a change of domicile, one must
demonstrate (a) an actual removal or an actual change
of domicile, (b) a bona fide intention of abandoning the
former place of residence and establishing a new one,
and (c) acts which correspond with the purpose.
We consequently have to also note that these
requirements for the acquisition of a domicile of choice
apply whether what is sought to be changed or
substituted is a domicile of origin (domicilium originis) or
a domicile by operation of law (domicilium necesarium).
Since petitioner had lost her domicilium originis which
had been replaced by her domicilium necesarium, it is
therefore her continuing domicile in Batac, Ilocos Norte
which, if at all, can be the object of legal change under
the contingencies of the case at bar.
Maambong in SPA 95-009 of the Commission on
7
Elections, and advances this novel proposition.
It may be said that petitioner lost her
domicile of origin by operation of law as
a result of her marriage to the late
President Ferdinand E. Marcos in 1952
 (sic, 1954). By operation of law
(domicilium necesarium), her legal
domicile at the time of her marriage
became Batac, Ilocos Norte although
there were no indications of an intention
on her part to abandon her domicile of
origin. Because of her husband's
subsequent death and through the
operation of the provisions of the New
Family Code already in force at the time,
however, her legal domicile
automatically reverted to her domicile of
origin. . . . (Emphasis supplied).
Firstly, I am puzzled why although it is conceded that
petitioner had acquired a domicilium necesarium in
Batac, Ilocos Norte, the majority insists on making a
qualification that she did not intend to abandon her
domicile of origin. I find this bewildering since, in this
situation, it is the law that declares where petitioner's
domicile is at any given time, and not her self-serving or
putative intent to hold on to her former domicile.
Otherwise, contrary to their own admission that one
8 9
cannot have more than one domicile at a time, the
majority would be suggesting that petitioner retained
Tacloban City as (for lack of a term in law since it does
not exist therein) the equivalent of what is fancied as a
reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can
only be recovered likewise in accordance with law.
However, we are here being titillated with the possibility
of an automatic reversion to or reacquisition of a
domicile of origin after the termination of the cause for its
loss by operation of law. The majority agrees that since
petitioner lost her domicile of origin by her marriage, the
termination of the marriage also terminates that effect
thereof. I am impressed by the ingeniousness of this
theory which proves that, indeed, necessity is the mother
of inventions. Regretfully, I find some difficulty in
accepting either the logic or the validity of this argument.
If a party loses his domicile of origin by obtaining a new
domicile of choice, he thereby voluntarily abandons the
former in favor of the latter. If, thereafter, he abandons
that chosen domicile, he does not per se recover his
original domicile unless, by subsequent acts legally
indicative thereof, he evinces his intent and desire to
establish the same as his new domicile, which is
precisely what petitioner belatedly and, evidently just for
purposes of her candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of
choice cannot automatically restore his domicile of
origin, not only because there is no legal authority
therefor but because it would be absurd Pursued to its
logical consequence, that theory of ipso jure reversion
would rule out the fact that said party could already very
well have obtained another domicile, either of choice or
by operation of law, other than his domicile of origin.
Significantly and obviously for this reason, the Family
Code, which the majority inexplicably invokes, advisedly
does not regulate this contingency since it would
impinge on one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily
abandoned her domicile of choice (unless we assume
that she entered into the marital state against her will)
but, on top of that, such abandonment was further
affirmed through her acquisition of a new domicile
by operation of law. In fact, this is even a case of
both voluntary and legal abandonment of a domicile of
origin. With much more reason, therefore, should we
reject the proposition that with the termination of her
marriage in 1989, petitioner had supposedly per
se and ipso facto reacquired her domicile of origin which
she lost in 1954. Otherwise, this would be tantamount to
saying that during the period of marital coverture, she
was simultaneously in possession and enjoyment of a
domicile of origin which was only in a state of suspended
animation.
Thus, the American rule is likewise to the effect that
while after the husband's death the wife has the right to
elect her own domicile, she nevertheless retains the last
domicile of her deceased husband until she makes an
10
actual change. In the absence of affirmative evidence,
to the contrary, the presumption is that a wife's domicile
or legal residence follows that of her husband and will
11
continue after his death.
I cannot appreciate the premises advanced in support of
the majority's theory based on Articles 68 and 69 of the
Family Code. All that is of any relevance therein is that
under this new code, the right and power to fix the family
domicile is now shared by the spouses. I cannot
perceive how that joint right, which in the first place was
never exercised by the spouses, could affect the
domicile fixed by the law for petitioner in 1954 and, for
her husband, long prior thereto. It is true that a wife now
has the coordinate power to determine
the conjugal or family domicile, but that has no bearing
on this case. With the death of her husband, and each of
her children having gotten married and established their
own respective domiciles, the exercise of that joint
power was and is no longer called for or material in the
present factual setting of this controversy. Instead, what
is of concern in petitioner's case was the matter of her
having acquired or not her own domicile of choice.
I agree with the majority's discourse on the virtues of the
growing and expanded participation of women in the
affairs of the nation, with equal rights and recognition by
Constitution and statutory conferment. However, I have
searched in vain for a specific law or judicial
pronouncement which either expressly or by necessary
implication supports the majority's desired theory of
automatic reacquisition of or reversion to the domicilium
originis of petitioner. Definitely, as between
the settled and desirable legal norms that should govern
this issue, there is a world of difference; and,
unquestionably, this should be resolved by legislative
articulation but not by the eloquence of the well-turned
phrase.
In sum, petitioner having lost Tacloban City as her
domicile of origin since 1954 and not having
automatically reacquired any domicile therein, she
cannot legally claim that her residency in the political
constituency of which it is a part continued since her
birth up to the present. Respondent commission was,
therefore, correct in rejecting her pretension to that effect
in her amended/corrected certificate of candidacy, and in
holding her to her admission in the original certificate
that she had actually resided in that constituency for only
seven months prior to the election. These considerations
render it unnecessary to further pass upon the
procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS
the petition for lack of merit.
DAVIDE, JR., J., dissenting:
I respectfully dissent from the opinion of the majority
written by Mr. Justice Santiago M. Kapunan, more
particularly on the issue of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the
Constitution, decisions, orders, or rulings of the
COMELEC may be brought to this Court only by the
special civil action for certiorari under Rule 65 of the
Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251
[1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the
COMELEC has acted without or in excess of jurisdiction
or with grave abuse of discretion (Section 1, Rule 65,
Rules of Court). Since the COMELEC has, undoubtedly,
jurisdiction over the private respondent's petition, the
only issue left is whether it acted with grave abuse of
discretion in disqualifying the petitioner.
My careful and meticulous perusal of the challenged
resolution of 24 April 1995 of the COMELEC Second
Division and the En Banc resolution of 7 May 1995
discloses total absence of abuse of discretion, much less
grave abuse thereof. The resolution of the Second
Division dispassionately and objectively discussed in
minute details the facts which established beyond cavil
that herein petitioner was disqualified as a candidate on
the ground of lack of residence in the First
Congressional District of Leyte. It has not misapplied,
miscomprehended, or misunderstood facts or
circumstances of substance pertinent to the issue of her
residence.
The majority opinion, however, overturned the
COMELEC's findings of fact for lack of proof that the
petitioner has abandoned Tolosa as her domicile of
origin, which is allegedly within the First Congressional
District of Leyte.
I respectfully submit that the petitioner herself has
provided the COMELEC, either by admission or by
documentary evidence, overwhelming proof of the loss
or abandonment of her domicile of origin, which is
Tacloban City and not Tolosa, Leyte. Assuming that she
decided to live again in her domicile of origin, that
became her second domicile of choice, where her stay,
unfortunately, was for only seven months before the day
of the election. She was then disqualified to be a
candidate for the position of Representative of the First
Congressional District of Leyte. A holding to the contrary
would be arbitrary.
It may indeed be conceded that the petitioner's domicile
of choice was either Tacloban City or Tolosa, Leyte.
Nevertheless, she lost it by operation of law sometime in
May 1954 upon her marriage to the then Congressman
(later, President) Ferdinand E. Marcos. A domicile by
operation of law is that domicile which the law attributes
to a person, independently of his own intention or actual
residence, as results from legal domestic relations as
that of the wife arising from marriage (28 C.J.S. Domicile
§ 7, 11). Under the governing law then, Article 110 of the
Civil Code, her new domicile or her domicile of choice
was the domicile of her husband, which was Batac,
Ilocos Norte. Said Article reads as follows:
Art. 110. The husband shall fix the
residence of the family. But the court
may exempt the wife from living with the
husband if he should live abroad unless
in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino
states:
Although the duty of the spouses to live
together is mutual, the husband has a
predominant right because he is
empowered by law to fix the family
residence. This right even predominates
over some rights recognized by law in
the wife. For instance, under article 117
the wife may engage in business or
practice a profession or occupation. But
because of the power of the husband to
fix the family domicile he may fix it at
such a place as would make it
impossible for the wife to continue in
business or in her profession. For
justifiable reasons, however, the wife
may be exempted from living in the
residence chosen by the husband. The
husband cannot validly allege desertion
by the wife who refuses to follow him to
a new place of residence, when it
appears that they have lived for years in
a suitable home belonging to the wife,
and that his choice of a different home is
not made in good faith. (Commentaries
 and Jurisprudence on the Civil Code of
the Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses
her own domicile and, by operation of law, acquires that
of her husband, no matter where the wife actually lives
or what she believes or intends. Her domicile is fixed in
the sense that it is declared to be the same as his, and
subject to certain limitations, he can change her domicile
by changing his own (25 Am Jur 2d Domicile § 48, 37).
It must, however, be pointed out that under Article 69 of
the Family Code, the fixing of the family domicile is no
longer the sole prerogative of the husband, but is now a
joint decision of the spouses, and in case of
disagreement the court shall decide. The said article
uses the term "family domicile," and not family
residence, as "the spouses may have multiple
residences, and the wife may elect to remain in one of
such residences, which may destroy the duty of the
spouses to live together and its corresponding benefits"
(ALICIA V. SEMPIO-DIY, Handbook on the Family Code
of the Philippines, [1988], 102).
The theory of automatic restoration of a woman's
domicile of origin upon the death of her husband, which
the majority opinion adopts to overcome the legal effect
of the petitioner's marriage on her domicile, is
unsupported by law and by jurisprudence. The settled
doctrine is that after the husband's death the wife has a
right to elect her own domicile, but she retains the last
domicile of her husband until she makes an actual
change (28 C.J.S. Domicile § 12, 27). Or, on the death
of the husband, the power of the wife to acquire her own
domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his
death (25 Am Jur 2d Domicile § 62, 45). Note that what
is revived is not her domicile of origin but her power to
acquire her own domicile.
Clearly, even after the death of her husband, the
petitioner's domicile was that of her husband at the time
of his death — which was Batac, Ilocos Norte, since their
residences in San Juan, Metro Manila, and San Miguel,
Manila, were their residences for convenience to enable
her husband to effectively perform his official duties.
Their residence in San Juan was a conjugal home, and it
was there to which she returned in 1991 when she was
already a widow. In her sworn certificate of candidacy for
the Office of the President in the synchronized elections
of May 1992, she indicated therein that she was a
resident of San Juan, Metro Manila. She also voted in
the said elections in that place.
On the basis of her evidence, it was only on 24 August
1994 when she exercised her right as a widow to acquire
her own domicile in Tolosa, Leyte, through her sworn
statement requesting the Election Officer of San Juan,
Metro Manila, to cancel her registration in the permanent
list of voters in Precinct 157 thereat and praying that she
be "re-registered or transferred to Brgy. Olot, Tolosa,
Leyte, the place of [her] birth and permanent residence"
(photocopy of Exhibit "B," attached as Annex "2" of
private respondent Montejo's Comment). Notably, she
contradicted this sworn statement regarding her place of
birth when, in her Voter's Affidavit sworn to on 15 March
1992 (photocopy of Exhibit "C," attached as Annex
"3," Id.), her Voter Registration Record sworn to on 28
January 1995 (photocopy of Exhibit "E," attached as
Annex "5," Id.), and her Certificate of Candidacy sworn
to on 8 March 1995 (photocopy of Exhibit "A," attached
as Annex "1," Id.), she solemnly declared that she was
born in Manila.
The petitioner is even uncertain as to her domicile of
origin. Is it Tacloban City or Tolosa, Leyte? In the
affidavit attached to her Answer to the petition for
disqualification (Annex "I" of Petition), she declared
under oath that her "domicile or residence is Tacloban
City." If she did intend to return to such domicile or
residence of origin why did she inform the Election
Officer of San Juan that she would transfer to Olot,
Tolosa, Leyte, and indicate in her Voter's Registration
Record and in her certificate of candidacy that her
residence is Olot, Tolosa, Leyte? While this uncertainty
is not important insofar as residence in the
congressional district is concerned, it nevertheless
proves that forty-one years had already lapsed since she
had lost or abandoned her domicile of origin by virtue of
marriage and that such length of time diminished her
power of recollection or blurred her memory.
I find to be misplaced the reliance by the majority opinion
on Faypon vs. Quirino (96 Phil. 294 [1954]), and the
subsequent cases which established the principle that
absence from original residence or domicile of origin to
pursue studies, practice one's profession, or engage in
business in other states does not constitute loss of such
residence or domicile. So is the reliance on Section 117
of the Omnibus Election Code which provides that
transfer of residence to any other place by reason of
one's "occupation; profession; employment in private
and public service; educational activities; work in military
or naval reservations; service in the army, navy or air
force, the constabulary or national police force; or
confinement or detention in government institutions in
accordance with law" is not deemed as loss of original
residence. Those cases and legal provision do not
include marriage of a woman. The reason for the
exclusion is, of course, Article 110 of the Civil Code. If it
were the intention of this Court or of the legislature to
consider the marriage of a woman as a circumstance
which would not operate as an abandonment of domicile
(of origin or of choice), then such cases and legal
provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-
serving claim of the petitioner in her affidavit (Annex "A"
of her Answer in COMELEC SPA No. 95-009; Annex "I"
of Petition) that her "domicile or residence of origin is
Tacloban City," and that she "never intended to abandon
this domicile or residence of origin to which [she] always
intended to return whenever absent." Such a claim of
intention cannot prevail over the effect of Article 110 of
the Civil Code. Besides, the facts and circumstances or
the vicissitudes of the petitioner's life after her marriage
in 1954 conclusively establish that she had indeed
abandoned her domicile of origin and had acquired a
new one animo et facto (KOSSUTH KENT KENNAN, A
Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the
petitioner's claim that she "merely committed an honest
mistake" in writing down the word "seven" in the space
provided for the residency qualification requirement in
the certificate of candidacy. Such a claim is self-serving
and, in the light of the foregoing disquisitions, would be
all sound and fury signifying nothing. To me, she did not
commit any mistake, honest or otherwise; what she
stated was the truth.
The majority opinion also disregards a basic rule in
evidence that he who asserts a fact or the affirmative of
an issue has the burden of proving it (Imperial Victory
Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T.
Cerna Corp. vs. Court of Appeals, 221 SCRA 19 [1993]).
Having admitted marriage to the then Congressman
Marcos, the petitioner could not deny the legal
consequence thereof on the change of her domicile to
that of her husband. The majority opinion rules or at
least concludes that "[b]y operation of law (domicilium
necesarium), her legal domicile at the time of her
marriage automatically became Batac, Ilocos Norte."
That conclusion is consistent with Article 110 of the Civil
Code. Since she is presumed to retain her deceased
husband's domicile until she exercises her revived
power to acquire her own domicile, the burden is upon
her to prove that she has exercised her right to acquire
her own domicile. She miserably failed to discharge that
burden.
I vote to deny the petition.
Separate Opinions
PUNO, J., concurring:
It was Aristotle who taught mankind that things that are
alike should be treated alike, while things that are
unalike should be treated unalike in proportion to their
1 children subject to parental authority
unalikeness. Like other candidates, petitioner has
clearly met the residence requirement provided by
2
Section 6, Article VI of the Constitution. We cannot
disqualify her and treat her unalike, for the Constitution
guarantees equal protection of the law. I proceed from
the following factual and legal propositions:
First. There is no question that petitioner's original
domicile is in Tacloban, Leyte. Her parents were
domiciled in Tacloban. Their ancestral house is in
Tacloban. They have vast real estate in the place.
Petitioner went to school and thereafter worked there. I
consider Tacloban as her initial domicile, both her
domicile of origin and her domicile of choice. Her
domicile of origin as it was the domicile of her parents
when she was a minor; and her domicile of choice, as
she continued living there even after reaching the age of
majority.
Second. There is also no question that in May, 1954,
petitioner married the late President Ferdinand E.
Marcos. By contracting marriage, her domicile became
subject to change by law, and the right to change it was
given by Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the
residence of the family. But the court
may exempt the wife from living with the
husband if he should live abroad unless
in the service of the
3
Republic. (Emphasis supplied)
4
In De la Viña v. Villareal and Geopano, this
Court explained why the domicile of the wife
ought to follow that of the husband. We held:
"The reason is founded upon the theoretic
identity of person and interest between the
husband and the wife, and the presumption that,
from the nature of the relation, the home of one
is the home of the other. It is intended to
promote, strengthen, and secure their interests
in this relation, as it ordinarily exists, where
5
union and harmony prevail." In accord with this
objective, Article 109 of the Civil Code also
obligated the husband and wife "to live
together."
Third. The difficult issues start as we determine whether
petitioner's marriage to former President Marcos ipso
facto resulted in the loss of her Tacloban domicile. I
respectfully submit that her marriage by itself alone did
not cause her to lose her Tacloban domicile. Article 110
of the Civil Code merely gave the husband the right to fix
the domicile of the family. In the exercise of the right, the
husband may explicitly choose the prior domicile of his
wife, in which case, the wife's domicile remains
unchanged. The husband can also implicitly acquiesce
to his wife's prior domicile even if it is different. So we
6
held in de la Viña,
. . . . When married women as well as
live, with the acquiescence of their
husbands or fathers, in a place distinct
from where the latter live, they have
their own independent domicile. . . .
It is not, therefore, the mere fact of marriage but
the deliberate choice of a different domicile by
the husband that will change the domicile of a
wife from what it was prior to their marriage. The
domiciliary decision made by the husband in the
exercise of the right conferred by Article 110 of
the Civil Code binds the wife. Any and all acts of
 a wife during her coverture contrary to the
domiciliary choice of the husband cannot
change in any way the domicile legally fixed by
the husband. These acts are void not only
because the wife lacks the capacity to choose
her domicile but also because they are contrary
to law and public policy.
In the case at bench, it is not disputed that former
President Marcos exercised his right to fix the family
domicile and established it in Batac, Ilocos Norte, where
he was then the congressman. At that particular point of
time and throughout their married life, petitioner lost her
domicile in Tacloban, Leyte. Since petitioner's Batac
domicile has been fixed by operation of law, it was not
affected in 1959 when her husband was elected as
Senator, when they lived in San Juan, Rizal and where
she registered as a voter. It was not also affected in
1965 when her husband was elected President, when
they lived in Malacañang Palace, and when she
registered as a voter in San Miguel, Manila. Nor was it
affected when she served as a member of the Batasang
Pambansa, Minister of Human Settlements and
Governor of Metro Manila during the incumbency of her
husband as President of the nation. Under Article 110 of
the Civil Code, it was only her husband who could
change the family domicile in Batac and the evidence
shows he did not effect any such change. To a large
degree, this follows the common law that "a woman on
her marriage loses her own domicile and by operation of
law, acquires that of her husband, no matter where the
7 revolution on women's right as they observed: "However,
wife actually lives or what she believes or intends."
Fourth. The more difficult task is how to interpret the
effect of the death on September 28, 1989 of former
President Marcos on petitioner's Batac domicile. The
issue is of first impression in our jurisdiction and two (2)
schools of thought contend for acceptance. One is
espoused by our distinguished colleague, Mr. Justice
8 Law Institute also categorically stated that the view of
Davide, Jr., heavily relying on American authorities. He
echoes the theory that after the husband's death, the
wife retains the last domicile of her husband until she
makes an actual change.
I do not subscribe to this submission. The American
case law that the wife still retains her dead husband's
domicile is based on ancient common law which we can
no longer apply in the Philippine setting today. The
common law identified the domicile of a wife as that of
the husband and denied to her the power of acquiring a
9 degradations of Filipino women. Before 1988, our laws
domicile of her own separate and apart from him. Legal
scholars agree that two (2) reasons support this
common law doctrine. The first reason as pinpointed by
the legendary Blackstone is derived from the view that
"the very being or legal existence of the woman is
suspended during
the marriage, or at least is incorporated and
10
consolidated into that of the husband." The second
reason lies in "the desirability of having the interests of
each member of the family unit governed by the same
11
law." The presumption that the wife retains the
domicile of her deceased husband is an extension of this
common law concept. The concept and its extension
have provided some of the most iniquitous jurisprudence
against women. It was under common law that the 1873
12
American case of Bradwell v. Illinois was decided
where women were denied the right to practice law. It
was unblushingly ruled that "the natural and proper
timidity and delicacy which belongs to the female sex
evidently unfits it for many of the occupations of civil life .
. . This is the law of the Creator." Indeed, the rulings
13
relied upon by Mr. Justice Davide in CJS and AM JUR
14
2d are American state court decisions handed down
15 16
between the years 1917 and 1938, or before the time
when women were accorded equality of rights with men.
Undeniably, the women's liberation movement resulted
in far-ranging state legislations in the United States to
17
eliminate gender inequality. Starting in the decade of
the seventies, the courts likewise liberalized their rulings
as they started invalidating laws infected with gender-
bias. It was in 1971 when the US Supreme Court
18
in Reed v. Reed, struck a big blow for women equality
when it declared as unconstitutional an Idaho law that
required probate courts to choose male family members
over females as estate administrators. It held that mere
administrative inconvenience cannot justify a sex-based
distinction. These significant changes both in law and in
case law on the status of women virtually obliterated the
iniquitous common law surrendering the rights of married
women to their husbands based on the dubious theory of
the parties' theoretic oneness. The Corpus Juris
Secundum editors did not miss the relevance of this
it has been declared that under modern
statutes changing the status of married women and
departing from the common law theory of
marriage, there is no reason why a wife may not acquire
a separate domicile for every purpose known to the
19
law." In publishing in 1969 the Restatement of the Law,
Second (Conflict of Laws 2d), the reputable American
Blackstone ". . . is no longer held. As the result of
statutes and court decisions, a wife now possesses
practically the same rights and powers as her unmarried
20
sister."
In the case at bench, we have to decide whether we
should continue clinging to the anachronistic common
law that demeans women, especially married women. I
submit that the Court has no choice except to break
away from this common law rule, the root of the many
particularly the Civil Code, were full of gender
discriminations against women. Our esteemed
colleague, Madam Justice Flerida Ruth Romero, cited a
21
few of them as follows:
xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that
under the Civil Code, wives suffer under
certain restrictions or disabilities. For
instance, the wife cannot accept gifts
from others, regardless of the sex of the
giver or the value of the gift, other than
from her very close relatives, without her
husband's consent. She may accept
only from, say, her parents, parents-in-
law, brothers, sisters and the relatives
within the so-called fourth civil degree.
She may not exercise her profession or
occupation or engage in business if her
husband objects on serious grounds or
if his income is sufficient to support their
family in accordance with their social
standing. As to what constitutes "serious
grounds" for objecting, this is within the
discretion of the husband.
xxx xxx xxx
Because of the present inequitable
situation, the amendments to the Civil
Law being proposed by the University of
the Philippines Law Center would allow
absolute divorce which severes the
matrimonial ties, such that the divorced
spouses are free to get married a year
after the divorce is decreed by the
courts. However, in order to place the
husband and wife on an equal footing
insofar as the bases for divorce are
concerned, the following are specified
as the grounds for absolute divorce: (1)
adultery or having a paramour
committed by the respondent in any of
the ways specified in the Revised Penal
Code or (2) an attempt by the
respondent against the life of the
petitioner which amounts to attempted
parricide under the Revised Penal
Code; (3) abandonment of the petitioner
by the respondent without just cause for
a period of three consecutive years; or
(4) habitual maltreatment.
With respect to property relations, the
husband is automatically the
administrator of the conjugal property
owned in common by the married
couple even if the wife may be the more
astute or enterprising partner. The law
does not leave it to the spouses to
decide who shall act as such
administrator. Consequently, the
husband is authorized to engage in acts
and enter into transactions beneficial to
the conjugal partnership. The wife,
however, cannot similarly bind the
partnership without the husband's
consent.
And while both exercise joint parental
authority over their children, it is the
father whom the law designates as the
legal administrator of the property
pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted
efforts, principally through legislations, to
eliminate inequality between men and women in
our land. The watershed came on August 3,
1988 when our Family Code took effect which,
among others, terminated the unequal treatment
of husband and wife as to their rights and
responsibilities.
22
The Family Code attained this elusive objective by giving
new rights to married women and by abolishing sex-
based privileges of husbands. Among others, married
women are now given the joint right to administer the
family property, whether in the absolute community
23
system or in the system of conjugal partnership; joint
parental authority over their minor children, both over
24
their persons as well as their properties; joint
25
responsibility for the support of the family; the right to
26
jointly manage the household; and, the right to object
to their husband's exercise of profession, occupation,
27
business or activity. Of particular relevance to the case
at bench is Article 69 of the Family Code which took
away the exclusive right of the husband to fix the family
domicile and gave it jointly to the husband and the wife,
thus:
Art. 69. The husband and wife shall fix
the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from
living with the other if the latter should
live abroad or there are other valid and
compelling reasons for the exemption.
However, such exemption shall not
apply if the same is not compatible with
the solidarity of the family. (Emphasis
supplied)
Article 69 repealed Article 110 of the Civil Code.
Commenting on the duty of the husband and
wife to live together, former Madam Justice Alice
Sempio-Diy of the Court of Appeals specified the
instances when a wife may now refuse to live
28
with her husband, thus:
(2) The wife has the duty to live with her
husband, but she may refuse to do so in
certain cases like:
 (a) If the place chosen
by the husband as
family residence is
dangerous to her Life;
(b) If the husband
subjects her to
maltreatment or abusive
conduct or insults,
making common life
impossible;
(c) If the husband
compels her to live with
his parents, but she
cannot get along with
her mother-in-law and
they have constant
quarrels (Del Rosario v.
Del Rosario, CA, 46 OG
6122);
(d) Where the husband
has continuously carried
illicit relations for 10
years with different
women and treated his
wife roughly and without
consideration. (Dadivas
v. Villanueva, 54 Phil.
92);
(e) Where the husband
spent his time in
gambling, giving no
money to his family for
food and necessities,
and at the same time
insulting his wife and
laying hands on her.
(Panuncio v. Sula, CA,
34 OG 129);
(f) If the husband has
no fixed residence and
lives a vagabond life as
a tramp (1 Manresa
329);
(g) If the husband is
carrying on a shameful
business at home
(Gahn v. Darby, 38 La.
Ann. 70).
The inescapable conclusion is that our Family
Code has completely emancipated the wife from
the control of the husband, thus abandoning the
parties' theoretic identity of interest. No less than
the late revered Mr. Justice J.B.L. Reyes who
chaired the Civil Code Revision Committee of
the UP Law Center gave this insightful view in
29
one of his rare lectures after retirement:
xxx xxx xxx
The Family Code is primarily intended to
reform the family law so as to
emancipate the wife from the exclusive
control of the husband and to place her
at parity with him insofar as the family is
concerned. The wife and the husband
are now placed on equal standing by the
Code. They are now joint administrators
of the family properties and exercise
joint authority over the persons and
properties of their children. This means
a dual authority in the family. The
husband will no longer prevail over the
wife but she has to agree on all matters
concerning the family. (Emphasis
supplied)
In light of the Family Code which abrogated the
inequality between husband and wife as started
and perpetuated by the common law, there is no
reason in espousing the anomalous rule that the
wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which
provides the statutory support for this stance has
been repealed by Article 69 of the Family Code.
By its repeal, it becomes a dead-letter law, and
we are not free to resurrect it by giving it further
effect in any way or manner such as by ruling
that the petitioner is still bound by the domiciliary
determination of her dead husband.
Aside from reckoning with the Family Code, we have to
consider our Constitution and its firm guarantees of due
process and equal protection of
30
law. It can hardly be doubted that the common law
imposition on a married woman of her dead husband's
domicile even beyond his grave is patently
discriminatory to women. It is a gender-based
discrimination and is not rationally related to the
objective of promoting family solidarity. It cannot survive
a constitutional challenge. Indeed, compared with our
previous fundamental laws, the 1987 Constitution is
more concerned with equality between sexes as it
explicitly commands that the State ". . . shall ensure
fundamental equality before the law of women and
men." To be exact, section 14, Article II provides: "The
State recognizes the role of women in nation building,
and shall ensure fundamental equality before the law of
women and men. We shall be transgressing the sense
and essence of this constitutional mandate if we insist on
giving our women the caveman's treatment.
Prescinding from these premises, I respectfully submit
that the better stance is to rule that petitioner reacquired
her Tacloban domicile upon the death of her husband in
1989. This is the necessary consequence of the view
that petitioner's Batac dictated domicile did not continue negotiations with PCGG to recover my
after her husband's death; otherwise, she would have no sequestered residences in Tacloban
domicile and that will violate the universal rule that no City and Barangay Olot, Tolosa, Leyte.
person can be without a domicile at any point of time.
This stance also restores the right of petitioner to choose 40.1 In preparation for
her domicile before it was taken away by Article 110 of my observance of All
the Civil Code, a right now recognized by the Family Saints' Day and All
Code and protected by the Constitution. Likewise, I Souls' Day that year, I
cannot see the fairness of the common law requiring renovated my parents'
petitioner to choose again her Tacloban domicile before burial grounds and
she could be released from her Batac domicile. She lost entombed their bones
her Tacloban domicile not through her act but through which had been
the act of her deceased husband when he fixed their excalvated, unearthed
domicile in Batac. Her husband is dead and he cannot and scattered.
rule her beyond the grave. The law disabling her to
choose her own domicile has been repealed.
41. On November 29, 1993, I formally
Considering all these, common law should not put the
wrote PCGG Chairman Magtanggol
burden on petitioner to prove she has abandoned her
Gunigundo for permissions to —
dead husband's domicile. There is neither rhyme nor
reason for this gender-based burden.
. . . rehabilitate . . . (o)ur
ancestral house in
But even assuming arguendo that there is need for
Tacloban and
convincing proof that petitioner chose to reacquire her
farmhouse in Olot,
Tacloban domicile, still, the records reveal ample
Leyte . . . to make them
evidence to this effect. In her affidavit submitted to the
livable for us the
respondent COMELEC, petitioner averred:
Marcos family to have a
home in our own
xxx xxx xxx motherland.

36. In November, 1991, I came home to xxx xxx xxx

our beloved country, after several
requests for my return were denied by
President Corazon C. Aquino, and after
I filed suits for our Government to issue
me my passport.
37. But I came home without the mortal
remains of my beloved husband,
President Ferdinand E. Marcos, which
the Government considered a threat to
the national security and welfare.
38. Upon my return to the country, I
wanted to immediately live and reside in
Tacloban City or in Olot, Tolosa, Leyte,
even if my residences there were not
livable as they had been destroyed and
cannibalized. The PCGG, however, did
not permit and allow me.
39. As a consequence, I had to live at
various times in the Westin Philippine
Plaza in Pasay City, a friend's apartment
on Ayala Avenue, a house in South
Forbes Park which my daughter rented,
and Pacific Plaza, all in Makati.
40. After the 1992 Presidential
Elections, I lived and resided in the
residence of my brother in San Jose,
Tacloban City, and pursued my
42. It was only on 06 June 1994,
however, when PCGG Chairman
Gunigundo, in his letter to Col. Simeon
Kempis, Jr., PCGG Region 8
Representative, allowed me to repair
and renovate my Leyte residences. I
quote part of his letter:
Dear Col. Kempis,
Upon representation by
Mrs. Imelda R. Marcos
to this Commission, that
she intends to visit our
sequestered properties
in Leyte, please allow
her access thereto. She
may also cause repairs
and renovation of the
sequestered properties,
in which event, it shall
be understood that her
undertaking said repairs
is not authorization for
her to take over said
properties, and that all
expenses shall be for
her account and not
reimbursable. Please
 extend the necessary
courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live
and stay in the Sto. Niño Shrine
residence in Tacloban City where I
wanted to stay and reside, after repairs
and renovations were completed. In
August 1994, I transferred from San
Jose, Tacloban City, to my residence in
Barangay Olot, Tolosa, Leyte, when
PCGG permitted me to stay and live
there.
It is then clear that in 1992 petitioner
reestablished her domicile in the First District of
Leyte. It is not disputed that in 1992, she first
lived at the house of her brother in San Jose,
Tacloban City and later, in August 1994, she
transferred her residence in Barangay Olot,
Tolosa, Leyte. Both Tacloban City and the
municipality of Olot are within the First District of
Leyte. Since petitioner reestablished her old
domicile in 1992 in the First District of Leyte, she
more than complied with the constitutional
requirement of residence
". . . for a period of not less than one year
immediately preceding the day of the
election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to
negate the Tacloban domicile of petitioner is nil. He
presented petitioner's Voter's Registration Record filed
with the Board of Election Inspectors of Precinct 10-A of
Barangay Olot, Tolosa, Leyte wherein she stated that
her period of residence in said barangay was six (6)
months as of the date of her filing of said Voter's
31
Registration Record on January 28, 1995. This
statement in petitioner's Voter's Registration Record is
a non-prejudicial admission. The Constitution requires at
least one (1) year residence in the district in which the
candidate shall be elected. In the case at bench, the
reference is the First District of Leyte. Petitioner's
statement proved that she resided in Olot six (6) months
before January 28, 1995 but did not disprove that she
has also resided in Tacloban City starting 1992. As
aforestated, Olot and Tacloban City are both within the
First District of Leyte, hence, her six (6) months
residence in Olot should be counted not against, but in
her favor. Private respondent also presented petitioner's
32
Certificate of Candidacy filed on March 8, 1995 where
she placed seven (7) months after Item No. 8 which
called for information regarding "residence in the
constituency where I seek to be elected immediately
preceding the election." Again, this original certificate of
candidacy has no evidentiary value because an March 1,
1995 it was corrected by petitioner. In her
Amended/Corrected Certificate of
33
Candidacy, petitioner wrote "since childhood" after
Item No. 8. The amendment of a certificate of candidacy
to correct a bona fide mistake has been allowed by this
Court as a matter of course and as a matter of right. As
34
we held in Alialy v. COMELEC, viz.:
xxx xxx xxx
The absence of the signature of the
Secretary of the local chapter N.P in the
original certificate of candidacy
presented before the deadline
September 11, 1959, did not render the
certificate invalid. The amendment of
the certificate, although at a date after
the deadline, but before the election,
was substantial compliance with the law,
and the defect was cured.
It goes without saying that petitioner's erroneous
Certificate of Candidacy filed on March 8, 1995
cannot be used as evidence against her. Private
respondent's petition for the disqualification of
petitioner rested alone on these two (2) brittle
pieces of documentary evidence — petitioner's
Voter's Registration Record and her original
Certificate of Candidacy. Ranged against the
evidence of the petitioner showing her ceaseless
contacts with Tacloban, private respondent's two
(2) pieces of evidence are too insufficient to
disqualify petitioner, more so, to deny her the
right to represent the people of the First District
of Leyte who have overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution
mandates that "bona fide candidates for any public office
shall be free from any form of harassment and
35
discrimination." A detached reading of the records of
the case at bench will show that all forms of legal and
extra-legal obstacles have been thrown against
petitioner to prevent her from running as the people's
representative in the First District of Leyte. In petitioner's
36
Answer to the petition to disqualify her, she averred:
xxx xxx xxx
10. Petitioner's (herein private
respondent Montejo) motive in filing the
instant petition is devious. When
respondent (petitioner herein)
announced that she was intending to
register as a voter in Tacloban City and
run for Congress in the First District of
Leyte, petitioner (Montejo) immediately
opposed her intended registration by
writing a letter stating that "she is not a
resident of said city but of Barangay
Olot, Tolosa, Leyte." (Annex "2" of
respondent's affidavit, Annex "2"). After
respondent (petitioner herein) had
registered as a voter in Tolosa following
completion of her six-month actual
 residence therein, petitioner (Montejo)
filed a petition with the COMELEC to
transfer the town of Tolosa from the
First District to the Second District and
pursued such move up to the Supreme
Court in G.R. No. 118702, his purpose
being to remove respondent (petitioner
herein) as petitioner's (Montejo's)
opponent in the congressional election
in the First District. He also filed a bill,
along with other Leyte Congressmen,
seeking to create another legislative
district, to remove the town of Tolosa
out of the First District and to make it a
part of the new district, to achieve his
purpose. However, such bill did not pass
the Senate. Having, failed on such
moves, petitioner now filed the instant
petition, for the same objective, as it is
obvious that he is afraid to submit
himself along with respondent (petitioner
herein) for the judgment and verdict of
the electorate of the First District of
Leyte in an honest, orderly, peaceful,
free and clean elections on May 8,
1995.
These allegations which private respondent did
not challenge were not lost
to the perceptive eye of Commissioner
Maambong who in his Dissenting
37
Opinion, held:
xxx xxx xxx
Prior to the registration date — January
28, 1995 the petitioner (herein private
respondent Montejo) wrote the Election
Officer of Tacloban City not to allow
respondent (petitioner herein) to register
thereat since she is a resident of Tolosa
and not Tacloban City. The purpose of
this move of the petitioner (Montejo) is
not lost to (sic) the Commission. In UND
No. 95-001 (In the matter of the
Legislative Districts of the Provinces of
Leyte, Iloilo, and South Cotabato, Out of
Which the New Provinces of Biliran,
Guimaras and Saranggani Were
Respectively Created), . . . Hon. Cirilo
Roy G. Montejo, Representative, First
District of Leyte, wanted the Municipality
of Tolosa, in the First District of Leyte,
transferred to the Second District of
Leyte. The Hon. Sergio A.F. Apostol,
Representative of the Second District of
Leyte, opposed the move of the
petitioner (Montejo). Under Comelec
Resolution No. 2736 (December 29,
1994), the Commission on Elections
refused to make the proposed transfer.
Petitioner (Montejo) filed "Motion for
Reconsideration of Resolution
No. 2736" which the Commission denied
in a Resolution promulgated on
February 1, 1995. Petitioner (Montejo)
filed a petition for certiorari before the
Honorable Supreme Court (Cirilo Roy G.
Montejo vs. Commission on Elections,
G.R. No. 118702) questioning the
resolution of the Commission. Believing
that he could get a favorable ruling from
the Supreme Court, petitioner (Montejo)
tried to make sure that the respondent
(petitioner herein) will register as a voter
in Tolosa so that she will be forced to
run as Representative not in the First
but in the Second District.
It did not happen. On March 16, 1995,
the Honorable Supreme Court
unanimously promulgated a "Decision,"
penned by Associate Justice Reynato S.
Puno, the dispositive portion of which
reads:
IN VIEW WHEREOF,
Section 1 of Resolution
No. 2736 insofar as it
transferred the
municipality of
Capoocan of the
Second District and the
municipality of
Palompon of the Fourth
District to the Third
District of the province
of Leyte, is annulled
and set aside. We also
deny the Petition
praying for the transfer
of the municipality of
Tolosa from the First
District to the Second
District of the province
of Leyte. No costs.
Petitioner's (Montejo's) plan did not
work. But the respondent (petitioner
herein) was constrained to register in
the Municipality of Tolosa where her
house is instead of Tacloban City, her
domicile. In any case, both Tacloban
City and Tolosa are in the First
Legislative District.
All these attempts to misuse our laws and legal
processes are forms of rank harassments and
invidious discriminations against petitioner to
deny her equal access to a public office. We
cannot commit any hermeneutic violence to the
Constitution by torturing the meaning of equality,
 the end result of which will allow the harassment
and discrimination of petitioner who has lived a
controversial life, a past of alternating light and
shadow. There is but one Constitution for all
Filipinos. Petitioner cannot be adjudged by a
"different" Constitution, and the worst way to
interpret the Constitution is to inject in its
interpretation, bile and bitterness.
38
Sixth. In Gallego v. Vera, we explained that the reason
for this residence requirement is "to exclude a stranger
or newcomer, unacquainted, with the conditions and
needs of a community and not identified with the latter,
from an elective office to serve that community . . . ."
Petitioner's lifetime contacts with the First District of
Leyte cannot be contested. Nobody can claim that she is
not acquainted with its problems because she is a
stranger to the place. None can argue she cannot satisfy
the intent of the Constitution.
Seventh. In resolving election cases, a dominant
consideration is the need to effectuate the will of the
electorate. The election results show that petitioner
received Seventy Thousand Four Hundred Seventy-one
(70,471) votes, while private respondent got only Thirty-
Six Thousand Eight Hundred Thirty-Three (36,833)
votes. Petitioner is clearly the overwhelming choice of
the electorate of the First District of Leyte and this is not
a sleight of statistics. We cannot frustrate this sovereign
will on highly arguable technical considerations. In case
of doubt, we should lean towards a rule that will give life
to the people's political judgment.
A final point. The case at bench provides the Court with
the rare opportunity to rectify the inequality of status
between women and men by rejecting the iniquitous
common law precedents on the domicile of married
women and by redefining domicile in accord with our
own culture, law, and Constitution. To rule that a married
woman is eternally tethered to the domicile dictated by
her dead husband is to preserve the anachronistic and
anomalous balance of advantage of a husband over his
wife. We should not allow the dead to govern the living
even if the glories of yesteryears seduce us to shout
long live the dead! The Family Code buried this gender-
based discrimination against married women and we
should not excavate what has been entombed. More
importantly, the Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's ponencia finding
petitioner qualified for the position of Representative of
the First Congressional District of Leyte. I wish, however,
to express a few comments on the issue of petitioner's
domicile.
Domicile has been defined as that place in which a
person's habitation is fixed, without any present intention
of removing therefrom, and that place is properly the
domicile of a person in which he has voluntarily fixed his
abode, or habitation, not for a mere special or temporary
purpose, but with a present intention of making it his
permanent home (28 C.J.S. §1). It denotes a fixed
permanent residence to which when absent for
business, or pleasure, or for like reasons one intends to
return, and depends on facts and circumstances, in the
sense that they disclose intent. (Ong Huan Tin v.
Republic, 19 SCRA 966, 969)
Domicile is classified into domicile of origin and domicile
of choice. The law attributes to every individual a
domicile of origin, which is the domicile of his parents, or
of the head of his family, or of the person on whom he is
legally dependent at the time of his birth. While the
domicile of origin is generally the place where one is
born or reared, it maybe elsewhere (28 C.J.S. §5).
Domicile of choice, on the other hand, is the place which
the person has elected and chosen for himself to
displace his previous domicile; it has for its true basis or
foundation the intention of the person (28 C.J.S. §6). In
order to hold that a person has abandoned his domicile
and acquired a new one called domicile of choice, the
following requisites must concur, namely, (a) residence
or bodily presence in the new locality, (b) intention to
remain there or animus manendi, and (c) an intention to
abandon the old domicile or animus non
revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226
SCRA 408, 415). A third classification is domicile by
operation of law which attributes to a person a domicile
independent of his own intention or actual residence,
ordinarily resulting from legal domestic relations, as that
of the wife arising from marriage, or the relation of a
parent and a child (28 C.J.S. §7).
In election law, when our Constitution speaks of
residence for election purposes it means domicile (Co v.
Electoral Tribunal of the House of Representatives, 199
SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To
my mind, public respondent Commission on Elections
misapplied this concept, of domicile which led to
petitioner's disqualification by ruling that petitioner failed
to comply with the constitutionally mandated one-year
residence requirement. Apparently, public respondent
Commission deemed as conclusive petitioner's stay and
registration as voter in many places as conduct
disclosing her intent to abandon her established domicile
of origin in Tacloban, Leyte. In several decisions,
though, the Court has laid down the rule that registration
of a voter in a place other than his place of origin is not
sufficient to constitute abandonment or loss of such
residence (Faypon v. Quirino, 96 Phil. 294, 300).
Respondent Commission offered no cogent reason to
depart from this rule except to surmise petitioner's intent
of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin
was supplanted by a new domicile due to her marriage,
a domicile by operation of law. The proposition is that
upon the death of her husband in 1989 she retains her
husband's domicile, i.e., Batac, Ilocos Norte, until she
makes an actual change thereof. I find this proposition
quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which
was involuntarily supplanted with another, i.e., Batac,
Ilocos Norte, upon her marriage in 1954 with then
Congressman Marcos. By legal fiction she followed the
domicile of her husband. In my view, the reason for the
law is for the spouses to fully and effectively perform
1 1994. She later transferred to Olot, Tolosa, Leyte (Annex
their marital duties and obligations to one another. The
question of domicile, however, is not affected by the fact
that it was the legal or moral duty of the individual to
reside in a given place (28 C.J.S. §11). Thus, while the
wife retains her marital domicile so long as the marriage
subsists, she automatically loses it upon the latter's
termination, for the reason behind the law then ceases.
Otherwise, petitioner, after her marriage was ended by
the death of her husband, would be placed in a quite
absurd and unfair situation of having been freed from all
wifely obligations yet made to hold on to one which no
longer serves any meaningful purpose.
It is my view therefore that petitioner reverted to her
original domicile of Tacloban, Leyte upon her husband's
death without even signifying her intention to that effect.
It is for the private respondent to prove, not for petitioner
to disprove, that petitioner has effectively abandoned
Tacloban, Leyte for Batac, Ilocos Norte or for some other
place/s. The clear rule is that it is the party (herein
private respondent) claiming that a person has
abandoned or lost his residence of origin who must show
and prove preponderantly such abandonment or loss
(Faypon v. Quirino, supra at 298; 28 C.J.S. §16),
because the presumption is strongly in favor of an
original or former domicile, as against an acquired one
(28 C.J.S. §16). Private respondent unfortunately failed
to discharge this burden as the record is devoid of
convincing proof that petitioner has acquired whether
voluntarily or involuntarily, a new domicile to replace her
domicile of origin.
The records, on the contrary, clearly show that petitioner
has complied with the constitutional one-year residence
requirement. After her exile abroad, she returned to the
Philippines in 1991 to reside in Olot, Tolosa, Leyte, but
the Presidential Commission on Good Government
which sequestered her residential house and other
properties forbade her necessitating her transient stay in
various places in Manila (Affidavit p.6, attached as
Annex I of the Petition). In 1992, she ran for the position
of president writing in her certificate of candidacy her
residence as San Juan, Metro Manila. After her loss
therein, she went back to Tacloban City, acquired her
2 Bearing in mind that the term "resident" has been held to
residence certificate and resided with her brother in San
Jose. She resided in San Jose, Tacloban City until
August of 1994 when she was allowed by the PCGG to
move and reside in her sequestered residential house in
3 had resided there for at least a period of one year.
Olot, Tolosa, Leyte (Annex I, p. 6). It was in the same
month of August when she applied for the cancellation of
her previous registration in San Juan, Metro Manila in
order to register anew as voter of Olot, Tolosa, Leyte,
which she did on January 28, 1995. From this sequence
of events, I find it quite improper to use as the reckoning
period of the one-year residence requirement the date
when she applied for the cancellation of her previous
registration in San Juan, Metro Manila. The fact which
private respondent never bothered to disprove is that
petitioner transferred her residence after the 1992
presidential election from San Juan, Metro Manila to San
Jose, Tacloban City, and resided therein until August of
I, p. 7). It appearing that both Tacloban City and Tolosa,
Leyte are within the First Congressional District of Leyte,
it indubitably stands that she had more than a year of
residence in the constituency she sought to be elected.
Petitioner, therefore, has satisfactorily complied with the
one-year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J., separate opinion:
Petitioner has appealed to this Court for relief after the
COMELEC ruled that she was disqualified from running
for Representative of her District and that, in the event
that she should, nevertheless, muster a majority vote,
her proclamation should be suspended. Not by a
straightforward ruling did the COMELEC pronounce its
decision as has been its unvarying practice in the past,
but by a startling succession of "reverse somersaults."
Indicative of its shifting stance vis-a-vis petitioner's
certificate of candidacy were first, the action of its
Second Division disqualifying her and canceling her
original Certificate of Candidacy by a vote of 2-1 on April
24, 1995; then the denial by the COMELEC en banc of
her Motion for Reconsideration on May 7, 1995, a day
before the election; then because she persisted in
running, its decision on
May 11, 1995 or three days after the election, allowing
her proclamation in the event that the results of the
canvass should show that she obtained the highest
number of votes (obviously noting that petitioner had
won overwhelmingly over her opponent), but almost
simultaneously reversing itself by directing that even if
she wins, her proclamation should nonetheless be
suspended.
Crucial to the resolution of the disqualification issue
presented by the case at bench is the interpretation to
be given to the one-year residency requirement imposed
by the Constitution on aspirants for a Congressional
1
seat.
be synonymous with "domicile" for election purposes, it
is important to determine whether petitioner's domicile
was in the First District of Leyte and if so, whether she
Undisputed is her domicile of origin, Tacloban, where
her parents lived at the time of her birth. Depending on
what theory one adopts, the same may have been
changed when she married Ferdinand E. Marcos, then
domiciled in Batac, by operation of law. Assuming it did,
his death certainly released her from the obligation to
live with him at the residence fixed by him during his
lifetime. What may confuse the layman at this point is
the fact that the term "domicile" may refer to "domicile of
origin," "domicile of choice," or "domicile by operation of
law," which subject we shall not belabor since it has
been amply discussed by the ponente and in the other
separate opinions.
In any case, what assumes relevance is the divergence
of legal opinion as to the effect of the husband's death
on the domicile of the widow. Some scholars opine that
the widow's domicile remains unchanged; that the
deceased husband's wishes perforce still bind the wife
he has left behind. Given this interpretation, the widow
cannot possibly go far enough to sever the domiciliary tie
imposed by her husband.
It is bad enough to interpret the law as empowering the
husband unilaterally to fix the residence or domicile of
2 The wife cannot, without the husband's consent,
the family, as laid down in the Civil Code, but to
continue giving obeisance to his wishes even after the
rationale underlying the mutual duty of the spouses to
live together has ceased, is to close one's eyes to the
stark realities of the present.
At the other extreme is the position that the widow
automatically reverts to her domicile of origin upon the
demise of her husband. Does the law so abhor a
vacuum that the widow has to be endowed somehow
with a domicile? To answer this question which is far
from rhetorical, one will have to keep in mind the basic
principles of domicile. Everyone must have a domicile.
Then one must have only a single domicile for the same
purpose at any given time. Once established, a domicile
remains until a new one is acquired, for no person lives
who has no domicile, as defined by the law be is subject
to.
At this juncture, we are confronted with an unexplored
legal terrain in this jurisdiction, rendered more murky by
the conflicting opinions of foreign legal authorities. This
being the state of things, it is imperative as it is
opportune to illumine the darkness with the beacon light
of truth, as dictated by experience and the necessity of
according petitioner her right to choose her domicile in
keeping with the enlightened global trend to recognize
and protect the human rights of women, no less than
men.
Admittedly, the notion of placing women at par with men,
insofar as civil, political and social rights are concerned,
is a relatively recent phenomenon that took seed only in
the middle of this century. It is a historical fact that for
over three centuries, the Philippines had been colonized
by Spain, a conservative, Catholic country which
transplanted to our shores the Old World cultures, mores
and attitudes and values. Through the imposition on our
government of the Spanish Civil Code in 1889, the
people, both men and women, had no choice but to
accept such concepts as the husband's being the head
of the family and the wife's subordination to his authority.
In such role, his was the right to make vital decisions for
the family. Many instances come to mind, foremost
being what is related to the issue before us, namely, that
"the husband shall fix the residence of the
3
family." Because he is made responsible for the
4
support of the wife and the rest of the family, he is also
empowered to be the administrator of the conjugal
5
property, with a few exceptions and may, therefore,
dispose of the conjugal partnership property for the
6
purposes specified under the law; whereas, as a
general rule, the wife cannot bind the conjugal
7
partnership without the husband's consent. As
regards the property pertaining to the children under
parental authority, the father is the legal
administrator and only in his absence may the
8
mother assume his powers. Demeaning to the
wife's dignity are certain strictures on her personal
freedoms, practically relegating her to the position
of minors and disabled persons. To illustrate a few:
acquire any gratuitous title, except from her
ascendants, descendants, parents-in-law, and
9
collateral relatives within the fourth degree. With
respect to her employment, the husband wields a
veto power in the case the wife exercises her
profession or occupation or engages in business,
provided his income is sufficient for the family,
according to its social standing and his opposition
is founded on serious and valid grounds. Most
10
offensive, if not repulsive, to the liberal-minded is
the effective prohibition upon a widow to get married
till after three hundred days following the death of
her husband, unless in the meantime, she has given
11
birth to a child. The mother who contracts a
subsequent marriage loses the parental authority
over her children, unless the deceased husband,
father of the latter, has expressly provided in his will
that his widow might marry again, and has ordered
that in such case she should keep and exercise
12
parental authority over their children. Again, an
instance of a husband's overarching influence from
beyond the grave.
All these indignities and disabilities suffered by
Filipino wives for hundreds of years evoked no
protest from them until the concept of human rights
and equality between and among nations and
individuals found hospitable lodgment in the United
Nations Charter of which the Philippines was one of
the original signatories. By then, the Spanish
"conquistadores" had been overthrown by the
American forces at the turn of the century. The
bedrock of the U.N. Charter was firmly anchored on
this credo: "to reaffirm faith in the fundamental
human rights, in the dignity and worth of the human
person, in the equal rights of men and women."
(Emphasis supplied)
 It took over thirty years before these
egalitarian doctrines bore fruit, owing largely
to the burgeoning of the feminist movement.
What may be regarded as the international
bill of rights for women was implanted in the
Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW)
adopted by the U.N. General Assembly which
entered into force as an international treaty
on September 3, 1981. In ratifying the
instrument, the Philippines bound itself to
implement its liberating spirit and letter, for
its Constitution, no less, declared that "The
Philippines. . . adopts the generally accepted
principles of international law as part of the
law of the land and adheres to the policy of
peace, equality, justice, freedom,
cooperation, and amity with all
13
nations." One such principle embodied in
the CEDAW is granting to men and women
"the same rights with regard to the law
relating to the movement of persons and
the freedom to choose their residence and
14
domicile." (Emphasis supplied).
CEDAW's pro-women orientation which was not lost
on Filipino women was reflected in the 1987
Constitution of the Philippines and later, in the
15
Family Code, both of which were speedily
approved by the first lady President of the country,
Corazon C. Aquino. Notable for its emphasis on the
human rights of all individuals and its bias for
equality between the sexes are the following
provisions: "The State values the dignity of every
human person and guarantees full respect for
16
human rights" and "The State recognizes the role
of women in nation-building, and shall ensure the
fundamental equality before the law of women and
17
men."
A major accomplishment of women in their quest for
equality with men and the elimination of discriminatory
provisions of law was the deletion in the Family Code of
almost all of the unreasonable strictures on wives and
the grant to them of personal rights equal to that of their
husbands. Specifically, the husband and wife are now
given the right jointly to fix the family
18
domicile; concomitant to the spouses' being jointly
responsible for the support of the family is the right and
19
duty of both spouses to manage the household; the
administration and the enjoyment of the community
20
property shall belong to both spouses jointly; the father
and mother shall now jointly exercise legal guardianship
over the property of their unemancipated common
21
child and several others.
Aware of the hiatus and continuing gaps in the law,
insofar as women's rights are concerned, Congress
passed a law popularly known as "Women in
22
Development and Nation Building Act" Among the
rights given to married women evidencing their capacity
to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain
loans and execute security and credit arrangements
under the same conditions as men;
(2) Women shall have equal access to all government
and private sector programs granting agricultural credit,
loans and non material resources and shall enjoy equal
treatment in agrarian reform and land resettlement
programs;
(3) Women shall have equal rights to act as
incorporators and enter into insurance contracts; and
(4) Married women shall have rights equal to those of
married men in applying for passports, secure visas and
other travel documents, without need to secure the
consent of their spouses.
As the world draws the curtain on the Fourth World
Conference of Women in Beijing, let this Court now be
the first to respond to its clarion call that "Women's
Rights are Human Rights" and that "All obstacles to
women's full participation in decision-making at all
levels, including the family" should be removed. Having
been herself a Member of the Philippine Delegation to
the International Women's Year Conference in Mexico in
1975, this writer is only too keenly aware of the
unremitting struggle being waged by women the world
over, Filipino women not excluded, to be accepted as
equals of men and to tear down the walls of
discrimination that hold them back from their proper
places under the sun.
In light of the inexorable sweep of events, local and
global, legislative, executive and judicial, according more
rights to women hitherto denied them and eliminating
whatever pockets of discrimination still exist in their civil,
political and social life, can it still be insisted that widows
are not at liberty to choose their domicile upon the death
of their husbands but must retain the same, regardless?
I submit that a widow, like the petitioner and others
similarly situated, can no longer be bound by the
domicile of the departed husband, if at all she was
before. Neither does she automatically revert to her
domicile of origin, but exercising free will, she may opt to
reestablish her domicile of origin. In returning to
Tacloban and subsequently, to Barangay Olot, Tolosa,
both of which are located in the First District of Leyte,
petitioner amply demonstrated by overt acts, her election
of a domicile of choice, in this case, a reversion to her
domicile of origin. Added together, the time when she set
up her domicile in the two places sufficed to meet the
one-year requirement to run as Representative of the
First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the
petition.
VITUG, J., separate opinion:
The case at bench deals with explicit Constitutional
mandates.
The Constitution is not a pliable instrument. It is a
bedrock in our legal system that sets up ideals and
directions and render steady our strides hence. It only
looks back so as to ensure that mistakes in the past are
not repeated. A compliant transience of a constitution
belittles its basic function and weakens its goals. A
constitution may well become outdated by the realities of
time. When it does, it must be changed but while it
remains, we owe it respect and allegiance. Anarchy,
open or subtle, has never been, nor must it ever be, the
answer to perceived transitory needs, let alone societal
attitudes, or the Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory
in character unless, either by express statement or by
necessary implication, a different intention is manifest
(see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section
6 and Section 17 of Article VI of the fundamental law.
These provisions read:
Sec. 6. No person shall be a Member of
the House of Representatives unless he
is a natural-born citizen of the
Philippines and, on the day of the
election, is at least twenty-five years of
age, able to read and write, and, except
the party-list representatives, a
registered voter in the district in which
he shall be elected, and a resident
thereof for a period of not less than one
year immediately preceding the day of
the election.
Sec. 17. The Senate and the House of
Representatives shall each have an
Electoral Tribunal which shall be the
sole judge of all contests relating to the
election, returns, and qualifications of
their respective Members. Each
Electoral Tribunal shall be composed of
nine Members, three of whom shall be
Justices of the Supreme Court to be
designated by the Chief Justice, and the
remaining six shall be Members of the
Senate or the House of
Representatives, as the case may be,
who shall be chosen on the basis of
proportional representation from the
political parties and the parties or
organizations registered under the
party-list system represented therein.
The senior Justice in the Electoral
Tribunal shall be its Chairman.
The Commission on Election (the "COMELEC") is
constitutionally bound to enforce and administer "all laws
and regulations relative to the conduct of election . . ."
(Art. IX, C, Sec. 2, Constitution) that, there being nothing
said to the contrary, should include its authority to pass
upon the qualification and disqualification prescribed by
law of candidates to an elective office. Indeed, pre-
proclamation controversies are expressly placed under
the COMELEC's jurisdiction to hear and resolve (Art. IX,
C, Sec. 3, Constitution).
The matter before us specifically calls for the
observance of the constitutional one-year residency
requirement. The issue (whether or not there is here
such compliance), to my mind, is basically a question of
fact or at least inextricably linked to such determination.
The findings and judgment of the COMELEC, in
accordance with the long established rule and subject
only to a number of exceptions under the basic heading
of "grave abuse of discretion," are not reviewable by this
Court.
I do not find much need to do a complex exercise on
what seems to me to be a plain matter. Generally, the
term "residence" has a broader connotation that may
mean permanent (domicile), official (place where one's
official duties may require him to stay) or temporary (the
place where he sojourns during a considerable length of
time). For civil law purposes, i.e., as regards the
exercise of civil rights and the fulfillment of civil
obligations, the domicile of a natural person is the place
of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional
Trial Court, Branch 7, Tacloban City (226 SCRA 408,
409); thus:
In election cases, the Court treats
domicile and residence as synonymous
terms, thus: "(t)he term "residence" as
used in the election law is synonymous
with "domicile," which imports not only
an intention to reside in a fixed place but
also personal presence in that place,
coupled with conduct indicative of such
intention." "Domicile" denotes a fixed
permanent residence to which when
absent for business or pleasure, or for
like reasons, one intends to return. . . . .
Residence thus acquired, however, may
be lost by adopting another choice of
domicile. In order, in turn, to acquire a
new domicile by choice, there must
concur (1) residence or bodily presence
in the new locality, (2) an intention to
remain there, and (3) an intention to
abandon the old domicile. In other
words, there must basically be animus
 manendi coupled with animus non
revertendi. The purpose to remain in or
at the domicile of choice must be for an
indefinite period of time; the change of
residence must be voluntary; and the
residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that
we can charge the COMELEC with having
committed grave abuse of discretion in its
assailed resolution.
The COMELEC's jurisdiction, in the case of
congressional elections, ends when the jurisdiction of
the Electoral Tribunal concerned begins. It signifies that
the protestee must have theretofore been duly
proclaimed and has since become a "member" of the
Senate or the House of Representatives. The question
can be asked on whether or not the proclamation of a
candidate is just a ministerial function of the Commission
on Elections dictated solely on the number of votes cast
in an election exercise. I believe, it is not. A ministerial
duty is an obligation the performance of which, being
adequately defined, does not allow the use of further
judgment or discretion. The COMELEC, in its particular
case, is tasked with the full responsibility of ascertaining
all the facts and conditions such as may be required by
law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain
from any undue encroachment on the ultimate exercise
of authority by the Electoral Tribunals on matters which,
by no less than a constitutional fiat, are explicitly within
their exclusive domain. The nagging question, if it were
otherwise, would be the effect of the Court's peremptory
pronouncement on the ability of the Electoral Tribunal to
later come up with its own judgment in a contest
"relating to the election, returns and qualification" of its
members.
Prescinding from all the foregoing, I should like to next
touch base on the applicability to this case of Section 6
of Republic Act No. 6646, in relation to Section 72
of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case.
— Any candidate who has been
declared by final judgment to be
disqualified shall not be voted for, and
the votes cast for him shall not be
counted. If for any reason a candidate is
not declared by final judgment before an
election to be disqualified and he is
voted for and receives the winning
number of votes in such election, the
Court or Commission shall continue with
the trial and hearing of the action,
inquiry or protest and, upon motion of
the complainant or any intervenor, may
during the pendency thereof order the
suspension of the proclamation of such
candidate whenever the evidence of his
guilt is strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases
and priority. — The Commission and the
courts shall give priority to cases of
disqualification by reason of violation of
this Act to the end that a final decision
shall be rendered not later than seven
days before the election in which the
disqualification is sought.
Any candidate who has been declared
by final judgment to be disqualified shall
not be voted for, and the votes cast for
him shall not be counted. Nevertheless,
if for any reason, a candidate is not
declared by final, judgment before an
election to be disqualified, and he is
voted for and receives the winning
number of votes in such election, his
violation of the provisions of the
preceding sections shall not prevent his
proclamation and assumption to office.
I realize that in considering the significance of the law, it
may be preferable to look for not so much the specific
instances they ostensibly would cover as the principle
they clearly convey. Thus, I will not scoff at the argument
that it should be sound to say that votes cast in favor of
the disqualified candidate, whenever ultimately declared
as such, should not be counted in his or her favor and
must accordingly be considered to be stray votes. The
argument, nevertheless, is far outweighed by the
rationale of the now prevailing doctrine first enunciated
in the case of Topacio vs. Paredes (23 Phil. 238 [1912])
which, although later abandoned in Ticzon
vs. Comelec (103 SCRA 687 [1981]), and Santos
vs. COMELEC (137 SCRA 740 [1985]), was restored,
along with the interim case of Geronimo vs. Ramos (136
SCRA 435 [1985]), by the Labo (176 SCRA 1
(1989]), Abella (201 SCRA 253 [1991]), Labo (211
SCRA 297 [1992]) and, most recently, Benito (235
SCRA 436 [1994]) rulings. Benito vs. Comelec was a
unanimous decision penned by Justice Kapunan and
concurred in by Chief Justice Narvasa, Justices
Feliciano, Padilla, Bidin, Regalado, Davide, Romero,
Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz
and Bellosillo were on official leave). For easy reference,
let me quote from the first Labo decision:
Finally, there is the question of whether
or not the private respondent, who filed
the quo warranto petition, can replace
the petitioner as mayor. He cannot. The
simple reason is that as he obtained
only the second highest number of votes
in the election, he was obviously not the
choice of the people of Baguio City.
The latest ruling of the Court on this
issue is Santos v. Commission on
Elections, (137 SCRA 740) decided in
1985. In that case, the candidate who
placed second was proclaimed elected
after the votes for his winning rival, who
was disqualified as a turncoat and
considered a non-candidate, were all
disregard as stray. In effect, the second
placer won by default. That decision
was supported by eight members of the
Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin,
Relova, De la Fuente, Alampay and
Aquino, JJ., concurring.) with three
dissenting (Teehankee, Acting C.J.,
Abad Santos and Melencio-Herrera, JJ.)
and another two reserving their vote.
(Plana and Gutierrez, Jr., JJ.) One was
on official leave. (Fernando, C.J.)
Re-examining that decision, the Court
finds, and so holds, that it should be
reversed in favor of the earlier case
of Geronimo v. Ramos, (136 SCRA 435)
which represents the more logical and
democratic rule. That case, which
reiterated the doctrine first announced in
1912 in Topacio v. Paredes, (23 Phil.
238) was supported by ten members of
the Court, (Gutierrez, Jr., ponente, with
Teehankee, Abad Santos, Melencio-
Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ.,
concurring) without any dissent,
although one reserved his vote,
(Makasiar, J.) another took no part,
(Aquino, J.) and two others were on
leave. (Fernando, C.J. and Concepcion,
Jr., J.) There the Court held:
. . . it would be
extremely repugnant to
the basic concept of the
constitutionally
guaranteed right to
suffrage if a candidate
who has not acquired
the majority or plurality
of votes is proclaimed a
winner and imposed as
the representative of a
constituency, the
majority of which have
positively declared
through their ballots that
they do not choose him.
Sound policy dictates
that public elective
offices are filled by
those who have
received the highest
number of votes cast in
the election for that
office, and it is a
fundamental idea in all
republican forms of
government that no one
can be declared elected
and no measure can be
declared carried unless
he or it receives a
majority or plurality of
the legal votes cast in
the election. (20 Corpus
Juris 2nd, S 243, p.
676.)
The fact that the candidate who
obtained the highest number of votes is
later declared to be disqualified or not
eligible for the office to which he was
elected does not necessarily entitle the
candidate who obtained the second
highest number of votes to be declared
the winner of the elective office. The
votes cast for a dead, disqualified, or
non-eligible person may not be valid to
vote the winner into office or maintain
him there. However, in the absence of a
statute which clearly asserts a contrary
political and legislative policy on the
matter, if the votes were cast in the
sincere belief that the candidate was
alive, qualified, or eligible, they should
not be treated as stray, void or
meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote
for the dismissal of the petition.
MENDOZA, J., separate opinion:
In my view the issue in this case is whether the
Commission on Elections has the power to disqualify
candidates on the ground that they lack eligibility for the
office to which they seek to be elected. I think that it has
none and that the qualifications of candidates may be
questioned only in the event they are elected, by filing a
petition for quo warranto or an election protest in the
appropriate forum, not necessarily in the COMELEC but,
as in this case, in the House of Representatives
Electoral Tribunal. That the parties in this case took part
in the proceedings in the COMELEC is of no moment.
Such proceedings were unauthorized and were not
rendered valid by their agreement to submit their dispute
to that body.
The various election laws will be searched in vain for
authorized proceedings for determining a candidate's
qualifications for an office before his election. There are
none in the Omnibus Election Code (B.P. Blg. 881), in
the Electoral Reforms Law of 1987 (R.A. No. 6646), or in
the law providing for synchronized elections (R.A. No.
7166). There are, in other words, no provisions for pre-
proclamation contests but only election protests or quo
warranto proceedings against winning candidates.
To be sure, there are provisions denominated for
"disqualification," but they are not concerned with a
declaration of the ineligibility of a candidate. These
provisions are concerned with the incapacity (due to
insanity, incompetence or conviction of an offense) of a
person either to be a candidate or to continue as a
candidate for public office. There is also a provision for
the denial or cancellation of certificates of candidacy, but
it applies only to cases involving false representations as
to certain matters required by law to be stated in the
certificates.
These provisions are found in the following parts of the
Omnibus Election Code:
§ 12. Disqualifications. — Any person
who has been declared by competent
authority insane or incompetent, or has
been sentenced by final judgment for
subversion, insurrection, rebellion or for
any offense for which he has been
sentenced to a penalty of more than
eighteen months or for a crime involving
moral turpitude, shall be disqualified to
be a candidate and to hold any office,
unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate
herein provided shall be deemed
removed upon the declaration by
competent authority that said insanity or
incompetence had been removed or
after the expiration of a period of five
years from his service of sentence,
unless within the same period he again
becomes disqualified. (Emphasis
added)
§ 68. Disqualifications. — Any candidate
who, in an action or protest in which he
is a party is declared by final decision of
a competent court guilty of, or found by
the Commission of having (a) given
money or other material consideration to
influence, induce or corrupt the voters or
public officials performing electoral
functions; (b) committed acts of
terrorism to enhance his candidacy; (c)
spent in his election campaign an
amount in excess of that allowed by this
Code; (d) solicited, received or made
any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86
and 261, paragraphs d, e, k, v, and cc,
sub-paragraph 6, shall be
disqualified from continuing as a
candidate, or if he has been elected,
from holding the office. Any person who
is a permanent resident of or an
immigrant to a foreign country shall not
be qualified to run for any elective office
under this Code, unless said person has
waived his status as permanent resident
or immigrant of a foreign country in
accordance with the residence
requirement provided for in the election
laws. (Emphasis added)
§ 78. Petition to deny due course to or
cancel a certificate of
candidacy. — A verified petition seeking
to deny due course or to cancel a
certificate of candidacy may be filed by
any person exclusively on the ground
that any material representation
contained therein as required under
Section 74 hereof is false. The petition
may be filed at any time not later than
twenty-five days from the time of the
filing of the certificate of candidacy and
shall be decided, after due notice and
hearing, not later than fifteen days
before the election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No.
6646):
§ 6. Effect of Disqualification Case. —
Any candidate who has been declared
by final judgment to be disqualified shall
not be voted for, and the votes cast for
him shall not be counted. If for
any reason a candidate is not declared
by final judgment before an election to
be disqualified and he is voted for and
receives the winning number of votes in
such election, the Court or Commission
shall continue with the trial and hearing
of the action, inquiry or protest and;
upon motion for the complainant or any
intervenor, may during the pendency
thereof order the suspension of the
proclamation of such
 candidate whenever the evidence of his
guilt is strong. (Emphasis added).
§ 7. Petition to Deny Due Course to or
Cancel a Certificate of Candidacy. —
The procedure hereinabove provided
shall apply to petitions to deny due
course to or cancel a certificate of
candidacy as provided in Section 78 of
Batas Pambansa Blg. 881.
and the Local Government Code of 1991 (R.A.
No. 7160):
§ 40. Disqualifications. — The following
persons are disqualified from running for
any elective local position:
(a) Those sentenced by final judgment
for an offense involving moral turpitude
or for an offense punishable by one (1)
year or more of imprisonment, within
two (2) years after serving sentence;
(b) Those removed from office as a
result of on administrative case;
(c) Those convicted by final judgment
for violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or
nonpolitical cases here or abroad;
(f) Permanent residents in a foreign
country or those who have acquired the
right to reside abroad and continue to
avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy
Montejo in the COMELEC, while entitled "For
Cancellation and Disqualification," contained no
allegation that private respondent Imelda Romualdez-
Marcos made material representations in her certificate
of candidacy which were false, it sought her
disqualification on the ground that "on the basis of her
Voter Registration Record and Certificate of Candidacy,
[she] is disqualified from running for the position of
Representative, considering that on election day, May 8,
1995, [she] would have resided less than ten (10)
months in the district where she is seeking to be
elected." For its part, the COMELEC's Second Division,
in its resolution of April 24, 1995, cancelled her
certificate of candidacy and corrected certificate of
candidacy on the basis of its finding that petitioner is "not
qualified to run for the position of Member of the House
of Representatives for the First Legislative District of
Leyte" and not because of any finding that she had
made false representations as to material matters in her
certificate of candidacy.
Montejo's petition before the COMELEC was therefore
not a petition for cancellation of certificate of candidacy
under § 78 of the Omnibus Election Code, but
essentially a petition to declare private respondent
ineligible. It is important to note this, because, as will
presently be explained, proceedings under § 78 have for
their purpose to disqualify a person from being
a candidate, whereas quo warranto proceedings have
for their purpose to disqualify a person from
holding public office. Jurisdiction over quo
warranto proceedings involving members of the House
of Representatives is vested in the Electoral Tribunal of
that body.
Indeed, in the only cases in which this Court dealt with
petitions for the cancellation of certificates of candidacy,
the allegations were that the respondent candidates had
made false representations in their certificates of
candidacy with regard to
1 2 3
their citizenship, age, or residence. But in the
generality of cases in which this Court passed upon the
qualifications of respondents for office, this Court did so
4
in the context of election protests or quo
5
warranto proceedings filed after the proclamation of the
respondents or protestees as winners.
Three reasons may be cited to explain the absence of an
authorized proceeding for determining before
election the qualifications of a candidate.
First is the fact that unless a candidate wins and is
proclaimed elected, there is no necessity for determining
his eligibility for the office. In contrast, whether an
individual should be disqualified as a candidate for acts
constituting election offenses (e.g., vote buying, over
spending, commission of prohibited acts) is a prejudicial
question which should be determined lest he wins
because of the very acts for which his disqualification is
being sought. That is why it is provided that if the
grounds for disqualification are established, a candidate
will not be voted for; if he has been voted for, the votes
in his favor will not be counted; and if for some reason
he has been voted for and he has won, either he will not
6
be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidate's
eligibility, e.g., his citizenship or, as in this case, his
domicile, may take a long time to make, extending
beyond the beginning of the term of the office. This is
amply demonstrated in the companion case (G.R. No.
120265, Agapito A. Aquino v. COMELEC) where the
determination of Aquino's residence was still pending in
the COMELEC even after the elections of May 8, 1995.
This is contrary to the summary character of
proceedings relating to certificates of candidacy. That is
why the law makes the receipt of certificates of
candidacy a ministerial duty of the COMELEC and its
7
officers. The law is satisfied if candidates state in their
certificates of candidacy that they are eligible for the
position which they seek to fill, leaving the determination
of their qualifications to be made after the election and
only in the event they are elected. Only in cases
involving charges of false representations made in
certificates of candidacy is the COMELEC given
jurisdiction.
Third is the policy underlying the prohibition against pre-
proclamation cases in elections for President, Vice
President, Senators and members of the House of
Representatives. (R.A. No. 7166, § 15) The purpose is
to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other
Tribunals as "sole judges" under the Constitution of
the election, returns and qualifications of members of
Congress or of the President and Vice President, as the
case may be.
By providing in § 253 for the remedy of quo warranto for
determining an elected official's qualifications after the
results of elections are proclaimed, while being
conspicuously silent about a pre-proclamation remedy
based on the same ground, the Omnibus Election Code,
or OEC, by its silence underscores the policy of not
authorizing any inquiry into the qualifications of
candidates unless they have been elected.
Apparently realizing the lack of an authorized proceeding
for declaring the ineligibility of candidates, the
COMELEC amended its rules on February 15, 1993 so
as to provide in Rule 25, § 1 the following:
Grounds for disqualification. — Any
candidate who does not possess all the
qualifications of a candidate as provided
for by the Constitution or by existing law
or who commits any act declared by law
to be grounds for disqualification may be
disqualified from continuing as a
candidate.
The lack of provision for declaring the ineligibility of
candidates, however, cannot be supplied by a mere rule.
Such an act is equivalent to the creation of a cause of
action which is a substantive matter which the
COMELEC, in the exercise of its rulemaking power
under Art. IX, A, § 6 of the Constitution, cannot do. It is
noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the
right to vote, which essentially involves an inquiry
into qualifications based on age,
residence and citizenship of voters. (Art. IX, C, § 2(3))
The assimilation in Rule 25 of the COMELEC rules of
grounds for ineligibility into grounds for disqualification is
contrary to the evident intention of the law. For not only
in their grounds but also in their consequences are
proceedings for "disqualification" different from those for
a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds
specified in §§ 12 and 68 of the Omnibus Election Code
and in § 40 of the Local Government Code and are for
the purpose of barring an individual from becoming a
candidate or from continuing as a candidate for public
office. In a word, their purpose is to eliminate a
candidate from the race either from the start or during its
progress. "Ineligibility," on the other hand, refers to the
lack of the qualifications prescribed in the Constitution or
the statutes for holding public office and the purpose of
the proceedings for declaration of ineligibility is
to remove the incumbent from office.
Consequently, that an individual possesses the
qualifications for a public office does not imply that he is
not disqualified from becoming a candidate or continuing
as a candidate for a public office and vice versa. We
have this sort of dichotomy in our Naturalization Law.
(C.A. No. 473) That an alien has the qualifications
prescribed in § 2 of the law does not imply that he does
not suffer from any of disqualifications provided in § 4.
Indeed, provisions for disqualifications on the ground
that the candidate is guilty of prohibited election
practices or offenses, like other pre-proclamation
remedies, are aimed at the detestable practice of
"grabbing the proclamation and prolonging the election
8
protest," through the use of "manufactured" election
returns or resort to other trickery for the purpose of
altering the results of the election. This rationale does
not apply to cases for determining a candidate's
qualifications for office before the election. To the
contrary, it is the candidate against whom a proceeding
for disqualification is brought who could be prejudiced
because he could be prevented from assuming office
even though in end he prevails.
To summarize, the declaration of ineligibility of a
candidate may only be sought in an election protest or
action for quo warranto filed pursuant to § 253 of the
Omnibus Election Code within 10 days after his
proclamation. With respect to elective local officials (e.g.,
Governor, Vice Governor, members of the Sangguniang
Panlalawigan, etc.) such petition must be filed either with
the COMELEC, the Regional Trial Courts, or Municipal
Trial Courts, as provided in Art. IX, C, § 2(2) of the
Constitution. In the case of the President and Vice
President, the petition must be filed with the Presidential
Electoral Tribunal (Art. VII, § 4, last paragraph), and in
the case of the Senators, with the Senate Electoral
Tribunal, and in the case of Congressmen, with the
House of Representatives Electoral Tribunal. (Art. VI, §
17) There is greater reason for not allowing before the
election the filing of disqualification proceedings based
on alleged ineligibility in the case of candidates for
President, Vice President, Senators and members of the
House of Representatives, because of the same policy
prohibiting the filing of pre-proclamation cases against
such candidates.
For these reasons, I am of the opinion that the
COMELEC had no jurisdiction over SPA No. 95-009;
that its proceedings in that case, including its questioned
orders, are void; and that the eligibility of petitioner
Imelda Romualdez-Marcos for the office of
Representative of the First District of Leyte may only be
inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the
proceedings of the Commission on Elections in SPA No.
95-009, including its questioned orders doted April 24,
1995, May 7, 1995, May 11, 1995 and May 25, 1995,
declaring petitioner Imelda Romualdez-Marcos ineligible
and ordering her proclamation as Representative of the
First District of Leyte suspended. To the extent that Rule
25 of the COMELEC Rules of Procedure authorizes
proceedings for the disqualification of candidates on the
ground of ineligibility for the office, it should considered
void.
The provincial board of canvassers should now proceed
with the proclamation of petitioner.
Narvasa, C.J., concurs.
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as
expressed in the well-written ponencia of Mr. Justice
Kapunan.
As in any controversy arising out of a Constitutional
provision, the inquiry must begin and end with the
provision itself. The controversy should not be blurred by
what, to me, are academic disquisitions. In this particular
controversy, the Constitutional provision on point states
that — "no person shall be a member of the House of
Representatives unless he is a natural-born citizen of the
Philippines, and on the day of the election, is at least
twenty-five (25) years of age, able to read and write, and
except the party list representatives, a registered voter in
the district in which he shall be elected, and a resident
thereof for a period of not less than one year
immediately preceding the day of the election." (Article
VI, section 6)
It has been argued that for purposes of our election
laws, the term residence has been understood as
synonymous with domicile. This argument has been
validated by no less than the Court in numerous
1
cases where significantly the factual
circumstances clearly and convincingly proved that a
person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with
his personal presence in the place, coupled with conduct
indicative of such intention.
With this basic thesis in mind, it would not be difficult to
conceive of different modalities within which the phrase
"a resident thereof (meaning, the legislative district) for a
period of not less than one year" would fit.
The first instance is where a person's residence and
domicile coincide in which case a person only has to
prove that he has been domiciled in a permanent
location for not less than a year before the election.
A second situation is where a person maintains a
residence apart from his domicile in which case he
would have the luxury of district shopping, provided of
course, he satisfies the one-year residence period in the
district as the minimum period for eligibility to the
position of congressional representative for the district.
In either case, one would not be constitutionally
disqualified for abandoning his residence in order to
return to his domicile of origin, or better still, domicile of
choice; neither would one be disqualified for abandoning
altogether his domicile in favor of his residence in the
district where he desires to be a candidate.
The most extreme circumstance would be a situation
wherein a person maintains several residences in
different districts. Since his domicile of origin continues
as an option as long as there is no effective
abandonment (animus non revertendi), he can
practically choose the district most advantageous for
him.
All these theoretical scenarios, however, are tempered
by the unambiguous limitation that "for a period of not
less than one year immediately preceding the day of the
election", he must be a resident in the district where he
desires to be elected.
To my mind, the one year residence period is crucial
regardless of whether or not the term "residence" is to
be synonymous with "domicile." In other words, the
candidate's intent and actual presence in one district
must in all situations satisfy the length of time prescribed
by the fundamental law. And this, because of a definite
Constitutional purpose. He must be familiar with the
environment and problems of a district he intends to
represent in Congress and the one-year residence in
said district would be the minimum period to acquire
such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative
facts are distinctly set out in the now assailed decision of
the Comelec 2nd Division dated 24 April 1995 (as
affirmed by the Comelec en banc) —
In or about 1938 when respondent was
a little over 8 years old, she established
her domicile in Tacloban, Leyte
(Tacloban City). She studied in the Holy
Infant Academy in Tacloban from 1938
to 1948 when she graduated from high
school. She pursued her college studies
in St. Paul's College, now Divine Word of Tolosa for a period of 6 months
University of Tacloban, where she (Annex A, Petition).
earned her degree in Education.
Thereafter, she taught in the Leyte On March 8, 1995, respondent filed with
Chinese High School, still in Tacloban the Office of the Provincial Election
City. In 1952 she went to Manila to work Supervisor, Leyte, a Certificate of
with her cousin, the late Speaker Daniel Candidacy for the position of
Z. Romualdez in his office in the House Representative of the First District of
of Representatives. In 1954, she Leyte wherein she also alleged that she
married ex-president Ferdinand Marcos has been a resident in the constituency
when he was still a congressman of where she seeks to be elected for a
Ilocos Norte. She lived with him in period of 7 months. The pertinent
Batac, Ilocos Norte and registered there entries therein are as follows:
as a voter. When her husband was
elected Senator of the Republic in 1959, 7.
she and her husband lived together in
PROFE
San Juan, Rizal where she registered as
SSION
a voter. In 1965 when her husband was
OR
elected President of the Republic of the
OCCU
Philippines, she lived with him in PATIO
Malacanang Palace and registered as a N:
voter in San Miguel, Manila.
House-
wife/
During the Marcos presidency, Teache
respondent served as a Member of the r/
Batasang Pambansa, Minister of Human Social
Settlements and Governor of Metro Worker
Manila. She claimed that in February
1986, she and her family were abducted
8.
and kidnapped to Honolulu, Hawaii. In RESID
November 1991, she came home to ENCE
Manila. In 1992 respondent ran for
(comple
election as President of the Philippines
te
and filed her Certificate of Candidacy
address
wherein she indicated that she is a
): Brgy.
resident and registered voter of San Olot,
Juan, Metro Manila. On August 24, Tolosa,
1994, respondent filed a letter with the
Leyte
election officer of San Juan, Metro
Manila, requesting for cancellation of
her registration in the Permanent List of Post
Voters in Precinct No. 157 of San Juan, Office
Metro Manila, in order that she may be Addres
re-registered or transferred to Brgy. s for
Olot, Tolosa, Leyte. (Annex 2-B, election
Answer). On August 31, 1994, purpos
respondent filed her Sworn Application es:
for Cancellation of Voter's Previous Brgy.
Registration (Annex 2-C, Answer) Olot,
stating that she is a duly registered voter Tolosa,
in 157-A, Brgy. Maytunas, San Juan, Leyte
Metro that she intends to register at
Brgy. Olot, Tolosa, Leyte. 9.
RESID
On January 28, 1995 respondent ENCE
registered as a voter at Precinct No. 18- IN THE
A of Olot, Tolosa, Leyte. She filed with CONST
the Board of Election Inspectors CE ITUEN
Form No. 1, Voter Registration Record CY
No. 94-3349772, wherein she alleged WHER
that she has resided in the municipality EIN I
SEEK
 TO BE
ELECT
ED
IMMED
IATELY
PRECE
DING
ELECTI
ON:
______
__
Years S
even M
onths

10. I
AM
NOT A
PERMA
NENT
RESID
ENT
OF, OR
IMMIG
RANT
TO, A
FOREI
GN
COUNT
RY.

THAT I AM ELIGIBLE for said office;

That I will support and defend the
Constitution of the Republic of the
Philippines and will maintain true faith
and allegiance thereto; That I will obey
the laws, legal orders and decrees
promulgated by the duly-constituted
authorities; That the obligation imposed
by my oath is assumed voluntarily,
without mental reservation or purpose of
evasion; and That the facts stated
herein are true to the best of my
knowledge.
Petitioner's aforestated certificate of candidacy filed on 8
March 1995 contains the decisive component or seed of
her disqualification. It is contained in her answer under
oath of "seven months" to the query of "residence in the
(
constituency wherein
S I seek to be elected immediately
preceding the election."
g
d
It follows from all. the above that the Comelec committed
no grave abuse of ) discretion in holding that petitioner is
disqualified from the position of representative for the 1st
congressional district
I of Leyte in the elections of 8 May
1995, for failure m
to meet the "not less than one-year
residence in the econstituency (1st district, Leyte)
immediately preceding
l the day of election (8 May
1995)." d
a
Having arrived at petitioner's disqualification to be a
representative ofRthe first district of Leyte, the next
important issue too resolve is whether or not the Comelec
can order the Board of Canvassers to determine and
proclaim the winner out of the remaining
qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this
Court in the case of Labo vs. Comelec, G.R. 86564,
August 1, 1989, 176 SCRA 1 which gave the rationale
as laid down in the early 1912 case of Topacio
vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public
elective offices are filled by those who
have received the highest number of
votes cast in the election for that office,
and it is a fundamental idea in all
republican forms of government that no
one can be declared elected and no
measure can be declared carried unless
he or it receives a majority or plurality of
the legal votes cast in the election. (20
Corpus Juris 2nd, S 243, p. 676)
The fact that the candidate who
obtained the highest number of votes is
later declared to be disqualified or not
eligible for the office to which he was
elected does not necessarily entitle the
candidate who obtained the second
highest number of votes to be declared
the winner of the elective office. The
votes cast for a dead, disqualified, or
non-eligible person may not be valid to
vote the winner into office or maintain
him there. However, in the absence of a
statute which clearly asserts a contrary
political and legislative policy on the
matter, if the votes were cast in the
sincere belief that the candidate was
alive, qualified, or eligible, they should
not be treated as stray, void or
meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional
Reforms in the Electoral System and for other purposes)
(84 O.G. 905, 22 February 1988) it is provided that:
. . . — Any candidate who has been
declared by final judgment to be
disqualified shall not be voted for, and
the votes cast for him shall not be
counted. If for any reason a candidate is
not declared by final judgment before an
election to be disqualified and he is
voted for and receives the winning
number of votes in such election, the
Court or Commission shall continue with
the trial and hearing of the action,
inquiry or protest and, upon motion of
the complainant or any intervenor, may,
during the pendency thereof order the
suspension of the proclamation of such
candidate whenever the evidence of his
guilt is strong.
There is no need to indulge in legal hermeneutics to
sense the plain and unambiguous meaning of the
provision quoted above. As the law now stands, the
legislative policy does not limit its concern with the effect
of a final judgement of disqualification only before the
election, but even during or after the election. The law is
clear that in all situations, the votes cast for a
disqualified candidate SHALL NOT BE COUNTED. The
law has also validated the jurisdiction of the Court or
Commission on Election to continue hearing the petition
for disqualification in case a candidate is voted for and
receives the highest number of votes, if for any reason,
he is not declared by final judgment before an election to
be disqualified.
Since the present case is an after election scenario, the
power to suspend proclamation (when evidence of his
guilt is strong) is also explicit under the law. What
happens then when after the elections are over, one is
declared disqualified? Then, votes cast for him "shall not
be counted" and in legal contemplation, he no longer
received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not
make the second placer the winner simply because a
"winning candidate is disqualified," but that the law
considers him as the candidate who had obtained the
highest number of votes as a result of the votes cast for
the disqualified candidate not being counted or
considered.
As this law clearly reflects the legislative policy on the
matter, then there is no reason why this Court should not
re-examine and consequently abandon the doctrine in
the Jun Labo case. It has been stated that "the
qualifications prescribed for elective office cannot be
erased by the electorate alone. The will of the people as
expressed through the ballot cannot cure the vice of
ineligibility" most especially when it is mandated by no
less than the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to
order the Provincial Board of Canvassers of Leyte to
proclaim the candidate receiving the highest number of
votes, from among the qualified candidates, as the duly
elected representative of the 1st district of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
While I agree with same of the factual bases of the
majority opinion, I cannot arrive conjointly at the same
conclusion drawn therefrom Hence, this dissent which
assuredly is not formulated "on the basis of the
personality of a petitioner in a case."
I go along with the majority in their narration of
antecedent facts, insofar as the same are pertinent to
this case, and which I have simplified as follows:
1. Petitioner, although born in Manila,
resided during her childhood in the
present Tacloban City, she being a
legitimate daughter of parents who
appear to have taken up permanent
residence therein. She also went to
school there and, for a time, taught in
one of the schools in that city.
2. When she married then Rep.
Ferdinand E. Marcos who was then
domiciled in Batac, Ilocos Norte, by
operation of law she acquired a new
domicile in that place in 1954.
3. In the successive years and during
the events that happened thereafter, her
husband having been elected as a
Senator and then as President, she
lived with him and their family in San
Juan, Rizal and then in Malacanang
Palace in San Miguel, Manila.
4. Over those years, she registered as a
voter and actually voted in Batac, Ilocos
Norte, then in San Juan, Rizal, and also
in San Miguel, Manila, all these merely
in the exercise of the right of suffrage.
5. It does not appear that her husband,
even after he had assumed those lofty
positions successively, ever abandoned
his domicile of origin in Batac, Ilocos
Norte where he maintained his
residence and invariably voted in all
elections.
6. After the ouster of her husband from
the presidency in 1986 and the sojourn
of the Marcos family in Honolulu,
Hawaii, U.S.A., she eventually returned
to the Philippines in 1991 and resided in
different places which she claimed to
have been merely temporary
residences.
7. In 1992, petitioner ran for election as
President of the Philippines and in her
certificate of candidacy she indicated
that she was then a registered voter and
resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter
for the cancellation of her registration in
the Permanent List of Voters in Precinct
No. 157 of San Juan, Metro Manila in
order that she may "be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte."
On August 31, 1994, she followed this
up with her Sworn Application for
Cancellation of Voter's Previous
Registration wherein she stated that she
was a registered voter in Precinct No.
157-A, Brgy. Maytunas, San Juan,
Metro Manila and that she intended to
register in Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner
registered as a voter at Precinct No. 18-
A of Olot, Tolosa, Leyte, for which
purpose she filed with the therein Board
of Election Inspectors a voter's
registration record form alleging that she
had resided in that municipality for six
months.
10. On March 8, 1995, petitioner filed
her certificate of candidacy for the
position of Representative of the First
District of Leyte wherein she alleged
that she had been a resident for
"Seven Months" of the constituency
where she sought to be elected.
11. On March 29, 1995, she filed an
"Amended/Corrected Certificate of
Candidacy" wherein her answer in the
original certificate of candidacy to item
"8. RESIDENCE IN THE
CONSTITUENCY WHERE I SEEK, TO
BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION:" was
changed or replaced with a new entry
reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of
her candidacy, petitioner had complied with the
residency requirement of one year as mandated by no
less than Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues
with a dissertation on the difference between residence
and domicile. We have had enough of that and I
understand that for purposes of political law and, for that
matter of international law, residence is understood to be
synonymous with domicile. That is so understood in our
jurisprudence and in American Law, in contradistinction
to the concept of residence for purposes of civil,
commercial and procedural laws whenever an issue
thereon is relevant or controlling.
Consequently, since in the present case the question of
petitioner's residence is integrated in and inseparable
from her domicile, I am addressing the issue from the
standpoint of the concept of the latter term, specifically
its permutations into the domicile of origin, domicile of
choice and domicile by operation of law, as understood
in American law from which for this case we have taken
our jurisprudential bearings.
My readings inform me that the domicile of the parents
at the time of birth, or what is termed the "domicile of
origin," constitutes the domicile of an infant until
abandoned, or until the acquisition of a new domicile in a
1
different place. In the instant case, we may grant that
2
petitioner's domicile of origin, at least as of 1938, was
what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be of
three kinds, that is, domicile by birth, domicile by choice,
and domicile by operation of law. The first is the
common case of the place of birth or domicilium originis,
the second is that which is voluntarily acquired by a
party or domicilium propio motu; the last which is
3
consequential, as that of a wife arising from marriage, is
sometimes called domicilium necesarium. There is no
debate that the domicile of origin can be lost or replaced
by a domicile of choice or a domicile by operation of law
subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then
Rep. Marcos, by operation of law, not only international
4 Family Code already in force at the time,
or American but of our own enactment, she acquired
her husband's domicile of origin in Batac, Ilocos Norte
and correspondingly lost her own domicile of origin in
Tacloban City.
Her subsequent changes of residence — to San Juan,
Rizal, then to San Miguel, Manila, thereafter to Honolulu,
Hawaii, and back to now San Juan, Metro Manila — do
not appear to have resulted in her thereby acquiring new
domiciles of choice. In fact, it appears that her having
resided in those places was by reason of the fortunes or
misfortunes of her husband and his peregrinations in the
assumption of new official positions or the loss of them.
Her residence in Honolulu and, of course, those after her
return to the Philippines were, as she claimed, against
her will or only for transient purposes which could not
have invested them with the status of domiciles of
5 not exist therein) the equivalent of what is fancied as a
choice.
After petitioner's return to the Philippines in 1991 and up
to the present imbroglio over her requisite residency in
Tacloban City or Olot, Tolosa, Leyte, there is no showing
that she ever attempted to acquire any other domicile of
choice which could have resulted in the abandonment of
her legal domicile in Batac, Ilocos Norte. On that score,
6 loss by operation of law. The majority agrees that since
we note the majority's own submission that, to
successfully effect a change of domicile, one must
demonstrate (a) an actual removal or an actual change
of domicile, (b) a bona fide intention of abandoning the
former place of residence and establishing a new one,
and (c) acts which correspond with the purpose.
We consequently have to also note that these
requirements for the acquisition of a domicile of choice
apply whether what is sought to be changed or
substituted is a domicile of origin (domicilium originis) or
a domicile by operation of law (domicilium necesarium).
Since petitioner had lost her domicilium originis which
had been replaced by her domicilium necesarium, it is
therefore her continuing domicile in Batac, Ilocos Norte
which, if at all, can be the object of legal change under
the contingencies of the case at bar.
To get out of this quandary, the majority decision echoes
the dissenting opinion of Commissioner Regalado E.
Maambong in SPA 95-009 of the Commission on
7
Elections, and advances this novel proposition.
It may be said that petitioner lost her
domicile of origin by operation of law as
a result of her marriage to the late
President Ferdinand E. Marcos in 1952
(sic, 1954). By operation of law
(domicilium necesarium), her legal
domicile at the time of her marriage
became Batac, Ilocos Norte although
there were no indications of an intention
on her part to abandon her domicile of
origin. Because of her husband's
subsequent death and through the
operation of the provisions of the New
however, her legal domicile
automatically reverted to her domicile of
origin. . . . (Emphasis supplied).
Firstly, I am puzzled why although it is conceded that
petitioner had acquired a domicilium necesarium in
Batac, Ilocos Norte, the majority insists on making a
qualification that she did not intend to abandon her
domicile of origin. I find this bewildering since, in this
situation, it is the law that declares where petitioner's
domicile is at any given time, and not her self-serving or
putative intent to hold on to her former domicile.
Otherwise, contrary to their own admission that one
8
cannot have more than one domicile at a time, the
majority would be suggesting that petitioner retained
Tacloban City as (for lack of a term in law since it does
reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can
only be recovered likewise in accordance with law.
However, we are here being titillated with the possibility
of an automatic reversion to or reacquisition of a
domicile of origin after the termination of the cause for its
petitioner lost her domicile of origin by her marriage, the
termination of the marriage also terminates that effect
thereof. I am impressed by the ingeniousness of this
theory which proves that, indeed, necessity is the mother
of inventions. Regretfully, I find some difficulty in
accepting either the logic or the validity of this argument.
If a party loses his domicile of origin by obtaining a new
domicile of choice, he thereby voluntarily abandons the
former in favor of the latter. If, thereafter, he abandons
that chosen domicile, he does not per se recover his
original domicile unless, by subsequent acts legally
indicative thereof, he evinces his intent and desire to
establish the same as his new domicile, which is
precisely what petitioner belatedly and, evidently just for
purposes of her candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of
choice cannot automatically restore his domicile of
origin, not only because there is no legal authority
therefor but because it would be absurd Pursued to its
logical consequence, that theory of ipso jure reversion
would rule out the fact that said party could already very
well have obtained another domicile, either of choice or
by operation of law, other than his domicile of origin.
Significantly and obviously for this reason, the Family
Code, which the majority inexplicably invokes, advisedly
does not regulate this contingency since it would
impinge on one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily
abandoned her domicile of choice (unless we assume
that she entered into the marital state against her will)
but, on top of that, such abandonment was further
affirmed through her acquisition of a new domicile
by operation of law. In fact, this is even a case of
both voluntary and legal abandonment of a domicile of
origin. With much more reason, therefore, should we
reject the proposition that with the termination of her
marriage in 1989, petitioner had supposedly per
se and ipso facto reacquired her domicile of origin which
she lost in 1954. Otherwise, this would be tantamount to
saying that during the period of marital coverture, she
was simultaneously in possession and enjoyment of a
domicile of origin which was only in a state of suspended
animation.
Thus, the American rule is likewise to the effect that
while after the husband's death the wife has the right to
9 I respectfully dissent from the opinion of the majority
elect her own domicile, she nevertheless retains the last
domicile of her deceased husband until she makes an
10
actual change. In the absence of affirmative evidence,
to the contrary, the presumption is that a wife's domicile
or legal residence follows that of her husband and will
continue after his death.
11
I cannot appreciate the premises advanced in support of
the majority's theory based on Articles 68 and 69 of the
Family Code. All that is of any relevance therein is that
under this new code, the right and power to fix the family
domicile is now shared by the spouses. I cannot
perceive how that joint right, which in the first place was
never exercised by the spouses, could affect the
domicile fixed by the law for petitioner in 1954 and, for
her husband, long prior thereto. It is true that a wife now
has the coordinate power to determine
the conjugal or family domicile, but that has no bearing
on this case. With the death of her husband, and each of
her children having gotten married and established their
own respective domiciles, the exercise of that joint
power was and is no longer called for or material in the
present factual setting of this controversy. Instead, what
is of concern in petitioner's case was the matter of her
having acquired or not her own domicile of choice.
I agree with the majority's discourse on the virtues of the
growing and expanded participation of women in the
affairs of the nation, with equal rights and recognition by
Constitution and statutory conferment. However, I have
searched in vain for a specific law or judicial
pronouncement which either expressly or by necessary
implication supports the majority's desired theory of
automatic reacquisition of or reversion to the domicilium
originis of petitioner. Definitely, as between
the settled and desirable legal norms that should govern
this issue, there is a world of difference; and,
unquestionably, this should be resolved by legislative
articulation but not by the eloquence of the well-turned
phrase.
In sum, petitioner having lost Tacloban City as her
domicile of origin since 1954 and not having
automatically reacquired any domicile therein, she
cannot legally claim that her residency in the political
constituency of which it is a part continued since her
birth up to the present. Respondent commission was,
therefore, correct in rejecting her pretension to that effect
in her amended/corrected certificate of candidacy, and in
holding her to her admission in the original certificate
that she had actually resided in that constituency for only
seven months prior to the election. These considerations
render it unnecessary to further pass upon the
procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS
the petition for lack of merit.
DAVIDE, JR., J., dissenting:
written by Mr. Justice Santiago M. Kapunan, more
particularly on the issue of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the
Constitution, decisions, orders, or rulings of the
COMELEC may be brought to this Court only by the
special civil action for certiorari under Rule 65 of the
Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251
[1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the
COMELEC has acted without or in excess of jurisdiction
or with grave abuse of discretion (Section 1, Rule 65,
Rules of Court). Since the COMELEC has, undoubtedly,
jurisdiction over the private respondent's petition, the
only issue left is whether it acted with grave abuse of
discretion in disqualifying the petitioner.
My careful and meticulous perusal of the challenged
resolution of 24 April 1995 of the COMELEC Second
Division and the En Banc resolution of 7 May 1995
discloses total absence of abuse of discretion, much less
grave abuse thereof. The resolution of the Second
Division dispassionately and objectively discussed in
minute details the facts which established beyond cavil
that herein petitioner was disqualified as a candidate on
the ground of lack of residence in the First
Congressional District of Leyte. It has not misapplied,
miscomprehended, or misunderstood facts or
circumstances of substance pertinent to the issue of her
residence.
The majority opinion, however, overturned the
COMELEC's findings of fact for lack of proof that the
petitioner has abandoned Tolosa as her domicile of
origin, which is allegedly within the First Congressional
District of Leyte.
I respectfully submit that the petitioner herself has
provided the COMELEC, either by admission or by
documentary evidence, overwhelming proof of the loss
or abandonment of her domicile of origin, which is
Tacloban City and not Tolosa, Leyte. Assuming that she
decided to live again in her domicile of origin, that
became her second domicile of choice, where her stay,
unfortunately, was for only seven months before the day
of the election. She was then disqualified to be a
candidate for the position of Representative of the First
Congressional District of Leyte. A holding to the contrary
would be arbitrary.
It may indeed be conceded that the petitioner's domicile
of choice was either Tacloban City or Tolosa, Leyte.
Nevertheless, she lost it by operation of law sometime in
May 1954 upon her marriage to the then Congressman
(later, President) Ferdinand E. Marcos. A domicile by
operation of law is that domicile which the law attributes
to a person, independently of his own intention or actual
residence, as results from legal domestic relations as
that of the wife arising from marriage (28 C.J.S. Domicile
§ 7, 11). Under the governing law then, Article 110 of the
Civil Code, her new domicile or her domicile of choice
was the domicile of her husband, which was Batac,
Ilocos Norte. Said Article reads as follows:
Art. 110. The husband shall fix the
residence of the family. But the court
may exempt the wife from living with the
husband if he should live abroad unless
in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino
states:
Although the duty of the spouses to live
together is mutual, the husband has a
predominant right because he is
empowered by law to fix the family
residence. This right even predominates
over some rights recognized by law in
the wife. For instance, under article 117
the wife may engage in business or
practice a profession or occupation. But
because of the power of the husband to
fix the family domicile he may fix it at
such a place as would make it
impossible for the wife to continue in
business or in her profession. For
justifiable reasons, however, the wife
may be exempted from living in the
residence chosen by the husband. The
husband cannot validly allege desertion
by the wife who refuses to follow him to
a new place of residence, when it
appears that they have lived for years in
a suitable home belonging to the wife,
and that his choice of a different home is
not made in good faith. (Commentaries
and Jurisprudence on the Civil Code of
the Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses
her own domicile and, by operation of law, acquires that
of her husband, no matter where the wife actually lives
or what she believes or intends. Her domicile is fixed in
the sense that it is declared to be the same as his, and
subject to certain limitations, he can change her domicile
by changing his own (25 Am Jur 2d Domicile § 48, 37).
It must, however, be pointed out that under Article 69 of
the Family Code, the fixing of the family domicile is no
longer the sole prerogative of the husband, but is now a
joint decision of the spouses, and in case of
disagreement the court shall decide. The said article
uses the term "family domicile," and not family
residence, as "the spouses may have multiple
residences, and the wife may elect to remain in one of
such residences, which may destroy the duty of the
spouses to live together and its corresponding benefits"
(ALICIA V. SEMPIO-DIY, Handbook on the Family Code
of the Philippines, [1988], 102).
The theory of automatic restoration of a woman's
domicile of origin upon the death of her husband, which
the majority opinion adopts to overcome the legal effect
of the petitioner's marriage on her domicile, is
unsupported by law and by jurisprudence. The settled
doctrine is that after the husband's death the wife has a
right to elect her own domicile, but she retains the last
domicile of her husband until she makes an actual
change (28 C.J.S. Domicile § 12, 27). Or, on the death
of the husband, the power of the wife to acquire her own
domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his
death (25 Am Jur 2d Domicile § 62, 45). Note that what
is revived is not her domicile of origin but her power to
acquire her own domicile.
Clearly, even after the death of her husband, the
petitioner's domicile was that of her husband at the time
of his death — which was Batac, Ilocos Norte, since their
residences in San Juan, Metro Manila, and San Miguel,
Manila, were their residences for convenience to enable
her husband to effectively perform his official duties.
Their residence in San Juan was a conjugal home, and it
was there to which she returned in 1991 when she was
already a widow. In her sworn certificate of candidacy for
the Office of the President in the synchronized elections
of May 1992, she indicated therein that she was a
resident of San Juan, Metro Manila. She also voted in
the said elections in that place.
On the basis of her evidence, it was only on 24 August
1994 when she exercised her right as a widow to acquire
her own domicile in Tolosa, Leyte, through her sworn
statement requesting the Election Officer of San Juan,
Metro Manila, to cancel her registration in the permanent
list of voters in Precinct 157 thereat and praying that she
be "re-registered or transferred to Brgy. Olot, Tolosa,
Leyte, the place of [her] birth and permanent residence"
(photocopy of Exhibit "B," attached as Annex "2" of
private respondent Montejo's Comment). Notably, she
contradicted this sworn statement regarding her place of
birth when, in her Voter's Affidavit sworn to on 15 March
1992 (photocopy of Exhibit "C," attached as Annex
"3," Id.), her Voter Registration Record sworn to on 28
January 1995 (photocopy of Exhibit "E," attached as
Annex "5," Id.), and her Certificate of Candidacy sworn
to on 8 March 1995 (photocopy of Exhibit "A," attached
as Annex "1," Id.), she solemnly declared that she was
born in Manila.
The petitioner is even uncertain as to her domicile of
origin. Is it Tacloban City or Tolosa, Leyte? In the
affidavit attached to her Answer to the petition for
disqualification (Annex "I" of Petition), she declared
under oath that her "domicile or residence is Tacloban
City." If she did intend to return to such domicile or
residence of origin why did she inform the Election
Officer of San Juan that she would transfer to Olot,
Tolosa, Leyte, and indicate in her Voter's Registration
Record and in her certificate of candidacy that her
residence is Olot, Tolosa, Leyte? While this uncertainty
is not important insofar as residence in the
congressional district is concerned, it nevertheless
proves that forty-one years had already lapsed since she
had lost or abandoned her domicile of origin by virtue of
marriage and that such length of time diminished her
power of recollection or blurred her memory.
I find to be misplaced the reliance by the majority opinion
on Faypon vs. Quirino (96 Phil. 294 [1954]), and the
subsequent cases which established the principle that
absence from original residence or domicile of origin to
pursue studies, practice one's profession, or engage in
business in other states does not constitute loss of such
residence or domicile. So is the reliance on Section 117
of the Omnibus Election Code which provides that
transfer of residence to any other place by reason of
one's "occupation; profession; employment in private
and public service; educational activities; work in military
or naval reservations; service in the army, navy or air
force, the constabulary or national police force; or
confinement or detention in government institutions in
accordance with law" is not deemed as loss of original
residence. Those cases and legal provision do not
include marriage of a woman. The reason for the
exclusion is, of course, Article 110 of the Civil Code. If it
were the intention of this Court or of the legislature to
consider the marriage of a woman as a circumstance
which would not operate as an abandonment of domicile
(of origin or of choice), then such cases and legal
provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-
serving claim of the petitioner in her affidavit (Annex "A"
of her Answer in COMELEC SPA No. 95-009; Annex "I"
of Petition) that her "domicile or residence of origin is
Tacloban City," and that she "never intended to abandon
this domicile or residence of origin to which [she] always
intended to return whenever absent." Such a claim of
intention cannot prevail over the effect of Article 110 of
the Civil Code. Besides, the facts and circumstances or
the vicissitudes of the petitioner's life after her marriage
in 1954 conclusively establish that she had indeed
abandoned her domicile of origin and had acquired a
new one animo et facto (KOSSUTH KENT KENNAN, A
Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the
petitioner's claim that she "merely committed an honest
mistake" in writing down the word "seven" in the space
provided for the residency qualification requirement in
the certificate of candidacy. Such a claim is self-serving
and, in the light of the foregoing disquisitions, would be
all sound and fury signifying nothing. To me, she did not
commit any mistake, honest or otherwise; what she
stated was the truth.
The majority opinion also disregards a basic rule in
evidence that he who asserts a fact or the affirmative of
an issue has the burden of proving it (Imperial Victory
Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T.
Cerna Corp. vs. Court of Appeals, 221 SCRA 19 [1993]).
Having admitted marriage to the then Congressman
Marcos, the petitioner could not deny the legal
consequence thereof on the change of her domicile to
that of her husband. The majority opinion rules or at
least concludes that "[b]y operation of law (domicilium
necesarium), her legal domicile at the time of her
marriage automatically became Batac, Ilocos Norte."
That conclusion is consistent with Article 110 of the Civil
Code. Since she is presumed to retain her deceased
husband's domicile until she exercises her revived
power to acquire her own domicile, the burden is upon
her to prove that she has exercised her right to acquire
her own domicile. She miserably failed to discharge that
burden.
I vote to deny the petition.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 120265 September 18, 1995
AGAPITO A. AQUINO, petitioner,
vs.
COMMISSION ON ELECTIONS, MOVE MAKATI,
MATEO BEDON and JUANITO ICARO, respondents.
KAPUNAN, J.:
The sanctity of the people's will must be observed at all
times if our nascent democracy is to be preserved. In
any challenge having the effect of reversing a
democratic choice, expressed through the ballot, this
Court should be ever so vigilant in finding solutions
which would give effect to the will of the majority, for
sound public policy dictates that all elective offices are
filled by those who have received the highest number of
votes cast in an election. When a challenge to a winning
candidate's qualifications however becomes inevitable,
the ineligibility ought to be so noxious to the Constitution
that giving effect to the apparent will of the people would
ultimately do harm to our democratic institutions.
On March 20, 1995, petitioner Agapito A. Aquino filed his
Certificate of Candidacy for the position of
Representative for the new Second Legislative District of
Makati City. Among others, Aquino provided the
following information in his certificate of candidacy, viz:.
(7) RESIDENCE (Complete Address):
284 AMAPOLA COR. ADALLA STS.,
PALM VILLAGE, MAKATI.
xxx xxx xxx
(8) RESIDENCE IN THE
CONSTITUENCY WHERE I SEEK TO
BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION: ______
Years and 10 Months.
xxx xxx xxx
THAT I AM ELIGIBLE for said Office;
That I will support and defend the
Constitution of the Republic of the
Philippines and will maintain true faith
and allegiance thereto; That I will obey
the law, rules and decrees promulgated
by the duly constituted authorities; That
the obligation imposed to such is
assumed voluntarily, without mental
reservation or purpose of evasion, and
that the facts therein are true to the best
1
of my knowledge.
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,
2
filed a petition to disqualify Agapito A. Aquino 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
3
thirteen (13) days.
On May 2, 1995, petitioner filed his Answer dated April
29, 1995 praying for the dismissal of the disqualification
4
case.
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
5
dated May 2, 1995, lease contract between petitioner
6
and Leonor Feliciano dated April 1, 1994, Affidavit of
7
Leonor Feliciano dated April 28,1995 and Affidavit of
8
Daniel Galamay dated April 28, 1995.
After hearing of the petition for disqualification, the
Second Division of the COMELEC promulgated a
Resolution dated May 6, 1995, the decretal portion of
which reads:
WHEREFORE, in view of the foregoing,
this Commission (Second Division)
RESOLVES to DISMISS the instant:
petition for Disqualification against
respondent AGAPITO AQUINO and
declares him ELIGIBLE to run for the
Office of Representative in the Second
Legislative District of Makati City.
9
SO ORDERED.
On May 7, 1995, Move Makati and Mateo Bedon filed a
Motion for Reconsideration of the May 6, 1995 resolution
with the COMELEC en banc.
Meanwhile, on May 8, 1995, elections were held. In
Makati City where three (3) candidates vied for the
congressional seat in the Second District, petitioner
garnered thirty eight thousand five hundred forty seven
(38,547) votes as against another candidate, Agusto
Syjuco, who obtained thirty five thousand nine hundred
10
ten (35,910) votes.
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.
11
SO ORDERED.
On May 16, 1995, petitioner filed his
Comment/Opposition with urgent motion to lift order of
suspension of proclamation.
On June 1, 1995, petitioner filed a "Motion to File
Supplemental Memorandum and Motion to Resolve
Urgent Motion to Resolve Motion to Lift Suspension of
Proclamation" wherein he manifested his intention to
raise, among others, the issue of whether of not the
determination of the qualifications of petitioner after the
elections is lodged exclusively in the House of
Representatives Electoral Tribunal pursuant to Section
17, Article VI of the 1987 Constitution.
Resolving petitioner's motion to lift suspension of his
proclamation, the COMELEC en banc issued an Order
on June 2, 1995, the decretal portion thereof residing:
Pursuant to the said provisions and
considering the attendant circumstances
of the case, the Commission
RESOLVED to proceed with the
promulgation but to suspend its rules, to
accept the filing of the aforesaid motion,
and to allow the parties to be heard
thereon because the issue of jurisdiction
now before the Commission has to be
studied with more reflection and
12
judiciousness.
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.
13
SO ORDERED.
14
Hence, the instant Petition for Certiorari assailing the
orders dated May 15, 1995 and June 2, 1995, as well as
the resolution dated June 2, 1995 issued by the
COMELEC en banc. Petitioner's raises the following
errors for consideration, to wit:
A
THE COMELEC HAS NO
JURISDICTION TO DETERMINE AND
ADJUDGE THE DISQUALIFICATION
ISSUE INVOLVING CONGRESSIONAL
CANDIDATES AFTER THE MAY 8,
1995 ELECTIONS, SUCH
DETERMINATION BEING RESERVED
TO AND LODGE EXCLUSIVELY WITH
THE HOUSE OF REPRESENTATIVE
ELECTORAL TRIBUNAL
B DISTRICTS WHICH WERE ONLY
ASSUMING ARGUENDO THAT THE
COMELEC HAS JURISDICTION, SAID
JURISDICTION CEASED IN THE
INSTANT CASE AFTER THE
ELECTIONS, AND THE REMEDY/IES
AVAILABLE TO THE ADVERSE
PARTIES LIE/S IN ANOTHER FORUM
WHICH, IT IS SUBMITTED, IS THE
HRET CONSISTENT WITH SECTION
17, ARTICLE VI OF THE 1987
CONSTITUTION
C PROCLAIM THE WINNER OUT OF
THE COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION WHEN IT
PROCEEDED TO PROMULGATE ITS
QUESTIONED DECISION (ANNEX "C",
PETITION) DESPITE IT OWN
RECOGNITION THAT A THRESHOLD
ISSUE OF JURISDICTION HAS TO BE
JUDICIOUSLY REVIEWED AGAIN,
ASSUMING ARGUENDO THAT THE
COMELEC HAS JURISDICTION, THE
COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION, AND
SERIOUS ERROR IN DIRECTING
WITHOUT NOTICE THE SUSPENSION
OF THE PROCLAMATION OF THE
PETITIONER AS THE WINNING
CONGRESSIONAL CANDIDATE AND
DESPITE THE MINISTERIAL NATURE
OF SUCH DUTY TO PROCLAIM
(PENDING THE FINALITY OF THE
DISQUALIFICATION CASE AGAINST
THE PETITIONER) IF ONLY NOT TO
THWART THE PEOPLE'S WILL.
D suspension of his proclamation as the winning candidate
THE COMELEC'S FINDING OF NON-
COMPLIANCE WITH THE RESIDENCY
REQUIREMENT OF ONE YEAR
AGAINST THE PETITIONER IS
CONTRARY TO EVIDENCE AND TO
APPLICABLE LAWS AND
JURISPRUDENCE.
E
IN ANY CASE, THE COMELEC
CRITICALLY ERRED IN FAILING TO
APPRECIATE THE LEGAL
IMPOSSIBILITY OF ENFORCING THE
ONE YEAR RESIDENCY
REQUIREMENT OF
CONGRESSIONAL CANDIDATES IN
NEWLY CREATED POLITICAL
EXISTING FOR LESS THAN A YEAR
AT THE TIME OF THE ELECTION AND
BARELY FOUR MONTHS IN THE
CASE OF PETITIONER'S DISTRICT IN
MAKATI OF CONGRESSIONAL.
F
THE COMELEC COMMITTED
SERIOUS ERROR AMOUNTING TO
LACK OF JURISDICTION WHEN IT
ORDERED THE BOARD OF
CANVASSERS TO "DETERMINE AND
THE REMAINING QUALIFIED
CANDIDATES" AFTER THE
ERRONEOUS DISQUALIFICATION OF
YOUR PETITIONER IN THAT SUCH
DIRECTIVE IS IN TOTAL DISREGARD
OF THE WELL SETTLED DOCTRINE
THAT A SECOND PLACE CANDIDATE
OR PERSON WHO WAS
REPUDIATED BY THE ELECTORATE
IS A LOSER AND CANNOT BE
PROCLAIMED AS SUBSTITUTE
15
WINNER.
I
In his first three assignments of error, petitioner
vigorously contends that after the May 8, 1995 elections,
the COMELEC lost its jurisdiction over the question of
petitioner's qualifications to run for member of the House
of Representatives. He claims that jurisdiction over the
petition for disqualification is exclusively lodged with the
House of Representatives Electoral Tribunal (HRET).
Given the yet unresolved question of jurisdiction,
petitioner avers that the COMELEC committed serious
error and grave abuse of discretion in directing the
in the Second Congressional District of Makati City. We
disagree.
Petitioner conveniently confuses the distinction between
an unproclaimed candidate to the House of
Representatives and a member of the same. Obtaining
the highest number of votes in an election does not
automatically vest the position in the winning candidate.
Section 17 of Article VI of the 1987 Constitution reads:
The Senate and the House of
Representatives shall have an Electoral
 Tribunal which shall be the sole judge of involving disqualification based on ineligibility under
all contests relating to the election, Section 78 of B.P. 881. Section 7 states:
returns and qualifications of their
respective Members. Sec. 7. Petition to Deny Due Course or
to Cancel a Certificate of Candidacy. —
Under the above-stated provision, the electoral tribunal The procedure hereinabove provided
clearly assumes jurisdiction over all contests relative to shall apply to petition to deny due
the election, returns and qualifications of candidates for course to or cancel a certificate of
either the Senate or the House only when the latter candidacy based on Sec. 78 of Batas
become members of either the Senate or the House of Pambansa 881.
Representatives. A candidate who has not been
16
proclaimed and who has not taken his oath of office II
cannot be said to be a member of the House of
Representatives subject to Section. 17 of the We agree with COMELEC's contention that in order that
Constitution. While the proclamation of a winning
petitioner could qualify as a candidate for Representative
candidate in an election is ministerial, B.P. 881 in
of the Second District of Makati City the latter "must
conjunction with Sec 6 of R.A. 6646 allows suspension
prove that he has established not just residence
of proclamation under circumstances mentioned therein. but domicile of choice.
17
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 The Constitution requires that a person seeking election
election, the COMELEC is automatically divested of to the House of Representatives should be a resident of
authority to pass upon the question of qualification" finds the district in which he seeks election for a period of not
18
no basis, because even after the elections the less than one (l) year prior to the elections. Residence,
COMELEC is empowered by Section 6 (in relation to for election law purposes, has a settled meaning in our
Section 7) of R.A. 6646 to continue to hear and decide jurisdiction.
questions relating to qualifications of candidates Section
6 states: In Co v. Electoral Tribunal of the House of
19
Representatives this Court held that the term
Sec. 6. Effect of Disqualification Case. "residence" has always been understood as
— Any candidate, who has been synonymous with "domicile" not only under the previous
declared by final judgment to be Constitutions but also under the 1987 Constitution. The
20
disqualified shall not be voted for, and Court there held:
the votes cast for him shall not be
counted. If for any reason a candidate is The deliberations of the Constitutional
not declared by final judgment before an Commission reveal that the meaning of
election to be disqualified and he is residence vis-a-vis the qualifications of a
voted for and receives the winning candidate for Congress continues to
number of votes in such election, the remain the same as that of domicile, to
Court or Commission shall continue with wit:
the trial and hearing of the action,
inquiry or protest and, upon motion of Mr. Nolledo: With
the complainant or any intervenor, may respect to Section 5, I
during the pendency thereof order the remember that in the
suspension of the proclamation of such 1971 Constitutional
candidate whenever the evidence of Convention, there was
guilt is strong. an attempt to require
residence in the place
Under the above-quoted provision, not only is a not less than one year
disqualification case against a candidate allowed to immediately preceding
continue after the election (and does not oust the the day of elections. So
COMELEC of its jurisdiction), but his obtaining the my question is: What is
highest number of votes will not result in the suspension the Committee's
or termination of the proceedings against him when the concept of domicile or
evidence of guilt is strong. While the phrase "when the constructive residence?
evidence of guilt is strong" seems to suggest that the
provisions of Section 6 ought to be applicable only to Mr. Davide: Madame
disqualification cases under Section 68 of the Omnibus President, insofar as the
Election Code, Section 7 of R.A. 6646 allows the regular members of the
application of the provisions of Section 6 to cases National Assembly are
concerned, the
proposed section The framers of the Constitution adhered
merely provides, among to the earlier definition given to the word
others, and a resident "residence" which regarded it as having
thereof', that is, in the the same meaning as domicile.
district, for a period of
not less than one year Clearly, the place "where a party actually or
preceding the day of the 21
constructively has his permanent home," where he, no
election. This was in matter where he may be found at any given time,
effect lifted from the eventually intends to return and remain, i.e., his
1973 Constitution, the domicile, is that to which the Constitution refers when it
interpretation given to it speaks of residence for the purposes of election law.
was domicile (emphasis The manifest purpose of this deviation from the usual
ours) Records of the conceptions of residency in law as explained in Gallego
1987 Constitutional 22
vs. Vera at is "to exclude strangers or newcomers
Convention, Vol. II, July unfamiliar with the conditions and needs of the
22, 1986, p. 87). community" from taking advantage of favorable
circumstances existing in that community for electoral
xxx xxx xxx gain. While there is nothing wrong with the practice of
establishing residence in a given area for meeting
Mrs. Rosario Braid: The election law requirements, this nonetheless defeats the
next question is on essence of representation, which is to place through the
section 7, page 2. I assent of voters those most cognizant and sensitive to
think Commissioner the needs of a particular district, if a candidate falls short
Nolledo has raised the of the period of residency mandated by law for him to
same point that qualify. That purpose could be obviously best met by
"resident" has been individuals who have either had actual residence in the
interpreted at times as a area for a given period or who have been domiciled in
matter of intention the same area either by origin or by choice. It would,
rather than actual therefore, be imperative for this Court to inquire into the
residence. 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
Mr. De Los
Reyes: Domicile. District of Makati at the time of his election or whether or
not he was domiciled in the same.
Ms. Rosario Braid: Yes,
So, would the As found by the COMELEC en banc petitioner in his
gentlemen consider at Certificate of Candidacy for the May 11, 1992 elections,
indicated not only that he was a resident of San Jose,
the proper time to go
Concepcion, Tarlac in 1992 but that he was a resident of
back to actual residence
rather than mere the same for 52 years immediately preceding that
23
intention to reside? election. At the time, his certificate indicated that he
24
was also a registered voter of the same district. His
birth certificate places Concepcion, Tarlac as the
Mr. De los Reyes: But birthplace of both of his parents Benigno and
We might encounter 25
Aurora. Thus, from data furnished by petitioner himself
some difficulty to the COMELEC at various times during his political
especially considering career, what stands consistently clear and unassailable
that the provision in the is that this domicile of origin of record up to the time of
Constitution in the filing of his most recent certificate of candidacy for the
Article on Suffrage says 1995 elections was Concepcion, Tarlac.
that Filipinos living
abroad may vote as
enacted by law. So, we Petitioner's alleged connection with the Second District
have to stick to the of Makati City is an alleged lease agreement of
original concept that it condominium unit in the area. As the COMELEC, in its
should be by domicile disputed Resolution noted:
and not physical and
actual residence. The intention not to establish a
(Records of the 1987 permanent home in Makati City is
Constitutional evident in his leasing a condominium
Commission, Vol. II, unit instead of buying one. While a lease
July 22, 1986, p. 110). 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
26
City.
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
27
transferring his physical residence" is not to acquire's
new residence or domicile "but only to qualify as a
candidate for Representative of the Second District of
28
Makati City." 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
29
agreement cannot do better.
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
30
which correspond with the purpose. 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
31
in the two cases of Labo vs. Comelec but also to a
massive disenfranchisement of the thousands of voters
who cast their vote in favor of a candidate they believed
could be validly voted for during the elections. Had
petitioner been disqualified before the elections, the
choice, moreover, would have been different. The votes
for Aquino given the acrimony which attended the
campaign, would not have automatically gone to second
placer Syjuco. The nature of the playing field would have
substantially changed. To simplistically assume that the
second placer would have received the other votes
would be to substitute our judgment for the mind of the
voter. The second placer is just that, a second placer.
He lost the elections. He was repudiated by either a
majority or plurality of voters. He could not be
considered the first among qualified candidates because
in a field which excludes the disqualified candidate, the
conditions would have substantially changed. We are not
prepared to extrapolate the results under such
circumstances.
In these cases, the pendulum of judicial opinion in our
country has swung from one end to the other. In the
 32
early case of Topacio v. Paredes. 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."
33
Then in Ticson v. Comelec, 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.
34
In Geronimo v. Ramos 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.)
35
However, in Santos v. Comelec 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,
36 37
Jr. v. Comelec Abella v. Comelec; and Benito
38
v. Comelec, 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
39
of Labo, Jr. v. COMELEC that:
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 not the private
the province voted for respondent, who filed
her in the sincere belief the quo
that she was a qualified warranto petition, can
candidate for the replace the petitioner as
position of mayor. He cannot. The
governor. Her votes simple reason is that as
was counted and she he obtained only the
obtained the highest second highest number
number of votes. The of votes in the election,
net effect is that he was obviously not
petitioner lost in the the choice of the people
election. He was of Baguio City.
repudiated by the
electorate. . . What The latest ruling of the
matters is that in the Court in this issue
event a candidate for an is Santos
elected position who is v. Commission on
voted for and who Election, (137 SCRA
obtains the highest 740) decided in 1985. In
number of votes is that case, the candidate
disqualified for not who placed second was
possessing the proclaimed elected after
eligibility, requirements the votes for his winning
at the time of the rival, who was
election as provided by disqualified as a
law, the candidate who turncoat and considered
obtains the second a non-candidate, were
highest number of votes all disregarded as stray.
for the same position In effect, the second
cannot assume the placer won by default.
vacated position. That decision was
(Emphasis supplied). supported by eight
members of the Court
Our ruling in Abella applies squarely to then
the case at bar and we see no (Cuevas J., ponente,
compelling reason to depart therefrom. with Makasiar,
Like Abella, petitioner Ortega lost in the Concepcion, Jr.,
election. He was repudiated by the Escolin, Relova, De la
electorate. He was obviously not the Fuente, Alampay, and
choice of the people of Baguio City. Aquino, JJ., concurring)
with three dissenting
Thus, while respondent Ortega (G.R. (Teehankee,
No. 105111) originally filed a acting C.J., Abad
disqualification case with the Comelec Santos and Melencio-
(docketed as SPA-92-029) seeking to Herrera) and another
deny due course to petitioner's (Labo's) two reserving their
candidacy, the same did not deter the votes (Plana and
people of Baguio City from voting for Gutierrez, Jr.). One was
petitioner Labo, who, by then, was on official leave
allowed by the respondent Comelec to (Fernando, C.J.)
be voted upon, the resolution for his
disqualification having yet to attain the Re-examining that decision, the Court
degree of finality (Sec. 78, Omnibus finds, and so holds, that it should be
Election Code). reversed in favor of the earlier case
of Geronimo v. Santos (136 SCRA 435),
And in the earlier case of Labo which represents the more logical and
v. Comelec. (supra), We held: democratic rule. That case, which
reiterated the doctrine first announced in
1912 in Topacio vs. Paredes (23 Phil.
Finally, there is the
238) was supported by ten members of
question of whether or
the Court. . . .
 The rule, therefore, is: the ineligibility of
a candidate receiving majority votes
does not entitle the eligible candidate
receiving the next highest number of
votes to be declared elected. A minority
or defeated candidate cannot be
deemed elected to the office.
Indeed, this has been the rule in the
United States since 1849 (State ex rel.
Dunning v. Giles, 52 Am. Dec. 149).
It is therefore incorrect to argue that
since a candidate has been disqualified,
the votes intended for the disqualified
candidate should, in effect, be
considered null and void. This would
amount to disenfranchising the
electorate in whom, sovereignty resides.
At the risk of being repetitious, the
people of Baguio City opted to elect
petitioner Labo bona fide without any
intention to missapply their franchise,
and in the honest belief that Labo was
then qualified to be the person to whom
they would entrust the exercise of the
powers of the government.
Unfortunately, petitioner Labo turned out
to be disqualified and cannot assume
the office.
Whether or not the candidate whom the
majority voted for can or cannot be
installed, under no circumstances can a
minority or defeated candidate be
deemed elected to the office. Surely, the
12,602 votes cast for petitioner Ortega
is not a larger number than the 27,471
votes cast for petitioner Labo (as
certified by the Election Registrar of
Baguio City; rollo, p. 109; G.R. No.
105111).
This, it bears repeating, expresses the more logical and
democratic view. We cannot, in another shift of the
pendulum, subscribe to the contention that the runner-up
in an election in which the winner has been disqualified
is actually the winner among the remaining qualified
candidates because this clearly represents a minority
view supported only by a scattered number of obscure
40
American state and English court decisions. These
decisions neglect the possibility that the runner-up,
though obviously qualified, could receive votes so
measly and insignificant in number that the votes they
receive would be tantamount to rejection. Theoretically,
the "second placer" could receive just one vote. In such
a case, it is absurd to proclaim the totally repudiated
candidate as the voters' "choice." Moreover, even in
instances where the votes received by the second placer
may not be considered numerically insignificant, voters
preferences are nonetheless so volatile and
unpredictable that the result among qualified candidates,
should the equation change because of the
disqualification of an ineligible candidate, would not be
self-evident. Absence of the apparent though ineligible
winner among the choices could lead to a shifting of
votes to candidates other than the second placer. By any
mathematical formulation, the runner-up in an election
cannot be construed to have obtained a majority or
plurality of votes cast where an "ineligible" candidate has
garnered either a majority or plurality of the votes.
In fine, we are left with no choice but to affirm the
COMELEC's conclusion declaring herein petitioner
ineligible for the elective position of Representative of
Makati City's Second District on the basis of respondent
commission's finding that petitioner lacks the one year
residence in the district mandated by the 1987
Constitution. A democratic government is necessarily a
government of laws. In a republican government those
laws are themselves ordained by the people. Through
their representatives, they dictate the qualifications
necessary for service in government positions. And as
petitioner clearly lacks one of the essential qualifications
for running for membership in the House of
Representatives, not even the will of a majority or
plurality of the voters of the Second District of Makati
City would substitute for a requirement mandated by the
fundamental law itself.
WHEREFORE, premises considered, the instant petition
is hereby DISMISSED. Our Order restraining respondent
COMELEC from proclaiming the candidate garnering the
next highest number of votes in the congressional
elections for the Second District of Makati City is made
PERMANENT.
SO ORDERED.
Regalado, Melo, Puno and Hermosisima, Jr.,
JJ., concur.
Feliciano, J., is on leave.
Separate Opinions
PADILLA, J., concurring:
I agree with the conclusion reached by the majority that
petitioner Aquino has not shown by clear and convincing
evidence that he had established his residence in the
second district of Makati City for a period of not less than
one (1) year prior to the 8 May 1995 elections. However,
I do not fully subscribe to its proposition that petitioner's
residence (in Makati) should be his "domicile of choice".
Article VI, Section 6 of the Constitution provides that:
No person shall be a member of the
House of Representatives unless he is a
natural-born citizen of the Philippines
and on the day of the election, is at least
twenty-five years of age, able to read
and write, and, except the party list
representatives, a registered voter in the
district in which he shall be elected, and
a resident thereof for a period of not less
than one year immediately preceding
the day of the election. (emphasis
supplied).
In G.R. No. 119976, Marcos vs. Comelec, I have
maintained that the phrase "a resident thereof for a
period of not less than one year"
means actual and physical presence in the legislative
district of the congressional candidate, and that said
period of one year must be satisfied regardless of
whether or not a person's residence or domicile
coincides.
To my mind, petitioner should be declared disqualified to
run as representative in the 2nd district of Makati City in
the 8 May 1995 elections not because he failed to prove
his residence therein as his domicile of choice, but
because he failed altogether to prove that he
had actually and physically resided therein for a period
of not less than one (1) year immediately preceding the
8 May 1995 elections.
Noteworthy is the established fact before the Comelec
that petitioner admits having maintained other
residences in Metro Manila apart from his leased
1 candidate as disqualified, such disqualified candidate
condominium unit in Makati's 2nd district. This clear
admission made by petitioner against his interest
weakens his argument that "where a party decides to
transfer his legal residence so he can qualify for public
office, he is free to do so." (see p. 20, Petition).
Petitioner evidently wants to impress the Court that his
other residences in Metro Manila could never have
become his domicile of choice because it never entered
his mind and suddenly, seemingly not contented with
these other residences, he rents a condominium unit in
Makati, and calls it his domicile of choice — all these
without adding clear and convincing evidence that he
did actually live and reside in Makati for at least one year
prior to 8 May 1995 — and that he no longer lived and
resided in his other residences during said one year
period.
It follows, likewise, that the lease contract relied upon by
petitioner, standing alone, established only the alleged
date (April 25, 1994) of its due execution. Stated
otherwise, the lease contract tells us that petitioner had
been leasing a condominium unit in Makati City for more
than a year prior to 8 May 1995, but it does not prove
that petitioner actually and physically resided therein for
the same period, in the light of his admission that he
maintained other residences in Metro Manila.
In light of petitioner's disqualification, the corrollary issue
to be resolved is whether or not jurisdiction continued to
be vested in the Comelec to order the Makati Board of
Canvassers" to determine and proclaim the winner out of
the remaining qualified candidates" after petitioner had
been declared post 8 May 1995 as disqualified.
I agree with the proposition advanced by the Solicitor
General that sec. 6 of R.A. 6646 clearly provides that
votes cast for a disqualified candidate shall not be
counted, thus:
Sec. 6. Effect of Disqualification Case.
— Any candidate who has been
declared by final 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 can be no dispute that if a final judgment is
rendered before the election, declaring a particular
shall not be voted for and votes cast for him shall not be
counted, thus posing no problem in proclaiming the
candidate who receives the highest number of votes
among the qualified candidates.
But what about after the election? Sec. 6 appears
categorical enough in stating: "if any reason" no final
judgment of disqualification is rendered before the
elections, and the candidate facing disqualification is
voted for and receives the winning number of votes, the
Comelec or the Court is not ousted of its jurisdiction to
hear and try the case up to final judgment, hence, the
power to even suspend the proclamation of the erstwhile
winning candidate when evidence of his guilt is strong.
It thus appears clear that the law does not dichotomize
the effect of a final judgment of disqualification in terms
of time considerations. There is only one natural and
logical effect: the disqualified candidate shall not be
voted and, if voted, the votes cast for him shall not be
counted. Ubi lex non distinguit nec nos distinguere
debemus (where the law does not distinguish, we should
not distinguish.)
At this point, what I said in Marcos, supra, follows:
What happens then when after the
elections are over, one is declared
disqualified? Then, votes cast for him
"shall not be counted" and in legal
contemplation, he no longer received
the highest number of votes.
It stands to reason that Section 6 of RA
6646 does not make the second placer
the winner simply because a "winning
candidate is disqualified," but that the
law considers him as the candidate who
had obtained the highest number of
votes as a result of the votes cast for the
disqualified candidate not being counted
or considered.
As this law clearly reflects the legislative
policy on the matter, then there is no
reason why this Court should not re-
examine and consequently abandon the
doctrine in the Jun Labo case. It has
been stated that "the qualifications
prescribed for elective office cannot be
erased by the electorate alone. The will
of the people as expressed through the
ballot cannot cure the vice of ineligibility"
most especially when it is mandated by
no less than the Constitution.
Therefore the candidate who received the highest
number of votes from among the qualified candidates,
should be proclaimed
ACCORDINGLY, I vote to DISMISS the petition.
FRANCISCO, J., concurring and dissenting:
I concur with the well written ponencia of my most
esteemed colleague, Mr. Justice Kapunan. I wish,
however, to express my views on some issues raised by
the petitioner, viz., (1) jurisdiction over the
disqualification suit, (2) domicile, (3) theory of legal
impossibility, and (4) "second placer rule".
Petitioner emphatically maintains that only the House of
Representatives Electoral Tribunal (HRET) can declare
his disqualification, especially after the elections. To
bolster this stand, the cases of Co v. HRET, 199 SCRA
692 (1991); Robles v. HRET, 181 SCRA 780
(1990); Lazatin v. HRET, 168 SCRA 391 (1988);
and Lachica v. Yap, 25 SCRA 140 (1968), have been
cited as supporting authorities. To my mind, this position
is untenable. Section 17 of Article VI of the 1987
Constitution is clear and unambiguous that HRET
jurisdiction applies only to the members of the House of
Representatives. The operative acts necessary for an
electoral candidate's rightful assumption of the office for
which he ran are his proclamation and his taking an oath
of office. Petitioner cannot in anyway be considered as a
member of the House of Representatives for the
purpose of divesting the Commission on Elections of
jurisdiction to declare his disqualification and invoking
instead HRET's jurisdiction, it indubitably appearing that
he has yet to be proclaimed, much less has he taken an
oath of office. Clearly, petitioner's reliance on the
aforecited cases which when perused involved
Congressional members, is totally misplaced, if not
wholly inapplicable. That the jurisdiction conferred upon
HRET extends only to Congressional members is further
established by judicial notice of HRET Rules of
1 2
procedure, and HRET decisions consistently holding
that the proclamation the essential requisite vesting
jurisdiction on the HRET.
Moreover, a perusal of the records shows that the
question on COMELEC's jurisdiction is now barred by
estoppel. It is to be noted that in his May 2, 1995
Answer, as well as in his Memorandum and
Supplemental Memorandum filed before the
COMELEC's Second Division, petitioner never assailed
COMELEC's lacks of jurisdiction to rule on his
qualification. On the contrary, he asked that the
disqualification suit against him be dismissed on the
following grounds: that it was filed outside the
reglementary period; that the one year residence
requirement of the 1987 Constitution is inapplicable due
to the recent conversion of the municipality of Makati into
a city under R.A. No. 7854; that he committed a simple
inadvertence in filing up his certificate of candidacy; that
the proper procedure to attack his qualification is by a
quo warranto proceeding; that he had actually and
physically resided in Makati for more than a year; and for
lack of merit, the case should be outrightly dismissed. In
a hearing conducted by the COMELEC on May 2, 1995,
petitioner even submitted his evidence (e.g. affidavits,
amended certificate of candidacy, copy of the lease
contract) to prove that he is qualified for the position.
Subsequently, on May 16, 1995, in response to the
COMELEC En Banc's May 15, 1995 Order suspending
the proclamation of the winner, petitioner filed his
Comment/Opposition with Urgent Motion To Lift Order of
Suspension of Proclamation asking for the lifting of the
COMELEC's order of suspension. On May 19, 1995,
petitioner again filed a Memorandum and averred that
the recent conversion of Makati into a city made the one-
year residence requirement inapplicable; that he resided
in Makati for more than a year; that quo warranto is the
right remedy to question his qualification. In passing,
petitioner also alleged that the issue on his qualification
should be "properly" ventilated in a full-dress hearing
before the HRET, albeit praying for the dismissal of the
motion for reconsideration for utter lack of merit (and not
for lack of jurisdiction), and for lifting the suspension of
his proclamation. It was only on June 01, 1995, in his
Motion to File Supplemental Memorandum and Urgent
Motion to Resolve Motion to Lift Suspension of
Proclamation, when the petitioner raised COMELEC's
alleged lack of jurisdiction to resolve the question on his
qualification. Clearly then, petitioner has actively
participated in the proceedings both before the
COMELEC's Second Division and the COMELEC En
Banc asking therein affirmative reliefs. The settled rule is
that a party who objects to the jurisdiction of the court
and alleges at the same time any non-jurisdictional
ground for dismissing the action is deemed to have
3 9
submitted himself to the jurisdiction of the court. Where
a party voluntary submits to the jurisdiction of the court
and thereafter loses on the merits, he may not thereafter
be heard to say that the court had no
4 5
jurisdiction. In Jimenez v. Macaraig, the Court,
citing Crisostomo v. Court of Appeals, 32 SCRA 54, 60
(1970), elaborated on the rationale for this doctrine in
this wise:
The petitioners, to borrow the language
of Mr. Justice Bautista Angelo (People
vs. Archilla, G.R. No. L-15632, February
28, 1961, 1 SCRA 699, 700-701),
cannot adopt a posture of double-
dealing without running afoul of the
doctrine of estoppel. The principle of
estoppel is in the interest of a sound
administration of the laws. It should
deter those who are disposed to trifle
with the courts by taking inconsistent
positions contrary to the elementary
principles of right dealing and good faith
(People v. Acierto, 92 Phil. 534, 541,
6
[1953]).
It is not right for a party who has affirmed and
invoked the jurisdiction of a court in a particular
matter to secure an affirmative relief to
afterwards deny that same jurisdiction to escape
7 11
an adverse decision. Perforce, petitioner's
asseveration that the COMELEC has no
jurisdiction to rule on his qualification must fail.
Petitioner insists that domicile is a matter of personal
intention. Thus, petition asserts that if he decides to
transfer his legal residence so he can qualify for public
office then he is entirely free to do so. Thus argument to
hold water, must be supported by a clear and convincing
proofs that petitioner has effectively abandoned his
former domicile and that his intention is not doubtful.
Indeed, domicile once established is considered to
continue and will not be deemed lost until a new one is
established (Co v. Electoral Tribunal House of
Representatives, 199 SCRA 692, 711 [1991]). Petitioner
from childhood until his last election as senator has
consistently maintained Concepcion, Tarlac, as his
domicile. He moved to Amapola Street, Palm Village,
Makati, and thereafter claimed the same to be his new
domicile. This claim, however, is dismally unsupported
by the records. The lease contract entered into by
petitioner for a period of two years on the third floor
condominium unit in Palm Village, Makati, in my view,
does not prove his intent to abandon his domicile of
origin. The intention to establish domicile must be an
intention to remain indefinitely or permanently in the new
8
place. This element is lacking in this instance. Worse,
public respondent Commission even found that
"respondent Aquino himself testified that his intention
was really for only one (1) year because he has other
'residences' in Manila or in Quezon City ([citing] TSN,
May 2, 1995,
p. 92)". Noting that petitioner is already barred from
running for senator due to the constitutional consecutive
two-term limit, his search for a place where he could
further and continue his political career and sudden
transfer thereto make his intent suspect. The best test of
intention to establish legal residence
comes from one's acts and not by mere declarations
10
alone. To acquire, or effect a change of domicile, the
intention must be bonafide and unequivocal (28 C.J.S.
§11). Petitioner, in my view, miserably failed to show
a bonafide and unequivocal intention to effect the
change of his domicile.
The theory of legal impossibility is advanced to justify
non-compliance with the constitutional qualification on
residency. Petitioner explains his theory in this wise:
. . . THE COMELEC CRITICALLY
ERRED IN FAILING TO APPRECIATE
THE LEGAL IMPOSSIBILITY OF
ENFORCING THE ONE YEAR
RESIDENCY REQUIREMENT OF
CONGRESSIONAL CANDIDATES IN
NEWLY CREATED POLITICAL
DISTRICTS WHICH WERE ONLY
EXISTING FOR LESS THAN A YEAR
AT THE TIME OF THE ELECTION AND
BARELY FOUR MONTHS IN THE
CASE OF PETITIONER'S DISTRICT IN
MAKATI.
Apparently, this theory is an offshoot of Republic
Act. No. 7854, an act converting the municipality
of Makati into a highly urbanized city. This law
enacted on January 2, 1995, established a
second Congressional district in Makati in which
petitioner ran as a Congressional candidate.
Since the second district, according to petitioner,
is barely four (4) months old then the one (1)
year residence qualification provided by the
Constitution is inapplicable. Petitioner's acts,
however, as borne by the records, belie his own
theory. Originally, he placed in his certificate of
candidacy an entry of ten (10) months residence
in Makati. Petitioner then had it amended to one
(1) year and thirteen (13) days to correct what
claims as a mere inadvertent mistake. I doubt
the sincerity of this representation. If petitioner is
indeed persuaded by his own theory, the ten
months residence he initially wrote would have
 more than sufficiently qualified him to run in the
barely four-month old Makati district. The
amendment only reveals the true intent of
petitioner to comply with one year constitutional
requirement for residence, adding an extra
thirteen (13) days full measure. Petitioner
apparently wanted to argue one way (theory of
legal impossibility), but at the same time played
it safe in the other (the constitutional one year
residence requirement). And that is not all. If we
were to adhere to petitioner's theory of legal
impossibility, then residents in that district shorn
of the constitutional six months residence
requirement for prospective voters (Article V,
Section 1 of the 1987 Constitution) would have
certainly qualified to vote. That would have
legitimized the entry and electoral exercise of
flying voters — one of the historic nemeses of a
clean and honest election. Furthermore, to
subscribe to petitioner's contention that the
constitutional qualification of candidates should
be brushed aside in view of the enactment of
R.A. No. 7854 will indubitably violate the manner
and procedure for the amendment or revision of
the constitution outlined under Article XVIII of
the 1987 Constitution. A legislative enactment, it
has to be emphasized, cannot render nugatory
the constitution. The constitution is superior to a
statute. It is the fundamental and organic law of
the land to which every statute must conform
and harmonize.
Finally, it has been contended that a second place
candidate cannot be proclaimed a substitute winner. I
find the proposition quite unacceptable. A disqualified
"candidate" is not a candidate and the votes which may
have been cast in his favor are nothing but stray votes of
no legal consequence. A disqualified person like the
petitioner receives no vote or zero vote. In short,
no-candidate-no vote. Petitioner had therefore no right,
in fact and in law, to claim first place for he has nothing
to base his right. The legislative intent is clear as
provided by R.A. 6646, Section 6, in that votes cast for a
disqualified candidate shall not be counted as they are
considered stray (Section 211, Rule 24, Omnibus
Election Code). It is only from the ranks of qualified
candidates can one be chosen as first placer and not
from without. Necessarily, petitioner, a disqualified
candidate, cannot be a first placer as he claims himself
to be. To count the votes for a disqualified candidate
would, in my view, disenfranchise voters who voted for a
qualified candidate. Legitimate votes cast for a qualified
candidate should not be penalized alongside a
disqualified candidate. With this in mind, the other
qualified candidate who garnered the highest number of
votes should be proclaimed the duly elected
representative of the district. I feel that the Labo doctrine
ought to be abandoned.
I therefore vote to deny the petition and to lift the
temporary restraining order issued by the Court dated
June 6, 1995.
DAVIDE, JR., J., dissenting:
In sustaining the COMELEC's acts of suspending the
proclamation of petitioner Agapito A. Aquino and of
proceeding to hear the disqualification case against him,
the majority opinion relies on Section 6 of R.A. No. 6646
which it claims to be applicable by virtue of Section 7
thereof to petitions to deny due course to or cancel a
certificate of candidacy under Section 78 of the Omnibus
Election Code (B.P. Blg. 881).
I disagree.
In the first place, the petition to disqualify the petitioner in
SPA No. 95-113 is not a petition to deny due course to
or cancel a certificate of candidacy under Section 78,
which reads:
Sec. 78. Petition to deny due course to
or cancel a certificate of candidacy. — A
verified petition seeking to deny due
course or to cancel a certificate of
candidacy may be filed by any
person exclusively on the ground that
any material representation contained
therein as required under Section 74
hereof is false. The petition may be filed
at any time not later than twenty-five
days from the time of the filing of the
certificate of candidacy and shall be
decided, after due notice and hearing,
not later than fifteen days before the
election. (emphasis supplied)
Nowhere in the petition in SPA No. 95-113 is it alleged
by the private respondents that a material representation
contained in the petitioner's certificate of candidacy is
false. What is being attacked therein is the petitioner's
lack of the one-year residence qualification in the new
Second Legislative District of Makati City where he
sought to he elected for the office of Congressman.
The rule governing disqualification cases on the ground
of ineligibility, which is also invoked by the private
respondents, is Rule 25 of the COMELEC Rules of
Procedure, as amended on 15 February 1993. The
amendment allows the, filing of a petition to disqualify a
candidate on the ground that he does not possess all the
qualifications provided for by the Constitution or by
existing laws. In its original form, the rule only applied to
petitions for disqualification based on the commission of
any act declared by law to be a ground for
disqualification. The rule as thus amended now reads as
follows:
Rule 25 — Disqualification of
Candidates
 Sec. 1. Grounds for Disqualification. — Rule 25 of the Comelec Rules of
Any candidate who does not possess all Procedure refers to Disqualification of
the qualifications of a candidate as Candidates; and Section 1 of said rule
provided for by the Constitution or by provides that any candidate who
existing law or who commits any act commits any act declared by law to be a
declared by law to be grounds for ground for disqualification maybe
disqualification may be disqualified from disqualified from continuing as a
continuing as a candidate. candidate. The grounds for
disqualification as expressed in Sections
Sec. 2. Who May File Petition for 12 and 68 of the Code, are the
Disqualification. — Any citizen of voting following:
age, or duly registered political party,
organization or coalition of political Sec.
parties may file with the Law 12. Disqualification. —
Department of the Commission a Any person who has
petition to disqualify a candidate on been declared by
grounds provided by law. competent authority
insane or incompetent,
Sec. 3. Period to File Petition. — The or has been sentenced
petition shall be filed any day after the by final judgment for
last day for filing of certificates of subversion,
candidacy but not later than the date of insurrection, rebellion or
proclamation. for any offense for
which he has been
Sec. 4. Summary Proceeding. — The sentenced to a penalty
of more than eighteen
petition shall be heard summarily after
months or for a crime
due notice.
involving moral
turpitude, shall be
Sec. 5. Effect of Petition if Unresolved disqualified to be a
Before Completion of Canvass. — If the candidate and to hold
petition, for reasons beyond the control any office, unless he
of the Commission, cannot be decided has been given plenary
before the completion of the canvass, pardon or granted
the votes cast for the respondent may amnesty.
be included in the counting and in the
canvassing; however, if the evidence of
Sec.
guilt is strong, his proclamation shall be
63 DisquaIifications. —
suspended notwithstanding the fact that
Any candidate who, in
he received the winning number of votes
an action or protest in
in such election.
which he is a party is
declared by final
The underscored portion is the amendment to decision of 4 competent
Rule 25, which the COMELEC must have court guilty of, or found
deemed necessary to fill up a by the Commission of
procedural hiatus in cases of disqualifications having (a) given money
based on other grounds in the light of this or other material
Court's interpretation in Loong vs. Commission consideration to
on Elections (216 SCRA 760 [1992]) that Rule influence, induce or
25 refers only to disqualifications under Sections corrupt the voters or
12 and 68 of the Omnibus Election Code. This public officials
Court explicitly stated therein as follows: performing electoral
functions; (b) committed
We do not agree with private acts of terrorism to
respondent Ututalum's contention that enhance his candidacy;
the petition for disqualification, as in the (c) spent in his election
case at bar, may be filed at any time campaign an amount in
after the last day for filing a certificate of excess of that allowed
candidacy but not later than the date of by this Code; (d)
proclamation, applying Section 3, Rule solicited, received or
25 of the Comelec Rules of Procedure. made any contribution
prohibited under
 Sections 89, 95, 96, 97
and 104; or (e) violated
any of Sections 80, 83,
85, 86 and 261,
paragraphs d, e, k, v,
and cc, sub-paragraph
6, shall be disqualified
from continuing as a
candidate, or if he has
been elected, from
holding the office. Any
person who is a
permanent resident of
or an immigrant to a
foreign country shall not
be qualified to run for
any elective office under
this Code, unless said
person has waived his
status as permanent
resident or immigrant of
a foreign country in
accordance with the
residence requirement
provided for in the
election laws.
The petition filed by private respondent
Ututalum with the respondent Comelec
to disqualify petitioner Loong on the
ground that the latter made a false
representation in his certificate of
candidacy as to his age, clearly does
not fall under the grounds of
disqualification as provided for in Rule
25 but is expressly covered by Rule 23
of the Comelec Rules of Procedure
governing petitions to cancel certificate
of candidacy. Moreover, Section 3, Rule
25 which allows the filing of the petition
at any time after the last day for the
filing of certificates of candidacy but not
later than the date of proclamation, is
merely a procedural rule issued by
respondent Commission which,
although a constitutional body, has no
legislative powers. Thus, it can not
supersede Section 78 of the Omnibus
Election Code which is a legislative
enactment.
Second, even if we assume for the sake of argument
that the petition in SPA No. 95-113 fall under Section 78
of the Omnibus Election Code, still Section 6 of R.A. No.
6646 cannot be applied by virtue of Section 7 thereof.
Sections 6 and 7 reads:
Sec. 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.
Sec. 71 Petition to Deny Due Course to
or Cancel a Certificate of Candidacy. —
The procedure hereinabove provided
shall apply to petitions to deny due
course to or cancel a certificate of
candidacy as provided in Section 78
of Batas Pambansa Blg. 881.
The "procedure hereinabove provided" mentioned in
Section 7 cannot be construed to refer to Section 6
which does not provide for a procedure but for the
EFFECTS of disqualification cases. It can only refer to
the procedure provided in Section 5 of the said Act on
nuisance candidates which reads as follows:
Sec. 5. Procedure in Cases of Nuisance
Candidates. — A verified petition to
declare a duly registered candidate as a
nuisance candidate under Section 69 .f
Batas Pambansa Blg. 881 shall be filed
personally or through duly authorized
representative with the Commission by
any registered candidate for the same
office within five (5) days from the last
day for the filing of certificates of
candidacy. Filing by mail shall not be
allowed.
(b) Within three (3) days from the filing
of the petition, the Commission shall
issue summons to the respondent
candidate together with a copy of the
petition and its enclosures, if any.
(c) The respondent shall be given three
(3) days from receipt of the summons
within which to file his verified answer
(not a motion to dismiss) to the petition,
serving copy thereof upon the petitioner.
Grounds for a motion to dismiss may be
raised as affirmative defenses.
(d) The Commission may designate any
of its officials who are lawyers to hear
the case and receive evidence. The
proceeding shall be summary in nature.
 In lieu of oral testimonies, the parties
may be required to submit position
papers together with affidavits or
counter-affidavits and other
documentary evidence. The hearing
officer shall immediately submit to the
Commission his findings, reports, and
recommendations within five (5) days
from the completion of such submission
of evidence. The Commission shall
render its decision within five (5) days
from receipt thereof.
(e) The decision, order, or ruling of the
Commission shall, after five (5) days
from receipt of a copy thereof by the
parties, be final and executory unless
stayed by the Supreme Court.
(f) The Commission shall within twenty-
four hours, through the fastest available
means, disseminate its decision or the
decision of the Supreme Court or the
city or municipal election registrars,
boards of election inspectors, and the
general public in the political subdivision
concerned.
and which is the only procedure that precedes
Section 7 of the said Act. Heretofore, no law
provided for the procedure to govern cases
under Section 78. Applying to such cases,
through Section 7 of R.A. No. 6646, the
procedure applicable to cases of nuisance
candidates is prudent and wise, for both cases
necessarily require that they be decided before
the day of the election; hence, only summary
proceedings thereon can adequately respond to
the urgency of the matter.
Third, Section 6 merely supplements Section 72 of the
Omnibus Election Code providing as follows:
Sec. 72. Effects of disqualification cases
and priority. — The Commission and the
courts shall give priority to cases of
disqualification by reason of violation of
this Act to the end that a final decision
shall be rendered not later than seven
days before the election in which the
disqualification is sought.
Any candidate who has been declared
by final judgment to be disqualified shall
not be voted for, and the votes cast for
him shall not be counted. Nevertheless,
if for any reason, a candidate is not
declared by final judgment before an
election to be disqualified and he is
voted for and receives the winning
number of votes in such election, his
violation of the provisions of the
preceding sections shall not prevent his
proclamation and assumption to office.
by granting the COMELEC or the Court the
authority to continue hearing the case and to
suspend the proclamation if the evidence of guilt
is strong. As observed by this Court in its
majority "the phrase 'when the evidence of guilt
is strong' seems to suggest that the provisions of
Section 6 ought to be applicable only to
disqualification cases under Section 68 of the
Omnibus Election Code."
Fourth, the amended Rule 25 of the COMELEC Rules of
Procedure, which is the only rule governing petitions
filed before election or proclamation for the
disqualification of a candidate on the ground that he
lacks the qualifications provided for by the Constitution
or by law, does not, as can be gathered from Section 5
thereof, authorize the COMELEC to continue hearing the
case after the election.
Fifth, even assuming that the second sentence of
Section 6 of R.A. to No. 6646 is applicable to
disqualification cases based on the ground of lack of
qualification, it cannot be applied to a case does not
involve elective regional, provincial, and city officials,
and where suspension of proclamation is not warranted
because of the absence of strong evidence of guilt or
ineligibility. In such a case the candidate sought to be
disqualified but who obtains the highest number of votes
has to be proclaimed. Once he is proclaimed, the
COMELEC cannot continue with the case, and the
remedy of the opponent is to contest the winning
candidate's eligibility within ten days from proclamation
in a quo warranto proceeding which is within the
jurisdiction of the metropolitan or municipal trial courts, in
the case of barangay officials; the regional trial courts, in
case of municipal officials (Section 2(2), Article IX-C,
Constitution; Section 253, paragraph 2, B.P. Blg. 881);
the House of Representatives Electoral Tribunal, in the
case of Congressmen; the Senate Electoral Tribunal, in
the case of Senators (Section 17, Article VI,
Constitution); and the Supreme Court en banc, in the
case of the President or Vice-President (Section 4,
Article VII, Constitution).
If what is involved is an elective regional, provincial, or
city official, and the case cannot be decided before the
election, the COMELEC can, even after the proclamation
of the candidate sought to be disqualified, proceed with
the case by treating it as a petition for quo warranto,
since such a case properly pertains to the exclusive
jurisdiction of the COMELEC (Section 2(2), Article IX-C,
Constitution; Section 253, B.P. Blg. 881).
But even granting for the sake of argument that Sections
6 and 7 of R.A. No. 6646, in relation to Section 78 of the
Omnibus Election Code and the amended Rule 25 of the
COMELEC Rules of Procedure, are applicable, the order
of suspension of the petitioner's proclamation issued on
15 May 1995 is null and void for having been issued with
grave abuse of discretion. What was before the
COMELEC en banc at that stage was the decision of the
Second Division of 6 May 1995 dismissing the petition to
disqualify the petitioner and declaring him qualified for
the position. That decision is a direct and positive
rejection of any claim that the evidence of the petitioner's
guilt is strong. Note that it was only on 2 June 1995,
when the COMELEC en banc reversed the decision of
the Second Division, that it was found that the evidence
of the petitioner's ineligibility is strong. It would have
been otherwise if the Second Division had disqualified
the petitioner.
Besides, at the time the questioned order was issued,
there was no hearing yet on the private respondents'
motions for the suspension of the petitioner's
proclamation. In fact, in that order the COMELEC en
banc admitted that the said motions could not be
resolved without hearing, thus:
Pending the resolution of the petitioners'
Motion for Reconsideration filed on May
7, 1995; Urgent Motion Ad Cautelam to
Suspend Proclamation of Respondent
(May 10, 1995) filed on May 10, 1995;
and OMNIBUS MOTION (For
Reconsideration of the Honorable
Commission's [Second Division]
Resolution dated May 6, 1995, and 2nd
Urgent Motion Ad Cautelam to Suspend
Proclamation of Respondent Aquino,
which cannot be resolved without
hearing, without violating the right of the
respondent to due process. . . .
For being void from the beginning; it is as if the order of
15 May 1995 had not existed and could not, therefore,
be made permanent by the COMELEC en banc through
its resolution of 2 June 1995 whose dispositive portion
reads in part: [c]onsequently, the order of suspension of
the respondent should he obtain the winning number of
votes, issued by this Commission on 15 May 1995 is
now made permanent."
Absent a valid finding before the election or after the
canvass of election returns that the evidence of the
petitioner's guilt or ineligibility is strong, the COMELEC
should not have suspended the proclamation of the
petitioner. After the completion of the canvass the
petitioner should have been proclaimed.
This case then must be distinguished from that of Imelda
Romualdez-Marcos vs. Commission on Elections, G.R.
No. 119976, where the COMELEC en banc affirmed
before the elections, or on 7 May 1995, the Second
Division's resolution of 24 April 1995 disqualifying Mrs.
Marcos.
Accordingly, the order of 15 May 1995 and the resolution
of 2 June 1995 of the COMELEC en banc must be
annulled and set aside, and the COMELEC, through its
City Board of Canvassers of Makati, must be ordered to
immediately proclaim the petitioner, without prejudice to
the right of his opponents to file a petition for quo
warranto with the House of Representatives Electoral
Tribunal, which is the sole judge of all contests relating
to the election, returns and qualifications of the Members
of the House of Representatives (Section 17, Article VI,
Constitution).
In view of the foregoing, a disquisition on the merits of
the ground for the petitioner's disqualification will no
longer be proper.
I vote to GRANT the instant petition, to ANNUL and SET
ASIDE the challenged order and resolution of the
Commission on Elections en banc, and to DIRECT the
Board of Canvassers of Makati City to reconvene and
proclaim the petitioner as the winning candidate, without
prejudice on the part of any aggrieved party to file the
appropriate action in the House of Representatives
Electoral Tribunal.
Romero and Bellosillo, JJ., concur.
VITUG, J., separate opinion:
I find what I would consider as the relevant issues in this
petition as similar in almost all material respects to those
obtaining in G.R. No. 119976 (Imelda Romualdez-
Marcos vs. Commission on Elections and Cirilo Roy
Montejo). Let me then here just reiterate what I have
there said in my separate opinion.
The case at bench deals with explicit Constitutional
mandates.
The Constitution is not a pliable instrument. It is a
bedrock in our legal system that sets up ideals and
directions and render steady our strides hence. It only
looks back so as to ensure that mistakes in the past are
not repeated. A complaint transience of a constitution
belittles its basic function and weakens its goals. A
constitution may well become outdated by the realities of
time. When it does, it must be changed but while it
remains, we owe it respect and allegiance. Anarchy,
open or subtle, has never been, nor must it ever be, the
answer to perceived transitory needs, let alone societal
attitudes, or the Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory
in character unless, either by express statement or by
necessary implication, a different intention is manifest
(see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section
6 and Section 17 of Article VI of the fundamental law.
These provisions read:
Sec. 6. No person shall be a Member of
the House of Representatives unless he
is a natural-born citizen of the
Philippines and, on the day of the
election, is at least twenty-five years of
age, able to read and write, and, except
the party-list representatives, a
registered voter in the district in which
he shall be elected, and a resident
thereof for a period of not less than one
year immediately preceding the day of
the election.
Sec. 17. The Senate and the House of
Representatives shall each have an
Electoral Tribunal which shall be the
sole judge of all contests relating to the
election, returns, and qualifications of
their respective Members. Each
Electoral Tribunal shall be composed of
nine Members, three of whom shall be
Justices of the Supreme Court to be
designated by the Chief Justice, and the
remaining six shall be Members of the
Senate or the House of
Representatives, as the case may be,
who shall be chosen on the basis of
proportional representation from the
political parties and the parties or
organizations registered under the
party-list system represented therein.
The senior Justice in the Electoral
Tribunal shall be its Chairman.
The Commission on Election (the "COMELEC") is
constitutionally bound to enforce and administer "all laws
and regulations relative to the conduct of election . . ."
(Art. IX, C, Sec. 2, Constitution) that, there being nothing
said to the contrary, should include its authority to pass
upon the qualification and disqualification prescribed by
law of candidates to an elective office. Indeed, pre-
proclamation controversies are expressly placed under
the COMELEC's jurisdiction to hear and resolve (Art. IX,
C, Sec. 3, Constitution).
The matter before us specifically calls for the
observance of the constitutional one-year residency
requirement. This issue (whether or not there is here
such compliance), to my mind, is basically a question of
fact or at least inextricably linked to such determination.
The findings and judgment of the COMELEC, in
accordance with the long established rule and subject
only to a number of exceptions under the basic heading
of "grave abuse of discretion," are not reviewable by this
Court.
I do not find much need to do a complex exercise on
what seems to me to be a plain matter. Generally, the
term "residence" has a broader connotation that
mean permanent (domicile), official (place where one's
official duties may require him to stay) or temporary (the
place where he sojourns during a considerable length of
time). For Civil law purposes, i.e., as regards the
exercise of civil rights and the fulfillment of civil
obligations, the domicile of a natural person is the place
of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional
Trial Court, Branch 7, Tacloban City (226 SCRA 408,
409); thus:
In election cases, the Court treats
domicile and residence as synonymous
terms, thus: "(t)he term "residence" as
used in the election law is synonymous
with "domicile," which imports not only
an intention to reside in a fixed place but
also personal presence in that place,
coupled with conduct indicative of such
intention." "Domicile" denotes a fixed
permanent residence to which when
absent for business or pleasure, or for
like reasons, one intends to return. . . .
Residence thus acquired, however, may
be lost by adopting another choice of
domicile. In order, in turn, to acquire a
new domicile by choice, there must
concur (1) residence or bodily presence
in the new locality, (2) an intention to
remain there, and (3) an intention to
abandon the old domicile. In other
words, there must basically be animus
manendi coupled with animus non
revertendi. The purpose to remain in or
at the domicile of choice must be for an
indefinite period of time; the change of
residence must be voluntary, and the
residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that
we can charge the COMELEC with having
committed grave abuse of discretion in its
assailed resolution.
The COMELEC's jurisdiction, in the case of
congressional elections, ends when the jurisdiction of
the Electoral Tribunal concerned begins. It signifies that
the protestee must have theretofore been duly
proclaimed and has since become a "member" of the
Senate or the House of Representatives. The question
can be asked on whether or not the proclamation of a
candidate is just a ministerial function of the Commission
on Elections dictated solely on the number of votes cast
in an election exercise. I believe, it is not. A ministerial
duty is an obligation the performance of which, being
adequately defined, does not allow the use of further
judgment or discretion. The COMELEC; in its particular
case, is tasked with the full responsibility of ascertaining
all the facts and conditions such as may be required by
law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain
from any undue encroachment on the ultimate exercise
of authority by the Electoral Tribunals on matters which,
by no less than a constitutional fiat, are explicitly within
their exclusive domain. The nagging question, if it were
otherwise, would be the effect of the Court's peremptory
pronouncement on the ability of the Electoral Tribunal to
later come up with its own judgment in a contest
"relating to the election, returns and qualification" of its
members.
Prescinding from all the foregoing, I should like to next
touch base on the applicability to this case of Section 6
of Republic Act No. 6646, in relation to Section 72
of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case.
— Any candidate who has been
declared by final judgment to be
disqualified shall not be voted for, and
the votes cast for him shall not be
counted. If for any reason a candidate is
not declared by final judgment before an
election to be disqualified and he is
voted for and receives the winning
number of votes in such election, the
Court or Commission shall continue with
the trial and hearing of the action,
inquiry or protest and, upon motion of
the complainant or any intervenor, may
during the pendency thereof order the
suspension of the proclamation of such
candidate whenever the evidence of his
guilt is strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases
and priority. — The Commission and the
courts shall give priority to cases of
disqualification by reason of violation of
this Act to the end that a final decision
shall be rendered not later than seven
days before the election in which the
disqualification is sought.
Any candidate who has been declared
by final judgment to be disqualified shall
not be voted for, and the votes cast for
him shall not be counted. Nevertheless,
if for any reason, a candidate is not
declared by final judgment before an
election to be disqualified, and he is
voted for and receives the winning
number of votes in such election, his
violation of the provisions of the
preceding sections shall not prevent his
proclamation and assumption to office.
I realize that in considering the significance of the law, it
may be preferable to look for not so much the specific
instances they ostensibly would cover as the principle
they clearly convey. Thus, I will not scoff at the argument
that it should be sound to say that votes cast in favor of
the disqualified candidate, whenever ultimately declared
as such, should not be counted in his or her favor and
must accordingly be considered to be stray votes. The
argument, nevertheless, is far outweighed by the
rationale of the now prevailing doctrine first enunciated
in the case of Topacio vs. Paredes (23 Phil. 238 (1912])
which, although later abandoned in Ticzon
vs. Comelec (103 SCRA 687 [1981]), and Santos
vs. COMELEC (137 SCRA 740 [1985]), was restored,
along with the interim case of Geronimo vs. Ramos (136
SCRA 435 [1985]), by the Labo (176 SCRA 1 [1989]),
Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297
[1992]) and, most recently, Benito (235 SCRA 436
(1994]) rulings. Benito vs. Comelec was a unanimous
decision penned by Justice Kapunan and concurred in
by Chief Justice Narvasa, Justices Feliciano, Padilla,
Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were
on official leave). For easy reference, let me quote from
the first Labo decision:
Finally, there is the question of whether
or not the private respondent, who filed
the quo warranto petition, can replace
the petitioner as mayor. He cannot. The
simple reason is that as he obtained
only the second highest number of votes
in the election, he was obviously not the
choice of the people of Baguio City.
The latest ruling of the Court on this
issue is Santos v. Commission on
Elections, (137 SCRA 740) decided in
1985. In that case, the candidate who
placed second was proclaimed elected
after the votes for his winning rival, who
was disqualified as a turncoat and
considered a non-candidate, were all
disregard as stray. In effect, the second
placer won by default. That decision
was supported by eight members of the
Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin,
Relova, De la Fuente, Alampay and
Aquino, JJ., concurring.) with three
dissenting (Teehankee, Acting C.J.,
Abad Santos and Melencio-Herrera, JJ.) Juris 2nd, S 234, p.
and another two reserving their vote. 676.)
(Plana and Gutierrez, Jr., JJ.) One was
on official leave. (Fernando, C.J.) The fact that the
candidate who obtained
Re-examining that decision, the Court the highest number of
finds, and so holds, that it should be votes is later declared
reversed in favor of the earlier case to be disqualified or not
of Geronimo v. Ramos, (136 SCRA 435) eligible for the office to
which represents the more logical and which he was elected
democratic rule. That case, which does not necessarily
reiterated the doctrine first announced in entitle the candidate
1912 in Topacio v. Paredes, (23 Phil. who obtained the
238) was supported by ten members of second highest number
the Court, (Gutierrez, Jr., ponente, with of votes to be declared
Teehankee, Abad Santos, Melencio- the winner of the
Herrera, Plana, Escolin, Relova, De la elective office. The
Fuente, Cuevas and Alampay, JJ., votes cast for a dead,
concurring) without any dissent, disqualified, or non-
although one reserved his vote, eligible person may not
(Makasiar, J.) another took no part, be valid to vote the
(Aquino, J.) and two others were on winner into office or
leave. (Fernando, C.J. and Concepcion, maintain him there.
Jr., J.) There the Court held: However, in the
absence of a statute
. . . it would be which clearly asserts a
extremely repugnant to contrary political and
the basic concept of the legislative policy on the
constitutionally matter, if the votes were
guaranteed right to cast in the sincere belief
suffrage if a candidate that the candidate was
who has not acquired alive, qualified, or
the majority or plurality eligible, they should not
of votes is proclaimed a be treated as stray, void
winner and imposed as or meaningless. (at pp.
the representative of a 20-21)
constituency, the
majority of which have Accordingly, I am constrained to vote for the
positively declared dismissal of the petition.
through their ballots that
they do not choose him.

Sound policy dictates MENDOZA, J., separate opinion:

that public elective
offices are filled by
For the reasons expressed in my separate opinion in the
those who have companion case. G.R. No. 119976. Imelda Romualdez-
received the highest Marcos v. Commission on Elections. I am of the opinion
number of votes cast in
that the Commission on Elections has no jurisdiction
the election for that
over petitions for disqualification of candidates based on
office, and it is a
alleged ineligibility for the office to which they seek
fundamental idea in all election.
republican forms of
government that no one
can be declared elected The May 15, 1995 resolution of the COMELEC en banc,
and no measure can be suspending he obtain the highest number of votes of
declared carried unless Representative of the Second District of Makati, Metro
he or it receives a Manila, purports to have been issued pursuant to §6 of
majority or plurality of R.A. No. 6646. This provision authorizes the COMELEC
the legal votes cast in to order the suspension of the proclamation "whenever
the election. (20 Corpus the evidence of his guilt is strong." As explained in my
separate opinion in G.R. No. 119976, however, this
provision refers to proceedings under §68 of the
Omnibus Election Code which provides for the
disqualification of candidates found guilty of using what
in political parlance have been referred to as "guns
goons or gold" to influence the outcome of elections.
Since the disqualification of petitioner in this case was
not sought on this ground, the application of §6 of R.A..
No. 6646 is clearly a grave abuse of discretion on the
part of the COMELEC.
Nor may the petition to disqualify petitioner in the
COMELEC be justified under §78 of the OEC which
authorizes the filing of a petition for the cancellation of
certificates of candidacy since such a petition maybe
filed "exclusively on the ground that a material
representation contained [in the certificate] as required
under section 74 is false." There was no allegation that
in stating in his certificate of candidacy that he is a
resident of Amapola St., Palm Village, Guadalupe Viejo,
Makati, Metro Manila, petitioner made any false
representation.
For this reason, I am of the opinion that the COMELEC
had no jurisdiction over SPA No. 95-113; that its
proceedings in SPA No. 95-113, including the
questioned orders, are void; and that the qualifications of
petitioner Agapito A. Aquino for the position of
Representative of the Second District of the City of
Makati may only be inquired into by the House of
Representatives Electoral Tribunal.
This conclusion makes it unnecessary for me to express
my view at this time on the question whether, in the
event the candidate who obtained the highest number of
votes is declared ineligible, the one who received the
next highest number of votes is entitled to be declared
the winner.
Accordingly, I vote (1) to grant the petition in this case
and (2) to annul the proceedings of the Commission on
Elections in SPA No. 95-113, including the questioned
orders, dated May 6, 1995. May 15, 1995, and the two
orders both dated June 2, 1995, so far as they declare
petitioner Agapito A. Aquino to be ineligible for the
position of Representative of the Second District of the
City of Makati and direct the City Board of Canvassers of
Makati to determine and proclaim the winner out of the
remaining qualified candidates.
Narvasa, J., concurs.
Separate Opinions
PADILLA, J., concurring:
I agree with the conclusion reached by the majority that
petitioner Aquino has not shown by clear and convincing
evidence that he had established his residence in the
second district of Makati City for a period of not less than
one (1) year prior to the 8 May 1995 elections. However,
I do not fully subscribe to its proposition that petitioner's
residence (in Makati) should be his "domicile of choice".
Article VI, Section 6 of the Constitution provides that:
No person shall be a member of the
House of Representatives unless he is a
natural-born citizen of the Philippines
and on the day of the election, is at least
twenty-five years of age, able to read
and write, and, except the party list
representatives, a registered voter in the
district in which he shall be elected, and
a resident thereof for a period of not less
than one year immediately preceding
the day of the election. (emphasis
supplied).
In G.R. No. 119976, Marcos vs. Comelec, I have
maintained that the phrase "a resident thereof for a
period of not less than one year"
means actual and physical presence in the legislative
district of the congressional candidate, and that said
period of one year must be satisfied regardless of
whether or not a person's residence or domicile
coincides.
To my mind, petitioner should be declared disqualified to
run as representative in the 2nd district of Makati City in
the 8 May 1995 elections not because he failed to prove
his residence therein as his domicile of choice, but
because he failed altogether to prove that he
had actually and physically resided therein for a period
of not less than one (1) year immediately preceding the
8 May 1995 elections.
Noteworthy is the established fact before the Comelec
that petitioner admits having maintained other
residences in Metro Manila apart from his leased
1
condominium unit in Makati's 2nd district. This clear
admission made by petitioner against his interest
weakens his argument that "where a party decides to
transfer his legal residence so he can qualify for public
office, he is free to do so." (see p. 20, Petition).
Petitioner evidently wants to impress the Court that his
other residences in Metro Manila could never have
become his domicile of choice because it never entered
his mind and suddenly, seemingly not contented with
these other residences, he rents a condominium unit in
Makati, and calls it his domicile of choice — all these
without adding clear and convincing evidence that he
did actually live and reside in Makati for at least one year
prior to 8 May 1995 — and that he no longer lived and
resided in his other residences during said one year
period.
It follows, likewise, that the lease contract relied upon by
petitioner, standing alone, established only the alleged
date (April 25, 1994) of its due execution. Stated
otherwise, the lease contract tells us that petitioner had
been leasing a condominium unit in Makati City for more
than a year prior to 8 May 1995, but it does not prove
that petitioner actually and physically resided therein for
the same period, in the light of his admission that he
maintained other residences in Metro Manila.
In light of petitioner's disqualification, the corrollary issue
to be resolved is whether or not jurisdiction continued to
be vested in the Comelec to order the Makati Board of
Canvassers" to determine and proclaim the winner out of
the remaining qualified candidates" after petitioner had
been declared post 8 May 1995 as disqualified.
I agree with the proposition advanced by the Solicitor
General that sec. 6 of R.A. 6646 clearly provides that
votes cast for a disqualified candidate shall not be
counted, thus:
Sec. 6. Effect of Disqualification Case.
— Any candidate who has been
declared by final 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 can be no dispute that if a final judgment is
rendered before the election, declaring a particular
candidate as disqualified, such disqualified candidate
shall not be voted for and votes cast for him shall not be
counted, thus posing no problem in proclaiming the
candidate who receives the highest number of votes
among the qualified candidates.
But what about after the election? Sec. 6 appears
categorical enough in stating: "if any reason" no final
judgment of disqualification is rendered before the
elections, and the candidate facing disqualification is
voted for and receives the winning number of votes, the
Comelec or the Court is not ousted of its jurisdiction to
hear and try the case up to final judgment, hence, the
power to even suspend the proclamation of the erstwhile
winning candidate when evidence of his guilt is strong.
It thus appears clear that the law does not dichotomize
the effect of a final judgment of disqualification in terms
of time considerations. There is only one natural and
logical effect: the disqualified candidate shall not be
voted and, if voted, the votes cast for him shall not be
counted. Ubi lex non distinguit nec nos distinguere
debemus (where the law does not distinguish, we should
not distinguish.)
At this point, what I said in Marcos, supra, follows:
What happens then when after the
elections are over, one is declared
disqualified? Then, votes cast for him
"shall not be counted" and in legal
contemplation, he no longer received
the highest number of votes.
It stands to reason that Section 6 of RA
6646 does not make the second placer
the winner simply because a "winning
candidate is disqualified," but that the
law considers him as the candidate who
had obtained the highest number of
votes as a result of the votes cast for the
disqualified candidate not being counted
or considered.
As this law clearly reflects the legislative
policy on the matter, then there is no
reason why this Court should not re-
examine and consequently abandon the
doctrine in the Jun Labo case. It has
been stated that "the qualifications
prescribed for elective office cannot be
erased by the electorate alone. The will
of the people as expressed through the
ballot cannot cure the vice of ineligibility"
most especially when it is mandated by
no less than the Constitution.
Therefore the candidate who received the highest
number of votes from among the qualified candidates,
should be proclaimed
ACCORDINGLY, I vote to DISMISS the petition.
FRANCISCO, J., concurring and dissenting:
I concur with the well written ponencia of my most
esteemed colleague, Mr. Justice Kapunan. I wish,
however, to express my views on some issues raised by
the petitioner, viz., (1) jurisdiction over the
disqualification suit, (2) domicile, (3) theory of legal
impossibility, and (4) "second placer rule".
Petitioner emphatically maintains that only the House of
Representatives Electoral Tribunal (HRET) can declare
his disqualification, especially after the elections. To
bolster this stand, the cases of Co v. HRET, 199 SCRA
692 (1991); Robles v. HRET, 181 SCRA 780
(1990); Lazatin v. HRET, 168 SCRA 391 (1988);
and Lachica v. Yap, 25 SCRA 140 (1968), have been
cited as supporting authorities. To my mind, this position
is untenable. Section 17 of Article VI of the 1987
Constitution is clear and unambiguous that HRET
jurisdiction applies only to the members of the House of
Representatives. The operative acts necessary for an
electoral candidate's rightful assumption of the office for
which he ran are his proclamation and his taking an oath
of office. Petitioner cannot in anyway be considered as a
member of the House of Representatives for the
purpose of divesting the Commission on Elections of
jurisdiction to declare his disqualification and invoking
instead HRET's jurisdiction, it indubitably appearing that
he has yet to be proclaimed, much less has he taken an
oath of office. Clearly, petitioner's reliance on the
aforecited cases which when perused involved
Congressional members, is totally misplaced, if not
wholly inapplicable. That the jurisdiction conferred upon
HRET extends only to Congressional members is further
established by judicial notice of HRET Rules of
1 2
procedure, and HRET decisions consistently holding
that the proclamation the essential requisite vesting
jurisdiction on the HRET.
Moreover, a perusal of the records shows that the
question on COMELEC's jurisdiction is now barred by
estoppel. It is to be noted that in his May 2, 1995
Answer, as well as in his Memorandum and
Supplemental Memorandum filed before the
COMELEC's Second Division, petitioner never assailed
COMELEC's lacks of jurisdiction to rule on his
qualification. On the contrary, he asked that the
disqualification suit against him be dismissed on the
following grounds: that it was filed outside the
reglementary period; that the one year residence
requirement of the 1987 Constitution is inapplicable due
to the recent conversion of the municipality of Makati into
a city under R.A. No. 7854; that he committed a simple
inadvertence in filing up his certificate of candidacy; that
the proper procedure to attack his qualification is by a
quo warranto proceeding; that he had actually and
physically resided in Makati for more than a year; and for
lack of merit, the case should be outrightly dismissed. In
a hearing conducted by the COMELEC on May 2, 1995,
petitioner even submitted his evidence (e.g. affidavits,
amended certificate of candidacy, copy of the lease
contract) to prove that he is qualified for the position.
Subsequently, on May 16, 1995, in response to the
COMELEC En Banc's May 15, 1995 Order suspending
the proclamation of the winner, petitioner filed his
Comment/Opposition with Urgent Motion To Lift Order of
Suspension of Proclamation asking for the lifting of the
COMELEC's order of suspension. On May 19, 1995,
petitioner again filed a Memorandum and averred that
the recent conversion of Makati into a city made the one-
year residence requirement inapplicable; that he resided
in Makati for more than a year; that quo warranto is the
right remedy to question his qualification. In passing,
petitioner also alleged that the issue on his qualification
should be "properly" ventilated in a full-dress hearing
before the HRET, albeit praying for the dismissal of the
motion for reconsideration for utter lack of merit (and not
for lack of jurisdiction), and for lifting the suspension of
his proclamation. It was only on June 01, 1995, in his
Motion to File Supplemental Memorandum and Urgent
Motion to Resolve Motion to Lift Suspension of
Proclamation, when the petitioner raised COMELEC's
alleged lack of jurisdiction to resolve the question on his
qualification. Clearly then, petitioner has actively
participated in the proceedings both before the
COMELEC's Second Division and the COMELEC En
Banc asking therein affirmative reliefs. The settled rule is
that a party who objects to the jurisdiction of the court
and alleges at the same time any non-jurisdictional
ground for dismissing the action is deemed to have
3
submitted himself to the jurisdiction of the court. Where
a party voluntary submits to the jurisdiction of the court
and thereafter loses on the merits, he may not thereafter
be heard to say that the court had no
4 5
jurisdiction. In Jimenez v. Macaraig, the Court,
citing Crisostomo v. Court of Appeals, 32 SCRA 54, 60
(1970), elaborated on the rationale for this doctrine in
this wise:
The petitioners, to borrow the language
of Mr. Justice Bautista Angelo (People
vs. Archilla, G.R. No. L-15632, February
28, 1961, 1 SCRA 699, 700-701),
cannot adopt a posture of double-
dealing without running afoul of the
doctrine of estoppel. The principle of
estoppel is in the interest of a sound
administration of the laws. It should
deter those who are disposed to trifle
with the courts by taking inconsistent
positions contrary to the elementary
principles of right dealing and good faith
(People v. Acierto, 92 Phil. 534, 541,
6
[1953]).
It is not right for a party who has affirmed and
invoked the jurisdiction of a court in a particular
matter to secure an affirmative relief to
afterwards deny that same jurisdiction to escape
7
an adverse decision. Perforce, petitioner's
asseveration that the COMELEC has no
jurisdiction to rule on his qualification must fail.
Petitioner insists that domicile is a matter of personal
intention. Thus, petition asserts that if he decides to
transfer his legal residence so he can qualify for public
office then he is entirely free to do so. Thus argument to
hold water, must be supported by a clear and convincing
proofs that petitioner has effectively abandoned his
former domicile and that his intention is not doubtful.
Indeed, domicile once established is considered to
continue and will not be deemed lost until a new one is
established (Co v. Electoral Tribunal House of
Representatives, 199 SCRA 692, 711 [1991]). Petitioner
from childhood until his last election as senator has
consistently maintained Concepcion, Tarlac, as his
domicile. He moved to Amapola Street, Palm Village,
Makati, and thereafter claimed the same to be his new
domicile. This claim, however, is dismally unsupported
by the records. The lease contract entered into by
petitioner for a period of two years on the third floor
condominium unit in Palm Village, Makati, in my view,
does not prove his intent to abandon his domicile of
origin. The intention to establish domicile must be an
intention to remain indefinitely or permanently in the new
8
place. This element is lacking in this instance. Worse,
public respondent Commission even found that
"respondent Aquino himself testified that his intention
was really for only one (1) year because he has other
'residences' in Manila or in Quezon City ([citing] TSN,
May 2, 1995,
9
p. 92)". Noting that petitioner is already barred from
running for senator due to the constitutional consecutive
two-term limit, his search for a place where he could
further and continue his political career and sudden
transfer thereto make his intent suspect. The best test of
intention to establish legal residence
comes from one's acts and not by mere declarations
10
alone. To acquire, or effect a change of domicile, the
intention must be bonafide and unequivocal (28 C.J.S.
§11). Petitioner, in my view, miserably failed to show
a bonafide and unequivocal intention to effect the
change of his domicile.
The theory of legal impossibility is advanced to justify
non-compliance with the constitutional qualification on
residency. Petitioner explains his theory in this wise:
. . . THE COMELEC CRITICALLY
ERRED IN FAILING TO APPRECIATE
THE LEGAL IMPOSSIBILITY OF
ENFORCING THE ONE YEAR
RESIDENCY REQUIREMENT OF
CONGRESSIONAL CANDIDATES IN
NEWLY CREATED POLITICAL
DISTRICTS WHICH WERE ONLY
EXISTING FOR LESS THAN A YEAR
AT THE TIME OF THE ELECTION AND
BARELY FOUR MONTHS IN THE
CASE OF PETITIONER'S DISTRICT IN
11
MAKATI.
Apparently, this theory is an offshoot of Republic
Act. No. 7854, an act converting the municipality
of Makati into a highly urbanized city. This law
enacted on January 2, 1995, established a
second Congressional district in Makati in which
petitioner ran as a Congressional candidate.
Since the second district, according to petitioner,
is barely four (4) months old then the one (1)
year residence qualification provided by the
Constitution is inapplicable. Petitioner's acts,
however, as borne by the records, belie his own
theory. Originally, he placed in his certificate of
candidacy an entry of ten (10) months residence
in Makati. Petitioner then had it amended to one
(1) year and thirteen (13) days to correct what
claims as a mere inadvertent mistake. I doubt
the sincerity of this representation. If petitioner is
indeed persuaded by his own theory, the ten
months residence he initially wrote would have
more than sufficiently qualified him to run in the
barely four-month old Makati district. The
amendment only reveals the true intent of
petitioner to comply with one year constitutional
requirement for residence, adding an extra
thirteen (13) days full measure. Petitioner
apparently wanted to argue one way (theory of
legal impossibility), but at the same time played
it safe in the other (the constitutional one year
residence requirement). And that is not all. If we
were to adhere to petitioner's theory of legal
impossibility, then residents in that district shorn
of the constitutional six months residence
requirement for prospective voters (Article V,
Section 1 of the 1987 Constitution) would have
certainly qualified to vote. That would have
legitimized the entry and electoral exercise of
flying voters — one of the historic nemeses of a
clean and honest election. Furthermore, to
subscribe to petitioner's contention that the
constitutional qualification of candidates should
be brushed aside in view of the enactment of
R.A. No. 7854 will indubitably violate the manner
and procedure for the amendment or revision of
the constitution outlined under Article XVIII of
the 1987 Constitution. A legislative enactment, it
has to be emphasized, cannot render nugatory
the constitution. The constitution is superior to a
statute. It is the fundamental and organic law of
the land to which every statute must conform
and harmonize.
Finally, it has been contended that a second place
candidate cannot be proclaimed a substitute winner. I
find the proposition quite unacceptable. A disqualified
"candidate" is not a candidate and the votes which may
have been cast in his favor are nothing but stray votes of
no legal consequence. A disqualified person like the
petitioner receives no vote or zero vote. In short,
no-candidate-no vote. Petitioner had therefore no right,
in fact and in law, to claim first place for he has nothing
to base his right. The legislative intent is clear as
provided by R.A. 6646, Section 6, in that votes cast for a
disqualified candidate shall not be counted as they are
considered stray (Section 211, Rule 24, Omnibus
Election Code). It is only from the ranks of qualified
candidates can one be chosen as first placer and not
from without. Necessarily, petitioner, a disqualified
candidate, cannot be a first placer as he claims himself
to be. To count the votes for a disqualified candidate
would, in my view, disenfranchise voters who voted for a
qualified candidate. Legitimate votes cast for a qualified
candidate should not be penalized alongside a
disqualified candidate. With this in mind, the other
qualified candidate who garnered the highest number of
votes should be proclaimed the duly elected
representative of the district. I feel that the Labo doctrine
ought to be abandoned.
I therefore vote to deny the petition and to lift the
temporary restraining order issued by the Court dated
June 6, 1995.
DAVIDE, JR., J., dissenting:
In sustaining the COMELEC's acts of suspending the
proclamation of petitioner Agapito A. Aquino and of
proceeding to hear the disqualification case against him,
the majority opinion relies on Section 6 of R.A. No. 6646
which it claims to be applicable by virtue of Section 7
thereof to petitions to deny due course to or cancel a
certificate of candidacy under Section 78 of the Omnibus
Election Code (B.P. Blg. 881).
I disagree.
In the first place, the petition to disqualify the petitioner in
SPA No. 95-113 is not a petition to deny due course to
or cancel a certificate of candidacy under Section 78,
which reads:
Sec. 78. Petition to deny due course to
or cancel a certificate of candidacy. — A
verified petition seeking to deny due
course or to cancel a certificate of
candidacy may be filed by any
person exclusively on the ground that
any material representation contained
therein as required under Section 74
hereof is false. The petition may be filed
at any time not later than twenty-five
days from the time of the filing of the
certificate of candidacy and shall be
decided, after due notice and hearing,
not later than fifteen days before the
election. (emphasis supplied)
Nowhere in the petition in SPA No. 95-113 is it alleged
by the private respondents that a material representation
contained in the petitioner's certificate of candidacy is
false. What is being attacked therein is the petitioner's
lack of the one-year residence qualification in the new
Second Legislative District of Makati City where he
sought to he elected for the office of Congressman.
The rule governing disqualification cases on the ground
of ineligibility, which is also invoked by the private
respondents, is Rule 25 of the COMELEC Rules of
Procedure, as amended on 15 February 1993. The
amendment allows the, filing of a petition to disqualify a
candidate on the ground that he does not possess all the
qualifications provided for by the Constitution or by
existing laws. In its original form, the rule only applied to
petitions for disqualification based on the commission of
any act declared by law to be a ground for
disqualification. The rule as thus amended now reads as
follows:
Rule 25 — Disqualification of
Candidates
Sec. 1. Grounds for Disqualification. —
Any candidate who does not possess all
the qualifications of a candidate as
provided for by the Constitution or by
existing law or who commits any act
declared by law to be grounds for
disqualification may be disqualified from
continuing as a candidate.
Sec. 2. Who May File Petition for
Disqualification. — Any citizen of voting
age, or duly registered political party,
organization or coalition of political
parties may file with the Law
Department of the Commission a
petition to disqualify a candidate on
grounds provided by law.
Sec. 3. Period to File Petition. — The
petition shall be filed any day after the
last day for filing of certificates of
candidacy but not later than the date of
proclamation.
Sec. 4. Summary Proceeding. — The
petition shall be heard summarily after
due notice.
Sec. 5. Effect of Petition if Unresolved
Before Completion of Canvass. — If the
petition, for reasons beyond the control
of the Commission, cannot be decided
before the completion of the canvass,
the votes cast for the respondent may
be included in the counting and in the
canvassing; however, if the evidence of
guilt is strong, his proclamation shall be
suspended notwithstanding the fact that
he received the winning number of votes
in such election.
The underscored portion is the amendment to
Rule 25, which the COMELEC must have
deemed necessary to fill up a
procedural hiatus in cases of disqualifications
based on other grounds in the light of this
Court's interpretation in Loong vs. Commission
on Elections (216 SCRA 760 [1992]) that Rule
25 refers only to disqualifications under Sections
12 and 68 of the Omnibus Election Code. This
Court explicitly stated therein as follows:
We do not agree with private
respondent Ututalum's contention that
the petition for disqualification, as in the
case at bar, may be filed at any time
after the last day for filing a certificate of
candidacy but not later than the date of
proclamation, applying Section 3, Rule by this Code; (d)
25 of the Comelec Rules of Procedure. solicited, received or
made any contribution
Rule 25 of the Comelec Rules of prohibited under
Procedure refers to Disqualification of Sections 89, 95, 96, 97
Candidates; and Section 1 of said rule and 104; or (e) violated
provides that any candidate who any of Sections 80, 83,
commits any act declared by law to be a 85, 86 and 261,
ground for disqualification maybe paragraphs d, e, k, v,
disqualified from continuing as a and cc, sub-paragraph
candidate. The grounds for 6, shall be disqualified
disqualification as expressed in Sections from continuing as a
12 and 68 of the Code, are the candidate, or if he has
following: been elected, from
holding the office. Any
person who is a
Sec.
12. Disqualification. — permanent resident of
or an immigrant to a
Any person who has
foreign country shall not
been declared by
competent authority be qualified to run for
insane or incompetent, any elective office under
this Code, unless said
or has been sentenced
person has waived his
by final judgment for
status as permanent
subversion,
insurrection, rebellion or resident or immigrant of
for any offense for a foreign country in
accordance with the
which he has been
residence requirement
sentenced to a penalty
provided for in the
of more than eighteen
election laws.
months or for a crime
involving moral
turpitude, shall be The petition filed by private respondent
disqualified to be a Ututalum with the respondent Comelec
candidate and to hold to disqualify petitioner Loong on the
any office, unless he ground that the latter made a false
has been given plenary representation in his certificate of
pardon or granted candidacy as to his age, clearly does
amnesty. not fall under the grounds of
disqualification as provided for in Rule
25 but is expressly covered by Rule 23
Sec.
63 DisquaIifications. — of the Comelec Rules of Procedure
Any candidate who, in governing petitions to cancel certificate
of candidacy. Moreover, Section 3, Rule
an action or protest in
25 which allows the filing of the petition
which he is a party is
at any time after the last day for the
declared by final
filing of certificates of candidacy but not
decision of 4 competent
court guilty of, or found later than the date of proclamation, is
by the Commission of merely a procedural rule issued by
respondent Commission which,
having (a) given money
although a constitutional body, has no
or other material
legislative powers. Thus, it can not
consideration to
supersede Section 78 of the Omnibus
influence, induce or
corrupt the voters or Election Code which is a legislative
public officials enactment.
performing electoral
functions; (b) committed Second, even if we assume for the sake of argument
acts of terrorism to that the petition in SPA No. 95-113 fall under Section 78
enhance his candidacy; of the Omnibus Election Code, still Section 6 of R.A. No.
(c) spent in his election 6646 cannot be applied by virtue of Section 7 thereof.
campaign an amount in Sections 6 and 7 reads:
excess of that allowed
 Sec. 6. Effect of Disqualification Case.
— Any candidate who has been
declared by final judgment to be
disqualified shall not be voted for, and
the votes cast for him shall not be
counted. If for any reason a candidate is
not declared by final judgment before an
election to be disqualified and he is
voted for and receives the winning
number of votes in such election, the
Court or Commission shall continue with
the trial and hearing of the action,
inquiry or protest and, upon motion of
the complainant or any intervenor, may
during the pendency thereof order the
suspension of the proclamation of such
candidate whenever the evidence of his
guilt is strong.
Sec. 71 Petition to Deny Due Course to
or Cancel a Certificate of Candidacy. —
The procedure hereinabove provided
shall apply to petitions to deny due
course to or cancel a certificate of
candidacy as provided in Section 78
of Batas Pambansa Blg. 881.
The "procedure hereinabove provided" mentioned in
Section 7 cannot be construed to refer to Section 6
which does not provide for a procedure but for the
EFFECTS of disqualification cases. It can only refer to
the procedure provided in Section 5 of the said Act on
nuisance candidates which reads as follows:
Sec. 5. Procedure in Cases of Nuisance
Candidates. — A verified petition to
declare a duly registered candidate as a
nuisance candidate under Section 69 .f
Batas Pambansa Blg. 881 shall be filed
personally or through duly authorized
representative with the Commission by
any registered candidate for the same
office within five (5) days from the last
day for the filing of certificates of
candidacy. Filing by mail shall not be
allowed.
(b) Within three (3) days from the filing
of the petition, the Commission shall
issue summons to the respondent
candidate together with a copy of the
petition and its enclosures, if any.
(c) The respondent shall be given three
(3) days from receipt of the summons
within which to file his verified answer
(not a motion to dismiss) to the petition,
serving copy thereof upon the petitioner.
Grounds for a motion to dismiss may be
raised as affirmative defenses.
(d) The Commission may designate any
of its officials who are lawyers to hear
the case and receive evidence. The
proceeding shall be summary in nature.
In lieu of oral testimonies, the parties
may be required to submit position
papers together with affidavits or
counter-affidavits and other
documentary evidence. The hearing
officer shall immediately submit to the
Commission his findings, reports, and
recommendations within five (5) days
from the completion of such submission
of evidence. The Commission shall
render its decision within five (5) days
from receipt thereof.
(e) The decision, order, or ruling of the
Commission shall, after five (5) days
from receipt of a copy thereof by the
parties, be final and executory unless
stayed by the Supreme Court.
(f) The Commission shall within twenty-
four hours, through the fastest available
means, disseminate its decision or the
decision of the Supreme Court or the
city or municipal election registrars,
boards of election inspectors, and the
general public in the political subdivision
concerned.
and which is the only procedure that precedes
Section 7 of the said Act. Heretofore, no law
provided for the procedure to govern cases
under Section 78. Applying to such cases,
through Section 7 of R.A. No. 6646, the
procedure applicable to cases of nuisance
candidates is prudent and wise, for both cases
necessarily require that they be decided before
the day of the election; hence, only summary
proceedings thereon can adequately respond to
the urgency of the matter.
Third, Section 6 merely supplements Section 72 of the
Omnibus Election Code providing as follows:
Sec. 72. Effects of disqualification cases
and priority. — The Commission and the
courts shall give priority to cases of
disqualification by reason of violation of
this Act to the end that a final decision
shall be rendered not later than seven
days before the election in which the
disqualification is sought.
Any candidate who has been declared
by final judgment to be disqualified shall
not be voted for, and the votes cast for
him shall not be counted. Nevertheless,
if for any reason, a candidate is not
 declared by final judgment before an
election to be disqualified and he is
voted for and receives the winning
number of votes in such election, his
violation of the provisions of the
preceding sections shall not prevent his
proclamation and assumption to office.
by granting the COMELEC or the Court the
authority to continue hearing the case and to
suspend the proclamation if the evidence of guilt
is strong. As observed by this Court in its
majority "the phrase 'when the evidence of guilt
is strong' seems to suggest that the provisions of
Section 6 ought to be applicable only to
disqualification cases under Section 68 of the
Omnibus Election Code."
Fourth, the amended Rule 25 of the COMELEC Rules of
Procedure, which is the only rule governing petitions
filed before election or proclamation for the
disqualification of a candidate on the ground that he
lacks the qualifications provided for by the Constitution
or by law, does not, as can be gathered from Section 5
thereof, authorize the COMELEC to continue hearing the
case after the election.
Fifth, even assuming that the second sentence of
Section 6 of R.A. to No. 6646 is applicable to
disqualification cases based on the ground of lack of
qualification, it cannot be applied to a case does not
involve elective regional, provincial, and city officials,
and where suspension of proclamation is not warranted
because of the absence of strong evidence of guilt or
ineligibility. In such a case the candidate sought to be
disqualified but who obtains the highest number of votes
has to be proclaimed. Once he is proclaimed, the
COMELEC cannot continue with the case, and the
remedy of the opponent is to contest the winning
candidate's eligibility within ten days from proclamation
in a quo warranto proceeding which is within the
jurisdiction of the metropolitan or municipal trial courts, in
the case of barangay officials; the regional trial courts, in
case of municipal officials (Section 2(2), Article IX-C,
Constitution; Section 253, paragraph 2, B.P. Blg. 881);
the House of Representatives Electoral Tribunal, in the
case of Congressmen; the Senate Electoral Tribunal, in
the case of Senators (Section 17, Article VI,
Constitution); and the Supreme Court en banc, in the
case of the President or Vice-President (Section 4,
Article VII, Constitution).
If what is involved is an elective regional, provincial, or
city official, and the case cannot be decided before the
election, the COMELEC can, even after the proclamation
of the candidate sought to be disqualified, proceed with
the case by treating it as a petition for quo warranto,
since such a case properly pertains to the exclusive
jurisdiction of the COMELEC (Section 2(2), Article IX-C,
Constitution; Section 253, B.P. Blg. 881).
But even granting for the sake of argument that Sections
6 and 7 of R.A. No. 6646, in relation to Section 78 of the
Omnibus Election Code and the amended Rule 25 of the
COMELEC Rules of Procedure, are applicable, the order
of suspension of the petitioner's proclamation issued on
15 May 1995 is null and void for having been issued with
grave abuse of discretion. What was before the
COMELEC en banc at that stage was the decision of the
Second Division of 6 May 1995 dismissing the petition to
disqualify the petitioner and declaring him qualified for
the position. That decision is a direct and positive
rejection of any claim that the evidence of the petitioner's
guilt is strong. Note that it was only on 2 June 1995,
when the COMELEC en banc reversed the decision of
the Second Division, that it was found that the evidence
of the petitioner's ineligibility is strong. It would have
been otherwise if the Second Division had disqualified
the petitioner.
Besides, at the time the questioned order was issued,
there was no hearing yet on the private respondents'
motions for the suspension of the petitioner's
proclamation. In fact, in that order the COMELEC en
banc admitted that the said motions could not be
resolved without hearing, thus:
Pending the resolution of the petitioners'
Motion for Reconsideration filed on May
7, 1995; Urgent Motion Ad Cautelam to
Suspend Proclamation of Respondent
(May 10, 1995) filed on May 10, 1995;
and OMNIBUS MOTION (For
Reconsideration of the Honorable
Commission's [Second Division]
Resolution dated May 6, 1995, and 2nd
Urgent Motion Ad Cautelam to Suspend
Proclamation of Respondent Aquino,
which cannot be resolved without
hearing, without violating the right of the
respondent to due process. . . .
For being void from the beginning; it is as if the order of
15 May 1995 had not existed and could not, therefore,
be made permanent by the COMELEC en banc through
its resolution of 2 June 1995 whose dispositive portion
reads in part: [c]onsequently, the order of suspension of
the respondent should he obtain the winning number of
votes, issued by this Commission on 15 May 1995 is
now made permanent."
Absent a valid finding before the election or after the
canvass of election returns that the evidence of the
petitioner's guilt or ineligibility is strong, the COMELEC
should not have suspended the proclamation of the
petitioner. After the completion of the canvass the
petitioner should have been proclaimed.
This case then must be distinguished from that of Imelda
Romualdez-Marcos vs. Commission on Elections, G.R.
No. 119976, where the COMELEC en banc affirmed
before the elections, or on 7 May 1995, the Second
Division's resolution of 24 April 1995 disqualifying Mrs.
Marcos.
Accordingly, the order of 15 May 1995 and the resolution
of 2 June 1995 of the COMELEC en banc must be
annulled and set aside, and the COMELEC, through its
City Board of Canvassers of Makati, must be ordered to
immediately proclaim the petitioner, without prejudice to
the right of his opponents to file a petition for quo
warranto with the House of Representatives Electoral
Tribunal, which is the sole judge of all contests relating
to the election, returns and qualifications of the Members
of the House of Representatives (Section 17, Article VI,
Constitution).
In view of the foregoing, a disquisition on the merits of
the ground for the petitioner's disqualification will no
longer be proper.
I vote to GRANT the instant petition, to ANNUL and SET
ASIDE the challenged order and resolution of the
Commission on Elections en banc, and to DIRECT the
Board of Canvassers of Makati City to reconvene and
proclaim the petitioner as the winning candidate, without
prejudice on the part of any aggrieved party to file the
appropriate action in the House of Representatives
Electoral Tribunal.
Romero and Bellosillo, JJ., concur.
VITUG, J., separate opinion:
I find what I would consider as the relevant issues in this
petition as similar in almost all material respects to those
obtaining in G.R. No. 119976 (Imelda Romualdez-
Marcos vs. Commission on Elections and Cirilo Roy
Montejo). Let me then here just reiterate what I have
there said in my separate opinion.
The case at bench deals with explicit Constitutional
mandates.
The Constitution is not a pliable instrument. It is a
bedrock in our legal system that sets up ideals and
directions and render steady our strides hence. It only
looks back so as to ensure that mistakes in the past are
not repeated. A complaint transience of a constitution
belittles its basic function and weakens its goals. A
constitution may well become outdated by the realities of
time. When it does, it must be changed but while it
remains, we owe it respect and allegiance. Anarchy,
open or subtle, has never been, nor must it ever be, the
answer to perceived transitory needs, let alone societal
attitudes, or the Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory
in character unless, either by express statement or by
necessary implication, a different intention is manifest
(see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section
6 and Section 17 of Article VI of the fundamental law.
These provisions read:
Sec. 6. No person shall be a Member of
the House of Representatives unless he
is a natural-born citizen of the
Philippines and, on the day of the
election, is at least twenty-five years of
age, able to read and write, and, except
the party-list representatives, a
registered voter in the district in which
he shall be elected, and a resident
thereof for a period of not less than one
year immediately preceding the day of
the election.
Sec. 17. The Senate and the House of
Representatives shall each have an
Electoral Tribunal which shall be the
sole judge of all contests relating to the
election, returns, and qualifications of
their respective Members. Each
Electoral Tribunal shall be composed of
nine Members, three of whom shall be
Justices of the Supreme Court to be
designated by the Chief Justice, and the
remaining six shall be Members of the
Senate or the House of
Representatives, as the case may be,
who shall be chosen on the basis of
proportional representation from the
political parties and the parties or
organizations registered under the
party-list system represented therein.
The senior Justice in the Electoral
Tribunal shall be its Chairman.
The Commission on Election (the "COMELEC") is
constitutionally bound to enforce and administer "all laws
and regulations relative to the conduct of election . . ."
(Art. IX, C, Sec. 2, Constitution) that, there being nothing
said to the contrary, should include its authority to pass
upon the qualification and disqualification prescribed by
law of candidates to an elective office. Indeed, pre-
proclamation controversies are expressly placed under
the COMELEC's jurisdiction to hear and resolve (Art. IX,
C, Sec. 3, Constitution).
The matter before us specifically calls for the
observance of the constitutional one-year residency
requirement. This issue (whether or not there is here
such compliance), to my mind, is basically a question of
fact or at least inextricably linked to such determination.
The findings and judgment of the COMELEC, in
accordance with the long established rule and subject
only to a number of exceptions under the basic heading
of "grave abuse of discretion," are not reviewable by this
Court.
I do not find much need to do a complex exercise on
what seems to me to be a plain matter. Generally, the
term "residence" has a broader connotation that
mean permanent (domicile), official (place where one's
official duties may require him to stay) or temporary (the
place where he sojourns during a considerable length of
time). For Civil law purposes, i.e., as regards the
exercise of civil rights and the fulfillment of civil
obligations, the domicile of a natural person is the place
of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional
Trial Court, Branch 7, Tacloban City (226 SCRA 408,
409); thus:
In election cases, the Court treats
domicile and residence as synonymous
terms, thus: "(t)he term "residence" as
used in the election law is synonymous
with "domicile," which imports not only
an intention to reside in a fixed place but
also personal presence in that place,
coupled with conduct indicative of such
intention." "Domicile" denotes a fixed
permanent residence to which when
absent for business or pleasure, or for
like reasons, one intends to return. . . .
Residence thus acquired, however, may
be lost by adopting another choice of
domicile. In order, in turn, to acquire a
new domicile by choice, there must
concur (1) residence or bodily presence
in the new locality, (2) an intention to
remain there, and (3) an intention to
abandon the old domicile. In other
words, there must basically be animus
manendi coupled with animus non
revertendi. The purpose to remain in or
at the domicile of choice must be for an
indefinite period of time; the change of
residence must be voluntary, and the
residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that
we can charge the COMELEC with having
committed grave abuse of discretion in its
assailed resolution.
The COMELEC's jurisdiction, in the case of
congressional elections, ends when the jurisdiction of
the Electoral Tribunal concerned begins. It signifies that
the protestee must have theretofore been duly
proclaimed and has since become a "member" of the
Senate or the House of Representatives. The question
can be asked on whether or not the proclamation of a
candidate is just a ministerial function of the Commission
on Elections dictated solely on the number of votes cast
in an election exercise. I believe, it is not. A ministerial
duty is an obligation the performance of which, being
adequately defined, does not allow the use of further
judgment or discretion. The COMELEC; in its particular
case, is tasked with the full responsibility of ascertaining
all the facts and conditions such as may be required by
law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain
from any undue encroachment on the ultimate exercise
of authority by the Electoral Tribunals on matters which,
by no less than a constitutional fiat, are explicitly within
their exclusive domain. The nagging question, if it were
otherwise, would be the effect of the Court's peremptory
pronouncement on the ability of the Electoral Tribunal to
later come up with its own judgment in a contest
"relating to the election, returns and qualification" of its
members.
Prescinding from all the foregoing, I should like to next
touch base on the applicability to this case of Section 6
of Republic Act No. 6646, in relation to Section 72
of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case.
— Any candidate who has been
declared by final judgment to be
disqualified shall not be voted for, and
the votes cast for him shall not be
counted. If for any reason a candidate is
not declared by final judgment before an
election to be disqualified and he is
voted for and receives the winning
number of votes in such election, the
Court or Commission shall continue with
the trial and hearing of the action,
inquiry or protest and, upon motion of
the complainant or any intervenor, may
during the pendency thereof order the
suspension of the proclamation of such
candidate whenever the evidence of his
guilt is strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases
and priority. — The Commission and the
courts shall give priority to cases of
disqualification by reason of violation of
this Act to the end that a final decision
shall be rendered not later than seven
days before the election in which the
disqualification is sought.
 Any candidate who has been declared
by final judgment to be disqualified shall
not be voted for, and the votes cast for
him shall not be counted. Nevertheless,
if for any reason, a candidate is not
declared by final judgment before an
election to be disqualified, and he is
voted for and receives the winning
number of votes in such election, his
violation of the provisions of the
preceding sections shall not prevent his
proclamation and assumption to office.
I realize that in considering the significance of the law, it
may be preferable to look for not so much the specific
instances they ostensibly would cover as the principle
they clearly convey. Thus, I will not scoff at the argument
that it should be sound to say that votes cast in favor of
the disqualified candidate, whenever ultimately declared
as such, should not be counted in his or her favor and
must accordingly be considered to be stray votes. The
argument, nevertheless, is far outweighed by the
rationale of the now prevailing doctrine first enunciated
in the case of Topacio vs. Paredes (23 Phil. 238 (1912])
which, although later abandoned in Ticzon
vs. Comelec (103 SCRA 687 [1981]), and Santos
vs. COMELEC (137 SCRA 740 [1985]), was restored,
along with the interim case of Geronimo vs. Ramos (136
SCRA 435 [1985]), by the Labo (176 SCRA 1 [1989]),
Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297
[1992]) and, most recently, Benito (235 SCRA 436
(1994]) rulings. Benito vs. Comelec was a unanimous
decision penned by Justice Kapunan and concurred in
by Chief Justice Narvasa, Justices Feliciano, Padilla,
Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were
on official leave). For easy reference, let me quote from
the first Labo decision:
Finally, there is the question of whether
or not the private respondent, who filed
the quo warranto petition, can replace
the petitioner as mayor. He cannot. The
simple reason is that as he obtained
only the second highest number of votes
in the election, he was obviously not the
choice of the people of Baguio City.
The latest ruling of the Court on this
issue is Santos v. Commission on
Elections, (137 SCRA 740) decided in
1985. In that case, the candidate who
placed second was proclaimed elected
after the votes for his winning rival, who
was disqualified as a turncoat and
considered a non-candidate, were all
disregard as stray. In effect, the second
placer won by default. That decision
was supported by eight members of the
Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin,
Relova, De la Fuente, Alampay and
Aquino, JJ., concurring.) with three
dissenting (Teehankee, Acting C.J.,
Abad Santos and Melencio-Herrera, JJ.)
and another two reserving their vote.
(Plana and Gutierrez, Jr., JJ.) One was
on official leave. (Fernando, C.J.)
Re-examining that decision, the Court
finds, and so holds, that it should be
reversed in favor of the earlier case
of Geronimo v. Ramos, (136 SCRA 435)
which represents the more logical and
democratic rule. That case, which
reiterated the doctrine first announced in
1912 in Topacio v. Paredes, (23 Phil.
238) was supported by ten members of
the Court, (Gutierrez, Jr., ponente, with
Teehankee, Abad Santos, Melencio-
Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ.,
concurring) without any dissent,
although one reserved his vote,
(Makasiar, J.) another took no part,
(Aquino, J.) and two others were on
leave. (Fernando, C.J. and Concepcion,
Jr., J.) There the Court held:
. . . it would be
extremely repugnant to
the basic concept of the
constitutionally
guaranteed right to
suffrage if a candidate
who has not acquired
the majority or plurality
of votes is proclaimed a
winner and imposed as
the representative of a
constituency, the
majority of which have
positively declared
through their ballots that
they do not choose him.
Sound policy dictates
that public elective
offices are filled by
those who have
received the highest
number of votes cast in
the election for that
office, and it is a
fundamental idea in all
republican forms of
government that no one
can be declared elected
and no measure can be
declared carried unless
he or it receives a
majority or plurality of
 the legal votes cast in separate opinion in G.R. No. 119976, however, this
the election. (20 Corpus provision refers to proceedings under §68 of the
Juris 2nd, S 234, p. Omnibus Election Code which provides for the
676.) disqualification of candidates found guilty of using what
in political parlance have been referred to as "guns
The fact that the goons or gold" to influence the outcome of elections.
candidate who obtained Since the disqualification of petitioner in this case was
the highest number of not sought on this ground, the application of §6 of R.A..
votes is later declared No. 6646 is clearly a grave abuse of discretion on the
to be disqualified or not part of the COMELEC.
eligible for the office to
which he was elected Nor may the petition to disqualify petitioner in the
does not necessarily COMELEC be justified under §78 of the OEC which
entitle the candidate authorizes the filing of a petition for the cancellation of
who obtained the certificates of candidacy since such a petition maybe
second highest number filed "exclusively on the ground that a material
of votes to be declared representation contained [in the certificate] as required
the winner of the under section 74 is false." There was no allegation that
elective office. The in stating in his certificate of candidacy that he is a
votes cast for a dead, resident of Amapola St., Palm Village, Guadalupe Viejo,
disqualified, or non- Makati, Metro Manila, petitioner made any false
eligible person may not representation.
be valid to vote the
winner into office or For this reason, I am of the opinion that the COMELEC
maintain him there. had no jurisdiction over SPA No. 95-113; that its
However, in the proceedings in SPA No. 95-113, including the
absence of a statute questioned orders, are void; and that the qualifications of
which clearly asserts a petitioner Agapito A. Aquino for the position of
contrary political and Representative of the Second District of the City of
legislative policy on the Makati may only be inquired into by the House of
matter, if the votes were Representatives Electoral Tribunal.
cast in the sincere belief
that the candidate was
This conclusion makes it unnecessary for me to express
alive, qualified, or
my view at this time on the question whether, in the
eligible, they should not
event the candidate who obtained the highest number of
be treated as stray, void votes is declared ineligible, the one who received the
or meaningless. (at pp. next highest number of votes is entitled to be declared
20-21)
the winner.

Accordingly, I am constrained to vote for the

dismissal of the petition.
MENDOZA, J., separate opinion:
For the reasons expressed in my separate opinion in the
companion case. G.R. No. 119976. Imelda Romualdez-
Marcos v. Commission on Elections. I am of the opinion
that the Commission on Elections has no jurisdiction
over petitions for disqualification of candidates based on
alleged ineligibility for the office to which they seek
election.
Accordingly, I vote (1) to grant the petition in this case
and (2) to annul the proceedings of the Commission on
Elections in SPA No. 95-113, including the questioned
orders, dated May 6, 1995. May 15, 1995, and the two
orders both dated June 2, 1995, so far as they declare
petitioner Agapito A. Aquino to be ineligible for the
position of Representative of the Second District of the
City of Makati and direct the City Board of Canvassers of
Makati to determine and proclaim the winner out of the
remaining qualified candidates.
Narvasa, J., concurs.

The May 15, 1995 resolution of the COMELEC en banc,

suspending he obtain the highest number of votes of
Representative of the Second District of Makati, Metro
Manila, purports to have been issued pursuant to §6 of
R.A. No. 6646. This provision authorizes the COMELEC
to order the suspension of the proclamation "whenever
the evidence of his guilt is strong." As explained in my
 of respondent for the
position of
Republic of the Philippines Congressman of the
SUPREME COURT Lone District of the
Manila Province of Sarangani
filed with the Office of
the Provincial Election
EN BANC
Supervisor of Sarangani
on March 25, 1998,
where in item 4 thereof
he wrote his date of
G.R. No. 134015 July 19, 1999 birth as December 5,
1953; in item 9, he
JUAN DOMINO, petitioner, claims he have resided
vs. in the constituency
COMMISSION ON ELECTIONS, NARCISO Ra. where he seeks election
GRAFILO, JR., EDDY B. JAVA, JUAN P. BAYONITO, for one (1) year and two
JR., ROSARIO SAMSON and DIONISIO P. LIM, (2) months; and, in item
SR., respondent, LUCILLE CHIONGBIAN- 10, that he is registered
SOLON, intervenor. voter of Precinct No.
14A-1, Barangay
Poblacion, Alabel,
Sarangani;
DAVIDE, JR., CJ.:
2. Annex "B" — Voter's
Registration Record
Challenged in this case for certiorari with a prayer for
with SN 31326504
preliminary injunction are the Resolution of 6 May
1 dated June 22, 1997
1998 of the Second Division of the Commission on
indicating respondent's
Elections (hereafter COMELEC), declaring petitioner
registration at Precinct
Juan Domino (hereafter DOMINO) disqualified as
No. 4400-A, Old Balara,
candidate for representative of the Lone Legislative
Quezon City;
District of the Province of Sarangani in the 11 May 1998
2
elections, and the Decision of 29 May 1998 of the
COMELEC en banc denying DOMINO's motion for 3. Annex "C" —
reconsideration. Respondent's
Community Tax
Certificate No.
The antecedents are not disputed.1âwphi1.nêt
11132214C dated
January 15, 1997;
On 25 March 1998, DOMINO filed his certificate of
candidacy for the position of Representative of the Lone
4. Annex "D" —
Legislative District of the Province of Sarangani
Certified true copy of
indicating in item nine (9) of his certificate that he had
the letter of Herson D.
resided in the constituency where he seeks to be elected
Dema-ala, Deputy
for one (1) year and two (2) months immediately
3 Provincial & Municipal
preceding the election.
Treasurer of Alabel,
Sarangani, dated
On 30 March 1998, private respondents Narciso Ra. February 26, 1998,
Grafilo, Jr., Eddy B. Java, Juan P. Bayonito, Jr., Rosario addressed to Mr.
Samson and Dionisio P. Lim, Sr., fied with the Conrado G. Butil, which
COMELEC a Petition to Deny Due Course to or Cancel reads:
Certificate of Candidacy, which was docketed as SPA
No. 98-022 and assigned to the Second Division of the
In connection with your
COMELEC. Private respondents alleged that DOMINO,
letter of even date, we
contrary to his declaration in the certificate of candidacy,
are furnishing you
is not a resident, much less a registered voter, of the
herewith certified xerox
province of Sarangani where he seeks election. To
copy of the triplicate
substantiate their allegations, private respondents
copy of COMMUNITY
presented the following evidence:
TAX CERTIFICATE
NO. 11132214C in the
1. Annex "A" — the name of Juan Domino.
Certificate of Candidacy
Furthermore, the Regional Election
Community Tax Director, National
Certificate No. Capital Region, on
11132212C of the same March 17, 1995, where,
stub was issued to in item 4 thereof, he
Carlito Engcong on wrote his birth date as
September 5, 1997, December 22, 1953; in
while Certificate No. item 8 thereof his
11132213C was also "residence in the
issued to Mr. Juan constituency where I
Domino but was seek to be elected
cancelled and serial no. immediately preceding
11132215C was issued the election" as 3 years
in the name of Marianita and 5 months; and, in
Letigio on September 8, item 9, that he is a
1997. registered voter of
Precinct No. 182,
5. Annex "E" — The Barangay Balara,
triplicate copy of the Quezon City;
Community Tax
Certificate No. 8. Annex "H" — a copy
11132214C in the name of the APPLICATION
of Juan Domino dated FOR TRANSFER OF
September 5, 1997; REGISTRATION
RECORDS DUE TO
6. Annex "F" — Copy of CHANGE OF
the letter of Provincial RESIDENCE of
Treasurer Lourdes P. respondent dated
Riego dated March 2, August 30, 1997
1998 addressed to Mr. addressed to and
Herson D. Dema-ala, received by Election
Deputy Provincial Officer Mantil Alim,
Treasurer and Municipal Alabel, Sarangani, on
Treasurer of Alabel, September 22, 1997,
Sarangani, which stating among others,
states: that "[T]he
undersigned's previous
residence is at 24
For easy reference,
Bonifacio Street, Ayala
kindly turn-over to the
Heights, Quezon City,
undersigned for
III District, Quezon City;
safekeeping, the stub of
Community Tax wherein he is a
registered voter" and
Certificate containing
"that for business and
Nos. 11132201C-
residence purposes, the
11132250C issued to
undersigned has
you on June 13, 1997
and paid under Official transferred and
Receipt No. 7854744. conducts his business
and reside at Barangay
Poblacion, Alabel,
Upon request of Province of Sarangani
Congressman James L. prior to this application;"
Chiongbian.
9. Annex "I" — Copy of
7. Annex "G" — the SWORN
Certificate of Candidacy APPLICATION FOR OF
of respondent for the CANCELLATION OF
position of THE VOTER'S
Congressman in the 3rd [TRANSFER OF]
District of Quezon City PREVIOUS
for the 1995 elections REGISTRATION of
filed with the Office of respondent subscribed
 and sworn to on 22 Petitioners, -versus-
October 1997 before Elmer M. Kayanan,
Election Officer Mantil Election Officer,
Allim at Alabel, Quezon City, District III,
4
Sarangani. and the Board of
Election Inspectors of
For his defense, DOMINO maintains that he had Precinct No. 4400-A,
complied with the one-year residence requirement and Old Balara, Quezon
that he has been residing in Sarangani since January City, Respondents."
1997. In support of the said contention, DOMINO The dispositive portion
presented before the COMELEC the following exhibits, of which reads:
to wit:
1.
1. Annex "1" — Copy of Declari
the Contract of Lease ng the
between Nora registra
Dacaldacal as Lessor tion of
and Administrator of the petition
properties of deceased ers as
spouses Maximo and voters
Remedios Dacaldacal of
and respondent as Precinc
Lessee executed on t No.
January 15, 1997, 4400-A,
subscribed and sworn Barang
to before Notary Public ay Old
Johnny P. Landero; Balara,
in
District
2. Annex "2" — Copy of
the Extra-Judicial III
Settlement of Estate Quezon
City as
with Absolute Deed of
complet
sale executed by and
ely
between the heirs of
erroneo
deceased spouses
Maximo and Remedios us as
Dacaldacal, namely: petition
ers
Maria Lourdes, Jupiter
were no
and Beberlie and the
longer
respondent on
resident
November 4, 1997,
subscribed and sworn s of
Quezon
to before Notary Public
City but
Jose A. Alegario;
of
Alabel,
3. Annex "3" — True Sarang
Carbon Xerox copy of ani
the Decision dated where
January 19, 1998, of the they
Metropolitan Trial Court have
of Metro Manila, Branch been
35, Quezon City, in residing
Election Case NO. 725 since
captioned as "In the Decem
Matter of the Petition for ber
the Exclusion from the 1996;
List of voters of Precinct
No. 4400-A Brgy. Old
Balara, Quezon City, 2.
Declari
Spouses Juan and
ng this
Zorayda Domino,
erroneo
us g the
registra respon
tion of dents to
petition immedi
ers in ately
Quezon transfer
City as and
done in forward
good all the
faith election
due to /voter's
an registra
honest tion
mistake records
caused of the
by petition
circums ers in
tances Quezon
beyond City to
their the
control Election
and Officer,
without the
any Election
fault of Registr
petition ation
ers; Board
and
3. other
Approvi Comele
ng the c
transfer Offices
of of
registra Alabel,
tion of Sarang
voters ani
of where
petition the
ers petition
from ers are
Precint obvious
No. ly
4400-A qualifie
of d to
Barang excerci
ay Old se their
Balara, respecti
Quezon ve
City to rights of
Precinc suffrag
t No. e.
14A1 of
Barang 4. Annex "4" — Copy of
ay the Application for
Poblaci Transfer of Registration
on of Records due to Change
Alabel, of Residence addressed
Sarang to Mantil Alim,
ani; and COMELEC Registrar,
Alabel, Sarangani,
4. dated August 30, 1997.
Orderin
5. Annex "5" — Certified
True Copy of the Notice
of Approval of
Application, the roster of
applications for
registration approved by
the Election
Registration Board on
October 20, 1997,
showing the spouses
Juan and Zorayda
Bailon Domino listed as
numbers 111 and 112
both under Precinct No.
14A1, the last two
names in the slate
indicated as transferees
without VRR numbers
and their application
dated August 30, 1997
and September 30,
1997, respectively.
6. Annex "6" — same
as Annex "5"
7. Annex "6-a" — Copy
of the Sworn Application
for Cancellation of
Voter's Previous
Registration (Annex "I",
Petition);
8. Annex "7" — Copy of
claim card in the name
of respondent showing
his VRR No. 31326504
dated October 20, 1997
as a registered voter of
Precinct No. 14A1,
Barangay Poblacion,
Alabel, Sarangani;
9. Annex "7-a" —
Certification dated April
16, 1998, issued by
Atty. Elmer M. Kayanan,
Election Officer IV,
District III, Quezon City,
which reads:
This is to certify that the
spouses JUAN and
ZORAYDA DOMINO
are no longer registered
voters of District III,
Quezon City. Their
registration records
(VRR) were transferred
and are now in the
possession of the
Election Officer of
Alabel, Sarangani.
This certification is
being issued upon the
request of Mr. JUAN
DOMINO.
10. Annex "8" —
Affidavit of Nora
Dacaldacal and Maria
Lourdes Dacaldacal
stating the
circumstances and
incidents detailing their
alleged acquaintance
with respondent.
11. Annexes "8-a", "8-
b", "8-c" and "8-d" —
Copies of the uniform
affidavits of witness
Myrna Dalaguit, Hilario
Fuentes, Coraminda
Lomibao and Elena V.
Piodos subscribed and
sworn to before Notary
Public Bonifacio F.
Doria, Jr., on April 18,
1998, embodying their
alleged personal
knowledge of
respondent's residency
in Alabel, Sarangani;
12. Annex "8-e" — A
certification dated April
20, 1998, subscribed
and sworn to before
Notary Public Bonifacio,
containing a listing of
the names of fifty-five
(55) residents of Alabel,
Sarangani, declaring
and certifying under
oath that they
personally know the
respondent as a
permanent resident of
Alabel, Sarangani since
January 1997 up to
present;
13. Annexes "9", "9-a"
and "9-b" — Copies of
Individual Income Tax
Return for the year
1997, BIR form 2316
and W-2, respectively,
of respondent; and,
 14. Annex "10" — The
affidavit of respondent
reciting the chronology
of events and
circumstances leading
to his relocation to the
Municipality of Alabel,
Sarangani, appending
Annexes "A", "B", "C",
"D", "D-1", "E", "F", "G"
with sub-markings "G-1"
and "G-2" and "H" his
CTC No. 111`32214C
dated September 5,
1997, which are the
same as Annexes "1",
"2", "4", "5", "6-a", "3",
"7", "9" with sub-
markings "9-a" and "9-
5 Canvassers, shows that DOMINO garnered the highest
b" except Annex "H".
On 6 May 1998, the COMELEC 2nd Division
promulgated a resolution declaring DOMINO disqualified
as candidate for the position of representative of the lone
district of Sarangani for lack of the one-year residence
requirement and likewise ordered the cancellation of his
certificate of candidacy, on the basis of the following
findings:
What militates against respondent's
claim that he has met the residency
requirement for the position sought is
his own Voter's Registration Record No.
31326504 dated June 22, 1997 [Annex
"B", Petition] and his address indicated
as 24 Bonifacio St., Ayala Heights, Old
Balara, Quezon City. This evidence,
standing alone, negates all his
protestations that he established
residence at Barangay Poblacion,
Alabel, Sarangani, as early as January
1997. It is highly improbable, nay
incredible, for respondent who
previously ran for the same position in
the 3rd Legislative District of Quezon
City during the elections of 1995 to
unwittingly forget the residency
requirement for the office sought.
Counting, therefore, from the day after
June 22, 1997 when respondent
registered at Precinct No. 4400-A, up to
and until the day of the elections on May
11, 1998, respondent clearly lacks the
one (1) year residency requirement
provided for candidates for Member of
the House of Representatives under
Section 6, Article VI of the Constitution.
All told, petitioner's evidence conspire to
attest to respondent's lack of residence
in the constituency where he seeks
election and while it may be conceded
that he is a registered voter as
contemplated under Section 12 of R.A.
8189, he lacks the qualification to run for
the position of Congressman for the
Lone District of the Province of
6
Sarangani.
On 11 May 1998, the day of the election, the COMELEC
issued Supplemental Omnibus Resolution No. 3046,
ordering that the votes cast for DOMINO be counted but
to suspend the proclamation if winning, considering that
the Resolution disqualifying him as candidate had not
7
yet become final and executory.
The result of the election, per Statement of Votes
certified by the Chairman of the Provincial Board of
8
number of votes over his opponents for the position of
Congressman of the Province of Sarangani.
On 15 May 1998, DOMINO filed a motion for
reconsideration of the Resolution dated 6 May 1998,
which was denied by the COMELEC en banc in its
decision dated 29 May 1998. Hence, the present Petition
for Certiorari with prayer for Preliminary Mandatory
Injunction alleging, in the main, that the COMELEC
committed grave abuse of discretion amounting to
excess or lack of jurisdiction when it ruled that he did not
meet the one-year residence requirement.
On 14 July 1998, acting on DOMINO's Motion for
Issuance of Temporary Restraining Order, the Court
directed the parties to maintain the status quo prevailing
at the time of the filing of the instant petition.
9
On 15 September 1998, Lucille L. Chiongbian-Solon,
(hereafter INTERVENOR), the candidate receiving the
second highest number of votes, was allowed by the
10
Court to Intervene. INTERVENOR in her Motion for
Leave to Intervene and in her Comment in
11
Intervention is asking the Court to uphold the
disqualification of petitioner Juan Domino and to
proclaim her as the duly elected representative of
Sarangani in the 11 May 1998 elections.
Before us DOMINO raised the following issues for
resolution, to wit:
a. Whether or not the
judgment of the
Metropolitan Trial Court
of Quezon City
declaring petitioner as
resident of Sarangani
and not of Quezon City
is final, conclusive and
binding upon the whole
world, including the
 Commission on
Elections.
b. Whether or not
petitioner herein has
resided in the subject
congressional district for
at least one (1) year
immediately preceding
the May 11, 1998
elections; and
c. Whether or not
respondent COMELEC
has jurisdiction over the
petition a quo for the
disqualification of
12
petitioner.
The first issue.
The contention of DOMINO that the decision of the
Metropolitan Trial Court of Quezon City in the exclusion
proceedings declaring him a resident of the Province of
Sarangani and not of Quezon City is final and conclusive
upon the COMELEC cannot be sustained.
The COMELEC has jurisdiction as provided in Sec. 78,
Art. IX of the Omnibus Election Code, over a petition to
deny due course to or cancel certificate of candidacy. In
the exercise of the said jurisdiction, it is within the
competence of the COMELEC to determine whether
false representation as to material facts was made in the
certificate of candidacy, that will include, among others,
the residence of the candidate.
The determination of the Metropolitan Trial Court of
Quezon City in the exclusion proceedings as to the right
of DOMINO to be included or excluded from the list of
voters in the precinct within its territorial jurisdicton, does
not preclude the COMELEC, in the determination of
DOMINO's qualification as a candidate, to pass upon the
issue of compliance with the residency requirement.
The proceedings for the exclusion or inclusion of voters
in the list of voters are summary in character. Thus, the
factual findings of the trial court and its resultant
conclusions in the exclusion proceedings on matters
other than the right to vote in the precinct within its
territorial jurisdiction are not conclusive upon the
COMELEC. Although the court in inclusion or exclusion
proceedings may pass upon any question necessary to
decide the issue raised including the questions of
citizenship and residence of the challenged voter, the
authority to order the inclusion in or exclusion from the
list of voters necessarily caries with it the power to
inquire into and settle all matters essential to the
exercise of said authority. However, except for the right
to remain in the list of voters or for being excluded
therefrom for the particular election in relation to which
the proceedings had been held, a decision in an
exclusion or inclusion proceeding, even if final and
unappealable, does not acquire the nature of res
13
judicata. In this sense, it does not operate as a bar to
any future action that a party may take concerning the
14
subject passed upon in the proceeding. Thus, a
decision in an exclusion proceeding would neither be
conclusive on the voter's political status, nor bar
subsequent proceedings on his right to be registered as
15
a voter in any other election.
16
Thus, in Tan Cohon v. Election Registrar we ruled that:
. . . It is made clear that even as it is
here held that the order of the City Court
in question has become final, the same
does not constitute res adjudicata as to
any of the matters therein contained. It
is ridiculous to suppose that such an
important and intricate matter of
citizenship may be passed upon and
determined with finality in such a
summary and peremptory proceeding as
that of inclusion and exclusion of
persons in the registry list of voters.
Even if the City Court had granted
appellant's petition for inclusion in the
permanent list of voters on the
allegation that she is a Filipino citizen
qualified to vote, her alleged Filipino
citizenship would still have been left
open to question.
Moreover, the Metropolitan Trial Court of Quezon City in
its 18 January decision exceeded its jurisdiction when it
declared DOMINO a resident of the Province of
Sarangani, approved and ordered the transfer of his
voter's registration from Precinct No. 4400-A of
Barangay Old Balara, Quezon City to precinct 14A1 of
Barangay Poblacion, Alabel, Sarangani. It is not within
the competence of the trial court, in an exclusion
proceedings, to declare the challenged voter a resident
of another municipality. The jurisdiction of the lower
court over exclusion cases is limited only to determining
the right of voter to remain in the list of voters or to
declare that the challenged voter is not qualified to vote
in the precint in which he is registered, specifying the
ground of the voter's disqualification. The trial court has
no power to order the change or transfer of registration
from one place of residence to another for it is the
function of the election Registration Board as provided
17
under Section 12 of R.A. No. 8189. The only effect of
the decision of the lower court excluding the challenged
voter from the list of voters, is for the Election
Registration Board, upon receipt of the final decision, to
remove the voter's registration record from the
corresponding book of voters, enter the order of
exclusion therein, and thereafter place the record in the
18
inactive file.
Finally, the application of the rule on res judicata is
unavailing. Identity of parties, subject matter and cause
of action are indispensable requirements for the
application of said doctrine. Neither herein Private
Respondents nor INTERVENOR, is a party in the
exclusion proceedings. The Petition for Exclusion was
filed by DOMINDO himself and his wife, praying that he
and his wife be excluded from the Voter's List on the
ground of erroneous registration while the Petition to
Deny Due Course to or Cancel Certificate of Candidacy
was filed by private respondents against DOMINO for
alleged false representation in his certificate of
candidacy. For the decision to be a basis for the
dismissal by reason of res judicata, it is essential that
there must be between the first and the second action
identity of parties, identity of subject matter and identity
19
of causes of action. In the present case, the aforesaid
essential requisites are not present. In the case of Nuval
20
v. Guray, et al., the Supreme Court in resolving a
similar issue ruled that:
The question to be solved under the first
assignment of error is whether or not the
judgment rendered in the case of the
petition for the exclusion of Norberto
Guray's name from the election list of
Luna, is res judicata, so as to prevent
the institution and prosecution of an
action in quo warranto, which is now
before us.
The procedure prescribed by section
437 of the Administrative Code, as
amended by Act No. 3387, is of a
summary character and the judgment
rendered therein is not appealable
except when the petition is tried before
the justice of the peace of the capital or
the circuit judge, in which case it may be
appealed to the judge of first instance,
with whom said two lower judges have
concurrent jurisdiction.
The petition for exclusion was presented
by Gregorio Nuval in his dual capacity
as qualified voter of the municipality of
Luna, and as a duly registered
candidate for the office of president of
said municipality, against Norberto
Guray as a registered voter in the
election list of said municipality. The
present proceeding of quo warranto was
interposed by Gregorio Nuval in his
capacity as a registered candidate voted
for the office of municipal president of
Luna, against Norberto Guray, as an
elected candidate for the same office.
Therefore, there is no identity of parties
in the two cases, since it is not enough
that there be an identity of persons, but
there must be an identity of capacities in
which said persons litigate. (Art. 1259 of
the Civil Code; Bowler vs. Estate of
Alvarez, 23 Phil., 561; 34 Corpus Juris,
p. 756, par. 1165)
In said case of the petition for the
exclusion, the object of the litigation, or
the litigious matter was the exclusion of
Norberto Guray as a voter from the
election list of the municipality of Luna,
while in the
present que warranto proceeding, the
object of the litigation, or the litigious
matter is his exclusion or expulsion from
the office to which he has been elected.
Neither does there exist, then, any
identity in the object of the litigation, or
the litigious matter.
In said case of the petition for exclusion,
the cause of action was that Norberto
Guray had not the six months' legal
residence in the municipality of Luna to
be a qualified voter thereof, while in the
present proceeding of quo warranto, the
cause of action is that Norberto Guray
has not the one year's legal residence
required for eligibility to the office of
municipal president of Luna. Neither
does there exist therefore, identity of
causes of action.
In order that res judicata may exist the
following are necessary: (a) identity of
parties; (b) identity of things; and (c)
identity of issues (Aquino v. Director of
Lands, 39 Phil. 850). And as in the case
of the petition for excluision and in the
present quo warranto proceeding, as
there is no identity of parties, or of
things or litigious matter, or of issues or
causes of action, there is no res
judicata.
The Second Issue.
Was DOMINO a resident of the Province of Sarangani
for at least one year immediately preceding the 11 May
1998 election as stated in his certificate of candidacy?
We hold in the negative.
It is doctrinally settled that the term "residence," as used
in the law prescribing the qualifications for suffrage and
for elective office, means the same thing as "domicile,"
which imports not only an intention to reside in a fixed
place but also personal presence in that place, coupled
21
with conduct indicative of such intention. "Domicile"
denotes a fixed permanent residence to which,
whenever absent for business, pleasure, or some other
22
reasons, one intends to return. "Domicile" is a question
of intention and circumstances. In the consideration of
circumstances, three rules must be borne in mind,
namely: (1) that a man must have a residence or
domicile somewhere; (2) when once established it
remains until a new one is acquired; and (3) a man can
23
have but one residence or domicile at a time.
Records show that petitioner's domicile of origin was
Candon, Ilocos
24
Sur and that sometime in 1991, he acquired a new
domicile of choice at 24 Bonifacio St. Ayala Heights, Old
Balara, Quezon City, as shown by his certificate of
candidacy for the position of representative of the 3rd
District of Quezon City in the May 1995 election.
Petitioner is now claiming that he had effectively
abandoned his "residence" in Quezon City and has
established a new "domicile" of choice at the Province of
Sarangani.
A person's "domicile" once established is considered to
continue and will not be deemed lost until a new one is
25
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
26
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
27
place chosen for the new domicile must be actual.
It is the contention of petitioner that his actual physical
presence in Alabel, Sarangani since December 1996
was sufficiently established by the lease of a house and
lot located therein in January 1997 and by the affidavits
and certifications under oath of the residents of that
place that they have seen petitioner and his family
residing in their locality.
While this may be so, actual and physical is not in itself
sufficient to show that from said date he had transferred
his residence in that place. To establish a new domicile
of choice, personal presence in the place must be
coupled with conduct indicative of that intention. While
"residence" simply requires bodily presence in a given
place, "domicile" requires not only such bodily presence
in that place but also a declared and probable intent to
make it one's fixed and permanent place of abode, one's
28
home.
As a general rule, the principal elements of domicile,
physical presence in the locality involved and intention to
adopt it as a domicile, must concur in order to establish
a new domicile. No change of domicile will result if either
of these elements is absent. Intention to acquire a
domicile without actual residence in the locality does not
result in acquisition of domicile, nor does the fact of
29
physical presence without intention.
The lease contract entered into sometime in January
1997, does not adequately support a change of domicile.
The lease contract may be indicative of DOMINO's
intention to reside in Sarangani but it does not engender
the kind of permanency required to prove abandonment
of one's original domicile. The mere absence of
individual from his permanent residence, no matter how
long, without the intention to abandon it does not result
in loss or change of
30
domicile. Thus the date of the contract of lease of a
house and lot located in the province of Sarangani, i.e.,
15 January 1997, cannot be used, in the absence of
other circumstances, as the reckoning period of the one-
year residence requirement.
Further, Domino's lack of intention to abandon his
residence in Quezon City is further strengthened by his
act of registering as voter in one of the precincts in
Quezon City. While voting is not conclusive of residence,
it does give rise to a strong presumption of residence
especially in this case where DOMINO registered in his
former barangay. Exercising the right of election
franchise is a deliberate public assertion of the fact of
residence, and is said to have decided preponderance in
a doubtful case upon the place the elector claims as, or
31
believes to be, his residence. The fact that a party
continously voted in a particular locality is a strong factor
32
in assisting to determine the status of his domicile.
His claim that his registration in Quezon City was
erroneous and was caused by events over which he had
no control cannot be sustained. The general registration
of voters for purposes of the May 1998 elections was
scheduled for two (2) consecutive weekends, viz.: June
33
14, 15, 21, and 22.
While, Domino's intention to establish residence in
Sarangani can be gleaned from the fact that be bought
the house he was renting on November 4, 1997, that he
sought cancellation of his previous registration in Qezon
34
City on 22 October 1997, and that he applied for
transfer of registration from Quezon City to Sarangani by
reason of change of residence on 30 August
35
1997, DOMINO still falls short of the one year
residency requirement under the Constitution.
In showing compliance with the residency requirement,
both intent and actual presence in the district one
intends to represent must satisfy the length of time
36
prescribed by the fundamental law. Domino's failure to
do so rendered him ineligible and his election to office
37
null and void.
The Third Issue.
DOMINO's contention that the COMELEC has no
jurisdiction in the present petition is bereft of merit.
As previously mentioned, the COMELEC, under Sec. 78,
Art. IX of the Omnibus Election Code, has jurisdiction
over a petition to deny due course to or cancel certificate
of candidacy. Such jurisdiction continues even after
election, if for any reason no final judgment of
disqualification is rendered before the election, and the
candidate facing disqualification is voted for and
38
receives the highest number of votes and provided
further that the winning candidate has not been
39
proclaimed or has taken his oath of office.
It has been repeatedly held in a number of cases, that
the House of Representatives Electoral Tribunal's sole
and exclusive jurisdiction over all contests relating to the
election, returns and qualifications of members of
Congress as provided under Section 17 of Article VI of
the Constitution begins only after a candidate has
40
become a member of the House of Representatives.
The fact of obtaining the highest number of votes in an
election does not automatically vest the position in the
41
winning candidate. A candidate must be proclaimed
and must have taken his oath of office before he can be
considered a member of the House of Representatives.
In the instant case, DOMINO was not proclaimed as
Congressman-elect of the Lone Congressional District of
the Province of Sarangani by reason of a Supplemental
Omnibus Resolution issued by the COMELEC on the
day of the election ordering the suspension of
DOMINO's proclamation should he obtain the winning
number of votes. This resolution was issued by the
COMELEC in view of the non-finality of its 6 May 1998
resolution disqualifying DOMINO as candidate for the
position.
Cosidering that DOMINO has not been proclaimed as
Congressman-elect in the Lone Congressional District of
the Province of Sarangani he cannot be deemed a
member of the House of Representatives. Hence, it is
the COMELEC and not the Electoral Tribunal which has
jurisdiction over the issue of his ineligibility as a
42
candidate.
Issue raised by INTERVENOR.
After finding that DOMINO is disqualified as candidate
for the position of representative of the province of
Sarangani, may INTERVENOR, as the candidate who
received the next highest number of votes, be
proclaimed as the winning candidate?
It is now settled doctrine that the candidate who obtains
the second highest number of votes may not be
proclaimed winner in case the winning candidate is
43
disqualified. 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 the
highest number of votes cast in the election for that
44
office, no one can be declared elected in his place.
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
45
do not choose him. To simplistically assume that the
second placer would have received the other votes
would be to substitute our judgment for the mind of the
voters. He could not be considered the first among
qualified candidates because in a field which excludes
the qualified candidate, the conditions would have
46
substantially changed.
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
47
plurality of the legal votes cast in the election.
The effect of a decision declaring a person ineligible to
hold an office is only that the election fails entirely, that
48
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 of election
in favor of the person who has obtained a plurality of
49
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
50
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
51
choice.
INTERVENOR's plea that the votes cast in favor of
DOMINO be considered stray votes cannot be
sustained. INTERVENOR's reliance on the opinion
52
made in the Labo, Jr. case to wit: 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 nevertheless cast their votes in favor of
the ineligible candidate, 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, is misplaced.
Contrary to the claim of INTERVENOR, petitioner was
not notoriously known by the public as an ineligible
candidate. Although the resolution declaring him
ineligible as candidate was rendered before the election,
however, the same is not yet final and executory. In fact,
it was no less than the COMELEC in its Supplemental
Omnibus Resolution No. 3046 that allowed DOMINO to
be voted for the office and ordered that the votes cast for

him be counted as the Resolution declaring him
ineligible has not yet attained finality. Thus the votes
cast for DOMINO are presumed to have been cast in the
sincere belief that he was a qualified candidate, without
any intention to misapply their franchise. Thus, said
votes can not be treated as stray, void, or
53
meaningless.
WHEREFORE, the instant petition is DISMISSED. The
resolution dated 6 May 1998 of the COMELEC 2nd
Division and the decision dated 29 May 1998 of the
COMELEC En Banc, are hereby
AFFIRMED.1âwphi1.nêt
SO ORDERED.
Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Buena, Gonzaga-Reyes and Santiago, JJ.,
concur.
Panganiban J., In the result; please see separate
opinion.
Quisumbing, J., In the result, only insofar or Petitioner
Domino is adjudged disqualified.
Purisima and Pardo JJ., took no part.
Separate Opinions
PANGANIBAN, J., separate opinion;
I concur "in the result": the petitioner failed to fulfill the
one-year residence requirement in order to qualify as a
candidate for congressman of the lone district of
Sarangani. With all due respect, I disagree however with
the majority view that residence as a qualification for
candidacy for an elective public office imports the same
meaning as domicile.
That a member of the House of Representative must be
a resident of the district which he or she seeks to
represent "for a period of not less than one year
1
immediately preceding the day of the election" is a
constitutional requirement that should be interpreted in
the sense in which ordinary lay persons understand it.
The common people who ratified the Constitution and
were thereafter expected to abide by it would normally
refer to the journals of the Constitutional Commission in
order to understand the words and phrases contained
therein. Rather, they would usually refer to the common
source being used when they look up for the meaning of
2
words — the dictionary. In this sense, Webster's
3
definition of residence should be controlling.
When the Constitution speaks of residence, the word
should be understood, consistent with Webster, to mean
actual, physical and personal presence in the district that
a candidate seeks to represent. In other words, the
candidate's presence should be substantial enough to
show by overts acts his intention to fulfill the duties of the
position he seeks.
If the framers of our basic law intended our people to
understand residence as legal domicile, they should
have said so. Then our people would have looked up the
meaning of domicile and would have understood the
constitutional provision in that context. However, the
framers of our Constitution did not. I therefore submit
that residence must be understood in its common
dictionary meaning as understood by ordinary lay
persons.
At any rate, the original concept of domicile, which arose
from American jurisprudence, was not intended to
govern political rights. Rather, it was designed to resolve
the conflict of laws between or among states where a
decedent may have lived for various reasons, for the
purpose of determining which law was applicable as
regards his estate. Allow me to quote this short
4
disquisition:
. . . This question first came before the
courts at an early day, long before our
present easy and extensive means of
transportation, and at a time before the
present ready movement from one
country to another. At that time, men left
for Europe for the Western Continent or
elsewhere largely for purposes of
adventure or in search of an opportunity
for the promotion of commerce. It was at
the time before the invention of the
steamboat and before the era of the
oceanic cable. Men left their native land
knowing that they would be gone for
long periods of time, and that means of
communication with their home land
were infrequent, difficult, and slow. The
traditions of their native country were
strong with these men. In the event of
death, while absent, they desired that
their property should descend in
accordance with the laws of the land of
their birth. Many such men where
adventurers who had the purpose and
intent to eventually return to the land of
their nativity. There was a large degree
of sentiment connected with the first
announcement of the rules of law in the
matter of the estates of such men. . . .
xxx xxx xxx
 These reasons, which were, to an extent
at least, historical and patriotic, found
early expression in the decisions of the
courts on the question of domicile. . . .
Subsequently, domicile was used in other "conflicts
cases involving taxation, divorce and other civil matters.
To use it to determine qualifications for political office is
to enlarge its meaning beyond what was intended,
resulting in strained and contortive interpretations of the
Constitution.
Specifically, I submit that applying the concept of
domicile in determining residence as a qualification for
an elective office would negate the objective behind the
residence requirement of one year (or six months, in the
case of local positions). This required period of
residence preceding the day of the election, I believe, is
rooted in the desire that officials of districts or localities
be acquainted not only with the metes and bounds of
their constituencies but, more important, with the
constituents themselves — their needs, difficulties,
potentials for growth and development and all matters
vital to their common welfare. Such requisite period
would precisely give candidates the opportunity to be
familiar with their desired constituencies, and likewise for
the electorate to evaluate their fitness for the offices they
seek.
If all that is required of elective officials is legal domicile,
then they would qualify even if, for several years prior to
the election, they have never set foot in their districts (or
in the country, for that matter), since it is possible to
maintain legal domicile even without actual presence,
provided one retains the animus revertendi or the
intention to return.
The Constitution is the most basic law of the land. It
enshrines the most cherished aspirations and ideals of
the population at large. It is not a document reserved
only for sholarly disquisition by the most eminent legal
minds of the land. In ascertaining its import, lawyers are
not meant to quibble over it, to define its legal niceties,
or to articulate its nuances. Its contents and words
should be interpreted in the sense understood by the
ordinary men and women who place their lives on the
line in its defense and who pin their hopes for a better
life on its fulfillment.
The call for simplicity in understanding and interpreting
our Constitution has been made a number of times.
5 When the Constitution speaks of residence, the word
About three decades ago, this Court declared:
It is to be assumed that the words in
which constitutional provisions are
couched express the objective sought to
be attained. They are to be given their
ordinary meaning except where
technical terms are employed in which
case the significance thus attached to
them prevails. As the Constitution is not
primarily a lawyer's document, it being
essential for the rule of law to obtain that
it should ever be present in the people's
consciousness, its language as much as
possible should be understood in the
sense they have in common use. What
it says according to the text of the
provision to be construed compels
acceptance and negates the power of
the courts to alter it, based on the
postulate that the framers and the
people mean what they say. Thus there
are cases where the need for
construction is reduced to a minimum.
Having said this, I still believe that Petitioner Juan
Domino failed to adduce sufficient convincing evidence
to prove his actual, physical and personal presence in
the district of Sarangani for at least one year prior to the
1998 elections.
WHEREFORE, I vote to DISMISS the Petition at bar.
Separate Opinions
PANGANIBAN, J., separate opinion;
I concur "in the result": the petitioner failed to fulfill the
one-year residence requirement in order to qualify as a
candidate for congressman of the lone district of
Sarangani. With all due respect, I disagree however with
the majority view that residence as a qualification for
candidacy for an elective public office imports the same
meaning as domicile.
That a member of the House of Representative must be
a resident of the district which he or she seeks to
represent "for a period of not less than one year
1
immediately preceding the day of the election" is a
constitutional requirement that should be interpreted in
the sense in which ordinary lay persons understand it.
The common people who ratified the Constitution and
were thereafter expected to abide by it would normally
refer to the journals of the Constitutional Commission in
order to understand the words and phrases contained
therein. Rather, they would usually refer to the common
source being used when they look up for the meaning of
2
words — the dictionary. In this sense, Webster's
3
definition of residence should be controlling.
should be understood, consistent with Webster, to mean
actual, physical and personal presence in the district that
a candidate seeks to represent. In other words, the
candidate's presence should be substantial enough to
show by overts acts his intention to fulfill the duties of the
position he seeks.
If the framers of our basic law intended our people to
understand residence as legal domicile, they should
have said so. Then our people would have looked up the
meaning of domicile and would have understood the
constitutional provision in that context. However, the
framers of our Constitution did not. I therefore submit
that residence must be understood in its common
dictionary meaning as understood by ordinary lay
persons.
At any rate, the original concept of domicile, which arose
from American jurisprudence, was not intended to
govern political rights. Rather, it was designed to resolve
the conflict of laws between or among states where a
decedent may have lived for various reasons, for the
purpose of determining which law was applicable as
regards his estate. Allow me to quote this short
4 seek.
disquisition:
. . . This question first came before the
courts at an early day, long before our
present easy and extensive means of
transportation, and at a time before the
present ready movement from one
country to another. At that time, men left
for Europe for the Western Continent or
elsewhere largely for purposes of
adventure or in search of an opportunity
for the promotion of commerce. It was at
the time before the invention of the
steamboat and before the era of the
oceanic cable. Men left their native land
knowing that they would be gone for
long periods of time, and that means of
communication with their home land
were infrequent, difficult, and slow. The
traditions of their native country were
strong with these men. In the event of
death, while absent, they desired that
their property should descend in
accordance with the laws of the land of
their birth. Many such men where
adventurers who had the purpose and
intent to eventually return to the land of
their nativity. There was a large degree
of sentiment connected with the first
announcement of the rules of law in the
matter of the estates of such men. . . .
xxx xxx xxx
These reasons, which were, to an extent
at least, historical and patriotic, found
early expression in the decisions of the
courts on the question of domicile. . . .
Subsequently, domicile was used in other "conflicts
cases involving taxation, divorce and other civil matters.
To use it to determine qualifications for political office is
to enlarge its meaning beyond what was intended,
resulting in strained and contortive interpretations of the
Constitution.
Specifically, I submit that applying the concept of
domicile in determining residence as a qualification for
an elective office would negate the objective behind the
residence requirement of one year (or six months, in the
case of local positions). This required period of
residence preceding the day of the election, I believe, is
rooted in the desire that officials of districts or localities
be acquainted not only with the metes and bounds of
their constituencies but, more important, with the
constituents themselves — their needs, difficulties,
potentials for growth and development and all matters
vital to their common welfare. Such requisite period
would precisely give candidates the opportunity to be
familiar with their desired constituencies, and likewise for
the electorate to evaluate their fitness for the offices they
If all that is required of elective officials is legal domicile,
then they would qualify even if, for several years prior to
the election, they have never set foot in their districts (or
in the country, for that matter), since it is possible to
maintain legal domicile even without actual presence,
provided one retains the animus revertendi or the
intention to return.
The Constitution is the most basic law of the land. It
enshrines the most cherished aspirations and ideals of
the population at large. It is not a document reserved
only for sholarly disquisition by the most eminent legal
minds of the land. In ascertaining its import, lawyers are
not meant to quibble over it, to define its legal niceties,
or to articulate its nuances. Its contents and words
should be interpreted in the sense understood by the
ordinary men and women who place their lives on the
line in its defense and who pin their hopes for a better
life on its fulfillment.
The call for simplicity in understanding and interpreting
our Constitution has been made a number of times.
5
About three decades ago, this Court declared:
It is to be assumed that the words in
which constitutional provisions are
couched express the objective sought to
be attained. They are to be given their
ordinary meaning except where
technical terms are employed in which
case the significance thus attached to
them prevails. As the Constitution is not
primarily a lawyer's document, it being
essential for the rule of law to obtain that
it should ever be present in the people's
consciousness, its language as much as
possible should be understood in the
sense they have in common use. What
it says according to the text of the
provision to be construed compels
acceptance and negates the power of
the courts to alter it, based on the
postulate that the framers and the
people mean what they say. Thus there
 are cases where the need for
construction is reduced to a minimum.
Having said this, I still believe that Petitioner Juan
Domino failed to adduce sufficient convincing evidence
to prove his actual, physical and personal presence in
the district of Sarangani for at least one year prior to the
1998 elections.
WHEREFORE, I vote to DISMISS the Petition at bar.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 92191-92 July 30, 1991
ANTONIO Y. CO, petitioner,
vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF
REPRESENTATIVES AND JOSE ONG,
JR., respondents.
G.R. Nos. 92202-03 July 30, 1991
SIXTO T. BALANQUIT, JR., petitioner,
vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF
REPRESENTATIVES AND JOSE ONG,
JR., respondents.
Hechanova & Associates for petitioner Co.
Brillantes, Nachura, Navarro and Arcilla Law Offices for
respondent Ong, Jr.
GUTIERREZ, JR., J.:
The petitioners come to this Court asking for the setting
aside and reversal of a decision of the House of
Representatives Electoral Tribunal (HRET).
The HRET declared that respondent Jose Ong, Jr. is a
natural born Filipino citizen and a resident of Laoang,
Northern Samar for voting purposes. The sole issue
before us is whether or not, in making that
determination, the HRET acted with grave abuse of
discretion.
On May 11, 1987, the congressional election for the
second district of Northern Samar was held.
Among the candidates who vied for the position of
representative in the second legislative district of
Northern Samar are the petitioners, Sixto Balinquit and
Antonio Co and the private respondent, Jose Ong, Jr.
Respondent Ong was proclaimed the duly elected
representative of the second district of Northern Samar.
The petitioners filed election protests against the private
respondent premised on the following grounds:
1) Jose Ong, Jr. is not a natural born citizen of
the Philippines; and
2) Jose Ong, Jr. is not a resident of the second
district of Northern Samar.
The HRET in its decision dated November 6, 1989,
found for the private respondent.
A motion for reconsideration was filed by the petitioners
on November 12, 1989. This was, however, denied by
the HRET in its resolution dated February 22, 1989.
Hence, these petitions for certiorari.
We treat the comments as answers and decide the
issues raised in the petitions.
ON THE ISSUE OF JURISDICTION
The first question which arises refers to our jurisdiction.
The Constitution explicitly provides that the House of
Representatives Electoral Tribunal (HRET) and the
Senate Electoral Tribunal (SET) shall be the sole
judges of all contests relating to the election, returns,
and qualifications of their respective members.
(See Article VI, Section 17, Constitution)
The authority conferred upon the Electoral Tribunal is
full, clear and complete. The use of the
word sole emphasizes the exclusivity of the jurisdiction
of these Tribunals.
The Supreme Court in the case of Lazatin v. HRET (168
SCRA 391 [1988]) stated that under the 1987
Constitution, the jurisdiction of the Electoral Tribunal is
original and exclusive, viz:
The use of the word "sole" emphasizes the
exclusive character of the jurisdiction conferred
(Angara v. Electoral Commission, supra at p.
162). The exercise of power by the Electoral
Commission under the 1935 Constitution has
been described as "intended to be as complete
and unimpaired as if it had originally remained in
the legislature." (id., at p. 175) Earlier this grant
of power to the legislature was characterized by
 Justice Malcolm as "full, clear and complete;
(Veloso v. Board of Canvassers of Leyte and
Samar, 39 Phil. 886 [1919]) Under the amended
1935 Constitution, the power was unqualifiedly
reposed upon the Electoral Tribunal and it
remained as full, clear and complete as that
previously granted the Legislature and the
Electoral Commission, (Lachica v. Yap, 25
SCRA 140 [1968]) The same may be said with
regard to the jurisdiction of the Electoral Tribunal
under the 1987 Constitution. (p. 401)
The Court continued further, ". . . so long as the
Constitution grants the HRET the power to be the sole
judge of all contests relating to election, returns and
qualifications of members of the House of
Representatives, any final action taken by the HRET on
a matter within its jurisdiction shall, as a rule, not be
reviewed by this Court . . . the power granted to the
Electoral Tribunal is full, clear and complete and
excludes the exercise of any authority on the part of this
Court that would in any wise restrict it or curtail it or even
affect the same." (pp. 403-404)
When may the Court inquire into acts of the Electoral
Tribunals under our constitutional grants of power?
In the later case of Robles v. HRET (181 SCRA 780
[1990]) the Supreme Court stated that the judgments of
the Tribunal are beyond judicial interference save only
"in the exercise of this Court's so-called extraordinary
jurisdiction, . . . upon a determination that the Tribunal's
decision or resolution was rendered without or in excess
of its jurisdiction, or with grave abuse of discretion or
paraphrasing Morrero, upon a clear showing of such
arbitrary and improvident use by the Tribunal of its
power as constitutes a denial of due process of law, or
upon a demonstration of a very clear unmitigated
ERROR, manifestly constituting such GRAVE ABUSE
OF DISCRETION that there has to be a remedy for such
abuse." (at pp. 785-786)
In the leading case of Morrero v. Bocar (66 Phil. 429
[1938]) the Court ruled that the power of the Electoral
Commission "is beyond judicial interference except, in
any event, upon a clear showing of such arbitrary and
improvident use of power as will constitute a denial of
due process." The Court does not venture into the
perilous area of trying to correct perceived errors of
independent branches of the Government, It comes in
only when it has to vindicate a denial of due process or
correct an abuse of discretion so grave or glaring that no
less than the Constitution calls for remedial action.
The Supreme Court under the 1987 Constitution, has
been given an expanded jurisdiction, so to speak, to
review the decisions of the other branches and agencies
of the government to determine whether or not they have
acted within the bounds of the Constitution. (See Article
VIII, Section 1, Constitution)
Yet, in the exercise thereof, the Court is to merely check
whether or not the governmental branch or agency has
gone beyond the Constitutional limits of its jurisdiction,
not that it erred or has a different view. In the absence of
a showing that the HRET has committed grave abuse of
discretion amounting to lack of jurisdiction, there is no
occasion for the Court to exercise its corrective power; it
will not decide a matter which by its nature is for the
HRET alone to decide. (See Marcos v. Manglapus, 177
SCRA 668 [1989]) It has no power to look into what it
thinks is apparent error.
As constitutional creations invested with necessary
power, the Electoral Tribunals, although not powers in
the tripartite scheme of the government, are, in the
exercise of their functions independent organs —
independent of Congress and the Supreme Court. The
power granted to HRET by the Constitution is intended
to be as complete and unimpaired as if it had remained
originally in the legislature. (Angara v. Electoral
Commission, 63 Phil. 139 [1936])
In passing upon petitions, the Court with its traditional
and careful regard for the balance of powers, must
permit this exclusive privilege of the Tribunals to remain
where the Sovereign authority has place it. (See Veloso
v. Boards of Canvassers of Leyte and Samar, 39 Phil.
886 [1919])
It has been argued that under Article VI, Section 17 of
the present Constitution, the situation may exist as it
exists today where there is an unhealthy one-sided
political composition of the two Electoral Tribunals.
There is nothing in the Constitution, however, that
makes the HRET because of its composition any less
independent from the Court or its constitutional functions
any less exclusive. The degree of judicial intervention
should not be made to depend on how many legislative
members of the HRET belong to this party or that party.
The test remains the same-manifest grave abuse of
discretion.
In the case at bar, the Court finds no improvident use of
power, no denial of due process on the part of the HRET
which will necessitate the exercise of the power of
judicial review by the Supreme Court.
ON THE ISSUE OF CITIZENSHIP
The records show that in the year 1895, the private
respondent's grandfather, Ong Te, arrived in the
Philippines from China. Ong Te established his
residence in the municipality of Laoang, Samar on land
which he bought from the fruits of hard work.
As a resident of Laoang, Ong Te was able to obtain a
certificate of residence from the then Spanish colonial
administration.
The father of the private respondent, Jose Ong Chuan
was born in China in 1905. He was brought by Ong Te to
Samar in the year 1915.
Jose Ong Chuan spent his childhood in the province of
Samar. In Laoang, he was able to establish an enduring
relationship with his neighbors, resulting in his easy
assimilation into the community.
As Jose Ong Chuan grew older in the rural and seaside
community of Laoang, he absorbed Filipino cultural
values and practices. He was baptized into Christianity.
As the years passed, Jose Ong Chuan met a natural
born-Filipino, Agripina Lao. The two fell in love and,
thereafter, got married in 1932 according to Catholic
faith and practice.
The couple bore eight children, one of whom is the
private respondent who was born in 1948.
The private respondent's father never emigrated from
this country. He decided to put up a hardware store and
shared and survived the vicissitudes of life in Samar.
The business prospered. Expansion became inevitable.
As a result, a branch was set-up in Binondo, Manila. In
the meantime, the father of the private respondent,
unsure of his legal status and in an unequivocal
affirmation of where he cast his life and family, filed with
the Court of First Instance of Samar an application for
naturalization on February 15, 1954.
On April 28, 1955, the CFI of Samar, after trial, declared
Jose Ong Chuan a Filipino citizen.
On May 15, 1957, the Court of First Instance of Samar
issued an order declaring the decision of April 28, 1955
as final and executory and that Jose Ong Chuan may
already take his Oath of Allegiance.
Pursuant to said order, Jose Ong Chuan took his Oath of
Allegiance; correspondingly, a certificate of
naturalization was issued to him.
At the time Jose Ong Chuan took his oath, the private
respondent then a minor of nine years was finishing his
elementary education in the province of Samar. There is
nothing in the records to differentiate him from other
Filipinos insofar as the customs and practices of the
local populace were concerned.
Fortunes changed. The house of the family of the private
respondent in Laoang, Samar was burned to the ground.
Undaunted by the catastrophe, the private respondent's
family constructed another one in place of their ruined
house. Again, there is no showing other than that
Laoang was their abode and home.
After completing his elementary education, the private
respondent, in search for better education, went to
Manila in order to acquire his secondary and college
education.
In the meantime, another misfortune was suffered by the
family in 1975 when a fire gutted their second house in
Laoang, Samar. The respondent's family constructed still
another house, this time a 16-door apartment building,
two doors of which were reserved for the family.
The private respondent graduated from college, and
thereafter took and passed the CPA Board
Examinations.
Since employment opportunities were better in Manila,
the respondent looked for work here. He found a job in
the Central Bank of the Philippines as an examiner.
Later, however, he worked in the hardware business of
his family in Manila. In 1971, his elder brother, Emil, was
elected as a delegate to the 1971 Constitutional
Convention. His status as a natural born citizen was
challenged. Parenthetically, the Convention which in
drafting the Constitution removed the unequal treatment
given to derived citizenship on the basis of the mother's
citizenship formally and solemnly declared Emil Ong,
respondent's full brother, as a natural born Filipino. The
Constitutional Convention had to be aware of the
meaning of natural born citizenship since it was precisely
amending the article on this subject.
The private respondent frequently went home to Laoang,
Samar, where he grew up and spent his childhood days.
In 1984, the private respondent married a Filipina named
Desiree Lim.
For the elections of 1984 and 1986, Jose Ong, Jr.
registered himself as a voter of Laoang, Samar, and
correspondingly, voted there during those elections.
The private respondent after being engaged for several
years in the management of their family business
decided to be of greater service to his province and ran
for public office. Hence, when the opportunity came in
1987, he ran in the elections for representative in the
second district of Northern Samar.
Mr. Ong was overwhelmingly voted by the people of
Northern Samar as their representative in Congress.
Even if the total votes of the two petitioners are
combined, Ong would still lead the two by more than
7,000 votes.
The pertinent portions of the Constitution found in Article
IV read:
SECTION 1, the following are citizens of the
Philippines:
 1. Those who are citizens of the Philippines at
the time of the adoption of the Constitution;
2. Those whose fathers or mothers are citizens
of the Philippines;
3. Those born before January 17, 1973, of
Filipino mothers, who elect Philippine citizenship
upon reaching the age of majority; and
4. Those who are naturalized in accordance with
law.
SECTION 2, Natural-born Citizens are those
who are citizens of the Philippines from birth
without having to perform any act to acquire or
perfect their citizenship. Those who elect
Philippine citizenship in accordance with
paragraph 3 hereof shall be deemed natural-
born citizens.
The Court interprets Section 1, Paragraph 3 above as
applying not only to those who elect Philippine
citizenship after February 2, 1987 but also to those who,
having been born of Filipino mothers, elected citizenship
before that date.
The provision in Paragraph 3 was intended to correct an
unfair position which discriminates against Filipino
women. There is no ambiguity in the deliberations of the
Constitutional Commission, viz:
Mr. Azcuna: With respect to the provision of
section 4, would this refer only to those who
elect Philippine citizenship after the effectivity of
the 1973 Constitution or would it also cover
those who elected it under the 1973
Constitution?
Fr. Bernas: It would apply to anybody who
elected Philippine citizenship by virtue of the
provision of the 1935 Constitution whether the
election was done before or after January 17,
1973. (Records of the Constitutional
Commission, Vol. 1, p. 228; Emphasis supplied)
xxx xxx xxx
Mr. Trenas: The Committee on Citizenship, Bill
of Rights, Political Rights and Obligations and
Human Rights has more or less decided to
extend the interpretation of who is a natural-born
citizen as provided in section 4 of the 1973
Constitution by adding that persons who have
elected Philippine Citizenship under the 1935
Constitution shall be natural-born? Am I right Mr.
Presiding Officer?
Fr. Bernas: yes.
xxx xxx xxx
Mr. Nolledo: And I remember very well that in
the Reverend Father Bernas' well written book,
he said that the decision was designed merely to
accommodate former delegate Ernesto Ang and
that the definition on natural-born has no
retroactive effect. Now it seems that the
Reverend Father Bernas is going against this
intention by supporting the amendment?
Fr. Bernas: As the Commissioner can see, there
has been an evolution in my thinking. (Records
of the Constitutional Commission, Vol. 1, p. 189)
xxx xxx xxx
Mr. Rodrigo: But this provision becomes very
important because his election of Philippine
citizenship makes him not only a Filipino citizen
but a natural-born Filipino citizen entitling him to
run for Congress. . .
Fr. Bernas: Correct. We are quite aware of that
and for that reason we will leave it to the body to
approve that provision of section 4.
Mr. Rodrigo: I think there is a good basis for the
provision because it strikes me as unfair that the
Filipino citizen who was born a day before
January 17, 1973 cannot be a Filipino citizen or
a natural-born citizen. (Records of the
Constitutional Commission, Vol. 1, p. 231)
xxx xxx xxx
Mr. Rodrigo: The purpose of that provision is to
remedy an inequitable
situation.1avvphi1 Between 1935 and 1973
when we were under the 1935 Constitution,
those born of Filipino fathers but alien mothers
were natural-born Filipinos. However, those born
of Filipino mothers but alien fathers would have
to elect Philippine citizenship upon reaching the
age of majority; and if they do elect, they
become Filipino citizens but not natural-born
Filipino citizens. (Records of the Constitutional
Commission, Vol. 1, p. 356)
The foregoing significantly reveals the intent of the
framers. To make the provision prospective from
February 3, 1987 is to give a narrow interpretation
resulting in an inequitable situation. It must also be
retroactive.
It should be noted that in construing the law, the Courts
are not always to be hedged in by the literal meaning of
its language. The spirit and intendment thereof, must
prevail over the letter, especially where adherence to the
latter would result in absurdity and injustice. (Casela v.
Court of Appeals, 35 SCRA 279 [1970])
A Constitutional provision should be construed so as to
give it effective operation and suppress the mischief at
which it is aimed, hence, it is the spirit of the provision
which should prevail over the letter thereof. (Jarrolt v.
Mabberly, 103 U.S. 580)
In the words of the Court in the case of J.M. Tuason v.
LTA (31 SCRA 413 [1970]:
To that primordial intent, all else is subordinated.
Our Constitution, any constitution is not to be
construed narrowly or pedantically for the
prescriptions therein contained, to paraphrase
Justice Holmes, are not mathematical formulas
having their essence in their form but are
organic living institutions, the significance of
which is vital not formal. . . . (p. 427)
The provision in question was enacted to correct the
anomalous situation where one born of a Filipino father
and an alien mother was automatically granted the
status of a natural-born citizen while one born of a
Filipino mother and an alien father would still have to
elect Philippine citizenship. If one so elected, he was
not, under earlier laws, conferred the status of a natural-
born.
Under the 1973 Constitution, those born of Filipino
fathers and those born of Filipino mothers with an alien
father were placed on equal footing. They were both
considered as natural-born citizens.
Hence, the bestowment of the status of "natural-born"
cannot be made to depend on the fleeting accident of
time or result in two kinds of citizens made up of
essentially the same similarly situated members.
It is for this reason that the amendments were enacted,
that is, in order to remedy this accidental anomaly, and,
therefore, treat equally all those born before the 1973
Constitution and who elected Philippine citizenship either
before or after the effectivity of that Constitution.
The Constitutional provision in question is, therefore
curative in nature. The enactment was meant to correct
the inequitable and absurd situation which then
prevailed, and thus, render those acts valid which would
have been nil at the time had it not been for the curative
provisions. (See Development Bank of the Philippines v.
Court of Appeals, 96 SCRA 342 [1980])
There is no dispute that the respondent's mother was a
natural born Filipina at the time of her marriage. Crucial
to this case is the issue of whether or not the respondent
elected or chose to be a Filipino citizen.
Election becomes material because Section 2 of Article
IV of the Constitution accords natural born status to
children born of Filipino mothers before January 17,
1973, if they elect citizenship upon reaching the age of
majority.
To expect the respondent to have formally or in writing
elected citizenship when he came of age is to ask for the
unnatural and unnecessary. The reason is obvious. He
was already a citizen. Not only was his mother a natural
born citizen but his father had been naturalized when the
respondent was only nine (9) years old. He could not
have divined when he came of age that in 1973 and
1987 the Constitution would be amended to require him
to have filed a sworn statement in 1969 electing
citizenship inspite of his already having been a citizen
since 1957. In 1969, election through a sworn statement
would have been an unusual and unnecessary
procedure for one who had been a citizen since he was
nine years old.
We have jurisprudence that defines "election" as both a
formal and an informal process.
In the case of In Re: Florencio Mallare (59 SCRA 45
[1974]), the Court held that the exercise of the right of
suffrage and the participation in election exercises
constitute a positive act of election of Philippine
citizenship. In the exact pronouncement of the Court, we
held:
Esteban's exercise of the right of suffrage when
he came of age, constitutes a positive act of
election of Philippine citizenship (p. 52;
emphasis supplied)
The private respondent did more than merely exercise
his right of suffrage. He has established his life here in
the Philippines.
For those in the peculiar situation of the respondent who
cannot be expected to have elected citizenship as they
were already citizens, we apply the In Re Mallare rule.
The respondent was born in an outlying rural town of
Samar where there are no alien enclaves and no racial
distinctions. The respondent has lived the life of a
Filipino since birth. His father applied for naturalization
when the child was still a small boy. He is a Roman
Catholic. He has worked for a sensitive government
agency. His profession requires citizenship for taking the
examinations and getting a license. He has participated
in political exercises as a Filipino and has always
considered himself a Filipino citizen. There is nothing in
the records to show that he does not embrace Philippine
customs and values, nothing to indicate any tinge of
alien-ness no acts to show that this country is not his
natural homeland. The mass of voters of Northern
Samar are frilly aware of Mr. Ong's parentage. They
should know him better than any member of this Court
will ever know him. They voted by overwhelming
numbers to have him represent them in Congress.
Because of his acts since childhood, they have
considered him as a Filipino.
The filing of sworn statement or formal declaration is a
requirement for those who still have to elect
citizenship. For those already Filipinos when the time to
elect came up, there are acts of deliberate choice which
cannot be less binding. Entering a profession open only
to Filipinos, serving in public office where citizenship is a
qualification, voting during election time, running for
public office, and other categorical acts of similar nature
are themselves formal manifestations of choice for these
persons.
An election of Philippine citizenship presupposes that
the person electing is an alien. Or his status is doubtful
because he is a national of two countries. There is no
doubt in this case about Mr. Ong's being a Filipino when
he turned twenty-one (21).
We repeat that any election of Philippine citizenship on
the part of the private respondent would not only have
been superfluous but it would also have resulted in an
absurdity. How can a Filipino citizen elect Philippine
citizenship?
The respondent HRET has an interesting view as to how
Mr. Ong elected citizenship. It observed that "when
protestee was only nine years of age, his father, Jose
Ong Chuan became a naturalized Filipino. Section 15 of
the Revised Naturalization Act squarely applies its
benefit to him for he was then a minor residing in this
country. Concededly, it was the law itself that had
already elected Philippine citizenship for protestee by
declaring him as such." (Emphasis supplied)
The petitioners argue that the respondent's father was
not, validly, a naturalized citizen because of his
premature taking of the oath of citizenship.
The Court cannot go into the collateral procedure of
stripping Mr. Ong's father of his citizenship after his
death and at this very late date just so we can go after
the son.
The petitioners question the citizenship of the father
through a collateral approach. This can not be done. In
our jurisdiction, an attack on a person's citizenship may
only be done through a direct action for its nullity.
(See Queto v. Catolico, 31 SCRA 52 [1970])
To ask the Court to declare the grant of Philippine
citizenship to Jose Ong Chuan as null and void would
run against the principle of due process. Jose Ong
Chuan has already been laid to rest. How can he be
given a fair opportunity to defend himself. A dead man
cannot speak. To quote the words of the HRET "Ong
Chuan's lips have long been muted to perpetuity by his
demise and obviously he could not use beyond where
his mortal remains now lie to defend himself were this
matter to be made a central issue in this case."
The issue before us is not the nullification of the grant of
citizenship to Jose Ong Chuan. Our function is to
determine whether or not the HRET committed abuse of
authority in the exercise of its powers. Moreover, the
respondent traces his natural born citizenship through
his mother, not through the citizenship of his father. The
citizenship of the father is relevant only to determine
whether or not the respondent "chose" to be a Filipino
when he came of age. At that time and up to the present,
both mother and father were Filipinos. Respondent
Ong could not have elected any other citizenship unless
he first formally renounced Philippine citizenship in favor
of a foreign nationality. Unlike other persons faced with a
problem of election, there was no foreign nationality of
his father which he could possibly have chosen.
There is another reason why we cannot declare the
HRET as having committed manifest grave abuse of
discretion. The same issue of natural-born citizenship
has already been decided by the Constitutional
Convention of 1971 and by the Batasang Pambansa
convened by authority of the Constitution drafted by that
Convention. Emil Ong, full blood brother of the
respondent, was declared and accepted as a natural
born citizen by both bodies.
Assuming that our opinion is different from that of the
Constitutional Convention, the Batasang Pambansa, and
the respondent HRET, such a difference could only be
characterized as error. There would be no basis to call
the HRET decision so arbitrary and whimsical as to
amount to grave abuse of discretion.
What was the basis for the Constitutional Convention's
declaring Emil Ong a natural born citizen?
Under the Philippine Bill of 1902, inhabitants of the
Philippines who were Spanish subjects on the 11th day
of April 1899 and then residing in said islands and their
children born subsequent thereto were conferred the
status of a Filipino citizen.
Was the grandfather of the private respondent a Spanish
subject?
Article 17 of the Civil Code of Spain enumerates those
who were considered Spanish Subjects, viz:
ARTICLE 17. The following are Spaniards:
1. Persons born in Spanish territory.
2. Children born of a Spanish father or mother,
even though they were born out of Spain.
3. Foreigners who may have obtained
naturalization papers.
 4. Those without such papers, who may have
acquired domicile in any town in the Monarchy.
(Emphasis supplied)
The domicile of a natural person is the place of his
habitual residence. This domicile, once established is
considered to continue and will not be deemed lost until
a new one is established. (Article 50, NCC; Article 40,
Civil Code of Spain; Zuellig v. Republic, 83 Phil. 768
[1949])
As earlier stated, Ong Te became a permanent resident
of Laoang, Samar around 1895. Correspondingly, a
certificate of residence was then issued to him by virtue
of his being a resident of Laoang, Samar. (Report of the
Committee on Election Protests and Credentials of the
1971 Constitutional Convention, September 7, 1972, p.
3)
The domicile that Ong Te established in 1895 continued
until April 11, 1899; it even went beyond the turn of the
19th century. It is also in this place were Ong Te set-up
his business and acquired his real property.
As concluded by the Constitutional Convention, Ong Te
falls within the meaning of sub-paragraph 4 of Article 17
of the Civil Code of Spain.
Although Ong Te made brief visits to China, he,
nevertheless, always returned to the Philippines. The
fact that he died in China, during one of his visits in said
country, was of no moment. This will not change the fact
that he already had his domicile fixed in the Philippines
and pursuant to the Civil Code of Spain, he had become
a Spanish subject.
If Ong Te became a Spanish subject by virtue of having
established his domicile in a town under the Monarchy of
Spain, necessarily, Ong Te was also an inhabitant of the
Philippines for an inhabitant has been defined as one
who has actual fixed residence in a place; one who has
a domicile in a place. (Bouvier's Law Dictionary, Vol. II)
A priori, there can be no other logical conclusion but to
educe that Ong Te qualified as a Filipino citizen under
the provisions of section 4 of the Philippine Bill of 1902.
The HRET itself found this fact of absolute verity in
concluding that the private respondent was a natural-
born Filipino.
The petitioners' sole ground in disputing this fact is that
document presented to prove it were not in compliance
with the best the evidence rule. The petitioners allege
that the private respondent failed to present the original
of the documentary evidence, testimonial evidence and
of the transcript of the proceedings of the body which the
aforesaid resolution of the 1971 Constitutional
Convention was predicated.
On the contrary, the documents presented by the private
respondent fall under the exceptions to the best
evidence rule.
It was established in the proceedings before the HRET
that the originals of the Committee Report No. 12, the
minutes of the plenary session of 1971 Constitutional
Convention held on November 28, 1972 cannot be
found.
This was affirmed by Atty. Ricafrente, Assistant
Secretary of the 1971 Constitutional Convention; by Atty.
Nolledo, Delegate to the 1971 Constitutional Convention;
and by Atty. Antonio Santos, Chief Librarian of the U.P
Law Center, in their respective testimonies given before
the HRET to the effect that there is no governmental
agency which is the official custodian of the records of
the 1971 Constitutional Convention. (TSN, December
12, 1988, pp. 30-31; TSN, January 17, 1989, pp. 34-35;
TSN, February 1, 1989, p. 44; TSN, February 6, 1989,
pp. 28-29)
The execution of the originals was established by Atty.
Ricafrente, who as the Assistant Secretary of the 1971
Constitutional Convention was the proper party to testify
to such execution. (TSN, December 12, 1989, pp. 11-24)
The inability to produce the originals before the HRET
was also testified to as aforestated by Atty. Ricafrente,
Atty. Nolledo, and Atty. Santos. In proving the inability to
produce, the law does not require the degree of proof to
be of sufficient certainty; it is enough that it be shown
that after a bona fide diligent search, the same cannot
be found. (see Government of P.I. v. Martinez, 44 Phil.
817 [1918])
Since the execution of the document and the inability to
produce were adequately established, the contents of
the questioned documents can be proven by a copy
thereof or by the recollection of witnesses.
Moreover, to erase all doubts as to the authenticity of the
documentary evidence cited in the Committee Report,
the former member of the 1971 Constitutional
Convention, Atty. Nolledo, when he was presented as a
witness in the hearing of the protest against the private
respondent, categorically stated that he saw the
disputed documents presented during the hearing of the
election protest against the brother of the private
respondent. (TSN, February 1, 1989, pp. 8-9)
In his concurring opinion, Mr. Justice Sarmiento, a vice-
president of the Constitutional Convention, states that he
was presiding officer of the plenary session which
deliberated on the report on the election protest against
Delegate Emil Ong. He cites a long list of names of
delegates present. Among them are Mr. Chief Justice
Fernan, and Mr. Justice Davide, Jr. The petitioners could
have presented any one of the long list of delegates to
refute Mr. Ong's having been declared a natural-born
citizen. They did not do so. Nor did they demur to the
contents of the documents presented by the private
respondent. They merely relied on the procedural
objections respecting the admissibility of the evidence
presented.
The Constitutional Convention was the sole judge of the
qualifications of Emil Ong to be a member of that body.
The HRET by explicit mandate of the Constitution, is
the sole judge of the qualifications of Jose Ong, Jr. to be
a member of Congress. Both bodies deliberated at
length on the controversies over which they were sole
judges. Decisions were arrived at only after a full
presentation of all relevant factors which the parties
wished to present. Even assuming that we disagree with
their conclusions, we cannot declare their acts as
committed with grave abuse of discretion. We have to
keep clear the line between error and grave abuse.
ON THE ISSUE OF RESIDENCE
The petitioners question the residence qualification of
respondent Ong.
The petitioners lose sight of the meaning of "residence"
under the Constitution. The term "residence" has been
understood as synonymous with domicile not only under
the previous Constitutions but also under the 1987
Constitution.
The deliberations of the Constitutional Commission
reveal that the meaning of residence vis-a-vis the
qualifications of a candidate for Congress continues to
remain the same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I
remember that in the 1971 Constitutional
Convention, there was an attempt to require
residence in the place not less than one year
immediately preceding the day of the elections.
So my question is: What is the Committee's
concept of residence of a candidate for the
legislature? Is it actual residence or is it the
concept of domicile or constructive residence?
Mr. Davide: Madame President, in so far as the
regular members of the National Assembly are
concerned, the proposed section merely
provides, among others, and a resident thereof,
that is, in the district, for a period of not less than
one year preceding the day of the election. This
was in effect lifted from the 1973 Constitution,
the interpretation given to it was domicile.
(Records of the 1987 Constitutional Convention,
Vol. 11, July 22, 1986. p. 87)
xxx xxx xxx
Mrs. Rosario Braid: The next question is on
Section 7, page 2. I think Commissioner Nolledo
has raised the same point that "resident" has
been interpreted at times as a matter of intention
rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the
gentlemen consider at the proper time to go
back to actual residence rather than mere
intention to reside?
Mr. De los Reyes: But we might encounter some
difficulty especially considering that a provision
in the Constitution in the Article on Suffrage says
that Filipinos living abroad may vote as enacted
by law. So, we have to stick to the original
concept that it should be by domicile and not
physical and actual residence. (Records of the
1987 Constitutional Commission, Vol. 11, July
22, 1986, p. 110)
The framers of the Constitution adhered to the earlier
definition given to the word "residence" which regarded it
as having the same meaning as domicile.
The term "domicile" denotes a fixed permanent
residence to which when absent for business or
pleasure, one intends to return. (Ong Huan Tin v.
Republic, 19 SCRA 966 [1967]) The absence of a
person from said permanent residence, no matter how
long, notwithstanding, it continues to be the domicile of
that person. In other words, domicile is characterized
by animus revertendi (Ujano v. Republic, 17 SCRA 147
[1966])
The domicile of origin of the private respondent, which
was the domicile of his parents, is fixed at Laoang,
Samar. Contrary to the petitioners' imputation, Jose
Ong, Jr. never abandoned said domicile; it remained
fixed therein even up to the present.
The private respondent, in the proceedings before the
HRET sufficiently established that after the fire that
gutted their house in 1961, another one was
constructed.
Likewise, after the second fire which again destroyed
their house in 1975, a sixteen-door apartment was built
by their family, two doors of which were reserved as their
family residence. (TSN, Jose Ong, Jr., November
18,1988, p. 8)
The petitioners' allegation that since the private
respondent owns no property in Laoang, Samar, he
cannot, therefore, be a resident of said place is
misplaced.
The properties owned by the Ong Family are in the
name of the private respondent's parents. Upon the
demise of his parents, necessarily, the private
respondent, pursuant to the laws of succession, became
the co-owner thereof (as a co- heir), notwithstanding the
fact that these were still in the names of his parents.
Even assuming that the private respondent does not
own any property in Samar, the Supreme Court in the
case of De los Reyes v. Solidum (61 Phil. 893 [1935])
held that it is not required that a person should have a
house in order to establish his residence and domicile. It
is enough that he should live in the municipality or in a
rented house or in that of a friend or relative. (Emphasis
supplied)
To require the private respondent to own property in
order to be eligible to run for Congress would be
tantamount to a property qualification. The Constitution
only requires that the candidate meet the age,
citizenship, voting and residence requirements. Nowhere
is it required by the Constitution that the candidate
should also own property in order to be qualified to run.
(see Maquera v. Borra, 122 Phil. 412 [1965])
It has also been settled that absence from residence to
pursue studies or practice a profession or registration as
a voter other than in the place where one is elected,
does not constitute loss of residence. (Faypon v.
Quirino, 96 Phil. 294 [1954])
As previously stated, the private respondent stayed in
Manila for the purpose of finishing his studies and later
to practice his profession, There was no intention to
abandon the residence in Laoang, Samar. On the
contrary, the periodical journeys made to his home
province reveal that he always had
the animus revertendi.
The Philippines is made up not only of a single race; it
has, rather, undergone an interracial evolution.
Throughout our history, there has been a continuing
influx of Malays, Chinese, Americans, Japanese,
Spaniards and other nationalities. This racial diversity
gives strength to our country.
Many great Filipinos have not been whole-blooded
nationals, if there is such a person, for there is none. To
mention a few, the great Jose Rizal was part Chinese,
the late Chief Justice Claudio Teehankee was part
Chinese, and of course our own President, Corazon
Aquino is also part Chinese. Verily, some Filipinos of
whom we are proud were ethnically more Chinese than
the private respondent.
Our citizens no doubt constitute the country's greatest
wealth. Citizenship is a special privilege which one must
forever cherish.
However, in order to truly revere this treasure of
citizenship, we do not, on the basis of too harsh an
interpretation, have to unreasonably deny it to those who
qualify to share in its richness.
Under the overly strict jurisprudence surrounding our
antiquated naturalization laws only the very affluent
backed by influential patrons, who were willing to suffer
the indignities of a lengthy, sometimes humiliating, and
often corrupt process of clearances by minor
bureaucrats and whose lawyers knew how to overcome
so many technical traps of the judicial process were able
to acquire citizenship. It is time for the naturalization law
to be revised to enable a more positive, affirmative, and
meaningful examination of an applicant's suitability to be
a Filipino. A more humane, more indubitable and less
technical approach to citizenship problems is essential.
WHEREFORE, the petitions are hereby DISMISSED.
The questioned decision of the House of
Representatives Electoral Tribunal is AFFIRMED.
Respondent Jose Ong, Jr. is declared a natural-born
citizen of the Philippines and a resident of Laoang,
Northern Samar.
SO ORDERED.
Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ.,
concur.
Fernan, C.J., Melencio-Herrera, Cruz, Feliciano and
Gancayco, JJ., took no part.
Separate Opinions
PADILLA, J., dissenting:
I dissent.
These separate petitions
for certiorari and mandamus seek to annul the
decision* of respondent House of Representatives
Electoral Tribunal (hereinafter referred to as the tribunal)
dated 6 November 1989 which declared private
respondent Jose L. Ong, a natural-born citizen of the
Philippines and a legal resident of Laoang, Northern
Samar, and the resolution of the tribunal dated 22
February 1990 denying petitioners' motions for
reconsideration.
In G.R. Nos. 92191-92, petitioner Co also prays that the
Court declare private respondent Ong not qualified to be
a Member of the House of Representatives and to
declare him (petitioner Co) who allegedly obtained the
highest number of votes among the qualified candidates,
the duly elected representative of the second legislative
district of Northern Samar. In G.R. Nos. 92202-03,
petitioner Balanquit prays that the Court declare private
respondent Ong and Co (petitioner in G.R. Nos. 92191-
92) not qualified for membership in the House of
Representatives and to proclaim him (Balanguit) as the
duly elected representative of said district.
Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and
private respondent Jose Ong Chuan, Jr. were among the
candidates for the position of Representative or
Congressman for the second district of Northern Samar
during the 11 May 1987 congressional elections. Private
respondent was proclaimed duly-elected on 18 May
1987 with a plurality of some sixteen thousand (16,000)
votes over petitioner Co who obtained the next highest
number of votes.
Petitioners Co and Balanquit then filed separate election
protests against private respondent with the tribunal,
docketed as HRET Cases Nos. 13 and 15 respectively.
Both protests raised almost the same issues and were
thus considered and decided jointly by the tribunal.
The issues raised before the tribunal were the following:
1. Whether or not protestee (meaning, Ong) is a
natural-born citizen of the Philippines in
contemplation of Section 6, Article VI of the
1987 Constitution in relation to Sections 2 and
1(3), Article IV thereof; and
2. Whether or not protestee was a resident of
Laoang, Northern Samar, in contemplation of
Section 6, Article VI of the same Constitution, for
a period of not less than one year immediately
preceding the congressional elections of May
1987.
The respondent tribunal in its decision dated 6
November 1989 held that respondent Jose L. Ong is a
natural-born citizen of the Philippines and was a legal
resident of Laoang, Northern Samar for the required
period prior to the May 1987 congressional elections. He
was, therefore, declared qualified to continue in office as
Member of the House of Representatives, Congress of
the Philippines, representing the second legislative
district of Northern Samar.
The factual antecedents taken from the consolidated
proceedings in the tribunal are the following:
1. The Protestee (Ong) was born on June 19,
1948 to the legal spouses Ong Chuan also
known as Jose Ong Chuan and Agrifina E. Lao.
His place of birth is Laoang which is now one of
the municipalities comprising the province of
Northern Samar (Republic Act No. 6132
approved on August 24, 1970 and the
Ordinance appended to the 1987 Constitution).
2. On the other hand, Jose Ong Chuan was born
in China and arrived in Manila on December 16,
1915. (Exhibit zz) Subsequently thereafter, he
took up residence in Laoang, Samar.
3. On February 4, 1932, he married Agrifina E.
Lao. Their wedding was celebrated according to
the rites and practices of the Roman Catholic
Church in the Municipality of Laoang (Exh. E).
4. At the time of her marriage to Jose Ong
Chuan, Agrifina E. Lao was a natural-born
Filipino citizen, both her parents at the time of
her birth being Filipino citizens. (Exhibits E & I)
5. On February 15, 1954, Jose Ong Chuan,
desiring to acquire Philippine citizenship, filed
his petition for naturalization with the Court of
First Instance of Samar, pursuant to
Commonwealth Act No. 473, otherwise known
as the Revised Naturalization Law.
6. On April 28, 1955, the Court of First Instance
of Samar rendered a decision approving the
application of Jose Ong Chuan for naturalization
and declaring said petitioner a Filipino citizen
"with all the rights and privileges and duties,
liabilities and obligations inherent to Filipino
citizens. (Exh. E)
7. On May 15, 1957, the same Court issued an
order:
(1) declaring the decision of this Court of
April 28, 1955 final and executory;
(2) directing the clerk of court to issue
the corresponding Certificate of
Naturalization in favor of the applicant
Ong Chuan who prefers to take his oath
and register his name as Jose Ong
Chuan. Petitioner may take his oath as
Filipino citizen under Ms new christian
name, Jose Ong Chuan. (Exh. F)
8. On the same day, Jose Ong Chuan having
taken the corresponding oath of allegiance to
the Constitution and the Government of the
Philippines as prescribed by Section 12 of
Commonwealth Act No. 473, was issued the
corresponding Certificate of Naturalization. (Exh.
G)
9. On November 10, 1970, Emil L. Ong, a full-
brother of the protestee and a son born on July
25, 1937 at Laoang, Samar to the spouses Jose
Ong Chuan and Agrifina E. Lao, was elected
delegate from Northern Samar to the 1971
Constitutional Convention.
10. By protestee's own -testimony, it was
established that he had attended grade school in
Laoang. Thereafter, he went to Manila where he
finished his secondary as well as his college
education. While later employed in Manila,
 protestee however went home to Laoang
whenever he had the opportunity to do so, which
invariably would be as frequent as twice to four
times a year.
11. Protestee also showed that being a native
and legal resident of Laoang, he registered as a
voter therein and correspondingly voted in said
municipality in the 1984 and 1986 elections.
12. Again in December 1986, during the general
registration of all voters in the country, Protestee
re-registered as a voter in Precinct No. 4 of
Barangay Tumaguinting in Laoang. In his voter's
affidavit, Protestee indicated that he is a resident
1
of Laoang since birth. (Exh. 7)
Petitioners' motions for reconsideration of the tribunal's
decision having been denied, petitioners filed the
present petitions.
In their comments, the respondents first raise the issue
of the Court's jurisdiction to review the decision of the
House Electoral Tribunal, considering the constitutional
provision vesting upon said tribunal the power and
authority to act as the sole judge of all contests relating
to the qualifications of the Members of the House of
2 prescribed by the Constitution, have been met. Indeed,
Representatives.
On the question of this Court's jurisdiction over the
present controversy, I believe that, contrary to the
respondents' contentions, the Court has the jurisdiction
and competence to review the questioned decision of
the tribunal and to decide the present controversy.
Article VIII, Section I of the 1987 Constitution provides
that:
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
Government.
The Constitution, it is true, constitutes the tribunal as
the sole judge of all contests relating to the election,
returns, and qualifications of Members of the House of
Representatives. But as early as 1938, it was held
3
in Morrero vs. Bocar, construing Section 4, Article VI of
the 1935 Constitution which provided that ". . . The
Electoral Commission shall be the sole judge of all
contests relating to the election, returns and
qualifications of the Members of the National Assembly,"
that:
The judgment rendered by the (electoral)
commission in the exercise of such an
acknowledged power is beyond judicial
interference, except, in any event, "upon a clear
showing of such arbitrary and improvident use of
the power as will constitute a denial of due
process of law." (Barry vs. US ex rel.
Cunningham, 279 US 597; 73 Law. ed., 867;
Angara vs. Electoral Commission, 35 Off. Gaz.,
23.)
And then under the afore-quoted provisions of Article
VIII, Section 1 of the 1987 Constitution, this Court is
duty-bound to determine whether or not, in an actual
controversy, there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
The present controversy, it will be observed, involves
more than perceived irregularities in the conduct of a
congressional election or a disputed appreciation of
ballots, in which cases, it may be contended with great
legal force and persuasion that the decision of the
electoral tribunal should be final and conclusive, for it is,
by constitutional directive, made the sole judge of
contests relating to such matters. The present
controversy, however, involves no less than a
determination of whether the qualifications for
membership in the House of Representatives, as
this Court would be unforgivably remiss in the
performance of its duties, as mandated by the
Constitution, were it to allow a person, not a natural-born
Filipino citizen, to continue to sit as a Member of the
House of Representatives, solely because the House
Electoral Tribunal has declared him to be so. In such a
case, the tribunal would have acted with grave abuse of
discretion amounting to lack or excess of jurisdiction as
to require the exercise by this Court of its power of
judicial review.
Besides, the citizenship and residence qualifications of
private respondent for the office of Member of the House
of Representatives, are here controverted by petitioners
who, at the same time, claim that they are entitled to the
office illegally held by private respondent. From this
additional direction, where one asserts an earnestly
perceived right that in turn is vigorously resisted by
another, there is clearly a justiciable controversy proper
for this Court to consider and decide.
Nor can it be said that the Court, in reviewing the
decision of the tribunal, asserts supremacy over it in
contravention of the time-honored principle of
constitutional separation of powers. The Court in this
instance simply performs a function entrusted and
assigned to it by the Constitution of interpreting, in a
justiciable controversy, the pertinent provisions of the
Constitution with finality.
It is the role of the Judiciary to refine and, when
necessary, correct constitutional (and/or
statutory) interpretation, in the context of the
 interactions of the three branches of the
government, almost always in situations where
some agency of the State has engaged in action
that stems ultimately from some legitimate area
of governmental power (the Supreme Court in
4
Modern Role, C.B. Sevisher, 1958, p. 36).
Moreover, it is decidedly a matter of great public interest
and concern to determine whether or not private
respondent is qualified to hold so important and high a
public office which is specifically reserved by the
Constitution only to natural-born Filipino citizens.
After a careful consideration of the issues and the
evidence, it is my considered opinion that the
respondent tribunal committed grave abuse of discretion
amounting to lack or excess of jurisdiction in rendering
its questioned decision and resolution, for reasons to be
presently stated.
5 spouses Jose Ong Chuan, a Chinese citizen, and
The Constitution requires that a Member of the House
of Representatives must be a natural-born citizen of the
Philippines and, on the day of the election, is at least
twenty-five (25) years of age, able to read and write,
and, except the party-list representatives, a registered
voter in the district in which he shall be elected, and a
resident thereof for a period of not less than one (1) year
immediately preceding the day of the election.
Article IV, Section 2 of the 1987 Constitution defines
natural-born (Filipino) citizens as:
Natural-born citizens are those who are citizens
of the Philippines from birth without having to
perform any act to acquire or perfect their
Philippine citizenship. Those who elect
Philippine citizenship in accordance with
paragraph (3), Section I hereof shall be deemed
natural-born citizen,
Article IV, Section 1, paragraph (3) of the 1987
Constitution provides that:
Section 1. The following are citizens of the
Philippines:
xxx xxx xxx
(3) Those born before January 17, 1973, of
Filipino mothers, who elect Philippine citizenship
upon reaching the age of majority.
The Court in this case is faced with the duty of
interpreting the above-quoted constitutional provisions.
The first sentence of Section 2 of Article IV states the
basic definition of a natural-born Filipino citizen. Does
private respondent fall within said definition?
To the respondent tribunal,
Protestee may even be declared a natural-born
citizen of the Philippines under the first sentence
of Sec. 2 of Article IV of the 1987 Constitution
because he did not have "to perform any act to
acquire or perfect his Philippine citizenship." It
bears to repeat that on 15 May 1957, while still a
minor of 9 years he already became a Filipino
citizen by declaration of law. Since his mother
was a natural-born citizen at the time of her
marriage, protestee had an inchoate right to
Philippine citizenship at the moment of his birth
and, consequently the declaration by virtue of
Sec. 15 of CA 473 that he was a Filipino citizen
retroacted to the moment of his birth without his
having to perform any act to acquire or perfect
6
such Philippine citizenship.
I regret that I am neither convinced nor persuaded by
such kaleidoscopic ratiocination. The records show that
private respondent was born on 19 June 1948 to the
Agrifina E. Lao, a natural-born Filipino citizen, in Laoang,
Northern Samar. In other words, at birth, private
respondent was a Chinese citizen (not a natural-born
Filipino citizen) because his father was then a Chinese
citizen (not a naturalized Filipino citizen). Under the 1935
Constitution which was enforced at the time of private
respondent's birth on 19 June 1948, only those whose
fathers were citizens of the Philippines were considered
Filipino citizens. Those whose mothers were citizens of
the Philippines had to elect Philippine citizenship upon
reaching the age of majority, in order to be considered
7
Filipino citizens.
Following the basic definition in the 1987 Constitution of
a natural-born citizen, in relation to the 1935
Constitution, private respondent is not a natural-born
Filipino citizen, having been born a Chinese citizen by
virtue of the Chinese citizenship of his father at the time
of his birth, although from birth, private respondent had
the right to elect Philippine citizenship, the citizenship of
his mother, but only upon his reaching the age of
majority.
While under Section 15 of the Revised Naturalization
Law (C.A. 473) minor children of a naturalized citizen
(father), who were born in the Philippines prior to the
naturalization of the parent automatically become
8
Filipino citizens, this does not alter the fact that private
respondent was not born to a Filipino father, and the
operation of Section 15 of CA 473 did not confer upon
him the status of a natural-born citizen merely because
he did not have to perform any act to acquire or perfect
his status as a Filipino citizen.
But even assuming arguendo that private respondent
could be considered a natural-born citizen by virtue of
the operation of CA 473, petitioners however contend
that the naturalization of private respondent's father was
invalid and void from the beginning, and, therefore,
private respondent is not even a Filipino citizen.
Respondent tribunal in its questioned decision ruled that
only a direct proceeding for nullity of naturalization as a
Filipino citizen is permissible, and, therefore, a collateral
attack on Ong Chuan's naturalization is barred in an
electoral contest which does not even involve him (Ong
Chuan).
Private respondent, for his part, avers in his Comment
that the challenge against Ong Chuan's naturalization
must emanate from the Government and must be made
in a proper/appropriate and direct proceeding for de-
naturalization directed against the proper party, who in
such case is Ong Chuan, and also during his lifetime.
A judgment in a naturalization proceeding is not,
however, afforded the character of impregnability under
9
the principle of res judicata. Section 18 of CA 473
provides that a certificate of naturalization may be
cancelled upon motion made in the proper proceeding
by the Solicitor General or his representative, or by the
proper provincial fiscal.
10
In Republic vs. Go Bon Lee, this Court held that:
An alien friend is offered under certain
conditions the privilege of citizenship. He may
accept the offer and become a citizen upon
compliance with the prescribed conditions, but
not otherwise. His claim is of favor, not of right.
He can only become a citizen upon and after a
strict compliance with the acts of Congress. An
applicant for this high privilege is bound,
therefore, to conform to the terms upon which
alone the right he seeks can be conferred. It is
his province, and he is bound, to see that the
jurisdictional facts upon which the grant is
predicated actually exist and if they do not he
takes nothing by this paper grant.
xxx xxx xxx
Congress having limited this privilege to a
specified class of persons, no other person is
entitled to such privilege, nor to a certificate
purporting to grant it, and any such certificate
issued to a person not so entitled to receive it
must be treated as a mere nullity, which confers
no legal rights as against the government, from
which it has been obtained without warrant of
law.
"Naturalization is not a right, but a privilege of the most
discriminating as well as delicate and exacting nature,
affecting public interest of the highest order, and which
may be enjoyed only under the precise conditions
11
prescribed by law therefor."
Considering the legal implications of the allegation made
by the petitioners that the naturalization of private
respondent's father Ong Chuan, is a nullity, the Court
should make a ruling on the validity of said naturalization
proceedings. This course of action becomes all the more
inevitable and justified in the present case where, to
repeat for stress, it is claimed that a foreigner is holding
12
a public office.
It cannot be overlooked, in this connection, that the
citizenship of private respondent is derived from his
father. If his father's Filipino citizenship is void from the
beginning, then there is nothing from which private
respondent can derive his own claimed Filipino
citizenship. For a spring cannot rise higher than its
source. And to allow private respondent to avail of the
privileges of Filipino citizenship by virtue of a void
naturalization of his father, would constitute or at least
sanction a continuing offense against the Constitution.
The records show that private respondent's father, Jose
Ong Chuan, took the oath of allegiance to the
Constitution and the Philippine Government, as
prescribed by Section 12 of CA 473 on the same day (15
May 1957) that the CFI issued its order directing the
clerk of court to issue the corresponding Certificate of
Naturalization and for the applicant to take the oath of
allegiance.
However, it is settled that an order granting a petition to
take the requisite oath of allegiance of one who has
previously obtained a decision favorable to his
application for naturalization, is appealable. It is,
therefore, improper and illegal to authorize the taking of
said oath upon the issuance of said order and before the
expiration of the reglementary period to perfect any
13
appeal from said order.
14
In Cua Sun Ke vs. Republic, this Court held that:
Administration of the oath of allegiance on the
same day as issuance of order granting
citizenship is irregular and makes the
proceedings so taken null and void. (Republic
vs. Guy, 115 SCRA 244 [1982]; citing the case
of Ong So vs. Republic of the Philippines, 121
Phil. 1381).
It would appear from the foregoing discussion that the
naturalization of Jose Ong Chuan (private respondent's
father) was null and void. It follows that the private
respondent did not acquire any legal rights from the void
naturalization of his father and thus he cannot himself be
considered a Filipino citizen, more so, a natural-born
Filipino citizen.
But assuming that the CFI order of 15 May 1957
directing the clerk of court to issue the certificate of
naturalization to Ong Chuan and for the latter to take the
oath of allegiance was final and not appealable, the
resulting naturalization of Ong Chuan effected, as
previously stated, an automatic naturalization of private
respondent, then a minor, as a Filipino citizen on 15 May
1957, but not his acquisition or perfection of the status of
a natural-born Filipino citizen.
Let us now look into the question of whether or not
private respondent acquired the status of a natural-born
Filipino citizen by reason of the undisputed fact that his
mother was a natural-born Filipino citizen. This in turn
leads us to an examination of the second sentence in
Article IV, Section 2 of the 1987 Constitution. It expands,
in a manner of speaking, in relation to Section 1,
paragraph (3) of the same Article IV, the status of a
natural-born Filipino citizen to those who elect Philippine
citizenship upon reaching the age of majority. The right
or privilege of election is available, however, only to
those born to Filipino mothers under the 1935
Constitution, and before the 1973 Constitution took
effect on 17 January 1973.
The petitioners contend that the respondent tribunal
acted in excess of its jurisdiction or gravely abused its
discretion as to exceed its jurisdiction in "distorting" the
conferment by the 1987 Constitution of the status of
"natural-born" Filipino citizen on those who elect
Philippine citizenship — all in its strained effort,
according to petitioners, to support private respondent's
qualification to be a Member of the House of
15
Representatives.
Petitioners argue that the clear, unambiguous wording of
section 1(3) of Article IV of the 1987 Constitution
contemplates that only the legitimate children of Filipino
mothers with alien father, born before 17 January 1973
and who would reach the age of majority (and thus elect
Philippine citizenship) after the effectivity of the 1987
Constitution are entitled to the status of natural-born
16
Filipino citizen.
The respondent tribunal in resolving the issue of the
constitutional provisions' interpretation, found reason to
refer to the interpellations made during the 1986
Constitutional Commission. It said:
That the benevolent provisions of Sections 2
and 1(3) of Article IV of the 1987 Constitution
was (sic) intended by its (sic) framers to be
endowed, without distinction, to all Filipinos by
election pursuant to the 1935 Constitution is
more than persuasively established by the
extensive interpellations and debate on the
issue as borne by the official records of the 1986
17
Constitutional Commission.
Although I find the distinction as to when election of
Philippine citizenship was made irrelevant to the case at
bar, since private respondent, contrary to the conclusion
of the respondent tribunal, did not elect Philippine
citizenship, as provided by law, I still consider it
necessary to settle the controversy regarding the
meaning of the constitutional provisions in question.
I agree with respondent tribunal that the debates,
interpellations petitions and opinions expressed in the
1986 Constitutional Commission may be resorted to in
ascertaining the meaning of somewhat elusive and even
nebulous constitutional provisions. Thus —
The ascertainment of that intent is but in keeping
with the fundamental principle of constitutional
construction that the intent of the framers of the
organic law and of the people adopting it should
be given effect. The primary task in
constitutional construction is to ascertain and
thereafter assure the realization of the purpose
of the framers and of the people in the adoption
of the Constitution. It may also be safely
assumed that the people in ratifying the
constitution were guided mainly by the
18
explanation offered by the framers.
The deliberations of the 1986 Constitutional Commission
relevant to Section 2, Article IV in relation to Section 1(3)
of the same Article, appear to negate the contention of
petitioners that only those born to Filipino mothers
before 17 January 1973 and who would elect Philippine
citizenship after the effectivity of the 1987 Constitution,
are to be considered natural-born Filipino citizens.
During the free-wheeling discussions on citizenship,
Commissioner Treñas specifically asked Commissioner
Bernas regarding the provisions in question, thus:
MR. TRENAS: The Committee on Citizenship,
Bill of Rights, Political Rights and Obligations
and Human Rights has more or less decided to
extend the interpretation of who is a natural-born
Filipino citizen as provided in Section 4 of the
1973 Constitution, by adding that persons who
have elected Philippine citizenship under the
1935 Constitution shall be considered natural-
born. Am I right, Mr. Presiding Officer?
FR BERNAS: Yes.
MR. TRENAS: And does the Commissioner
think that tills addition to Section 4 of the 1973
Constitution would be contrary to the spirit of
that section?
FR BERNAS: Yes, we are quite aware that it is
contrary to the letter really. But whether it is
contrary to the spirit is something that has been
debated before and is being debated even now.
We will recall that during the 1971 Constitutional
Convention, the status of natural-born
citizenship of one of the delegates, Mr. Ang, was
challenged precisely because he was a citizen
by election. Finally, the 1971 Constitutional
Convention considered him a natural-born
citizen, one of the requirements to be a Member
of the 1971 Constitutional Convention. The
reason behind that decision was that a person
 under his circumstances already had the
inchoate right to be a citizen by the fact that the
mother was a Filipino. And as a matter of fact,
the 1971 Constitutional Convention formalized
that recognition by adopting paragraph 2 of
Section 1 of the 1971 Constitution. So, the entire
purpose of this proviso is simply to perhaps
remedy whatever injustice there may be so that
these people born before January 17, 1973 who
are not naturalized and people who are not
natural born but who are in the same situation
as we are considered natural-born citizens. So,
the intention of the Committee in proposing this
19
is to equalize their status.
When asked to clarify the provision on natural-born
citizens, Commissioner Bernas replied to Commissioner
Azcuna thus:
MR. AZCUNA: With respect to the proviso in
Section 4, would this refer only to those who
elect Philippine citizenship after the effectivity of
the 1973 Constitution or would it also cover
those who elected it under the 1935
Constitution?
FR BERNAS: It would apply to anybody who
elected Philippine citizenship by virtue of the
provision of the 1935 Constitution, whether the
election was done before or after 17 January
20
1973.
And during the period of amendments. Commissioner
Rodrigo explained the purpose of what now appear as
Section 2 and Section 1, paragraph (3) of Article IV of
the 1987 Constitution, thus:
MR. RODRIGO: The purpose of that proviso is
to remedy an inequitable situation. Between
1935 and 1973, when we were under the 1935
Constitution, those born of Filipino fathers but
alien mothers were natural-born Filipinos.
However, those born of Filipino mothers but
alien fathers would have to elect Philippine
citizenship upon reaching the age of majority;
and, if they do elect, they become Filipino
citizens, yet, but not natural-born Filipino
citizens.
The 1973 Constitution equalized the status of those born
of Filipino mothers and those born of Filipino fathers. So
that from January 17, 1973 when the 1973 Constitution
took effect, those born of Filipino mothers but of alien
fathers are natural-born Filipino citizens. Also, those who
are born of Filipino fathers and alien mothers are
natural-born Filipino citizens.
If the 1973 Constitution equalized the status of a child
born of a Filipino mother and that born of a Filipino
father, why do we not give a chance to a child born
before January 17, 1973, if and when he elects
Philippine citizenship, to be in the same status as one
born of a Filipino father — namely, natural-born citizen.
Another thing I stated is equalizing the status of a father
and a mother vis-a-vis the child. I would like to state also
that we showed equalize the status of a child born of a
Filipino mother the day before January 17, 1973 and a
child born also of a Filipino mother on January 17 or 24
hours later. A child born of a Filipino mother but an alien
father one day before January 17, 1973 is a Filipino
citizen, if he elects Philippine citizenship, but he is not a
natural-born Filipino citizen. However, the other child
who luckily was born 24 hours later — maybe because
21
of parto laborioso — is a natural-born Filipino citizen.
It would appear then that the intent of the framers of the
1987 Constitution in defining a natural-born Filipino
citizen was to equalize the position of Filipino fathers
and Filipino mothers as to their children becoming
natural-born Filipino citizens. In other words, after 17
January 1973, effectivity date of the 1973
Constitution, all those born of Filipino fathers (with alien
spouse) or Filipino mothers (with alien spouse) are
natural-born Filipino citizens. But those born to Filipino
mothers prior to 17 January 1973 must still elect
Philippine citizenship upon their reaching the age of
majority, in order to be deemed natural-born Filipino
citizens. The election, which is related to the attainment
of the age of majority, may be made before or after 17
January 1973. This interpretation appears to be in
consonance with the fundamental purpose of the
Constitution which is to protect and enhance the
22
people's individual interests, and to foster equality
among them.
Since private respondent was born on 19 June 1948 (or
before 17 January 1973) to a Filipino mother (with an
alien spouse) and should have elected Philippine
citizenship on 19 June 1969 (when he attained the age
of majority), or soon thereafter, in order to have the
status of a natural-born Filipino citizen under the 1987
Constitution, the vital question is: did private respondent
really elect Philippine citizenship? As earlier stated, I
believe that private respondent did not elect Philippine
citizenship, contrary to the ruling of the respondent
tribunal.
The respondent tribunal, on this issue, ruled as follows:
Where a person born to a Filipino mother and an
alien father had exercised the right of suffrage
when he came of age, the same constitutes a
positive act of election of Philippine citizenship.
(Florencio vs. Mallare) [sic] The acts of the
petitioner in registering as a voter, participating
in elections and campaigning for certain
candidates were held by the Supreme Court as
sufficient to show his preference for Philippine
citizenship. Accordingly, even without complying
with the formal requisites for election, the
 petitioner's Filipino citizenship was judicially
23
upheld.
I find the above ruling of the respondent tribunal to be
patently erroneous and clearly untenable, as to amount
to grave abuse of discretion. For it is settled doctrine in
this jurisdiction that election of Philippine citizenship
must be made in accordance with Commonwealth Act
24
625. Sections 1 and 2 of the Act mandate that the
option to elect Philippine citizenship must be effected
expressly not impliedly.
The respondent tribunal cites In re: Florencio
25
Mallare which held that Esteban Mallare's exercise of
the right of suffrage when he came of age, constituted a
positive act of election of Philippine citizenship.
Mallare, cited by respondent tribunal as authority for the
doctrine of implied election of Philippine citizenship, is
not applicable to the case at bar. The respondent
tribunal failed to consider that Esteban Mallare reached
the age of majority in 1924, or seventeen (17) years
before CA 625 was approved and, more importantly,
eleven (11) years before the 1935 Constitution (which
granted the right of election) took effect.
To quote Mr. Justice Fernandez in Mallare:
Indeed, it would be unfair to expect the
presentation of a formal deed to that effect
considering that prior to the enactment of
Commonwealth Act 625 on June 7, 1941, no
particular proceeding was required to exercise
the option to elect Philippine citizenship, granted
to the proper party by Section 1, subsection 4,
Article IV of the 1935 Philippine Constitution.
26
Moreover, Esteban Mallare was held to be a Filipino
citizen because he was an illegitimate (natural) child of a
Filipino mother and thus followed her citizenship. I
therefore agree with the petitioners' submission that,
in citing the Mallare case, the respondent tribunal had
engaged in an obiter dictum.
The respondent tribunal also erred in ruling that by
operation of CA 473, the Revised Naturalization Law,
providing for private respondent's acquisition of Filipino
citizenship by reason of the naturalization of his father,
the law itself had already elected Philippine citizenship
for him. For, assuming arguendo that the naturalization
of private respondent's father was valid, and that there
was no further need for private respondent to elect
Philippine citizenship (as he had automatically become a
Filipino citizen) yet, this did not mean that the operation
of the Revised Naturalization Law amounted to an
election by him of Philippine citizenship as contemplated
by the Constitution. Besides, election of Philippine
citizenship derived from one's Filipino mother, is made
upon reaching the age of majority, not during one's
minority.
There is no doubt in my mind, therefore, that private
respondent did not elect Philippine citizenship upon
reaching the age of majority in 1969 or within a
reasonable time thereafter as required by CA 625.
Consequently, he cannot be deemed a natural-born
Filipino citizen under Sections 2 and 1(3), Article IV of
the 1987 Constitution.
Based on all the foregoing considerations and premises,
I am constrained to state that private respondent is not a
natural-born citizen of the Philippines in contemplation of
Section 6, Article VI of the 1987 Constitution in relation
to Sections 2 and 1(3), Article IV thereof, and hence is
disqualified or ineligible to be a Member of the House of
Representatives.
At this point, I find it no longer necessary to rule on the
issue of required residence, inasmuch as the
Constitution requires that a Member of the House of
Representatives must be both a natural-born Filipino
citizen and a resident for at least one (1) year in the
district in which he shall be elected.
The next question that comes up is whether or not either
of the petitioners can replace private respondent as the
Representative of the second legislative district of
Northern Samar in the House of Representatives.
I agree with respondent tribunal that neither of the
petitioners may take the place of private respondent in
the House of Representatives representing the second
district of Northern Samar. The ruling of this Court
in Ramon L. Labo, Jr. vs. The Commission on Elections
27
(COMELEC) EN BANC and Luis L. Lardizabal, is
controlling. There we held that Luis L. Lardizabal, who
filed the quo warranto petition, could not replace Ramon
L. Labo, Jr. as mayor of Baguio City for the simple
reason that as he obtained only the second highest
number of votes in the election, he was obviously not the
choice of the people of Baguio City for mayor of that
City.
A petition alleging that the candidate-elect is not
qualified for the office is, in effect, a quo
warranto proceeding even if it is labelled an election
28
protest. It is a proceeding to unseat the ineligible
person from office but not necessarily to install the
29
protestant in his place.
The general rule is that the fact that a plurality or a
majority of the votes are cast for an ineligible candidate
in an election does not entitle the candidate receiving the
next highest number of votes to be declared elected. In
such a case, the electors have failed to make a choice
30
and the election is a nullity.
Sound policy dictates that public elective offices
are filled by those who have the highest number
of votes cast in the election for that office, and it
is a fundamental idea in all republican forms of
government that no one can be declared elected
 and no measure 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).
As early as 1912, this Court has already
declared that the candidate who lost in an
election cannot be proclaimed the winner in the
event that the candidate who won is found
ineligible for the office to which he was elected.
This was the ruling in Topacio v. Paredes (23
Phil. 238) —
Again, the effect of a decision that a
candidate is not entitled to the office
because of fraud or irregularities in the
election is quite different from that
produced by declaring a person
ineligible to hold such an office. . . . If it
be found that the successful candidate
(according to the board of canvassers)
obtained a plurality in an illegal manner,
and that another candidate was the real
victor, the former must retire in favor of
the latter. In the other case, there is not,
strictly speaking, a contest, as the
wreath of victory cannot be transferred
from an ineligible to any other candidate
when the sole question is the eligibility
of the one receiving a plurality of the
31
legally cast ballots. . . .
The recognition of Emil L. Ong by the 1971
Constitutional Convention as a natural-born
Filipino citizen, in relation to the present case.
Private respondent, as previously stated, is a full brother
of Emil L. Ong, both of them having the same father and
mother.
Private respondent, relying on a resolution of the 1971
32
Constitutional Convention to the effect that Emil L. Ong
was a natural-born Filipino citizen, alleged before the
House Electoral Tribunal that, by analogy, he is himself
a natural-born Filipino citizen. This submission, while
initially impressive, is, as will now be shown, flawed and
not supported by the evidence. Not even the majority
decision of the electoral tribunal adopted the same as
the basis of its decision in favor of private respondent.
The tribunal, in reference to this submission, said:
Be that as it may and in the light of the Tribunal's
disposition of protestee's citizenship based on
an entirely different set of circumstances, apart
from the indisputable fact that the matters
attempted to be brought in issue in connection
therewith are too far removed in point of time
and relevance from the decisive events relied
upon by the Tribunal, we view these two issues
33
as being already inconsequential.
The electoral tribunal (majority) instead chose to
predicate its decision on the alleged citizenship by
naturalization of private respondent's father (Ong
Chuan) and on the alleged election of Philippine
citizenship by private respondent.
Emil L. Ong, was elected delegate to the 1971
Constitutional Convention. Electoral protests, numbers
EP-07 and EP-08, were filed by Leonardo D. Galing and
Gualberto D. Luto against Emil L. Ong, contesting his
citizenship qualification. The Committee on Election
Protests Credentials of the 1971 Contitution Convention
heard the protests and submitted to the Convention a
report dated 4 September 1972, the dispositive portion
of which stated:
It appearing that protestee's grandfather was
himself a Filipino citizen under the provisions of
the Philippine Bill of 1902 and the Treaty of
Paris of December 10, 1898, thus conferring
upon protestee's own father, Ong Chuan,
Philippine citizenship at birth, the conclusion is
inescapable that protestee himself is a natural-
born citizen, and is therefore qualified to hold the
office of delegate to the Constitutional
34
Convention.
On 28 November 1972, during a plenary session of the
1971 Constitutional Convention, the election protests
filed against Emil L. Ong were dismissed, following the
report of the Committee on Election Protests and
35
Credentials.
It is evident, up to this point, that the action of the 1971
Constitutional Convention in the case of Emil L. Ong is,
to say the least, inconclusive to the case at bar, because
—
a) the 1971 Constitutional Convention decision
in the Emil L. Ong case involved the
1935 Constitution; the present case, on the
other hand involves the 1987 Constitution:
b) the 1935 Constitution contained no specific
definition of a "natural-born citizen" of the
Philippines; the 1987 Constitution contains a
precise and specific definition of a "natural-born
citizen" of the Philippines in Sec. 2, Art. IV
thereof and private respondent does not qualify
under such definition in the 1987 Constitution;
c) the decision of the 1971 Constitutional
Convention in the case of Emil L. Ong was a
decision of a political body, not a court of law.
And, even if we have to take such a decision as
a decision of a quasi-judicial body (i.e., a
political body exercising quasi-judicial functions),
said decision in the Emil L. Ong case can not
have the category or character of res judicata in
the present judicial controversy, because
between the two (2) cases, there is no identity of
 parties (one involves Emil L. Ong, while the
other involves private respondent) and, more
importantly, there is no identity of causes of
action because the first involves the 1935
Constitution while the second involves the 1987
Constitution.
But even laying aside the foregoing reasons based on
procedural rules and logic, the evidence submitted
before the electoral tribunal and, therefore, also before
this Court, does not support the allegations made by
Emil L. Ong before the 1971 Constitutional Convention
and inferentially adopted by private respondent in the
present controversy. This leads us to an interesting
inquiry and finding.
The 1971 Constitutional Convention in holding that Emil
L. Ong was a "natural-born citizen" of the Philippines
under the 1935 Constitution laid stress on the "fact" —
and this appears crucial and central to its decision —
that Emil L. Ong's grandfather, Ong Te became a
Filipino citizen under the Philippine Bill of 1902 and,
therefore, his descendants like Emil L. Ong (and
therefore, also private respondent) became natural-born
Filipinos. The 1971 Constitutional Convention said:
Ong Te Emil Ong's grandfather, was a Spanish
subject residing in the Philippines on April 11,
1899 and was therefore one of the many who
became ipso facto citizens of the Philippines
under the provisions of the Philippine Bill of
1902. Said law expressly declared that all
inhabitants of the Philippine Islands who
continued to reside therein and who were
Spanish subjects on April 11, 1899 as well as
their children born subsequent thereto, "shall be
deemed and held to be citizens of the Philippine
36
Islands." (Section 4, Philippine Bill of 1902).
The "test" then, following the premises of the 1971
Constitutional Convention, is whether or not Ong Te
private respondent's and Emil L. Ong's grandfather was
"an inhabitant of the Philippines who continued to reside
therein and was a Spanish subject on April 11, 1899." If
he met these requirements of the Philippine Bill of 1902,
then, Ong Te was a Filipino citizen; otherwise, he was
not a Filipino citizen.
Petitioners (protestants) submitted and offered in
evidence before the House Electoral Tribunal exhibits W,
X, Y, Z ,AA, BB, CC, DD and EE which are copies of
entries in the "Registro de Chinos" from years 1896 to
1897 which show that Ong Te was not listed as an
inhabitant of Samar where he is claimed to have been a
resident. Petitioners (protestants) also submitted and
offered in evidence before the House Electoral Tribunal
exhibit V, a certification of the Chief of the Archives
Division, Records and Management and Archives Office,
stating that the name of Ong Te does not appear in the
"Registro Central de Chinos" for the province of Samar
for 1895. These exhibits prove or at least, as petitioners
validly argue, tend to prove that Ong Te was NOT a
resident of Samar close to 11 April 1899 and, therefore,
could not continue residing in Samar, Philippines after
11 April 1899, contrary to private respondent's pretense.
In the face of these proofs or evidence, private
respondent FAILED TO PRESENT ANY REBUTTAL OR
COUNTERVAILING EVIDENCE, except the decision of
the 1971 Constitutional Convention in the case of Emil L.
Ong, previously discussed.
It is not surprising then that, as previously noted, the
majority decision of the House Electoral Tribunal skirted
any reliance on the alleged ipso facto Filipino citizenship
of Ong Te under the Philippine Bill of 1902. It is equally
not surprising that Ong Chuan, the son of Ong Te and
father or private respondent, did not even attempt to
claim Filipino citizenship by reason of Ong Te's alleged
Filipino citizenship under the Philippine Bill of 1902 but
instead applied for Philippine citizenship through
naturalization.
Nor can it be contended by the private respondent that
the House Electoral Tribunal should no longer have
reviewed the factual question or issue of Ong Te's
citizenship in the light of the resolution of the 1971
Constitutional Convention finding him (Ong Te to have
become a Filipino citizen under the Philippine Bill of
1902. The tribunal had to look into the question because
the finding that Ong Te had become a Filipino citizen
under the Philippine Bill of 1902 was the central core of
said 1971 resolution but as held in Lee vs.
37
Commissioners of Immigration:
. . . Everytime the citizenship of a person is
material or indispensable in a judicial or
administrative case, whatever the corresponding
Court or administrative authority decides therein
as to such citizenship is generally not
considered as res adjudicata, hence it has to be
threshed out again and again as the occasion
may demand.
Which finally brings us to the resolution of this Court
in Emil L. Ong vs. COMELEC, et al., G.R. No. 67201, 8
May 1984.1âwphi1 In connection with said resolution, it
is contended by private respondent that the resolution of
the 1971 Constitutional Convention in the Emil L. Ong
case was elevated to this Court on a question involving
Emil L. Ong's disqualification to run for membership in
the Batasang Pambansa and that, according to private
respondent, this Court allowed the use of the Committee
Report to the 1971 Constitutional Convention.
To fully appreciate the implications of such contention, it
would help to look into the circumstances of the case
brought before this Court in relation to the Court's action
or disposition. Emil L. Ong and Edilberto Del Valle were
both candidates for the Batasang Pambansa in the 14
May 1984 election. Valle filed a petition for
disqualification with the Commission on Election on 29
March 1984 docketed as SPC No. 84-69 contending that
Ong is not a natural-born citizen. Ong filed a motion to
dismiss the petition on the ground that the judgment of
the 1971 Constitutional Convention on his status as a
natural-born citizen of the Philippines bars the petitioner
from raising the Identical issue before the COMELEC.
(G.R. No. 67201, Rollo, p. 94) The motion was denied by
the COMELEC, thus, prompting Emil L. Ong to file with
this Court a petition for certiorari, prohibition
and mandamus with preliminary injunction against the
COMELEC, docketed as G.R. No. 67201.
In a resolution dated 8 May 1984, this Court resolved to
issue a writ of preliminary injunction enjoining
respondent COMELEC from holding any further hearing
on the disqualification case entitled "Edilberto Del Valle
vs. Emil Ong (SPC No. 84-69) except to dismiss the
same. (G.R. Nos. 92202-03, Rollo, p. 335)
This Court, in explaining its action, held that:
Acting on the prayer of the petitioner for the
issuance of a Writ of Preliminary Injunction, and
considering that at the hearing this morning, it
was brought out that the 1971 Constitutional
Convention, at its session of November 28,
1972, after considering the Report of its
Committee on Election Protests and Credentials,
found that the protest questioning the citizenship
of the protestee (the petitioner herein) was
groundless and dismissed Election Protests
Nos. EP 07 and EP 08 filed against said
petitioner (p. 237, Rollo), the authenticity of the
Minutes of said session as well as of the said
Committee's Report having been duly admitted
in evidence without objection and bears out, for
now, without need for a full hearing, that
petitioner is a natural-born citizen, the Court
Resolved to ISSUE, effective immediately, a
Writ of Preliminary Injunction enjoining
respondent COMELEC from holding any further
hearing on the disqualification case
entitled Edilberto Del Valle vs. Emil Ong (SPC
No. 84-69) scheduled at 3:00 o'clock this
afternoon, or any other day, except to dismiss
the same. This is without prejudice to any
appropriate action that private respondent may
wish to take after the elections. (emphasis
supplied)
It is thus clear that the resolution of this Court in G.R.
No. 67201 was rendered without the benefit of a hearing
on the merits either by the Court or by the COMELEC
and merely on the basis of a Committee's Report to the
1971 Constitutional Convention, and that this Court (and
this is quite significant) did not foreclose any appropriate
action that Del Valle (therein petitioner) may wish to take
after the elections.
It is thus abundantly clear also that to this Court, the
resolution of the 1971 Constitutional Convention
recognizing Emil L. Ong as a natural-born citizen under
the 1935 Constitution did not foreclose a future or further
proceeding in regard to the same question and that,
consequently, there is no vested right of Emil L. Ong to
such recognition. How much more when the Constitution
involved is not the 1935 Constitution but the 1987
Constitution whose provisions were never considered in
all such proceedings because the 1987 Constitution was
still inexistent.
A final word. It is regrettable that one (as private
respondent) who unquestionably obtained the highest
number of votes for the elective position of
Representative (Congressman) to the House of
Representatives for the second district of Northern
Samar, would have had to cease in office by virtue of
this Court's decision, if the full membership of the Court
had participated in this case, with the result that the
legislative district would cease to have, in the interim, a
representative in the House of Representatives. But the
fundamental consideration in cases of this nature is the
Constitution and only the Constitution. It has to be
assumed, therefore, that when the electorate in the
second legislative district of Northern Samar cast the
majority of their votes for private respondent, they
assumed and believed that he was fully eligible and
qualified for the office because he is a natural-born
Filipino citizen. That erroneous assumption and belief
can not prevail over, but must yield to the majesty of the
Constitution.
This is a sad day for the Constitution. As I see it, the
Constitution mandates that members of the House of
Representatives should be "natural-born citizens of the
Philippines". The voting majority of the present Court
says, "Filipino citizens will do." This is bad enough. What
is worse is, the same voting majority, in effect, says,
"even aliens will do as well."
WHEREFORE, my vote is clear: to declare private
respondent Jose L. Ong Chua, Jr., as he clearly is, NOT
a natural-born citizen of the Philippines and therefore
NOT QUALIFIED to be a Member of the House of
Representatives, Congress of the Philippines.
Narvasa, J., Paras, J. and Regalado, J., dissenting.
SARMIENTO, J., concurring:
I concur with the majority.
(1)
I wish to point out first that the question of citizenship is
a question of fact, and as a rule, the Supreme Court
leaves facts to the tribunal that determined them. I am
quite agreed that the Electoral Tribunal of the House of
Representatives, as the "sole judge" of all contests
relating to the membership in the House, as follows:
 Sec. 17. The Senate and the House of
Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members
of the Senate or the House of Representatives,
as the case may be, who shall be chosen on the
basis of proportional representation from the
political parties and the parties or organizations
registered under the party-list system
represented therein. The senior Justice in the
1
Electoral Tribunal shall be its Chairman.
is the best judge of facts and this Court can not
substitute its judgment because it thinks it knows better.
2
In the case of Aratuc v. Commission on Elections, it
was held that this Court can not review the errors of the
Commission on Elections (then the "sole judge" of all
election contests) — in the sense of reviewing facts and
unearthing mistakes — and that this Court's jurisdiction
is to see simply whether or not it is guilty of a grave
abuse of discretion. It is true that the new Constitution
3
has conferred expanded powers on the Court, but as
the Charter states, our authority is "to determine whether
or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
4
any branch or instrumentality of the Government." It is
not to review facts.
"Grave abuse of discretion" has been defined as
whimsical exercise of power amounting to excess of
jurisdiction, or otherwise, to denial of due process of
5
law.
I find none of that here.
As the majority indicates, Jose Ong's citizenship is a
matter of opinion with which men may differ, but
certainly, it is quite another thing to say that the
respondent Tribunal has gravely abused its discretion
because the majority has begged to differ. It does not
form part of the duty of the Court to remedy all imagined
wrongs committed by the Government.
The respondent Tribunal has spoken. According to the
Tribunal, Jose Ong is a Filipino citizen and
consequently, is possessed of the qualifications to be a
member of the House. As the sole judge, precisely, of
this question, the Court can not be more popish than the
pope.
(2)
I can not say, in the second place, that the Decision in
question stands exactly on indefensible grounds. It is to
be noted that Jose Ong had relied on the Report dated
September 4, 1972 of the 1971 Constitutional
6
Convention Committee on Election Protests and
Credentials, in which the Committees upheld the
citizenship, and sustained the qualification to sit as
Delegate, of Emil Ong, Jose Ong's full blood brother.
According to the Report, Ong Te the Ongs' grandfather,
was already a Filipino citizen having complied with the
requirements on Filipinization by existing laws for which
his successors need not have elected Filipino
citizenship. I quote:
xxx xxx xxx
There is merit in protestee's claim. There can
hardly be any doubt that Ong Te protestees's
grandfather, was a Spanish subject residing in
the Philippines on April 11, 1899, and was
therefore one of the many who became ipso
facto citizens of the Philippines under the
provisions of the Philippine Bill of 1902. Said law
expressly declared that all inhabitants of the
Philippine Islands who continued to reside
therein and who were Spanish subjects on April
11, 1899, as well as their children born
subsequent thereto, "shall be deemed and held
to be citizens of the Philippine Islands" (Sec. 4,
Philippine Bill of 1902). Excepted from the
operation of this rule were Spanish subjects who
shall have elected to preserve their allegiance to
the Crown of Spain in accordance with the
Treaty of Paris of December 10, 1898. But under
the Treaty of Paris, only Spanish subjects who
were natives of Peninsular Spain had the
7
privilege of preserving their Spanish nationality.
xxx xxx xxx
xxx xxx xxx
As earlier noted, protestee's grandfather
established residence in the Philippines in 1895,
as shown by the Registro Central de Chinos. He
was also issued a certificate of registration. He
established a business here, and later acquired
real property. Although he went back to China
for brief visits, he invariably came back. He even
brought his eldest son, Ong Chuan, to live in the
Philippines when the latter was only 10 years
old. And Ong Chuan was admitted into the
country because, as duly noted on his landing
certificate, his father, Ong Te had been duly
enrolled under CR 16009-36755 — i.e., as a
permanent resident. Indeed, even when Ong Te
went back to China in the 1920's for another
visit, he left his son, Ong Chuan, who was then
still a minor, in the Philippines — obviously
because he had long considered the Philippines
his home. The domicile he established in 1895 is
presumed to have continued up to, and beyond,
April 11, 1899, for, as already adverted to, a
 domicile once acquired is not lost until a new however, that what is sauce for the goose is sauce for
one is gained. The only conclusion then can the gander.
thus be drawn is that Ong Te was duly domiciled
in the Philippines as of April 11, 1899, within the I also submit that the fundamental question is whether or
meaning of par. 4, Art. 17, of the Civil Code of not we will overturn the unanimous ruling of 267
1889 — and was, consequently, a Spanish delegates, indeed, also of this Court.
subject, he qualified as a Filipino citizen under
the provisions of Section 4 of the Philippine Bill
8
of 1902.

It is true that Ong Chuan, the Ong brothers' father,

subsequently sought naturalization in the belief that he
was, all along, a Chinese citizen, but as the Report held:

Protestants, however, make capital of the fact

that both Ong Te and his son, Ong Chuan
(protestee's father), appear to have been EN BANC
registered as Chinese citizens even long after
the turn of the century. Worse, Ong Chuan
G.R. No. 142840 May 7, 2001
himself believed the was alien, to the extent of
having to seek admission as a Pilipino citizen
through naturalization proceedings. The point, to ANTONIO BENGSON III, petitioner,
our mind, is neither crucial nor substantial. Ong's vs.
status as a citizen is a matter of law, rather than HOUSE OF REPRESENTATIVES ELECTORAL
of personal belief. It is what the law provides, TRIBUNAL and TEODORO C. CRUZ, respondents.
and not what one thinks his status to be, which
determines whether one is a citizen of a CONCURRING OPINION
particular state or not. Mere mistake or
misapprehension as to one's citizenship, it has DISSENTING OPINION
been held, is not a sufficient cause or reason for
forfeiture of Philippine citizenship; it does not KAPUNAN, J.:
even constitute estoppel (Palanca vs. Republic,
80 Phil. 578, 584). Too, estoppel applies only to
The citizenship of respondent Teodoro C. Cruz is at
questions of fact and not of law (Tanada v.
9 issue in this case, in view of the constitutional
Cuenco, L-10520, Feb. 28, 1957).
requirement that "no person shall be a Member of the
House of Representative unless he is a natural-born
It is to be noted that the Report was unanimously citizen."
1
approved by the Committee, and on November 28,
1972, approved without any objection by the Convention
10 Respondent Cruz was a natural-born citizen of the
in plenary session.
Philippines. He was born in San Clemente, Tarlac, on
April 27, 1960, of Filipino parents. The fundamental law
I am not, of course, to be mistaken as acting as then applicable was the 1935 Constitution.
2
mouthpiece of Emil Ong, but in all candor, I speak from
experience, because when the Convention approved the
On November 5, 1985, however, respondent Cruz
Report in question, I was one of its vice-presidents and
the presiding officer. enlisted in the United States Marine Corps and without
the consent of the Republic of the Philippines, took an
oath of allegiance to the United States. As a
It is to be noted finally, that the matter was elevated to Consequence, he lost his Filipino citizenship for under
this Court (on a question involving Emil Ong's Commonwealth Act No. 63, section 1(4), a Filipino
qualification to sit as member of the defunct Batasang citizen may lose his citizenship by, among other,
11
Pambansa) in which this Court allowed the use of the "rendering service to or accepting commission in the
Committee Report. armed forces of a foreign country." Said provision of law
reads:
Faced with such positive acts of the Government, I
submit that the question of the Ong's citizenship is a SECTION 1. How citizenship may be lost. – A
settled matter. Let it rest. Filipino citizen may lose his citizenship in any of
the following ways and/or events:
It is true that Electoral Protest Nos. EP-07 and EP-08 of
the Convention as well as G.R. No. 67201 of this Court, xxx
involved Emil Ong and not his brother; I submit,
 (4) By rendering services to, or accepting
commission in, the armed of a foreign
country: Provided, That the rendering of service
to, or the acceptance of such commission in, the
armed forces of a foreign country, and the taking
of an oath of allegiance incident thereto, with the
consent of the Republic of the Philippines, shall
not divest a Filipino of his Philippine citizenship if
either of the following circumstances is present:
(a) The Republic of the Philippines has a
defensive and/or offensive pact of alliance with
said foreign country; or
(b) The said foreign country maintains armed
forces on Philippine territory with the consent of
the Republic of the Philippines: Provided, That
the Filipino citizen concerned, at the time of
rendering said service, or acceptance of said
commission, and taking the oath of allegiance
incident thereto, states that he does so only in
connection with his service to said foreign
country; And provided, finally, That any Filipino
citizen who is rendering service to, or is
commissioned in, the armed forces of a foreign
country under any of the circumstances
mentioned in paragraph (a) or (b), shall not be
Republic of the Philippines during the period of
his service to, or commission in, the armed
forces of said country. Upon his discharge from
the service of the said foreign country, he shall
be automatically entitled to the full enjoyment of
his civil and politically entitled to the full
enjoyment of his civil political rights as a Filipino
citizen x x x.
Whatever doubt that remained regarding his loss of
Philippine citizenship was erased by his naturalization as
a U.S. citizen on June 5, 1990, in connection with his
service in the U.S. Marine Corps.
On March 17, 1994, respondent Cruz reacquired his
Philippine citizenship through repatriation under
3
Republic Act No. 2630. He ran for and was elected as
the Representative of the Second District of Pangasinan
in the May 11, 1998 elections. He won by a convincing
margin of 26,671 votes over petitioner Antonio Bengson
III, who was then running for reelection.1âwphi1.nêt
Subsequently, petitioner filed a case for Quo Warranto
Ad Cautelam with respondent House of Representatives
Electoral Tribunal (HRET) claiming that respondent Cruz
was not qualified to become a member of the House of
Representatives since he is not a natural-born citizen as
4
required under Article VI, section 6 of the Constitution.
On March 2, 2000, the HRET rendered its
5
decision dismissing the petition for quo warranto and
declaring Cruz the duly elected Representative of the
Second District of Pangasinan in the May 1998
elections. The HRET likewise denied petitioner's motion
for reconsideration of the decision in its resolution dated
6
April 27, 2000.
Petitioner thus filed the present petition for certiorari
assailing the HRET's decision on the following grounds:
1. The HRET committed serious errors and
grave abuse of discretion, amounting to excess
of jurisdiction, when it ruled that private
respondent is a natural-born citizen of the
Philippines despite the fact that he had ceased
being such in view of the loss and renunciation
of such citizenship on his part.
2. The HRET committed serious errors and
grave abuse of discretion, amounting to excess
of jurisdiction, when it considered private
respondent as a citizen of the
Philippines despite the fact he did not validly
acquire his Philippine citizenship.
3. Assuming that private respondent's
acquisition of Philippine citizenship was invalid,
the HRET committed serious errors and grave
abuse of discretion, amounting to excess of
jurisdiction, when it dismissed the
petition despite the fact that such reacquisition
could not legally and constitutionally restore his
natural-born status.
7
The issue now before us is whether respondent Cruz, a
natural-born Filipino who became an American citizen,
can still be considered a natural-born Filipino upon his
reacquisition of Philippine citizenship.
Petitioner asserts that respondent Cruz may no longer
be considered a natural-born Filipino since he lost h is
Philippine citizenship when he swore allegiance to the
United States in 1995, and had to reacquire the same by
repatriation. He insists that Article citizens are those who
are from birth with out having to perform any act to
acquire or perfect such citizenship.
Respondent on the other hand contends that he
reacquired his status as natural-born citizen when he
was repatriated since the phrase "from birth" in Article
IV, Section 2 refers to the innate, inherent and inborn
characteristic of being a natural-born citizen.
The petition is without merit.
The 1987 Constitution enumerates who are Filipino
citizens as follow:
(1) Those who are citizens of the Philippines at
the time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens
of the Philippines;
 (3) Those born before January 17, 1973 of
Filipino mother, who elect Philippine citizenship
upon reaching the age of majority, and
(4) Those who are naturalized in accordance
8
with law.
There are two ways of acquiring citizenship: (1) by birth,
and (2) by naturalization. These ways of acquiring
citizenship correspond to the two kinds of citizens: the
natural-born citizen, and the naturalized citizen. A
person who at the time of his birth is a citizen of a
9
particular country, is a natural-born citizen thereof.
As defined in the same Constitution, natural-born
citizens "are those citizens of the Philippines from birth
without having to perform any act to acquire or perfect
10
his Philippine citezenship."
On the other hand, naturalized citizens are those who
have become Filipino citizens through naturalization,
generally under Commonwealth Act No. 473, otherwise
known as the Revised Naturalization Law, which
repealed the former Naturalization Law (Act No. 2927),
11
and by Republic Act No. 530. To be naturalized, an
applicant has to prove that he possesses all the
12
qualifications and none of the
13
disqualification provided by law to become a Filipino
citizen. The decision granting Philippine citizenship
becomes executory only after two (2) years from its
promulgation when the court is satisfied that during the
intervening period, the applicant has (1) not left the
Philippines; (2) has dedicated himself to a lawful calling
or profession; (3) has not been convicted of any offense
or violation of Government promulgated rules; or (4)
committed any act prejudicial to the interest of the nation
14
or contrary to any Government announced policies.
Filipino citizens who have lost their citizenship may
however reacquire the same in the manner provided by
law. Commonwealth Act. No. (C.A. No. 63), enumerates
the three modes by which Philippine citizenship may be
reacquired by a former citizen: (1) by naturalization, (2)
15
by repatriation, and (3) by direct act of Congress.
Naturalization is mode for both acquisition and
reacquisition of Philippine citizenship. As a mode of
initially acquiring Philippine citizenship, naturalization is
governed by Commonwealth Act No. 473, as amended.
On the other hand, naturalization as a mode for
reacquiring Philippine citizenship is governed by
16
Commonwealth Act No. 63. Under this law, a former
Filipino citizen who wishes to reacquire Philippine
17
citizenship must possess certain qualifications and
none of the disqualification mentioned in Section 4 of
18
C.A. 473.
Repatriation, on the other hand, may be had under
various statutes by those who lost their citizenship due
19
to: (1) desertion of the armed forces; services in the
20
armed forces of the allied forces in World War II; (3)
service in the Armed Forces of the United States at any
21
other time, (4) marriage of a Filipino woman to an
22 23
alien; and (5) political economic necessity.
As distinguished from the lengthy process of
naturalization, repatriation simply consists of the taking
of an oath of allegiance to the Republic of the Philippine
and registering said oath in the Local Civil Registry of
the place where the person concerned resides or last
resided.
24
In Angat v. Republic, we held:
xxx. Parenthetically, under these statutes
[referring to RA Nos. 965 and 2630], the person
desiring to reacquire Philippine citizenship
would not even be required to file a petition in
court, and all that he had to do was to take an
oath of allegiance to the Republic of the
Philippines and to register that fact with the civil
registry in the place of his residence or where he
had last resided in the Philippines. [Italics in the
25
original.
Moreover, repatriation results in the recovery of the
26
original nationality. This means that a naturalized
Filipino who lost his citizenship will be restored to his
prior status as a naturalized Filipino citizen. On the other
hand, if he was originally a natural-born citizen before he
lost his Philippine citizenship, he will be restored to his
former status as a natural-born Filipino.
In respondent Cruz's case, he lost his Filipino citizenship
when he rendered service in the Armed Forces of the
United States. However, he subsequently reacquired
Philippine citizenship under R.A. No. 2630, which
provides:
Section 1. Any person who had lost his
Philippine citizenship by rendering service to, or
accepting commission in, the Armed Forces of
the United States, or after separation from the
Armed Forces of the United States, acquired
United States citizenship, may reacquire
Philippine citizenship by taking an oath of
allegiance to the Republic of the Philippines and
registering the same with Local Civil Registry in
the place where he resides or last resided in the
Philippines. The said oath of allegiance shall
contain a renunciation of any other citizenship.
Having thus taken the required oath of allegiance to the
Republic and having registered the same in the Civil
Registry of Magantarem, Pangasinan in accordance with
the aforecited provision, respondent Cruz is deemed to
have recovered his original status as a natural-born
citizen, a status which he acquired at birth as the son of
27
a Filipino father. It bears stressing that the act of
repatriation allows him to recover, or return to, his
original status before he lost his Philippine
citizenship.
Petitioner's contention that respondent Cruz is no longer
a natural-born citizen since he had to perform an act to
regain his citizenship is untenable. As correctly
explained by the HRET in its decision, the term "natural-
born citizen" was first defined in Article III, Section 4 of
the 1973 Constitution as follows:
Sec. 4. A natural-born citizen is one who is a
citizen of the Philippines from birth without
having to perform any act to acquire or perfect
his Philippine citizenship.
Two requisites must concur for a person to be
considered as such: (1) a person must be a Filipino
citizen birth and (2) he does not have to perform any act
to obtain or perfect his Philippine citizenship.
Under the 1973 Constitution definition, there were two
categories of Filipino citizens which were not considered
natural-born: (1) those who were naturalized and (2)
38
those born before January 17, 1973, of Filipino
mothers who, upon reaching the age of majority, elected
Philippine citizenship. Those "naturalized citizens" were
not considered natural-born obviously because they
were not Filipino at birth and had to perform an act to
acquire Philippine citizenship. Those born of Filipino
mothers before the effectively of the 1973 Constitution
were likewise not considered natural-born because they
also had to perform an act to perfect their Philippines
citizenship.
The present Constitution, however, now consider those
born of Filipino mothers before the effectivity of the 1973
Constitution and who elected Philippine citizenship upon
reaching the majority age as natural-born. After defining
who re natural-born citizens, Section 2 of Article IV adds
a sentence: "Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof shall be
deemed natural-born citizens." Consequently, only
naturalized Filipinos are considered not natural-born
citizens. It is apparent from the enumeration of who are
citizens under the present Constitution that there are
only two classes of citizens: (1) those who are natural-
born and (2) those who are naturalized in accordance
with law. A citizen who is not a naturalized Filipino, i.e.,
did not have to undergo the process of naturalization to
obtain Philippine citizenship, necessarily is natural-born
Filipino. Noteworthy is the absence in said enumeration
of a separate category for persons who, after losing
Philippine citizenship, subsequently reacquire it. The
reason therefor is clear: as to such persons, they would
either be natural-born or naturalized depending on the
reasons for the loss of their citizenship and the mode
prescribed by the applicable law for the reacquisition
thereof. As respondent Cruz was not required by law to
go through naturalization proceeding in order to
reacquire his citizenship, he is perforce a natural-born
Filipino. As such, he possessed all the necessary
qualifications to be elected as member of the House of
Representatives.
A final point. The HRET has been empowered by the
Constitution to be the "sole judge" of all contests relating
to the election, returns, and qualifications of the
29
members of the House. The Court's jurisdiction over
the HRET is merely to check "whether or not there has
been a grave abuse of discretion amounting to lack or
30
excess of jurisdiction" on the part of the latter. In the
absence thereof, there is no occasion for the Court to
exercise its corrective power and annul the decision of
the HRET nor to substitute the Court's judgement for
that of the latter for the simple reason that it is not the
office of a petition for certiorari to inquire into the
31
correctness of the assailed decision. There is no such
showing of grave abuse of discretion in this case.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, and JJ., concur.
Melo, Vitug, Mendoza, no part.
Panganiban, concurring opinion.
Quisumbing, Buena, De Leon, Jr., on leave.
Sandoval-Gutierrez, dissenting opinion.
Pardo, Gonzaga-Reyes, concur on this and the
concurring opinion of J. Panganiban
Ynares-Santiago, certify majority opinion of J. Kapunan.
Footnote
1
1987 Constitution, Article IV, Section 6.
2
Article IV, Section 1 of the 1935 Constitution
states:
The following are citizens of the Philippines:
1) Those who are citizens of the
Philippine Islands at the time of the
adoption of the Constitution;
2) Those born in the Philippine Islands
of foreign parents who, before the
adoption of this Constitution had been
elected to public office in the Philippine
Islands;
3) Those whose fathers are citizens of
the Philippines;
 4) Those whose mothers are citizens of
the Philippines and, upon reaching the
age of majority, elected Philippine
citizenship; and
5) Those who are naturalized in
accordance with law.
3 irreproachable manner during the entire
An Act Providing for Reacquisition of Philippine
Citizenship by Persons Who Lost Such
Citizenship by Rendering Service To, or
Accepting Commission In, the Armed Forces of
the United States (1960).
4 (d) He must own real estate in the
Said provision reads:
No person shall be a member of the
House of Representatives unless he is a
natural-born citizen of the Philippines
and, on the day of the election, is at
least twenty-five years of age, able to
read and write, and except the party-list
representatives, a registered voter in the
district in which he shall be elected, and
a resident thereof for a period of not less
than one year immediately preceding
the day of the election.
5 Schools of the Philippines where
Rollo, p. 36.
6
Id., at 69.
7 period of the residence in the
Id., at 13.
8
Article IV, Section 1.
9 13
TOLENTINO, COMMETARIES AND
JURISPRUDENCE ON THE CIVIL CODE OF
THE PHILIPPINES 188, 1990 Ed.
10
1987 Constitution, Article IV, Section 2.
11
During the period under Martial Law declared
by President Ferdinand E. Marcos, thousands of
aliens were naturalized by Presidential Decree
where the screening of the applicants was
undertaken by special committee under Letter of
Instructions No. 270, dated April 11,1975, as
amended.
12
Section 2, Act 473 provides the following
qualifications:
(a) He must be not less than 21 years of
age on the day of the hearing of the
petition;
(b) He must have resided in the
Philippines for a continuous period of
not less than ten years;
(c) He must be of good moral character
and believes in the principles underlying
the Philippine Constitution, and must
have conducted himself in a proper and
period of his residence in the Philippines
in his relation with the constituted
government and well as with the
community in which he is living;
Philippines worth not less than five
thousand pesos, Philippine currency, or
must have some known lucrative trade,
profession, or lawful occupation;
(e) He must be able to speak and write
English or Spanish and any of the
principal languages; and
(f) He must have enrolled his minor
children of school age, in any of the
public schools or private schools
recognized by the Bureau of Private
Philippine history, government and civic
are taught or prescribed as part of the
school curriculum, during the entire
Philippines required of him prior to the
learning of his petition for naturalization
as Philippine citizen.
Section 4, Act 473, provides the following
disqualifications:
(a) He must not be opposed to
organized government or affiliated with
any association or group of persons who
uphold and teach doctrines opposing all
organized governments;
(b) He must not be defending or
teaching the necessity or propriety of
violence, personal assault, or
assassination for the success and
predominance of their ideas;
(c) He must not be polygamist or
believer in the practice of polygamy;
(d) He must not have been convicted of
any crime involving moral turpitude;

(e) He must not be suffering from mental
alienation or incurable contagious
diseases;
(f) He must have, during the period of
his residence in the Philippines (of not
less than six months before filing his
application), mingled socially with the
Filipinos, or who have not evinced a
sincere desire to learn and embrace the
customs, traditions and ideal s of the
Filipinos;
(g) He must not be a citizen or subject of
a nation with whom the Philippines is at
war, during the period of such war;
(h) He must not be citizen or subject of
foreign country whose laws do not grant
Filipinos the right to become naturalized
citizens or subjects thereof.
14
Section 1, R.A. 530.
15
Section 2, C.A. No. 63.
16
An Act Providing for the Ways in Which
Philippine Citizenship May Be Lost or
Reacquired (1936).
17
1. The applicant must have lost his original
Philippine citizenship by naturalization in a
foreign country or by express renunciation of his
citizenship (Sec. 1 [1] and [2], C.A. No. 63);
2. He must be at least twenty-one years of age
and shall have resided in the Philippines at least
six months before he applies for naturalization
(Sec. 3[1], C.A. No. 63);
3. He must have conducted himself in a proper
and irreproachable manner during the entire
period of his residence (of at least six months
prior to the filing of the application) in the
Philippines, in his relations with the constituted
government as well as with the community in
which he is living (Sec. 3[2], C.A. No. 63);
4. He subscribes to an oath declaring his
intention to renounce absolutely and perpetually
al faith and allegiance to the foreign authority,
state or sovereignty of which he was a citizen or
subject (Sec. 3[3], C.A. No. 63).
18
See note 13.
19
Sec 4, C.a. No. 63.
20
Sec. 1, Republic Act No. 965 (1953).
21
Sec. 1, Republic Act No. 2630 (1960).
22
Sec. 1, Republic Act No. 8171 (1995).
23
Ibid.
24
314 SCRA 438 (1999)
25
Id., at 450.
26
Jovito R. Salonga, Private International Law,
p. 165 (1995)
27
See Art. IV, Sec. 1, 1935 Constitution.
28
The date of effectivity of the 1973
Constitution.
29
Article IV, Section 17 of the 1987 Constitution
provides thus:
Sec. 17. The Senate and the House of
Representative shall each have an
Electoral Tribunal which shall be the
sole judge of all contests relating to the
election, returns, and qualifications of
their respective Members. Each
Electoral Tribunal shall be composed of
nine Members three of whom shall be
Justices of the Supreme Court to be
designated by the Chief Justice, and the
remaining six shall be Members of the
Senate of the House of
Representatives, as the case may be,
who shall be chosen on the basis of
proportional representation from the
political parties and the parties or
organizations registered under the
party-list system represented therein.
The senior Justice in the Electoral
Tribunal shall be its Chairman.
30
Garcia vs. House of Representatives Electoral
Tribunal, 312 SCRA 353, 364 (1999).
EN BANC
G.R. No. 142840 May 7, 2001
ANTONIO BENGSON III, petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL and TEODORO C. CRUZ, respondents.
CONCURRING OPINION
PANGANIBAN, J.:
I concur in the ponencia of Mr. Justice Santiago M.
Kapunan, holding that the House Electoral Tribunal did
not gravely abuse its discretion in ruling that Private
Respondent Teodoro C. Cruz remains a natural-
born Filipino citizen and is eligible to continue being a
member of Congress. Let me just add a few points.
The Facts in Brief
It is undisputed that Congressman Cruz was born on
April 27, 1960 in San Clemente, Tarlac, to Filipino
parents. He was, therefore, a Filipino citizen, pursuant to
1 "reacquired" the same status upon repatriation. To rule
Section 1 (2), Article IV of the
Constitution. Furthermore, not having done any act to
acquire or perfect the Philippine citizenship he
obtained from birth, he was a natural-born Filipino
2
citizen, in accordance with Section 2 of the same
Article IV.
It is not disputed either that private respondent rendered
military service to the United States Marine Corps from
November 1958 to October 1993. On June 5, 1990, he
was naturalized as an American citizen, in connection
with his US military service. Consequently, under
3 citizen.
Section 1 (4) of CA No. 63, he lost his Philippine
citizenship.
Upon his discharge from the US Marine Corps, private
respondent returned to the Philippines and decided to
regain his Filipino citizenship. Thus, on March 17, 1994,
availing himself of the benefits of Republic Act (RA) No.
2630, entitled "An Act Providing for Reacquisition of
Philippine Citizenship by Persons Who Lost Such by
Rendering Service to, or Accepting Commission in, the
4
Armed Force of the United States," Cruz took his oath
of allegiance to the Republic and registered the same
with the Local Civil Registry of Mangatarem,
Pangasinan. On the same day, he also executed an
Affidavit of Reacquisition of Philippine Citizenship.
Main Issue
The main question here is: Did the House of
Representatives Electoral Tribunal (HRET) commit
grave abuse of discretion in holding that, by reason of
his repatriation, Congressman Teodoro C. Cruz had
reverted to his original status as a natural-born citizen? I
respectfully submit that the answer is "No." In fact, I
believe that the HRET was correct in its ruling.
1. Repatriation Is Recovery of Original Citizenship
First, repatriation is simply the recovery
of original citizenship. Under Section 1 of RA 2630, a
person "who ha[s] lost his citizenship" may "reacquire" it
by " taking an oath of allegiance to the Republic of the
Philippines." Former Senate President Jovito R.
Salonga, a noted authority on the subject, explains this
method more precisely in his treatise, Private
5
International Law. He defines repatriation as "the
recovery of the original nationality upon fulfillment of
6
certain condition." Webster buttresses this definition by
describing the ordinary or common usage of repatriate,
as "to restore or return to one's country of origin,
7
allegiance, or citizenship; x x x." In relation to our
subject matter, repatriation, then, means restoration of
citizenship. It is not a grant of a new citizenship, but a
recovery of one's former or original citizenship.
To "reacquire" simply means "to get back as one's own
8
again." Ergo, since Cruz, prior to his becoming a US
citizen, was a natural-born Filipino citizen, he
otherwise – that Cruz became a non-natural-born citizen
– would not be consistent whit the legal and ordinary
meaning of repatriation. It would be akin to
naturalization, which is the acquisition of a new
citizenship. "New." Because it is not the same as the
with which he has previously been endowed.
In any case, "the leaning, in questions of citizenship,
should always be in favor of [its] claimant x x
9
x." Accordingly, the same should be construed in favor
of private respondent, who claims to be a natural-born
2. Not Being Naturalized, Respondent Is Natural Born
Second, under the present Constitution, private
respondent should be deemed natural-born, because
was not naturalized. Let me explain.
There are generally two classes of citizens: (1) natural-
10
born citizens and (2) naturalized citizens. While CA 63
provides that citizenship may also be acquired by direct
act of the Legislature, I believe that those who do
become citizens through such procedure would properly
11
fall under the second category (naturalized).
Naturalized citizens are former aliens or foreigners who
had to undergo a rigid procedure, in which they had to
adduce sufficient evidence to prove that they possessed
all the qualifications and none of the disqualifications
provided by law in order to become Filipino citizens. In
contrast, as stated in the early case Roa v. Collector of
12
Customs, a natural-born citizen is a citizen "who has
become such at the moment of his birth."
The assailed HRET Decision, penned by Mr. Justice
Vicente V. Mendoza, explains clearly who are
considered natural-born Filipino citizens. He traces the
concept as first defined in Article III of the 1973
Constitution, which simply provided as follows:
"Sec 4. A natural-born citizen is one who is a
citizen of the Philippines from birth without
having to perform any act to acquire or perfect
his Philippine citizenship."
Under the above definition, there are two requisites in
order that a Filipino citizen may be considered "natural-
born": (1) one must be a citizen of the Philippines from
birth, and (2) one does not have to do anything to
13
acquire or perfect one's Philippine citizenship. Thus,
under the 1973 Constitution, excluded from the class of
"natural-born citizens" were (1) those who were
naturalized and (2) those born before January 17, 1973,
of Filipino mothers who, upon reaching the age of
14
majority, elected Philippine citizenship.
The present Constitution, however, has expanded the
scope of natural-born citizens to include "[t]hose who
elect Philippine citizenship in accordance with paragraph
(3), Section 1 hereof," meaning those covered under
class (2) above. Consequently, only naturalized Filipino
citizens are not considered natural-born citizens.
Premising therefrom, respondent – being clearly and
concededly not naturalized – is, therefore, a natural-born
15
citizen of the Philippines.
With respect to repatriates, since the Constitution does
not classify them separately, they naturally reacquire
their original classification before the loss of their
Philippine citizenship. In the case of Congressman
Teodoro C. Cruz, upon his repatriation in1994, he
reacquired his lost citizenship. In other words, he
regained his original status as a natural-born Filipino
citizen, nothing less.
3. No Grave Abuse of Discretion on the Part of HRET
Third, the HRET did not abuse, much less gravely
abuse, its discretion in holding that Respondent Cruz is
a natural-born Filipino citizen who is qualified to be a
member of Congress. I stress that the Court, in this
certiorari proceeding before us, is limited to determining
whether the HRET committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing its
assailed Decision. The Court has no power to reverse or
modify HRET's rulings, simply because it differs in its
perception of controversies. It cannot substitute its
discretion for that of HRET, an independent,
constitutional body with its own specific mandate.
The Constitution explicitly states that the respective
Electoral Tribunals of the chambers of Congress "shall
be the sole judges of all contests relating to the election,
returns, and qualifications their respective
16 17
members." In several cases, this Court has held that
the power and the jurisdiction of the Electoral Tribunals
are original and exclusive, as if they remained in the
legislature, a coequal branch of government. Their
judgment are beyond judicial interference, unless
rendered without or in excess of their jurisdiction or with
18
grave abuse of discretion. In the elegant words of Mr.
19
Justice Hugo E. Gutierrez Jr.:
"The Court does not venture into the perilous
area of trying to correct perceived errors of
independent branches of the Government. It
comes in only when it has to vindicate a denial
of due process or correct an abuse of discretion
so grave or glaring that no less than the
Constitution calls for remedial action."
True, there is no settled judicial doctrine on the exact
effect of repatriation. But, as earlier explained, the legal
and common definition of repatriation is the reacquisition
of the former citizenship. How then can the HRET be
rebuked with grave abuse of discretion? At best, I can
concede that the legal definition is not judicially settled or
is even doubtful. But an interpretation made in good faith
and grounded o reason one way or the other cannot be
the source of grave abuse amounting to lack or excess
of jurisdiction. The HRET did not violate the Constitution
or the law or any settled judicial doctrine. It was definitely
acting within its exclusive domain.
Be it remembered that our Constitution vests upon the
HRET the power to be the sole judge of the
qualifications of members of the House of
Representatives, one of which is citizenship. Absent
any clear showing of a manifest violation of the
Constitution or the law or nay judicial decision, this Court
cannot impute grave abuse of discretion to the HRET in
the latter's actions on matters over which full
discretionary authority is lodged upon it by our
20
fundamental law. Even assuming that we disagree with
the conclusion of public respondent, we
cannot ipso facto attribute to it "grave abuse of
discretion." Verily, there is a line between perceived
21
error and grave abuse.
By grave abuse of discretion is meant such capricious
and whimsical exercise of judgment as is equivalent to
lack of jurisdiction. Mere abuse of discretion is not
enough. "It must be grave abuse of discretion as when
the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, and must be
so patent and so gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty
22
enjoined or to act at all in contemplation of law."
That the HRET, after careful deliberation and purposeful
study, voted 7 to 2 to issue its Decision upholding the
qualifications of Congressman Cruz could not in any
wise be condemned as gravely abusive. Neither can I
find any "patent or gross" arbitrariness or despotism "by
reason of passion or hostility" in such exercise.
4. In Case of Doubt, Popular Will Prevails
Fourth, the court has a solemn duty to uphold the clear
and unmistakable mandate of the people. It cannot
supplant the sovereign will of the Second District of
Pangasinan with fractured legalism. The people of the
District have clearly spoken. They overwhelmingly and
unequivocally voted for private respondent to represent
them in the House of Representatives. The votes that
Cruz garnered (80, 119) in the last elections were much
more than those of all his opponents combined (66,
 23
182). In such instances, all possible doubts should be
resolved in favor of the winning candidate's eligibility; to
24
rule otherwise would be to defeat the will of the people.
Well-entrenched in our jurisprudence is the doctrine that
in case of doubt, political laws must be so constructed as
to give life and spirit to the popular mandate freely
25
expressed through the ballot. Public interest and the
sovereign will should, at all times, be the paramount
26
considerations in election controversies. For it would
be better to err in favor of the people's choice than to be
27
right in complex but little understood legalisms.
"Indeed, this Court has repeatedly stressed the
importance of giving effect to the sovereign will in order
to ensure the survival of our democracy. In any action
involving the possibility of a reversal of the popular
electoral choice, this Court must exert utmost effort to
resolve the issues in a manner that would give effect to
the will of the majority, for it is merely sound public policy
to cause elective offices to be filled by those who are the
choice of the majority. To successfully challenge a
winning candidate's qualifications, the petitioner must
clearly demonstrative that the ineligibility is so patently
antagonistic to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to
the apparent will of the people would ultimately create
greater prejudice to the very democratic institutions and
juristic traditions that our Constitution and laws so
28
zealously protect and promote."
5. Current Trend Towards Globalization
Fifth, the current trend, economically as well as
29
politically, is towards globalization. Protectionist
barriers dismantled. Whereas, in the past, governments
frowned upon the opening of their doors to aliens who
wanted to enjoy the same privileges as their citizens, the
current era is adopting a more liberal perspective. No
longer are applicants for citizenship eyed with the
suspicion that they merely want to exploit local
resources for themselves. They are now being
considered potential sources of developmental skills,
know-how and capital.1âwphi1.nêt
More so should our government open its doors to former
Filipinos, like Congressman Cruz, who want to rejoin the
Filipino community as citizens again. They are not
"aliens" in the true sense of the law. They are actually
Filipino by blood, by origin and by culture, who want to
reacquire their former citizenship.
It cannot be denied that most Filipinos go abroad and
apply for naturalization in foreign countries, because of
the great economic or social opportunities there. Hence,
we should welcome former Filipino citizens desirous of
not simply returning to the country or regaining
Philippine citizenship, but of serving the Filipino people
as well. One of these admirable Filipino is private
respondent who, in only a year after being absent from
the Philippines for about eight (8) years, was already
voted municipal mayor of Mangatarem, Pangasinan. And
after serving as such for just one term, he was
overwhelmingly chosen by the people to be their
representative in Congress.
I reiterate, the people have spoken. Let not a restrictive
and parochial interpretation of the law bar the sovereign
will. Let not grave abuse be imputed on the legitimate
exercise of HRET's prerogatives.
WHEREFORE, I vote to DISMISS the petition.
EN BANC
G.R. No. 137000 August 9, 2000
CIRILO R. VALLES, petitioner,
vs.
COMMISSION ON ELECTIONS and ROSALIND
YBASCO LOPEZ, respondents.
DECISION
PURISIMA, J.:
This is a petition for certiorari under Rule 65, pursuant to
Section 2, Rule 64 of the 1997 Rules of Civil Procedure,
assailing Resolutions dated July 17, 1998 and January
15, 1999, respectively, of the Commission on Elections
in SPA No. 98-336, dismissing the petition for
disqualification filed by the herein petitioner, Cirilo R.
Valles, against private respondent Rosalind Ybasco
Lopez, in the May 1998 elections for governor of Davao
Oriental.
Rosalind Ybasco Lopez was born on May 16, 1934 in
Napier Terrace, Broome, Western Australia, to the
spouses, Telesforo Ybasco, a Filipino citizen and native
of Daet, Camarines Norte, and Theresa Marquez, an
Australian. In 1949, at the age of fifteen, she left
Australia and came to settle in the Philippines.
On June 27, 1952, she was married to Leopoldo Lopez,
a Filipino citizen, at the Malate Catholic Church in
Manila. Since then, she has continuously participated in
the electoral process not only as a voter but as a
candidate, as well. She served as Provincial Board
Member of the Sangguniang Panlalawigan of Davao
Oriental. In 1992, she ran for and was elected governor
of Davao Oriental. Her election was contested by her
opponent, Gil Taojo, Jr., in a petition for quo warranto,
docketed as EPC No. 92-54, alleging as ground therefor
her alleged Australian citizenship. However, finding no
sufficient proof that respondent had renounced her
Philippine citizenship, the Commission on Elections en
banc dismissed the petition, ratiocinating thus:
"A cursory reading of the records of this case vis-a-vis
the impugned resolution shows that respondent was
able to produce documentary proofs of the Filipino
citizenship of her late father... and consequently, prove
her own citizenship and filiation by virtue of the Principle
of Jus Sanguinis, the perorations of the petitioner to the
contrary notwithstanding.
On the other hand, except for the three (3) alleged
important documents . . . no other evidence substantial
in nature surfaced to confirm the allegations of petitioner
that respondent is an Australian citizen and not a
Filipino. Express renunciation of citizenship as a mode of
losing citizenship under Commonwealth Act No. 63 is an
equivocal and deliberate act with full awareness of its
significance and consequence. The evidence adduced
by petitioner are inadequate, nay meager, to prove that
respondent contemplated renunciation of her Filipino
1
citizenship".
In the 1995 local elections, respondent Rosalind Ybasco
Lopez ran for re-election as governor of Davao Oriental.
Her opponent, Francisco Rabat, filed a petition for
disqualification, docketed as SPA No. 95-066 before the
COMELEC, First Division, contesting her Filipino
citizenship but the said petition was likewise dismissed
by the COMELEC, reiterating substantially its decision in
EPC 92-54.
The citizenship of private respondent was once again
raised as an issue when she ran for re-election as
governor of Davao Oriental in the May 11, 1998
elections. Her candidacy was questioned by the herein
petitioner, Cirilo Valles, in SPA No. 98-336.
On July 17, 1998, the COMELEC’s First Division came
out with a Resolution dismissing the petition, and
disposing as follows:
"Assuming arguendo that res judicata does not apply
and We are to dispose the instant case on the merits
trying it de novo, the above table definitely shows that
petitioner herein has presented no new evidence to
disturb the Resolution of this Commission in SPA No.
95-066. The present petition merely restates the same
matters and incidents already passed upon by this
Commission not just in 1995 Resolution but likewise in
the Resolution of EPC No. 92-54. Not having put forth
any new evidence and matter substantial in nature,
persuasive in character or sufficiently provocative to
compel reversal of such Resolutions, the dismissal of the
present petition follows as a matter of course.
xxx xxx xxx
"WHEREFORE, premises considered and there being
no new matters and issues tendered, We find no
convincing reason or impressive explanation to disturb
and reverse the Resolutions promulgated by this
Commission in EPC 92-54 and SPA. 95-066. This
Commission RESOLVES as it hereby RESOLVES to
DISMISS the present petition.
2
SO ORDERED."
Petitioner interposed a motion for reconsideration of the
aforesaid Resolution but to no avail. The same was
denied by the COMELEC in its en banc Resolution of
January 15, 1999.
Undaunted, petitioner found his way to this Court via the
present petition; questioning the citizenship of private
respondent Rosalind Ybasco Lopez.
The Commission on Elections ruled that private
respondent Rosalind Ybasco Lopez is a Filipino citizen
and therefore, qualified to run for a public office because
(1) her father, Telesforo Ybasco, is a Filipino citizen, and
by virtue of the principle of jus sanguinis she was a
Filipino citizen under the 1987 Philippine Constitution;
(2) she was married to a Filipino, thereby making her
also a Filipino citizen ipso jure under Section 4 of
Commonwealth Act 473; (3) and that, she renounced her
Australian citizenship on January 15, 1992 before the
Department of Immigration and Ethnic Affairs of
Australia and her Australian passport was accordingly
cancelled as certified to by the Australian Embassy in
Manila; and (4) furthermore, there are the COMELEC
Resolutions in EPC No. 92-54 and SPA Case No. 95-
066, declaring her a Filipino citizen duly qualified to run
for the elective position of Davao Oriental governor.
Petitioner, on the other hand, maintains that the private
respondent is an Australian citizen, placing reliance on
the admitted facts that:
a) In 1988, private respondent registered herself
with the Bureau of Immigration as an Australian
national and was issued Alien Certificate of
Registration No. 404695 dated September 19,
1988;
b) On even date, she applied for the issuance of
an Immigrant Certificate of Residence (ICR),
and
c) She was issued Australian Passport No.
H700888 on March 3, 1988.
Petitioner theorizes that under the aforestated facts and
circumstances, the private respondent had renounced
her Filipino citizenship. He contends that in her
application for alien certificate of registration and
immigrant certificate of residence, private respondent
expressly declared under oath that she was a citizen or
subject of Australia; and said declaration forfeited her
Philippine citizenship, and operated to disqualify her to
run for elective office.
As regards the COMELEC’s finding that private
respondent had renounced her Australian citizenship on
January 15, 1992 before the Department of Immigration
and Ethnic Affairs of Australia and had her Australian
passport cancelled on February 11, 1992, as certified to
by the Australian Embassy here in Manila, petitioner
argues that the said acts did not automatically restore
the status of private respondent as a Filipino citizen.
According to petitioner, for the private respondent to
reacquire Philippine citizenship she must comply with
the mandatory requirements for repatriation under
Republic Act 8171; and the election of private
respondent to public office did not mean the restoration
of her Filipino citizenship since the private respondent
was not legally repatriated. Coupled with her alleged
renunciation of Australian citizenship, private respondent
has effectively become a stateless person and as such,
is disqualified to run for a public office in the Philippines;
petitioner concluded.
Petitioner theorizes further that the Commission on
Elections erred in applying the principle of res judicata to
the case under consideration; citing the ruling in Moy Ya
3
Lim Yao vs. Commissioner of Immigration, that:
"xxx Everytime the citizenship of a person is material or
indispensable in a judicial or administrative case,
whatever the corresponding court or administrative
authority decides therein as to such citizenship is
generally not considered as res adjudicata, hence it has
to be threshed out again and again as the occasion may
demand. xxx"
The petition is unmeritorious.
The Philippine law on citizenship adheres to the principle
of jus sanguinis. Thereunder, a child follows the
nationality or citizenship of the parents regardless of the
place of his/her birth, as opposed to the doctrine of jus
soli which determines nationality or citizenship on the
basis of place of birth.
Private respondent Rosalind Ybasco Lopez was born on
May 16, 1934 in Napier Terrace, Broome, Western
Australia, to the spouses, Telesforo Ybasco, a Filipino
citizen and native of Daet, Camarines Norte, and
Theresa Marquez, an Australian. Historically, this was a
year before the 1935 Constitution took into effect and at
that time, what served as the Constitution of the
Philippines were the principal organic acts by which the
United States governed the country. These were the
Philippine Bill of July 1, 1902 and the Philippine
Autonomy Act of August 29, 1916, also known as the
Jones Law.
Among others, these laws defined who were deemed to
be citizens of the Philippine islands. The Philippine Bill of
1902 defined Philippine citizens as:
SEC. 4 xxx all inhabitants of the Philippine Islands
continuing to reside therein who were Spanish subjects
on the eleventh day of April, eighteen hundred and
ninety-nine, and then resided in the Philippine Islands,
and their children born subsequent thereto, shall be
deemed and held to be citizens of the Philippine
Islands and as such entitled to the protection of the
United States, except such as shall have elected to
preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace
between the United States and Spain signed at Paris
December tenth, eighteen hundred and ninety-eight.
(underscoring ours)
The Jones Law, on the other hand, provides:
SEC. 2 That all inhabitants of the Philippine Islands who
were Spanish subjects on the eleventh day of April,
eighteen hundred and ninety-nine, and then resided in
said Islands, and their children born subsequent thereto,
shall be deemed and held to be citizens of the Philippine
Islands, except such as shall have elected to preserve
their allegiance to the Crown of Spain in accordance with
the provisions of the treaty of peace between the United
States and Spain, signed at Paris December tenth,
eighteen hundred and ninety-eight, and except such
others as have since become citizens of some other
country: Provided, That the Philippine Legislature, herein
provided for, is hereby authorized to provide by law for
the acquisition of Philippine citizenship by those natives
of the Philippine Islands who cannot come within the
foregoing provisions, the natives of the insular
possessions of the United States, and such other
persons residing in the Philippine Islands who are
citizens of the United States, or who could become
citizens of the United States under the laws of the United
States if residing therein. (underscoring ours)
Under both organic acts, all inhabitants of the Philippines
who were Spanish subjects on April 11, 1899 and
resided therein including their children are deemed to be
Philippine citizens. Private respondent’s father, Telesforo
Ybasco, was born on January 5, 1879 in Daet,
Camarines Norte, a fact duly evidenced by a certified
true copy of an entry in the Registry of Births. Thus,
under the Philippine Bill of 1902 and the Jones Law,
Telesforo Ybasco was deemed to be a Philippine citizen.
By virtue of the same laws, which were the laws in force
at the time of her birth, Telesforo’s daughter, herein
private respondent Rosalind Ybasco Lopez, is likewise a
citizen of the Philippines.
The signing into law of the 1935 Philippine Constitution
has established the principle of jus sanguinis as basis for
the acquisition of Philippine citizenship, to wit:
 (1) Those who are citizens of the Philippine
Islands at the time of the adoption of this
Constitution.
(2) Those born in the Philippine Islands of
foreign parents who, before the adoption of this
Constitution had been elected to public office in
the Philippine Islands.
(3) Those whose fathers are citizens of the
Philippines.
(4) Those whose mothers are citizens of the
Philippines and, upon reaching the age of
majority, elect Philippine citizenship.
(5) Those who are naturalized in accordance
with law.
So also, the principle of jus sanguinis, which confers
citizenship by virtue of blood relationship, was
4 longer a Filipino, and that an application for an alien
subsequently retained under the 1973 and
5
1987 Constitutions. Thus, the herein private respondent,
Rosalind Ybasco Lopez, is a Filipino citizen, having been
born to a Filipino father. The fact of her being born in
Australia is not tantamount to her losing her Philippine
citizenship. If Australia follows the principle of jus soli,
then at most, private respondent can also claim
Australian citizenship resulting to her possession of dual
citizenship.
Petitioner also contends that even on the assumption
that the private respondent is a Filipino citizen, she has
nonetheless renounced her Philippine citizenship. To
buttress this contention, petitioner cited private
respondent’s application for an Alien Certificate of
Registration (ACR) and Immigrant Certificate of
Residence (ICR), on September 19, 1988, and the
issuance to her of an Australian passport on March 3,
1988.
Under Commonwealth Act No. 63, a Filipino citizen may
lose his citizenship:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to
support the constitution or laws of a foreign
country upon attaining twenty-one years of age
or more;
(4) By accepting commission in the military,
naval or air service of a foreign country;
(5) By cancellation of the certificate of
naturalization;
(6) By having been declared by competent
authority, a deserter of the Philippine armed
forces in time of war, unless subsequently, a
plenary pardon or amnesty has been granted:
and
(7) In case of a woman, upon her marriage, to a
foreigner if, by virtue of the laws in force in her
husband’s country, she acquires his nationality.
In order that citizenship may be lost by renunciation,
such renunciation must be express. Petitioner’s
contention that the application of private respondent for
an alien certificate of registration, and her Australian
passport, is bereft of merit. This issue was put to rest in
6
the case of Aznar vs. COMELEC and in the more recent
7
case of Mercado vs. Manzano and COMELEC.
In the case of Aznar, the Court ruled that the mere fact
that respondent Osmena was a holder of a certificate
stating that he is an American did not mean that he is no
certificate of registration was not tantamount to
renunciation of his Philippine citizenship.
And, in Mercado vs. Manzano and COMELEC, it was
held that the fact that respondent Manzano was
registered as an American citizen in the Bureau of
Immigration and Deportation and was holding an
American passport on April 22, 1997, only a year before
he filed a certificate of candidacy for vice-mayor of
Makati, were just assertions of his American nationality
before the termination of his American citizenship.
Thus, the mere fact that private respondent Rosalind
Ybasco Lopez was a holder of an Australian passport
and had an alien certificate of registration are not acts
constituting an effective renunciation of citizenship and
do not militate against her claim of Filipino citizenship.
For renunciation to effectively result in the loss of
8
citizenship, the same must be express. As held by this
court in the aforecited case of Aznar, an application for
an alien certificate of registration does not amount to an
express renunciation or repudiation of one’s citizenship.
The application of the herein private respondent for an
alien certificate of registration, and her holding of an
Australian passport, as in the case of Mercado vs.
Manzano, were mere acts of assertion of her Australian
citizenship before she effectively renounced the same.
Thus, at the most, private respondent had dual
citizenship - she was an Australian and a Filipino, as
well.
Moreover, under Commonwealth Act 63, the fact that a
child of Filipino parent/s was born in another country has
not been included as a ground for losing one’s Philippine
citizenship. Since private respondent did not lose or
renounce her Philippine citizenship, petitioner’s claim
that respondent must go through the process of
repatriation does not hold water.
Petitioner also maintains that even on the assumption
that the private respondent had dual citizenship, still, she
is disqualified to run for governor of Davao Oriental;
citing Section 40 of Republic Act 7160 otherwise known
as the Local Government Code of 1991, which states:
"SEC. 40. Disqualifications. The following persons are
disqualified from running for any elective local position:
xxx xxx xxx
(d) Those with dual citizenship;
xxx xxx xxx
Again, petitioner’s contention is untenable.
In the aforecited case of Mercado vs. Manzano, the
Court clarified "dual citizenship" as used in the Local
Government Code and reconciled the same with Article
IV, Section 5 of the 1987 Constitution on dual
9 13
allegiance. Recognizing situations in which a Filipino
citizen may, without performing any act, and as an
involuntary consequence of the conflicting laws of
different countries, be also a citizen of another state, the
Court explained that dual citizenship as a disqualification
must refer to citizens with dual allegiance. The Court
succinctly pronounced:
"xxx the phrase ‘dual citizenship’ in R.A. No. 7160, xxx
40 (d) and in R.A. No. 7854, xxx 20 must be understood
as referring to ‘dual allegiance’. Consequently, persons
with mere dual citizenship do not fall under this
disqualification."
Thus, the fact that the private respondent had dual
citizenship did not automatically disqualify her from
running for a public office. Furthermore, it was ruled that
for candidates with dual citizenship, it is enough that
they elect Philippine citizenship upon the filing of their
certificate of candidacy, to terminate their status as
10
persons with dual citizenship. The filing of a certificate
of candidacy sufficed to renounce foreign citizenship,
effectively removing any disqualification as a dual
11
citizen. This is so because in the certificate of
candidacy, one declares that he/she is a Filipino citizen
and that he/she will support and defend the Constitution
of the Philippines and will maintain true faith and
allegiance thereto. Such declaration, which is under
oath, operates as an effective renunciation of foreign
citizenship. Therefore, when the herein private
respondent filed her certificate of candidacy in 1992,
such fact alone terminated her Australian citizenship.
Then, too, it is significant to note that on January 15
1992, private respondent executed a Declaration of
Renunciation of Australian Citizenship, duly registered in
the Department of Immigration and Ethnic Affairs of
Australia on May 12, 1992. And, as a result, on February
11, 1992, the Australian passport of private respondent
was cancelled, as certified to by Second Secretary
Richard F. Munro of the Embassy of Australia in Manila.
As aptly appreciated by the COMELEC, the aforesaid
acts were enough to settle the issue of the alleged dual
citizenship of Rosalind Ybasco Lopez. Since her
renunciation was effective, petitioner’s claim that private
respondent must go through the whole process of
repatriation holds no water.
Petitioner maintains further that when citizenship is
raised as an issue in judicial or administrative
proceedings, the resolution or decision thereon is
generally not considered res judicata in any subsequent
proceeding challenging the same; citing the case of Moy
Ya Lim Yao vs. Commissioner of Immigration. He
12
insists that the same issue of citizenship may be
threshed out anew.
Petitioner is correct insofar as the general rule is
concerned, i.e. the principle of res judicata generally
does not apply in cases hinging on the issue of
citizenship. However, in the case of Burca vs.
Republic, an exception to this general rule was
recognized. The Court ruled in that case that in order
that the doctrine of res judicata may be applied in cases
of citizenship, the following must be present:
1) a person’s citizenship be raised as a material
issue in a controversy where said person is a
party;
2) the Solicitor General or his authorized
representative took active part in the resolution
thereof, and
3) the finding on citizenship is affirmed by this
Court.
Although the general rule was set forth in the case
of Moy Ya Lim Yao, the case did not foreclose the
weight of prior rulings on citizenship. It elucidated that
reliance may somehow be placed on these antecedent
official findings, though not really binding, to make the
14
effort easier or simpler. Indeed, there appears sufficient
basis to rely on the prior rulings of the Commission on
Elections in SPA. No. 95-066 and EPC 92-54 which
resolved the issue of citizenship in favor of the herein
private respondent. The evidence adduced by petitioner
is substantially the same evidence presented in these
two prior cases. Petitioner failed to show any new
evidence or supervening event to warrant a reversal of
such prior resolutions. However, the procedural issue
notwithstanding, considered on the merits, the petition
cannot prosper.
WHEREFORE, the petition is hereby DISMISSED and
the COMELEC Resolutions, dated July 17, 1998 and
January 15, 1999, respectively, in SPA No. 98-336
AFFIRMED.
Private respondent Rosalind Ybasco Lopez is hereby
adjudged qualified to run for governor of Davao Oriental.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Melo, Puno, Vitug,
Kapunan, Mendoza, Panganiban, Quisumbing, Pardo,
Buena, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.
Bellosillo, J., abroad on official business.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 96859 October 15, 1991
MOHAMMAD ALI DIMAPORO, petitioner,
vs.
HON. RAMON V. MITRA, JR., Speaker, House of
Representatives, and (Hon. QUIRINO D. ABAD
SANTOS, JR.) HON. CAMILO L. SABIO Secretary,
House of representatives, respondent.
Rilloraza, Africa, De Ocampo & Africa and Enrique M.
Fernando for petitioner.
DAVIDE, JR., J.:
Petitioner Mohamad Ali Dimaporo was elected
Representative for the Second Legislative District of
Lanao del Sur during the 1987 congressional elections.
He took his oath of office on 9 January 1987 and
thereafter performed the duties and enjoyed the rights
and privileges pertaining thereto.
On 15 January 1990, petitioner filed with the
Commission on Elections a Certificate of Candidacy for
the position of Regional Governor of the Autonomous
Region in Muslim Mindanao. The election was
scheduled for 17 February 1990.
Upon being informed of this development by the
Commission on Elections, respondents Speaker and
Secretary of the House of Representatives excluded
petitioner's name from the Roll of Members of the House
of Representatives pursuant to Section 67, Article IX of
the Omnibus Election Code. As reported by the Speaker
in the session of 9 February 1990:
The Order of Business today carries a
communication from the Commission on
Elections which states that the Honorable
Mohammad Ali Dimaporo of the Second District
of Lanao del Sur filed a certificate of candidacy
for the regional elections in Muslim Mindanao on
February 17, 1990. The House Secretariat,
performing an administrative act, did not include
the name of the Honorable Ali Dimaporo in the
Rolls pursuant to the provision of the Election
Code, Article IX, Section 67, which states: Any
elective official whether national or local running
for any office other than the one which he is
holding in a permanent capacity except for
President and Vice-President shall be
considered ipso facto resigned from his office
upon the filing of his certificate of candidacy.'
The word 'ipso facto' is defined in Words and
Phrases as by the very act itself – by the mere
act. And therefore, by the very act of the (sic)
filing his certificate of candidacy, the Honorable
Ali Dimaporo removed himself from the Rolls of
the House of Representatives; and, therefore,
his name has not been carried in today's Roll
and will not be carried in the future Rolls of the
House. ...
Having lost in the autonomous region elections,
petitioner, in a letter dated 28 June 1990 and addressed
to respondent Speaker, expressed his intention "to
resume performing my duties and functions as elected
Member of Congress." The record does not indicate
what action was taken on this communication, but it is
apparent that petitioner failed in his bid to regain his seat
in Congress since this petition praying for such relief was
subsequently filed on 31 January 1991.
In this petition, it is alleged that following the dropping of
his name from the Roll, petitioner was excluded from all
proceedings of the House of Representatives; he was
not paid the emoluments due his office; his staff was
dismissed and disbanded; and his office suites were
occupied by other persons. In effect, he was virtually
barred and excluded from performing his duties and from
exercising his rights and privileges as the duly elected
and qualified congressman from his district.
Petitioner admits that he filed a Certificate of Candidacy
for the position of Regional Governor of Muslim
Mindanao. He, however, maintains that he did not
thereby lose his seat as congressman because Section
67, Article IX of B.P. Blg. 881 is not operative under the
present Constitution, being contrary thereto, and
therefore not applicable to the present members of
Congress.
In support of his contention, petitioner points out that the
term of office of members of the House of
Representatives, as well as the grounds by which the
incumbency of said members may be shortened, are
provided for in the Constitution. Section 2, Article XVIII
thereof provides that "the Senators, Members of the
House of Representatives and the local officials first
elected under this Constitution shall serve until noon of
June 30, 1992;" while Section 7, Article VI states: "The
Members of the House of Representatives shall be
elected for a term of three years which shall begin,
unless otherwise provided by law, at noon on the thirtieth
day of June next following their election." On the other
hand, the grounds by which such term may be shortened
may be summarized as follows:
a) Section 13, Article VI: Forfeiture of his seat by
holding any other office or employment in the
government or any subdivision, agency or
instrumentality thereof, including government-
owned or controlled corporations or subsidiaries;
b) Section 16 (3): Expulsion as a disciplinary
action for disorderly behavior;
c) Section 17: Disqualification as determined by
resolution of the Electoral Tribunal in an election
contest; and,
d) Section 7, par. 2: Voluntary renunciation of
office.
He asserts that under the rule expressio unius est
exclusio alterius, Section 67, Article IX of B.P. Blg. 881 is
repugnant to these constitutional provisions in that it
provides for the shortening of a congressman's term of
office on a ground not provided for in the Constitution.
For if it were the intention of the framers to include the
provisions of Section 67, Article IX of B.P. Blg. 881 as
among the means by which the term of a Congressman
may be shortened, it would have been a very simple
matter to incorporate it in the present Constitution. They
did not do so. On the contrary, the Constitutional
Commission only reaffirmed the grounds previously
found in the 1935 and 1973 Constitutions and
deliberately omitted the ground provided in Section 67,
Article IX of B.P. Blg. 881.
On the premise that the provision of law relied upon by
respondents in excluding him from the Roll of Members
is contrary to the present Constitution, petitioner
consequently concludes that respondents acted without
authority. He further maintains that respondents' so-
called "administrative act" of striking out his name is
ineffective in terminating his term as Congressman.
Neither can it be justified as an interpretation of the
Constitutional provision on voluntary renunciation of
office as only the courts may interpret laws. Moreover,
he claims that he cannot be said to have forfeited his
seat as it is only when a congressman holds another
office or employment that forfeiture is decreed. Filing a
certificate of candidacy is not equivalent to holding
another office or employment.
In sum, petitioner's demand that his rights as a duly
elected member of the House of Representatives be
recognized, is anchored on the negative view of the
following issues raised in this petition:
A.
IS SECTION 67, ARTICLE IX, OF B.P. BLG.
881 OPERATIVE UNDER THE PRESENT
CONSTITUTION?
B.
COULD THE RESPONDENT SPEAKER
AND/OR THE RESPONDENT SECRETARY,
'BY ADMINISTRATIVE ACT', EXCLUDE THE
PETITIONER FROM THE ROLLS OF THE
HOUSE OF REPRESENTATIVES, THEREBY
PREVENTING HIM FROM EXERCISING HIS
FUNCTIONS AS CONGRESSMAN, AND
DEPRIVING HIM OF HIS RIGHTS AND
PRIVILEGES AS SUCH?
On the other hand, respondents through the Office of the
Solicitor General contend that Section 67, Article IX of
B.P. Blg. 881 is still operative under the present
Constitution, as the voluntary act of resignation
contemplated in said Section 67 falls within the term
"voluntary renunciation" of office enunciated in par. 2,
Section 7, Article VI of the Constitution. That the ground
provided in Section 67 is not included in the Constitution
does not affect its validity as the grounds mentioned
therein are not exclusive. There are, in addition, other
modes of shortening the tenure of office of Members of
Congress, among which are resignation, death and
conviction of a crime which carries a penalty of
disqualification to hold public office.
Respondents assert that petitioner's filing of a Certificate
of Candidacy is an act of resignation which estops him
from claiming otherwise as he is presumed to be aware
of existing laws. They further maintain that their
questioned "administrative act" is a mere ministerial act
which did not involve any encroachment on judicial
powers.
Section 67, Article IX of B.P. Blg. 881 reads:
Any elective official whether national or local
running for any office other than the one which
he is holding in a permanent capacity except for
President and Vice-President shall be
considered ipso facto resigned from his office
upon the filing of his certificate of candidacy.
The precursor of this provision is the last paragraph of
Section 2 of C.A. No. 666, which reads:
Any elective provincial, municipal, or city official
running for an office, other than the one for
which he has been lastly elected, shall be
considered resigned from his office from the
moment of the filing of his certificate of
candidacy.
Section 27 of Article II of Republic Act No. 180 reiterated
this rule in this wise:
Sec. 27. Candidate holding office. — Any
elective provincial, municipal or city
official running for an office, other than the one
which he is actually holding, shall be considered
resigned from office from the moment of the
filing of his certificate of candidacy.
The 1971 Election Code imposed a similar proviso on
local elective officials as follows:
Sec. 24. Candidate holding elective office. —
Any elective provincial, sub-provincial, city,
municipal or municipal district officer running for
an office other than the one which he is holding
in a permanent capacity shall be
considered ipso facto resigned from his office
from the moment of the filing of his certificate of
candidacy.
Every elected official shall take his oath of office
on the day his term of office commences, or
within ten days after his proclamation if said
proclamation takes place after such day. His
failure to take his oath of office as herein
provided shall be considered forfeiture of his
right to the new office to which he has been
elected unless his failure is for a cause or
causes beyond his control.
The 1978 Election Code provided a different rule, thus:
Sec. 30. Candidates holding political offices. —
Governors, mayors, members of various
sanggunians, or barangay officials, shall, upon
filing of a certificate of candidacy, be considered
on forced leave of absence from office.
It must be noted that only in B.P. Blg. 881 are members
of the legislature included in the enumeration of elective
public officials who are to be considered resigned from
office from the moment of the filing of their certificates of
candidacy for another office, except for President and
Vice-President. The advocates of Cabinet Bill No. 2 (now
Section 67, Article IX of B.P. Blg. 881) elucidated on the
rationale of this inclusion, thus:
MR. PALMARES:
In the old Election Code, Your Honor, in
the 1971 Election Code, the provision
seems to be different — I think this is in
Section 24 of Article III.
Any elective provincial, sub-provincial,
city, municipal or municipal district
officer running for an office other than
the one which he is holding in a
permanent capacity shall be
considered ipso facto resigned from his
office from the moment of the filing of
his certificate of candidacy.
May I know, Your Honor, what is the
reason of the Committee in departing or
changing these provisions of Section 24
of the old Election Code and just
adopting it en toto? Why do we have to
change it? What could possibly be the
reason behind it, or the rationale behind
it?
MR. PEREZ (L.):
I have already stated the rationale for this, Mr.
Speaker, but I don't mind repeating it. The
purpose is that the people must be given the
right to choose any official who belongs to, let us
say, to the Batasan if he wants to run for another
office. However, because of the practice in the
past where members of the legislature ran for
local offices, but did not assume the office,
because of that spectacle the impression is that
these officials were just trifling with the mandate
of the people. They have already obtained a
mandate to be a member of the legislature, and
they want to run for mayor or for governor and
yet when the people give them that mandate,
they do not comply with that latter mandate, but
still preferred (sic) to remain in the earlier
mandate. So we believe, Mr. Speaker, that the
people's latest mandate must be the one that will
be given due course. ...
Assemblyman Manuel M. Garcia, in answer to the query
of Assemblyman Arturo Tolentino on the constitutionality
of Cabinet Bill No. 2, said:
MR. GARCIA (M.M.):
Thank you, Mr. Speaker.
Mr. Speaker, on the part of the Committee, we
made this proposal based on constitutional
grounds. We did not propose this amendment
mainly on the rationale as stated by the
Gentlemen from Manila that the officials running
for office other than the ones they are holding
will be considered resigned not because of
abuse of facilities of power or the use of office
facilities but primarily because under our
Constitution, we have this new chapter on
accountability of public officers. Now, this was
not in the 1935 Constitution. It states that (sic)
Article XIII, Section 1— Public office is a public
trust. Public officers and employees shall serve
with the highest degree of responsibility,
integrity, loyalty and efficiency and shall remain
accountable to the people.
Now, what is the significance of this new
provision on accountability of public officers?
This only means that all elective public officials
should honor the mandate they have gotten from
the people. Thus, under our Constitution, it says
that: 'Members of the Batasan shall serve for the
term of 6 years, in the case of local officials and
6 years in the case of barangay officials. Now,
Mr. Speaker, we have precisely included this as
part of the Omnibus Election Code because a
Batasan Member who hold (sic) himself out with
the people and seek (sic) their support and
mandate should not be allowed to deviate or
allow himself to run for any other position unless
he relinquishes or abandons his office. Because
his mandate to the people is to serve for 6
years. Now, if you allow a Batasan or a governor
or a mayor who was mandated to serve for 6
years to file for an office other than the one he
was elected to, then, that clearly shows that he
has not (sic) intention to service the mandate of
the people which was placed upon him and
therefore he should be considered ipso facto
resigned. I think more than anything that is the
accountability that the Constitution requires of
elective public officials. It is not because of the
use or abuse of powers or facilities of his office,
but it is because of the Constitution itself which I
said under the 1973 Constitution called and
inserted this new chapter on accountability.
Now, argument was said that the mere filing is
not the intention to run. Now, what is it for? If a
Batasan Member files the certificate of
candidacy, that means that he does not want to
serve, otherwise, why should he file for an office
other than the one he was elected to? The mere
fact therefore of filing a certificate should be
considered the overt act of abandoning or
relinquishing his mandate to the people and that
he should therefore resign if he wants to seek
another position which he feels he could be of
better service.
As I said, Mr. Speaker, I disagree with the
statements of the Gentleman from Manila
because the basis of this Section 62 is the
constitutional provision not only of the fact that
Members of the Batasan and local officials
should serve the entire 6-year term for which we
were elected, but because of this new chapter
on the accountability of public officers not only to
the community which voted him to office, but
primarily because under this commentary on
accountability of public officers, the elective
public officers must serve their principal, the
people, not their own personal ambition. And
that is the reason, Mr. Speaker, why we opted to
propose Section 62 where candidates or elective
public officers holding offices other than the one
to which they were elected, should be
considered ipso facto resigned from their office
upon the filing of the certificate of candidacy."
It cannot be gainsaid that the same constitutional basis
for Section 67, Article IX of B.P. Blg. 881 remains written
in the 1987 Constitution. In fact, Section 1 of Article XI
on "Accountability of Public Officers" is more emphatic in
stating:
Sec. 1. Public office is a public trust. Public
officers and employees must at all times be
accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and
lead modest lives.
Obviously then, petitioner's assumption that the
questioned statutory provision is no longer operative
does not hold water. He failed to discern that rather than
cut short the term of office of elective public officials, this
statutory provision seeks to ensure that such officials
serve out their entire term of office by discouraging them
from running for another public office and thereby cutting
short their tenure by making it clear that should they fail
in their candidacy, they cannot go back to their former
position. This is consonant with the constitutional edict
that all public officials must serve the people with utmost
loyalty and not trifle with the mandate which they have
received from their constituents.
In theorizing that the provision under consideration cuts
short the term of office of a Member of Congress,
petitioner seems to confuse "term" with "tenure" of office.
As succinctly distinguished by the Solicitor General:
The term of office prescribed by the Constitution
may not be extended or shortened by the
legislature (22 R.C.L.), but the period during
which an officer actually holds the office (tenure)
may be affected by circumstances within or
beyond the power of said officer. Tenure may be
shorter than the term or it may not exist at all.
These situations will not change the duration of
the term of office (see Topacio Nueno vs.
Angeles, 76 Phil 12).
Under the questioned provision, when an elective official
covered thereby files a certificate of candidacy for
another office, he is deemed to have voluntarily cut short
his tenure, not his term. The term remains and his
successor, if any, is allowed to serve its unexpired
portion.
That the ground cited in Section 67, Article IX of B.P.
Blg. 881 is not mentioned in the Constitution itself as a
mode of shortening the tenure of office of members of
Congress, does not preclude its application to present
members of Congress. Section 2 of Article XI provides
that "(t)he President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed
from office, on impeachment for, and conviction of,
culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may
be removed from office as provided by law, but not by
impeachment. Such constitutional expression clearly
recognizes that the four (4) grounds found in Article VI of
the Constitution by which the tenure of a Congressman
may be shortened are not exclusive. As held in the case
of State ex rel. Berge vs. Lansing, the expression in the
constitution of the circumstances which shall bring about
a vacancy does not necessarily exclude all others.
Neither does it preclude the legislature from prescribing
other grounds. Events so enumerated in the constitution
or statutes are merely conditions the occurrence of any
one of which the office shall become vacant not as a
penalty but simply as the legal effect of any one of the
events. And would it not be preposterous to say that a
congressman cannot die and cut his tenure because
death is not one of the grounds provided for in the
Constitution? The framers of our fundamental law never
intended such absurdity.
The basic principle which underlies the entire field of
legal concepts pertaining to the validity of legislation is
that by enactment of legislation, a constitutional measure
is presumed to be created. This Court has enunciated
the presumption in favor of constitutionality of legislative
enactment. To justify the nullification of a law, there must
be a clear and unequivocal breach of the Constitution,
not a doubtful and argumentative implication. A doubt,
even if well-founded, does not suffice.
The maxim expressio unius est exclusio alterius is not to
be applied with the same rigor in construing a
constitution as a statute and only those things expressed
in such positive affirmative terms as plainly imply the
negative of what is not mentioned will be considered as
inhibiting the power of legislature. The maxim is only a
rule of interpretation and not a constitutional command.
This maxim expresses a rule of construction and serves
only as an aid in discovering legislative intent where
such intent is not otherwise manifest.
Even then, the concept of voluntary renunciation of office
under Section 7, Article VI of the Constitution is broad
enough to include the situation envisioned in Section 67,
Article IX of B.P. Blg. 881. As discussed by the
Constitutional Commissioners:
MR. MAAMBONG:
Could I address the clarificatory question to the
Committee? The term 'voluntary renunciation'
does not only appear in Section 3; it appears in
Section 6.
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' means? 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.
That the act, contemplated in Section 67, Article IX of
B.P. Blg. 881, of filing a certificate of candidacy for
another office constitutes an overt, concrete act of
voluntary renunciation of the elective office presently
being held is evident from this exchange between then
Members of Parliament Arturo Tolentino and Jose Rono:
MR. RONO:
My reasonable ground is this: if you will make
the person ... my, shall we say, basis is that in
one case the person is intending to run for an
office which is different from his own, and
therefore it should be considered, at least from
the legal significance, an intention to relinquish
his office.
MR. TOLENTINO:
Yes ...
MR. RONO:
And in the other, because he is running for the same
position, it is otherwise.
MR. TOLENTINO:
Yes, but what I cannot see is why are you going
to compel a person to quit an office which he is
only intending to leave? A relinquishment of
office must be clear, must be definite.
MR. RONO:
 Yes, sir. That's precisely, Mr. Speaker, what I'm
saying that while I do not disagree with the
conclusion that the intention cannot be
enough, but I am saying that the filing of the
certificate of candidacy is an over act of such
intention. It's not just an intention; it's already
there.
In Monroy vs. Court of Appeals, a case involving Section
27 of R.A. No. 180 above-quoted, this Court
categorically pronounced that "forfeiture (is) automatic
and permanently effective upon the filing of the
certificate of candidacy for another office. Only
the moment and act of filing are considered. Once the
certificate is filed, the seat is forever forfeited and
nothing save a new election or appointment can restore
the ousted official. Thus, as We had occasion to remark,
through Justice J.B.L. Reyes, in Castro vs. Gatuslao:
... The wording of the law plainly indicates that
only the date of filing of the certificate of
candidacy should be taken into account. The law
does not make the forfeiture dependent upon
future contingencies, unforeseen and
unforeseeable, since the vacating is expressly
made as of the moment of the filing of the
certificate of candidacy. ...
As the mere act of filing the certificate of candidacy for
another office produces automatically the permanent
forfeiture of the elective position being presently held, it
is not necessary, as petitioner opines, that the other
position be actually held. The ground for forfeiture in
Section 13, Article VI of the 1987 Constitution is different
from the forfeiture decreed in Section 67, Article IX of
B.P. Blg. 881, which is actually a mode of voluntary
renunciation of office under Section 7, par. 2 of Article VI
of the Constitution.
The legal effects of filing a certificate of candidacy for
another office having been spelled out in Section 67,
Article IX, B.P. Blg. 881 itself, no statutory interpretation
was indulged in by respondents Speaker and Secretary
of the House of Representatives in excluding petitioner's
name from the Roll of Members. The Speaker is the
administrative head of the House of Representatives and
he exercises administrative powers and functions
attached to his office. As administrative officers, both the
Speaker and House Secretary-General perform
ministerial functions. It was their duty to remove
petitioner's name from the Roll considering the
unequivocal tenor of Section 67, Article IX, B.P. Blg.
881. When the Commission on Elections communicated
to the House of Representatives that petitioner had filed
his certificate of candidacy for regional governor of
Muslim Mindanao, respondents had no choice but to
abide by the clear and unmistakable legal effect of
Section 67, Article IX of B.P. Blg. 881. It was their
ministerial duty to do so. These officers cannot refuse to
perform their duty on the ground of an alleged invalidity
of the statute imposing the duty. The reason for this is
obvious. It might seriously hinder the transaction of
public business if these officers were to be permitted in
all cases to question the constitutionality of statutes and
ordinances imposing duties upon them and which have
not judicially been declared unconstitutional. Officers of
the government from the highest to the lowest are
creatures of the law and are bound to obey it.
In conclusion, We reiterate the basic concept that a
public office is a public trust. It is created for the interest
and benefit of the people. As such, the holder thereof is
subject to such regulations and conditions as the law
may impose and he cannot complain of any restrictions
which public policy may dictate on his office.
WHEREFORE, the instant petition is DISMISSED for
lack of merit.
SO ORDERED.
Narvasa, Cruz, Paras, Feleciano, Griño-Aquino,
Medialdea and Regalado, JJ., concur.
Fernan, C.J., took no part.
Separate Opinions
GUTIERREZ, JR., J., dissenting:
I am constrained to dissent from the majority opinion.
I believe that the Speaker and the Secretary of the
House of Representatives have no power, in purported
implementation of an invalid statute, to erase from the
Rolls of the House the name of a member duly elected
by his sovereign constituents to represent them in
Congress.
The rejection of the bid of the Honorable Mohammad Ali
Dimaporo to retain his seat in Congress may appear
logical, politically palatable, and and salutary to certain
quarters. But I submit that it is in cases like the present
petition where the Court should be vigilant in preventing
the erosion of fundamental concepts of the Constitution.
We must be particularly attentive to violations which are
cloaked in political respectability, seemingly defensible
or arguably beneficial and attractive in the short run.
It is a fundamental priciple in Constitutional Law that
Congress cannot add by statute or administrative act to
the causes for disqualification or removal of
constitutional officers. Neither can Congress provide a
different procedure for disciplining Constitution. This is a
true for the President and the members of Congress
itself. The causes and procedures for removal found in
the Constitution are not mere diciplinary measures. They
are intended to protect constitutional officers in the
unhampered and indepedent discharge of their
functions. It is for this reason that the court should
ensure that what the Constitution provides must be
followed.
The Constitutuion provides how the tenure of members
of Congress may be shortened:
A. Forefeiture of his seat by holding any other
office or employment in the government or any
subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations or subsidiaries (Art. VI, Section 13);
B. Expulsion as a disciplinary action for
disorderly behavior (Art. VI, Sec. 16[3]);
C. Disqualification as determined by resolution
of the Electoral Tribubal in an election contest
(Art. VI, Sec. 17);
D. Voluntary renunciation of office (Art. VI, Sec.
7, par. 2). (See Petition, p. 8)
The respondents would now add to the above
provisions, an enactment of the defunct Batasang
Pambansa promulgated long before the present
Constitution took effect. B.P. Blg. 881, Article IX, Section
67 provides:
Any elective official whether national or local
running for any office other than the one which
he is holding in a permanent capacity except for
President and Vice-President shall be
considered ipso facto resigned from his office
upon the filing of his certificate of candidacy.
(Petition, p. 8)
I take exception to the Solicitor General's stand that the
grounds for removal mentioned in the Constitution are
not exclusive. They are exclusive. The non-inclusion of
physical causes like death, being permanently comatose
on a hospital bed, or disappearance in the sinking of a
ship does not justify in the slightest an act of Congress
expelling one of its members for reasons other than
those found in the Constitution. Resignation is provided
for by the Constitution. It is voluntary renunciation. So is
naturalization in a foreign country or express
renunciation of Philippine citizenship. Conviction of a
crime carrying a penalty of disqualification is a
disqualification against running for public office. Whether
or not the conviction for such a crime while the
Congressman is in office may be a ground to expel him
from Congress is a matter which we cannot
decide obiter. We must await the proper case and
controversy. My point is — Congress cannot by statute
or disciplinary action add to the causes for
disqualification or removal of its members. Only the
Constitution can do it.
The citation of the precursors of B.P. 881 — namely,
Section 2 of Commonwealth Act No. 665, Section 27 of
Article II of Rep. Act No. 180, the 1971 Election Code,
and the 1978 Election Code — does not help the
respondents. On the contrary, they strengthen the case
of the petitioner.
It may be noted that all the earlier statutes about elective
officials being considered resigned upon the filing of a
certificate of candidacy refer to non-constitutional
officers. Congress has not only the power but also the
duty to prescribe causes for the removal of provincial,
city, and municipal officials. It has no such power when it
comes to constitutional officers.
It was not alone egoistic self-interest which led the
legislature during Commonwealth days or Congress in
the pre-martial law period to exclude their members from
the rule that the filing of a certificate of candidacy for
another office meant resignation from one's current
position. It was also a recognition that such a provision
could not be validly enacted by statute. It has to be in the
constitution.
Does running for another elective office constitute
voluntary renunciation of one's public office? In other
words, did the Speaker and the House Secretary
correctly interpret the meaning of "voluntary
renunciation" as found in the Constitution?
From 1935 when the Constitution was promulgated up to
1985 when B.P. 881 was enacted or for fifty long years,
the filing of a certificate of candidacy by a Senator or
member of the House was not voluntary renunciation of
his seat in Congress. I see no reason why the passage
of a statute by the Batasang Pambansa should suddenly
change the meaning and implications of the act of filing
and equate it with voluntary renunciation. "Voluntary"
refers to a state of the mind and in the context of
constitutional requirements should not be treated lightly.
It is true that intentions may be deduced from a person's
acts. I must stress, however, that for fifty years of
ourconstitutional history, running for a local government
position was not considered a voluntary renunciation.
Congressman Dimaporo is steeped in the traditions of
earlier years. He has been engaged in politics even
before some of his present colleagues in Congress were
born. Neither the respondents nor this Court can state
that he intended to renounce his seat in Congress when
he decided to run for Regional Governor. I submit that
we should not deny to him the privilege of an existing
interpretation of "voluntary renunciation" and wrongly
substitute the interpretation adopted by the respondents.
In interpreting the meaning of voluntary renunciation, the
Court should also be guided by the principle that all
presumptions should be in favor of representation.
As aptly stated by the petitioner:
We should not lose sight of the fact that what we
are dealing with here is not the mere right of the
petitioner to sit in the House of Representatives,
but more important, we are dealing with the
political right of the people of the Second
Legislative District of Lanao del Sur to
representation in Congress, as against their
disenfranchisement by mere 'administrative act'
of the respondents.
Such being the case, all presumptions should be strictly
in favor of representation and strictly against
disenfranchisement.
And if disenfranchisement should there be, the same
should only be by due process of law, both substantive
and procedural, and not by mere arbitrary, capricious,
and ultra vires, administrative act' of the respondents.
(Reply to Comment, p. 5)
The invocation of the principle of accountability found in
Article XI of the Constitution does not empower the
legislature to add to the grounds for dismissing its
members. When Congressman Dimaporo ran for
Regional Governor, he was not trifling with the mandate
of his people. He wanted to serve a greater number in
an autonomous, more direct, and intimate manner. He
claims (a mistaken claim according to the Commission
on Elections sustained by this Court) that he was
cheated of victory during the elections for regional
officers. He wants to continue serving his people. I fail to
see how the principle of accountability and faithfulness
to a trust could be applied to this specific cause of
Congressman Dimaporo.
For the Foregoing reasons, I VOTE to GRANT the
petition.
Padilla and Bidin, JJ., concur.
# Separate Opinions
GUTIERREZ, JR., J., dissenting:
I am constrained to dissent from the majority opinion.
I believe that the Speaker and the Secretary of the
House of Representatives have no power, in purported
implementation of an invalid statute, to erase from the
Rolls of the House the name of a member duly elected
by his sovereign constituents to represent them in
Congress.
The rejection of the bid of the Honorable Mohammad Ali
Dimaporo to retain his seat in Congress may appear
logical, politically palatable, and and salutary to certain
quarters. But I submit that it is in cases like the present
petition where the Court should be vigilant in preventing
the erosion of fundamental concepts of the Constitution.
We must be particularly attentive to violations which are
cloaked in political respectability, seemingly defensible
or arguably beneficial and attractive in the short run.
It is a fundamental priciple in Constitutional Law that
Congress cannot add by statute or administrative act to
the causes for disqualification or removal of
constitutional officers. Neither can Congress provide a
different procedure for disciplining Constitution. This is a
true for the President and the members of Congress
itself. The causes and procedures for removal found in
the Constitution are not mere diciplinary measures. They
are intended to protect constitutional officers in the
unhampered and indepedent discharge of their
functions. It is for this reason that the court should
ensure that what the Constitution provides must be
followed.
The Constitutuion provides how the tenure of members
of Congress may be shortened:
A. Forefeiture of his seat by holding any other
office or employment in the government or any
subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations or subsidiaries (Art. VI, Section 13);
B. Expulsion as a disciplinary action for
disorderly behavior (Art. VI, Sec. 16[3]);
C. Disqualification as determined by resolution
of the Electoral Tribubal in an election contest
(Art. VI, Sec. 17);
D. Voluntary renunciation of office (Art. VI, Sec.
7, par. 2). (See Petition, p. 8)
The respondents would now add to the above
provisions, an enactment of the defunct Batasang
Pambansa promulgated long before the present
Constitution took effect. B.P. Blg. 881, Article IX, Section
67 provides:
Any elective official whether national or local
running for any office other than the one which
he is holding in a permanent capacity except for
President and Vice-President shall be
considered ipso facto resigned from his office
upon the filing of his certificate of candidacy.
(Petition, p. 8)
I take exception to the Solicitor General's stand that the
grounds for removal mentioned in the Constitution are
not exclusive. They are exclusive. The non-inclusion of
physical causes like death, being permanently comatose
on a hospital bed, or disappearance in the sinking of a
ship does not justify in the slightest an act of Congress
expelling one of its members for reasons other than
those found in the Constitution. Resignation is provided
for by the Constitution. It is voluntary renunciation. So is
naturalization in a foreign country or express
renunciation of Philippine citizenship. Conviction of a
crime carrying a penalty of disqualification is a
disqualification against running for public office. Whether
or not the conviction for such a crime while the
Congressman is in office may be a ground to expel him
from Congress is a matter which we cannot
decide obiter. We must await the proper case and
controversy. My point is — Congress cannot by statute
or disciplinary action add to the causes for
disqualification or removal of its members. Only the
Constitution can do it.
The citation of the precursors of B.P. 881 — namely,
Section 2 of Commonwealth Act No. 665, Section 27 of
Article II of Rep. Act No. 180, the 1971 Election Code,
and the 1978 Election Code — does not help the
respondents. On the contrary, they strengthen the case
of the petitioner.
It may be noted that all the earlier statutes about elective
officials being considered resigned upon the filing of a
certificate of candidacy refer to non-constitutional
officers. Congress has not only the power but also the
duty to prescribe causes for the removal of provincial,
city, and municipal officials. It has no such power when it
comes to constitutional officers.
It was not alone egoistic self-interest which led the
legislature during Commonwealth days or Congress in
the pre-martial law period to exclude their members from
the rule that the filing of a certificate of candidacy for
another office meant resignation from one's current
position. It was also a recognition that such a provision
could not be validly enacted by statute. It has to be in the
constitution.
Does running for another elective office constitute
voluntary renunciation of one's public office? In other
words, did the Speaker and the House Secretary
correctly interpret the meaning of "voluntary
renunciation" as found in the Constitution?
From 1935 when the Constitution was promulgated up to
1985 when B.P. 881 was enacted or for fifty long years,
the filing of a certificate of candidacy by a Senator or
member of the House was not voluntary renunciation of
his seat in Congress. I see no reason why the passage
of a statute by the Batasang Pambansa should suddenly
change the meaning and implications of the act of filing
and equate it with voluntary renunciation. "Voluntary"
refers to a state of the mind and in the context of
constitutional requirements should not be treated lightly.
It is true that intentions may be deduced from a person's
acts. I must stress, however, that for fifty years of
ourconstitutional history, running for a local government
position was not considered a voluntary renunciation.
Congressman Dimaporo is steeped in the traditions of
earlier years. He has been engaged in politics even
before some of his present colleagues in Congress were
born. Neither the respondents nor this Court can state
that he intended to renounce his seat in Congress when
he decided to run for Regional Governor. I submit that
we should not deny to him the privilege of an existing
interpretation of "voluntary renunciation" and wrongly
substitute the interpretation adopted by the respondents.
In interpreting the meaning of voluntary renunciation, the
Court should also be guided by the principle that all
presumptions should be in favor of representation.
As aptly stated by the petitioner:
We should not lose sight of the fact that what we
are dealing with here is not the mere right of the
petitioner to sit in the House of Representatives,
but more important, we are dealing with the
political right of the people of the Second
Legislative District of Lanao del Sur to
representation in Congress, as against their
disenfranchisement by mere 'administrative act'
of the respondents.
Such being the case, all presumptions should be strictly
in favor of representation and strictly against
disenfranchisement.
And if disenfranchisement should there be, the same
should only be by due process of law, both substantive
and procedural, and not by mere arbitrary, capricious,
and ultra vires, administrative act' of the respondents.
(Reply to Comment, p. 5)
The invocation of the principle of accountability found in
Article XI of the Constitution does not empower the
legislature to add to the grounds for dismissing its
members. When Congressman Dimaporo ran for
Regional Governor, he was not trifling with the mandate
of his people. He wanted to serve a greater number in
an autonomous, more direct, and intimate manner. He
claims (a mistaken claim according to the Commission
on Elections sustained by this Court) that he was
cheated of victory during the elections for regional
officers. He wants to continue serving his people. I fail to
see how the principle of accountability and faithfulness
to a trust could be applied to this specific cause of
Congressman Dimaporo.
For the Foregoing reasons, I VOTE to GRANT the
petition.
Padilla and Bidin, JJ., concur.

EN BANC
G.R. No. 147387 December 10, 2003
RODOLFO C. FARIÑAS, MANUEL M. GARCIA,
FRANCIS G. ESCUDERO, and AGAPITO A. AQUINO,
AS MEMBERS OF THE HOUSE OF
REPRESENTATIVES AND ALSO AS TAXPAYERS, IN
THEIR OWN BEHALF AND IN REPRESENTATION OF
THE MEMBERS OF THE MINORITY IN THE HOUSE
OF REPRESENTATIVES, petitioners,
vs.
THE EXECUTIVE SECRETARY, COMMISSION ON
ELECTIONS, HON. FELICIANO R. BELMONTE, JR.,
SECRETARY OF THE INTERIOR AND LOCAL
GOVERNMENT, SECRETARY OF THE SENATE, AND
SECRETARY GENERAL OF THE HOUSE OF
REPRESENTATIVES, respondents.
x-----------------------x
G.R. No. 152161
CONG. GERRY A. SALAPUDDIN, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
CALLEJO, SR., J.:
Before the Court are two Petitions under Rule 65 of the
Rules of Court, as amended, seeking to declare as
unconstitutional Section 14 of Republic Act No. 9006
(The Fair Election Act), insofar as it expressly repeals
Section 67 of Batas Pambansa Blg. 881 (The Omnibus
Election Code) which provides:
SEC. 67. Candidates holding elective office. – Any
elective official, whether national or local, running for any
office other than the one which he is holding in a
permanent capacity, except for President and Vice-
President, shall be considered ipso facto resigned from
his office upon the filing of his certificate of candidacy.
The petition for certiorari and prohibition in G.R. No.
147387 was filed by Rodolfo C. Fariñas, Manuel M.
Garcia, Francis G. Escudero and Agapito A. Aquino. At
the time of filing of the petition, the petitioners were
members of the minority bloc in the House of
Representatives. Impleaded as respondents are: the
Executive Secretary, then Speaker of the House of
Representatives Feliciano R. Belmonte, Jr., the
Commission on Elections, the Secretary of the
Department of the Interior and Local Government
(DILG), the Secretary of the Senate and the Secretary
General of the House of Representatives.
The petition for prohibition in G.R. No. 152161 was filed
by Gerry A. Salapuddin, then also a member of the
House of Representatives. Impleaded as respondent is
the COMELEC.
Legislative History of Republic Act No. 9006
Rep. Act No. 9006, entitled "An Act to Enhance the
Holding of Free, Orderly, Honest, Peaceful and Credible
Elections through Fair Election Practices," is a
consolidation of the following bills originating from the
House of Representatives and the Senate, respectively:
House Bill (HB) No. 9000 entitled "AN ACT ALLOWING
THE USE OF MASS MEDIA FOR ELECTION
PROPAGANDA, AMENDING FOR THE PURPOSE
BATAS PAMBANSA BILANG 881, OTHERWISE
KNOWN AS THE ‘OMNIBUS ELECTION CODE,’ AS
1
AMENDED, AND FOR OTHER PURPOSES;"
…
Senate Bill (SB) No. 1742 entitled "AN ACT TO
ENHANCE THE HOLDING OF FREE, ORDERLY,
HONEST, PEACEFUL, AND CREDIBLE ELECTIONS
2
THROUGH FAIR ELECTION PRACTICES."
A Bicameral Conference Committee, composed of eight
3
members of the Senate and sixteen (16) members of
4
the House of Representatives, was formed to reconcile
the conflicting provisions of the House and Senate
versions of the bill.
On November 29, 2000, the Bicameral Conference
5
Committee submitted its Report, signed by its members,
recommending the approval of the bill as reconciled and
approved by the conferees.
During the plenary session of the House of
Representatives on February 5, 2001, Rep. Jacinto V.
Paras proposed an amendment to the Bicameral
Conference Committee Report. Rep. Didagen P.
Dilangalen raised a point of order commenting that the
House could no longer submit an amendment thereto.
Rep. Sergio A.F. Apostol thereupon moved that the
House return the report to the Bicameral Conference
Committee in view of the proposed amendment thereto.
Rep. Dilangalen expressed his objection to the proposal.
However, upon viva voce voting, the majority of the
House approved the return of the report to the Bicameral
6
Conference Committee for proper action.
In view of the proposed amendment, the House of
7
Representatives elected anew its conferees to the
8
Bicameral Conference Committee. Then again, for
unclear reasons, upon the motion of Rep. Ignacio R.
9
Bunye, the House elected another set of conferees to
10
the Bicameral Conference Committee.
On February 7, 2001, during the plenary session of the
House of Representatives, Rep. Bunye moved that the
House consider the Bicameral Conference Committee
Report on the contrasting provisions of HB No. 9000 and
SB No. 1742. Rep. Dilangalen observed that the report
had been recommitted to the Bicameral Conference
Committee. The Chair responded that the Bicameral
Conference Report was a new one, and was a result of
the reconvening of a new Bicameral Conference
Committee. Rep. Dilangalen then asked that he be given
time to examine the new report. Upon motion of Rep.
Apostol, the House deferred the approval of the report
11
until the other members were given a copy thereof.
After taking up other pending matters, the House
proceeded to vote on the Bicameral Conference
Committee Report on the disagreeing provisions of HB
No. 9000 and SB No. 1742. The House approved the
report with 125 affirmative votes, 3 negative votes and
no abstention. In explaining their negative votes, Reps.
Fariñas and Garcia expressed their belief that Section
14 thereof was a rider. Even Rep. Escudero, who voted
in the affirmative, expressed his doubts on the
constitutionality of Section 14. Prior to casting his vote,
Rep. Dilangalen observed that no senator signed the
Bicameral Conference Committee Report and asked if
12
this procedure was regular.
On the same day, the Senate likewise approved the
Bicameral Conference Committee Report on the
contrasting provisions of SB No. 1742 and HB No. 9000.
Thereafter, Rep. Act No. 9006 was duly signed by then
Senate President Aquilino Pimentel, Jr. and then
Speaker of the House of Representatives Feliciano R.
Belmonte, Jr. and was duly certified by the Secretary of
the Senate Lutgardo B. Barbo and the Secretary
General of the House of Representatives Robert P.
Nazareno as "the consolidation of House Bill No. 9000
and Senate Bill No. 1742," and "finally passed by both
Houses on February 7, 2001."
President Gloria Macapagal-Arroyo signed Rep. Act No.
9006 into law on February 12, 2001.
The Petitioners’ Case
The petitioners now come to the Court alleging in the
main that Section 14 of Rep. Act No. 9006, insofar as it
repeals Section 67 of the Omnibus Election Code, is
unconstitutional for being in violation of Section 26(1),
Article VI of the Constitution, requiring every law to have
only one subject which should be expressed in its title.
According to the petitioners, the inclusion of Section 14
repealing Section 67 of the Omnibus Election Code in
Rep. Act No. 9006 constitutes a proscribed rider. They
point out the dissimilarity in the subject matter of Rep.
Act No. 9006, on the one hand, and Section 67 of the
Omnibus Election Code, on the other. Rep. Act No. 9006
primarily deals with the lifting of the ban on the use of
media for election propaganda and the elimination of
unfair election practices, while Section 67 of the
Omnibus Election Code imposes a limitation on elective
officials who run for an office other than the one they are
holding in a permanent capacity by considering them as
ipso facto resigned therefrom upon filing of the certificate
of candidacy. The repeal of Section 67 of the Omnibus
Election Code is thus not embraced in the title, nor
germane to the subject matter of Rep. Act No. 9006.
The petitioners also assert that Section 14 of Rep. Act
No. 9006 violates the equal protection clause of the
Constitution because it repeals Section 67 only of the
Omnibus Election Code, leaving intact Section 66
thereof which imposes a similar limitation to appointive
officials, thus:
SEC. 66. Candidates holding appointive office or
position. – Any person holding a public appointive office
or position, including active members of the Armed
Forces of the Philippines, and officers and employees in
government-owned or controlled corporations, shall be
considered ipso facto resigned from his office upon the
filing of his certificate of candidacy.
They contend that Section 14 of Rep. Act No. 9006
discriminates against appointive officials. By the repeal
of Section 67, an elective official who runs for office
other than the one which he is holding is no longer
considered ipso facto resigned therefrom upon filing his
certificate of candidacy. Elective officials continue in
public office even as they campaign for reelection or
election for another elective position. On the other hand,
Section 66 has been retained; thus, the limitation on
appointive officials remains - they are still considered
ipso facto resigned from their offices upon the filing of
their certificates of candidacy.
The petitioners assert that Rep. Act No. 9006 is null and
void in its entirety as irregularities attended its enactment
into law. The law, not only Section 14 thereof, should be
declared null and void. Even Section 16 of the law which
provides that "[t]his Act shall take effect upon its
approval" is a violation of the due process clause of the
Constitution, as well as jurisprudence, which require
publication of the law before it becomes effective.
Finally, the petitioners maintain that Section 67 of the
Omnibus Election Code is a good law; hence, should not
have been repealed. The petitioners cited the ruling of
13
the Court in Dimaporo v. Mitra, Jr., that Section 67 of
the Omnibus Election Code is based on the
constitutional mandate on the "Accountability of Public
14
Officers:"
Sec. 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty and efficiency, act with patriotism and justice, and
lead modest lives.
Consequently, the respondents Speaker and Secretary
General of the House of Representatives acted with
grave abuse of discretion amounting to excess or lack of
jurisdiction for not considering those members of the
House who ran for a seat in the Senate during the May
14, 2001 elections as ipso facto resigned therefrom,
upon the filing of their respective certificates of
candidacy.
The Respondents’ Arguments
For their part, the respondents, through the Office of the
Solicitor General, urge this Court to dismiss the petitions
contending, preliminarily, that the petitioners have no
legal standing to institute the present suit. Except for the
fact that their negative votes were overruled by the
majority of the members of the House of
Representatives, the petitioners have not shown that
they have suffered harm as a result of the passage of
Rep. Act No. 9006. Neither do petitioners have any
interest as taxpayers since the assailed statute does not
involve the exercise by Congress of its taxing or
spending power.
Invoking the "enrolled bill" doctrine, the respondents
refute the petitioners’ allegations that "irregularities"
attended the enactment of Rep. Act No. 9006. The
signatures of the Senate President and the Speaker of
the House, appearing on the bill and the certification
signed by the respective Secretaries of both houses of
Congress, constitute proof beyond cavil that the bill was
duly enacted into law.
The respondents contend that Section 14 of Rep. Act
No. 9006, as it repeals Section 67 of the Omnibus
Election Code, is not a proscribed rider nor does it
violate Section 26(1) of Article VI of the Constitution. The
title of Rep. Act No. 9006, "An Act to Enhance the
Holding of Free, Orderly, Honest, Peaceful and Credible
Elections through Fair Election Practices," is so broad
that it encompasses all the processes involved in an
election exercise, including the filing of certificates of
candidacy by elective officials.
They argue that the repeal of Section 67 is germane to
the general subject of Rep. Act No. 9006 as expressed
in its title as it eliminates the effect of prematurely
terminating the term of an elective official by his filing of
a certificate of candidacy for an office other than the one
which he is permanently holding, such that he is no
longer considered ipso facto resigned therefrom. The
legislature, by including the repeal of Section 67 of the
Omnibus Election Code in Rep. Act No. 9006, has
deemed it fit to remove the "unfairness" of considering
an elective official ipso facto resigned from his office
upon the filing of his certificate of candidacy for another
elective office. With the repeal of Section 67, all elective
officials are now placed on equal footing as they are
allowed to finish their respective terms even if they run
for any office, whether the presidency, vice-presidency
or other elective positions, other than the one they are
holding in a permanent capacity.
The respondents assert that the repeal of Section 67 of
the Omnibus Election Code need not be expressly
stated in the title of Rep. Act No. 9006 as the legislature
is not required to make the title of the act a complete
index of its contents. It must be deemed sufficient that
the title be comprehensive enough reasonably to include
the general subject which the statute seeks to effect
without expressing each and every means necessary for
its accomplishment. Section 26(1) of Article VI of the
Constitution merely calls for all the parts of an act
relating to its subject to find expression in its title. Mere
details need not be set forth.
According to the respondents, Section 14 of Rep. Act
No. 9006, insofar as it repeals Section 67, leaving
Section 66 of the Omnibus Election Code intact and
effective, does not violate the equal protection clause of
the Constitution. Section 67 pertains to elective officials
while Section 66 pertains to appointive officials. A
substantial distinction exists between these two sets of
officials; elective officials occupy their office by virtue of
their mandate based upon the popular will, while the
appointive officials are not elected by popular will. The
latter cannot, therefore, be similarly treated as the
former. Equal protection simply requires that all persons
or things similarly situated are treated alike, both as to
rights conferred and responsibilities imposed.
Further, Section 16, or the "Effectivity" clause, of Rep.
Act No. 9006 does not run afoul of the due process
clause of the Constitution as it does not entail any
arbitrary deprivation of life, liberty and property.
Specifically, the section providing for penalties in cases
of violations thereof presume that the formalities of the
law would be observed, i.e., charges would first be filed,
and the accused would be entitled to a hearing before
judgment is rendered by a court having jurisdiction. In
any case, the issue about lack of due process is
premature as no one has, as yet, been charged with
violation of Rep. Act No. 9006.
Finally, the respondents submit that the respondents
Speaker and Secretary General of the House of
Representatives did not commit grave abuse of
discretion in not excluding from the Rolls those members
thereof who ran for the Senate during the May 14, 2001
elections. These respondents merely complied with Rep.
Act No. 9006, which enjoys the presumption of validity
until declared otherwise by the Court.
The Court’s Ruling
Before resolving the petitions on their merits, the Court
shall first rule on the procedural issue raised by the
respondents, i.e., whether the petitioners have the legal
standing or locus standi to file the petitions at bar.
The petitions were filed by the petitioners in their
capacities as members of the House of Representatives,
and as taxpayers and registered voters.
Generally, a party who impugns the validity of a statute
must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct
15
injury as a result of its enforcement. The rationale for
requiring a party who challenges the constitutionality of a
statute to allege such a personal stake in the outcome of
the controversy is "to assure that concrete adverseness
which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult
16
constitutional questions."
However, being merely a matter of procedure, this Court,
in several cases involving issues of "overarching
17
significance to our society," had adopted a liberal
stance on standing. Thus, in Tatad v. Secretary of the
18
Department of Energy, this Court brushed aside the
procedural requirement of standing, took cognizance of,
and subsequently granted, the petitions separately filed
by then Senator Francisco Tatad and several members
of the House of Representatives assailing the
constitutionality of Rep. Act No. 8180 (An Act
Deregulating the Downstream Oil Industry and For Other
Purposes).
The Court likewise took cognizance of the petition filed
by then members of the House of Representatives which
impugned as unconstitutional the validity of a provision
of Rep. Act No. 6734 (Organic Act for the Autonomous
Region in Muslim Mindanao) in Chiongbian v.
19
Orbos. Similarly, the Court took cognizance of the
petition filed by then members of the Senate, joined by
other petitioners, which challenged the validity of Rep.
Act No. 7716 (Expanded Value Added Tax Law) in
Tolentino v. Secretary of Finance.
20
Members of Congress, such as the petitioners, were
likewise allowed by this Court to challenge the validity of
acts, decisions, rulings, or orders of various government
agencies or instrumentalities in Del Mar v. Philippine
21
Amusement and Gaming Corporation, Kilosbayan, Inc.
22
v. Guingona, Jr., Philippine Constitution Association v.
23 24
Enriquez, Albano v. Reyes, and Bagatsing v.
Committee on Privatization.
25
Certainly, the principal issue posed by the petitions, i.e.,
whether Section 67 of the Omnibus Election Code,
26
which this Court had declared in Dimaporo as deriving
its existence from the constitutional provision on
accountability of public officers, has been validly
repealed by Section 14 of Rep. Act No. 9006, is one of
"overarching significance" that justifies this Court’s
adoption of a liberal stance vis-à-vis the procedural
matter on standing. Moreover, with the national elections
barely seven months away, it behooves the Court to
confront the issue now and resolve the same forthrightly.
The following pronouncement of the Court is quite
apropos:
... All await the decision of this Court on the
constitutional question. Considering, therefore, the
importance which the instant case has assumed and to
prevent multiplicity of suits, strong reasons of public
policy demand that [its] constitutionality . . . be now
resolved. It may likewise be added that the exceptional
character of the situation that confronts us, the
paramount public interest, and the undeniable necessity
for a ruling, the national elections beings barely six
27
months away, reinforce our stand.
28
Every statute is presumed valid. The presumption is
that the legislature intended to enact a valid, sensible
and just law and one which operates no further than may
be necessary to effectuate the specific purpose of the
29
law.
It is equally well-established, however, that the courts,
as guardians of the Constitution, have the inherent
authority to determine whether a statute enacted by the
legislature transcends the limit imposed by the
30
fundamental law. And where the acts of the other
branches of government run afoul of the Constitution, it
is the judiciary’s solemn and sacred duty to nullify the
31
same.
Proceeding from these guideposts, the Court shall now
resolve the substantial issues raised by the petitions.
32
Section 14 of Rep. Act No. 9006 Is Not a Rider
At the core of the controversy is Section 14, the
repealing clause of Rep. Act No. 9006, which provides:
Sec. 14. Sections 67 and 85 of the Omnibus Election
Code (Batas Pambansa Blg. 881) and Sections 10 and
11 of Republic Act No. 6646 are hereby repealed. As a
consequence, the first proviso in the third paragraph of
Section 11 of Republic Act No. 8436 is rendered
ineffective. All laws, presidential decrees, executive
orders, rules and regulations, or any part thereof
inconsistent with the provisions of this Act are hereby
repealed or modified or amended accordingly.
The repealed provision, Section 67 of the Omnibus
Election Code, quoted earlier, reads:
SEC. 67. Candidates holding elective office. – Any
elective official, whether national or local, running for any
office other than the one which he is holding in a
permanent capacity, except for President and Vice-
President, shall be considered ipso facto resigned from
his office upon the filing of his certificate of candidacy.
Section 26(1), Article VI of the Constitution provides:
SEC. 26 (1). Every bill passed by the Congress shall
embrace only one subject which shall be expressed in
the title thereof.
The proscription is aimed against the evils of the so-
called omnibus bills and log-rolling legislation as well as
surreptitious and/or unconsidered encroaches. The
provision merely calls for all parts of an act relating to its
33
subject finding expression in its title.
To determine whether there has been compliance with
the constitutional requirement that the subject of an act
shall be expressed in its title, the Court laid down the
rule that –
Constitutional provisions relating to the subject matter
and titles of statutes should not be so narrowly
construed as to cripple or impede the power of
legislation. The requirement that the subject of an act
shall be expressed in its title should receive a
reasonable and not a technical construction. It is
sufficient if the title be comprehensive enough
reasonably to include the general object which a statute
seeks to effect, without expressing each and every end
and means necessary or convenient for the
accomplishing of that object. Mere details need not be
set forth. The title need not be an abstract or index of the
34
Act.
The title of Rep. Act No. 9006 reads: "An Act to Enhance
the Holding of Free, Orderly, Honest, Peaceful and
Credible Elections through Fair Election Practices."
Section 2 of the law provides not only the declaration of
principles but also the objectives thereof:
Sec. 2. Declaration of Principles. – The State shall,
during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for
the operation of media of communication or information
to guarantee or ensure equal opportunity for public
service, including access to media time and space, and
the equitable right to reply, for public information
campaigns and fora among candidates and assure free,
orderly, honest, peaceful and credible elections.
The State shall ensure that bona fide candidates for any
public office shall be free from any form of harassment
and discrimination.
35
The Court is convinced that the title and the objectives of
Rep. Act No. 9006 are comprehensive enough to include
the repeal of Section 67 of the Omnibus Election Code
within its contemplation. To require that the said repeal
of Section 67 of the Code be expressed in the title is to
36
insist that the title be a complete index of its content.
The purported dissimilarity of Section 67 of the Omnibus
Election Code, which imposes a limitation on elective
officials who run for an office other than the one they are
holding, to the other provisions of Rep. Act No. 9006,
which deal with the lifting of the ban on the use of media
for election propaganda, does not violate the "one
subject-one title" rule. This Court has held that an act
having a single general subject, indicated in the title,
may contain any number of provisions, no matter how
diverse they may be, so long as they are not inconsistent
with or foreign to the general subject, and may be
considered in furtherance of such subject by providing
for the method and means of carrying out the general
37
subject.
The deliberations of the Bicameral Conference
Committee on the particular matter are particularly
instructive:
SEN. LEGARDA-LEVISTE:
Yes, Mr. Chairman, I just wanted to clarify.
So all we’re looking for now is an appropriate title to
make it broader so that it would cover this provision
[referring to the repeal of Section 67 of the Omnibus
Election Code], is that correct? That’s all. Because I
believe ...
THE CHAIRMAN (REP. SYJUCO):
We are looking for an appropriate coverage which will
result in the nomenclature or title.
SEN. LEGARDA-LEVISTE:
Because I really do not believe that it is out of place. I
think that even with the term "fair election practice," it
really covers it, because as expressed by Senator Roco,
those conditions inserted earlier seemed unfair and it is
an election practice and, therefore, I think, I’m very
comfortable with the title "Fair Election Practice" so that
we can get over with these things so that we don’t come
back again until we find the title. I mean, it’s one
provision which I think is fair for everybody. It may seem
like a limitation but this limitation actually provides for
fairness in election practices as the title implies.
THE CHAIRMAN (REP. SYJUCO):
Yes.
SEN. LEGARDA-LEVISTE:
So I would want to beg the House contingent, let’s get it
over with. To me, ha, it’s not a very touchy issue. For
me, it’s even a very correct provision. I feel very
comfortable with it and it was voted in the Senate, at
least, so I would like to appeal to the ... para matapos
na, then we come back as a Bicam just for the title Is
that what you’re ...?
THE CHAIRMAN (REP. SYJUCO): THE CHAIRMAN (SEN. ROCO):

It’s not the title per se, it’s the coverage. So if you will Also, Then we say - - on the short title of the Act, we say
just kindly bear with us. I’m happy that there is already ...
one comfortable senator there among ... several of us
were also comfortable with it. But it would be well that REP. MARCOS:
when we rise from this Bicam that we’re all comfortable
with it. What if we say fair election practices? Maybe that should
be changed...
THE CHAIRMAN (SEN. ROCO):
THE CHAIRMAN (SEN. ROCO):
Yes. Anyway, let’s listen to Congressman Marcos.
O, sige, fine, fine. Let’s a brainstorm. Equal...
REP. MARCOS:
REP. PADILLA:
Mr. Chairman, may I just make the observation
that although it is true that the bulk of provisions deals
Mr. Chairman, why don’t we use "An Act rationalizing the
with the area of propaganda and political advertising, the
holding of free, orderly, honest, peaceful and credible
complete title is actually one that indulge full coverage. It
elections, amending for the purpose Batasang
says "An Act to enhance the holding of free, orderly,
Pambansa known as the Omnibus Election Code?"
honest ... elections through fair election practices." But
as you said, we will put that aside to discuss later one.
THE CHAIRMAN (SEN. ROCO):
Secondly, I think the Declaration of Principles contained
in Section 2, paragraph 2 is perfectly adequate in that it Why don’t we remove "fair" and then this shall be cited
says that it shall ensure candidates for public office that as Election Practices Act?"
may be free from any form of harassment and
discrimination. REP. PICHAY:

Surely this provision in Section 67 of the old Election That’s not an election practice. That’s a limitation.
Code of the existing Omnibus Election Code is a form of
harassment or discrimination. And so I think that in the THE CHAIRMAN (SEN. ROCO):
effort at leveling the playing field, we can cover this and
it should not be considered a rider. Ah - - - ayaw mo iyong practice. O, give me another
noun.
SEN. LEGARDA-LEVISTE:
REP. MARCOS:
I agree, Mr. Chairman. I think the Congresswoman from
Ilocos had very clearly put it, that it is covered in the The Fair Election.
Declaration of Principles and in the objective of this bill.
And therefore, I hope that the House contingent would
THE CHAIRMAN (SEN. ROCO):
agree to this so that we can finish it now. And it
expressly provides for fair election practices because ...
O, Fair Election Act.
THE CHAIRMAN (SEN. ROCO):
REP. MACARAMBON:
Yeah, I think what is on the table is that we are not
disputing this, but we are looking for a title that is more Nagbi-brainstorm tayo dito, eh. How about if we change
generic so that then we have less of an objection on the title to enhance the holding of free, orderly, honest,
constitutionality. I think that’s the theory. So, there is peaceful and ensure equal opportunity for public service
acceptance of this. through fair election practices?

Maybe we should not call it na limitation on elected REP. PICHAY:

officials. Maybe we should say the special provision on
elected officials. So how is that? Alam mo ito ... Fair election practices?

REP. MARCOS: REP. MACARAMBON:

I think we just change the Section 1, the short title.

Yeah. To ensure equal opportunity for public service The full title, the same?
through fair ...
THE CHAIRMAN (SEN. ROCO):
THE CHAIRMAN (SEN. ROCO):
Iyon na nga. The full title is "An Act to enhance the
Wala nang practices nga. holding ..." That’s the House version, eh, dahil pareho,
hindi ba? Then the short title "This Act shall be known as
38
REP. PICHAY: the Fair Election Act."

Wala nang practices. The legislators considered Section 67 of the Omnibus

Election Code as a form of harassment or discrimination
THE CHAIRMAN (SEN. ROCO): that had to be done away with and repealed. The
executive department found cause with Congress when
the President of the Philippines signed the measure into
It shall be cited as Fair Election Act. law. For sure, some sectors of society and in
government may believe that the repeal of Section 67 is
(Informal discussions) bad policy as it would encourage political adventurism.
But policy matters are not the concern of the Court.
REP. PICHAY: Government policy is within the exclusive dominion of
39
the political branches of the government. It is not for
Approve na iyan. this Court to look into the wisdom or propriety of
legislative determination. Indeed, whether an enactment
is wise or unwise, whether it is based on sound
THE CHAIRMAN (SEN. ROCO):
economic theory, whether it is the best means to achieve
the desired results, whether, in short, the legislative
Done. So, okay na iyon. The title will be "Fair Election discretion within its prescribed limits should be exercised
Act." in a particular manner are matters for the judgment of
the legislature, and the serious conflict of opinions does
The rest wala nang problema ano? not suffice to bring them within the range of judicial
40
cognizance. Congress is not precluded from repealing
VOICES: Section 67 by the ruling of the Court in Dimaporo v.
41
Mitra upholding the validity of the provision and by its
Wala na. pronouncement in the same case that the provision has
a laudable purpose. Over time, Congress may find it
imperative to repeal the law on its belief that the election
REP. MACARAMBON: process is thereby enhanced and the paramount
objective of election laws – the fair, honest and orderly
Wala na iyong practices? election of truly deserving members of Congress – is
achieved.
THE CHAIRMAN (SEN. ROCO):
Moreover, the avowed purpose of the constitutional
Wala na, wala na. Mahina tayo sa practice, eh. directive that the subject of a bill should be embraced in
its title is to apprise the legislators of the purposes, the
O, wala na? We will clean up. nature and scope of its provisions, and prevent the
enactment into law of matters which have not received
the notice, action and study of the legislators and the
REP. MARCOS: 42
public. In this case, it cannot be claimed that the
legislators were not apprised of the repeal of Section 67
Title? of the Omnibus Election Code as the same was amply
and comprehensively deliberated upon by the members
THE CHAIRMAN (SEN. ROCO): of the House. In fact, the petitioners, as members of the
House of Representatives, expressed their reservations
The short title, "This Act ..." regarding its validity prior to casting their votes.
Undoubtedly, the legislators were aware of the existence
THE CHAIRMAN (REP. SYJUCO): of the provision repealing Section 67 of the Omnibus
Election Code.
You’re back to your No. 21 already.
Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
REP. MARCOS: 43
Protection Clause of the Constitution
The petitioners’ contention, that the repeal of Section 67
of the Omnibus Election Code pertaining to elective
officials gives undue benefit to such officials as against
the appointive ones and violates the equal protection
clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution
is not absolute, but is subject to reasonable
classification. If the groupings are characterized by
substantial distinctions that make real differences, one
class may be treated and regulated differently from the
44
other. The Court has explained the nature of the equal
protection guarantee in this manner:
The equal protection of the law clause is against undue
favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not
intended to prohibit legislation which is limited either in
the object to which it is directed or by territory within
which it is to operate. It does not demand absolute
equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances
and conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is not
infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike
to all persons within such class, and reasonable grounds
exist for making a distinction between those who fall
within such class and those who do not.
45
Substantial distinctions clearly exist between elective
officials and appointive officials. The former occupy their
office by virtue of the mandate of the electorate. They
are elected to an office for a definite term and may be
46
removed therefrom only upon stringent conditions. On
the other hand, appointive officials hold their office by
virtue of their designation thereto by an appointing
authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of
47
tenure while others serve at the pleasure of the
48
appointing authority.
Another substantial distinction between the two sets of
officials is that under Section 55, Chapter 8, Title I,
Subsection A. Civil Service Commission, Book V of the
Administrative Code of 1987 (Executive Order No. 292),
appointive officials, as officers and employees in the civil
service, are strictly prohibited from engaging in any
partisan political activity or take part in any election
except to vote. Under the same provision, elective
officials, or officers or employees holding political offices,
are obviously expressly allowed to take part in political
49
and electoral activities.
By repealing Section 67 but retaining Section 66 of the
Omnibus Election Code, the legislators deemed it proper
to treat these two classes of officials differently with
respect to the effect on their tenure in the office of the
filing of the certificates of candidacy for any position
other than those occupied by them. Again, it is not within
the power of the Court to pass upon or look into the
wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act
No. 9006, i.e., elected officials vis-a-vis appointive
officials, is anchored upon material and significant
distinctions and all the persons belonging under the
same classification are similarly treated, the equal
protection clause of the Constitution is, thus, not
infringed.
The Enrolled Bill Doctrine
Is Applicable In this Case
Not content with their plea for the nullification of Section
14 of Rep. Act No. 9006, the petitioners insist that the
entire law should be nullified. They contend that
irregularities attended the passage of the said law
particularly in the House of Representatives catalogued
thus:
a. Creation of two (2) sets of BCC (Bicameral
Conference Committee) members by the House
during its session on February 5, 2001;
b. No communication from the Senate for a
conference on the compromise bill submitted by
the BCC on November 29, 2000;
c. The new Report submitted by the 2nd/3rd
BCC was presented for approval on the floor
without copies thereof being furnished the
members;
d. The 2nd/3rd BCC has no record of its
proceedings, and the Report submitted by it was
not signed by the Chairman (Sen. Roco) thereof
as well as its senator-members at the time it was
presented to and rammed for approval by the
House;
e. There was no meeting actually conducted by
the 2nd/3rd BCC and that its alleged Report was
instantly made and passed around for the
signature of the BCC members;
f. The Senate has no record of the creation of a
2nd BCC but only of the first one that convened
on November 23, 2000;
g. The "Effectivity" clauses of SB No. 1741 and
HB No. 9000, as well as that of the compromise
bill submitted by the BCC that convened on
November 20, 2000, were couched in terms that
comply with the publication required by the Civil
Code and jurisprudence, to wit:
...
However, it was surreptitiously replaced in its final form
as it appears in § 16, R.A. No. 9006, with the provision
that "This Act shall take effect immediately upon its
approval;"
h. The copy of the compromise bill submitted by
the 2nd/3rd BCC that was furnished the
members during its consideration on February 7,
2001, did not have the same § 16 as it now
appears in RA No. 9006, but § 16 of the
compromise bill, HB 9000 and SB 1742, reasons
for which no objection thereto was made;
i. The alleged BCC Report presented to the
House on February 7, 2001, did not "contain a
detailed, sufficiently explicit statement of the
changes in or amendments to the subject
measure;" and
j. The disappearance of the "Cayetano
amendment," which is Section 12 of the
compromise bill submitted by the BCC. In fact,
this was the subject of the purported proposed
amendment to the compromise bill of Member
Paras as stated in paragraph 7 hereof. The said
provision states, thusly:
Sec. 12. Limitation on Elected Officials. – Any elected
official who runs for president and vice-president shall be
considered ipso facto resigned from his office upon the
50
filing of the certificate of candidacy.
The petitioners, thus, urge the Court to go behind the
enrolled copy of the bill. The Court is not persuaded.
Under the "enrolled bill doctrine," the signing of a bill by
the Speaker of the House and the Senate President and
the certification of the Secretaries of both Houses of
Congress that it was passed are conclusive of its due
51
enactment. A review of cases reveals the Court’s
consistent adherence to the rule. The Court finds no
reason to deviate from the salutary rule in this case
where the irregularities alleged by the petitioners mostly
involved the internal rules of Congress, e.g., creation of
the 2nd or 3rd Bicameral Conference Committee by the
House. This Court is not the proper forum for the
enforcement of these internal rules of Congress, whether
House or Senate. Parliamentary rules are merely
procedural and with their observance the courts have no
52
concern. Whatever doubts there may be as to the
formal validity of Rep. Act No. 9006 must be resolved in
its favor. The Court reiterates its ruling in Arroyo v. De
53
Venecia, viz.:
But the cases, both here and abroad, in varying forms of
expression, all deny to the courts the power to inquire
into allegations that, in enacting a law, a House of
Congress failed to comply with its own rules, in the
absence of showing that there was a violation of a
constitutional provision or the rights of private
individuals. In Osmeña v. Pendatun, it was held: "At any
rate, courts have declared that ‘the rules adopted by
deliberative bodies are subject to revocation,
modification or waiver at the pleasure of the body
adopting them.’ And it has been said that ‘Parliamentary
rules are merely procedural, and with their observance,
the courts have no concern. They may be waived or
disregarded by the legislative body.’ Consequently,
‘mere failure to conform to parliamentary usage will not
invalidate the action (taken by a deliberative body) when
the requisite number of members have agreed to a
particular measure.’"
The Effectivity Clause
Is Defective
Finally, the "Effectivity" clause (Section 16) of Rep. Act
No. 9006 which provides that it "shall take effect
immediately upon its approval," is defective. However,
the same does not render the entire law invalid. In
54
Tañada v. Tuvera, this Court laid down the rule:
... the clause "unless it is otherwise provided" refers to
the date of effectivity and not to the requirement of
publication itself, which cannot in any event be omitted.
This clause does not mean that the legislator may make
the law effective immediately upon approval, or on any
other date without its previous publication.
Publication is indispensable in every case, but the
legislature may in its discretion provide that the usual
55
fifteen-period shall be shortened or extended….
56
Following Article 2 of the Civil Code and the doctrine
enunciated in Tañada, Rep. Act No. 9006,
notwithstanding its express statement, took effect fifteen
days after its publication in the Official Gazette or a
newspaper of general circulation.
In conclusion, it bears reiterating that one of the firmly
entrenched principles in constitutional law is that the
courts do not involve themselves with nor delve into the
policy or wisdom of a statute. That is the exclusive
concern of the legislative branch of the government.
When the validity of a statute is challenged on
constitutional grounds, the sole function of the court is to
determine whether it transcends constitutional limitations
57
or the limits of legislative power. No such transgression
has been shown in this case.
WHEREFORE, the petitions are DISMISSED. No
pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio-Morales, Azcuna, and Tinga,
JJ., concur.

EN BANC
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
1
Petition for Disqualification 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
2 3 4
Bates, Danilo D. Maglasang, Cesar A. Laurente; (b)
Joint Affidavit of Agripino C. Alferez and Rogelio T.
5
Salvera; (c) Extract Records from the Police Blotter
executed by Police Superintendent Elson G.
6
Pecho; and (d) Photographs showing government dump
trucks, haulers and surfacers and portions of public
roads allegedly filled-in and surfaced through the
7
intercession of the respondent. 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
8
Regional Director of Region VIII. 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
9
Regional Election Director for investigation.
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
10
the COMELEC Second Division. 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
11
thereto.
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
12
receipt was attached to the pleading. The records,
however, do not show the date the petitioner received
the motion.
On the same day, May 18, 2001, the COMELEC
13
Second Division issued an Ex-Parte Order 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
14
of the allegations in the petition for disqualification." 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
15
the Office of the Clerk of the Commission. As a result,
petitioner was not proclaimed as winner even though the
final election results showed that he garnered 71,350
16
votes as against respondent Locsin's 53,447 votes.
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
17
own instance. 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.
18
Borinaga; (b) Copy of the Excerpt from the Minutes of
19
the Regular Session of Barangay Monterico; (c)
20
Affidavit of Wilfredo A. Fiel; (d) Supplemental Affidavit
21
of Wilfredo A. Fiel; and (e) Affidavit of Arnel Y.
22
Padayao.
On May 25, 2001, petitioner filed a Motion to Lift Order
23
of Suspension, 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
24
his Motion.
On May 30, 2001, an oral argument was conducted on
the petitioner's Motion and the parties were ordered to
25
submit their respective memoranda. On June 4, 2001,
26
petitioner submitted his Memorandum 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, 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
27
Senior Inspector Benjamin T. Gorre; (b) Certification
28
issued by Elena S. Aviles, City Budget Officer; (c)
Copy of certification issued by Wilfredo A. Fiel, City
29
Engineer of Ormoc; (d) Joint Affidavit of Antonio
30
Patenio and Pepito Restituto; and (e) Affidavits of
31 32
Demetrio Brion, Igmedio Rita and Gerardo
33
Monteza. Respondent Locsin's memorandum also
34
contained additional affidavits of his witnesses.
Petitioner's Motion to Lift the Order of Suspension,
however, was not resolved. Instead, on June 14, 2001,
the COMELEC Second Division promulgated its
35
Resolution 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
36
in Cebu City in the afternoon of the following day.
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
37
said office." 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
38
Reconsideration from the June 14, 2001 Resolution
of the COMELEC Second Division which ordered his
disqualification, as well as an Addendum to the Motion
39
for Reconsideration. 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
40
Reconsideration.
On June 21, 2001, petitioner filed with the COMELEC en
banc a Petition for Declaration of Nullity of
41
Proclamation, 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
42
Manifestation 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
43
additional witnesses which he claims would refute and
substantially belie the allegations of
petitioner's/intervenor's witnesses. A
44 45
Reply, Rejoinder and Sur-Rejoinder were
46
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
47
filed by petitioner Codilla. Commissioners Florentino A.
Tuason, Jr. and Resurreccion Z. Borra submitted their
48
respective dissenting opinions 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
49
electorate's will. x x x."
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
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
Eufrocino M. Codilla, Sr., and to
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 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
50
vote."
The aforequoted judgment was adopted in a "Vote of
Adoption" signed by Commissioners Ralph C. Lantion,
51
Resurreccion Z. Borra and Florentino A. Tuason, Jr.
Respondent Locsin did not appeal from this
decision annulling her proclamation. Instead, she
52
filed a "Comment and Manifestation" 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
53
Members of the House. Relying 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
54
position.
On September 6, 2001, the COMELEC en banc issued
55
an Order 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
56
cast in the district. On the same day, petitioner took his
oath of office before Executive Judge Fortunito L.
57
Madrona of the Regional Trial Court of Ormoc City.
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
58
Leyte. Petitioner also served notice that "I am
assuming the duties and responsibilities as
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
59
Memorandum 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
60
resolution on September 20, 2001, no action was taken
by the House on the letter-appeal of petitioner. Hence,
petitioner sought the assistance of his party, LAKAS-
61
NUCD-UMDP, which sent a letter 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."
62
In response, Speaker De Venecia sent a letter 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
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 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.
63
In his Comment, 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.
64
In his Comment, 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
65
compliance with the opinions 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.
66
Respondent Locsin, in her Comment, 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.
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
67
the petition was filed late."
68
In his Reply, 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
69
section 242 of B.P. Blg. 881 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
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.
70
COMELEC Resolution Nos. 3402 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;
2.e having violated any of Sections 80,
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
71
summons. 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.
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
72
attached to prove such service. 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.
73
6646 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
74
mere scrap of paper. It cannot be acted upon by the
COMELEC Second Division.
75
On May 18, 2001 at exactly 5:00 p.m., 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
76
mail. A registry receipt 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
nd
Commission (2 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 suspend
the proclamation of respondent, if winning, until
77
further orders." (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
78
sides." (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
79
proclamation. He urged the COMELEC Second
Division to conduct a full dress hearing on the main
80
disqualification case should the suspension be lifted.
(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
81
choice. Codilla was disqualified."
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
82
which he was charged.
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
83
cast their votes for said respondent."
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
84
the property owned by the Codilla family.
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
85
unloaded by the white trucks.
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
86
and gravel to whoever requests from Mayor Codilla."
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)
87
congressman during election." 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
88 89
Randy T. Merin, Alfredo C. De la Peña, Miguel P.
90
Pandac, Paquito Bregeldo, Cristeta Alferez , Glicerio
91 92 93
Rios, Romulo Alkuino, Sr., Abner Casas, Rita
94 95
Trangia, and Judith Erispe attached to respondent
Locsin's Memorandum on the Motion to Lift the
Suspension of Proclamation.
96
Also valueless are the affidavits of other witnesses 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:
(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
97
jurisdiction. 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
98
afternoon of June 15, 2001 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 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
99
resides. 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
100
government.
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)
101
In this wise, COMELEC Resolution No. 4116, 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.
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
102
is disqualified. 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
103 104
place. In Domino v. COMELEC, 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
107
of Trinidad v. COMELEC, 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;
(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
108
yet to become final and executory." 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
109
section 17 of Article VI of the 1987 Constitution.
We reject respondent's contention.
(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.
110
In Puzon vs. Cua, 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
111
the Philippines. 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
Representative
of the 4th legislative district of Leyte vice respondent
Locsin.
Under Rule 65, section 3 of the 1997 Rules of Civil
Procedure, any person may file a verified petition for
mandamus "when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right
or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary
112
course of law." 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
113
exercise of official discretion or judgment.
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 the rule of law except
the reign of chaos and confusion.
IN VIEW WHEREOF, the Petition for Mandamus is
granted. Public Speaker of the House of
Representatives shall administer the oath of petitioner
EUFROCINO M. CODILLA, SR., as the duly-elected
Representative of the 4th legislative district of Leyte.
Public respondent Secretary-General shall likewise
register the name of the petitioner in the Roll of
Members of the House of Representatives after he has
taken his oath of office. This decision shall be
immediately executory.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Vitug, Mendoza,
Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr., and Azcuna, JJ., concur.
Carpio, J., no part.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-34150 October 16, 1971
ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF
ACCOUNTANT, THE AUDITOR, and THE
DISBURSING OFFICER OF THE 1971
CONSTITUTIONAL CONVENTION, respondents, RAUL
S. MANGLAPUS, JESUS G. BARRERA, PABLO S.
TRILLANA III, VICTOR DE LA SERNA, MARCELO B.
FERNAN, JOSE Y. FERIA, LEONARDO SIGUION
REYNA, VICTOR F. ORTEGA, and JUAN V.
BORRA, Intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant
and Auditor of the 1971 Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L.
Echivarre for respondent Disbursing Officer of the 1971
Constitutional Convention.
Intervenors in their own behalf.
BARREDO, J.:
Petition for prohibition principally to restrain the
respondent Commission on Elections "from undertaking
to hold a plebiscite on November 8, 1971," at which the
proposed constitutional amendment "reducing the voting
age" in Section 1 of Article V of the Constitution of the
Philippines to eighteen years "shall be, submitted" for
ratification by the people pursuant to Organic Resolution
No. 1 of the Constitutional Convention of 1971, and the
subsequent implementing resolutions, by declaring said
resolutions to be without the force and effect of law in so
far as they direct the holding of such plebiscite and by
also declaring the acts of the respondent Commission
(COMELEC) performed and to be done by it in
obedience to the aforesaid Convention resolutions to be
null and void, for being violative of the Constitution of the
Philippines.
As a preliminary step, since the petition named as
respondent only the COMELEC, the Count required that
copies thereof be served on the Solicitor General and
the Constitutional Convention, through its President, for
such action as they may deem proper to take. In due
time, respondent COMELEC filed its answer joining
issues with petitioner. To further put things in proper
order, and considering that the fiscal officers of the
Convention are indispensable parties in a proceeding of
this nature, since the acts sought to be enjoined involve
the expenditure of funds appropriated by law for the
Convention, the Court also ordered that the Disbursing
Officer, Chief Accountant and Auditor of the Convention
be made respondents. After the petition was so
amended, the first appeared thru Senator Emmanuel
Pelaez and the last two thru Delegate Ramon Gonzales.
All said respondents, thru counsel, resist petitioner's
action.
For reasons of orderliness and to avoid unnecessary
duplication of arguments and even possible confusion,
and considering that with the principal parties being duly
represented by able counsel, their interests would be After the election of the delegates held on November 10,
adequately protected already, the Court had to limit the 1970, the Convention held its inaugural session on June
number of intervenors from the ranks of the delegates to 1, 1971. Its preliminary labors of election of officers,
the Convention who, more or less, have legal interest in organization of committees and other preparatory works
the success of the respondents, and so, only Delegates over, as its first formal proposal to amend the
Raul S. Manglapus, Jesus G. Barrera, Pablo S. Trillana Constitution, its session which began on September 27,
III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, 1971, or more accurately, at about 3:30 in the morning of
Leonardo Siguion Reyna, Victor Ortega and Juan B. September 28, 1971, the Convention approved Organic
Borra, all distinguished lawyers in their own right, have Resolution No. 1 reading thus: .
been allowed to intervene jointly. The Court feels that
with such an array of brilliant and dedicated counsel, all CC ORGANIC RESOLUTION NO. 1
interests involved should be duly and amply represented
and protected. At any rate, notwithstanding that their
A RESOLUTION AMENDING SECTION
corresponding motions for leave to intervene or to ONE OF ARTICLE V OF THE
appear as amicus curiae 1 have been denied, the CONSTITUTION OF THE PHILIPPINES
pleadings filed by the other delegates and some private
SO AS TO LOWER THE VOTING AGE
parties, the latter in representation of their minor children
TO 18
allegedly to be affected by the result of this case with the
records and the Court acknowledges that they have not
been without value as materials in the extensive study BE IT RESOLVED as it is hereby
that has been undertaken in this case. resolved by the 1971 Constitutional
Convention:
The background facts are beyond dispute. The
Constitutional Convention of 1971 came into being by Section 1. Section One of Article V of
virtue of two resolutions of the Congress of the the Constitution of the Philippines is
Philippines approved in its capacity as a constituent amended to as follows:
assembly convened for the purpose of calling a
convention to propose amendments to the Constitution Section 1. Suffrage may
namely, Resolutions 2 and 4 of the joint sessions of be exercised by (male)
Congress held on March 16, 1967 and June 17, 1969 citizens of the
respectively. The delegates to the said Convention were Philippines not
all elected under and by virtue of said resolutions and otherwise disqualified
the implementing legislation thereof, Republic Act 6132. by law, who are (twenty-
The pertinent portions of Resolution No 2 read as one) EIGHTEEN years
follows: or over and are able to
read and write, and who
SECTION 1. There is hereby called a shall have resided in the
convention to propose amendments to Philippines for one year
the Constitution of the Philippines, to be and in the municipality
composed of two elective Delegates wherein they propose to
from each representative district who vote for at least six
shall have the same qualifications as months preceding the
those required of Members of the House election.
of Representatives.
Section 2. This amendment shall be
xxx xxx xxx valid as part of the Constitution of the
Philippines when approved by a majority
of the votes cast in a plebiscite to
SECTION 7. The amendments
coincide with the local elections in
proposed by the Convention shall be
November 1971.
valid and considered part of the
Constitution when approved by a
majority of the votes cast in an election Section 3. This partial amendment,
at which they are submitted to the which refers only to the age qualification
people for their ratification pursuant to for the exercise of suffrage shall be
Article XV of the Constitution. without prejudice to other amendments
that will be proposed in the future by the
1971 Constitutional Convention on other
Resolution No. 4 merely modified the number of
portions of the amended Section or on
delegates to represent the different cities and provinces
other portions of the entire Constitution.
fixed originally in Resolution No 2.
 Section 4. The Convention hereby
authorizes the use of the sum of
P75,000.00 from its savings or from its
unexpended funds for the expense of
the advanced plebiscite; provided,
however that should there be no savings
or unexpended sums, the Delegates
waive P250.00 each or the equivalent of
2-1/2 days per diem.

By a letter dated September 28, 1971, President

Diosdado Macapagal, called upon respondent Comelec
"to help the Convention implement (the above)
resolution." The said letter reads:

September 28, 1971

The Commission on Elections Manila

Thru the Chairman

Gentlemen:

Last night the Constitutional Convention

passed Resolution No. 1 quoted as
follows:

xxx xxx xxx

(see above)

Pursuant to the provision of Section 14,

Republic Act No. 6132 otherwise known
as the Constitutional Convention Act of
1971, may we call upon you to help the
Convention implement this resolution:

Sincerely,
On September 30, 1971, COMELEC "RESOLVED to
inform the Constitutional
( Convention that it will hold the
plebiscite on condition
S that:
g
d
(a) The Constitutional Convention will
.
undertake the printing of separate
)
official ballots, election returns and tally
sheets for the use of said plebiscite at
D expense;
its
I
O The Constitutional Convention will
(b)
S
adopt its own security measures for the
D
printing and shipment of said ballots and
A
election forms; and
D
O
(c) Said official ballots and election
forms will be delivered to the
P
Commission in time so that they could
.
be distributed at the same time that the
Commission will distribute its official and
M
A
 sample ballots to be used in the
elections on November 8, 1971.
What happened afterwards may best be stated by
quoting from intervenors' Governors' statement of the
genesis of the above proposal:
The President of the Convention also
issued an order forming an Ad Hoc
Committee to implement the Resolution.
This Committee issued implementing
guidelines which were approved by the
President who then transmitted them to
the Commission on Elections.
The Committee on Plebiscite and
Ratification filed a report on the
progress of the implementation of the
plebiscite in the afternoon of October
7,1971, enclosing copies of the order,
resolution and letters of transmittal
above referred to (Copy of the report is
hereto attached as Annex 8-
Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of
October 7, 1971, the Convention
approved a resolution authored by
Delegate Antonio Olmedo of Davao
Oriental, calling for a recess of the
Convention from November 1, 1971 to
November 9, 1971 to permit the
delegates to campaign for the
ratification of Organic Resolution No. 1.
(Copies of the resolution and the
transcript of debate thereon are hereto
attached as Annexes 9 and 9-A
Memorandum, respectively).
RESOLUTION CONFIRMING
IMPLEMENTATION
On October 12, 1971, the Convention
passed Resolution No. 24 submitted by
Delegate Jose Ozamiz confirming the
authority of the President of the
Convention to implement Organic
Resolution No. 1, including the creation
of the Ad Hoc Committee ratifying all
acts performed in connection with said
implementation.
Upon these facts, the main thrust of the petition is that
Organic Resolution No. 1 and the other implementing
resolutions thereof subsequently approved by the
Convention have no force and effect as laws in so far as
they provide for the holding of a plebiscite co-incident
with the elections of eight senators and all city, provincial
and municipal officials to be held on November 8, 1971,
hence all of Comelec's acts in obedience thereof and
tending to carry out the holding of the plebiscite directed
by said resolutions are null and void, on the ground that
the calling and holding of such a plebiscite is, by the
Constitution, a power lodged exclusively in Congress, as
a legislative body, and may not be exercised by the
Convention, and that, under Section 1, Article XV of the
Constitution, the proposed amendment in question
cannot be presented to the people for ratification
separately from each and all of the other amendments to
be drafted and proposed by the Convention. On the
other hand, respondents and intervenors posit that the
power to provide for, fix the date and lay down the
details of the plebiscite for the ratification of any
amendment the Convention may deem proper to
propose is within the authority of the Convention as a
necessary consequence and part of its power to propose
amendments and that this power includes that of
submitting such amendments either individually or jointly
at such time and manner as the Convention may direct
in discretion. The Court's delicate task now is to decide
which of these two poses is really in accord with the
letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors
raise the question of jurisdiction. They contend that the
issue before Us is a political question and that the
Convention being legislative body of the highest order is
sovereign, and as such, its acts impugned by petitioner
are beyond the control of the Congress and the courts.
In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact,
respondents Chief Accountant and Auditor of the
convention expressly concede the jurisdiction of this
Court in their answer acknowledging that the issue
herein is a justifiable one.
Strangely, intervenors cite in support of this contention
portions of the decision of this Court in the case of
Gonzales v. Comelec, 21 SCRA 774, wherein the
members of the Court, despite their being divided in their
opinions as to the other matters therein involved, were
precisely unanimous in upholding its jurisdiction.
Obviously, distinguished counsel have either failed to
grasp the full impact of the portions of Our decision they
have quoted or would misapply them by taking them out
of context.
There should be no more doubt as to the position of this
Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a
constituent assembly, and, for that matter, those of a
constitutional convention called for the purpose of
proposing amendments to the Constitution, which
concededly is at par with the former. A simple reading of
Our ruling in that very case of Gonzales relied upon by
intervenors should dispel any lingering misgivings as
regards that point. Succinctly but comprehensively, Chief
Justice Concepcion held for the Court thus: .
As early as Angara vs. Electoral
Commission (63 Phil. 139, 157), this
Court — speaking through one of the
leading members of the Constitutional
Convention and a respected professor
of Constitutional Law, Dr. Jose P. Laurel
— declared that "the judicial department
is the only constitutional organ which
can be called upon to determine the
proper allocation of powers between the
several departments and among the
integral or constituent units thereof."
It is true that in Mabanag v. Lopez
Vito (supra), this Court characterizing
the issue submitted thereto as a political
one declined to pass upon the question
whether or not a given number of votes
cast in Congress in favor of a proposed
amendment to the Constitution — which
was being submitted to the people for
ratification — satisfied the three-fourths
vote requirement of the fundamental
law. The force of this precedent has
been weakened, however, by Suanes v.
Chief Accountant of the Senate (81 Phil.
818), Avelino v. Cuenco, (L-2851, March
4 & 14, 1949), Tañada v. Cuenco, (L-
10520, Feb. 28, 1957) and Macias v.
Commission on Elections, (L-18684,
Sept. 14, 1961). In the first we held that
the officers and employees of the
Senate Electoral Tribunal are under its
supervision and control, not of that of
the Senate President, as claimed by the
latter; in the second, this Court
proceeded to determine the number of
Senators necessary for quorum in the
Senate; in the third, we nullified the
election, by Senators belonging to the
party having the largest number of votes
in said chamber, purporting to act, on
behalf of the party having the second
largest number of votes therein of two
(2) Senators belonging to the first party,
as members, for the second party, of the
Senate Electoral Tribunal; and in the
fourth, we declared unconstitutional an
act of Congress purporting to apportion
the representatives districts for the
House of Representatives, upon the
ground that the apportionment had not
been made as may be possible
according to the number of inhabitants
of each province. Thus we rejected the
theory, advanced in these four (4) cases
that the issues therein raised were
political questions the determination of
which is beyond judicial review.
Indeed, the power to amend the
Constitution or to propose amendments
thereto is not included in the general
grant of legislative powers to Congress
(Section 1, Art. VI, Constitution of the
Philippines). It is part of the inherent
powers of the people — as the
repository sovereignty in a republican
state, such as ours (Section 1, Art. 11,
Constitution of the Philippines) — to
make, and, hence, to amend their own
Fundamental Law. Congress may
propose amendments to the
Constitution merely because the same
explicitly grants such power. (Section 1,
Art. XV, Constitution of the Philippines)
Hence, when exercising the same, it is
said that Senators and members of the
House of Representatives act, not as
members of Congress, but as
component elements of a constituent
assembly. When acting as such, the
members of Congress derive their
authority from the Constitution, unlike
the people, when performing the same
function, (Of amending the Constitution)
for their authority does not emanate
from the Constitution — they are the
very source of all powers of
government including the Constitution
itself.
Since, when proposing, as a constituent
assembly, amendments to the
Constitution, the members of Congress
derive their authority from the
Fundamental Law, it follows,
necessarily, that they do not have the
final say on whether or not their acts are
within or beyond constitutional limits.
Otherwise, they could brush aside and
set the same at naught, contrary to the
basic tenet that ours is a government of
laws, not of men, and to the rigid nature
of our Constitution. Such rigidity is
stressed by the fact that the Constitution
expressly confers upon the Supreme
Court, (And, inferentially, to lower
courts.) the power to declare a treaty
unconstitutional. (Sec. 2(1), Art. VIII of
the Constitution), despite the eminently
political character of treaty-making
power.
In short, the issue whether or not a
Resolution of Congress — acting as a
constituent assembly — violates the
Constitution is essentially justiciable not
political, and, hence, subject to judicial
review, and, to the extent that this view
may be inconsistent with the stand
taken in Mabanag v. Lopez Vito, (supra)
the latter should be deemed modified
 accordingly. The Members of the Court
are unanimous on this point.
No one can rightly claim that within the domain of its
legitimate authority, the Convention is not supreme.
Nowhere in his petition and in his oral argument and
memoranda does petitioner point otherwise. Actually,
what respondents and intervenors are seemingly
reluctant to admit is that the Constitutional Convention of
1971, as any other convention of the same nature, owes
its existence and derives all its authority and power from
the existing Constitution of the Philippines. This
Convention has not been called by the people directly as
in the case of a revolutionary convention which drafts the
first Constitution of an entirely new government born of
either a war of liberation from a mother country or of a
revolution against an existing government or of a
bloodless seizure of power a la coup d'etat. As to such
kind of conventions, it is absolutely true that the
convention is completely without restrain and omnipotent
all wise, and it is as to such conventions that the
remarks of Delegate Manuel Roxas of the Constitutional
Convention of 1934 quoted by Senator Pelaez refer. No
amount of rationalization can belie the fact that the
current convention came into being only because it was
called by a resolution of a joint session of Congress
acting as a constituent assembly by authority of Section
1, Article XV of the present Constitution which provides:
ARTICLE XV — AMENDMENTS
SECTION 1. The Congress in joint
session assembled, by a vote of three-
fourths of all the Members of the Senate
and of the House of Representatives
voting separately, may propose
amendments to this Constitution or call
a convention for the purpose. Such
amendments shall be valid as part of
this Constitution when approved by a
majority of the votes cast at an election
at which the amendments are submitted
to the people for their ratification.
True it is that once convened, this Convention became
endowed with extra ordinary powers generally beyond
the control of any department of the existing
government, but the compass of such powers can be co-
extensive only with the purpose for which the convention
was called and as it may propose cannot have any effect
as part of the Constitution until the same are duly ratified
by the people, it necessarily follows that the acts of
convention, its officers and members are not immune
from attack on constitutional grounds. The present
Constitution is in full force and effect in its entirety and in
everyone of its parts the existence of the Convention
notwithstanding, and operates even within the walls of
that assembly. While it is indubitable that in its internal
operation and the performance of its task to propose
amendments to the Constitution it is not subject to any
degree of restraint or control by any other authority than
itself, it is equally beyond cavil that neither the
Convention nor any of its officers or members can
rightfully deprive any person of life, liberty or property
without due process of law, deny to anyone in this
country the equal protection of the laws or the freedom
of speech and of the press in disregard of the Bill of
Rights of the existing Constitution. Nor, for that matter,
can such Convention validly pass any resolution
providing for the taking of private property without just
compensation or for the imposition or exacting of any
tax, impost or assessment, or declare war or call the
Congress to a special session, suspend the privilege of
the writ of habeas corpus, pardon a convict or render
judgment in a controversy between private individuals or
between such individuals and the state, in violation of
the distribution of powers in the Constitution.
It being manifest that there are powers which the
Convention may not and cannot validly assert, much
less exercise, in the light of the existing Constitution, the
simple question arises, should an act of the Convention
be assailed by a citizen as being among those not
granted to or inherent in it, according to the existing
Constitution, who can decide whether such a contention
is correct or not? It is of the very essence of the rule of
law that somehow somewhere the Power and duty to
resolve such a grave constitutional question must be
lodged on some authority, or we would have to confess
that the integrated system of government established by
our founding fathers contains a wide vacuum no
intelligent man could ignore, which is naturally unworthy
of their learning, experience and craftsmanship in
constitution-making.
We need not go far in search for the answer to the query
We have posed. The very decision of Chief Justice
Concepcion in Gonzales, so much invoked by
intervenors, reiterates and reinforces the irrefutable logic
and wealth of principle in the opinion written for a
unanimous Court by Justice Laurel in Angara vs.
Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has
blocked out with deft strokes and in bold
lines, allotment of power to the
executive, the legislative and the judicial
departments of the government. The
overlapping and interlacing of functions
and duties between the several
departments, however, sometimes
makes it hard to say where the one
leaves off and the other begins. In times
of social disquietude or political
excitement, the great landmark of the
Constitution are apt to be forgotten or
marred, if not entirely obliterated. In
cases of conflict, the judicial department
is the only constitutional organ which
can be called upon to determine the
proper allocation of powers between the
several departments and among the
integral or constituent units thereof.
As any human production our
Constitution is of course lacking
perfection and perfectibility, but as much
as it was within the power of our people,
acting through their delegates to so
provide, that instrument which is the
expression of their sovereignty however
limited, has established a republican
government intended to operate and
function as a harmonious whole, under
a system of check and balances and
subject to specific limitations and
restrictions provided in the said
instrument. The Constitution sets forth in
no uncertain language the restrictions
and limitations upon governmental
powers and agencies. If these
restrictions and limitations are
transcended it would be inconceivable if
the Constitution had not provided for a
mechanism by which to direct the
course of government along
constitutional channels, for then the
distribution of powers would be mere
verbiage, the bill of rights mere
expressions of sentiment and the
principles of good government mere
political apothegms. Certainly the
limitations and restrictions embodied in
our Constitution are real as they should
be in any living Constitution. In the
United States where no express
constitutional grant is found in their
constitution, the possession of this
moderating power of the courts, not to
speak of its historical origin and
development there, has been set at rest
by popular acquiescence for a period of
more than one and half centuries. In our
case, this moderating power is granted,
if not expressly, by clear implication
from section 2 of Article VIII of our
Constitution.
The Constitution is a definition of the
powers or government. Who is to
determine the nature, scope and extent
of such powers? The Constitution itself
has provided for the instrumentality of
the judiciary as the rational way. And
when the judiciary mediates to allocate
constitutional boundaries, it does not
assert any superiority over the other
departments; it does not in reality nullify
or invalidate an act of the legislature, but
only asserts the solemn and sacred
obligation assigned to it by the
Constitution to determine conflicting
claims of authority under the
Constitution and to establish for the
parties in an actual controversy the
rights which that instrument secures and
guarantees to them. This is in truth all
that is involved in what is termed
"judicial supremacy" which properly is
the power of judicial review under the
Constitution. Even then, this power of
judicial review is limited to actual cases
and controversies to be exercised after
full opportunity of argument by the
parties, and limited further to the
constitutional question raised or the
very lis mota presented. Any attempt at
abstraction could only lead to dialectics
and barren legal questions and to strike
conclusions unrelated to actualities.
Narrowed as its functions is in this
manner the judiciary does not pass
upon questions of wisdom, justice or
expediency of legislation. More than
that, courts accord the presumption of
constitutionality to legislative
enactments, not only because the
legislature is presumed to abide by the
Constitution but also because the
judiciary in the determination of actual
cases and controversies must reflect the
wisdom and justice of the people as
expressed through their representatives
in the executive and legislative
departments of the government.
But much as we might postulate on the
internal checks of power provided in our
Constitution, it ought not the less to be
remembered that, in the language of
James Madison, the system itself is not
"the chief palladium of constitutional
liberty ... the people who are authors of
this blessing must also be its guardians
... their eyes must be ever ready to
mark, their voices to pronounce ...
aggression on the authority of their
Constitution." In the last and ultimate
analysis then, must the success of our
government in the unfolding years to
come be tested in the crucible of Filipino
minds and hearts than in consultation
rooms and court chambers.
In the case at bar, the National
Assembly has by resolution (No. 8) of
December 3, 1935, confirmed the
election of the herein petitioner to the
said body. On the other hand, the
Electoral Commission has by resolution
adopted on December 9, 1935, fixed
said date as the last day for the filing of
protests against the election, returns
and qualifications of members of the
National Assembly; notwithstanding the
previous confirmations made by the
National Assembly as aforesaid. If, as
contended by the petitioner, the
resolution of the National Assembly has
the effect of cutting off the power of the
Electoral Commission to entertain
protests against the election, returns
and qualifications of members of the
National Assembly, submitted after
December 3, 1935 then the resolution of
the Electoral Commission of December
9, 1935, is mere surplusage and had no
effect. But, if, as contended by the
respondents, the Electoral Commission
has the sole power of regulating its
proceedings to the exclusion of the
National Assembly, then the resolution
of December 9, 1935, by which the
Electoral Commission fixed said date as
the last day for filing protests against the
election, returns and qualifications of
members of the National Assembly,
should be upheld.
Here is then presented an actual
controversy involving as it does a
conflict of a grave constitutional nature
between the National Assembly on the
one hand and the Electoral Commission
on the other. From the very nature of the
republican government established in
our country in the light of American
experience and of our own, upon the
judicial department is thrown the solemn
and inescapable obligation of
interpreting the Constitution and defining
constitutional boundaries. The Electoral
Commission as we shall have occasion
to refer hereafter, is a constitutional
organ, created for a specific purpose,
namely, to determine all contests
relating to the election, returns and
qualifications of the members of the
National Assembly. Although the
Electoral Commission may not be
interfered with, when and while acting
within the limits of its authority, it does
not follow that it is beyond the reach of
the constitutional mechanism adopted
by the people and that it is not subject to
constitutional restriction. The Electoral
Commission is not a separate
department of the government, and
even if it were, conflicting claims of
authority under the fundamental law
between departmental powers and
agencies of the government are
necessarily determined by the judiciary
in justiciable and appropriate cases.
Discarding the English type and other
European types of constitutional
government, the framers of our
Constitution adopted the American type
where the written constitution is
interpreted and given effect by the
judicial department. In some countries
which have declined to follow the
American example, provisions have
been inserted in their constitutions
prohibiting the courts from exercising
the power to interpret the fundamental
law. This is taken as a recognition of
what otherwise would be the rule that in
the absence of direct prohibition, courts
are bound to assume what is logically
their function. For instance, the
Constitution of Poland of 1921 expressly
provides that courts shall have no power
to examine the validity of statutes (art.
81, Chap. IV). The former Austrian
Constitution contained a similar
declaration. In countries whose
constitution are silent in this respect,
courts have assumed this power. This is
true in Norway, Greece, Australia and
South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3,
Preliminary Law to Constitutional
Charter of the Czechoslavak, Republic,
February 29, 1920) and Spain (arts.
121-123, Title IX, Constitution of the
Republic of 1931) especial constitutional
courts are established to pass upon the
validity of ordinary laws. In our case, the
nature of the present controversy shows
the necessity of a final constitutional
arbiter to determine the conflict of
authority between two agencies created
by the Constitution. Were we to decline
to take cognizance of the controversy,
who will determine the conflict? And if
the conflict were left undecided and
undetermined, would not a void be thus
created in our constitutional system
which may in the long run prove
destructive of the entire framework? To
ask these questions is to answer
them. Natura vacuum abhorret, so must
we avoid exhaustion in our constitutional
system. Upon principle, reason, and
authority, we are clearly of the opinion
that upon the admitted facts of the
present case, this court has jurisdiction
over the Electoral Commission and the
subject matter of the present
controversy for the purpose of
determining the character, scope and
extent of the constitutional grant to the
Electoral Commission as "the sole judge
of all contests relating to the election,
returns and qualifications of the
members of the National Assembly." .
As the Chief Justice has made it clear in Gonzales, like
Justice Laurel did in Angara, these postulates just
quoted do not apply only to conflicts of authority between
the three existing regular departments of the government
but to all such conflicts between and among these
departments, or, between any of them, on the one hand,
and any other constitutionally created independent body,
like the electoral tribunals in Congress, the Comelec and
the Constituent assemblies constituted by the House of
Congress, on the other. We see no reason of logic or
principle whatsoever, and none has been convincingly
shown to Us by any of the respondents and intervenors,
why the same ruling should not apply to the present
Convention, even if it is an assembly of delegate elected
directly by the people, since at best, as already
demonstrated, it has been convened by authority of and
under the terms of the present Constitution..
Accordingly, We are left with no alternative but to uphold
the jurisdiction of the Court over the present case. It
goes without saying that We do this not because the
Court is superior to the Convention or that the
Convention is subject to the control of the Court, but
simply because both the Convention and the Court are
subject to the Constitution and the rule of law, and "upon
principle, reason and authority," per Justice Laurel,
supra, it is within the power as it is the solemn duty of
the Court, under the existing Constitution to resolve the
issues in which petitioner, respondents and intervenors
have joined in this case.
II
The issue of jurisdiction thus resolved, We come to the
crux of the petition. Is it within the powers of the
Constitutional Convention of 1971 to order, on its own
fiat, the holding of a plebiscite for the ratification of the
proposed amendment reducing to eighteen years the
age for the exercise of suffrage under Section 1 of
Article V of the Constitution proposed in the
Convention's Organic Resolution No. 1 in the manner
and form provided for in said resolution and the
subsequent implementing acts and resolution of the
Convention?
At the threshold, the environmental circumstances of this
case demand the most accurate and unequivocal
statement of the real issue which the Court is called
upon to resolve. Petitioner has very clearly stated that he
is not against the constitutional extension of the right of
suffrage to the eighteen-year-olds, as a matter of fact, he
has advocated or sponsored in Congress such a
proposal, and that, in truth, the herein petition is not
intended by him to prevent that the proposed
amendment here involved be submitted to the people for
ratification, his only purpose in filing the petition being to
comply with his sworn duty to prevent, Whenever he
can, any violation of the Constitution of the Philippines
even if it is committed in the course of or in connection
with the most laudable undertaking. Indeed, as the Court
sees it, the specific question raised in this case is limited
solely and only to the point of whether or not it is within
the power of the Convention to call for a plebiscite for
the ratification by the people of the constitutional
amendment proposed in the abovequoted Organic
Resolution No. 1, in the manner and form provided in
said resolution as well as in the subject question
implementing actions and resolution of the Convention
and its officers, at this juncture of its proceedings, when
as it is a matter of common knowledge and judicial
notice, it is not set to adjourn sine die, and is, in fact, still
in the preliminary stages of considering other reforms or
amendments affecting other parts of the existing
Constitution; and, indeed, Organic Resolution No. 1 itself
expressly provides, that the amendment therein
proposed "shall be without prejudice to other
amendments that will be proposed in the future by the
1971 Constitutional Convention on other portions of the
amended section or on other portions of the entire
Constitution." In other words, nothing that the Court may
say or do, in this case should be understood as
reflecting, in any degree or means the individual or
collective stand of the members of the Court on the
fundamental issue of whether or not the eighteen-year-
olds should be allowed to vote, simply because that
issue is not before Us now. There should be no doubt in
the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its
part so that the said proposed amendment may be
presented to the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the
fire and enthusiasm of the youth have not blinded them
to the absolute necessity, under the fundamental
principles of democracy to which the Filipino people is
committed, of adhering always to the rule of law. Surely,
their idealism, sincerity and purity of purpose cannot
permit any other line of conduct or approach in respect
of the problem before Us. The Constitutional Convention
of 1971 itself was born, in a great measure, because of
the pressure brought to bear upon the Congress of the
Philippines by various elements of the people, the youth
in particular, in their incessant search for a peaceful and
orderly means of bringing about meaningful changes in
the structure and bases of the existing social and
governmental institutions, including the provisions of the
fundamental law related to the well-being and economic
security of the underprivileged classes of our people as
well as those concerning the preservation and protection
of our natural resources and the national patrimony, as
an alternative to violent and chaotic ways of achieving
such lofty ideals. In brief, leaving aside the excesses of
enthusiasm which at times have justifiably or
unjustifiably marred the demonstrations in the streets,
plazas and campuses, the youth of the Philippines, in
general, like the rest of the people, do not want
confusion and disorder, anarchy and violence; what they
really want are law and order, peace and orderliness,
even in the pursuit of what they strongly and urgently
feel must be done to change the present order of things
in this Republic of ours. It would be tragic and contrary to
the plain compulsion of these perspectives, if the Court
were to allow itself in deciding this case to be carried
astray by considerations other than the imperatives of
the rule of law and of the applicable provisions of the
Constitution. Needless to say, in a larger measure than
when it binds other departments of the government or
any other official or entity, the Constitution imposes upon
the Court the sacred duty to give meaning and vigor to
the Constitution, by interpreting and construing its
provisions in appropriate cases with the proper parties,
and by striking down any act violative thereof. Here, as
in all other cases, We are resolved to discharge that
duty.
During these twice when most anyone feels very
strongly the urgent need for constitutional reforms, to the
point of being convinced that meaningful change is the
only alternative to a violent revolution, this Court would
be the last to put any obstruction or impediment to the
work of the Constitutional Convention. If there are
respectable sectors opining that it has not been called to
supplant the existing Constitution in its entirety, since its
enabling provision, Article XV, from which the
Convention itself draws life expressly speaks only of
amendments which shall form part of it, which opinion is
not without persuasive force both in principle and in
logic, the seemingly prevailing view is that only the
collective judgment of its members as to what is
warranted by the present condition of things, as they see
it, can limit the extent of the constitutional innovations
the Convention may propose, hence the complete
substitution of the existing constitution is not beyond the
ambit of the Convention's authority. Desirable as it may
be to resolve, this grave divergence of views, the Court
does not consider this case to be properly the one in
which it should discharge its constitutional duty in such
premises. The issues raised by petitioner, even those
among them in which respondents and intervenors have
joined in an apparent wish to have them squarely
passed upon by the Court do not necessarily impose
upon Us the imperative obligation to express Our views
thereon. The Court considers it to be of the utmost
importance that the Convention should be untrammelled
and unrestrained in the performance of its
constitutionally as signed mission in the manner and
form it may conceive best, and so the Court may step in
to clear up doubts as to the boundaries set down by the
Constitution only when and to the specific extent only
that it would be necessary to do so to avoid a
constitutional crisis or a clearly demonstrable violation of
the existing Charter. Withal, it is a very familiar principle
of constitutional law that constitutional questions are to
be resolved by the Supreme Court only when there is no
alternative but to do it, and this rule is founded precisely
on the principle of respect that the Court must accord to
the acts of the other coordinate departments of the
government, and certainly, the Constitutional Convention
stands almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have
already made it clear that the Convention came into
being by a call of a joint session of Congress pursuant to
Section I of Article XV of the Constitution, already quoted
earlier in this opinion. We reiterate also that as to
matters not related to its internal operation and the
performance of its assigned mission to propose
amendments to the Constitution, the Convention and its
officers and members are all subject to all the provisions
of the existing Constitution. Now We hold that even as to
its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section I of
Article XV. This must be so, because it is plain to Us that
the framers of the Constitution took care that the process
of amending the same should not be undertaken with the
same ease and facility in changing an ordinary
legislation. Constitution making is the most valued
power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have
chosen for this nation, and which we of the succeeding
generations generally cherish. And because the
Constitution affects the lives, fortunes, future and every
other conceivable aspect of the lives of all the people
within the country and those subject to its sovereignty,
every degree of care is taken in preparing and drafting it.
A constitution worthy of the people for which it is
intended must not be prepared in haste without
adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is
of no less importance than the whole Constitution itself,
and perforce must be conceived and prepared with as
much care and deliberation. From the very nature of
things, the drafters of an original constitution, as already
observed earlier, operate without any limitations,
restraints or inhibitions save those that they may impose
upon themselves. This is not necessarily true of
subsequent conventions called to amend the original
constitution. Generally, the framers of the latter see to it
that their handiwork is not lightly treated and as easily
mutilated or changed, not only for reasons purely
personal but more importantly, because written
constitutions are supposed to be designed so as to last
for some time, if not for ages, or for, at least, as long as
they can be adopted to the needs and exigencies of the
people, hence, they must be insulated against
precipitate and hasty actions motivated by more or less
passing political moods or fancies. Thus, as a rule, the
original constitutions carry with them limitations and
conditions, more or less stringent, made so by the
people themselves, in regard to the process of their
amendment. And when such limitations or conditions are
so incorporated in the original constitution, it does not lie
in the delegates of any subsequent convention to claim
that they may ignore and disregard such conditions
because they are as powerful and omnipotent as their
original counterparts.
Nothing of what is here said is to be understood as
curtailing in any degree the number and nature and the
scope and extent of the amendments the Convention
may deem proper to propose. Nor does the Court
propose to pass on the issue extensively and brilliantly
discussed by the parties as to whether or not the power
or duty to call a plebiscite for the ratification of the
amendments to be proposed by the Convention is
exclusively legislative and as such may be exercised
only by the Congress or whether the said power can be
exercised concurrently by the Convention with the
Congress. In the view the Court takes of present case, it
does not perceive absolute necessity to resolve that
question, grave and important as it may be. Truth to tell,
the lack of unanimity or even of a consensus among the
members of the Court in respect to this issue creates the
need for more study and deliberation, and as time is of
the essence in this case, for obvious reasons, November
8, 1971, the date set by the Convention for the plebiscite
it is calling, being nigh, We will refrain from making any
pronouncement or expressing Our views on this
question until a more appropriate case comes to Us.
After all, the basis of this decision is as important and
decisive as any can be.
The ultimate question, therefore boils down to this: Is
there any limitation or condition in Section 1 of Article XV
of the Constitution which is violated by the act of the
Convention of calling for a plebiscite on the sole
amendment contained in Organic Resolution No. 1? The
Court holds that there is, and it is the condition and
limitation that all the amendments to be proposed by the
same Convention must be submitted to the people in a
single "election" or plebiscite. It being indisputable that
the amendment now proposed to be submitted to a
plebiscite is only the first amendment the Convention
propose We hold that the plebiscite being called for the
purpose of submitting the same for ratification of the
people on November 8, 1971 is not authorized by
Section 1 of Article XV of the Constitution, hence all acts
of the Convention and the respondent Comelec in that
direction are null and void.
We have arrived at this conclusion for the following
reasons:
1. The language of the constitutional provision
aforequoted is sufficiently clear. lt says distinctly that
either Congress sitting as a constituent assembly or a
convention called for the purpose "may propose
amendments to this Constitution," thus placing no limit
as to the number of amendments that Congress or the
Convention may propose. The same provision also as
definitely provides that "such amendments shall be valid
as part of this Constitution when approved by a majority
of the votes cast at an election at which
the amendments are submitted to the people for their
ratification," thus leaving no room for doubt as to how
many "elections" or plebiscites may be held to ratify any
amendment or amendments proposed by the same
constituent assembly of Congress or convention, and the
provision unequivocably says "an election" which means
only one.
(2) Very little reflection is needed for anyone to realize
the wisdom and appropriateness of this provision. As
already stated, amending the Constitution is as serious
and important an undertaking as constitution making
itself. Indeed, any amendment of the Constitution is as
important as the whole of it if only because the
Constitution has to be an integrated and harmonious
instrument, if it is to be viable as the framework of the
government it establishes, on the one hand, and
adequately formidable and reliable as the succinct but
comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic
policies and aspirations of the people, on the other. lt is
inconceivable how a constitution worthy of any country
or people can have any part which is out of tune with its
other parts..
A constitution is the work of the people thru its drafters
assembled by them for the purpose. Once the original
constitution is approved, the part that the people play in
its amendment becomes harder, for when a whole
constitution is submitted to them, more or less they can
assumed its harmony as an integrated whole, and they
can either accept or reject it in its entirety. At the very
least, they can examine it before casting their vote and
determine for themselves from a study of the whole
document the merits and demerits of all or any of its
parts and of the document as a whole. And so also,
when an amendment is submitted to them that is to form
part of the existing constitution, in like fashion they can
study with deliberation the proposed amendment in
relation to the whole existing constitution and or any of
its parts and thereby arrive at an intelligent judgment as
to its acceptability.
This cannot happen in the case of the amendment in
question. Prescinding already from the fact that under
Section 3 of the questioned resolution, it is evident that
no fixed frame of reference is provided the voter, as to
what finally will be concomitant qualifications that will be
required by the final draft of the constitution to be
formulated by the Convention of a voter to be able to
enjoy the right of suffrage, there are other considerations
which make it impossible to vote intelligently on the
proposed amendment, although it may already be
observed that under Section 3, if a voter would favor the
reduction of the voting age to eighteen under conditions
he feels are needed under the circumstances, and he
does not see those conditions in the ballot nor is there
any possible indication whether they will ever be or not,
because Congress has reserved those for future action,
what kind of judgment can he render on the proposal?
But the situation actually before Us is even worse. No
one knows what changes in the fundamental principles
of the constitution the Convention will be minded to
approve. To be more specific, we do not have any
means of foreseeing whether the right to vote would be
of any significant value at all. Who can say whether or
not later on the Convention may decide to provide for
varying types of voters for each level of the political units
it may divide the country into. The root of the difficulty in
other words, lies in that the Convention is precisely on
the verge of introducing substantial changes, if not
radical ones, in almost every part and aspect of the
existing social and political order enshrined in the
present Constitution. How can a voter in the proposed
plebiscite intelligently determine the effect of the
reduction of the voting age upon the different institutions provide for the holding of a plebiscite on November 8,
which the Convention may establish and of which 1971, as well as the resolution of the respondent
presently he is not given any idea? Comelec complying therewith (RR Resolution No. 695)
are hereby declared null and void. The respondents
We are certain no one can deny that in order that a Comelec, Disbursing Officer, Chief Accountant and
plebiscite for the ratification of an amendment to the Auditor of the Constitutional Convention are hereby
Constitution may be validly held, it must provide the enjoined from taking any action in compliance with the
voter not only sufficient time but ample basis for an said organic resolution. In view of the peculiar
intelligent appraisal of the nature of the amendment per circumstances of this case, the Court declares this
se as well as its relation to the other parts of the decision immediately executory. No costs.
Constitution with which it has to form a harmonious
whole. In the context of the present state of things, Concepcion, C.J., Teehankee, Villamor and Makasiar,
where the Convention has hardly started considering the JJ., concur.
merits of hundreds, if not thousands, of proposals to
amend the existing Constitution, to present to the people
any single proposal or a few of them cannot comply with
this requirement. We are of the opinion that the present
Constitution does not contemplate in Section 1 of Article
XV a plebiscite or "election" wherein the people are in
the dark as to frame of reference they can base their
judgment on. We reject the rationalization that the
present Constitution is a possible frame of reference, for Separate Opinions
the simple reason that intervenors themselves are
stating that the sole purpose of the proposed
amendment is to enable the eighteen year olds to take
part in the election for the ratification of the Constitution MAKALINTAL, J., reserves his vote —
to be drafted by the Convention. In brief, under the
proposed plebiscite, there can be, in the language of
I reserve my vote. The resolution in question is voted
Justice Sanchez, speaking for the six members of the
down by a sufficient majority of the Court on just one
Court in Gonzales, supra, "no proper submission".
ground, which to be sure achieves the result from the
legal and constitutional viewpoint. I entertain grave
III doubts as to the validity of the premises postulated and
conclusions reached in support of the dispositive portion
The Court has no desire at all to hamper and hamstring of the decision. However, considering the urgent nature
the noble work of the Constitutional Convention. Much of this case, the lack of time to set down at length my
less does the Court want to pass judgment on the merits opinion on the particular issue upon which the decision
of the proposal to allow these eighteen years old to vote. is made to rest, and the fact that a dissent on the said
But like the Convention, the Court has its own duties to issue would necessarily be inconclusive unless the other
the people under the Constitution which is to decide in issues raised in the petition are also considered and
appropriate cases with appropriate parties Whether or ruled upon — a task that would be premature and
not the mandates of the fundamental law are being pointless at this time — I limit myself to this reservation.
complied with. In the best light God has given Us, we are
of the conviction that in providing for the questioned REYES, J.B.L., ZALDIVAR, CASTRO and
plebiscite before it has finished, and separately from, the MAKASIAR, JJ., concurring:
whole draft of the constitution it has been called to
formulate, the Convention's Organic Resolution No. 1
We concur in the main opinion penned by Mr. Justice
and all subsequent acts of the Convention implementing
Barredo in his usual inimitable, forthright and vigorous
the same violate the condition in Section 1, Article XV
style. Like him, we do not express our individual views
that there should only be one "election" or plebiscite for
on the wisdom of the proposed constitutional
the ratification of all the amendments the Convention
amendment, which is not in issue here because it is a
may propose. We are not denying any right of the people
matter that properly and exclusively addresses itself to
to vote on the proposed amendment; We are only
the collective judgment of the people.
holding that under Section 1, Article XV of the
Constitution, the same should be submitted to them not
separately from but together with all the other We must, however, articulate two additional objections of
amendments to be proposed by this present Convention. constitutional dimension which, although they would
seem to be superfluous because of the reach of the
basic constitutional infirmity discussed in extenso in the
IN VIEW OF ALL THE FOREGOING, the petition herein
main opinion, nevertheless appear to us to be just as
is granted. Organic Resolution No. 1 of the
fundamental in character and scope.
Constitutional Convention of 1971 and the implementing
acts and resolutions of the Convention, insofar as they
Assuming that the Constitutional Convention has power
to propose piecemeal amendments and submit each
separately to the people for ratification, we are
nonetheless persuaded that (1) that there is no proper
submission of title proposed amendment in question
within the meaning and intendment of Section 1 of
Article XV of the Constitution, and (2) that the
forthcoming election is not the proper
election envisioned by the same provision of the
Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs.
Commission on
1 the need of giving it as much stability as
Elections and Philippine Constitution Association vs.
2 is practicable, could have only meant
Commission on Elections, expounded his view, with
which we essentially agree, on the minimum
requirements that must be met in order that there can be
a proper submission to the people of a proposed
constitutional amendment. This is what he said:
... amendments must be fairly laid
before the people for their blessing or
spurning. The people are not to be mere
rubber stamps. They are not to vote
blindly. They must be afforded ample
opportunity to mull over the original
provisions, compare them with the
proposed amendments, and try to reach
a conclusion as the dictates of their
conscience suggest, free from the
incubus of extraneous or possibly
insidious influences. We believe the
word "submitted" can only mean that the
government, within its maximum
capabilities, should strain every effort to
inform citizen of the provisions to be
amended, and the proposed
amendments and the meaning, nature
and effects thereof. By this, we are not
to be understood as saying that, if one
citizen or 100 citizens or 1,000 citizens
cannot be reached, then there is no
submission within the meaning of the
word as intended by the framers of the
Constitution. What the Constitution in
effect directs is that the government, in
submitting an amendment for
ratification, should put every
instrumentality or agency within its
structural framework to enlighten the
people, educate them with respect to
their act of ratification or rejection. For
we have earlier stated, one thing
is submission and another is ratification.
There must be fair submission,
intelligent consent or rejection." .
The second constitutional objection was given
expression by one of the writers of this concurring
opinion, in the following words:
I find it impossible to believe that it was
ever intended by its framers that such
amendment should be submitted and
ratified by just "a majority of the votes
cast at an election at which the
amendments are submitted to the
people for their ratification", if the
concentration of the people's attention
thereon is to be diverted by other
extraneous issues, such as the choice
of local and national officials. The
framers of the Constitution, aware of the
fundamental character thereof, and of
that any amendments thereto should be
debated, considered and voted upon an
election wherein the people could
devote undivided attention to the
4
subject.
True it is that the question posed by the proposed
amendment, "Do you or do you not want the 18-year old
to be allowed to vote?," would seem to be
uncomplicated and innocuous. But it is one of life's
verities that things which appear to be simple may turn
out not to be so simple after all.
A number of doubts or misgivings could conceivably and
logically assail the average voter. Why should the voting
age be lowered at all, in the first place? Why should the
new voting age be precisely 18 years, and not 19 or 20?
And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old so that there is no need of an
educational qualification to entitle him to vote? In this
age of permissiveness and dissent, can the 18-year old
be relied upon to vote with judiciousness when the 21-
year old, in the past elections, has not performed so
well? If the proposed amendment is voted down by the
people, will the Constitutional Convention insist on the
said amendment? Why is there an unseemly haste on
the part of the Constitutional Convention in having this
particular proposed amendment ratified at this particular
time? Do some of the members of the Convention have
future political plans which they want to begin to
subserve by the approval this year of this amendment? If
this amendment is approved, does it thereby mean that
the 18-year old should now also shoulder the moral and
legal responsibilities of the 21-year old? Will he be
required to render compulsory military service under the
colors? Will the age of contractual consent be reduced to
18 years? If I vote against this amendment, will I not be
unfair to my own child who will be 18 years old, come
1973? .
The above are just samplings from here, there and
everywhere — from a domain (of searching questions)
the bounds of which are not immediately ascertainable.
Surely, many more questions can be added to the
already long litany. And the answers cannot be had
except as the questions are debated fully, pondered
upon purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the
people are not, and by election time will not be,
sufficiently informed of the meaning, nature and effects
of the proposed constitutional amendment. They have
not been afforded ample time to deliberate thereon
conscientiously. They have been and are effectively
distracted from a full and dispassionate consideration of
the merits and demerits of the proposed amendment by
their traditional pervasive involvement in local elections
and politics. They cannot thus weigh in tranquility the
need for and the wisdom of the proposed amendment.
Upon the above disquisition, it is our considered view
that the intendment of the words, "at an election at which
the amendments are submitted to the people for their
ratification," embodied in Section 1 of Article XV of the
Constitution, has not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court
penned by Justice Barredo, characterized by clarity and
vigor, its manifestation of fealty to the rule of law
couched in eloquent language, that commands assent.
As the Constitution occupies the topmost rank in the
hierarchy of legal norms, Congress and Constitutional
Convention alike, no less than this Court, must bow to its
supremacy. Thereby constitutionalism asserts itself. With
the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not
extend as far as the acceptance of the conclusion
reached. The question presented is indeed novel, not
being controlled by constitutional prescription, definite
and certain. Under the circumstances, with the express
recognition in the Constitution of the powers of the
Constitutional Convention to propose amendments, I
cannot discern any objection to the validity of its action
there being no legal impediment that would call for its
nullification. Such an approach all the more commends
itself to me considering that what was sought to be done
is to refer the matter to the people in whom, according to
our Constitution, sovereignty resides. It is in that sense
that, with due respect, I find myself unable to join my
brethren.
I. It is understandable then why the decisive issue posed
could not be resolved by reliance on, implicit in the
petition and the answer of intervenors, such concepts as
legislative control of the constitutional convention
referred to by petitioner on the one hand or, on the other,
the theory of conventional sovereignty favored by
intervenors. It is gratifying to note that during the oral
argument of petitioner and counsel for respondents and
intervenors, there apparently was a retreat from such
extreme position, all parties, as should be the case,
expressly avowing the primacy of the Constitution, the
applicable provision of which as interpreted by this
Court, should be controlling on both Congress and the
Convention. It cannot be denied though that in at least
one American state, that is Pennsylvania, there were
decisions announcing the doctrine that the powers to be
exercised by a constitutional convention are dependent
on a legislative grant, in the absence of any authority
conferred directly by the fundamental law. The result is a
convention that is subordinate to the lawmaking body. Its
field of competence is circumscribed. It has to look to the
latter for the delimitation of its permissible scope of
activity. It is thus made subordinate to the legislature.
Nowhere has such a view been more vigorously
expressed than in the Pennsylvania case of Wood's
1
Appeal. Its holding though finds no support under our
constitutional provision.
It does not thereby follow that while free from legislative
control, a constitutional convention may lay claim to an
attribute sovereign in character. The Constitution is quite
explicit that it is to the people, and to the people alone, in
2
whom sovereignty resides. Such a prerogative is
therefore withheld from a convention. It is an agency
entrusted with the responsibility of high import and
significance it is true; it is denied unlimited legal
competence though. That is what sovereignty connotes.
It has to yield to the superior force of the Constitution.
There can then be no basis for the exaggerated
pretension that it is an alter ego of the people. It is to be
admitted that there are some American state decisions,
the most notable of which is Sproule v. Fredericks, a
3
Mississippi case, that dates back to 1892, that yield a
different conclusion. The doctrine therein announced
cannot bind us. Our Constitution makes clear that the
power of a constitutional convention is not sovereign. It
is appropriately termed constituent, limited as it is to the
purpose of drafting a constitution or proposing revision
or amendments to one in existence, subject in either
case to popular approval.
The view that commends itself for acceptance is that
legislature and constitutional convention, alike
recognized by the Constitution, are coordinate, there
being no superiority of one over the other. Insofar as the
constituent power of proposing amendments to the
Constitution is concerned, a constitutional convention
enjoys a wide sphere of autonomy consistently with the
Constitution which can be the only source of valid
restriction on its competence. It is true it is to the
legislative body that the call to a convention must
proceed, but once convened, it cannot in any wise be
interfered with, much less controlled by Congress. A
contrary conclusion would impair its usefulness for the
delicate, and paramount task assigned to it. A
convention then is to be looked upon as if it were one of
the three coordinate departments which under the
principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly
subject to its jurisdiction. A succinct statement of the
appropriate principle that should govern the relationship
between a constitutional convention and a legislative
body under American law is that found in Orfield's work.
Thus: "The earliest view seems to have been that a
convention was absolute. The convention was sovereign
and subject to no restraint. On the other hand, Jameson,
whose views have been most frequently cited in
decisions, viewed a convention as a body with strictly
limited powers, and subject to the restrictions imposed
on it by the legislative call. A third and intermediate view
is that urged by Dodd — that a convention, though not
sovereign, is a body independent of the legislature; it is
bound by the existing constitution, but not by the acts of
the legislature, as to the extent of its constituent power.
This view has become increasingly prevalent in the state
4
decisions."
2. It is to the Constitution, and to the Constitution alone
then, as so vigorously stressed in the opinion of the
Court, that any limitation on the power the Constitutional,
Convention must find its source. I turn to its Article XV. It
reads: "The Congress in joint session assembled, by a
vote of three fourths of all the Members of the Senate
and of the House of Representatives voting separately,
may propose amendments to this Constitution or call a
convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the
amendments are submitted to the people for their
ratification."
Clearly, insofar as amendments, including revision, are
concerned, there are two steps, proposal and thereafter
ratification. Thus as to the former, two constituent bodies
are provided for, the Congress of the Philippines in the
mode therein provided, and a constitutional convention
that may be called into being. Once assembled, a
constitutional convention, like the Congress of the
Philippines, possesses in all its plenitude the constituent
power. Inasmuch as Congress may determine what
amendments it would have the people ratify and
thereafter take all the steps necessary so that the
approval or disapproval of the electorate may be
obtained, the convention likewise, to my mind, should be
deemed possessed of all the necessary authority to
assure that whatever amendments it seeks to introduce
would be submitted to the people at an election called
for that purpose. It would appear to me that to view the
convention as being denied a prerogative which is not
withheld from Congress as a constituent body would be
to place it in an inferior category. Such a proposition I do
not find acceptable. Congress and constitutional
convention are agencies for submitting proposals under
the fundamental law. A power granted to one should not
be denied the other. No justification for such a drastic
differentiation either in theory or practice exists.
Such a conclusion has for me the added reinforcement
that to require ordinary legislation before the convention
could be enabled to have its proposals voted on by the
people would be to place a power in the legislative and
executive branches that could, whether by act or
omission, result in the frustration of the amending
process. I am the first to admit that such likelihood is
remote, but if such a risk even if minimal could be
avoided, it should be, unless the compelling force of an
applicable constitutional provision requires otherwise.
Considering that a constitutional convention is not
precluded from imposing additional restrictions on the
powers of either the executive or legislative branches,
or, for that matter, the judiciary, it would appear to be the
better policy to interpret Article XV in such a way that
would not sanction such restraint on the authority that
must be recognized as vested in a constitutional
convention. There is nothing in such a view that to my
mind would collide with a reasonable interpretation of
Article XV. It certainly is one way by which freed from
pernicious abstractions, it would be easier to
accommodate a constitution to the needs of an unfolding
future. That is to facilitate its being responsive to the
challenge that time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the
conclusion that the challenged resolution was well within
the power of the convention. That would be to brush
aside the web of unreality spun from a too-restrictive
mode of appraising the legitimate scope of its
competence. That would be, for me, to give added vigor
and life to the conferment of authority vested in it,
attended by such grave and awesome responsibility.
3. It becomes pertinent to inquire then whether the last
sentence of Article XV providing that such amendment
shall be valid when submitted and thereafter approved
by the majority of the votes cast by the people at an
election is a bar to the proposed submission. It is the
conclusion arrived at by my brethren that there is to be
only one election and that therefore the petition must be
sustained as only when the convention has finished its
work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with
respect, the appropriate interpretation. It is true that the
Constitution uses the word "election" in the singular, but
that is not decisive. No undue reliance should be
accorded rules of grammar; they do not exert a
compelling force in constitutional interpretation. Meaning
is to be sought not from specific language in the singular
but from the mosaic of significance derived from the total
context. It could be, if it were not thus, self-defeating.
Such a mode of construction does not commend itself.
The words used in the Constitution are not inert; they
derive vitality from the obvious purposes at which they
are aimed. Petitioner's stress on linguistic refinement,
while not implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed
amendment is provisional and therefore is not such as
was contemplated in this article. I do not find such
contention convincing. The fact that the Constitutional
Convention did seek to consult the wishes of the people
by the proposed submission of a tentative amendatory
provision is an argument for its validity. It might be said
of course that until impressed with finality, an
amendment is not to be passed upon by the electorate.
There is plausibility in such a view. A literal reading of
the Constitution would support it. The spirit that informs it
though would not, for me, be satisfied. From its silence I
deduce the inference that there is no repugnancy to the
fundamental law when the Constitutional Convention
ascertains the popular will. In that sense, the
Constitution, to follow the phraseology of Thomas Reed
Powel, is not silently silent but silently vocal. What I
deem the more important consideration is that while a
public official, as an agent, has to locate his source of
authority in either Constitution or statute, the people, as
the principal, can only be limited in the exercise of their
sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way
of thinking be inconsistent with the fundamental principle
that it is in the people, and the people alone, that
sovereignty resides.
4. The constitutional Convention having acted within the
scope of its authority, an action to restrain or prohibit
respondent Commission on Elections from conducting
the plebiscite does not lie. It should not be lost sight of
that the Commission on Elections in thus being charged
with such a duty does not act in its capacity as the
constitutional agency to take charge of all laws relative
to the conduct of election. That is a purely executive
function vested in it under Article X of the
5
Constitution. It is not precluded from assisting the
Constitutional Convention if pursuant to its competence
to amend the fundamental law it seeks, as in this case,
to submit a proposal, even if admittedly tentative, to the
electorate to ascertain its verdict. At any rate, it may be
implied that under the 1971 Constitutional Convention
Act, it is not to turn a deaf ear to a summons from the
Convention to aid it in the legitimate discharge of its
functions.
6 Constitution.
The aforesaid considerations, such as they are, but
which for me have a force that I mind myself unable to
overcome, leave me no alternative but to dissent from
my brethren, with due acknowledgement of course that
from their basic premises, the conclusion arrived at by
them cannot be characterized as in any wise bereft of a
persuasive quality of a high order.
Separate Opinions
MAKALINTAL, J., reserves his vote —
I reserve my vote. The resolution in question is voted
down by a sufficient majority of the Court on just one
ground, which to be sure achieves the result from the
legal and constitutional viewpoint. I entertain grave
doubts as to the validity of the premises postulated and
conclusions reached in support of the dispositive portion
of the decision. However, considering the urgent nature
of this case, the lack of time to set down at length my
opinion on the particular issue upon which the decision
is made to rest, and the fact that a dissent on the said
issue would necessarily be inconclusive unless the other
issues raised in the petition are also considered and
ruled upon — a task that would be premature and
pointless at this time — I limit myself to this reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and
MAKASIAR, JJ., concurring:
We concur in the main opinion penned by Mr. Justice
Barredo in his usual inimitable, forthright and vigorous
style. Like him, we do not express our individual views
on the wisdom of the proposed constitutional
amendment, which is not in issue here because it is a
matter that properly and exclusively addresses itself to
the collective judgment of the people.
We must, however, articulate two additional objections of
constitutional dimension which, although they would
seem to be superfluous because of the reach of the
basic constitutional infirmity discussed in extenso in the
main opinion, nevertheless appear to us to be just as
fundamental in character and scope.
Assuming that the Constitutional Convention has power
to propose piecemeal amendments and submit each
separately to the people for ratification, we are
nonetheless persuaded that (1) that there is no proper
submission of title proposed amendment in question
within the meaning and intendment of Section 1 of
Article XV of the Constitution, and (2) that the
forthcoming election is not the proper
election envisioned by the same provision of the
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs.
Commission on
1
Elections and Philippine Constitution Association vs.
2
Commission on Elections, expounded his view, with
which we essentially agree, on the minimum
requirements that must be met in order that there can be
a proper submission to the people of a proposed
constitutional amendment. This is what he said:
... amendments must be fairly laid
before the people for their blessing or
spurning. The people are not to be mere
rubber stamps. They are not to vote
blindly. They must be afforded ample
opportunity to mull over the original
provisions, compare them with the
proposed amendments, and try to reach
a conclusion as the dictates of their
conscience suggest, free from the
incubus of extraneous or possibly
insidious influences. We believe the
word "submitted" can only mean that the
government, within its maximum
capabilities, should strain every effort to
inform citizen of the provisions to be
amended, and the proposed
amendments and the meaning, nature
and effects thereof. By this, we are not
 to be understood as saying that, if one
citizen or 100 citizens or 1,000 citizens
cannot be reached, then there is no
submission within the meaning of the
word as intended by the framers of the
Constitution. What the Constitution in
effect directs is that the government, in
submitting an amendment for
ratification, should put every
instrumentality or agency within its
structural framework to enlighten the
people, educate them with respect to
their act of ratification or rejection. For
we have earlier stated, one thing
is submission and another is ratification.
There must be fair submission,
intelligent consent or rejection." .
The second constitutional objection was given
expression by one of the writers of this concurring
opinion, in the following words:
I find it impossible to believe that it was
ever intended by its framers that such
amendment should be submitted and
ratified by just "a majority of the votes
cast at an election at which the
amendments are submitted to the
people for their ratification", if the
concentration of the people's attention
thereon is to be diverted by other
extraneous issues, such as the choice
of local and national officials. The
framers of the Constitution, aware of the
fundamental character thereof, and of
the need of giving it as much stability as
is practicable, could have only meant
that any amendments thereto should be
debated, considered and voted upon an
election wherein the people could
devote undivided attention to the
4
subject.
True it is that the question posed by the proposed
amendment, "Do you or do you not want the 18-year old
to be allowed to vote?," would seem to be
uncomplicated and innocuous. But it is one of life's
verities that things which appear to be simple may turn
out not to be so simple after all.
A number of doubts or misgivings could conceivably and
logically assail the average voter. Why should the voting
age be lowered at all, in the first place? Why should the
new voting age be precisely 18 years, and not 19 or 20?
And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old so that there is no need of an
educational qualification to entitle him to vote? In this
age of permissiveness and dissent, can the 18-year old
be relied upon to vote with judiciousness when the 21-
year old, in the past elections, has not performed so
well? If the proposed amendment is voted down by the
people, will the Constitutional Convention insist on the
said amendment? Why is there an unseemly haste on
the part of the Constitutional Convention in having this
particular proposed amendment ratified at this particular
time? Do some of the members of the Convention have
future political plans which they want to begin to
subserve by the approval this year of this amendment? If
this amendment is approved, does it thereby mean that
the 18-year old should now also shoulder the moral and
legal responsibilities of the 21-year old? Will he be
required to render compulsory military service under the
colors? Will the age of contractual consent be reduced to
18 years? If I vote against this amendment, will I not be
unfair to my own child who will be 18 years old, come
1973? .
The above are just samplings from here, there and
everywhere — from a domain (of searching questions)
the bounds of which are not immediately ascertainable.
Surely, many more questions can be added to the
already long litany. And the answers cannot be had
except as the questions are debated fully, pondered
upon purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the
people are not, and by election time will not be,
sufficiently informed of the meaning, nature and effects
of the proposed constitutional amendment. They have
not been afforded ample time to deliberate thereon
conscientiously. They have been and are effectively
distracted from a full and dispassionate consideration of
the merits and demerits of the proposed amendment by
their traditional pervasive involvement in local elections
and politics. They cannot thus weigh in tranquility the
need for and the wisdom of the proposed amendment.
Upon the above disquisition, it is our considered view
that the intendment of the words, "at an election at which
the amendments are submitted to the people for their
ratification," embodied in Section 1 of Article XV of the
Constitution, has not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court
penned by Justice Barredo, characterized by clarity and
vigor, its manifestation of fealty to the rule of law
couched in eloquent language, that commands assent.
As the Constitution occupies the topmost rank in the
hierarchy of legal norms, Congress and Constitutional
Convention alike, no less than this Court, must bow to its
supremacy. Thereby constitutionalism asserts itself. With
the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not
extend as far as the acceptance of the conclusion
reached. The question presented is indeed novel, not
being controlled by constitutional prescription, definite
and certain. Under the circumstances, with the express
recognition in the Constitution of the powers of the
Constitutional Convention to propose amendments, I
cannot discern any objection to the validity of its action
there being no legal impediment that would call for its
nullification. Such an approach all the more commends
itself to me considering that what was sought to be done
is to refer the matter to the people in whom, according to
our Constitution, sovereignty resides. It is in that sense
that, with due respect, I find myself unable to join my
brethren.
I. It is understandable then why the decisive issue posed
could not be resolved by reliance on, implicit in the
petition and the answer of intervenors, such concepts as
legislative control of the constitutional convention
referred to by petitioner on the one hand or, on the other,
the theory of conventional sovereignty favored by
intervenors. It is gratifying to note that during the oral
argument of petitioner and counsel for respondents and
intervenors, there apparently was a retreat from such
extreme position, all parties, as should be the case,
expressly avowing the primacy of the Constitution, the
applicable provision of which as interpreted by this
Court, should be controlling on both Congress and the
Convention. It cannot be denied though that in at least
one American state, that is Pennsylvania, there were
decisions announcing the doctrine that the powers to be
exercised by a constitutional convention are dependent
on a legislative grant, in the absence of any authority
conferred directly by the fundamental law. The result is a
convention that is subordinate to the lawmaking body. Its
field of competence is circumscribed. It has to look to the
latter for the delimitation of its permissible scope of
activity. It is thus made subordinate to the legislature.
Nowhere has such a view been more vigorously
expressed than in the Pennsylvania case of Wood's
1
Appeal. Its holding though finds no support under our
constitutional provision.
It does not thereby follow that while free from legislative
control, a constitutional convention may lay claim to an
attribute sovereign in character. The Constitution is quite
explicit that it is to the people, and to the people alone, in
2 and of the House of Representatives voting separately,
whom sovereignty resides. Such a prerogative is
therefore withheld from a convention. It is an agency
entrusted with the responsibility of high import and
significance it is true; it is denied unlimited legal
competence though. That is what sovereignty connotes.
It has to yield to the superior force of the Constitution.
There can then be no basis for the exaggerated
pretension that it is an alter ego of the people. It is to be
admitted that there are some American state decisions,
3
the most notable of which is Sproule v. Fredericks, a
Mississippi case, that dates back to 1892, that yield a
different conclusion. The doctrine therein announced
cannot bind us. Our Constitution makes clear that the
power of a constitutional convention is not sovereign. It
is appropriately termed constituent, limited as it is to the
purpose of drafting a constitution or proposing revision
or amendments to one in existence, subject in either
case to popular approval.
The view that commends itself for acceptance is that
legislature and constitutional convention, alike
recognized by the Constitution, are coordinate, there
being no superiority of one over the other. Insofar as the
constituent power of proposing amendments to the
Constitution is concerned, a constitutional convention
enjoys a wide sphere of autonomy consistently with the
Constitution which can be the only source of valid
restriction on its competence. It is true it is to the
legislative body that the call to a convention must
proceed, but once convened, it cannot in any wise be
interfered with, much less controlled by Congress. A
contrary conclusion would impair its usefulness for the
delicate, and paramount task assigned to it. A
convention then is to be looked upon as if it were one of
the three coordinate departments which under the
principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly
subject to its jurisdiction. A succinct statement of the
appropriate principle that should govern the relationship
between a constitutional convention and a legislative
body under American law is that found in Orfield's work.
Thus: "The earliest view seems to have been that a
convention was absolute. The convention was sovereign
and subject to no restraint. On the other hand, Jameson,
whose views have been most frequently cited in
decisions, viewed a convention as a body with strictly
limited powers, and subject to the restrictions imposed
on it by the legislative call. A third and intermediate view
is that urged by Dodd — that a convention, though not
sovereign, is a body independent of the legislature; it is
bound by the existing constitution, but not by the acts of
the legislature, as to the extent of its constituent power.
This view has become increasingly prevalent in the state
4
decisions."
2. It is to the Constitution, and to the Constitution alone
then, as so vigorously stressed in the opinion of the
Court, that any limitation on the power the Constitutional,
Convention must find its source. I turn to its Article XV. It
reads: "The Congress in joint session assembled, by a
vote of three fourths of all the Members of the Senate
may propose amendments to this Constitution or call a
convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the
amendments are submitted to the people for their
ratification."
Clearly, insofar as amendments, including revision, are
concerned, there are two steps, proposal and thereafter
ratification. Thus as to the former, two constituent bodies
are provided for, the Congress of the Philippines in the
mode therein provided, and a constitutional convention
that may be called into being. Once assembled, a
constitutional convention, like the Congress of the
Philippines, possesses in all its plenitude the constituent
power. Inasmuch as Congress may determine what
amendments it would have the people ratify and
thereafter take all the steps necessary so that the
approval or disapproval of the electorate may be
obtained, the convention likewise, to my mind, should be
deemed possessed of all the necessary authority to
assure that whatever amendments it seeks to introduce
would be submitted to the people at an election called
for that purpose. It would appear to me that to view the
convention as being denied a prerogative which is not
withheld from Congress as a constituent body would be
to place it in an inferior category. Such a proposition I do
not find acceptable. Congress and constitutional
convention are agencies for submitting proposals under
the fundamental law. A power granted to one should not
be denied the other. No justification for such a drastic
differentiation either in theory or practice exists.
Such a conclusion has for me the added reinforcement
that to require ordinary legislation before the convention
could be enabled to have its proposals voted on by the
people would be to place a power in the legislative and
executive branches that could, whether by act or
omission, result in the frustration of the amending
process. I am the first to admit that such likelihood is
remote, but if such a risk even if minimal could be
avoided, it should be, unless the compelling force of an
applicable constitutional provision requires otherwise.
Considering that a constitutional convention is not
precluded from imposing additional restrictions on the
powers of either the executive or legislative branches,
or, for that matter, the judiciary, it would appear to be the
better policy to interpret Article XV in such a way that
would not sanction such restraint on the authority that
must be recognized as vested in a constitutional
convention. There is nothing in such a view that to my
mind would collide with a reasonable interpretation of
Article XV. It certainly is one way by which freed from
pernicious abstractions, it would be easier to
accommodate a constitution to the needs of an unfolding
future. That is to facilitate its being responsive to the
challenge that time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the
conclusion that the challenged resolution was well within
the power of the convention. That would be to brush
aside the web of unreality spun from a too-restrictive
mode of appraising the legitimate scope of its
competence. That would be, for me, to give added vigor
and life to the conferment of authority vested in it,
attended by such grave and awesome responsibility.
3. It becomes pertinent to inquire then whether the last
sentence of Article XV providing that such amendment
shall be valid when submitted and thereafter approved
by the majority of the votes cast by the people at an
election is a bar to the proposed submission. It is the
conclusion arrived at by my brethren that there is to be
only one election and that therefore the petition must be
sustained as only when the convention has finished its
work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with
respect, the appropriate interpretation. It is true that the
Constitution uses the word "election" in the singular, but
that is not decisive. No undue reliance should be
accorded rules of grammar; they do not exert a
compelling force in constitutional interpretation. Meaning
is to be sought not from specific language in the singular
but from the mosaic of significance derived from the total
context. It could be, if it were not thus, self-defeating.
Such a mode of construction does not commend itself.
The words used in the Constitution are not inert; they
derive vitality from the obvious purposes at which they
are aimed. Petitioner's stress on linguistic refinement,
while not implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed
amendment is provisional and therefore is not such as
was contemplated in this article. I do not find such
contention convincing. The fact that the Constitutional
Convention did seek to consult the wishes of the people
by the proposed submission of a tentative amendatory
provision is an argument for its validity. It might be said
of course that until impressed with finality, an
amendment is not to be passed upon by the electorate.
There is plausibility in such a view. A literal reading of
the Constitution would support it. The spirit that informs it
though would not, for me, be satisfied. From its silence I
deduce the inference that there is no repugnancy to the
fundamental law when the Constitutional Convention
ascertains the popular will. In that sense, the
Constitution, to follow the phraseology of Thomas Reed
Powel, is not silently silent but silently vocal. What I
deem the more important consideration is that while a
public official, as an agent, has to locate his source of
authority in either Constitution or statute, the people, as
the principal, can only be limited in the exercise of their
sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way
of thinking be inconsistent with the fundamental principle
that it is in the people, and the people alone, that
sovereignty resides.
4. The constitutional Convention having acted within the
scope of its authority, an action to restrain or prohibit
respondent Commission on Elections from conducting
the plebiscite does not lie. It should not be lost sight of
that the Commission on Elections in thus being charged
with such a duty does not act in its capacity as the
constitutional agency to take charge of all laws relative
to the conduct of election. That is a purely executive
function vested in it under Article X of the
5
Constitution. It is not precluded from assisting the
Constitutional Convention if pursuant to its competence
to amend the fundamental law it seeks, as in this case,
to submit a proposal, even if admittedly tentative, to the
electorate to ascertain its verdict. At any rate, it may be
implied that under the 1971 Constitutional Convention
Act, it is not to turn a deaf ear to a summons from the
Convention to aid it in the legitimate discharge of its
6
functions.
The aforesaid considerations, such as they are, but
which for me have a force that I mind myself unable to
overcome, leave me no alternative but to dissent from
my brethren, with due acknowledgement of course that
from their basic premises, the conclusion arrived at by
them cannot be characterized as in any wise bereft of a
persuasive quality of a high order.