Remedy where candidate has been proclaimed Without prejudice to the filing of criminal cases against them as the
e to the filing of criminal cases against them as the evidence so warrants
G.R. No. 155087 November 28, 2003
EDUARDO T. SAYA-ANG, SR., and RICARDO T. LARA, petitioners,
vs.
HON. COMMISSION ON ELECTIONS, HONORABLE PIO JOSE S. JOSON, HONORABLE JOSE P.
BALBUENA, HONORABLE LIRIO T. JOQUINO and MANTIL D. LIM, respondents.
DECISION
AZCUNA, J.:
Petitioners herein, Eduardo T. Saya-ang, Sr. and Ricardo T. Lara, were candidates for the
Office of Barangay Captain of Barangays Congan and New Aklan respectively for the July 15,
2002 Synchronized Sangguniang Kabataan (SK) and Barangay Elections. Petitioner Saya-ang
filed his certificate of candidacy in Barangay Congan on June 6, 2002. On the other hand,
petitioner Lara filed his own certificate of candidacy in Barangay New Aklan on June 8, 2002.
On July 19, 2002, a letter-report was submitted by Acting Election Officer Alim to the Law
Department of the Comelec which stated that petitioners herein are not residents of the
barangays they wish to be elected in. In turn, the Law Department of the Commission on
Elections (Comelec) submitted its study to the Comelec en banc on July 9, 2002
recommending the denial of due course to the certificates of candidacy of petitioners. On
the day of the elections or on July 15, 2002, the Comelec, issued En Banc Resolution No.
5393, which essentially denied due course to the certificates of candidacy of petitioners
herein.
The pertinent portion of the assailed Resolution states:
Considering the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to approve
the recommendation of the Law Department as follows:
1. To deny due course to the Certificates of Candidacy of Romeo P. Sumayog, Sandigan
Damie, James Ceasar I. Young, Eduardo T. Saya-ang, Sr., and Ricardo L. Lara; and
2. To direct the Election Officer of Glan, Sarangani to delete their names from the Certified
List of Candidates for Barangay Kagawad and Punong Barangay of Barangays E. Alegado,
Baliton, Cross, Congan, and New Aklan, respectively.
under the circumstances.
Let the Law Department implement this resolution.
SO ORDERED.
Despite the abovementioned Resolution, petitioners were still proclaimed as winners on July
16, 2002, having garnered the most number of votes in their respective barangays. On July
31, 2002, petitioners took their oath of office before Alfredo L. Barcelona, Jr., the First
Assistant Provincial Prosecutor of Sarangani Province.
On August 9, 2002, Pio Jose S. Joson, Deputy Executive Director for Operations of the
Comelec, issued a Memorandum for all Regional Election Directors, Provincial Election
Supervisors and City/Municipal Election Officers. This memorandum directed all election
officers to delete the names of those candidates whose certificates of candidacy were
denied due course despite the fact that said denial did not arrive on time. It also ordered the
candidates concerned to desist from taking their oaths and from assuming the positions to
which they have been elected, unless the Supreme Court issued a temporary restraining
order. Lastly, the said memorandum ordered the Board of Canvassers to reconvene for the
purpose of proclaiming the duly-elected candidates and correcting the certificates of
canvass and proclamation.
On August 10, 2002, the Comelec en banc promulgated Resolution No. 5584, entitled "In the
Matter of the Policy of the Commission on Proclaimed Candidates Found to be Ineligible for
Being Not Registered Voters in the Place Where They Were Elected and on the Failure/
Omission of the Board of Canvassers to Include Certain Election Returns in the Canvass."1
On August 14, 2002, Acting Election Officer Alim, invoking and acting pursuant to Comelec
Resolution No. 5393 and Resolution No. 5584, issued a directive commanding petitioners to
cease and desist from taking their oath of office and from assuming the position to which
they were elected. He also directed the Barangay Board of Canvassers for Barangays Congan
and New Aklan to reconvene immediately and proclaim the duly-elected candidates and to
correct the certificates of canvass and proclamation.
Petitioners received the aforementioned directive on August 19, 2002. On August 21, 2002,
the Comelec en banc promulgated Resolution No. 5666 amending its Resolution No. 5584
on the basis of the approved recommendations of Commissioner Sadain. Pertinent portions
of the amended resolution state:
I.
ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED
VOTERS IN THE PLACE WHERE THEY WERE ELECTED
xxx
(d) For both (a) and (b), in the event that the disqualified candidate is proclaimed the winner
despite his disqualification or despite the pending disqualification case filed before his
proclamation, but which is subsequently resolved against him, the proclamation of said
disqualified candidate is hereby declared void from the beginning, with notice to the
candidate concerned, even if the dispositive portion of the resolution disqualifying him or
cancelling his certificate of candidacy does not provide for such an annulment.2
On September 4, 2002, Acting Election Officer Alim, using as his basis Comelec en banc
Resolution No. 5666 issued a memorandum directing the Board of Canvassers of Barangay
Congan, Glan, Sarangani Province to reconvene at his office on September 13, 2002.
Hence, the instant petition anchored on the sole assignment of error:
THAT THE PROMULGATION OF THE EN BANC RESOLUTION NO. 5393, DATED 15 JULY 2002,
BY RESPONDENT HONORABLE COMMISSION ON ELECTIONS IS PATENTLY ERRONEOUS
BEING WITHOUT BASIS IN FACT AND IN LAW AND THE ISSUANCE OF WHICH IS IN GRAVE
ABUSE OF DISCRETION AMOUNTING EVEN AS IT DOES TO LACK OR EXCESS OF
JURISDICTION.3
At the very outset, it must be made clear that the Comelec has jurisdiction to deny due
course to or cancel a certificate of candidacy.4 Such jurisdiction continues even after the
elections, if for any reason no final judgment of disqualification is rendered before the
elections, and the candidate facing disqualification is voted for and receives the highest
number of votes, and provided further that the winning candidate has not been proclaimed
or taken his oath of office.5 Furthermore, a decision by the Comelec to disqualify a
candidate shall become final and executory only after a period of five days:
Sec. 3. Decisions After Five Days.--- Decisions in pre-proclamation cases and petitions to
deny due course to or cancel certificates of candidacy, to declare a candidate as nuisance
candidate or to disqualify a candidate, and to postpone or suspend elections shall become
final and executory after the lapse of five (5) days from their promulgation, unless restrained
by the Supreme Court.6
In the present case, the assailed Resolution denying due course to petitioners’ certificates of
candidacy was promulgated on June 15, 2002, or on the very day of the elections. On that
day, therefore, the decision of the Comelec had not yet become final and executory since
petitioners still had until June 20, 2002 to file their motion for reconsideration. The Barangay
Board of Canvassers rightly retained petitioners’ names in the list of qualified candidates
and could not be faulted from counting the votes cast in favor of the petitioners. Petitioners
were, therefore, validly proclaimed as winners of the elections on June 16, 2002, having
garnered the most number of votes. On the day of the elections or on June 15, 2002,
petitioners, for all intents and purposes, were still in the running. The Resolution of
respondent Comelec ordering their names to be deleted from the list of qualified candidates
only became final and executory on June 20, 2002, or five days from the promulgation
thereof.
Petitioners also maintain that they were never served a copy of the assailed Resolution and
were never given the chance to present their evidence. They claim that they only knew
about Resolution 5393 on August 19, 2002, when they were served a copy of the directive
issued by Acting Election Officer Alim ordering them to cease and desist from taking their
oath of office and from assuming the position to which they are elected. This allegation was
not disproved by respondent Comelec. Instead, it cites Resolution No. 4801, which was
published in the Manila Standard and Manila Bulletin on May 25, 2002, wherein it was
stated that the administrative inquiry of the Comelec on the eligibility of candidates starts
from the time they filed their certificates of candidacy. The Comelec maintains, therefore,
that by virtue of the said resolution, all candidates are deemed to have constructive notice
of any administrative inquiry against them. Also, it asserts that by virtue of its administrative
powers, it may motu proprio deny or cancel, without any kind of hearing whatsoever, the
certificates of candidacy of those who are found not to be registered voters in the place
where they seek to run for public office.1âwphi1
It is clear, however, that under Section 3, Rule 23 of the Comelec Rules of Procedure, a
petition to cancel a certificate of candidacy shall be heard summarily after due notice. The
same rules also provide that when the proceedings are authorized to be summary, in lieu of
oral testimonies, the parties may, after due notice, be required to submit their position
papers together with affidavits, counter-affidavits and other documentary evidence; and
when there is a need for clarification of certain matters, at the discretion of the Commission
en banc or the Division, the parties may be allowed to cross-examine the affiants.7
The rules providing for the abovementioned summary hearing were mandated to accord
due process of law to candidates during elections. The right to due process is a cardinal and
primary right which must be respected in all proceedings.8 It is the embodiment of the
sporting idea of fair play,9 the cornerstone of every democratic society. In any proceeding,
the essence of procedural due process is embodied in the basic requirement of notice and a
real opportunity to be heard.10 Respondent Comelec’s argument that petitioners have
already been constructively notified of the inquiry against them cannot be given merit.
Petitioners herein were not even informed of the administrative inquiry against them, nor
were they called upon to adduce their own evidence and to meet and refute the evidence
against them. Petitioners certainly cannot read the minds of those tasked to look into their
certificates of candidacy, nor did they have any way of knowing that a proceeding had
already been instituted against them and that they were entitled to present evidence on
their behalf.
Finally, the Court notes again that petitioners have already been proclaimed as the winners
in the elections. They have already taken their oaths of office and are, at present, serving
their constituents in their respective barangays. In Lambonao v. Tero,11 the Court held that
defects in the certificates of candidacy should have been questioned on or before the
election and not after the will of the people has been expressed through the ballots. It was
further held in the said case that while provisions relating to certificates of candidacy are
mandatory in terms, it is an established rule of interpretation as regards election laws, that
mandatory provisions requiring certain steps before elections will be construed as directory
after the elections, to give effect to the will of the electorate. The rationale for this principle
was explained in Lino Luna v. Rodriguez,12 where the Court said that these various and
numerous provisions were adopted to assist the voters in their participation in the affairs of
the government and not to defeat that object. When voters have honestly cast their ballots,
the same should not be nullified simply because the officers tasked under the law to direct
the elections and guard the purity of the ballot did not do their duty.
WHEREFORE, the instant petition is GRANTED. Resolution No. 5393 of the respondent
Commission on Elections en banc is SET ASIDE. No pronouncement as to costs.
SO ORDERED.
Remedy where candidate has been proclaimed
G.R. No. 192280 January 25, 2011
SERGIO G. AMORA, JR., Petitioner,
vs.
COMMISSION ON ELECTIONS and ARNIELO S. OLANDRIA, Respondents.
DECISION
NACHURA, J.:
Before us is a petition for certiorari under Rule 64, in relation to Rule 65, of the Rules of
Court, seeking to annul and set aside the Resolutions dated April 29, 20101 and May 17,
2010,2 respectively, of the Commission on Elections (COMELEC) in SPA No. 10-046 (DC).
First, the undisputed facts.
On December 1, 2009, petitioner Sergio G. Amora, Jr. (Amora) filed his Certificate of
Candidacy (COC) for Mayor of Candijay, Bohol. At that time, Amora was the incumbent
Mayor of Candijay and had been twice elected to the post, in the years 2004 and 2007.
To oppose Amora, the Nationalist People’s Coalition (NPC) fielded Trygve L. Olaivar (Olaivar)
for the mayoralty post. Respondent Arnielo S. Olandria (Olandria) was one of the candidates
for councilor of the NPC in the same municipality.
On March 5, 2010, Olandria filed before the COMELEC a Petition for Disqualification against
Amora. Olandria alleged that Amora’s COC was not properly sworn contrary to the
requirements of the Omnibus Election Code (OEC) and the 2004 Rules on Notarial Practice.
Olandria pointed out that, in executing his COC, Amora merely presented his Community
Tax Certificate (CTC) to the notary public, Atty. Oriculo Granada (Atty. Granada), instead of
presenting competent evidence of his identity. Consequently, Amora’s COC had no force
and effect and should be considered as not filed.
Amora traversed Olandria’s allegations in his Answer cum Position Paper.3 He countered
that:
1. The Petition for Disqualification is actually a Petition to Deny Due Course or cancel a
certificate of candidacy. Effectively, the petition of Olandria is filed out of time;
2. Olandria’s claim does not constitute a proper ground for the cancellation of the COC;
3. The COC is valid and effective because he (Amora) is personally known to the notary
public, Atty. Granada, before whom he took his oath in filing the document;
4. Atty. Granada is, in fact, a close acquaintance since they have been members of the
League of Muncipal Mayors, Bohol Chapter, for several years; and
5. Ultimately, he (Amora) sufficiently complied with the requirement that the COC be under
oath.
As previously adverted to, the Second Division of the COMELEC granted the petition and
disqualified Amora from running for Mayor of Candijay, Bohol.
Posthaste, Amora filed a Motion for Reconsideration4 before the COMELEC en banc. Amora
reiterated his previous arguments and emphasized the asseverations of the notary public,
Atty. Granada, in the latter’s affidavit,5 to wit:
1. The COMELEC’s (Second Division’s) ruling is contrary to the objectives and basic principles
of election laws which uphold the primacy of the popular will;
2. Atty. Granada states that while he normally requires the affiant to show competent
evidence of identity, in Amora’s case, however, he accepted Amora’s CTC since he
personally knows him;
3. Apart from the fact that Amora and Atty. Granada were both members of the League of
Municipal Mayors, Bohol Chapter, the two consider each other as distant relatives because
Amora’s mother is a Granada;
4. It is a matter of judicial notice that practically everybody knows the Mayor, most
especially lawyers and notaries public, who keep themselves abreast of developments in
local politics and have frequent dealings with the local government; and
5. In all, the COC filed by Amora does not lack the required formality of an oath, and thus,
there is no reason to nullify his COC.
Meanwhile, on May 10, 2010, national and local elections were held. Amora obtained 8,688
votes, equivalent to 58.94% of the total votes cast, compared to Olaivar’s 6,053 votes,
equivalent to only 41.06% thereof. Subsequently, the Muncipal Board of Canvassers of
Candijay, Bohol, proclaimed Amora as the winner for the position of Municipal Mayor of
Candijay, Bohol.6
A week thereafter, or on May 17, 2010, in another turn of events, the COMELEC en banc
denied Amora’s motion for reconsideration and affirmed the resolution of the COMELEC
(Second Division). Notably, three (3) of the seven (7) commissioners dissented from the
majority ruling. Commissioner Gregorio Larrazabal (Commissioner Larrazabal) wrote a
dissenting opinion, which was concurred in by then Chairman Jose A.R. Melo and
Commissioner Rene V. Sarmiento.
In denying Amora’s motion for reconsideration and upholding Olandria’s petition for
disqualification of Amora, the COMELEC ratiocinated, thus:
[Amora] himself admitted in his Motion that the Second Division was correct in pointing out
that the CTC is no longer a competent evidence of identity for purposes of notarization.
The COC therefore is rendered invalid when [petitioner] only presented his CTC to the
notary public. His defense that he is personally known to the notary cannot be given
recognition because the best proof [of] his contention could have been the COC itself.
However, careful examination of the jurat portion of the COC reveals no assertion by the
notary public that he personally knew the affiant, [petitioner] herein. Belated production of
an Affidavit by the Notary Public cannot be given weight because such evidence could and
should have been produced at the earliest possible opportunity.
The rules are absolute. Section 73 of the Election Code states:
"Section 73. Certificate of Candidacy. – No person shall be eligible for any elective public
office unless he files a sworn certificate of candidacy within the period fixed herein."
Under the 2004 Rules on Notarial Practice of 2004 (Rules), the requirements of notarization
of an oath are:
"Section 2. Affirmation or Oath. – The term ‘Affirmation’ or ‘Oath’ refers to an act in which
an individual on a single occasion:
(a) appears in person before the notary public;
(b) is personally known to the notary public or identified by the notary public through
competent evidence of identity as defined by these Rules; and
(c) avows under penalty of law to the whole truth of the contents of the instrument or
document."
The required form of identification is prescribed in [S]ection 12 of the same Rules, to wit:
"Section 12. Competent Evidence of Identity. – The phrase ‘competent evidence of identity’
refers to the identification of an individual based on:
(a) at least one current identification document issued by an official agency bearing the
photograph and signature of the individual. x x x."
It is apparent that a CTC, which bears no photograph, is no longer a valid form of
identification for purposes of Notarization of Legal Documents. No less than the Supreme
Court itself, when it revoked the Notarial Commission of a member of the Bar in Baylon v.
Almo, reiterated this when it said:
"As a matter of fact, recognizing the established unreliability of a community tax certificate
in proving the identity of a person who wishes to have his document notarized, we did not
include it in the list of competent evidence of identity that notaries public should use in
ascertaining the identity of persons appearing before them to have their documents
notarized."
Seeking other remedies, [Amora] maintained that Section 78 of the Election Code governs
the Petition. Said section provides that:
"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
the person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later
than twenty-five days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the election."
[Amora] however failed to note that the Petition relies upon an entirely different ground.
The Petition has clearly stated that it was invoking Section 73 of the Election Code, which
prescribes the mandatory requirement of filing a sworn certificate of candidacy. As properly
pointed out by [Olandria], he filed a Petition to Disqualify for Possessing Some Grounds for
Disqualification, which, is governed by COMELEC Resolution No. 8696, to wit:
"B. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF THE OMNIBUS
ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR
POSSESSING SOME GROUNDS FOR DISQUALIFICATION
1. A verified petition to disqualify a candidate pursuant to Section 68 of the OEC and the
verified petition to disqualify a candidate for lack of qualifications or possessing some
grounds for disqualification may be filed on any day after the last day for filing of certificates
of candidacy but not later than the date of proclamation;
xxxx
3. The petition to disqualify a candidate for lack of qualification or possessing some grounds
for disqualification, shall be filed in ten (10) legible copies, personally or through a duly
authorized representative, by any person of voting age, or duly registered political party,
organization or coalition of political parties on the ground that the candidate does not
possess all the qualifications as provided for by the Constitution or by existing law or who
possesses some grounds for disqualification as provided for by the Constitution or by
existing law."
xxxx
Finally, we do not agree with [Amora] when he stated that the Second Division’s Resolution
"practically supplanted congress by adding another ground for disqualification, not provided
in the omnibus election code or the local government code. The constitution is very clear
that it is congress that shall prescribe the qualifications (and disqualifications) of candidates
for local government positions." These grounds for disqualification were laid down in both
laws mentioned by [Amora] and COMELEC Resolution 8696.7
Hence, this petition for certiorari imputing grave abuse of discretion to the COMELEC. On
June 15, 2010, we issued a Status Quo Ante Order and directed respondents to comment on
the petition. As directed, Olandria and the COMELEC filed their respective Comments8
which uniformly opposed the petition. Thereafter, Amora filed his Reply.9
Amora insists that the Petition for Disqualification filed by Olandria is actually a Petition to
Deny Due Course since the purported ground for disqualification simply refers to the
defective notarization of the COC. Amora is adamant that Section 73 of the OEC pertains to
the substantive qualifications of a candidate or the lack thereof as grounds for
disqualification, specifically, the qualifications and disqualifications of elective local officials
under the Local Government Code (LGC) and the OEC. Thus, Olandria’s petition was filed
way beyond the reglementary period of twenty-five (25) days from the date of the filing of
the disputed COC.
Moreover, Amora maintains that his COC is properly notarized and not defective, and the
presentation of his CTC to the notary public to whom he was personally known sufficiently
complied with the requirement that the COC be under oath. Amora further alleges that: (1)
Olaivar, his opponent in the mayoralty post, and likewise a member of the NPC, is
purportedly a fraternity brother and close associate of Nicodemo T. Ferrer (Commissioner
Ferrer), one of the commissioners of the COMELEC who disqualified him; and (2) Olaivar
served as Consultant for the COMELEC, assigned to the Office of Commissioner Ferrer.
Olandria and the COMELEC reiterated the arguments contained in the COMELEC en banc
resolution of May 17, 2010.
Amora’s petition is meritorious.
We find that the COMELEC ruling smacks of grave abuse of discretion, a capricious and
whimsical exercise of judgment equivalent to lack of jurisdiction. Certiorari lies where a
court or any tribunal, board, or officer exercising judicial or quasi-judicial functions has acted
without or in excess of jurisdiction or with grave abuse of discretion.10
In this case, it was grave abuse of discretion to uphold Olandria’s claim that an improperly
sworn COC is equivalent to possession of a ground for disqualification. Not by any stretch of
the imagination can we infer this as an additional ground for disqualification from the
specific wording of the OEC in Section 68, which reads:
SEC. 68. Disqualifications. – Any candidate who, in an action or protest in which he is 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 a permanent
resident or immigrant of a foreign country in accordance with the residence requirement
provided for in the elections laws.
and of Section 40 of the LGC, which provides:
SEC. 40. Disqualifications. – The following persons are disqualified from running for any
elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or 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.
It is quite obvious that the Olandria petition is not based on any of the grounds for
disqualification as enumerated in the foregoing statutory provisions. Nowhere therein does
it specify that a defective notarization is a ground for the disqualification of a candidate. Yet,
the COMELEC would uphold that petition upon the outlandish claim that it is a petition to
disqualify a candidate "for lack of qualifications or possessing some grounds for
disqualification."
The proper characterization of a petition as one for disqualification under the pertinent
provisions of laws cannot be made dependent on the designation, correctly or incorrectly, of
a petitioner. The absurd interpretation of Olandria, respondent herein, is not controlling;
the COMELEC should have dismissed his petition outright.
A petition for disqualification relates to the declaration of a candidate as ineligible or lacking
in quality or accomplishment fit for the position of mayor. The distinction between a
petition for disqualification and the formal requirement in Section 73 of the OEC that a COC
be under oath is not simply a question of semantics as the statutes list the grounds for the
disqualification of a candidate.
Recently, we have had occasion to distinguish the various petitions for disqualification and
clarify the grounds therefor as provided in the OEC and the LGC. We declared, thus:
To emphasize, a petition for disqualification on the one hand, can be premised on Section 12
or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course
to or cancel a CoC can only be grounded on a statement of a material representation in the
said certificate that is false. The petitions also have different effects. While a person who is
disqualified under Section 68 is merely prohibited to continue as a candidate, the person
whose certificate is cancelled or denied due course under Section 78 is not treated as a
candidate at all, as if he/she never filed a CoC. Thus, in Miranda v. Abaya, this Court made
the distinction that a candidate who is disqualified under Section 68 can validly be
substituted under Section 77 of the OEC because he/she remains a candidate until
disqualified; but a person whose CoC has been denied due course or cancelled under
Section 78 cannot be substituted because he/she is never considered a candidate.11
Apart from the qualifications provided for in the Constitution, the power to prescribe
additional qualifications for elective office and grounds for disqualification therefrom,
consistent with the constitutional provisions, is vested in Congress.12 However, laws
prescribing qualifications for and disqualifications from office are liberally construed in favor
of eligibility since the privilege of holding an office is a valuable one.13 We cannot
overemphasize the principle that where a candidate has received popular mandate, all
possible doubts should be resolved in favor of the candidate’s eligibility, for to rule
otherwise is to defeat the will of the people.14
In stark contrast to the foregoing, the COMELEC allowed and confirmed the disqualification
of Amora although the latter won, and was forthwith proclaimed, as Mayor of Candijay,
Bohol.
Another red flag for the COMELEC to dismiss Olandria’s petition is the fact that Amora
claims to personally know the notary public, Atty. Granada, before whom his COC was
sworn. In this regard, the dissenting opinion of Commissioner Larrazabal aptly disposes of
the core issue:
With all due respect to the well-written Ponencia, I respectfully voice my dissent. The
primary issue herein is whether it is proper to disqualify a candidate who, in executing his
Certificate of Candidacy (COC), merely presented to the Notary Public his Community Tax
Certificate.
The majority opinion strictly construed the 2004 Rules on Notarial Practice (the "2004
Notarial Rules") when it provided that valid and competent evidence of identification must
be presented to render Sergio G. Amora, Jr.’s [petitioner’s] COC valid. The very wording of
the 2004 Notarial Rules supports my view that the instant motion for reconsideration ought
to be granted, to wit:
Section 2. Affirmation or Oath . – The term "Affirmation" or "Oath" refers to an act in which
an individual on a single occasion:
(a) appears in person before the notary public;
(b) is personally known to the notary public or identified by the notary public through
competent evidence of identity as defined by these Rules; and
(c) avows under penalty of law to the whole truth of the contents of the instrument or
document.
As quoted supra, competent evidence of identity is not required in cases where the affiant is
personally known to the Notary Public, which is the case herein. The records reveal that
[petitioner] submitted to this Commission a sworn affidavit executed by Notary Public
Oriculo A. Granada (Granada), who notarized [petitioner’s] COC, affirming in his affidavit
that he personally knows [petitioner].
[Respondent], on the other hand, presented no evidence to counter Granada’s declarations.
Hence, Granada[’s] affidavit, which narrates in detail his personal relation with [petitioner],
should be deemed sufficient.
The purpose of election laws is to give effect to, rather than frustrate, the will of the
voters.1âwphi1 The people of Candijay, Bohol has already exercised their right to suffrage
on May 10, 2010 where [petitioner] was one of the candidates for municipal mayor. To
disqualify [petitioner] at this late stage simply due to an overly strict reading of the 2004
Notarial Rules will effectively deprive the people who voted for him their rights to vote.
The Supreme Court’s declaration in Petronila S. Rulloda v. COMELEC et al. must not be taken
lightly:
Technicalities and procedural niceties in election cases should not be made to stand in the
way of the true will of the electorate. Laws governing election contests must be liberally
construed to the end that the will of the people in the choice of public officials may not be
defeated by mere technical objections.
Election contests involve public interest, and technicalities and procedural barriers must
yield if they constitute an obstacle to the determination of the true will of the electorate in
the choice of their elective officials. The Court frowns upon any interpretation of the law
that would hinder in any way not only the free and intelligent casting of the votes in an
election but also the correct ascertainment of the results.15
Our ruling herein does not do away with the formal requirement that a COC be sworn. In
fact, we emphasize that the filing of a COC is mandatory and must comply with the
requirements set forth by law.16
Section 2 of the 2004 Rules on Notarial Practice lists the act to which an affirmation or oath
refers:

Sec. 2. Affirmation or Oath. — The term "Affirmation" or "Oath" refers to an act in which an
individual on a single occasion:
(a) appears in person before the notary public;
(b) is personally known to the notary public or identified by the notary public through
competent evidence of identity as defined by these Rules; and
(c) avows under penalty of law to the whole truth of the contents of the instrument or
document.
In this case, however, contrary to the declarations of the COMELEC, Amora complied with
the requirement of a sworn COC. He readily explained that he and Atty. Granada personally
knew each other; they were not just colleagues at the League of Municipal Mayors, Bohol
Chapter, but they consider each other as distant relatives. Thus, the alleged defect in the
oath was not proven by Olandria since the presentation of a CTC turned out to be sufficient
in this instance. On the whole, the COMELEC should not have brushed aside the affidavit of
Atty. Granada and remained inflexible in the face of Amora’s victory and proclamation as
Mayor of Candijay, Bohol.
WHEREFORE, the petition is GRANTED. The Resolutions of the Commission on Elections in
SPA No. 10-046 (DC) dated April 29, 2010 and May 17, 2010, respectively, are ANULLED and
SET ASIDE.
SO ORDERED.
Disqualifications
G.R. No. 195229 October 9, 2012
EFREN RACEL ARA TEA, Petitioner,
vs.
COMMISSiON ON ELECTIONS and ESTELA D. ANTlPOLO, Respondents.
DECISION
The Case
This is a special civil action for certiorari1 seeking to review and nullify the Resolution2
dated 2 February 2011 and the Order3 dated 12 January 2011 of the Commission on
Elections (COMELEC) En Banc in Dra. Sigrid S. Rodolfo v. Romeo D. Lonzanida, docketed as
SPA No. 09-158 (DC). The petition asserts that the COMELEC issued the Resolution and
Order with grave abuse of discretion amounting to lack or excess of jurisdiction.
The Facts
Romeo D. Lonzanida (Lonzanida) and Estela D. Antipolo (Antipolo) were candidates for
Mayor of San Antonio, Zambales in the May 2010 National and Local Elections. Lonzanida
filed his certificate of candidacy on 1 December 2009.4 On 8 December 2009, Dra. Sigrid S.
Rodolfo (Rodolfo) filed a petition under Section 78 of the Omnibus Election Code to
disqualify Lonzanida and to deny due course or to cancel Lonzanida’s certificate of
candidacy on the ground that Lonzanida was elected, and had served, as mayor of San
Antonio, Zambales for four (4) consecutive terms immediately prior to the term for the May
2010 elections. Rodolfo asserted that Lonzanida made a false material representation in his
certificate of candidacy when Lonzanida certified under oath that he was eligible for the
office he sought election. Section 8, Article X of the 1987 Constitution5 and Section 43(b) of
the Local Government Code6 both prohibit a local elective official from being elected and
serving for more than three consecutive terms for the same position.
The COMELEC Second Division rendered a Resolution7 on 18 February 2010 cancelling
Lonzanida’s certificate of candidacy. Pertinent portions of the 18 February 2010 Resolution
read:
Respondent Lonzanida never denied having held the office of mayor of San Antonio,
Zambales for more than nine consecutive years. Instead he raised arguments to forestall or
dismiss the petition on the grounds other than the main issue itself. We find such arguments
as wanting. Respondent Lonzanida, for holding the office of mayor for more than three
consecutive terms, went against the three-term limit rule; therefore, he could not be
allowed to run anew in the 2010 elections. It is time to infuse new blood in the political
arena of San Antonio.
WHEREFORE, premises considered, the instant petition is hereby GRANTED. The Certificate
of Candidacy of Respondent Romeo D. Lonzanida for the position of mayor in the
municipality of San Antonio, Zambales is hereby CANCELLED. His name is hereby ordered
STRICKEN OFF the list of Official Candidates for the position of Mayor of San Antonio,
Zambales in May 10, 2010 elections.
SO ORDERED.8
Lonzanida’s motion for reconsideration before the COMELEC En Banc remained pending
during the May 2010 elections. Lonzanida and Efren Racel Aratea (Aratea) garnered the
highest number of votes and were respectively proclaimed Mayor and Vice-Mayor.
Aratea took his oath of office as Acting Mayor before Regional Trial Court (RTC) Judge
Raymond C. Viray of Branch 75, Olongapo City on 5 July 2010.9 On the same date, Aratea
wrote the Department of Interior and Local Government (DILG) and requested for an
opinion on whether, as Vice-Mayor, he was legally required to assume the Office of the
Mayor in view of Lonzanida’s disqualification. DILG Legal Opinion No. 117, S. 201010 stated
that Lonzanida was disqualified to hold office by reason of his criminal conviction. As a
consequence of Lonzanida’s disqualification, the Office of the Mayor was deemed
permanently vacant. Thus, Aratea should assume the Office of the Mayor in an acting
capacity without prejudice to the COMELEC’s resolution of Lonzanida’s motion for
reconsideration. In another letter dated 6 August 2010, Aratea requested the DILG to allow
him to take the oath of office as Mayor of San Antonio, Zambales. In his response dated 24
August 2010, then Secretary Jesse M. Robredo allowed Aratea to take an oath of office as
"the permanent Municipal Mayor of San Antonio, Zambales without prejudice however to
the outcome of the cases pending before the [COMELEC]."11
On 11 August 2010, the COMELEC En Banc issued a Resolution12 disqualifying Lonzanida
from running for Mayor in the May 2010 elections. The COMELEC En Banc’s resolution was
based on two grounds: first, Lonzanida had been elected and had served as Mayor for more
than three consecutive terms without interruption; and second, Lonzanida had been
convicted by final judgment of ten (10) counts of falsification under the Revised Penal Code.
Lonzanida was sentenced for each count of falsification to imprisonment of four (4) years
and one (1) day of prisión correccional as minimum, to eight (8) years and one (1) day of
prisión mayor as maximum. The judgment of conviction became final on 23 October 2009 in
the Decision of this Court in Lonzanida v. People,13 before Lonzanida filed his certificate of
candidacy on 1 December 2009. Pertinent portions of the 11 August 2010 Resolution read:
Prescinding from the foregoing premises, Lonzanida, for having served as Mayor of San
Antonio, Zambales for more than three (3) consecutive terms and for having been convicted
by a final judgment of a crime punishable by more than one (1) year of imprisonment, is
clearly disqualified to run for the same position in the May 2010 Elections.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is hereby DENIED.
SO ORDERED.14
On 25 August 2010, Antipolo filed a Motion for Leave to Intervene and to Admit Attached
Petition-in-Intervention.15 She claimed her right to be proclaimed as Mayor of San Antonio,
Zambales because Lonzanida ceased to be a candidate when the COMELEC Second Division,
through its 18 February 2010 Resolution, ordered the cancellation of his certificate of
candidacy and the striking out of his name from the list of official candidates for the position
of Mayor of San Antonio, Zambales in the May 2010 elections.
In his Comment filed on 26 January 2011, Aratea asserted that Antipolo, as the candidate
who received the second highest number of votes, could not be proclaimed as the winning
candidate. Since Lonzanida’s disqualification was not yet final during election day, the votes
cast in his favor could not be declared stray. Lonzanida’s subsequent disqualification
resulted in a permanent vacancy in the Office of Mayor, and Aratea, as the duly-elected
Vice-Mayor, was mandated by Section 4416 of the Local Government Code to succeed as
Mayor.
The COMELEC’s Rulings
The COMELEC En Banc issued an Order dated 12 January 2011, stating:
Acting on the "Motion for Leave to Intervene and to Admit Attached Petition-in-
Intervention" filed by Estela D. Antipolo (Antipolo) and pursuant to the power of this
Commission to suspend its Rules or any portion thereof in the interest of justice, this
Commission hereby RESOLVES to:
1. GRANT the aforesaid Motion;
2. ADMIT the Petition-in-Intervention filed by Antipolo;
3. REQUIRE the Respondent, ROMEO DUMLAO LONZANIDA, as well as EFREN RACEL
ARATEA, proclaimed Vice-Mayor of San Antonio, Zambales, to file their respective
Comments on the Petition-in- Intervention within a non-extendible period of five (5) days
from receipt thereof;
4. SET the above-mentioned Petition-in-Intervention for hearing on January 26, 2011 at
10:00 a.m. COMELEC Session Hall, 8th Floor, Palacio del Gobernador, Intramuros, Manila.
WHEREFORE, furnish copies hereof the parties for their information and compliance.
SO ORDERED.17
In its Resolution dated 2 February 2011, the COMELEC En Banc no longer considered
Lonzanida’s qualification as an issue: "It is beyond cavil that Lonzanida is not eligible to hold
and discharge the functions of the Office of the Mayor of San Antonio, Zambales. The sole
issue to be resolved at this juncture is how to fill the vacancy resulting from Lonzanida’s
disqualification."18 The Resolution further stated:
We cannot sustain the submission of Oppositor Aratea that Intervenor Antipolo could never
be proclaimed as the duly elected Mayor of Antipolo [sic] for being a second placer in the
elections. The teachings in the cases of Codilla vs. De Venecia and Nazareno and Domino vs.
COMELEC, et al., while they remain sound jurisprudence find no application in the case at
bar. What sets this case apart from the cited jurisprudence is that the notoriety of
Lonzanida’s disqualification and ineligibility to hold public office is established both in fact
and in law on election day itself. Hence, Lonzanida’s name, as already ordered by the
Commission on February 18, 2010 should have been stricken off from the list of official
candidates for Mayor of San Antonio, Zambales.
WHEREFORE, in view of the foregoing, the Commission hereby:
1. Declares NULL and VOID the proclamation of respondent ROMEO D. LONZANIDA;
2. GRANTS the Petition for Intervention of Estela D. Antipolo;
3. Orders the immediate CONSTITUTION of a Special Municipal Board of Canvassers to
PROCLAIM Intervenor Estela D. Antipolo as the duly elected Mayor of San Antonio,
Zambales;
4. Orders Vice-Mayor Efren Racel Aratea to cease and desist from discharging the functions
of the Office of the Mayor, and to cause a peaceful turn-over of the said office to Antipolo
upon her proclamation; and
5. Orders the Office of the Executive Director as well as the Regional Election Director of
Region III to cause the implementation of this Resolution and disseminate it to the
Department of Interior and Local Government.
SO ORDERED.19
Aratea filed the present petition on 9 February 2011.
The Issues
The manner of filling up the permanent vacancy in the Office of the Mayor of San Antonio,
Zambales is dependent upon the determination of Lonzanida’s removal. Whether Lonzanida
was disqualified under Section 68 of the Omnibus Election Code, or made a false material
representation under Section 78 of the same Code that resulted in his certificate of
candidacy being void ab initio, is determinative of whether Aratea or Antipolo is the rightful
occupant to the Office of the Mayor of San Antonio, Zambales.
The dissenting opinions reverse the COMELEC’s 2 February 2011 Resolution and 12 January
2011 Order. They hold that Aratea, the duly elected Vice-Mayor of San Antonio, Zambales,
should be declared Mayor pursuant to the Local Government Code’s rule on succession.
The dissenting opinions make three grave errors: first, they ignore prevailing jurisprudence
that a false representation in the certificate of candidacy as to eligibility in the number of
terms elected and served is a material fact that is a ground for a petition to cancel a
certificate of candidacy under Section 78; second, they ignore that a false representation as
to eligibility to run for public office due to the fact that the candidate suffers from perpetual
special disqualification is a material fact that is a ground for a petition to cancel a certificate
of candidacy under Section 78; and third, they resort to a strained statutory construction to
conclude that the violation of the three-term limit rule cannot be a ground for cancellation
of a certificate of candidacy under Section 78, even when it is clear and plain that violation
of the three-term limit rule is an ineligibility affecting the qualification of a candidate to
elective office.
The dissenting opinions tread on dangerous ground when they assert that a candidate’s
eligibility to the office he seeks election must be strictly construed to refer only to the
details, i.e., age, citizenship, or residency, among others, which the law requires him to state
in his COC, and which he must swear under oath to possess. The dissenting opinions choose
to view a false certification of a candidate’s eligibility on the three-term limit rule not as a
ground for false material representation under Section 78 but as a ground for
disqualification under Section 68 of the same Code. This is clearly contrary to well-
established jurisprudence.
The Court’s Ruling
We hold that Antipolo, the alleged "second placer," should be proclaimed Mayor because
Lonzanida’s certificate of candidacy was void ab initio. In short, Lonzanida was never a
candidate at all. All votes for Lonzanida were stray votes. Thus, Antipolo, the only qualified
candidate, actually garnered the highest number of votes for the position of Mayor.
Qualifications and Disqualifications

Section 65 of the Omnibus Election Code points to the Local Government Code for the
qualifications of elective local officials. Paragraphs (a) and (c) of Section 39 and Section 40 of
the Local Government Code provide in pertinent part:
Sec. 39. Qualifications. ‒ (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city or province x x x; a resident therein for at
least one (1) year immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.
xxxx
(c) Candidates for the position of mayor or vice-mayor of independent component cities,
component cities, or municipalities must be at least twenty-one (21) years of age on election
day.
xxxx
Sec. 40. Disqualifications. - The following persons are disqualified from running for any
elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded. (Emphasis supplied)
Section 12 of the Omnibus Election Code provides:
Sec. 12. Disqualification. — Any person who has been declared by competent authority
insane or incompetent, or has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he was sentenced to a penalty of more
than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary pardon or granted
amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed
or after the expiration of a period of five years from his service of sentence, unless within
the same period he again becomes disqualified. (Emphasis supplied)
The grounds for disqualification for a petition under Section 68 of the Omnibus Election
Code are specifically enumerated:
Sec. 68. Disqualifications. ‒ Any candidate who, in an action or protest in which he is a party
is declared by final decision by a competent court guilty of, or found by the Commission of
having (a) given money or other material consideration to influence, induce or corrupt the
voters or public officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a
permanent resident of or an immigrant to a foreign country shall not be qualified to run for
any elective office under this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws. (Emphasis supplied)
A petition for disqualification under Section 68 clearly refers to "the commission of
prohibited acts and possession of a permanent resident status in a foreign country."20 All
the offenses mentioned in Section 68 refer to election offenses under the Omnibus Election
Code, not to violations of other penal laws. There is absolutely nothing in the language of
Section 68 that would justify including violation of the three-term limit rule, or conviction by
final judgment of the crime of falsification under the Revised Penal Code, as one of the
grounds or offenses covered under Section 68. In Codilla, Sr. v. de Venecia,21 this Court
ruled:
[T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in
Section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit
of COMELEC jurisdiction. They are criminal and not administrative in nature. x x x
Clearly, the violation by Lonzanida of the three-term limit rule, or his conviction by final
judgment of the crime of falsification under the Revised Penal Code, does not constitute a
ground for a petition under Section 68.
False Material Representation
Section 78 of the Omnibus Election Code states that a certificate of candidacy may be
denied or cancelled when there is false material representation of the contents of the
certificate of candidacy:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. ‒ A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
the person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later
than twenty-five days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the election.
(Emphasis supplied)
Section 74 of the Omnibus Election Code details the contents of the certificate of candidacy:
Sec. 74. Contents of certificate of candidacy. ‒ The certificate of candidacy shall state that
the person filing it is announcing his candidacy for the office stated therein and that he is
eligible for said office; if for Member of the Batasang Pambansa, the province, including its
component cities, highly urbanized city or district or sector which he seeks to represent; the
political party to which he belongs; civil status; his date of birth; residence; his post office
address for all election purposes; his profession or occupation; that he will support and
defend the Constitution of the Philippines and will maintain true faith and allegiance
thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly
constituted authorities; that he is not a permanent resident or immigrant to a foreign
country; that the obligation imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the certificate of candidacy
are true to the best of his knowledge.
x x x x (Emphasis supplied)
A candidate for mayor in the 2010 local elections was thus required to provide 12 items of
information in the certificate of candidacy:22 name; nickname or stage name; gender; age;
place of birth; political party that nominated the candidate; civil status; residence/address;
profession or occupation; post office address for election purposes; locality of which the
candidate is a registered voter; and period of residence in the Philippines before 10 May
2010. The candidate also certifies four statements: a statement that the candidate is a
natural born or naturalized Filipino citizen; a statement that the candidate is not a
permanent resident of, or immigrant to, a foreign country; a statement that the candidate is
eligible for the office he seeks election; and a statement of the candidate’s allegiance to the
Constitution of the Republic of the Philippines.23 The certificate of candidacy should also be
under oath, and filed within the period prescribed by law.
The conviction of Lonzanida by final judgment, with the penalty of prisión mayor,
disqualifies him perpetually from holding any public office, or from being elected to any
public office. This perpetual disqualification took effect upon the finality of the judgment of
conviction, before Lonzanida filed his certificate of candidacy. The pertinent provisions of
the Revised Penal Code are as follows:
Art. 27. Reclusion perpetua. — x x x
Prisión mayor and temporary disqualification. — The duration of the penalties of prisión
mayor and temporary disqualification shall be from six years and one day to twelve years,
except when the penalty of disqualification is imposed as an accessory penalty, in which
case, it shall be that of the principal penalty.
xxxx
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The
penalties of perpetual or temporary absolute disqualification for public office shall produce
the following effects:
1. The deprivation of the public offices and employments which the offender may have held,
even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office or to be
elected to such office.
3. The disqualification for the offices or public employments and for the exercise of any of
the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2
and 3 of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The
penalties of perpetual or temporary special disqualification for public office, profession or
calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices or employments either perpetually or
during the term of the sentence, according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the
exercise of the right of suffrage. — The perpetual or temporary special disqualification for
the exercise of the right of suffrage shall deprive the offender perpetually or during the term
of the sentence, according to the nature of said penalty, of the right to vote in any popular
election for any public office or to be elected to such office. Moreover, the offender shall not
be permitted to hold any public office during the period of his disqualification.
Art. 42. Prisión mayor — Its accessory penalties. — The penalty of prision mayor shall carry
with it that of temporary absolute disqualification and that of perpetual special
disqualification from the right of suffrage which the offender shall suffer although pardoned
as to the principal penalty, unless the same shall have been expressly remitted in the
pardon. (Emphasis supplied)
The penalty of prisión mayor automatically carries with it, by operation of law,24 the
accessory penalties of temporary absolute disqualification and perpetual special
disqualification. Under Article 30 of the Revised Penal Code, temporary absolute
disqualification produces the effect of "deprivation of the right to vote in any election for
any popular elective office or to be elected to such office.” The duration of temporary
absolute disqualification is the same as that of the principal penalty of prisión mayor. On the
other hand, under Article 32 of the Revised Penal Code, perpetual special disqualification
means that "the offender shall not be permitted to hold any public office during the period
of his disqualification,” which is perpetually. Both temporary absolute disqualification and
perpetual special disqualification constitute ineligibilities to hold elective public office. A
person suffering from these ineligibilities is ineligible to run for elective public office, and
commits a false material representation if he states in his certificate of candidacy that he is
eligible to so run.
In Lacuna v. Abes (Lacuna),25 the Court, speaking through Justice J.B.L. Reyes, explained the
import of the accessory penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it must be remembered that appellee’s
conviction of a crime penalized with prision mayor which carried the accessory penalties of
temporary absolute disqualification and perpetual special disqualification from the right of
suffrage (Article 42, Revised Penal Code); and Section 99 of the Revised Election Code
disqualifies a person from voting if he had been sentenced by final judgment to suffer one
year or more of imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies the convict for
public office and for the right to vote, such disqualification to last only during the term of
the sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of
Abes, would have expired on 13 October 1961.
But this does not hold true with respect to the other accessory penalty of perpetual special
disqualification for the exercise of the right of suffrage. This accessory penalty deprives the
convict of the right to vote or to be elected to or hold public office perpetually, as
distinguished from temporary special disqualification, which lasts during the term of the
sentence. Article 32, Revised Penal Code, provides:
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the
exercise of the right of suffrage. — The perpetual or temporary special disqualification for
the exercise of the right of suffrage shall deprive the offender perpetually or during the term
of the sentence, according to the nature of said penalty, of the right to vote in any popular
election for any public office or to be elected to such office. Moreover, the offender shall not
be permitted to hold any public office during the period of disqualification.
The word "perpetually" and the phrase "during the term of the sentence" should be applied
distributively to their respective antecedents; thus, the word "perpetually" refers to the
perpetual kind of special disqualification, while the phrase "during the term of the
sentence" refers to the temporary special disqualification. The duration between the
perpetual and the temporary (both special) are necessarily different because the provision,
instead of merging their durations into one period, states that such duration is "according to
the nature of said penalty" — which means according to whether the penalty is the
perpetual or the temporary special disqualification. (Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification
"deprives the convict of the right to vote or to be elected to or hold public office
perpetually.”
The accessory penalty of perpetual special disqualification takes effect immediately once the
judgment of conviction becomes final. The effectivity of this accessory penalty does not
depend on the duration of the principal penalty, or on whether the convict serves his jail
sentence or not. The last sentence of Article 32 states that "the offender shall not be
permitted to hold any public office during the period of his [perpetual special]
disqualification." Once the judgment of conviction becomes final, it is immediately
executory. Any public office that the convict may be holding at the time of his conviction
becomes vacant upon finality of the judgment, and the convict becomes ineligible to run for
any elective public office perpetually. In the case of Lonzanida, he became ineligible
perpetually to hold, or to run for, any elective public office from the time the judgment of
conviction against him became final. The judgment of conviction was promulgated on 20
July 2009 and became final on 23 October 2009, before Lonzanida filed his certificate of
candidacy on 1 December 2009 . 26
Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus
Election Code because this accessory penalty is an ineligibility, which means that the convict
is not eligible to run for public office, contrary to the statement that Section 74 requires him
to state under oath in his certificate of candidacy. As this Court held in Fermin v.
Commission on Elections,27 the false material representation may refer to "qualifications or
eligibility.” One who suffers from perpetual special disqualification is ineligible to run for
public office. If a person suffering from perpetual special disqualification files a certificate of
candidacy stating under oath that "he is eligible to run for (public) office," as expressly
required under Section 74, then he clearly makes a false material representation that is a
ground for a petition under Section 78. As this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not
based on the lack of qualifications but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications required of the public
office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is
eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation
to the constitutional and statutory provisions on qualifications or eligibility for public office.
If the candidate subsequently states a material representation in the CoC that is false, the
COMELEC, following the law, is empowered to deny due course to or cancel such certificate.
Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto
proceeding under Section 253 of the OEC since they both deal with the eligibility or
qualification of a candidate, with the distinction mainly in the fact that a "Section 78"
petition is filed before proclamation, while a petition for quo warranto is filed after
proclamation of the winning candidate.28 (Emphasis supplied)
Latasa, Rivera and Ong:
The Three-Term Limit Rule as a Ground for Ineligibility
Section 74 requires the candidate to certify that he is eligible for the public office he seeks
election. Thus, Section 74 states that "the certificate of candidacy shall state that the person
filing x x x is eligible for said office.” The three-term limit rule, enacted to prevent the
establishment of political dynasties and to enhance the electorate’s freedom of choice,29 is
found both in the Constitution30 and the law.31 After being elected and serving for three
consecutive terms, an elective local official cannot seek immediate reelection for the same
office in the next regular election32 because he is ineligible. One who has an ineligibility to
run for elective public office is not "eligible for [the] office." As used in Section 74, the word
"eligible"33 means having the right to run for elective public office, that is, having all the
qualifications and none of the ineligibilities to run for the public office.
In Latasa v. Commission on Elections,34 petitioner Arsenio Latasa was elected mayor of the
Municipality of Digos, Davao del Sur in 1992, 1995, and 1998. The Municipality of Digos was
converted into the City of Digos during Latasa’s third term. Latasa filed his certificate of
candidacy for city mayor for the 2001 elections. Romeo Sunga, Latasa’s opponent, filed
before the COMELEC a "petition to deny due course, cancel certificate of candidacy and/or
disqualification" under Section 78 on the ground that Latasa falsely represented in his
certificate of candidacy that he is eligible to run as mayor of Digos City. Latasa argued that
he did not make any false representation. In his certificate of candidacy, Latasa inserted a
footnote after the phrase "I am eligible" and indicated "*Having served three (3) term[s] as
municipal mayor and now running for the first time as city mayor." The COMELEC First
Division cancelled Latasa’s certificate of candidacy for violation of the three-term limit rule
but not for false material representation. This Court affirmed the COMELEC En Banc’s denial
of Latasa’s motion for reconsideration.
We cancelled Marino Morales’ certificate of candidacy in Rivera III v. Commission on
Elections (Rivera).35 We held that Morales exceeded the maximum three-term limit, having
been elected and served as Mayor of Mabalacat for four consecutive terms (1995 to 1998,
1998 to 2001, 2001 to 2004, and 2004 to 2007). We declared him ineligible as a candidate
for the same position for the 2007 to 2010 term. Although we did not explicitly rule that
Morales’ violation of the three-term limit rule constituted false material representation, we
nonetheless granted the petition to cancel Morales’ certificate of candidacy under Section
78. We also affirmed the cancellation of Francis Ong’s certificate of candidacy in Ong v.
Alegre,36 where the "petition to disqualify, deny due course and cancel" Ong’s certificate of
candidacy under Section 78 was predicated on the violation of the three-term limit rule.
Loong, Fermin and Munder:
When Possession of a Disqualifying Condition
is Not a Ground for a Petition for Disqualification
It is obvious from a reading of the laws and jurisprudence that there is an overlap in the
grounds for eligibility and ineligibility vis-à-vis qualifications and disqualifications. For
example, a candidate may represent that he is a resident of a particular Philippine locality37
when he is actually a permanent resident of another country.38 In cases of such overlap, the
petitioner should not be constrained in his choice of remedy when the Omnibus Election
Code explicitly makes available multiple remedies.39 Section 78 allows the filing of a
petition to deny due course or to cancel a certificate of candidacy before the election, while
Section 253 allows the filing of a petition for quo warranto after the election. Despite the
overlap of the grounds, one should not confuse a petition for disqualification using grounds
enumerated in Section 68 with a petition to deny due course or to cancel a certificate of
candidacy under Section 78.
The distinction between a petition under Section 68 and a petition under Section 78 was
discussed in Loong v. Commission on Elections40 with respect to the applicable prescriptive
period. Respondent Nur Hussein Ututalum filed a petition under Section 78 to disqualify
petitioner Benjamin Loong for the office of Regional Vice-Governor of the Autonomous
Government of Muslim Mindanao for false representation as to his age. The petition was
filed 16 days after the election, and clearly beyond the prescribed 25 day period from the
last day of filing certificates of candidacy. This Court ruled that Ututalum’s petition was one
based on false representation under Section 78, and not for disqualification under Section
68. Hence, the 25-day prescriptive period provided in Section 78 should be strictly applied.
We recognized the possible gap in the law:
It is true that the discovery of false representation as to material facts required to be stated
in a certificate of candidacy, under Section 74 of the Code, may be made only after the lapse
of the 25-day period prescribed by Section 78 of the Code, through no fault of the person
who discovers such misrepresentations and who would want the disqualification of the
candidate committing the misrepresentations. It would seem, therefore, that there could
indeed be a gap between the time of the discovery of the misrepresentation, (when the
discovery is made after the 25-day period under Sec. 78 of the Code has lapsed) and the
time when the proclamation of the results of the election is made. During this so-called
"gap" the would-be petitioner (who would seek the disqualification of the candidate) is left
with nothing to do except to wait for the proclamation of the results, so that he could avail
of a remedy against the misrepresenting candidate, that is, by filing a petition for quo
warranto against him. Respondent Commission sees this "gap" in what it calls a procedural
gap which, according to it, is unnecessary and should be remedied.
At the same time, it can not be denied that it is the purpose and intent of the legislative
branch of the government to fix a definite time within which petitions of protests related to
eligibility of candidates for elective offices must be filed, as seen in Sections 78 and 253 of
the Code. Respondent Commission may have seen the need to remedy this so-called
“procedural gap", but it is not for it to prescribe what the law does not provide, its function
not being legislative. The question of whether the time to file these petitions or protests is
too short or ineffective is one for the Legislature to decide and remedy.41
In Fermin v. Commission on Elections,42 the issue of a candidate’s possession of the
required one-year residency requirement was raised in a petition for disqualification under
Section 68 instead of a petition to deny due course or to cancel a certificate of candidacy
under Section 78. Despite the question of the one-year residency being a proper ground
under Section 78, Dilangalen, the petitioner before the COMELEC in Fermin, relied on
Section 5(C)(1) and 5(C)(3)(a)(4) of COMELEC Resolution No. 780043 and filed the petition
under Section 68. In Fermin, we ruled that "a COMELEC rule or resolution cannot supplant
or vary legislative enactments that distinguish the grounds for disqualification from those of
ineligibility, and the appropriate proceedings to raise the said grounds."44 A petition for
disqualification can only be premised on a ground specified in Section 12 or 68 of the
Omnibus Election Code or Section 40 of the Local Government Code. Thus, a petition
questioning a candidate’s possession of the required one-year residency requirement, as
distinguished from permanent residency or immigrant status in a foreign country, should be
filed under Section 78, and a petition under Section 68 is the wrong remedy.
In Munder v. Commission on Elections,45 petitioner Alfais Munder filed a certificate of
candidacy for Mayor of Bubong, Lanao del Sur on 26 November 2009. Respondent Atty.
Tago Sarip filed a petition for Munder’s disqualification on 13 April 2010. Sarip claimed that
Munder misrepresented that he was a registered voter of Bubong, Lanao del Sur, and that
he was eligible to register as a voter in 2003 even though he was not yet 18 years of age at
the time of the voter’s registration. Moreover, Munder’s certificate of candidacy was not
accomplished in full as he failed to indicate his precinct and did not affix his thumb-mark.
The COMELEC Second Division dismissed Sarip’s petition and declared that his grounds are
not grounds for disqualification under Section 68 but for denial or cancellation of Munder’s
certificate of candidacy under Section 78. Sarip’s petition was filed out of time as he had
only 25 days after the filing of Munder’s certificate of candidacy, or until 21 December 2009,
within which to file his petition.

The COMELEC En Banc, however, disqualified Munder. In reversing the COMELEC Second
Division, the COMELEC En Banc did not rule on the propriety of Sarip’s remedy but focused
on the question of whether Munder was a registered voter of Bubong, Lanao del Sur. This
Court reinstated the COMELEC Second Division’s resolution. This Court ruled that the
ground raised in the petition, lack of registration as voter in the locality where he was
running as a candidate, is inappropriate for a petition for disqualification. We further
declared that with our ruling in Fermin, we had already rejected the claim that lack of
substantive qualifications of a candidate is a ground for a petition for disqualification under
Section 68. The only substantive qualification the absence of which is a ground for a petition
under Section 68 is the candidate’s permanent residency or immigrant status in a foreign
country.
The dissenting opinions place the violation of the three-term limit rule as a disqualification
under Section 68 as the violation allegedly is "a status, circumstance or condition which bars
him from running for public office despite the possession of all the qualifications under
Section 39 of the [Local Government Code]." In so holding the dissenting opinions write in
the law what is not found in the law. Section 68 is explicit as to the proper grounds for
disqualification under said Section. The grounds for filing a petition for disqualification under
Section 68 are specifically enumerated in said Section. However, contrary to the specific
enumeration in Section 68 and contrary to prevailing jurisprudence, the dissenting opinions
add to the enumerated grounds the violation of the three-term limit rule and falsification
under the Revised Penal Code, which are obviously not found in the enumeration in Section
68.
The dissenting opinions equate Lonzanida’s possession of a disqualifying condition (violation
of the three-term limit rule) with the grounds for disqualification under Section 68. Section
68 is explicit as to the proper grounds for disqualification: the commission of specific
prohibited acts under the Omnibus Election Code and possession of a permanent residency
or immigrant status in a foreign country. Any other false representation regarding a material
fact should be filed under Section 78, specifically under the candidate’s certification of his
eligibility. In rejecting a violation of the three-term limit as a condition for eligibility, the
dissenting opinions resort to judicial legislation, ignoring the verba legis doctrine and well-
established jurisprudence on this very issue.
In a certificate of candidacy, the candidate is asked to certify under oath his eligibility, and
thus qualification, to the office he seeks election. Even though the certificate of candidacy
does not specifically ask the candidate for the number of terms elected and served in an
elective position, such fact is material in determining a candidate’s eligibility, and thus
qualification for the office. Election to and service of the same local elective position for
three consecutive terms renders a candidate ineligible from running for the same position in
the succeeding elections. Lonzanida misrepresented his eligibility because he knew full well
that he had been elected, and had served, as mayor of San Antonio, Zambales for more than
three consecutive terms yet he still certified that he was eligible to run for mayor for the
next succeeding term. Thus, Lonzanida’s representation that he was eligible for the office
that he sought election constitutes false material representation as to his qualification or
eligibility for the office.
Legal Duty of COMELEC
to Enforce Perpetual Special Disqualification
Even without a petition under Section 78 of the Omnibus Election Code, the COMELEC is
under a legal duty to cancel the certificate of candidacy of anyone suffering from perpetual
special disqualification to run for public office by virtue of a final judgment of conviction.
The final judgment of conviction is judicial notice to the COMELEC of the disqualification of
the convict from running for public office. The law itself bars the convict from running for
public office, and the disqualification is part of the final judgment of conviction. The final
judgment of the court is addressed not only to the Executive branch, but also to other
government agencies tasked to implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to implement the
disqualification, it is assumed that the portion of the final judgment on disqualification to
run for elective public office is addressed to the COMELEC because under the Constitution
the COMELEC is duty bound to "enforce and administer all laws and regulations relative to
the conduct of an election."46 The disqualification of a convict to run for elective public
office under the Revised Penal Code, as affirmed by final judgment of a competent court, is
part of the enforcement and administration of "all the laws" relating to the conduct of
elections.
Effect of a Void Certificate of Candidacy
A cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, and
much less to valid votes.47 We quote from the COMELEC’s 2 February 2011 Resolution with
approval:
As early as February 18, 2010, the Commission speaking through the Second Division had
already ordered the cancellation of Lonzanida’s certificate of candidacy, and had stricken off
his name in the list of official candidates for the mayoralty post of San Antonio, Zambales.
Thereafter, the Commission En Banc in its resolution dated August 11, 2010 unanimously
affirmed the resolution disqualifying Lonzanida. Our findings were likewise sustained by the
Supreme Court no less. The disqualification of Lonzanida is not simply anchored on one
ground. On the contrary, it was emphasized in our En Banc resolution that Lonzanida’s
disqualification is two-pronged: first, he violated the constitutional fiat on the three-term
limit; and second, as early as December 1, 2009, he is known to have been convicted by final
judgment for ten (10) counts of Falsification under Article 171 of the Revised Penal Code. In
other words, on election day, respondent Lonzanida’s disqualification is notoriously known
in fact and in law. Ergo, since respondent Lonzanida was never a candidate for the position
of Mayor [of] San Antonio, Zambales, the votes cast for him should be considered stray
votes. Consequently, Intervenor Antipolo, who remains as the sole qualified candidate for
the mayoralty post and obtained the highest number of votes, should now be proclaimed as
the duly elected Mayor of San Antonio, Zambales.48 (Boldfacing and underscoring in the
original; italicization supplied)
Lonzanida's certificate of candidacy was cancelled because he was ineligible or not qualified
to run for Mayor.1âwphi1 Whether his certificate of candidacy is cancelled before or after
the elections is immaterial because the cancellation on such ground means he was never a
candidate from the very beginning, his certificate of candidacy being void ab initio. There
was only one qualified candidate for Mayor in the May 201 0 elections - Anti polo, who
therefore received the highest number of votes.
WHEREFORE, the petition is DISMISSED. The Resolution dated 2 February 2011 and the
Order dated 12 January 2011 of the COMELEC En Bane in SPA No. 09-158 (DC) are
AFFIRMED. The COMELEC En Bane is DIRECTED to constitute a Special Municipal Board of
Canvassers to proclaim Estela D. Antipolo as the duly elected Mayor of San Antonio,
Zambales. Petitioner Efren Racel Aratea is ORDERED to cease and desist from discharging
the functions of the Office of the Mayor of San Antonio, Zambales.
SO ORDERED.
Disqualifications
G.R. No. 226792
SOFRONIO B. ALBANIA, Petitioner
vs.
COMMISSION ON ELECTIONS Promulgated: and EDGARDO A. TALLADO,
Respondent
DECISION
PERALTA, J.:
Challenged in this petition for certiorari under Rule 64, in relation to Rule 65 of the Rules
of Civil Procedure is the Resolution   dated August 24, 2016 of the Commission on
1
Elections (COMELEC) En Banc which upheld the Resolution   dated April 22, 2016 of the
2
COMELEC Second Division dismissing the petition to deny due course to or to cancel
respondent Edgardo A. Tallado's Certificate of Candidacy (COC) for being filed out of
time.
The facts are as follows:
In the May 14, 2007 National and Local Elections, respondent Edgardo A. Tallado and
Jesus O. Typoco were both candidates for the position of Governor in Camarines Norte.
After the counting and canvassing of votes, Typoco was proclaimed as the winner.
Respondent questioned Typoco's proclamation by filing with the COMELEC, a petition
for correction of a manifest error. The Petition was decided3 in respondent's favor on
March 5, 2010 and the latter assumed the position of Governor of Camarines Norte from
March 22, 2010 to June 30, 2010, the end of the 2007-2010 term.
Respondent ran again in the 2010   and 2013   National and Local Elections where he
4 5
won and served as Governor of Camarines Norte, respectively.
On October 16, 2015, respondent filed his Certificate of Candidacy   as Governor of
6
Camarines Norte in the May 9, 2016 National and Local elections
On November 13, 2015, petitioner, a registered voter of Poblacion Sta. Elena,
Camarines Norte, filed a petition   for respondent's disqualification from running as
7
Governor based on Rule 25 of COMELEC Resolution No. 9523   on two grounds: (1) he
8
violated the three term limit I rule under Section 43 of RA No 7160, otherwise known as
the Local Government Code of 1991 (LGC); and (2) respondent's suspension froni office
for one year without pay, together with its accessory penalties, after he was found guilty
of oppression and grave abuse of authority in the Ombudsman's Order9 dated October
2, 2015.
In his Verified Answer, respondent argued that since the petition was primarily based on
his alleged violation of the three-term limit rule, the same1 should have been filed as a
petition to deny due course to or cancel certificate of candidacy under Rule 23 of
COMELEC Resolution 9523, in relation to Section 78 of the Omnibus Election Code, as
the ground cited affected a candidate's eligibility; that based on Section 23, the petition
should had been filed on November 10, 2015, but the petition was filed only on
November 13, 2015, hence, the same had already prescribed and must be dismissed.
His suspension from office is also not a ground for a petition for disqualification. On the
substantive issues, he denied violating the three-term limit rule as he did not fully serve
three consecutive terms since he only served as Governor for the 2007 elections from
March 22, 2010 to June 30, 2010.
On April 22, 2016, the COMELEC Second Division dismissed the petition for being filed
out of time. It ruled that a violation of the three-term limit rule and suspension from office
as a result of an administrative case are not grounds for disqualification of a candidate
under the law; that the alleged violation of three-term limit rule is a ground for ineligibility
which constituted false material representation under Section 78 of the OEC; and such
petition must be filed within 25 days from the time of filing of the COC, which respondent
failed to do.
Petitioner filed a motion for reconsideration with the COMELEC En Banc, which
dismissed the same in a Resolution dated August 24, 2016.
The COMELEC En Banc echoed the Division's findings that the grounds relied upon by
petitioner are not proper for a petition for disqualification but one for denial of due course
to or cancellation of respondent's COC, which was filed out of time. It then continued to
rule on the merits finding that respondent did not serve the full 2007-2010 term as
Governor of Camarines Norte, thus, cannot be considered as one term for purposes of
counting the three-term threshold; and that the ground for a candidate's disqualification
referred to by Section 40 (b) of the LGC is the actual removal from office as a result of an
administrative case, and not mere suspension as imposed by the Ombudsman.
Dissatisfied, petitioner is now before us in a petition for certiorari raising the following
grounds, to wit: Whether or not the respondent COMELEC acted with grave abuse of
discretion amounting to lack of jurisdiction.: (1) in ruling that the grounds relied upon are
not proper grounds for a petition for disqualification; (2) in ruling that even if the petition
for disqualification is considered one for denial of due course to or cancellation of private
respondent Tallado's COC, the same is filed out of time; (3) in failing to rule that private
respondent Tallado should be disqualified pursuant to Section 43 of RA No. 7160 or the
LGC; and (4) in failing to rule that private respondent Tallado should be disqualified due
to the Order dated October of the Ombudsman.  10
We find the petition without merit.
In a petition for certiorari under Rule 64, in relation to Rule 65 of the Rules of Court, the
primordial issue to be resolved is whether the respondent tribunal committed grave
abuse of discretion amounting to lack or excess ofjurisdiction in issuing the assailed
resolution.   The term "grave abuse of discretion" is defined as a capricious and
11
whimsical exercise of judgment so patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is
exercised in an arbitrary and despotic manner because of passion or hostility.   Grave 12
abuse of discretion arises when a court or tribunal violates the Constitution, the law or
.existing jurisprudence.   and as a matter of policy, this Court will not interfere with the
13
resolutions of the Comelec unless it is shown that it had committed grave abuse of
discretion. Thus, in the absence of grave abuse of discretion, a Rule 64 petition will not
prosper. 14
The grounds for disqualification of a candidate are found under Sections 12 and 68 of
Batas Pambansa Blg. 881, as amended, otherwise known as the Omnibus Election
Code of the Philippines, as well as Section 40 of the Local Government Code, which
respectively provide:
SEC. 12. Disqualifications. Any person who has been declared by competent authority
insane or incompetent, or has been sentenced by final judgment for subversion,
insurrection, rebellion, or for any offense for which he 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 or sentence,
unless within the same period he again becomes disqualified.
xxxx
SEC. 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, subparagraph 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 a permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws.
xxxx
SECTION 40. Disqualifications - The following persons are disqualified from running for
any elective local position:
 (a) Those sentence by final judgment for an offense involving moral turpitude or
for an offense punishable by one (1) year or more of imprisonment, within two (2)
years after serving sentence;
(b) Those removed from office as a result of an administrative case; .
(c) Those convicted by final judgment for violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right
to reside abroad and continue to avail of the same right after the effectivity of this
Code; and
(g) The insane or feeble-minded.
Petitioner filed the petition for disqualification of respondent on the grounds that he
allegedly violated the three-term limit rule provided under the Constitution and the LGC;
and that he was suspended from office as a result of an administrative case. Notably,
however, a reading of the grounds enumerated under the above-quoted provisions for a
candidate's disqualification does not include the two grounds relied upon by petitioner.
Thus, the COMELEC Second Division was correct when it found that the petition was not
based on any of the grounds for disqualification as enumerated in the foregoing statutory
provisions.
Respondent's suspension from office is indeed not a ground for a petition for
disqualification as Section 40 (b) clearly speaks of removal from office as a result of an
administrative offense that would disqualify a candidate from running for any elective
local position. In fact, the penalty of suspension cannot be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications for the office as
provided under Section 66(b) of R.A. No. 7160, to wit:
SEC. 66. Form and Notice of Decision. - x x x
(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a
period of six (6) months for every administrative offense, nor shall said penalty be a bar
to the candidacy of the respondent so suspended as long as he meets the qualifications
for the office.
While the alleged violation of the three-term limit rule is not a ground for a petition for
disqualification, however, the COMELEC Second Division found that it is an ineligibility
which is a proper ground for a petition to deny due course to or to cancel a Certificate of
Candidacy under Section 78 of the OEC, hence considered the petition as such.
The Constitution has vested in the COMELEC broad powers, involving not only the
enforcement and administration of all laws and regulations relative to the conduct of
elections, but also the resolution and determination of election controversies.   It also
15
granted the COMELEC the power and authority to promulgate its rules of procedure, with
the primary objective of ensuring the expeditious disposition of election
cases.   Concomitant to such powers is the authority of the COMELEC to determine the
16
true nature of the cases filed before it. Thus, it examines the allegations of every
pleading filed, obviously aware that in determining the nature of the complaint or petition,
its averments, rather than its title/caption, are the proper· gauges. 17
Since the petition filed was a petition to deny due course to or to cancel a certificate of
candidacy, such petition must be filed within 25 days from the time of filing of the COC,
as provided under Section 78 of the Omnibus Election Code. However, as the
COMELEC found, the petition was filed beyond the reglementary period, and dismissed
the petition for being filed out time. The COMELEC En Banc affirmed such dismissal.
We agree.
The three-term limit rule is embodied in Section 8 of Article X of the Constitution, to wit:
Section 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for more
than three consecutive terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his service for the full term
for which he was elected.
which is restated in Section 43 of the Local Government Code, thus:
Section 43. Term of Office. - (a) x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected.
Section 74 of the OEC provides that the certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is
eligible for said office. The word "eligible" in Section 74 means having the right to run for
elective public office, that is, having all the qualifications and none of the ineligibilities to
run for the public office.   And We had held   that a violation of the three-term limit rule is
20 21
an ineligibility which is a proper ground for a petition to deny due course to or to cancel a
COC under Section 78 of the Omnibus Election Code, to wit:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed
by the person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may be filed at any time
not later than twenty-five days from the time of the filing of the certificate of candidacy
and shall be decided, after due notice and hearing, not later than fifteen days before the
election.
As the petition filed is indeed a petition under Section 78 of the OEC, the filing of the
same must comply with the period prescribed therein, i.e., the filing of the same must be
made not later than twenty-five days from the time of the filing of the certificate of
candidacy.   In this ca.se, respondent filed his COC for Governor of Camarines Norte for
22
the 2016 elections on October 16, 2015, and he had 25 days therefrom to file the petition
for denial of due course or cancellation of COC on the ground of violation of the three-
term limit rule, which fell on November 10, 2015. However, the petition was filed only on
November 13, 2015 which was already beyond the period to file the same; thus, find no
grave abuse of discretion committed by the COMELEC in dismissing the petition for
being filed out of time.
Petitioner's insistence that the petition filed with the COMELEC was based on Rule 25 of
COMELEC Resolution No. 9523 which provides:
Rule 25 - Disqualification of Candidates
Section 1. Grounds. - 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 to
be suffering from any disqualification provided by law or the Constitution.
x x xx
Section 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.
is not meritorious. Rule 25 of Comelec Resolution No. 9523 refers to disqualification of
candidates and the grounds thereof, which are those provided in Sections 12 and 68 of
the OEC and Section 40 of the LGC, as quoted in the early part of the decision. To
reiterate, a violation of the three-term limit rule is not included among the grounds for
disqualification, but a ground for a petition to deny due course to or cancel certificate of
candidacy; thus, it is Rule 23 of COMELEC Resolution No. 9523 which is applicable, and
We quote:
Rule 23 - Petition to Deny Due Course to or Cancel Certificates of Candidacy
Section 1. Ground for Denial or Cancellation of Certificate of Candidacy. - A verified
Petition to Deny Due Course to or Cancel a Certificate of Candidacy for any elective
office may be filed by any registered voter or a duly registered political party,
organization, or coalition of political parties on the exclusive ground that any material
representation contained therein as required by law is false.
Section 2. Period to File Petition. - The Petition must be filed within five (5) days from the
last day for filing of certificate of candidacy; but not later than twenty five (25) days from
the time of filing of the certificate of candidacy subject of the Petition. In case of a
substitute candidate, the Petition must be filed within five (5) days from the time the
substitute candidate filed his certificate of candidacy.
We, likewise, find no grave abuse of discretion committed by the COMELEC En
Banc when it found that the petition to deny due course to or cancel a COC will not also
prosper as there was no violation of the three-term limit rule. Petitioner alleges that since
respondent had already been elected and had served as Governor of Camarines Norte
for three consecutive terms, i.e., 2007, 2010, and 2013, he is proscribed from running for
the same position in the 2016 elections as it would already be his fourth consecutive
term.
We are not convinced.
We held that two conditions must concur for the application of the disqualification of a
candidate based on violation of the three-term limit rule, which are: (1) that the official
concerned has been elected for three consecutive terms in the same local government
post, and (2) that he has fully served three consecutive terms.  23
In Aldovino, Jr. v. Commission on Elections,   we said: As worded, the constitutional
24
provision fixes the term of a local elective office and limits an elective official's stay in
office to no more than three consecutive terms. x x x
Significantly, this provision refers to a "term" as a period of time - three years - during
which an official has title to office and can serve. Appari v. Court of Appeals, a
Resolution promulgated on November 28, 2007, succinctly discusses what a term
connotes, as follows:
The word "term" in a legal sense means a fixed and definite period of time which the law
describes that an officer may hold an office. According to Mechem, the term of office is
the period during which an office may be held. Upon expiration of the officer's term,
unless he is authorized by law to holdover, his rights, duties and authority as a public
officer must ipso facto cease. In the law of public officers, the most and natural frequent
method by which a public officer ceases to be such is by the expiration of the terms for
which he was elected or appointed.
A later case, Gaminde v. Commission on Audit, reiterated that he term means the time
during which the officer may claim to hold office as of right, and fixes the interval after
which the several incumbents shall succeed one another.  25
In this case, while respondent ran as Governor of Camarines Norte in the 2007 elections,
he did not win as such. It was only after he filed la petition for correction of manifest error
that he was proclaimed as the duly-elected Governor. He assumed the post and served
the unexpired term of his opponent from March 22, 2010 until June 30, 2010.
Consequently, he did not hold the office for the full term of three years to which he was
supposedly entitled to. Thus, such period of time that respondent served as Governor did
not constitute a complete and full service of his term. The period when he was out of
office involuntarily interrupted the continuity of his service as Governor.26 As he had not
fully served the 2007-2010 term, and had not been elected for three consecutive terms
as Governor, there was no violation of the three-term limit rule when he ran again in the
2016 elections.
We quote with approval the COMELEC En Banc's ruling on the matter as follows:
x x xx
The Supreme Court has ruled in several occasions that in.order for the ineligibility under
the "three-term limit rule" to apply, two conditions must concur: first, that the official
concerned has been elected for three consecutive terms in the same local government
post; and second, that he has fully served three consecutive terms.
While it is undisputed that respondent was duly elected as Governor of Camarines Norte
for three consecutive terms, the issue lies on whether he is deemed to have fully served
his first term, specifically, whether the service by an elected official of a term less than
the full three years arising from his being declared as the duly elected official in an
election contest is considered full service of the term for purposes of counting the three-
term threshold.
The facts involved in the present case are similar to those involved
in Abundo v. COMELEC, where the Court declared:
There can be no quibbling that, during the term 2004-2007, and with the enforcement of
the decision of the election protest in his favor, Abundo assumed the mayoralty post only
on May 9, 2006 and served the term until June 30, 2007 or for a period of a little over
one year and one month. xxx It cannot be said that Mayor Abundo was able to serve fully
the entire 2004-2007 term to which he was otherwise entitled.
Xxx
Needless to stress, the almost two-year period during which Abundo 's opponent actually
served as Mayor is and ought to be considered an involuntary interruption of Abundo 's
continuity of service. An involuntary interrupted term,
cannot, in the context of the disqualification rule, be considered as one term for purposes
of counting the threeterm threshold.
Xxx
As previously stated, the declaration of being the winner in an election protest grants the
local elected official the right to serve the unexpired portion of the term.  Verily, while he
1âwphi1
was declared the winner in the protest for the mayoralty seat for the 2004-2007 term,
Abundo's full term has been substantially reduced by the actual service rendered by his
dpponent (Torres). Hence, there was actual involuntary interruption in the term of
Abundo and he cannot be considered to have served the full 2004-2007 term.
Applying the foregoing in the instant case, since Respondent did not serve the full 2007-
2010 term, it cannot be considered as one term for purposes of counting the three-term
threshold. Consequently, Respondent cannot be said to have continuously served as
Governor for three consecutive terms prior to the 2016 elections.
x x x 27
WHEREFORE, the petition is DENIED. The Resolution dated August 24, 2016 of the
Commission on Elections En Banc is hereby AFFIRMED.
SO ORDERED.
Disqualifications
G.R. No. 221697
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ
Respondents.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the
Rules of Court with extremely urgent application for an ex parte issuance of temporary
restraining order/status quo ante order and/or writ of preliminary injunction assailing the
following: (1) 1 December 2015 Resolution of the Commission on Elections (COMELEC)
Second Division; (2) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-
001 (DC); (3) 11 December 2015 Resolution of the COMELEC First Division; and ( 4) 23
December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-
007 (DC) and SPA No. 15-139 (DC) for having been issued without jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn
infant in the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3
September 1968. Parental care and custody over petitioner was passed on by Edgardo to his
relatives, Emiliano Militar (Emiliano) and his wife. Three days after, 6 September 1968,
Emiliano reported and registered petitioner as a foundling with the Office of the Civil
Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and Certificate of Live Birth,
the petitioner was given the name "Mary Grace Natividad Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a.
Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her
adoption with the Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the trial
court granted their petition and ordered that petitioner's name be changed from "Mary
Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although
necessary notations were made by OCR-Iloilo on petitioner's foundling certificate reflecting
the court decreed adoption,2 the petitioner's adoptive mother discovered only sometime in
the second half of 2005 that the lawyer who handled petitioner's adoption failed to secure
from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's new name and the
name of her adoptive parents. 3 Without delay, petitioner's mother executed an affidavit
attesting to the lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006,
OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace Natividad Sonora
Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with
the local COMELEC Office in San Juan City. On 13 December 1986, she received her
COMELEC Voter's Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro
Manila.5
On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F9272876 by
the Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998,
she renewed her Philippine passport and respectively secured Philippine Passport Nos.
L881511 and DD156616.7
Initially, the petitioner enrolled and pursued a degree in Development Studies at the
University of the Philippines8 but she opted to continue her studies abroad and left for the
United States of America (U.S.) in 1988. Petitioner graduated in 1991 from Boston College in
Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts degree in Political
Studies.9
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a
citizen of both the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City.
10 Desirous of being with her husband who was then based in the U.S., the couple flew back
to the U.S. two days after the wedding ceremony or on 29 July 1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April
1992.12 Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both
born in the Philippines on 10 July 1998 and 5 June 2004, respectively. 13
On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained U.S.
Passport No. 017037793 on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support
her father's candidacy for President in the May 2004 elections. It was during this time that
she gave birth to her youngest daughter Anika. She returned to the U.S. with her two
daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed back to the
Philippines upon learning of her father's deteriorating medical condition. 17 Her father
slipped into a coma and eventually expired. The petitioner stayed in the country until 3
February 2005 to take care of her father's funeral arrangements as well as to assist in the
settlement of his estate.18
According to the petitioner, the untimely demise of her father was a severe blow to her
entire family. In her earnest desire to be with her grieving mother, the petitioner and her
husband decided to move and reside permanently in the Philippines sometime in the first
quarter of 2005.19 The couple began preparing for their resettlement including notification
of their children's schools that they will be transferring to Philippine schools for the next
semester;20 coordination with property movers for the relocation of their household goods,
furniture and cars from the U.S. to the Philippines;21 and inquiry with Philippine authorities
as to the proper procedure to be followed in bringing their pet dog into the country.22 As
early as 2004, the petitioner already quit her job in the U.S.23
Finally, petitioner came home to the Philippines on 24 May 200524 and without delay,
secured a Tax Identification Number from the Bureau of Internal Revenue. Her three (3)
children immediately followed25 while her husband was forced to stay in the U.S. to
complete pending projects as well as to arrange the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's place until she and her
husband purchased a condominium unit with a parking slot at One Wilson Place
Condominium in San Juan City in the second half of 2005.27 The corresponding
Condominium Certificates of Title covering the unit and parking slot were issued by the
Register of Deeds of San Juan City to petitioner and her husband on 20 February 2006.28
Meanwhile, her children of school age began attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal
of some of the family's remaining household belongings.29 She travelled back to the
Philippines on 11 March 2006.30
In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the
family's change and abandonment of their address in the U.S.31 The family home was
eventually sold on 27 April 2006.32 Petitioner's husband resigned from his job in the U.S. in
April 2006, arrived in the country on 4 May 2006 and started working for a major Philippine
company in July 2006.33
In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian
Hills, Quezon City where they built their family home34 and to this day, is where the couple
and their children have been residing.35 A Transfer Certificate of Title covering said property
was issued in the couple's name by the Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines
pursuant to Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act
of 2003.36 Under the same Act, she filed with the Bureau of Immigration (BI) a sworn
petition to reacquire Philippine citizenship together with petitions for derivative citizenship
on behalf of her three minor children on 10 July 2006.37 As can be gathered from its 18 July
2006 Order, the BI acted favorably on petitioner's petitions and declared that she is deemed
to have reacquired her Philippine citizenship while her children are considered as citizens of
the Philippines.38 Consequently, the BI issued Identification Certificates (ICs) in petitioner's
name and in the names of her three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August
2006.40 She also secured from the DFA a new Philippine Passport bearing the No.
XX4731999.41 This passport was renewed on 18 March 2014 and she was issued Philippine
Passport No. EC0588861 by the DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of
the Movie and Television Review and Classification Board (MTRCB).43 Before assuming her
post, petitioner executed an "Affidavit of Renunciation of Allegiance to the United States of
America and Renunciation of American Citizenship" before a notary public in Pasig City on
20 October 2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No.
9225.45 The following day, 21 October 2010 petitioner submitted the said affidavit to the
BI46 and took her oath of office as Chairperson of the MTRCB.47 From then on, petitioner
stopped using her American passport.48
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in
Manila an "Oath/Affirmation of Renunciation of Nationality of the United States."49 On that
day, she accomplished a sworn questionnaire before the U.S. Vice Consul wherein she
stated that she had taken her oath as MTRCB Chairperson on 21 October 2010 with the
intent, among others, of relinquishing her American citizenship.50 In the same
questionnaire, the petitioner stated that she had resided outside of the U.S., specifically in
the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of
Nationality of the United States" effective 21 October 2010.52

On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy
(COC) for Senator for the 2013 Elections wherein she answered "6 years and 6 months" to
the question "Period of residence in the Philippines before May 13, 2013."53 Petitioner
obtained the highest number of votes and was proclaimed Senator on 16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530.
55
On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections.
56 In her COC, the petitioner declared that she is a natural-born citizen and that her
residence in the Philippines up to the day before 9 May 2016 would be ten (10) years and
eleven (11) months counted from 24 May 2005.57 The petitioner attached to her COC an
"Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and sworn to before a
notary public in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections triggered the filing of
several COMELEC cases against her which were the subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a
petition to deny due course or cancel said COC which was docketed as SPA No. 15-001 (DC)
and raffled to the COMELEC Second Division.59 She is convinced that the COMELEC has
jurisdiction over her petition.60 Essentially, Elamparo's contention is that petitioner
committed material misrepresentation when she stated in her COC that she is a natural-
born Filipino citizen and that she is a resident of the Philippines for at least ten (10) years
and eleven (11) months up to the day before the 9 May 2016 Elections.61
On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a
natural-born Filipino on account of the fact that she was a foundling.62 Elamparo claimed
that international law does not confer natural-born status and Filipino citizenship on
foundlings.63 Following this line of reasoning, petitioner is not qualified to apply for
reacquisition of Filipino citizenship under R.A. No. 9225 for she is not a natural-born Filipino
citizen to begin with.64 Even assuming arguendo that petitioner was a natural-born Filipino,
she is deemed to have lost that status when she became a naturalized American citizen.65
According to Elamparo, natural-born citizenship must be continuous from birth.66
On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by
the sworn declaration she made in her 2012 COC for Senator wherein she indicated that she
had resided in the country for only six ( 6) years and six ( 6) months as of May 2013
Elections. Elamparo likewise insisted that assuming arguendo that petitioner is qualified to
regain her natural-born status under R.A. No. 9225, she still fell short of the ten-year
residency requirement of the Constitution as her residence could only be counted at the
earliest from July 2006, when she reacquired Philippine citizenship under the said Act. Also
on the assumption that petitioner is qualified to reacquire lost Philippine Citizenship,
Elamparo is of the belief that she failed to reestablish her domicile in the Philippines.67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a
petition for quo warranto which could only be filed if Grace Poe wins in the Presidential
elections, and that the Department of Justice (DOJ) has primary jurisdiction to revoke the
BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not contain allegations which,
if hypothetically admitted, would make false the statement in her COC that she is a natural-
born Filipino citizen nor was there any allegation that there was a willful or deliberate intent
to misrepresent on her part;
(3) she did not make any material misrepresentation in the COC regarding her citizenship
and residency qualifications for:
a. the 1934 Constitutional Convention deliberations show that foundlings were considered
citizens;
b. foundlings are presumed under international law to have been born of citizens of the
place where they are found;
c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No.
9225;
d. she executed a sworn renunciation of her American citizenship prior to the filing of her
COC for President in the May 9, 2016 Elections and that the same is in full force and effect
and has not been withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not possess natural-born status;
f. residence is a matter of evidence and that she reestablished her domicile in the
Philippines as early as May 24, 2005;

g. she could reestablish residence even before she reacquired natural-born citizenship under
R.A. No. 9225;
h. statement regarding the period of residence in her 2012 COC for Senator was an honest
mistake, not binding and should give way to evidence on her true date of reacquisition of
domicile;
i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people
to decide a purely political question, that is, should she serve as the country's next leader.68
After the parties submitted their respective Memoranda, the petition was deemed
submitted for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that
petitioner's COC, filed for the purpose of running for the President of the Republic of the
Philippines in the 9 May 2016 National and Local Elections, contained material
representations which are false. The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due
Course to or Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate
of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and
Local Elections filed by respondent Mary Grace Natividad Sonora Poe Llamanzares is hereby
CANCELLED.69
Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner
which the COMELEC En Banc resolved in its 23 December 2015 Resolution by denying the
same.70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad),
Antonio P. Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the
COMELEC which were consolidated and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure,71
docketed as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite residency
and citizenship to qualify her for the Presidency.72
Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons
of unknown parentage, particularly foundlings, cannot be considered natural-born Filipino
citizens since blood relationship is determinative of natural-born status.73 Tatad invoked
the rule of statutory construction that what is not included is excluded. He averred that the
fact that foundlings were not expressly included in the categories of citizens in the 193 5
Constitution is indicative of the framers' intent to exclude them.74 Therefore, the burden
lies on petitioner to prove that she is a natural-born citizen.75
Neither can petitioner seek refuge under international conventions or treaties to support
her claim that foundlings have a nationality.76 According to Tatad, international
conventions and treaties are not self-executory and that local legislations are necessary in
order to give effect to treaty obligations assumed by the Philippines.77 He also stressed that
there is no standard state practice that automatically confers natural-born status to
foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to
reacquire Philippine citizenship under R.A. No. 9225 because it only applies to former
natural-born citizens and petitioner was not as she was a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the
ten (10) year residency requirement.80 Tatad opined that petitioner acquired her domicile
in Quezon City only from the time she renounced her American citizenship which was
sometime in 2010 or 2011.81 Additionally, Tatad questioned petitioner's lack of intention to
abandon her U.S. domicile as evinced by the fact that her husband stayed thereat and her
frequent trips to the U.S.82
In support of his petition to deny due course or cancel the COC of petitioner, docketed as
SPA No. 15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not
bestow upon her the status of a natural-born citizen.83 He advanced the view that former
natural-born citizens who are repatriated under the said Act reacquires only their Philippine
citizenship and will not revert to their original status as natural-born citizens.84
He further argued that petitioner's own admission in her COC for Senator that she had only
been a resident of the Philippines for at least six (6) years and six (6) months prior to the 13
May 2013 Elections operates against her. Valdez rejected petitioner's claim that she could
have validly reestablished her domicile in the Philippines prior to her reacquisition of
Philippine citizenship. In effect, his position was that petitioner did not meet the ten (10)
year residency requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras' petition,85 docketed
as SPA No. 15-007 (DC), limited the attack to the residency issue. He claimed that
petitioner's 2015 COC for President should be cancelled on the ground that she did not
possess the ten-year period of residency required for said candidacy and that she made
false entry in her COC when she stated that she is a legal resident of the Philippines for ten
(10) years and eleven (11) months by 9 May 2016.86 Contreras contended that the
reckoning period for computing petitioner's residency in the Philippines should be from 18
July 2006, the date when her petition to reacquire Philippine citizenship was approved by
the BI.87 He asserted that petitioner's physical presence in the country before 18 July 2006
could not be valid evidence of reacquisition of her Philippine domicile since she was then
living here as an American citizen and as such, she was governed by the Philippine
immigration laws.88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a cause of action. His
petition did not invoke grounds proper for a disqualification case as enumerated under
Sections 12 and 68 of the Omnibus Election Code.89 Instead, Tatad completely relied on the
alleged lack of residency and natural-born status of petitioner which are not among the
recognized grounds for the disqualification of a candidate to an elective office.90
Second, the petitions filed against her are basically petitions for quo warranto as they focus
on establishing her ineligibility for the Presidency.91 A petition for quo warranto falls within
the exclusive jurisdiction of the Presidential Electoral Tribunal (PET) and not the
COMELEC.92
Third, the burden to prove that she is not a natural-born Filipino citizen is on the
respondents.93 Otherwise stated, she has a presumption in her favor that she is a natural-
born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to a nationality and
are presumed to be citizens of the country where they are found.94 Consequently, the
petitioner is considered as a natural-born citizen of the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under
R.A. No. 9225 or the right to reacquire her natural-born status.96 Moreover, the official acts
of the Philippine Government enjoy the presumption of regularity, to wit: the issuance of
the 18 July 2006 Order of the BI declaring her as natural-born citizen, her appointment as
MTRCB Chair and the issuance of the decree of adoption of San Juan RTC.97 She believed
that all these acts reinforced her position that she is a natural-born citizen of the
Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her
domicile of choice in the Philippines as demonstrated by her children's resettlement and
schooling in the country, purchase of a condominium unit in San Juan City and the
construction of their family home in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of choice in the
Philippines even before she renounced her American citizenship as long as the three
determinants for a change of domicile are complied with.100 She reasoned out that there
was no requirement that renunciation of foreign citizenship is a prerequisite for the
acquisition of a new domicile of choice.101
Eighth, she reiterated that the period appearing in the residency portion of her COC for
Senator was a mistake made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled
that petitioner is not a natural-born citizen, that she failed to complete the ten (10) year
residency requirement, and that she committed material misrepresentation in her COC
when she declared therein that she has been a resident of the Philippines for a period of ten
(10) years and eleven (11) months as of the day of the elections on 9 May 2016. The
COMELEC First Division concluded that she is not qualified for the elective position of
President of the Republic of the Philippines. The dispositive portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to
GRANT the Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First
Division's Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution
denying petitioner's motion for reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions
for certiorari with urgent prayer for the issuance of an ex parte temporary restraining
order/status quo ante order and/or writ of preliminary injunction. On 28 December 2015,
temporary restraining orders were issued by the Court enjoining the COMELEC and its
representatives from implementing the assailed COMELEC Resolutions until further orders
from the Court. The Court also ordered the consolidation of the two petitions filed by
petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments were held in
these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL
and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-
001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio
P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and
SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1
December 2015 Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11
December 2015 Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions emanated are
tainted with grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a
QUALIFIED CANDIDATE for President in the 9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner should be denied due
course or cancelled "on the exclusive ground" that she made in the certificate a false
material representation. The exclusivity of the ground should hedge in the discretion of the
COMELEC and restrain it from going into the issue of the qualifications of the candidate for
the position, if, as in this case, such issue is yet undecided or undetermined by the proper
authority. The COMELEC cannot itself, in the same cancellation case, decide the qualification
or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article
IX, C, Section 2:
Section 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns,
and qualifications of all elective regional, provincial, and city officials, and appellate
jurisdiction over all contests involving elective municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay officials decided by trial courts of limited
jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving elective
municipal and barangay offices shall be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines, for the
exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.
(5) Register, after sufficient publication, political parties, organizations, or coalitions which,
in addition to other requirements, must present their platform or program of government;
and accredit citizens' arms of the Commission on Elections. Religious denominations and
sects shall not be registered. Those which seek to achieve their goals through violence or
unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported
by any foreign government shall likewise be refused registration.
Financial contributions from foreign governments and their agencies to political parties,
organizations, coalitions, or candidates related to elections constitute interference in
national affairs, and, when accepted, shall be an additional ground for the cancellation of
their registration with the Commission, in addition to other penalties that may be prescribed
by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or
exclusion of voters; investigate and, where appropriate, prosecute cases of violations of
election laws, including acts or omissions constituting election frauds, offenses, and
malpractices.
(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and
penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.
(8) Recommend to the President the removal of any officer or employee it has deputized, or
the imposition of any other disciplinary action, for violation or disregard of, or disobedience
to its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the conduct of
each election, plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the provisions of
Article VI, Section 17 of the same basic law stating that:
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.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate
its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of the President,
the Vice-President, Senators and the Members of the House of Representatives was made
clear by the Constitution. There is no such provision for candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on
Elections,104 which was affirmatively cited in the En Banc decision in Fermin v.
COMELEC105 is our guide. The citation in Fermin reads:
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of
candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in Rule
25 § 1, the following:
Grounds for disqualification. - Any candidate who does not possess all the qualifications of a
candidate as provided for by the Constitution or by existing law or who commits any act
declared by law to be grounds for disqualification may be disqualified from continuing as a
candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be
supplied by a mere rule. Such an act is equivalent to the creation of a cause of action which
is a substantive matter which the COMELEC, in the exercise of its rule-making power under
Art. IX, A, §6 of the Constitution, cannot do it. 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 [the] disqualifications provided in §4.
Before we get derailed by the distinction as to grounds and the consequences of the
respective proceedings, the importance of the opinion is in its statement that "the lack of
provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere
rule". Justice Mendoza lectured in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized proceeding for
determining before election the qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity
for determining his eligibility for the office. In contrast, whether an individual should be
disqualified as a candidate for acts constituting election offenses (e.g., vote buying, over
spending, commission of prohibited acts) is a prejudicial question which should be
determined lest he wins because of the very acts for which his disqualification is being
sought. That is why it is provided that if the grounds for disqualification are established, a
candidate will not be voted for; if he has been voted for, the votes in his favor will not be
counted; and if for some reason he has been voted for and he has won, either he will not be
proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or,
as in this case, his domicile, may take a long time to make, extending beyond the beginning
of the term of the office. This is amply demonstrated in the companion case (G.R. No.
120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence was
still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to the
summary character proceedings relating to certificates of candidacy. That is why the law
makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its
officers. 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 of the President and Vice
President, as the case may be.106
To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in
Fermin, led to the amendment through COMELEC Resolution No. 9523, on 25 September
2012 of its Rule 25. This, the 15 February1993 version of Rule 25, which states that:
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.107
was in the 2012 rendition, drastically changed to:
Grounds. - 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 to be suffering from
any disqualification provided by law or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a
Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a
combination thereof, shall be summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an
authorized proceeding for determining before election the qualifications of candidate. Such
that, as presently required, to disqualify a candidate there must be a declaration by a final
judgment of a competent court that the candidate sought to be disqualified "is guilty of or
found by the Commission to be suffering from any disqualification provided by law or the
Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of
one to the other. Both do not allow, are not authorizations, are not vestment of jurisdiction,
for the COMELEC to determine the qualification of a candidate. The facts of qualification
must beforehand be established in a prior proceeding before an authority properly vested
with jurisdiction. The prior determination of qualification may be by statute, by executive
order or by a judgment of a competent court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is suffering from a
disqualification "provided by law or the Constitution," neither can the certificate of
candidacy be cancelled or denied due course on grounds of false representations regarding
his or her qualifications, without a prior authoritative finding that he or she is not qualified,
such prior authority being the necessary measure by which the falsity of the representation
can be found. The only exception that can be conceded are self-evident facts of
unquestioned or unquestionable veracity and judicial confessions. Such are, anyway, bases
equivalent to prior decisions against which the falsity of representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that
deals with, as in this case, alleged false representations regarding the candidate's citizenship
and residence, forced the COMELEC to rule essentially that since foundlings108 are not
mentioned in the enumeration of citizens under the 1935 Constitution,109 they then cannot
be citizens. As the COMELEC stated in oral arguments, when petitioner admitted that she is
a foundling, she said it all. This borders on bigotry. Oddly, in an effort at tolerance, the
COMELEC, after saying that it cannot rule that herein petitioner possesses blood relationship
with a Filipino citizen when "it is certain that such relationship is indemonstrable,"
proceeded to say that "she now has the burden to present evidence to prove her natural
filiation with a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is neither unknown
nor unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter on
Paternity and Filiation.110 That said, there is more than sufficient evider1ce that petitioner
has Filipino parents and is therefore a natural-born Filipino. Parenthetically, the burden of
proof was on private respondents to show that petitioner is not a Filipino citizen. The
private respondents should have shown that both of petitioner's parents were aliens. Her
admission that she is a foundling did not shift the burden to her because such status did not
exclude the possibility that her parents were Filipinos, especially as in this case where there
is a high probability, if not certainty, that her parents are Filipinos.
The factual issue is not who the parents of petitioner are, as their identities are unknown,
but whether such parents are Filipinos. Under Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue
as to induce belief in its existence or no-existence. Evidence on collateral matters shall not
be allowed, except when it tends in any reasonable degree to establish the probability of
improbability of the fact in issue.
The Solicitor General offered official statistics from the Philippine Statistics Authority
(PSA)111 that from 1965 to 1975, the total number of foreigners born in the Philippines was
15,986 while the total number of Filipinos born in the country was 10,558,278. The
statistical probability that any child born in the Philippines in that decade is natural-born
Filipino was 99.83%. For her part, petitioner presented census statistics for Iloilo Province
for 1960 and 1970, also from the PSA. In 1960, there were 962,532 Filipinos and 4,734
foreigners in the province; 99.62% of the population were Filipinos. In 1970, the figures
were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures for
the child producing ages (15-49). In 1960, there were 230,528 female Filipinos as against
730 female foreigners or 99.68%. In the same year, there were 210,349 Filipino males and
886 male aliens, or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190
female aliens, or 99.56%. That same year, there were 245,740 Filipino males as against only
1,165 male aliens or 99.53%. COMELEC did not dispute these figures. Notably,
Commissioner Arthur Lim admitted, during the oral arguments, that at the time petitioner
was found in 1968, the majority of the population in Iloilo was Filipino.112
Other circumstantial evidence of the nationality of petitioner's parents are the fact that she
was abandoned as an infant in a Roman Catholic Church in Iloilo City.1âwphi1 She also has
typical Filipino features: height, flat nasal bridge, straight black hair, almond shaped eyes
and an oval face.
There is a disputable presumption that things have happened according to the ordinary
course of nature and the ordinary habits of life.113 All of the foregoing evidence, that a
person with typical Filipino features is abandoned in Catholic Church in a municipality where
the population of the Philippines is overwhelmingly Filipinos such that there would be more
than a 99% chance that a child born in the province would be a Filipino, would indicate more
than ample probability if not statistical certainty, that petitioner's parents are Filipinos. That
probability and the evidence on which it is based are admissible under Rule 128, Section 4 of
the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In
the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to the Philippines
so they can get pregnant and leave their newborn babies behind. We do not face a situation
where the probability is such that every foundling would have a 50% chance of being a
Filipino and a 50% chance of being a foreigner. We need to frame our questions properly.
What are the chances that the parents of anyone born in the Philippines would be
foreigners? Almost zero. What are the chances that the parents of anyone born in the
Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average,
there were 1,766,046 children born in the Philippines to Filipino parents, as opposed to
1,301 children in the Philippines of foreign parents. Thus, for that sample period, the ratio of
non-Filipino children to natural born Filipino children is 1:1357. This means that the
statistical probability that any child born in the Philippines would be a natural born Filipino is
99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while
the total number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio
of non-Filipino children is 1:661. This means that the statistical probability that any child
born in the Philippines on that decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the numbers for us, but I am
confident that the statistical probability that a child born in the Philippines would be a
natural born Filipino will not be affected by whether or not the parents are known. If at all,
the likelihood that a foundling would have a Filipino parent might even be higher than
99.9%. Filipinos abandon their children out of poverty or perhaps, shame. We do not
imagine foreigners abandoning their children here in the Philippines thinking those infants
would have better economic opportunities or believing that this country is a tropical
paradise suitable for raising abandoned children. I certainly doubt whether a foreign couple
has ever considered their child excess baggage that is best left behind.
xxxx
President:
[We] would like to request a clarification from the proponent of the amendment. The
gentleman refers to natural children or to any kind of illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage,
natural or illegitimate children of unknown parents.

To deny full Filipino citizenship to all foundlings and render them stateless just because Sr. Montinola:
there may be a theoretical chance that one among the thousands of these foundlings might For clarification. The gentleman said "of unknown parents." Current codes consider them
be the child of not just one, but two, foreigners is downright discriminatory, irrational, and Filipino, that is, I refer to the Spanish Code wherein all children of unknown parentage born
unjust. It just doesn't make any sense. Given the statistical certainty - 99.9% - that any child in Spanish territory are considered Spaniards, because the presumption is that a child of
born in the Philippines would be a natural born citizen, a decision denying foundlings such unknown parentage is the son of a Spaniard. This may be applied in the Philippines in that a
status is effectively a denial of their birthright. There is no reason why this Honorable Court child of unknown parentage born in the Philippines is deemed to be Filipino, and there is no
should use an improbable hypothetical to sacrifice the fundamental political rights of an need ...
entire class of human beings. Your Honor, constitutional interpretation and the use of
common sense are not separate disciplines. Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.
As a matter of law, foundlings are as a class, natural-born citizens. While the 1935
Constitution's enumeration is silent as to foundlings, there is no restrictive language which Sr. Montinola:
would definitely exclude foundlings either. Because of silence and ambiguity in the But that is the interpretation of the law, therefore, there is no [more] need for amendment.
enumeration with respect to foundlings, there is a need to examine the intent of the
framers. In Nitafan v. Commissioner of Internal Revenue,114 this Court held that: Sr. Rafols:
The amendment should read thus:
The ascertainment of that intent is but in keeping with the fundamental principle of "Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the
constitutional construction that the intent of the framers of the organic law and of the children of unknown parentage."
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 Sr. Briones:
people in the adoption of the Constitution. It may also be safely assumed that the people in The amendment [should] mean children born in the Philippines of unknown parentage.
ratifying the Constitution were guided mainly by the explanation offered by the framers.115
Sr. Rafols:
As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is
Constitutional Convention show that the framers intended foundlings to be covered by the not unknown.
enumeration. The following exchange is recorded:
President:
Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: Does the gentleman accept the amendment or not?
"The natural children of a foreign father and a Filipino mother not recognized by the father.
Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a
Filipina with a foreigner who does not recognize the child. Their parentage is not unknown
and I think those of overseas Filipino mother and father [whom the latter] does not
recognize, should also be considered as Filipinos.
President:
The question in order is the amendment to the amendment from the Gentleman from Cebu,
Mr. Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the
Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the
constitution need [not] refer to them. By international law the principle that children or
people born in a country of unknown parents are citizens in this nation is recognized, and it
is not necessary to include a provision on the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not because there was any
objection to the notion that persons of "unknown parentage" are not citizens but only
because their number was not enough to merit specific mention. Such was the account,117
cited by petitioner, of delegate and constitution law author Jose Aruego who said:
During the debates on this provision, Delegate Rafols presented an amendment to include
as Filipino citizens the illegitimate children with a foreign father of a mother who was a
citizen of the Philippines, and also foundlings; but this amendment was defeated primarily
because the Convention believed that the cases, being too few to warrant the inclusion of a
provision in the Constitution to apply to them, should be governed by statutory legislation.
Moreover, it was believed that the rules of international law were already clear to the effect
that illegitimate children followed the citizenship of the mother, and that foundlings
followed the nationality of the place where they were found, thereby making unnecessary
the inclusion in the Constitution of the proposed amendment.
This explanation was likewise the position of the Solicitor General during the 16 February
2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what was declined was the
proposal for a textual and explicit recognition of foundlings as Filipinos. And so, the way to
explain the constitutional silence is by saying that it was the view of Montinola and Roxas
which prevailed that there is no more need to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct.
Framers of a constitution can constitutionalize rules based on assumptions that are
imperfect or even wrong. They can even overturn existing rules. This is basic. What matters
here is that Montinola and Roxas were able to convince their colleagues in the convention
that there is no more need to expressly declare foundlings as Filipinos because they are
already impliedly so recognized.
In other words, the constitutional silence is fully explained in terms of linguistic efficiency
and the avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class,
as Filipinos under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is
carried over into the 1973 and 1987 Constitution. It is appropriate to invoke a famous
scholar as he was paraphrased by Chief Justice Fernando: the constitution is not silently
silent, it is silently vocal. 118
The Solicitor General makes the further point that the framers "worked to create a just and
humane society," that "they were reasonable patriots and that it would be unfair to impute
upon them a discriminatory intent against foundlings." He exhorts that, given the grave
implications of the argument that foundlings are not natural-born Filipinos, the Court must
search the records of the 1935, 1973 and 1987 Constitutions "for an express intention to
deny foundlings the status of Filipinos. The burden is on those who wish to use the
constitution to discriminate against foundlings to show that the constitution really intended
to take this path to the dark side and inflict this across the board marginalization."
We find no such intent or language permitting discrimination against foundlings. On the
contrary, all three Constitutions guarantee the basic right to equal protection of the laws. All
exhort the State to render social justice. Of special consideration are several provisions in
the present charter: Article II, Section 11 which provides that the "State values the dignity of
every human person and guarantees full respect for human rights," Article XIII, Section 1
which mandates Congress to "give highest priority to the enactment of measures that
protect and enhance the right of all the people to human dignity, reduce social, economic,
and political inequalities x x x" and Article XV, Section 3 which requires the State to defend
the "right of children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development." Certainly, these provisions contradict an intent to
discriminate against foundlings on account of their unfortunate status.
Domestic laws on adoption also support the principle that foundlings are Filipinos. These
laws do not provide that adoption confers citizenship upon the adoptee. Rather, the
adoptee must be a Filipino in the first place to be adopted. The most basic of such laws is
Article 15 of the Civil Code which provides that "[l]aws relating to family rights, duties,
status, conditions, legal capacity of persons are binding on citizens of the Philippines even
though living abroad." Adoption deals with status, and a Philippine adoption court will have
jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic,119 a child left by an
unidentified mother was sought to be adopted by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in rem, which no court may
entertain unless it has jurisdiction, not only over the subject matter of the case and over the
parties, but also over the res, which is the personal status of Baby Rose as well as that of
petitioners herein. Our Civil Code (Art. 15) adheres to the theory that jurisdiction over the
status of a natural person is determined by the latter's nationality. Pursuant to this theory,
we have jurisdiction over the status of Baby Rose, she being a citizen of the Philippines, but
not over the status of the petitioners, who are foreigners.120 (Underlining supplied)
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to
Govern the Inter-Country Adoption of Filipino Children and For Other Purposes" (otherwise
known as the "Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act
Establishing the Rules and Policies on the Adoption of Filipino Children and For Other
Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this Court's A.M.
No. 02-6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children" and
include foundlings as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a foundling leading to the
issuance of a foundling certificate under these laws and the issuance of said certificate are
acts to acquire or perfect Philippine citizenship which make the foundling a naturalized
Filipino at best. This is erroneous. Under Article IV, 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 Philippine citizenship." In the first place, "having to perform an act"
means that the act must be personally done by the citizen. In this instance, the
determination of foundling status is done not by the child but by the authorities.121
Secondly, the object of the process is the determination of the whereabouts of the parents,
not the citizenship of the child. Lastly, the process is certainly not analogous to
naturalization proceedings to acquire Philippine citizenship, or the election of such
citizenship by one born of an alien father and a Filipino mother under the 1935 Constitution,
which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that petitioner is a foundling,
as evidenced by a Foundling Certificate issued in her favor.122 The Decree of Adoption
issued on 13 May 1974, which approved petitioner's adoption by Jesusa Sonora Poe and
Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her
"foundling parents," hence effectively affirming petitioner's status as a foundling.123
Foundlings are likewise citizens under international law. Under the 1987 Constitution, an
international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local
legislation.124 On the other hand, generally accepted principles of international law, by
virtue of the incorporation clause of the Constitution, form part of the laws of the land even
if they do not derive from treaty obligations. Generally accepted principles of international
law include international custom as evidence of a general practice accepted as law, and
general principles of law recognized by civilized nations.125 International customary rules
are accepted as binding as a result from the combination of two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element
known as the opinionjuris sive necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is rendered obligatory by the existence
of a rule of law requiring it.126 "General principles of law recognized by civilized nations"
are principles "established by a process of reasoning" or judicial logic, based on principles
which are "basic to legal systems generally,"127 such as "general principles of equity, i.e.,
the general principles of fairness and justice," and the "general principle against
discrimination" which is embodied in the "Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the International
Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against
Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect
of Employment and Occupation."128 These are the same core principles which underlie the
Philippine Constitution itself, as embodied in the due process and equal protection clauses
of the Bill of Rights.129
Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part
of the generally accepted principles of international law and binding on the State.130 Article
15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his
nationality.
The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC).
Article 7 of the UNCRC imposes the following obligations on our country:
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to
a name, the right to acquire a nationality and as far as possible, the right to know and be
cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their
national law and their obligations under the relevant international instruments in this field,
in particular where the child would otherwise be stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil and Political
Rights (ICCPR). Article 24 thereof provide for the right of every child "to acquire a
nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language,
religion, national or social origin, property or birth, the right, to such measures of protection
as are required by his status as a minor, on the part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant
nationality from birth and ensure that no child is stateless. This grant of nationality must be
at the time of birth, and it cannot be accomplished by the application of our present
naturalization laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of
which require the applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the Philippines, are
generally accepted principles of international law. The first is Article 14 of the 1930 Hague
Convention on Certain Questions Relating to the Conflict of Nationality Laws under which a
foundling is presumed to have the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the country of birth. If
the child's parentage is established, its nationality shall be determined by the rules
applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on the territory of
the State in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of the country
where he is found, contained in Article 2 of the 1961 United Nations Convention on the
Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to the
contrary, be considered to have been born within the territory of parents possessing the
nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to the 1961
Convention on the Reduction of Statelessness does not mean that their principles are not
binding. While the Philippines is not a party to the 1930 Hague Convention, it is a signatory
to the Universal Declaration on Human Rights, Article 15(1) ofwhich131 effectively affirms
Article 14 of the 1930 Hague Convention. Article 2 of the 1961 "United Nations Convention
on the Reduction of Statelessness" merely "gives effect" to Article 15(1) of the UDHR.132 In
Razon v. Tagitis, 133 this Court noted that the Philippines had not signed or ratified the
"International Convention for the Protection of All Persons from Enforced Disappearance."
Yet, we ruled that the proscription against enforced disappearances in the said convention
was nonetheless binding as a "generally accepted principle of international law." Razon v.
Tagitis is likewise notable for declaring the ban as a generally accepted principle of
international law although the convention had been ratified by only sixteen states and had
not even come into force and which needed the ratification of a minimum of twenty states.
Additionally, as petitioner points out, the Court was content with the practice of
international and regional state organs, regional state practice in Latin America, and State
Practice in the United States.
Another case where the number of ratifying countries was not determinative is Mijares v.
Ranada, 134 where only four countries had "either ratified or acceded to"135 the 1966
"Convention on the Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters" when the case was decided in 2005. The Court also pointed out that
that nine member countries of the European Common Market had acceded to the
Judgments Convention. The Court also cited U.S. laws and jurisprudence on recognition of
foreign judgments. In all, only the practices of fourteen countries were considered and yet,
there was pronouncement that recognition of foreign judgments was widespread practice.
Our approach in Razon and Mijares effectively takes into account the fact that "generally
accepted principles of international law" are based not only on international custom, but
also on "general principles of law recognized by civilized nations," as the phrase is
understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the
policy against discrimination, which are fundamental principles underlying the Bill of Rights
and which are "basic to legal systems generally,"136 support the notion that the right
against enforced disappearances and the recognition of foreign judgments, were correctly
considered as "generally accepted principles of international law" under the incorporation
clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and South
America, and Europe have passed legislation recognizing foundlings as its citizen. Forty-two
(42) of those countries follow the jus sanguinis regime. Of the sixty, only thirty-three (33)
are parties to the 1961 Convention on Statelessness; twenty-six (26) are not signatories to
the Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments pointed out
that in 166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as citizens.
These circumstances, including the practice of jus sanguinis countries, show that it is a
generally accepted principle of international law to presume foundlings as having been born
of nationals of the country in which the foundling is found.
Current legislation reveals the adherence of the Philippines to this generally accepted
principle of international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's
Rules on Adoption, expressly refer to "Filipino children." In all of them, foundlings are
among the Filipino children who could be adopted. Likewise, it has been pointed that the
DFA issues passports to foundlings. Passports are by law, issued only to citizens. This shows
that even the executive department, acting through the DFA, considers foundlings as
Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention
on Statelessness is rational and reasonable and consistent with the jus sanguinis regime in
our Constitution. The presumption of natural-born citizenship of foundlings stems from the
presumption that their parents are nationals of the Philippines. As the empirical data
provided by the PSA show, that presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter of nationality
of foundlings were designed to address the plight of a defenseless class which suffers from a
misfortune not of their own making. We cannot be restrictive as to their application if we
are a country which calls itself civilized and a member of the community of nations. The
Solicitor General's warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that those
treaties and conventions were drafted because the world community is concerned that the
situation of foundlings renders them legally invisible. It would be tragically ironic if this
Honorable Court ended up using the international instruments which seek to protect and
uplift foundlings a tool to deny them political status or to accord them second-class
citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions
of R.A. No. 9225 did not result in the reacquisition of natural-born citizenship. The COMELEC
reasoned that since the applicant must perform an act, what is reacquired is not "natural-
born" citizenship but only plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of
repatriation statutes in general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:
Moreover, repatriation results in the recovery of the 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.
R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They
include Sobejana-Condon v. COMELEC141 where we described it as an "abbreviated
repatriation process that restores one's Filipino citizenship x x x." Also included is Parreno v.
Commission on Audit,142 which cited Tabasa v. Court of Appeals,143 where we said that
"[t]he repatriation of the former Filipino will allow him to recover his natural-born
citizenship. Parreno v. Commission on Audit144 is categorical that "if petitioner reacquires
his Filipino citizenship (under R.A. No. 9225), he will ... recover his natural-born citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural citizens as
implying "that natural-born citizenship must begin at birth and remain uninterrupted and
continuous from birth." R.A. No. 9225 was obviously passed in line with Congress' sole
prerogative to determine how citizenship may be lost or reacquired. Congress saw it fit to
decree that natural-born citizenship may be reacquired even if it had been once lost. It is
not for the COMELEC to disagree with the Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was
already rejected in Bengson III v. HRET145 where the phrase "from birth" was clarified to
mean at the time of birth: "A person who at the time of his birth, is a citizen of a particular
country, is a natural-born citizen thereof." Neither is "repatriation" an act to "acquire or
perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out that there are only
two types of citizens under the 1987 Constitution: natural-born citizen and naturalized, and
that there is no third category for repatriated 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, ie., did not
have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is
a 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 proceedings 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.146
The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while
we may always revisit a doctrine, a new rule reversing standing doctrine cannot be
retroactively applied. In Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr.,147
where we decreed reversed the condonation doctrine, we cautioned that it "should be
prospective in application for the reason that judicial decisions applying or interpreting the
laws of the Constitution, until reversed, shall form part of the legal system of the
Philippines." This Court also said that "while the future may ultimately uncover a doctrine's
error, it should be, as a general rule, recognized as good law prior to its abandonment.
Consequently, the people's reliance thereupon should be respected."148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a
falsehood when she put in the spaces for "born to" in her application for repatriation under
R.A. No. 9225 the names of her adoptive parents, and this misled the BI to presume that she
was a natural-born Filipino. It has been contended that the data required were the names of
her biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted. One of the
effects of adoption is "to sever all legal ties between the biological parents and the adoptee,
except when the biological parent is the spouse of the adoptee."149 Under R.A. No. 8552,
petitioner was also entitled to an amended birth certificate "attesting to the fact that the
adoptee is the child of the adopter(s)" and which certificate "shall not bear any notation
that it is an amended issue."150 That law also requires that "[a]ll records, books, and papers
relating to the adoption cases in the files of the court, the Department [of Social Welfare
and Development], or any other agency or institution participating in the adoption
proceedings shall be kept strictly confidential."151 The law therefore allows petitioner to
state that her adoptive parents were her birth parents as that was what would be stated in
her birth certificate anyway. And given the policy of strict confidentiality of adoption
records, petitioner was not obligated to disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in
the same case for cancellation of COC, it resorted to opinionatedness which is, moreover,
erroneous. The whole process undertaken by COMELEC is wrapped in grave abuse of
discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not petitioner
committed false material representation when she stated in her COC that she has before
and until 9 May 2016 been a resident of the Philippines for ten (10) years and eleven (11)
months.
Petitioner's claim that she will have been a resident for ten (10) years and eleven (11)
months on the day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years' residence in the
Philippines before the day of the elections. Since the forthcoming elections will be held on 9
May 2016, petitioner must have been a resident of the Philippines prior to 9 May 2016 for
ten (10) years. In answer to the requested information of "Period of Residence in the
Philippines up to the day before May 09, 2016," she put in "10 years 11 months" which
according to her pleadings in these cases corresponds to a beginning date of 25 May 2005
when she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the
Philippines. There are three requisites to acquire a new domicile: 1. Residence or bodily
presence in a new locality; 2. an intention to remain there; and 3. an intention to abandon
the old domicile.152 To successfully effect a change of domicile, one must demonstrate an
actual removal or an actual change of domicile; a bona fide intention of abandoning the
former place of residence and establishing a new one and definite acts which correspond
with the purpose. In other words, there must basically be animus manendi coupled with
animus non revertendi. The purpose to remain in or at the domicile of choice must be for an
indefinite period of time; the change of residence must be voluntary; and the residence at
the place chosen for the new domicile must be actual.153
Petitioner presented voluminous evidence showing that she and her family abandoned their
U.S. domicile and relocated to the Philippines for good. These evidence include petitioner's
former U.S. passport showing her arrival on 24 May 2005 and her return to the Philippines
every time she travelled abroad; e-mail correspondences starting in March 2005 to
September 2006 with a freight company to arrange for the shipment of their household
items weighing about 28,000 pounds to the Philippines; e-mail with the Philippine Bureau of
Animal Industry inquiring how to ship their dog to the Philippines; school records of her
children showing enrollment in Philippine schools starting June 2005 and for succeeding
years; tax identification card for petitioner issued on July 2005; titles for condominium and
parking slot issued in February 2006 and their corresponding tax declarations issued in April
2006; receipts dated 23 February 2005 from the Salvation Army in the U.S. acknowledging
donation of items from petitioner's family; March 2006 e-mail to the U.S. Postal Service
confirming request for change of address; final statement from the First American Title
Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up
questionnaire submitted to the U.S. Embassy where petitioner indicated that she had been a
Philippine resident since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return
of petitioner on 24 May 2005 and that she and her family stayed with affiant until the
condominium was purchased); and Affidavit from petitioner's husband (confirming that the
spouses jointly decided to relocate to the Philippines in 2005 and that he stayed behind in
the U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed by the COMELEC,
particularly in its Resolution in the Tatad, Contreras and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile had been timely
changed as of 24 May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim
conceded the presence of the first two requisites, namely, physical presence and animus
manendi, but maintained there was no animus non-revertendi.154 The COMELEC
disregarded the import of all the evidence presented by petitioner on the basis of the
position that the earliest date that petitioner could have started residence in the Philippines
was in July 2006 when her application under R.A. No. 9225 was approved by the BI. In this
regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon v. COMELEC156 and Caballero
v. COMELEC. 157 During the oral arguments, the private respondents also added Reyes v.
COMELEC.158 Respondents contend that these cases decree that the stay of an alien former
Filipino cannot be counted until he/she obtains a permanent resident visa or reacquires
Philippine citizenship, a visa-free entry under a balikbayan stamp being insufficient. Since
petitioner was still an American (without any resident visa) until her reacquisition of
citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be
counted.
But as the petitioner pointed out, the facts in these four cases are very different from her
situation. In Coquilla v. COMELEC,159 the only evidence presented was a community tax
certificate secured by the candidate and his declaration that he would be running in the
elections. Japzon v. COMELEC160 did not involve a candidate who wanted to count
residence prior to his reacquisition of Philippine citizenship. With the Court decreeing that
residence is distinct from citizenship, the issue there was whether the candidate's acts after
reacquisition sufficed to establish residence. In Caballero v. COMELEC, 161 the candidate
admitted that his place of work was abroad and that he only visited during his frequent
vacations. In Reyes v. COMELEC,162 the candidate was found to be an American citizen who
had not even reacquired Philippine citizenship under R.A. No. 9225 or had renounced her
U.S. citizenship. She was disqualified on the citizenship issue. On residence, the only proof
she offered was a seven-month stint as provincial officer. The COMELEC, quoted with
approval by this Court, said that "such fact alone is not sufficient to prove her one-year
residency."
It is obvious that because of the sparse evidence on residence in the four cases cited by the
respondents, the Court had no choice but to hold that residence could be counted only from
acquisition of a permanent resident visa or from reacquisition of Philippine citizenship. In
contrast, the evidence of petitioner is overwhelming and taken together leads to no other
conclusion that she decided to permanently abandon her U.S. residence (selling the house,
taking the children from U.S. schools, getting quotes from the freight company, notifying the
U.S. Post Office of the abandonment of their address in the U.S., donating excess items to
the Salvation Army, her husband resigning from U.S. employment right after selling the U.S.
house) and permanently relocate to the Philippines and actually re-established her
residence here on 24 May 2005 (securing T.I.N, enrolling her children in Philippine schools,
buying property here, constructing a residence here, returning to the Philippines after all
trips abroad, her husband getting employed here). Indeed, coupled with her eventual
application to reacquire Philippine citizenship and her family's actual continuous stay in the
Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it was
for good.
In this connection, the COMELEC also took it against petitioner that she had entered the
Philippines visa-free as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise
known as the "An Act Instituting a Balikbayan Program," shows that there is no overriding
intent to treat balikbayans as temporary visitors who must leave after one year. Included in
the law is a former Filipino who has been naturalized abroad and "comes or returns to the
Philippines." 163 The law institutes a balikbayan program "providing the opportunity to avail
of the necessary training to enable the balikbayan to become economically self-reliant
members of society upon their return to the country"164 in line with the government's
"reintegration program."165 Obviously, balikbayans are not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and help him
reintegrate into society, it would be an unduly harsh conclusion to say in absolute terms
that the balikbayan must leave after one year. That visa-free period is obviously granted him
to allow him to re-establish his life and reintegrate himself into the community before he
attends to the necessary formal and legal requirements of repatriation. And that is exactly
what petitioner did - she reestablished life here by enrolling her children and buying
property while awaiting the return of her husband and then applying for repatriation shortly
thereafter.
No case similar to petitioner's, where the former Filipino's evidence of change in domicile is
extensive and overwhelming, has as yet been decided by the Court. Petitioner's evidence of
residence is unprecedented. There is no judicial precedent that comes close to the facts of
residence of petitioner. There is no indication in Coquilla v. COMELEC,166 and the other
cases cited by the respondents that the Court intended to have its rulings there apply to a
situation where the facts are different. Surely, the issue of residence has been decided
particularly on the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the
COMELEC ruled that petitioner's claim of residence of ten (10) years and eleven (11) months
by 9 May 2016 in her 2015 COC was false because she put six ( 6) years and six ( 6) months
as "period of residence before May 13, 2013" in her 2012 COC for Senator. Thus, according
to the COMELEC, she started being a Philippine resident only in November 2006. In doing so,
the COMELEC automatically assumed as true the statement in the 2012 COC and the 2015
COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the date required in
the 2013 COC as the period of residence as of the day she submitted that COC in 2012. She
said that she reckoned residency from April-May 2006 which was the period when the U.S.
house was sold and her husband returned to the Philippines. In that regard, she was advised
by her lawyers in 2015 that residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of residence
before 13 May 2013) as inquiring about residence as of the time she submitted the COC, is
bolstered by the change which the COMELEC itself introduced in the 2015 COC which is now
"period of residence in the Philippines up to the day before May 09, 2016." The COMELEC
would not have revised the query if it did not acknowledge that the first version was vague.
That petitioner could have reckoned residence from a date earlier than the sale of her U.S.
house and the return of her husband is plausible given the evidence that she had returned a
year before. Such evidence, to repeat, would include her passport and the school records of
her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and
conclusive admission against petitioner. It could be given in evidence against her, yes, but it
was by no means conclusive. There is precedent after all where a candidate's mistake as to
period of residence made in a COC was overcome by evidence. In Romualdez-Marcos v.
COMELEC,167 the candidate mistakenly put seven (7) months as her period of residence
where the required period was a minimum of one year. We said that "[i]t is the fact of
residence, not a statement in a certificate of candidacy which ought to be decisive in
determining whether or not an individual has satisfied the constitutions residency
qualification requirement." The COMELEC ought to have looked at the evidence presented
and see if petitioner was telling the truth that she was in the Philippines from 24 May 2005.
Had the COMELEC done its duty, it would have seen that the 2012 COC and the 2015 COC
both correctly stated the pertinent period of residency.
The COMELEC, by its own admission, disregarded the evidence that petitioner actually and
physically returned here on 24 May 2005 not because it was false, but only because
COMELEC took the position that domicile could be established only from petitioner's
repatriation under R.A. No. 9225 in July 2006. However, it does not take away the fact that
in reality, petitioner had returned from the U.S. and was here to stay permanently, on 24
May 2005. When she claimed to have been a resident for ten (10) years and eleven (11)
months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide anything. As already
stated, a petition for quo warranto had been filed against her with the SET as early as
August 2015. The event from which the COMELEC pegged the commencement of residence,
petitioner's repatriation in July 2006 under R.A. No. 9225, was an established fact to repeat,
for purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC,
petitioner recounted that this was first brought up in the media on 2 June 2015 by Rep.
Tobias Tiangco of the United Nationalist Alliance. Petitioner appears to have answered the
issue immediately, also in the press. Respondents have not disputed petitioner's evidence
on this point. From that time therefore when Rep. Tiangco discussed it in the media, the
stated period of residence in the 2012 COC and the circumstances that surrounded the
statement were already matters of public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo
warranto. Her Verified Answer, which was filed on 1 September 2015, admitted that she
made a mistake in the 2012 COC when she put in six ( 6) years and six ( 6) months as she
misunderstood the question and could have truthfully indicated a longer period. Her answer
in the SET case was a matter of public record. Therefore, when petitioner accomplished her
COC for President on 15 October 2015, she could not be said to have been attempting to
hide her erroneous statement in her 2012 COC for Senator which was expressly mentioned
in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an intention to
hide the 2012 statement and have it covered by the 2015 representation. Petitioner,
moreover, has on her side this Court's pronouncement that:
Concededly, a candidate's disqualification to run for public office does not necessarily
constitute material misrepresentation which is the sole ground for denying due course to,
and for the cancellation of, a COC. Further, as already discussed, the candidate's
misrepresentation in his COC must not only refer to a material fact (eligibility and
qualifications for elective office), but should evince a deliberate intent to mislead, misinform
or hide a fact which would otherwise render a candidate ineligible. It must be made with an
intention to deceive the electorate as to one's qualifications to run for public office.168
In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good
number of evidenced dates all of which can evince animus manendi to the Philippines and
animus non revertedi to the United States of America. The veracity of the events of coming
and staying home was as much as dismissed as inconsequential, the focus having been fixed
at the petitioner's "sworn declaration in her COC for Senator" which the COMELEC said
"amounts to a declaration and therefore an admission that her residence in the Philippines
only commence sometime in November 2006"; such that "based on this declaration,
[petitioner] fails to meet the residency requirement for President." This conclusion, as
already shown, ignores the standing jurisprudence that it is the fact of residence, not the
statement of the person that determines residence for purposes of compliance with the
constitutional requirement of residency for election as President. It ignores the easily
researched matter that cases on questions of residency have been decided favorably for the
candidate on the basis of facts of residence far less in number, weight and substance than
that presented by petitioner.169 It ignores, above all else, what we consider as a primary
reason why petitioner cannot be bound by her declaration in her COC for Senator which
declaration was not even considered by the SET as an issue against her eligibility for
Senator. When petitioner made the declaration in her COC for Senator that she has been a
resident for a period of six (6) years and six (6) months counted up to the 13 May 2013
Elections, she naturally had as reference the residency requirements for election as Senator
which was satisfied by her declared years of residence. It was uncontested during the oral
arguments before us that at the time the declaration for Senator was made, petitioner did
not have as yet any intention to vie for the Presidency in 2016 and that the general public
was never made aware by petitioner, by word or action, that she would run for President in
2016. Presidential candidacy has a length-of-residence different from that of a senatorial
candidacy. There are facts of residence other than that which was mentioned in the COC for
Senator. Such other facts of residence have never been proven to be false, and these, to
repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however
stayed in the USA to finish pending projects and arrange the sale of their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner]
enrolled Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in
Makati City in 2005. Anika was enrolled in Learning Connection in San Juan in 2007, when
she was already old enough to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson
Place Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the
construction of their family home in Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her former
lawyer who handled [petitioner's] adoption in 1974 failed to secure from the Office of the
Civil Registrar of Iloilo a new Certificate of Live Birth indicating [petitioner's] new name and
stating that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of
some of the family's remaining household belongings.1a\^/phi1 [Petitioner] returned to the
Philippines on 11 March 2006.
In late March 2006, [petitioner's] husband informed the United States Postal Service of the
family's abandonment of their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the
Philippines on 4 May 2006 and began working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where
they eventually built their family home.170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case
fall under the exclusive ground of false representation, to consider no other date than that
mentioned by petitioner in her COC for Senator.
All put together, in the matter of the citizenship and residence of petitioner for her
candidacy as President of the Republic, the questioned Resolutions of the COMELEC in
Division and En Banc are, one and all, deadly diseased with grave abuse of discretion from
root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-
001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent, stating that:
[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9,
2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe-
Llamanzares is hereby GRANTED.
2. dated 11 December 2015, rendered through the COMELEC First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio
P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and
SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to
GRANT the petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015
Resolution of the Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to
DENY the Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES. The Resolution dated 11 December 2015 of the Commission
First Division is AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015
Resolution of the First Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the National and
Local Elections of 9 May 2016.
SO ORDERED.
Disqualifications
G.R. No. 158466 June 15, 2004
PABLO V. OCAMPO, petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND MARIO B. CRESPO a.k.a. MARK
JIMENEZ, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
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 obtained a plurality of votes and does not entitle a candidate receiving the next
highest number of votes to be declared elected.1
This is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as
amended, filed by petitioner Pablo V. Ocampo. He alleged that the House of Representatives
Electoral Tribunal (HRET), herein public respondent, committed grave abuse of discretion in
issuing in HRET Case No. 01-024, Pablo Ocampo vs. Mario "Mark Jimenez" Crespo, the (a)
Resolution2 dated March 27, 2003 holding that "protestant" (herein petitioner) cannot be
proclaimed the duly elected Representative of the 6th District of Manila since being a
second placer, he "cannot be proclaimed the first among the remaining qualified
candidates"; and (b) Resolution3 dated June 2, 2003 denying his motion for reconsideration.

The facts are uncontroverted:
On May 23, 2001, the Manila City Board of Canvassers proclaimed private respondent Mario
B. Crespo, a.k.a. Mark Jimenez, the duly elected Congressman of the 6th District of Manila
pursuant to the May 14, 2001 elections. He was credited with 32,097 votes or a margin of
768 votes over petitioner who obtained 31,329 votes.
On May 31, 2001, petitioner filed with the HRET an electoral protest4 against private
respondent, impugning the election in 807 precincts in the 6th District of Manila on the
following grounds: (1) misreading of votes garnered by petitioner; (2) falsification of election
returns; (3) substitution of election returns; (4) use of marked, spurious, fake and stray
ballots; and (5) presence of ballots written by one person or two persons. The case was
docketed as HRET Case No. 01-024. Petitioner prayed that a revision and appreciation of the
ballots in the 807 contested precincts be conducted; and that, thereafter, he be proclaimed
the duly elected Congressman of the 6th District of Manila.
On June 18, 2001, private respondent filed his answer with counter-protest5 vehemently
denying that he engaged in massive vote buying. He also opposed petitioner’s allegation
that there is a need for the revision and appreciation of ballots.
After the preliminary conference between the parties on July 12, 2001, the HRET issued a
Resolution6 limiting the issues to: first, whether massive vote-buying was committed by
private respondent; and second, whether petitioner can be proclaimed the duly elected
Representative of the 6th District of Manila.
Meanwhile, on March 6, 2003, the HRET, in HRET Cases Nos. 01-020, Bienvenido Abante &
Prudencio Jalandoni vs. Mario Crespo, and 01-023, Rosenda Ann M. Ocampo vs. Mario
Crespo, issued Resolutions declaring that private respondent is "ineligible for the Office of
Representative of Sixth District of Manila for lack of residence in the district" and ordering
"him to vacate his office."7 Private respondent filed a motion for reconsideration but was
denied.8
On March 12, 2003, petitioner filed a motion to implement Section 6 of Republic Act No.
6646,9 which reads:
"Section 6. Effects of Disqualification Case. – Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election
to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action,
inquiry or protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof, order the suspension of the proclamation of such candidate whenever
the evidence of guilt is strong."
Petitioner averred that since private respondent was declared disqualified in HRET Cases
Nos. 01-020 and 01-023, the votes cast for him should not be counted. And having garnered
the second highest number of votes, he (petitioner) should be declared the winner in the
May 14, 2001 elections and proclaimed the duly elected Congressman of the 6th District of
Manila.
On March 26, 2003, private respondent filed an opposition to petitioner’s motion to
implement the afore-quoted provision.
On March 27, 2003, the HRET issued a Resolution holding that private respondent was guilty
of vote-buying and disqualifying him as Congressman of the 6th District of Manila. Anent the
second issue of whether petitioner can be proclaimed the duly elected Congressman, the
HRET held:
"x x x Jurisprudence has long established the doctrine that a second placer cannot be
proclaimed the first among the remaining qualified candidates. 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 give the candidate who obtained
the second highest number of votes the right to be declared the winner of the elective
office. x x x
It is of no moment that there is only a margin of 768 votes between protestant and
protestee. Whether the margin is ten or ten thousand, it still remains that protestant did not
receive the mandate of the majority during the elections. Thus, to proclaim him as the duly
elected representative in the stead of protestee would be anathema to the most basic
precepts of republicanism and democracy as enshrined within our Constitution. In effect, we
would be advocating a massive disenfranchisement of the majority of the voters of the sixth
district of Manila.
Congressional elections are different from local government elections. In local government
elections, when the winning candidate for governor or mayor is subsequently disqualified,
the vice-governor or the vice-mayor, as the case may be, succeeds to the position by virtue
of the Local Government Code. It is different in elections for representative. When a voter
chooses his congressional candidate, he chooses only one. If his choice is concurred in by
the majority of voters, that candidate is declared the winner. Voters are not afforded the
opportunity of electing a ‘substitute congressman’ in the eventuality that their first choice
dies, resigns, is disqualified, or in any other way leaves the post vacant. There can only be
one representative for that particular legislative district. There are no runners-up or second
placers. Thus, when the person vested with the mandate of the majority is disqualified from
holding the post he was elected to, the only recourse to ascertain the new choice of the
electorate is to hold another election. x x x
This does not mean that the Sixth Legislative District of Manila will be without adequate
representation in Congress. Article VI, Section 9 of the Constitution, and Republic Act No.
6645 allows Congress to call a special election to fill up this vacancy. There are at least 13
months until the next congressional elections, which is more than sufficient time within
which to hold a special election to enable the electorate of the Sixth District of Manila to
elect their representative.
For this reason, the Tribunal holds that protestant cannot be proclaimed as the duly elected
representative of the Sixth legislative District of Manila.
In view of the conclusion herein reached, it is unnecessary to rule on the recount and
revision of ballots in the protested and counter-protested precincts.
WHEREFORE, the Tribunal Resolved to:
xxxxxx
2) DENY protestant’s (petitioner) Motion to Implement Section 6, Republic Act No. 6646 by
declaring the votes cast for Mario Crespo as stray votes."
Petitioner filed a partial motion for reconsideration but was denied. Hence, the present
petition for certiorari.
Petitioner contends that the HRET committed grave abuse of discretion when it ruled that
"it is unnecessary to rule on the recount and revision of ballots in the protested and
counter-protested precincts." He maintains that it is the ministerial duty of the HRET to
implement the provisions of Section 6, R.A. No. 6646 specifically providing 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."
In his comment, private respondent counters that what the law requires is that the
disqualification by final judgment takes place before the election. Here, the HRET
Resolutions disqualifying him as Representative of the 6th District of Manila were rendered
long after the May 14, 2001 elections. He also claims that the Resolutions are not yet final
and executory because they are the subjects of certiorari proceedings before this Court.
Hence, all his votes shall be counted and none shall be considered stray.
The HRET, in its comment, through the Office of the Solicitor General, merely reiterates its
ruling.
The petition must be dismissed.
The issues here are: (1) whether the votes cast in favor of private respondent should not be
counted pursuant to Section 6 of R.A. No. 6646; and (2) whether petitioner, a second placer
in the May 14, 2001 congressional elections, can be proclaimed the duly elected
Congressman of the 6th District of Manila.
The issues raised are not novel. In Codilla, Sr. vs. De Venecia,10 we expounded on the
application of Section 6, R.A. No. 6646. There, we emphasized that there must be a final
judgment before the election in order that the votes of a disqualified candidate can be
considered "stray", thus:
"Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require a final
judgment before the election for the votes of a disqualified candidate to be considered
"stray." Hence, when a candidate has not yet been disqualified by final judgment during the
election day and was voted for, the votes cast in his favor cannot be declared stray. To do so
would amount to disenfranchising the electorate in whom sovereignty resides."
The obvious rationale behind the foregoing ruling is that in voting for a candidate who has
not been disqualified by final judgment during the election day, the people voted for him
bona fide, without any intention to misapply their franchise, and in the honest belief that
the candidate was then qualified to be the person to whom they would entrust the exercise
of the powers of government.11
In the present case, private respondent was declared disqualified almost twenty-two (22)
months after the May 14, 2001 elections. Obviously, the requirement of "final judgment
before election" is absent. Therefore, petitioner can not invoke Section 6 of R.A. No. 6646.
Anent the second issue, we revert back to the settled jurisprudence that the subsequent
disqualification of a candidate who obtained the highest number of votes does not entitle
the candidate who garnered the second highest number of votes to be declared the
winner.12 This principle has been reiterated in a number our decisions, such as Labo, Jr. vs.
COMELEC,13 Abella vs. COMELEC,14 Benito vs. COMELEC15 and Domino vs. COMELEC.16 As
a matter of fact, even as early as 1912, it was held that the candidate who lost in an election
cannot be proclaimed the winner in the event that the candidate who won is found to be
ineligible for the office for which he was elected.17
In Geronimo vs. Ramos,18 if the winning candidate is not qualified and cannot qualify for
the office to which he was elected, a permanent vacancy is thus created. The second placer
is just that, a second placer – he lost in the elections, he was repudiated by either the
majority or plurality of voters. He could not be proclaimed winner as he could not be
considered the first among the qualified candidates. To rule otherwise is to misconstrue the
nature of the democratic electroral process and the sociological and psychological
underpinnings behind voters’ preferences.19
At any rate, the petition has become moot and academic. The Twelfth Congress formally
adjourned on June 11, 2004. And on May 17, 2004, the City Board of Canvassers proclaimed
Bienvenido Abante the duly elected Congressman of the Sixth District of Manila pursuant to
the May 10, 2004 elections.
In the recent case of Enrile vs. Senate Electoral Tribunal,20 we ruled that a case becomes
moot and academic when there is no more actual controversy between the parties or no
useful purpose can be served in passing upon the merits. Worth reiterating is our
pronouncement in Gancho-on vs. Secretary of Labor and Employment, thus:21
"It is a rule of universal application, almost, that courts of justice constituted to pass upon
substantial rights will not consider questions in which no actual interests are involved; they
decline jurisdiction of moot cases. And where the issue has become moot and academic,
there is no justiciable controversy, so that a declaration thereon would be of no practical
use or value. There is no actual substantial relief to which petitioner would be entitled and
which would be negated by the dismissal of the petition."
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Disqualifications
G.R. No. 212615
LEODEGARIO A. LABAO, JR., Petitioner
vs.
COMMISSION ON ELECTIONS and LUDOVICO L. MARTELINO, JR., Respondents
x-----------------------x
G.R. No. 212989
SHARON GRACE MARTINEZ-MARTELINO, Petitioner,
vs.
COMMISSION ON ELECTIONS AND VICE MAYOR JOSE O. ALBA, JR., Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court are two consolidated Petitions:
G.R. No. 212615 is a Petition for Certiorari and Prohibition filed by Leodegario A. Labao, Jr.
(Labao, Jr.) to annul and set aside the May 21, 20141 and September 24, 20132 Resolutions
of the Commission on Elections (COMELEC) in SPA Case No. 13-294 (DC), entitled "Ludovico
L. Martelino, Jr. v. Leodegario A. Labao, Jr.," disqualifying him as candidate for the position
of Mayor of the Municipality of Mambusao, Capiz as well as nullifying his proclamation as
the duly elected Mayor thereof.
And, G.R. No. 212989 is a Petition for Certiorari and Mandamus filed by Sharon Grace
Martinez-Martelino (Sharon) (i) to annul and set aside the aforementioned resolutions of
the COMELEC but only as to the portion directing the application of the rules of succession
(in case of a permanent vacancy in the Office of the Mayor) pursuant to Section 44 of the
Local Government Code; and (ii) to compel the COMELEC to proclaim her, instead, as the
duly elected Mayor of the Municipality ofMambusao, Capiz.
Both petitions were filed pursuant to Rule 64 in relation to Rule 65, of the Rules of Court, as
amended.
The facts shared by both cases are as follows:
In a Petition for Disqualification dated May 8, 2013 filed before the COMELEC, Ludovico L.
Martelino, Jr. (Ludovico) sought the disqualification of Labao, Jr. as candidate3 for Mayor of
the Municipality of Mambusao, Capiz in the May 13, 2013 elections, on the ground that
Labao, Jr. was a fugitive from justice. Ludovico essentially averred that there was an
outstanding warrant for Labao, Jr.'s arrest in connection with the filing of an Information for
Murder against him and four other persons; and that he had eluded arrest, thus, was at
large.
The Information for murder stemmed from the assassination of Vice-Mayor Abel P. Martinez
(Vice-Mayor Martinez) in front of his residence on May 4, 2012. The assailants of Vice-
Mayor Martinez were not immediately known. But on December 20, 2012, one Roger D.
Loredo (Loredo) executed an extrajudicial confession admitting his participation in the killing
of Vice Mayor Martinez, and implicating Labao, Jr. as the mastermind thereof. On April 4,
2013, the Department of Justice (DOJ) found probable cause to indict Labao, Jr. and four
other persons for murder.
On April 10, 2013, an Information4 for murder was filed before the Regional Trial Court
(RTC), Branch 21, Mambusao, Capiz. On the same day, warrants for the arrest of Labao, Jr.
and four other personalities were issued.
On April 14, 2013, acting on a tip, members of the Philippine National Police (PNP)
attempted but failed to apprehend Labao, Jr. at St. Paul's Hospital in Iloilo City where he was
supposedly confined.5
In view of the above-described state of affairs, Ludovico filed the said petition for
disqualification against Labao, Jr. alleging that the latter's ''flight from justice [was} apparent
when he surreptitiously eluded arrest, that is, without proper discharge clearance from St.
Paul's Hospital, at the time the PNP personnel tried to serve the warrant of arrest on him."
He argued that Labao, Jr. qualified as a fugitive from justice as he went into hiding after he
was charged in court to avoid criminal prosecution.6 It is for such reason that Labao, Jr. is
considered a fugitive from justice and, thus, disqualified from running as mayor pursuant to
Section 40 of the Local Government Code, viz.:
Section 40. Disqualifications. - The following persons are disqualified from running for any
elective local position:
xxxx
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad[.]
In his Answer dated June 12, 2013, Labao, Jr. denied the assertion that he was a fugitive
from justice. He countered that there was no charge against him when he filed his
Certificate of Candidacy (COC); and that he was only implicated in the crime when Loredo
filed his extrajudicial confession on December 20, 2012. Further, he asserted that:
14. On 10 April 2013 to 14 April 2013, respondent [Labao, Jr.] was confined at St. Paul's
Hospital, Iloilo City due to constant chest pains occasioned by an enlarged heart that his
Cardiologist recommended "Complete Management for Acute Coronary Syndrome, Plan to
do Angiogram," per Clinical/Medical Abstract dated 13 April 2013 x x x.
15. Having been confined at said hospital, particularly at its Surgical Intensive Care Unit,
respondent had no idea as to the truth or falsity of the allegations that the Murder charge
against him were maliciously broadcasted/published over radio, tv and the newspapers.
16. On or about 12 April 2013, respondent intended to submit himself to the jurisdiction of
the court by filing a motion for hospital arrest with [Presiding Judge] Amular but he was
informed that PJ Amular was in Boracay, Aklan and will report for work only on 15 April
2013, hence, the filing of that motion was rescheduled on 15 April 2013.
17. On 14 April 2013, respondent learned from his staff that police authorities had
surrounded the hospital and they personally heard a police officer say "Shoot to kill si
Labao." Instinctively, without any intent to elude arrest, but for the singular purpose of
preserving his life, he was forced to leave the hospital.
18. On 15 April 2013, PJ Amular decided to inhibit himself from the Murder case after
issuing the Warrant of Arrest against respondent with precipitate haste, per the Order of
Inhibition dated 15 April 2013 x x x.
19. Immediately thereafter, the Murder case was referred to the Supreme Court for
assignment to another court/judge as there is no pairing judge to try or hear the subject
case in the Regional Trial Court of Mambusao, Capiz.
20. Since then, respondent had been preparing himself to undergo andiogram to improve
his heart ailment as well as awaiting the assignment by the Supreme Court of the Murder
case to another court/judge so he can submit himself to the jurisdiction of the court by
applying for hospital arrest and/or filing any other appropriate pleading.
21. Until the Supreme Court has assigned the Murder case to another court/judge, the same
cannot be prosecuted, without any fault on the part of respondent, as it was PJ Amular
himself who was responsible in creating that consequential situation wherein the
prosecution of the case was held in abeyance due to his inhibition.7
Finally, Labao, Jr. puts emphasis on the fact that he had already been proclaimed as the duly
elected Municipal Mayor of Mambusao, Capiz on May 14, 2013.8
Ruling of the COMELEC First Division
In a Resolution dated September 24, 2013, the COMELEC First Division resolved to disqualify
Labao, Jr., the dispositive part of which reads:
WHEREFORE, premises considered, the Commission RESOLVED as it hereby RESOLVES to:
DISQUALIFY respondent Leodegario A. Labao Jr. as candidate for the position of Mayor of
Mambusao, Capiz.9
Citing Rodriguez v. Commisszon on Elections,10 to wit:
[A] fugitive from justice x x x includes not only those who flee after conviction to avoid
punishment but likewise who, after being charged, flee to avoid prosecution.
The definition thus indicates that the intent to evade is the compelling factor that animates
one's flight from a particular jurisdiction. And obviously, there can only be an intent to
evade prosecution or punishment when there is knowledge by the fleeing subject of an
already instituted indictment, or of a promulgated judgment of conviction.
Prescinding from the above definition, the COMELEC First Division held that Labao, Jr. was a
fugitive from justice, i.e., that his acts subsequent to the filing of the Information for murder
and the issuance of a warrant of arrest indicate an unmistakable intent to evade
prosecution. Particularly, it held that:
There is no question that an Information for Murder was already filed and pending in court
against respondent. Likewise, there is no question that a warrant of arrest was issued
against him as early as April 10, 2013. In fact, the arrest warrant was implemented during
respondent's confinement at the hospital, only he was able to elude arrest. In other words,
respondent knew that he is an accused for a capital offense and a warrant was already
issued against him. Under such circumstance, therefore, he should have voluntarily
surrendered to the authorities. The fact that respondent has not yet assumed office despite
having been proclaimed as the duly elected Mayor of Mambusao, Capiz, militates against his
insistence that he is in good faith.
Moreover, his insistence that he could not be considered as avoiding prosecution because
the case has not yet been assigned to another court/judge is of no moment. The surrender
of a person against whom a warrant of arrest has been issued does not depend upon the
presence or the absence of a judge.
It also does not escape us that respondent even executed a Special Power of Attorney in
favor of his wife authorizing her "to appear in all stages of the proceedings, if required, and
if necessary, to testify and/or submit appropriate documentary evidence." While this is
undoubtedly within respondent's prerogative, it is a clear indication that he does not wish to
face the music by complying with the warrant of arrest which up to now is still
outstanding.11 (Emphasis supplied.)
Labao, Jr. moved for the reconsideration12 of the above-quoted ruling based on the
following grounds: (i) the petition for disqualification has ceased to be a pre-proclamation
controversy as he had already been proclaimed as Mayor; (ii) the Rodriguez ruling on
"fugitive from justice" did not apply to him; and (iii) since he had already been proclaimed as
winner, all doubts regarding his qualification should be resolved in his favor in order to
breathe life to the will of the people.
On October 14, 2013, Sharon, the daughter of Vice-Mayor Martelino and wife of Ludovico,
filed a Motion to Intervene in the COMELEC case as well as a Motion for Reconsideration of
the September 24, 2013 Resolution of the COMELEC First Division. In her motions,13 she
averred that she also ran for the same Mayoralty position as Labao, Jr. in the May 13, 2013
elections; that since Labao, Jr.'s disqualification made his candidacy illegitimate, the votes
cast in his favor should be considered stray under Section 211, paragraph 2414 of the
Omnibus Election Code; and that she obtained the second highest number of votes; hence,
she should be proclaimed the winning Mayoralty candidate.
On November 4, 2013, the Liga ng mga Barangay-Mambusao Chapter (LBMC) also moved to
intervene, arguing that the case, which was considered a pre-proclamation controversy,
should be dismissed for having been rendered moot and academic by Labao, Jr. 's victory.15
In the meantime, RTC-Branch 2116 issued an Order17 on November 4, 2013 temporarily
suspending the proceedings in consideration of a July 15, 2013 DOJ Resolution18issued by
Undersecretary Francisco F. Baraan III (Baraan Resolution) excluding Labao, Jr. from the
Information for murder of Vice-Mayor Martinez. The fallo of the said RTC Order reads:
In view of the foregoing, the implementation of the warrant of arrest against accused Labao
is lifted and temporarily suspended. Consequently, the proceedings against accused Labao is
temporarily suspended until and after the final determination of [the] Motion for
Reconsideration filed by the prosecution with the Department of Justice through the Police
Provincial Office. All law enforcers[,] their deputies and agents or anyone acting for and on
their behalf or authority are directed to immediately cease and desist from enforcing the
Warrant of Arrest dated April 10, 2013 against Leodegario A. Labao, Jr. until further orders
from this Court.19

Thus, in view of the said RTC Order, on November 6, 2013, Labao, Jr. filed a Supplemental
Motion for Reconsideration20before the COMELEC on the ground that "he is already a free
man, and most certainly 'not a fugitive from justice, "' by virtue of the lifting and suspension
of the implementation of the warrant of arrest by the RTC.
On November 14, 2013, however, DOJ Secretary Leila De Lima reversed the July 15, 2013
Baraan Resolution, effectively reinstating Labao, Jr. as an accused in the criminal case filed
before RTC-Branch 21.21
In yet another twist of events, on May 21, 2014, resolving the issue of whether or not
probable cause exists for the issuance of a warrant of arrest against Labao, Jr., RTC-Branch
21 issued another Order22 this time dismissing altogether the criminal complaint against
Labao, Jr. on the ground of lack of probable cause.
Ruling of the COMELEC En Banc
In a Resolution dated May 21, 2014, the same day as the issuance of the above-mentioned
RTC Order, the COMELEC En Banc denied Labao, Jr. 's motion, viz.:
WHEREFORE, the Motion for Reconsideration of RESPONDENT LEODEGARIO A. LABAO, JR. of
the Resolution dated 24 September 2013 of the First Division is hereby DENIED for lack of
merit and his disqualification as candidate for the position of Mayor of Mambusao, Capiz is
hereby AFFIRMED.
Consequently, Respondent's PROCLAMATION is hereby declared NULL AND VOID.
Accordingly, let the rules of succession provided under Section 44 of the Local Government
Code apply.23
In affirming Labao, Jr.'s disqualification, the COMELEC En Banc confirmed its First Division's
finding as to Labao Jr.'s intention to evade prosecution; thus, said candidate was a "fugitive
from justice" as defined in Rodriguez. It explained that the phrase "fugitive from justice"
contemplates two situations: 1) those who, after conviction flee to avoid punishment; and 2)
those who, after being charged, flee to avoid prosecution; and Labao, Jr. falls under the
second category.24
In filling up the vacancy brought about by the disqualification of Labao, Jr., the COMELEC En
Banc applied Fermin v. Commission on Elections25wherein this Court ruled that a
disqualified candidate is merely prohibited to continue as a candidate, as opposed to a
candidate whose certificate of candidacy is cancelled. A disqualified candidate may be
substituted, and his certificate of candidacy subsists. In which case, the rule on succession
under Section 44 of the Local Government Code (LGC) applies:
Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and
Vice-Mayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice-
governor or vice-mayor concerned shall become the governor or mayor x x x.
With respect to the motions for intervention separately filed by Sharon and LBMC, the
COMELEC En Banc denied both motions in view of the fact that they were filed after the
conferences set for the case - in violation of Section 3, Rule 8 of the COMELEC Rules of
Procedure, which provides that an intervention may be denied when it will unduly delay the
rights of the original parties. Further, it held that passing upon the issue/s raised in the said
motions would be inutile considering its disposition of Labao, Jr.'s motion for
reconsideration that settles all the remaining issues, i.e., who shall replace Labao, Jr.26
Hence, the two petitions separately filed by Labao, Jr. and Sharon before this Court.
The Issues
In his petition docketed as G.R. No. 212615, Labao, Jr. prays for the annulment and setting
aside of the COMELEC Resolutions on the following grounds:
RESPONDENT COMELEC COMMITTED ORA VE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT:
1.) ENTERTAINED A PRE-PROCLAMATION CONTROVERSY EVEN AFTER PETITIONER WAS
PROCLAIMED AS THE DULY ELECTED MUNICIPAL MAYOR OF MAMBUSAO, CAPIZ; AND,
2.) DISQUALIFIED PETITIONER AS MUNICIPAL MAYOR OF MAMBUSAO, CAPIZ ON THE
PREMISE THAT HE IS A FUGITIVE FROM JUSTICE NOTWITHSTANDING THAT THERE IS NO
MORE WARRANT OF ARREST AGAINST HIM AND THE CRIMINAL CHARGE FOR MURDER
AGAINST HIM HAD ALREADY BEEN DISMISSED FOR LACK OF PROBABLE CAUSE.27
Labao, Jr. insists that the COMELEC should have dismissed the case against him on account
of his proclamation as Mayor of Mambusao, Capiz; thus, he argues that the disqualification
case has ceased to be a pre-proclamation controversy.
On the other hand, in her petition docketed as G.R. No. 212989, Sharon seeks the
annulment and setting aside of the COMELEC En Banc Resolution but only that portion that
directs the application of the rules on succession in case of permanent vacancy in the Office
of the Mayor provided under Section 44 of the Local Government Code. It is Sharon's
submission that, pursuant to Maquiling v. Commission on Elections,28 having garnered the
second highest number of votes next to Labao, Jr., she should be proclaimed as the duly
elected Mayor of Mambusao since the COMELEC already disqualified Labao, Jr. In fine, she
anchors her petition on the following arguments:
I. Whether petitioner should be allowed to intervene in SPA No. 13-294 (DC);
II. Whether the qualification and/or disqualification requirements of a candidate, as
mandated by the [C]onstitution and law, must be possessed during the filing of the
certificate of candidacy and on the day of the election; and
III. Whether petitioner should be declared the winning candidate and proclaimed as Mayor
of Mambusao.29
This Court's Ruling
Re: G.R. No. 212615
Labao, Jr. 's petition is meritorious.
The petition against Labao, Jr. was
for disqualification and not a pre-.
proclamation controversy.
The petition filed by Ludovico against Labao, Jr. before the COMELEC, docketed as SPA Case
No. 13-294 (DC), is not a pre-proclamation controversy. The Omnibus Election Code (OEC)
clearly defines the term "pre-proclamation controversy." Pertinently, Section 241 thereof
provides as follows:
Sec. 241. Definition. - A pre-proclamation controversy refers to any question pertaining to or
affecting the proceedings of the board of canvassers which may be raised by any candidate
or _by any registered political party or coalition of political parties before the board or
directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in
relation to the preparation, transmission, receipt, custody and appreciation of the election
returns. (Emphasis supplied.)
Sections 233 to 236 of the OEC read:
Sec. 233. When the election returns are delayed, lost or destroyed. - In case its copy of the
election returns is missing, the board of canvassers shall, by messenger or otherwise, obtain
such missing election returns from the board of election inspectors concerned, or if said
returns have been lost or destroyed, the board of canvassers, upon prior authority of the
Commission, may use any of the authentic copies of said election returns or a certified copy
of said election returns issued by the Commission, and forthwith direct its representative to
investigate the case and immediately report the matter to the Commission.
The board of canvassers, notwithstanding the fact that not all the election returns have
been received by it, may terminate the canvass and proclaim the candidates elected on the
basis of the available election returns if the missing election returns will not affect the
results of the election.
Sec. 234. Material defects in the election returns. - If it should clearly appear that some
requisites in form or data had been omitted in the election returns, the board of canvassers
shall call for all the members of the board of election inspectors concerned by the most
expeditious means, for the same board to effect the correction:
Provided, That in case of the omission in the election returns of the name of any candidate
and/or his corresponding votes, the board of canvassers shall require the board of election
inspectors concerned to complete the necessary data in the election returns and affix
therein their initials: Provided, further, That if the votes omitted in the returns cannot be
ascertained by other means except by recounting the ballots, the Commission, after
satisfying itself that the identity and integrity of the ballot box have not been violated, shall
order the board of election inspectors to open the ballot box, and, also after satisfying itself
that the integrity of the ballots therein has been duly preserved, order the board of election
inspectors to count the votes for the candidate whose votes have been omitted with notice
thereof to all candidates for the position involved and thereafter complete the returns.
The right of a candidate to avail of this provision shall not be lost or affected by the fact that
an election protest is subsequently filed by any of the candidates.
Sec. 23 5. When election returns appear to be tampered with or falsified. - If the election
returns submitted to the board of canvassers appear to be tampered with, altered or
falsified after they have left the hands of the board of election inspectors, or otherwise not
authentic, or were prepared by the board of election inspectors under duress, force,
intimidation, or prepared by persons other than the member of the board of election
inspectors, the board of canvassers shall use the other copies of said election returns and, if
necessary, the copy inside the ballot box which upon previous authority given by the
Commission may be retrieved in accordance with Section 220 hereof. If the other copies of
the returns are likewise tampered with, altered, falsified, not authentic, prepared under
duress, force, intimidation, or prepared by persons other than the members of the board of
election inspectors, the board of canvassers or any candidate affected shall bring the matter
to the attention of the Commission. The Commission shall then, after giving notice to all
candidates concerned and after satisfying itself that nothing in the ballot box indicate that
its identity and integrity have been violated, order the opening of the ballot box and,
likewise after satisfying itself that the integrity of the ballots therein has been duly
preserved shall order the board of election inspectors to recount the votes of the candidates
affected and prepare a new return which shall then be used by the board of canvassers as
basis of the canvass.
Sec. 236. Discrepancies in election returns. - In case it appears to the board of canvassers
that there exists discrepancies in the other authentic copies of the election returns from a
polling place or discrepancies in the votes of any candidate in words and figures in the same
returns, and in either case the difference affects the results of the election, the Commission,
upon motion of the board of canvassers or any candidate affected and after due notice to all
candidates concerned, shall proceed summarily to determine whether the integrity of the
ballot box had been preserved, and once satisfied thereof shall order the opening of the
ballot box to recount the votes cast in the polling place solely for the purpose of
determining the true result of the count of votes of the candidates concerned.
From the foregoing provisions of the OEC, it is quite clear that the petition for
disqualification filed by Ludovico docketed as SPA Case No, 13-294 (DC) in no way qualifies
as a pre-proclamation controversy, having absolutely nothing to do with any matter or
ground pertaining to or affecting the proceedings of the board of canvassers or any matter
raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns.
Section 243 of the OEC further enumerates the issues which are proper subject matters of a
pre-proclamation controversy as follows:
Sec. 243. Issues that may be raised in pre-proclamation controversy. - The following shall be
proper issues that may be raised in a pre-proclamation cop.troversy:
a. Illegal composition or proceeding of the board of canvassers;
b. The canvassed election returns are incomplete, contain material defects, appear to be
tampered with or falsified, or contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;
c. The election returns were prepared under duress, threats, coercion, or intimidation, or
they are obviously manufactured or not authentic; and
d. When substitute or fraudulent returns in controverted polling places were canvassed, the
results of which materially affected the standing of the aggrieved candidate or candidates.
(Emphasis supplied.)
In Suhuri v. Commission on Elections,30this Court held that the above "enumeration is
restrictive and exclusive."
Thus; in this case, the petition filed against Labao, Jr. does not come within the scope of a
pre-proclamation controversy under the aforequoted OEC provision.
The grounds to file a petition for disqualification are provided for in Section 12 or 68 of the
OEC, or under Section 40 of the Local Government Code.31 In the case at bar, the petition
for disqualification against Labao, Jr. was based on Section 40(e) of the Local Government
Code, quoted above, disqualifying "[ f]ugitives from justice in criminal or non-political cases
here or abroad" from running for any elective local position.
Labao, Jr. was not a fugitive from
justice at the time that he was a
candidate for Mayor of Mamhusao,
Capiz during the May 13, 2013
Elections.
Labao, Jr. relies much on the fact that, on May 21, 2014, one year after the conduct of the
elections, the RTC had already dismissed the murder charge against him. But what matters
in the resolution of the present cases is whether or not during the period starting from the
time the Information for murder filed on April 10, 2013 until the day of the election, on May
13, 2013, Labao, Jr. can be considered a fugitive from justice, and, hence, disqualified to run
for the position of Mayor ofMambusao, Capiz.
Based on settled jurisprudence, the term "'fugitive from justice' includes not only those who
flee after conviction to avoid punishment but likewise those who, after being charged, flee
to avoid prosecution."32 In Rodriguez v. Commission on Elections,33this Court held that:
The definition thus indicates that the intent to evade is the compelling factor that animates
one's flight from a particular jurisdiction. And obviously, there can only be an intent to
evade prosecution or punishment when there is knowledge by the fleeing subject of an
already instituted indictment, or of a promulgated judgment of conviction, (Emphasis
supplied.)
Such intent in these cases has not been established by the evidence on record.
The COMELEC anchored its finding that Labao, Jr. was a fugitive from justice from the fact
that he was missed at the hospital when the warrant for his arrest was being served. No
other substantial evidence was presented to prove that Labao, Jr, tried to hide from the
authorities or that he left Mambusao, Capiz to avoid being arrested and prosecuted. On the
part of Labao, Jr., he was able to show his presence in Mambusao, and his desire to
participate in the proceedings before the DOJ and the RTC, by citing the following
circumstances:
1. He took his Oath of Office as Municipal Mayor of Mambusao, Capiz, per the Panunumpa
sa Katungkulan dated 25 June 2013.34
2. He assumed office as Municipal Mayor of Mambusao, Capiz per the DILG Certification35
dated 30 June 2013.1âwphi1
3. He served as Municipal Mayor and received his salary for the period from 1-3 July 2013,
per certification by the Administrative Officer of the Request and Disbursement Voucher
dated 3 October 2013.36
4. He filed a Petition for Review before the DOJ which he verified on April 10, 2013, which
led to the issuance of the "Baraan Resolution" dated 15 July 2013, resulting in the directive
to exclude him in the criminal Information for Murder.
5. He participated in the proceedings before the RTC, Mambusao, Capiz which led to the
issuance of the Orders dated 4 November 2013 and 21 May 2014, for the lifting/suspension
of the Warrant of Arrest against him and finally, the dismissal of the Murder charge against
him. (Citations omitted)37
Moreover, there was no proof to show the efforts exerted by the police to locate Labao, Jr.
and that despite such efforts, the warrant of arrest against him could not be served.
Although Labao, Jr. had executed a Special Power of Attorney (SPA) in favor of his wife
authorizing her "to appear in all stages of the proceedings, if required, and if necessary, to
testify and/or submit appropriate documentary evidence," again, it was not shown that the
SPA was executed solely for the purpose of evading arrest.
Grave Abuse of Discretion on the Part of
COMELEC
Given the foregoing, this Court finds that the pieces of evidence on record do not sufficiently
establish Labao, Jr.' s intention to evade being prosecuted for a criminal charge that will
warrant a sweeping conclusion that Labao, Jr., at the time, was evading prosecution so as to
disqualify him as a fugitive from justice from running for public office.38 Moreover, the
dearth of evidence pointing to such intent hardly justifies the would-be disenfranchisement
of 12, 11 7 innocent voters of Mambusao, Capiz who voted for Labao, Jr.
Thus, the COMELEC En Banc Resolution dated May 21, 2014 should be struck down for
having been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction. This Court's action finds anchor in Jalover v. Osmeña,39 where it was explained
that:
In exceptional cases, however, when the COMELEC's action on the appreciation and
evaluation of evidence oversteps the limits of its discretion to the point of being grossly
unreasonable, the Court is not only obliged, but has the constitutional duty to intervene.
When grave abuse of discretion is present, resulting errors arising from the grave abuse
mutate from error of judgment to one of jurisdiction. (Citations omitted.)
This Court is hard-pressed to label Labao, Jr.' s actions as evasion of prosecution for him to
be considered a fugitive from justice that would disqualify him to run as a candidate for
Mayor of Mambusao, Capiz.
Re: G.R. No. 212989
In view of the findings of fact and law arrived at in G.R. No. 212615, it is no longer necessary
to discuss the issues raised in the petition of Sharon who is seeking to succeed Labao, Jr. as
Mayor of Mambusao, Capiz. Hence, the same is dismissed.
WHEREFORE, premises considered, the petition filed by Leodegario A. Labao, Jr. in G.R. No.
212615 is GRANTED. Consequently, the petition filed by Sharon Grace Martinez-Martelino in
G.R. No. 212989 is DISMISSED for being moot and academic.
SO ORDERED.

Effect of disqualification case
G.R. No. 105111 July 3, 1992
RAMON L. LABO, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, and ROBERTO ORTEGA, respondents.
G.R. No. 105384 July 3, 1992
ROBERTO C. ORTEGA, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAMON L. LABO, Jr., respondents.
BIDIN, J.:
This is the second time1 that this Court is called upon to rule on the citizenship of Ramon
Labo, Jr., who, believing that he is a Filipino citizen launched his candidacy for mayor of
Baguio City in the last May 11, 1992 elections by filing his certificate of candidacy on March
23, 1992.
Petitioner Roberto Ortega (GR No. 105384), on other hand, also filed his certificate of
candidacy for the same office on March 25, 1992.
Shortly after petitioner Labo filed his certificate of candidacy, petitioner Ortega filed on
March 26, 1992, a disqualification proceeding against Labo before the Commission on
Elections (Comelec), docketed as SPA No. 92-029, seeking to cancel Labo's certificate of
candidacy on the ground that Labo made a false representation when he stated therein that
he (Labo) is a "natural-born" citizen of the Philippines.
Summons in the disqualification case was issued by the Comelec on March 27, 1992 to
petitioner Labo followed by a telegram dated April 1, 1992, requiring him to file his Answer
within three (3) non-extendible days but the latter failed to respond.
On April 15, 1992, Ortega filed a motion to declare Labo in default for failure to file his
Answer.
On April 24, 1992, the Comelec issued another order directing the Election Registrar of
Baguio City to personally deliver the summons. On May 4, 1992, the disqualification case
was set for reception of evidence. At the said hearing, Ortega presented the decision of this
Court in Labo v. Commission on Elections (176 SCRA 1 [1989]) declaring Labo not a citizen of
the Philippines. Labo, on the other hand, though represented by counsel, did not present
any evidence. It was only on May 5, 1992 that petitioner submitted his Answer claiming
Filipino citizenship.
On May 9, 1992, respondent Comelec issued the assailed resolution, the dispositive portion
of which reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby resolves, to
grant the petition; respondent's (Labo's) certificate of candidacy is hereby DENIED due
course and ordered CANCELLED; the City Election Registrar of Baguio City is hereby directed
to delete the name of the respondent (Labo) from the list of candidates for City Mayor of
Baguio City. (Rollo, pp. 47-48; GR No. 105111)
On the same date, Labo filed a motion to stay implementation of said resolution until after
he shall have raised the matter before this Court.
On May 10, 1992, respondent Comelec issued an Order which reads:
Acting on the "Urgent Ex-Parte Motion for Clarification", filed by respondent (Labo) on May
9, 1992, the Commission resolves that the decision promulgated on May 9, 1992
disqualifying respondent Ramon L. Labo, Jr., shall become final and executory only after five
(5) days from promulgation pursuant to Rule 18, Section 13, Paragraph (b) of the Comelec
Rules of Procedure.
Accordingly, respondent (Labo) may still continue to be voted upon as candidate for City
Mayor of Baguio City on May 11, 1992 subject to the final outcome of this case in the event
the issue is elevated to the Supreme Court either on appeal or certiorari. (Rollo, p. 53; GR
No. 105111; emphasis supplied)
On May 13, 1992, respondent Comelec resolved, motu proprio to suspend the proclamation
of Labo in the event he wins in the elections for the City Mayor of Baguio. (Rollo, pp. 64-65;
GR No. 105111)
On May 15, 1992, petitioner Labo filed the instant petition for review docketed as G.R. No.
105111 with prayer, among others, for the issuance of a temporary restraining order to set
aside the May 9, 1992 resolution of respondent Comelec; to render judgment declaring him
as a Filipino citizen; and to direct respondent Comelec to proceed with his proclamation in
the event he wins in the contested elections.
On the same date, or on May 15, 1992 petitioner Ortega filed before the Comelec an urgent
motion for the implementation of its May 9, 1992 resolution cancelling Labo's certificate of
candidacy.
After an exchange of pleadings, respondent Comelec, in its resolution dated May 26, 1992,
denied Ortega's motion in view of the pending case (G.R. No. 105111) earlier filed by Labo of
the same nature before this Court.
On June 1, 1992, Ortega filed a petition for mandamus docketed as G.R. No. 105384 praying
for the implementation of the Comelec's May 9, 1992 resolution.
Petitioner Ortega argues that respondent Comelec committed grave abuse of discretion
when it refused to implement its May 9, 1992 resolution notwithstanding the fact that said
resolution disqualifying Ramon Labo has already become final and executory.
After the parties have submitted their respective pleadings, the Court, on June 16, 1992,
Resolved to consider the case submitted for decision.
I. GR No. 105111
In essence, it is the contention of petitioner Labo that he is a Filipino citizen. Alleging lack of
trial on the merits as well as the lack of opportunity to be heard in Labo v. Commission on
Elections (supra), it is the submission of petitioner that he can prove his Filipino citizenship.
Petitioner cites the 1980 US case of Vance v. Terrazas (444 US 252), wherein it was held that
in proving expatriation, an expatriating act an intent to relinquish citizenship must be
proved by a preponderance of evidence.
Petitioner contends that no finding was made either by the Commission on Immigration or
the Comelec as regards his specific intent to renounce his Philippine citizenship.
Petitioner also faults the Comelec for the supposed abbreviated proceedings in SPA No. 92-
029 which denied him adequate opportunity to present a full-dress presentation of his case.
Thus: a) only one (1) day was set for hearing of the case, i.e., May 4, 1992; b) two days later,
May 6, 1992 the hearing was set; c) instead of holding a hearing, the Comelec issued the
questioned resolution on May 9, 1992.
If only to refresh the mind of petitioner Labo, as well as that of his counsel, records disclose
that summons were issued by respondent Comelec as early as March 27, 1992 followed by a
telegram on April 1, 1992. But petitioner chose to ignore the same. Came April 15, 1992,
petitioner Ortega filed a motion to declare petitioner Labo in default. Over-extending him
(Labo) the benefit of due process, respondent Comelec issued another order dated April 24,
1992, this time directing the Acting City Election Registrar of Baguio to personally serve the
summons. The alleged delay in the resolution of SPA No. 92-029 can only be attributed to
petitioner Labo and no one else. Thus, the respondent Comelec in its resolution dated May
9, 1992 stated:
On May 4, 1992, the Acting Regional Election Registrar called this case for reception of
evidence. Surprisingly, while as of that date respondent had not yet filed his Answer, a
lawyer appeared for him.
The petitioner (Ortega) presented the certificate of candidacy of respondent Ramon L. Labo,
Jr., which contained in item 9 thereof the verified statement that respondent is a "natural-
born" Filipino citizen. To prove that respondent is not a Filipino citizen, petitioner submitted
the decision of the Supreme Court in "Ramon L. Labo, Jr., petitioner, v. Comelec, et al.," GR
No. 86564, August 1, 1989, the dispositive portion of which states:
WHEREFORE, petitioner Ramon J. (sic) Labo, Jr. is hereby declared NOT a citizen of the
Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City.
He is ordered to VACATE his office and surrender the same to the Vice-Mayor of Baguio City
once this decision becomes final and executory.
No evidence was adduced for the respondent as in fact he had no Answer as of the hearing.
On May 5, 1992, respondent (Labo) filed his verified Answer, insisting that he is a Filipino
citizen and continue to maintain and preserve his Filipino citizenship; that he does not hold
an Australian citizenship; that the doctrine of res judicata does not apply in citizenship; and
that "existing facts support his continuous maintenance and holding of Philippine
citizenship" and "supervening events now preclude the application of the ruling in the Labo
v. Comelec case and the respondent (Labo) now hold and enjoys Philippine citizenship.
No evidence has been offered by respondent to show what these existing facts and
supervening events are to preclude the application of the Labo decision. (emphasis
supplied)
The Commission is bound by the final declaration that respondent is not a Filipino citizen.
Consequently, respondent's verified statement in his certificate of candidacy that he is a
"natural-born" Filipino citizen is a false material representation." (Rollo, pp. 45-48; GR No.
105111)
Up to this moment, petitioner Labo still failed to submit a scintilla of proof to shore his claim
before this Court that he has indeed reacquired his Philippine citizenship.
Instead, petitioner relies in the US case of Vance v. Terrazas (supra). Suffice it to state that
petitioner has already pleaded Vance in his motion for reconsideration in Labo v. Comelec
(supra; Rollo, p. 375). Having been previously passed upon, the Court sees no pressing need
to re-examine the same and make a lengthy dissertation thereon.
At any rate, the fact remains that he has not submitted in the instant case any evidence, if
there be any, to prove his reacquisition of Philippine citizenship either before this Court or
the Comelec. On this score alone, We find no grave abuse of discretion committed by
respondent Comelec in cancelling his (Labo's) certificate of candidacy and declaring that he
is NOT a Filipino citizen pursuant to our ruling in the 1989 case of Labo v. Comelec (supra).
Petitioner Labo claims, however, that Sec. 722 of the Omnibus Election Code "operates as a
legislatively mandated special repatriation proceeding" and that it allows his proclamation
as the winning candidate since the resolution disqualifying him was not yet final at the time
the election was held.
The Court finds petitioner Labo's strained argument quixotic and untenable. In the first
place, Sec. 72 of the Omnibus Election Code has already been repealed by Sec. 6 of RA No.
6646, to wit:
Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election
to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or the Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong. (emphasis supplied)
A perusal of the above provision would readily disclose that the Comelec can legally suspend
the proclamation of petitioner Labo, his reception of the winning number of votes
notwithstanding, especially so where, as in this case. Labo failed to present any evidence
before the Comelec to support his claim of reacquisition of Philippine citizenship.
Furthermore, we need only to reiterate what we have stated in Labo v. Comelec (supra),
viz.,:
Under CA No. 63, as amended by P.D. No. 725, Philippine citizenship may be reacquired by a
direct act of Congress, by naturalization, or by repatriation. It does not appear in the record,
nor does the petitioner claim, that he has reacquired Philippine citizenship by any of these
methods. He does not point to any judicial decree of naturalization or to any statute directly
conferring Philippine citizenship upon him. . . .
Petitioner Labo's status has not changed in the case at bar. To reiterate, he (Labo) was
disqualified as a candidate for being an alien. His election does not automatically restore his
Philippine citizenship, the possession of which is an indispensable requirement for holding
public office (Sec. 39, Local Government Code).
Still, petitioner takes pains in raising a new argument not litigated before the respondent
Comelec. Petitioner claims that he has reacquired his Filipino citizenship by citing his
application for reacquisition of Philippine citizenship filed before the Office of the Solicitor
General pursuant to PD 725 and Letter of Instruction No. 2703 (Rollo, pp. 116-119; G.R. No.
105111).
To date, however, and despite favorable recommendation by the Solicitor General, the
Special Committee on Naturalization had yet acted upon said application for repatriation.
Indeed, such fact is even admitted petitioner. In the absence of any official action or
approval by the proper authorities, a mere application for repratriation, does not, and
cannot, amount to an automatic reacquisition of the applicant's Philippine citizenship.
II. GR No. 105384
Petitioner Ortega submits that since this Court did not issue a temporary restraining order
as regards the May 9, 1992 resolution of respondent Comelec cancelling Labo's certificate of
candidacy, said resolution has already become final and executory. Ortega further posits the
view that as a result of such finality, the candidate receiving the next highest number of
votes should be declared Mayor of Baguio City.
We agree with Ortega's first proposition.
At the time petitioner Labo filed his petition (GR No. 105111) on May 15, 1992, the May 9,
1992 resolution of respondent Comelec cancelling his (Labo's) certificate of candidacy had
already become final and executory a day earlier, or on May 14, 1992, said resolution having
been received by petitioner Labo on the same day it was promulgated, i.e., May 9, 1992 and
in the interim no restraining order was issued by this Court.
Thus, Sec. 78 of the Omnibus Election Code provides:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy —
xxx xxx xxx
(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a
copy thereof by the parties, be final and executory unless stayed by the Supreme Court.
(emphasis supplied)
A similar provision is also found in Sec. 3, Rule 39 of the Comelec Rules of procedure, to wit:
Sec. 3. Decisions final after five days. — Decisions in
pre-proclamation cases and petitions to deny due course to or cancel certificates of
candidacy, to declare a candidate as nuisance candidate or to disqualify a candidate, and to
postpone or suspend elections shall become final and executory after the lapse of five (5)
days from their promulgation, unless restrained by the Supreme Court. (emphasis supplied)
The resolution cancelling Labo's certificate of candidacy on the ground that he is not a
Filipino citizen having acquired finality on May 14, 1992 constrains Us to rule against his
proclamation as Mayor of Baguio City.
To begin with, one of the qualifications of an elective official is that he must be a citizen of
the Philippines. Thus, the Local Government Code provides:
Sec. 39. Qualifications. — (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city, or province or, in the case of a member
of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, the district
where he intends to be elected; a resident therein for at least one (1) year immediately
preceding the day of the election; and able to read and write Filipino or any other local
language or dialect. (emphasis supplied)
Undoubtedly, petitioner Labo, not being a Filipino citizen, lacks the fundamental
qualification for the contested office. Philippine citizenship is an indispensable requirement
for holding an elective office. As mandated by law: "An elective local official must be a
citizen of the Philippines."
The issue here is citizenship and/or Labo's alienage — the very essence which strikes at the
very core of petitioner Labo's qualification to assume the contested office, he being an alien
and not a Filipino citizen. The fact that he was elected by the majority of the electorate is of
no moment. As we have held in Frivaldo v. Commission on Elections (174 SCRA 245 [1989]):
. . . The fact that he was elected by the people of Sorsogon does not excuse this patent
violation of the salutary rule limiting public office and employment only to the citizens of
this country. The qualifications prescribed for elective office cannot be erased by the
electorate alone. The will of the people as expressed through the ballot cannot cure the vice
of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was
qualified. Obviously, this rule requires strict application when the deficiency is lack of
citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his
total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other
state.
This brings us to the second issue raised by petitioner Ortega, i.e., whether the
disqualification of petitioner Labo entitles the candidate (Ortega) receiving the next highest
number of votes to be proclaimed as the winning candidate for mayor of Baguio City.
We hold in the negative. The disqualification of petitioner Labo does not necessarily entitle
petitioner Ortega as the candidate with the next highest number of votes to proclamation as
the Mayor of Baguio City.
We make mention of petitioner Ortega because in his petition, he alleges that:
. . . the May 11, 1992 elections were held with both herein petitioner (Roberto Ortega) and
respondent LABO having been voted for the position of Mayor and unofficial results indicate
that if the name of respondent LABO were deleted from the list of candidates, herein
petitioner (Ortega) will be entitled to be proclaimed as Mayor-elect of Baguio City. (Rollo, p.
7, GR No. 105384; emphasis supplied)
and further prays this Court "to proclaim as the Mayor-elect of Baguio City the candidate
who may have garnered the most number of votes after the exclusion of the name of
respondent candidate LABO." (Rollo, p. 15, Ibid.) Implicit, therefore, is petitioner Ortega's
desire to be proclaimed Mayor-elect of Baguio City.
As discussed hereunder, however, the Court finds Ortega's prayer devoid of merit.
While Ortega may have garnered the second highest number of votes for the office of city
mayor, the fact remains that he was not the choice of the sovereign will. Petitioner Labo
was overwhelmingly voted by the electorate for the office of mayor in the belief that he was
then qualified to serve the people of Baguio City and his subsequent disqualification does
not make respondent Ortega the mayor-elect. This is the import of the recent case of Abella
v. Comelec (201 SCRA 253 [1991]), wherein we held that:
While it is true that SPC No. 88-546 was originally a petition to deny due course to the
certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed,
the fact remains that the local elections of Feb. 1, 1988 in the province of Leyte proceeded
with Larrazabal considered as a bona fide candidate. The voters of the province voted for
her in the sincere belief that she was a qualified candidate for the position of governor. Her
votes was counted and she obtained the highest number of votes. The net effect is that
petitioner lost in the election. He was repudiated by the electorate. . . . What matters is that
in the event a candidate for an elected position who is voted for and who obtains the
highest number of votes is disqualified for not possessing the eligibility requirements at the
time of the election as provided by law, the candidate who obtains the second highest
number of votes for the same position cannot assume the vacated position. (emphasis
supplied)
Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to
depart therefrom. Like Abella, petitioner Ortega lost in the election. He was repudiated by
the electorate. He was obviously not the choice of the people of Baguio City.
Thus, while respondent Ortega (GR No. 105111) originally filed a disqualification case with
the Comelec (docketed as SPA-92-029) seeking to deny due course to petitioner's (Labo's)
candidacy, the same did not deter the people of Baguio City from voting for petitioner Labo,
who, by then, was allowed by the respondent Comelec to be voted upon, the resolution for
his disqualification having yet to attain the degree of finality (Sec. 78. Omnibus Election
Code).
And in the earlier case of Labo v. Comelec (supra), We held:
Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that
as he obtained only the second highest number of votes in the election, he was obviously
not the choice of the people of Baguio City.
The latest ruling of the Court in this issue is Santos v. Commission on Election, (137 SCRA
740) decided in 1985. In that case, the candidate who placed second was proclaimed elected
after the votes for his winning rival, who was disqualified as a turncoat and considered a
non-candidate, were all disregarded as stray. In effect, the second placer won by default.
That decision was supported by eight members of the Court then (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay, and Aquino JJ.,
concurring) with three dissenting (Teehankee, acting C.J., Abad Santos and Melencio-
Herrera) and another two reserving their votes (Plana and Gutierrez, Jr.). One was on official
leave (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor
of the earlier case of Geronimo v. Santos (136 SCRA 435), which represents the more logical
and democratic rule. That case, which reiterated the doctrine first announced in 1912 in
Topacio vs. Paredes (23 Phil. 238) was supported by ten members of the Court (Gutierrez,
Jr., J., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De
la Fuente, Cuevas and Alampay, JJ., concurring), without any dissent, . . . . There the Court
held:
. . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality of votes is
proclaimed a winner and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they did not choose him.
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms 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 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 the sincere belief that that candidate was alive, qualified, or eligible, they
should not be treated as stray, void or meaningless.
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 misapply 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; GR No. 105111).
The rule would have been different if the electorate fully aware in fact and in law of a
candidate's disqualification so as to bring such awareness within the realm of notoriety,
would nonetheless cast their votes in favor of the ineligible candidate. In such case, the
electorate may be said to have waived the validity and efficacy of their votes by notoriously
misapplying their franchise or throwing away their votes, in which case, the eligible
candidate obtaining the next higher number of votes may be deemed elected.
But this is not the situation obtaining in the instant dispute. It has not been shown, and
none was alleged, that petitioner Labo was notoriously known as an ineligible candidate,
much less the electorate as having known of such fact. On the contrary, petitioner Labo was
even allowed by no less than the Comelec itself in its resolution dated May 10, 1992 to be
voted for the office of the city mayor as its resolution dated May 9, 1992 denying due course
to petitioner Labo's certificate of candidacy had not yet become final and subject to the final
outcome of this case.
As aforesaid, the ineligibility of a candidate receiving majority votes does not entitle the
candidate receiving the next highest number of votes to be declared elected. Ortega failed
to satisfy the necessary requisite of winning the election either by a majority or mere
plurality of votes sufficient to elevate him in public office as mayor of Baguio City. Having
lost in the election for mayor, petitioner Ortega was obviously not the choice of the people
of Baguio City.
As a consequence of petitioners' ineligibility, a permanent vacancy in the contested office
has occurred. This should now be filled by the vice-mayor, in accordance with Sec. 44 of the
Local Government Code, to wit:
Chapter 2. Vacancies and Succession
Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor and
Vice-Mayor. — (a) If a permanent vacancy occurs in the office of the governor or mayor, the
vice-governor or the vice-mayor concerned shall become the governor or mayor. . . .
(emphasis supplied)
WHEREFORE, the instant petitions are DISMISSED for lack of merit. Petitioners both being
ineligible for the Office of the City Mayor of Baguio City and in view of the vacancy created
in said office, the vice-mayor elect of said city in the May 11, 1992 elections is hereby
declared Mayor of Baguio City after proclamation by the City Board of Canvassers. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Paras, Feliciano, Padilla, Griño-Aquino, Medialdea, Regalado, Davide, Jr.,
Romero, Nocon and Bellosillo, JJ., concur.
Effect of disqualification case
G.R. No. 182701 July 23, 2008
EUSEBIO EUGENIO K. LOPEZ, Petitioner,
vs.
COMMISSION ON ELECTIONS and TESSIE P. VILLANUEVA, Respondents.
RESOLUTION
REYES, R.T., J.:
A Filipino-American or any dual citizen cannot run for any elective public position in the
Philippines unless he or she personally swears to a renunciation of all foreign citizenship at
the time of filing the certificate of candidacy.
This is a petition for certiorari under Rule 65, in relation to Rule 64 of the Rules on Civil
Procedure assailing the (1) Resolution1 and (2) Omnibus Order2 of the Commission on
Elections (COMELEC), Second Division, disqualifying petitioner from running as Barangay
Chairman.
Petitioner Eusebio Eugenio K. Lopez was a candidate for the position of Chairman of
Barangay Bagacay, San Dionisio, Iloilo City in the synchronized Barangay and Sangguniang
Kabataan Elections held on October 29, 2007.
On October 25, 2007, respondent Tessie P. Villanueva filed a petition3 before the Provincial
Election Supervisor of the Province of Iloilo, praying for the disqualification of petitioner on
the ground that he is an American citizen, hence, ineligible from running for any public
office. In his Answer,4 petitioner argued that he is a dual citizen, a Filipino and at the same
time an American, by virtue of Republic Act (R.A.) No. 9225, otherwise known as the
Citizenship Retention and Re-acquisition Act of 2003.5 He returned to the Philippines and
resided in Barangay Bagacay. Thus, he said, he possessed all the qualifications to run for
Barangay Chairman.
After the votes for Barangay Chairman were canvassed, petitioner emerged as the winner.6
On February 6, 2008, COMELEC issued the assailed Resolution granting the petition for
disqualification, disposing as follows:
WHEREFORE, premises considered, the instant Petition for Disqualification is GRANTED and
respondent Eusebio Eugenio K. Lopez is DISQUALIFIED from running as Barangay Chairman
of Barangay Bagacay, San Dionisio, Iloilo.
SO ORDERED.7
In ruling against petitioner, the COMELEC found that he was not able to regain his Filipino
citizenship in the manner provided by law. According to the poll body, to be able to qualify
as a candidate in the elections, petitioner should have made a personal and sworn
renunciation of any and all foreign citizenship. This, petitioner failed to do.
His motion for reconsideration having been denied, petitioner resorted to the present
petition, imputing grave abuse of discretion on the part of the COMELEC for disqualifying
him from running and assuming the office of Barangay Chairman.
We dismiss the petition.
Relying on Valles v. Commission on Elections,8 petitioner argues that his filing of a certificate
of candidacy operated as an effective renunciation of foreign citizenship.
We note, however, that the operative facts that led to this Court’s ruling in Valles are
substantially different from the present case. In Valles, the candidate, Rosalind Ybasco
Lopez, was a dual citizen by accident of birth on foreign soil.9 Lopez was born of Filipino
parents in Australia, a country which follows the principle of jus soli.lauuphi1 As a result, she
acquired Australian citizenship by operation of Australian law, but she was also considered a
Filipino citizen under Philippine law. She did not perform any act to swear allegiance to a
country other than the Philippines.
In contrast, petitioner was born a Filipino but he deliberately sought American citizenship
and renounced his Filipino citizenship. He later on became a dual citizen by re-acquiring
Filipino citizenship.1awphi1
More importantly, the Court’s 2000 ruling in Valles has been superseded by the enactment
of R.A. No. 922510 in 2003. R.A. No. 9225 expressly provides for the conditions before those
who re-acquired Filipino citizenship may run for a public office in the Philippines. Section 5
of the said law states:
Section 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws of the Philippines and the
following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the qualification for
holding such public office as required by the Constitution and existing laws and, at the time
of the filing of the certificate of candidacy, make a personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to administer an oath.
(Emphasis added)
Petitioner re-acquired his Filipino citizenship under the cited law. This new law explicitly
provides that should one seek elective public office, he should first "make a personal and
sworn renunciation of any and all foreign citizenship before any public officer authorized to
administer an oath."
Petitioner failed to comply with this requirement. We quote with approval the COMELEC
observation on this point:
While respondent was able to regain his Filipino Citizenship by virtue of the Dual Citizenship
Law when he took his oath of allegiance before the Vice Consul of the Philippine Consulate
General’s Office in Los Angeles, California, the same is not enough to allow him to run for a
public office. The above-quoted provision of law mandates that a candidate with dual
citizenship must make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath. There is no evidence presented
that will show that respondent complied with the provision of R.A. No. 9225. Absent such
proof we cannot allow respondent to run for Barangay Chairman of Barangay Bagacay.
For the renunciation to be valid, it must be contained in an affidavit duly executed before an
officer of law who is authorized to administer an oath. The affiant must state in clear and
unequivocal terms that he is renouncing all foreign citizenship for it to be effective. In the
instant case, respondent Lopez’s failure to renounce his American citizenship as proven by
the absence of an affidavit that will prove the contrary leads this Commission to believe that
he failed to comply with the positive mandate of law. For failure of respondent to prove that
he abandoned his allegiance to the United States, this Commission holds him disqualified
from running for an elective position in the Philippines.11 (Emphasis added)
While it is true that petitioner won the elections, took his oath and began to discharge the
functions of Barangay Chairman, his victory can not cure the defect of his candidacy.
Garnering the most number of votes does not validate the election of a disqualified
candidate because the application of the constitutional and statutory provisions on
disqualification is not a matter of popularity.12
In sum, the COMELEC committed no grave abuse of discretion in disqualifying petitioner as
candidate for Chairman in the Barangay elections of 2007.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Campaign and election propaganda
A.M. No. SCC-98-4 March 22, 2011
ASHARY M. ALAUYA, Clerk of Court, Shari'a District Court, Marawi City, Complainant,
vs.
JUDGE CASAN ALI L. LIMBONA, Shari'a Circuit Court, Lanao del Sur, Respondent.
DECISION
PER CURIAM:
Before the Court is the present administrative matter against Judge Casan Ali Limbona,
Tenth Shari’a Circuit Court (10th SCC), Tamparan, Lanao del Sur. This matter is the subject of
the Memorandum/Report of the Office of the Court Administrator (OCA) dated August 7,
2000.1
The Factual Antecedents
The facts of the case, culled from the OCA report and the case record, are summarized
below.
(1) The OCA received on July 31, 1998 a letter dated July 13, 1998 addressed to then Court
Administrator Alfredo L. Benipayo,2 signed by Datu Ashary M. Alauya (Alauya), Clerk of
Court, 10th SSC, Marawi City.
Alauya reported that numerous verbal complaints had been received against Judge Casan Ali
Limbona (Judge Limbona) for: (a) not reporting to his station at the SCC in Tamparan, Lanao
del Sur; (b) having filed a certificate of candidacy as a party-list candidate of the
Development Foundation of the Philippines (DFP) while serving in the Judiciary and while
receiving his salary as a judge; and (c) obtaining from the post office, without sufficient
authority, checks representing benefits for court employees.
(2) A request from a "concerned citizen"3 that the court in Tamparan, Lanao del Sur, be
moved to Cotobato City where Judge Limbona resided since the judge had been reporting to
Tamparan only once a year since 1994.
Upon the OCA’s inquiry,4 the Commission on Elections (COMELEC) confirmed that based on
their records, a certain Casan Ali L. Limbona filed his certificate as a party-list candidate of
the DFP in the May 11, 1998 elections.5
The OCA confirmed, too, that Judge Limbona failed to submit any notice or information
about his candidacy; for this reason, the Judge continued to draw his salary as a judge . The
OCA forthwith advised the Finance Services Office to discontinue the payment of Judge
Limbona’s salary.
On January 27, 1999, the Court resolved to: (1) treat Alauya’s letter as an administrative
complaint against Judge Limbona; (2) direct Judge Limbona to comment; (3) explain why he
did not inform the OCA that he ran for public office in the May 1998 elections; and (4)
immediately refund the salaries/allowances he received from March to November 1998.6
In a letter dated December 28, 1998 addressed to the OCA, Judge Limbona denied that he
consented to be a nominee of DFP in the May 1998 elections. To prove his point, he
submitted the affidavit7 of Datu Solaiman A. Malambut, DFP’s National President, admitting
sole responsibility for his "honest mistake" and "malicious negligence and act of
desperation" in including the name of Judge Limbona among the party’s list of nominees.
While Judge Limbona professed awareness of the rule that appointed government officials
are considered resigned on the date of the filing of their certificates of candidacy, he was
not aware of any legal opinion or ruling applicable to his case.
Alauya, on the other hand, denied authorship of the letter against Judge Limbona and
requested that his name be stricken from the records as complainant in the case.8
In his comment dated April 26, 1998,9 Judge Limbona branded as "purely malicious and
unfounded" the allegations that he and his staff were not reporting at the 10th SCC in
Tamparan, Lanao del Sur. In support of his claim, the judge submitted the joint affidavit10 of
several members of his staff certifying that the public had been transacting business daily
with their office at the Memorial Building in Tamparan. Members of his staff also vouched
for Judge Limbona’s leadership, intelligence, diligence and contributions to the welfare of
the community. The judge also submitted a certification dated April 8, 199911 from the
municipal mayor of Tamparan, Datu Topa-an D. Disomimba, attesting that the establishment
of the 10th SCC in Tamparan has contributed to the maintenance of peace and order in the
area, and that Judge Limbona’s leadership has been excellent.
Judge Limbona reiterated his denial that he filed a certificate of candidacy for the May 11,
1998 elections. He explained that he had no knowledge of his supposed candidacy until he
learned about it from the OCA and this Court. Because he was never a candidate, he
continued performing his duties as a judge.
Also on April 26, 1999, Judge Limbona filed a motion for reconsideration12 of the Court’s
January 27, 1999 Resolution maintaining his lack of knowledge of the filing of his candidacy.
On May 10, 1999, Judge Limbona filed another motion for reconsideration13 of the same
Resolution, submitting fresh arguments as follows:
(1) his alleged certificate of candidacy and acceptance bore discrepancies in the signature,
thumbprints and community tax certificate numbers;
(2) the Court’s order withholding the release of his salaries without giving him the
opportunity to be heard violated his right to due process; and
(3) the resolution of the Court ordering him to refund the salaries he received from March
26, 1998 to November 30, 1998 likewise deprived him of due process as it meant he had
already been adjudged guilty of the charges.
In a Memorandum/Report dated October 18, 1999,14 the OCA apprised the Court of
developments in the case. The OCA noted that the charges against Judge Limbona that
needed to be addressed were: (1) Judge Limbona’s alleged filing of a certificate of candidacy
as a party-list representative in the May 1998 elections, in violation of the rule on partisan
political activity, and (2) Judge Limbona’s neglect of his duties as a judge.
On the first charge, the OCA disbelieved Judge Limbona’s assertion that he did not consent
to the inclusion of his name in the certificate of candidacy filed before the COMELEC and
that his inclusion was purely due to the carelessness of the person who prepared the
certificate. The OCA nevertheless took the view that a positive identification of the judge’s
participation in the filing of the certificate of candidacy was needed to fully resolve the
matter.
The OCA, however, found that the second charge of non-performance or neglect of duty
(due to absenteeism) stood unsubstantiated and was, in fact, negated by the joint
affidavit15 of the staff members of the 10th SCC in Tamparan, Lanao del Sur and the
certification16 of the municipal mayor vouching for the judge’s leadership, diligence and
contribution to the maintenance of peace and order in the community.
The OCA recommended that the National Bureau of Investigation (NBI) be asked to
determine the authenticity of Judge Limbona’s signatures on the certificate of candidacy as
DFP representative in the May 1998 congressional elections, and that Judge Limbona be
suspended as a judge until the matter is finally resolved.
The Court (Third Division) approved the OCA recommendation.17
On July 7, 2000, the NBI, through Deputy Director Sancho K. Chan, Jr., submitted to the OCA
its report on the matter18 with the following findings:
FINDINGS: Comparative examination of the specimens received under the stereocopic
microscope, hand lens and with the aid of photographic enlargement reveals significant
similarities in habit handwriting characteristics existing between the questioned and the
standard sample signatures of Casan Ali Limbona, to wit:
- structural pattern of letter elements -
- Directions of strokes –
- Manner of execution –
- Other identifying details –
CONCLUSION: The questioned and the standard sample signatures Casan Ali L. Limbona
WERE WRITTEN by one and the same person.""
The NBI findings and conclusion that Judge Limbona himself signed the certificate of
candidacy validated the OCA’s initial doubts on Judge Limbona’s avowals of innocence about
his participation in the May 1998 elections and his claim that the signatures appearing on
the certificate of candidacy were forged.
The OCA Recommendation and Related Incidents
The OCA recommended that Judge Limbona be found guilty of dishonesty and be dismissed
from the service with forfeiture of retirement and other privileges, if any, and be barred
from re-employment in the public service, and that he be made to refund all
salaries/allowances he received from March 26, 1998 to November 30, 1998 without
prejudice to the filing of an appropriate case in court.
In a related development, the Court (Second Division) issued a Resolution dated June 16,
2003 in A.M. No. SCC-03-08, entitled Emelyn A. Limbona v. Judge Casan Ali Limbona,
forwarding to the Third Division for consideration under the present case, the charge that
the respondent judge continued to perform his functions and to receive his salaries as judge
after he had filed a certificate of candidacy in the May 1998 elections.
The Court’s Ruling
We find the OCA’s recommendation to be well-founded. Judge Limbona committed grave
offenses which rendered him unfit to continue as a member of the Judiciary. When he was
appointed as a judge, he took an oath to uphold the law, yet in filing a certificate of
candidacy as a party-list representative in the May 1998 elections without giving up his
judicial post, Judge Limbona violated not only the law, but the constitutional mandate that
"no officer or employee in the civil service shall engage directly or indirectly, in any
electioneering or partisan political campaign."19
The NBI investigation on the authenticity of Judge Limbona’s signatures on the certificate of
candidacy unqualifiedly established that the judge signed the certificate of candidacy for the
May 1998 elections, thus negating his claim that his signatures were forged. The filing of a
certificate of candidacy is a partisan political activity as the candidate thereby offers himself
to the electorate for an elective post.1avvphi1
For his continued performance of his judicial duties despite his candidacy for a political post,
Judge Limbona is guilty of grave misconduct in office. While we cannot interfere with Judge
Limbona’s political aspirations, we cannot allow him to pursue his political goals while still
on the bench. We cannot likewise allow him to deceive the Judiciary. We find relevant the
OCA’s observation on this point:
"x x x Judge Limbona’s concealment of his direct participation in the 1998 elections while
remaining in the judiciary’s payroll and his vain attempt to mislead the Court by his claim of
forgery, are patent acts of dishonesty rendering him unfit to remain in the judiciary."
In light of the gravity of Judge Limbona’s infractions, we find OCA’s recommended penalty of
dismissal to be appropriate. Under the Rules of Court, dishonesty and gross misconduct are
punishable by dismissal.20 We also approve the OCA recommendation that Judge Limbona
be made to refund the salaries/allowances he received from March 26, 1998 to November
30, 1998. With this ruling, we likewise resolve the charge against Judge Limbona — referred
to us by the Court’s Second Division in its June 16, 2003 Resolution in A.M. No. SCC-03-08 —
that the respondent judge continued to perform judicial functions and to receive his salaries
as judge after he had filed a certificate of candidacy in the May 1998 elections.
WHEREFORE, premises considered, Judge Casan Ali L. Limbona is declared GUILTY OF GROSS
MISCONDUCT and DISHONESTY and is declared DISMISSED from the service effective March
26, 1998, the date of the filing of his certificate of candidacy, with FORFEITURE of all accrued
retirement benefits and other monetary entitlements, if any. He is BARRED from re-
employment in the government, including government-owned and controlled corporation.
Judge Limbona is DIRECTED TO REFUND the salaries, allowances and other benefits he
received from March 26, 1998 to November 30, 1998, within 10 days from the finality of this
Decision.
This Decision is without prejudice to appropriate criminal and civil cases that may be filed
against Judge Limbona for the acts he committed. Let a copy of this Decision be served on
the Ombudsman for whatever action it may deem appropriate.
SO ORDERED.
Prohibited acts in campaign
G.R. No. 164858 November 16, 2006
HENRY P. LANOT, substituted by MARIO S. RAYMUNDO, Petitioner,
CHARMIE Q. BENAVIDES, Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari1 assailing the Resolution dated 20 August 2004,2 the
Resolution dated 21 May 20043 of the Commission on Elections (COMELEC) En Banc, and
the Advisory dated 10 May 20044 of COMELEC Chairman Benjamin S. Abalos ("Chairman
Abalos") in SPA No. 04-288.
The 10 May 2004 Advisory of Chairman Abalos enjoined Acting National Capital Region
(NCR) Regional Director Esmeralda Amora-Ladra ("Director Ladra") from implementing the
COMELEC First Division’s 5 May 2004 Resolution.5 The 5 May 2004 Resolution ordered (1)
the disqualification of respondent Vicente P. Eusebio ("Eusebio") as a candidate for Pasig
City Mayor in the 10 May 2004 elections, (2) the deletion of Eusebio’s name from the
certified list of candidates for Pasig City Mayor, (3) the consideration of votes for Eusebio as
stray, (4) the non-inclusion of votes for Eusebio in the canvass, and (5) the filing of the
necessary information against Eusebio by the COMELEC Law Department.
The 21 May 2004 Order of the COMELEC En Banc set aside the 11 May 2004 Order of the
COMELEC En Banc6 and directed the Pasig City Board of Canvassers to proclaim the winning
candidate for Pasig City Mayor without prejudice to the final outcome of Eusebio’s
disqualification case. The 11 May 2004 Order suspended the proclamation of Eusebio in the
event that he would receive the winning number of votes.
Finally, the 20 August 2004 COMELEC En Banc resolution set aside the 5 May 2004
Resolution of the COMELEC First Division7 and nullified the corresponding order. The
COMELEC En Banc referred the case to the COMELEC Law Department to determine
whether Eusebio actually committed the acts subject of the petition for disqualification.
The Facts
On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo ("Obispo"), Roberto Peralta
("Peralta"), Reynaldo dela Paz ("dela Paz"), Edilberto Yamat ("Yamat"), and Ram Alan Cruz
("Cruz") (collectively, "petitioners"), filed a petition for disqualification8 under Sections 68
and 80 of the Omnibus Election Code against Eusebio before the COMELEC. Lanot, Obispo,
and Eusebio were candidates for Pasig City Mayor, while Peralta, dela Paz, Yamat, and Cruz
were candidates for Pasig City Councilor in the 10 May 2004 elections. The case was
docketed as SPA (NCR-RED) No. C04-008.
Petitioners alleged that Eusebio engaged in an election campaign in various forms on
various occasions outside of the designated campaign period, such as (1) addressing a large
group of people during a medical mission sponsored by the Pasig City government; (2)
uttering defamatory statements against Lanot; (3) causing the publication of a press release
predicting his victory; (4) installing billboards, streamers, posters, and stickers printed with
his surname across Pasig City; and (5) distributing shoes to schoolchildren in Pasig public
schools to induce their parents to vote for him.
In his Answer filed on 29 March 2004,9 Eusebio denied petitioners’ allegations and branded
the petition as a harassment case. Eusebio further stated that petitioners’ evidence are
merely fabricated.
Director Ladra conducted hearings on 2, 5 and 7 April 2004 where she received the parties’
documentary and testimonial evidence. Petitioners submitted their memorandum10 on 15
April 2004, while Eusebio submitted his memorandum11 on 16 April 2004.
The Ruling of the Regional Director
On 4 May 2004, Director Ladra submitted her findings and recommendations to the
COMELEC. Director Ladra recommended that:
WHEREFORE, in view of the foregoing, undersigned respectfully recommends that the
instant petition be GRANTED. Consequently, pursuant to Section 68 (a) and (e) of the
Omnibus Election Code, respondent VICENTE P. EUSEBIO shall be DISQUALIFIED to run for
the position of Mayor, Pasig City for violation of Section 80 of the Omnibus Election Code.
Further, undersigned respectfully recommends that the instant case be referred to the Law
Department for it to conduct a preliminary investigation on the possible violation by the
respondent of Sec. 261 (a) of the Omnibus Election Code.12
The Ruling of the COMELEC
In a resolution dated 5 May 2004, or five days before the elections, the COMELEC First
Division adopted the findings and recommendation of Director Ladra. The dispositive
portion of the resolution read:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) RESOLVED as it
hereby RESOLVES to ORDER:
1. the disqualification of respondent VICENTE P. EUSEBIO from being a candidate for mayor
of Pasig City in the May 10, 2004 elections;
2. the Election Officers of District I and District II of Pasig City to DELETE and CANCEL the
name of respondent VICENTE P. EUSEBIO from the certified list of candidates for the City
Offices of Pasig City for the May 10, 2004 elections;
3. the Board of Election Inspectors of all the precincts comprising the City of Pasig not to
count the votes cast for respondent VICENTE EUSEBIO, the same being cast for a disqualified
candidate and therefore must be considered stray;
4. the City Board of Canvassers of Pasig City not to canvass the votes erroneously cast for
the disqualified candidate respondent VICENTE P. EUSEBIO, in the event that such votes
were recorded in the election returns[;]
5. the Regional Director of NCR, and the Election Officers of Pasig City to immediately
implement the foregoing directives[;]
6. the Law Department through its Director IV, Atty. ALIODEN DALAIG to file the necessary
information against Vicente P. Eusebio before the appropriate court.
This Resolution is immediately executory unless restrained by the Commission En Banc.13
(Emphasis in the original)
In a Very Urgent Advisory14 dated 8 May 2004, or two days before the elections, Chairman
Abalos informed the following election officers of the resolution of the COMELEC First
Division: Director Ladra; Atty. Romeo Alcazar, Acting Election Officer of the First District of
Pasig City; Ms. Marina Gerona, Acting Election Officer of the Second District of Pasig City;
and all Chairmen and Members of the Board of Election Inspectors and City Board of
Canvassers of Pasig City (collectively, "pertinent election officers"). Director Ladra repeated
the dispositive portion of the 5 May 2004 resolution in a Memorandum15 which she issued
the next day. On 9 May 2004, Eusebio filed a motion for reconsideration16 of the resolution
of the COMELEC First Division.
On election day itself, Chairman Abalos issued the first of the three questioned COMELEC
issuances. In a memorandum, Chairman Abalos enjoined Director Ladra from implementing
the COMELEC First Division’s 5 May 2004 resolution due to Eusebio’s motion for
reconsideration. The 10 May 2004 memorandum stated:
Considering the pendency of a Motion for Reconsideration timely filed by Respondent,
Vicente P. Eusebio[,] with the Commission En Banc, you are hereby ENJOINED from
implementing the Resolution promulgated on May 5, 2004, in the x x x case until further
orders from the Commission En Banc.17 (Emphasis in the original)
On 11 May 2004, the day after the elections, petitioners Lanot, Peralta, dela Paz, Yamat, and
Cruz filed before the COMELEC En Banc a motion to suspend the counting and canvassing of
votes and the proclamation of the winning mayoral candidate for Pasig City.18 Without
waiting for Eusebio’s opposition, the COMELEC En Banc partially denied the motion on the
same day. The dispositive portion of the Order declared:
WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the motion for
suspension of the counting of votes and the canvassing of votes. However, in order not to
render moot and academic the issues for final disposition by the En Banc and considering
that on the basis of the Resolution of the FIRST DIVISION, the evidence of respondent’s guilt
is strong, the Commission En Banc hereby ORDERS to SUSPEND, UNTIL FURTHER ORDERS OF
THE COMMISSION, the proclamation of respondent in the event he receives the winning
number of votes.19 (Emphasis in the original)
On 12 May 2004, Eusebio filed his opposition to petitioners’ motion.
On 21 May 2004, the COMELEC En Banc issued the second questioned issuance. The order
quoted from the motion for advisory opinion of the Pasig City Board of Canvassers which
reported that 98% of the total returns of Pasig City had been canvassed and that there were
only 32 uncanvassed returns involving 6,225 registered voters. Eusebio had 119,693 votes
while Lanot had 108,941 votes. Thus, the remaining returns would not affect Eusebio’s lead
over Lanot. The COMELEC En Banc stated its "established policy" to "expedite the canvass of
votes and proclamation of winning candidates to ease the post election tension and without
prejudice to [its] action in [the] x x x case"20 and resolved to declare Eusebio as Pasig City
Mayor. The dispositive portion of the 21 May 2004 Order read:
WHEREFORE, this Commission RESOLVED, as it hereby RESOLVES, to LIFT AND SET ASIDE the
order suspending the proclamation of the respondent.
FURTHER, the City Board of Canvassers is DIRECTED to complete [the] canvass and
immediately proceed with the proclamation of the winning candidate for Mayor of Pasig
City without prejudice to the final outcome of the case entitled, "Henry P. Lanot, et al., vs.
Vicente Eusebio[, "] docketed as SPA No. 04-288.21 (Emphasis in the original)
Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the 21 May 2004
Order.1âwphi1 On 25 June and 6 July 2004, the COMELEC En Banc conducted hearings on
Eusebio’s motion for reconsideration of the 5 May 2004 COMELEC First Division resolution.
On 6 August 2004, Lanot filed a motion to annul Eusebio’s proclamation and to order his
proclamation instead.22
On 20 August 2004, the COMELEC En Banc promulgated the third questioned issuance. The
COMELEC En Banc invoked Section 1 of COMELEC Resolution No. 2050 ("Resolution 2050")
and this Court’s rulings in Albaña v. COMELEC,23 Lonzanida v. COMELEC,24 and Sunga v.
COMELEC25 in justifying the annulment of the order to disqualify Eusebio and the referral of
the case to the Law Department for preliminary investigation. The dispositive portion
stated:
WHEREFORE, PREMISES CONSIDERED, the resolution promulgated by the First Division
dated 8 May 2004 on the above-captioned case, affirming the recommendation of the
Regional Director (NCR) to disqualify herein respondent, is hereby SET ASIDE, and the
corresponding ORDER issued thereunder, ANNULLED. Accordingly, this case is referred to
the Law Department for investigation to finally determine [whether] the acts complained of
were in fact committed by respondent Eusebio.26 (Emphasis in the original)
Hence, this petition.
The Issues
Lanot alleged that as the COMELEC’s issuances are not supported by substantial evidence
and are contrary to law and settled jurisprudence, the COMELEC committed grave abuse of
discretion amounting to lack of or excess of jurisdiction. Lanot raised the following issues
before this Court:
A. WHETHER PUBLIC RESPONDENT COMELEC, IN ISSUING [ITS] RESOLUTION DATED AUGUST
20, 2004, ACTED WITH GRAVE ABUSE OF DISCRETION OR LACK OR IN EXCESS OF
JURISDICTION
1. by setting aside the Resolution of Disqualification promulgated by its First Division on May
5, 2004 affirming the recommendation of the Regional Election Director (NCR) to disqualify
Respondent, and by annulling the order issued thereunder,
a) erroneously, whimsically and maliciously ADOPTED and APPLIED Sections 1 and 2 of Rule
2050 to this case,
b) capriciously VIOLATED COMELEC Resolution 6452 and Sec. 6, R.A. 6646,
c) erroneously, whimsically and capriciously ARROGATED unto themselves a quasi-judicial
legislation, and
d) erroneously and maliciously MISAPPLIED the Albaña and Sunga cases to the case at bar;
2. by referring the case to the Law Department for investigation, it illegally, erroneously and
maliciously DISMISSED the electoral aspect of the case and whimsically VIOLATED
Resolution 6452 and Section 6 of RA 6646;
3. by disregarding the Order of disqualification, it erroneously and whimsically IGNORED and
DISREGARDED the inchoate right of petitioner as the winning party.
B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION OR IN
EXCESS OR LACK OF JURISDICTION IN ISSUING ITS RESOLUTION DATED MAY 21, 2004
1. by lifting and setting aside the Order of suspension of proclamation by winning candidate
issued on May 11, 2004, it erroneously and intentionally and whimsically DISREGARDED the
strong evidence of guilt of Respondent to warrant the suspension of his proclamation and
erroneously and capriciously VIOLATED Resolution of May 11, 2004.
C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE COMELEC ACTED WITH GRAVE ABUSE
OF POWER, AUTHORITY OR DISCRETION OR LACK OR IN EXCESS OF JURISDICTION
1. by unilaterally enjoining the implementation of the Order of Respondent’s disqualification
despite the condition therein that it could only be restrained by the Commission En Banc,
and whether or not he illegally, erroneously and blatantly whimsically grabbed the exclusive
adjudicatory power of the Commission En Banc.
D. WHETHER RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CAPRICIOUSLY DISREGARDING THE
RESOLUTION OF MAY 5, 2004 AS ALREADY FINAL AND EXECUTED AND IN FAILING TO ORDER
THE PROCLAMATION OF PETITIONER.
E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE TO WARRANT RESPONDENT
EUSEBIO’S DISQUALIFICATION.
b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED DISQUALIFIED WITH FOUR (4)
AFFIRMATIVE VOTES OF COMMISSIONERS, TWO (2) VOTES FROM COMMISSIONERS BORRA
AND GARCILLANO WHO VOTED FOR THE DISQUALIFICATION IN THE MAY 5, 2004
RESOLUTION (ANNEX "B") AND TWO (2) VOTES FROM COMMISSIONERS TUAZON, JR. AND
SADAIN WHO VOTED TO DISQUALIFY HIM IN THEIR DISSENTING OPINION (ANNEX "A-1")
SHOULD REFERRAL OF THE CASE TO THE LAW DEPARTMENT BY RESPONDENT COMELEC BE
DECLARED A PATENT NULLITY.
F. IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO, WHETHER PETITIONER LANOT
CAN BE PROCLAIMED AND ALLOWED TO SIT AS MAYOR-ELECT, AND WHETHER THE
DOCTRINES IN TOPACIO, CODILLA, JR., LABO AND OTHERS APPLY IN THIS CASE.27
The Ruling of the Court
The petition has no merit.
Parties to the Present Petition
On 13 April 2005, during the pendency of this case, an unidentified person shot and killed
Lanot in Pasig City. It seemed that, like an endangered specie, the disqualification case
would be extinguished by Lanot’s death. However, on 27 April 2005, Lanot’s counsel
manifested, over Eusebio’s objections, that Mario S. Raymundo ("Raymundo"), a registered
voter and former Mayor of Pasig City, is Lanot’s substitute in this case. Also, on 25 August
2005, Charmie Q. Benavides ("Benavides"), a Pasig City mayoral candidate and the third
placer in the 10 May 2004 elections, filed a petition-in-intervention. Benavides asked
whether she could be proclaimed Pasig City Mayor because she is the surviving qualified
candidate with the highest number of votes among the remaining candidates.
The law and the COMELEC rules have clear pronouncements that the electoral aspect of a
disqualification case is not rendered inutile by the death of petitioner, provided that there is
a proper substitution or intervention of parties while there is a pending case. On
Raymundo’s substitution, any citizen of voting age is competent to continue the action in
Lanot’s stead.28 On Benavides’ intervention, Section 6 of Republic Act No. 6646, or the
Electoral Reforms Law of 1987 ("Electoral Reforms Law of 1987"), allows intervention in
proceedings for disqualification even after elections if no final judgment has been rendered.
Although Eusebio was already proclaimed as Pasig City Mayor, Benavides could still
intervene, as there was still no final judgment in the proceedings for disqualification.29
The case for disqualification exists, and survives, the election and proclamation of the
winning candidate because an outright dismissal will unduly reward the challenged
candidate and may even encourage him to employ delaying tactics to impede the resolution
of the disqualification case until after he has been proclaimed.30 The exception to the rule
of retention of jurisdiction after proclamation applies when the challenged candidate
becomes a member of the House of Representatives or of the Senate, where the
appropriate electoral tribunal would have jurisdiction. There is no law or jurisprudence
which says that intervention or substitution may only be done prior to the proclamation of
the winning candidate. A substitution is not barred by prescription because the action was
filed on time by the person who died and who is being substituted. The same rationale
applies to a petition-in-intervention.
COMELEC’s Grave Abuse of Discretion
Propriety of Including Eusebio’s Name in the Pasig City Mayoral Candidates and of the
Counting of Votes and Canvassing of Election Returns
In its 5 May 2004 resolution, the COMELEC First Division ordered the pertinent election
officials to delete and cancel Eusebio’s name from the certified list of Pasig City mayoral
candidates, not to count votes cast in Eusebio’s favor, and not to include votes cast in
Eusebio’s favor in the canvass of election returns. Eusebio filed a motion for reconsideration
of the resolution on 9 May 2004. Hence, COMELEC Chairman Abalos issued a memorandum
on 10 May 2004 which enjoined the pertinent election officials from implementing the 5
May 2004 resolution. In a Resolution dated 11 May 2004, the COMELEC En Banc
subsequently ratified and adopted Chairman Abalos’ 10 May 2004 memorandum when it
denied Lanot’s motion to suspend the counting of votes and canvassing of election returns.
Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory power of the
COMELEC En Banc when he issued the 10 May 2004 memorandum. Lanot asserts that the
last sentence in the dispositive portion of the COMELEC First Division’s 5 May 2004
Resolution, "[t]his Resolution is immediately executory unless restrained by the Commission
En Banc," should have prevented Chairman Abalos from acting on his own.
Lanot’s claim has no basis, especially in light of the 11 May 2004 Resolution of the COMELEC
En Banc. The COMELEC En Banc’s explanation is apt:
Suspension of these proceedings is tantamount to an implementation of the Resolution of
the FIRST DIVISION which had not yet become final and executory by reason of the timely
filing of a Motion for Reconsideration thereof. A disposition that has not yet attained finality
cannot be implemented even through indirect means.31
Moreover, Chairman Abalos’ 10 May 2004 memorandum is merely an advisory required by
the circumstances at the time. Eusebio filed a motion for reconsideration on 9 May 2004,
and there was not enough time to resolve the motion for reconsideration before the
elections. Therefore, Eusebio was not yet disqualified by final judgment at the time of the
elections. Section 6 of the Electoral Reforms Law of 1987 provides that "[a] 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." Under Section 13 of the COMELEC Rules of
Procedure, a decision or resolution of a Division in a special action becomes final and
executory after the lapse of fifteen days following its promulgation while a decision or
resolution of the COMELEC En Banc becomes final and executory after five days from its
promulgation unless restrained by this Court.
Propriety of the Lifting of the Suspension of Eusebio’s Proclamation
In the same 11 May 2004 Resolution, the COMELEC En Banc ordered the suspension of
Eusebio’s proclamation in the event he would receive the winning number of votes. Ten
days later, the COMELEC En Banc set aside the 11 May 2004 order and directed the Pasig
City Board of Canvassers to proclaim Eusebio as the winning candidate for Pasig City Mayor.
The COMELEC relied on Resolutions 7128 and 712932 to justify the counting of Eusebio’s
votes and quoted from the Resolutions as follows:
Resolution No. 7128 -
xxxx
NOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES, to adopt certain
policies and to direct all Board of Canvassers, as follows:
1. to speed up its canvass and proclamation of all winning candidates except under the
following circumstances:
a. issuance of an order or resolution suspending the proclamation;
b. valid appeal[s] from the rulings of the board in cases where appeal is allowed and the
subject appeal will affect the results of the elections;
x x x x.
Resolution No. 7129
xxxx
NOW THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the
Constitution, the Omnibus Election Code and other elections laws, has RESOLVED, as it
hereby RESOLVES, to refrain from granting motions and petitions seeking to postpone
proclamations by the Board of Canvassers and other pleadings with similar purpose unless
they are grounded on compelling reasons, supported by convincing evidence and/or
violative of the canvassing procedure outlined in Resolution No. 6669.
We agree with Eusebio that the COMELEC En Banc did not commit grave abuse of discretion
in issuing its 21 May 2004 order. The COMELEC has the discretion to suspend the
proclamation of the winning candidate during the pendency of a disqualification case when
evidence of his guilt is strong.33 However, an order suspending the proclamation of a
winning candidate against whom a disqualification case is filed is merely provisional in
nature and can be lifted when warranted by the evidence.34
Propriety of the Dismissal of the
Disqualification Case and of the
Referral to the COMELEC
Law Department
Lanot filed the petition for disqualification on 19 March 2004, a little less than two months
before the 10 May 2004 elections. Director Ladra conducted hearings on the petition for
disqualification on 2, 5 and 7 April 2004. Director Ladra submitted her findings and
recommendations to the COMELEC on 4 May 2004. The COMELEC First Division issued a
resolution adopting Director Ladra’s recommendations on 5 May 2004. Chairman Abalos
informed the pertinent election officers of the COMELEC First Division’s resolution through
an Advisory dated 8 May 2004. Eusebio filed a Motion for Reconsideration on 9 May 2004.
Chairman Abalos issued a memorandum to Director Ladra on election day, 10 May 2004,
and enjoined her from implementing the 5 May 2004 COMELEC First Division resolution. The
petition for disqualification was not yet finally resolved at the time of the elections.
Eusebio’s votes were counted and canvassed, after which Eusebio was proclaimed as the
winning candidate for Pasig City Mayor. On 20 August 2004, the COMELEC En Banc set aside
the COMELEC First Division’s order and referred the case to the COMELEC Law Department.
In its 20 August 2004 resolution, the COMELEC En Banc relied heavily on the timing of the
filing of the petition. The COMELEC En Banc invoked Section 1 of Resolution No. 2050, which
states:
1. Any complaint for the disqualification of a duly registered candidate based upon any of
the grounds specifically enumerated under Section 68 of the Omnibus Election Code, filed
directly with the Commission before an election in which the respondent is a candidate,
shall be inquired into by the Commission for the purpose of determining whether the acts
complained of have in fact been committed. Where the inquiry by the Commission results in
a finding before election, that the respondent candidate did in fact commit the acts
complained, the Commission shall order the disqualification of the respondent candidate
from continuing as such candidate.
In case such complaint was not resolved before the election, the Commission may motu
proprio, or on motion of any of the parties, refer the complaint to the Law Department of
the Commission as the instrument of the latter in the exercise of its exclusive power to
conduct a preliminary investigation of all cases involving criminal infractions of the election
laws. Such recourse may be availed of irrespective of whether the respondent has been
elected or has lost in the election. (Emphasis added)
The COMELEC also quoted from Sunga v. COMELEC to justify its referral of the
disqualification case to its Law Department.
x x x We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing
the dismissal of a disqualification case filed before the election but which remained
unresolved after the election. What the Resolution mandates in such a case is for the
Commission to refer the complaint to its Law Department for investigation to determine
whether the acts complained of have in fact been committed by the candidate sought to be
disqualified. The findings of the Law Department then become the basis for disqualifying the
erring candidate. This is totally different from the other two situations contemplated by
Resolution No. 2050, i.e., a disqualification case filed after the election but before the
proclamation of winners and that filed after the election and the proclamation of winners,
wherein it was specifically directed by the same Resolution to be dismissed as a
disqualification case.35
For his part, Eusebio asserts that the COMELEC has the prerogative to refer the
disqualification case to its Law Department. Thus, no grave abuse of discretion can be
imputed to the COMELEC. Moreover, the pendency of a case before the Law Department for
purposes of preliminary investigation should be considered as continuation of the
COMELEC’s deliberations.
However, contrary to the COMELEC En Banc’s reliance on Resolution No. 2050 in its 20
August 2004 resolution, the prevailing law on the matter is Section 6 of the Electoral
Reforms Law of 1987. Any rule or action by the COMELEC should be in accordance with the
prevailing law. Section 6 of the Electoral Reforms Law of 1987 provides:
Section 6. Effect of Disqualification Case. — Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election
to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action,
inquiry or protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong. (Emphasis added)
Moreover, this Court’s ruling in Sunga was further explained in Bagatsing v. COMELEC,36
thus:
The COMELEC in Sunga obviously misapplied Resolution No. 2050 in dismissing the
disqualification case therein simply because it remained unresolved before the election and,
in lieu thereof, referring it to its Law Department for possible criminal prosecution of the
respondent for violation of the election laws. Notably, there is nothing in paragraph 1 of
Resolution No. 2050 which directs the dismissal of the disqualification case not resolved
before the election. It says the COMELEC "may motu prop[r]io or on motion of any of the
parties, refer the complaint to the Law Department of the Commission as an instrument of
the latter in the exercise of its exclusive power to conduct a preliminary investigation of all
cases involving criminal infractions of the election laws." The referral to the Law Department
is discretionary on the part of the COMELEC and in no way may it be interpreted that the
COMELEC will dismiss the disqualification case or will no longer continue with the hearing of
the same. The reason for this is that a disqualification case may have two (2) aspects, the
administrative, which requires only a preponderance of evidence to prove disqualification,
and the criminal, which necessitates proof beyond reasonable doubt to convict. Where in
the opinion of the COMELEC, the acts which are grounds for disqualification also constitute
a criminal offense or offenses, referral of the case to the Law Department is proper.
xxxx
It bears stressing that the Court in Sunga recognized the difference between a
disqualification case filed before and after an election when, as earlier mentioned, it stated
that the referral of the complaint for disqualification where the case is filed before election
"is totally different from the other two situations contemplated by Resolution No. 2050, i.e.,
a disqualification case filed after the election but before the proclamation of winners and
that filed after the election and the proclamation of winners, wherein it was specifically
directed by the same Resolution to be dismissed as a disqualification case."
Indeed, the 20 August 2004 resolution of the COMELEC En Banc betrayed its
misunderstanding of the two aspects of a disqualification case. The electoral aspect of a
disqualification case determines whether the offender should be disqualified from being a
candidate or from holding office. Proceedings are summary in character and require only
clear preponderance of evidence. An erring candidate may be disqualified even without
prior determination of probable cause in a preliminary investigation. The electoral aspect
may proceed independently of the criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is probable cause to
charge a candidate for an election offense. The prosecutor is the COMELEC, through its Law
Department, which determines whether probable cause exists.37 If there is probable cause,
the COMELEC, through its Law Department, files the criminal information before the proper
court. Proceedings before the proper court demand a full-blown hearing and require proof
beyond reasonable doubt to convict.38 A criminal conviction shall result in the
disqualification of the offender, which may even include disqualification from holding a
future public office.39
The two aspects account for the variance of the rules on disposition and resolution of
disqualification cases filed before or after an election. When the disqualification case is filed
before the elections, the question of disqualification is raised before the voting public. If the
candidate is disqualified after the election, those who voted for him assume the risk that
their votes may be declared stray or invalid. There is no such risk if the petition is filed after
the elections.40 The COMELEC En Banc erred when it ignored the electoral aspect of the
disqualification case by setting aside the COMELEC First Division’s resolution and referring
the entire case to the COMELEC Law Department for the criminal aspect.
Moreover, the COMELEC En Banc’s act and Eusebio’s assertions lose sight of the provisions
of Resolution No. 6452 ("Resolution 6452"), "Rules Delegating to COMELEC Field Officials the
Hearing and Reception of Evidence of Disqualification Cases Filed in Connection with the
May 10, 2004 National and Local Elections; Motu Proprio Actions and Disposition of
Disqualification Cases," promulgated on 10 December 2003. The pertinent portions of
Resolution 6452 provide:
Section 1. Delegation of reception of evidence. — The Commission hereby designates its
field officials who are members of the Philippine Bar to hear and receive evidence in the
following petitions:
xxx
c. Petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code and
disqualify a candidate for lack of qualifications or possessing same grounds for
disqualification;
xxx
Sec. 2. Suspension of the Comelec Rules of Procedure. — In the interest of justice and in
order to attain speedy disposition of cases, the Comelec Rules of Procedure or any portion
thereof inconsistent herewith is hereby suspended.
Sec. 3. Where to file petitions. — The petitions shall be filed with the following offices of the
Commission:
xxx
b. For x x x local positions including highly-urbanized cities, in the National Capital Region,
with the Regional Election Director of said region;
xxx
PROVIDED, in cases of highly-urbanized cities the filing of petitions for disqualification shall
be with the Office of the Regional Election Directors. x x x
xxxx
The Regional Election Directors concerned shall hear and receive evidence strictly in
accordance with the procedure and timeliness herein provided.
Sec. 5. Procedure in filing petitions. — For purposes of the preceding section, the following
procedure shall be observed:
xxxx
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 x x x may be filed any day after the last day [of] 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 with the concerned office mentioned in Sec. 3
personally or through a duly authorized representative 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; or
xxx
2.d having solicited, received or made any contribution prohibited under Sections 89, 95, 96,
97 and 104 of the Omnibus Elections Code; or
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.
xxxx
Indeed, what the COMELEC did in its 20 August 2004 resolution was contrary to "the
interest of justice and x x x speedy disposition of cases." Resolution No. 2050 referring the
electoral aspect to the Law Department is procedurally inconsistent with Resolution 6452
delegating reception of evidence of the electoral aspect to the Regional Election Director.
The investigation by the Law Department under Resolution No. 2050 produces the same
result as the investigation under Resolution 6452 by the Regional Election Director.
Commissioner Tuason’s dissent underscored the inconsistency between the avowed
purpose of Resolution 6452 and the COMELEC En Banc’s 20 August 2004 resolution:
x x x [T]he preliminary investigation for purposes of finding sufficient ground for [Eusebio’s]
disqualification, has already been accomplished by the RED-NCR prior to the election. There
also appears no doubt in my mind, that such recommendation of the investigating officer,
RED-NCR, was substantive and legally sound. The First Division agreed with the result of the
investigation/recommendation, with the facts of the case clearly distilled in the assailed
resolution. This, I likewise found to be in accord with our very own rules and the
jurisprudential doctrines aforestated. There could be no rhyme and reason then to dismiss
the electoral aspect of the case (i.e., disqualification) and refer the same to the Law
Department for preliminary investigation. As held in Sunga, clearly, the legislative intent is
that the COMELEC should continue the trial and hearing of the disqualification case to its
conclusion, i.e., until judgment is rendered thereon. The criminal aspect of the case is an
altogether different issue.
Sunga said the reason is obvious: A candidate guilty of election offenses would be
undeservedly rewarded, instead of punished, by the dismissal of the disqualification case
against him simply because the investigating body was unable, for any reason caused upon
it, to determine before the election if the offenses were indeed committed by the candidate
sought to be disqualified. All that the erring aspirant would need to do is to employ delaying
tactics so that the disqualification case based on the commission of election offenses would
not be decided before the election. This scenario is productive of more fraud which certainly
is not the main intent and purpose of the law.41
We agree with Lanot that the COMELEC committed grave abuse of discretion when it
ordered the dismissal of the disqualification case pending preliminary investigation of the
COMELEC Law Department. A review of the COMELEC First Division’s 5 May 2004 resolution
on Eusebio’s disqualification is in order, in view of the grave abuse of discretion committed
by the COMELEC En Banc in its 20 August 2004 resolution.
Rightful Pasig City Mayor
Eusebio’s Questioned Acts
We quote the findings and recommendations of Director Ladra as adopted by the COMELEC
First Division:
The questioned acts of [Eusebio] are as follows:
1) The speech uttered on February 14, 2004 during the meeting dubbed as "Lingap sa
Barangay" in Barangay San Miguel, Pasig City wherein [Eusebio] allegedly asked the people
to vote for him and solicited for their support x x x:
xxxx
2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig City wherein
[Eusebio] again allegedly uttered defamatory statements against co-[candidate] Lanot and
campaigned for his (respondent’s) and his group’s candidacy.
xxxx
3) He caused to be published in leading newspapers about a survey allegedly done by Survey
Specialist, Inc. showing him to be leading in the mayoralty race in Pasig City.
xxxx
4) He paid a political advertisement in the Philippine Free Press in the amount of
₱193,660.00 as published in its issue dated February 7, 2004.
xxxx
5) The display of billboards containing the words "Serbisyo Eusebio" and "ST" which means
"Serbisyong Totoo" before the start of the campaign period.
xxxx
6) Posters showing the respondent and his running mate Yoyong Martirez as well those
showing the name "KA ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection with the
dengue project were posted everywhere even before the start of the campaign period.
xxxx
7) Streamers bearing the words "Pasig City is for PEACE" were likewise displayed with the
two letters "E" prominently written.
xxxx
8) Stickers of [Eusebio] were likewise pasted all over the city before the start of the
campaign period.
xxxx
9) [Eusebio] engaged in vote-buying by distributing shoes to the students while telling the
parents that by way of gratitude, they should vote for him.
x x x x (Emphasis in the original)42
Eusebio argues that: (1) Lanot is in estoppel for participating in the proceedings before the
COMELEC Law Department; (2) Lanot abandoned the present petition also because of his
participation in the proceedings before the COMELEC Law Department; and (3) Lanot is
guilty of forum-shopping. These arguments fail for lack of understanding of the two aspects
of disqualification cases. The proceedings before the COMELEC Law Department concern
the criminal aspect, while the proceedings before this Court concern the electoral aspect, of
disqualification cases. The proceedings in one may proceed independently of the other.
Eusebio is correct when he asserts that this Court is not a trier of facts. What he overlooks,
however, is that this Court may review the factual findings of the COMELEC when there is
grave abuse of discretion and a showing of arbitrariness in the COMELEC’s decision, order or
resolution.43 We find that the COMELEC committed grave abuse of discretion in issuing its
20 August 2004 resolution.
Our review of the factual findings of the COMELEC, as well as the law applicable to this case,
shows that there is no basis to disqualify Eusebio. Director Ladra recommended the
disqualification of Eusebio "for violation of Section 80 of the Omnibus Election Code." The
COMELEC First Division approved Director Ladra’s recommendation and disqualified
Eusebio. Section 80 of the Omnibus Election Code provides:
SECTION 80. Election campaign or partisan political activity outside campaign period. — It
shall be unlawful for any person, whether or not a voter or candidate, or for any party, or
association of persons, to engage in an election campaign or partisan political activity except
during the campaign period: Provided, That political parties may hold political conventions
or meetings to nominate their official candidates within thirty days before the
commencement of the campaign period and forty-five days for Presidential and Vice-
Presidential election. (Emphasis supplied)
What Section 80 of the Omnibus Election Code prohibits is "an election campaign or partisan
political activity" by a "candidate" "outside" of the campaign period. Section 79 of the same
Code defines "candidate," "election campaign" and "partisan political activity" as follows:
SECTION 79. Definitions. — As used in this Code:
(a) The term "candidate" refers to any person aspiring for or seeking an elective public
office, who has filed a certificate of candidacy by himself or through an accredited political
party, aggroupment, or coalition of parties;
(b) The term "election campaign" or "partisan political activity" refers to an act designed to
promote the election or defeat of a particular candidate or candidates to a public office
which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of persons for
the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or against
the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose
the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
The foregoing enumerated acts if performed for the purpose of enhancing the chances of
aspirants for nomination for candidacy to a public office by a political party, aggroupment,
or coalition of parties shall not be considered as election campaign or partisan election
activity.
Public expressions or opinions or discussions of probable issues in a forthcoming election or
on attributes of or criticisms against probable candidates proposed to be nominated in a
forthcoming political party convention shall not be construed as part of any election
campaign or partisan political activity contemplated under this Article.
Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are:
(1) a person engages in an election campaign or partisan political activity; (2) the act is
designed to promote the election or defeat of a particular candidate or candidates; (3) the
act is done outside the campaign period.
The second element requires the existence of a "candidate." Under Section 79(a), a
candidate is one who "has filed a certificate of candidacy" to an elective public office. Unless
one has filed his certificate of candidacy, he is not a "candidate." The third element requires
that the campaign period has not started when the election campaign or partisan political
activity is committed.
Assuming that all candidates to a public office file their certificates of candidacy on the last
day, which under Section 75 of the Omnibus Election Code is the day before the start of the
campaign period, then no one can be prosecuted for violation of Section 80 for acts done
prior to such last day. Before such last day, there is no "particular candidate or candidates"
to campaign for or against. On the day immediately after the last day of filing, the campaign
period starts and Section 80 ceases to apply since Section 80 covers only acts done "outside"
the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only
apply to acts done on such last day, which is before the start of the campaign period and
after at least one candidate has filed his certificate of candidacy. This is perhaps the reason
why those running for elective public office usually file their certificates of candidacy on the
last day or close to the last day.
There is no dispute that Eusebio’s acts of election campaigning or partisan political activities
were committed outside of the campaign period. The only question is whether Eusebio, who
filed his certificate of candidacy on 29 December 2003, was a "candidate" when he
committed those acts before the start of the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of
certificates of candidacy to 120 days before election day. Thus, the original deadline was
moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did
this change in the deadline for filing the certificate of candidacy make one who filed his
certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80
if he engaged in election campaign or partisan political activities prior to the start of the
campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official
ballot which shall contain the titles of the positions to be filled and/or the propositions to be
voted upon in an initiative, referendum or plebiscite. Under each position, the names of
candidates shall be arranged alphabetically by surname and uniformly printed using the
same type size. A fixed space where the chairman of the Board of Election Inspectors shall
affix his/her signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later than one hundred
twenty (120) days before the elections: Provided, That, any elective official, whether
national or local, running for any office other than the one which he/she is holding in a
permanent capacity, except for president and vice-president, shall be deemed resigned only
upon the start of the campaign period corresponding to the position for which he/she is
running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall
take effect upon the start of the aforesaid campaign period: Provided, finally, That, for
purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy
for the positions of President, Vice-President, Senators and candidates under the party-list
system as well as petitions for registration and/or manifestation to participate in the party-
list system shall be on February 9, 1998 while the deadline for the filing of certificate of
candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral
ng Pilipinas at the price comparable with that of private printers under proper security
measures which the Commission shall adopt. The Commission may contract the services of
private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas
that it cannot meet the printing requirements. Accredited political parties and deputized
citizens’ arms of the Commission may assign watchers in the printing, storage and
distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that
the serial number on the ballot stub shall be printed in magnetic ink that shall be easily
detectable by inexpensive hardware and shall be impossible to reproduce on a
photocopying machine, and that identification marks, magnetic strips, bar codes and other
technical and security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of
one (1) ballot for every registered voter with a provision of additional four (4) ballots per
precinct.44 (Emphasis added)
Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy
is to give ample time for the printing of official ballots. This is clear from the following
deliberations of the Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,]
uniform for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present
periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a
candidate, and there are many prohibited acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has not yet began [sic].
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will
not bring about one’s being a candidate.
SENATOR GONZALES. If that’s a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate
of candidacy will not result in that official vacating his position, we can also provide that
insofar he is concerned, election period or his being a candidate will not yet commence.
Because here, the reason why we are doing an early filing is to afford enough time to
prepare this machine readable ballots.
So, with the manifestations from the Commission on Elections, Mr. Chairman, the House
Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate
version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
xxxx
SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts
which apply immediately upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to
afford the Comelec enough time to print the ballots, this provision does not intend to
change the campaign
periods as presently, or rather election periods as presently fixed by existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.
THE CHAIRMAN (REP. TANJUATCO). That’s right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict
anymore because we are talking about the 120-day period before election as the last day of
filing a certificate of candidacy, election period starts 120 days also. So that is election
period already. But he will still not be considered as a candidate.45 (Emphasis added)
Thus, because of the early deadline of 2 January 2004 for purposes of printing of official
ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however,
never intended the filing of a certificate of candidacy before 2 January 2004 to make the
person filing to become immediately a "candidate" for purposes other than the printing of
ballots. This legislative intent prevents the immediate application of Section 80 of the
Omnibus Election Code to those filing to meet the early deadline. The clear intention of
Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA
8436 and that one who files to meet the early deadline "will still not be considered as a
candidate."
Under Section 3(b) of the Omnibus Election Code, the applicable law prior to RA 8436, the
campaign period for local officials commences 45 days before election day. For the 2004
local elections, this puts the start of the campaign period on 24 March 2004. This also puts
the last day for the filing of certificate of candidacy, under the law prior to RA 8436, on 23
March 2004. Eusebio is deemed to have filed his certificate of candidacy on
this date for purposes other than the printing of ballots because this is the interpretation of
Section 80 of the Omnibus Election Code most favorable to one charged of its violation.
Since Section 80 defines a criminal offense,46 its provisions must be construed liberally in
favor of one charged of its violation. Thus, Eusebio became a "candidate" only on 23 March
2004 for purposes other than the printing of ballots.
Acts committed by Eusebio prior to his being a "candidate" on 23 March 2004, even if
constituting election campaigning or partisan political activities, are not punishable under
Section 80 of the Omnibus Election Code. Such acts are protected as part of freedom of
expression of a citizen before he becomes a candidate for elective public office. Acts
committed by Eusebio on or after 24 March 2004, or during the campaign period, are not
covered by Section 80 which punishes only acts outside the campaign period.
We now examine the specific questioned acts of Eusebio whether they violate Section 80 of
the Omnibus Election Code.
We begin with the 14 February 2004 and the 17 March 2004 speeches of Eusebio:
1) The speech uttered on February 14, 2004 during the meeting dubbed as "Lingap sa
Barangay" in Barangay San Miguel, Pasig City wherein [Eusebio] allegedly asked the people
to vote for him and solicited for their support x x x:
2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig City wherein
[Eusebio] again allegedly uttered defamatory statements against co-[candidate] Lanot and
campaigned for his (respondent’s) and his group’s candidacy.47 (Emphasis in the original)
The 14 February 2004 and 17 March 2004 speeches happened before the date Eusebio is
deemed to have filed his certificate of candidacy on 23 March 2004 for purposes other than
the printing of ballots. Eusebio, not being a candidate then, is not liable for speeches on 14
February 2004 and 17 March 2004 asking the people to vote for him.
The survey showing Eusebio leading in the mayoralty race was published before Eusebio was
deemed to have filed his certificate of candidacy on 23 March 2004. Thus:
3) He caused to be published in leading newspapers about a survey allegedly done by Survey
Specialist, Inc. showing him to be leading in the mayoralty race in Pasig City.
xxxx
They also presented Certification issued by Mr. Diego Cagahastian, News Editor of Manila
Bulletin dated 10 March 2004 and Mr. Isaac G. Belmonte, Editor-in-Chief of Philippine Star
dated March 2, 2004 to the effect that the articles in question came from the camp of
[Eusebio].48 (Emphasis in the original)
Eusebio is not liable for this publication which was made before he became a candidate on
23 March 2004.
The political advertisement in the Philippine Free Press issue of 7 February 2004 was also
made before Eusebio became a candidate on 23 March 2004. Thus:
4) He paid a political advertisement in the Philippine Free Press in the amount of
₱193,660.00 as published in its issue dated February 7, 2004.49 (Emphasis in the original)
The display of Eusebio’s billboards, posters, stickers, and streamers, as well as his
distribution of free shoes, all happened also before Eusebio became a candidate on 23
March 2004. Thus:
5) The display of billboards containing the words "Serbisyo Eusebio" and "ST" which means
"Serbisyong Totoo" before the start of the campaign period.
xxxx
6) Posters showing the respondent and his running mate Yoyong Martinez as well those
showing the name "KA ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection with the
dengue project were posted everywhere even before the start of the campaign period.
xxxx
Petitioners’ witnesses Alfonso Cordova and Alfredo Lacsamana as well as Hermogenes
Garcia stated in their respective affidavits marked as Exhs. "L" and "L-1" that the pictures
were taken on March 3, 7 & 8, 2004.
xxxx
7) Streamers bearing the words "Pasig City is for PEACE" were likewise displayed with the
two letters "E" prominently written.
xxxx
Said streamers were among those captured by the camera of the petitioners’ witnesses
Hermogenes Garcia and Nelia Sarmiento before the start of the campaign period.
8) Stickers of [Eusebio] were likewise pasted all over the city before the start of the
campaign period.
xxxx
9) [Eusebio] engaged in vote-buying by distributing shoes to the students while telling the
parents that by way of gratitude, they should vote for him.
The affidavits of Ceferino Tantay marked as Exh. "M" and Flor Montefalcon, Norie Altiche
and Myrna Verdillo marked as Exh. "O" are uncontroverted. Their statement that free shoes
were given to the students of Rizal High School was corroborated by the Manila Bulletin
issue of February 6, 2004 which showed the picture of the respondent delivering his speech
before a group of students.
x x x x50 (Emphasis in the original)
Based on the findings of Director Ladra, the questioned acts attributed to Eusebio all
occurred before the start of the campaign period on 24 March 2004. Indeed, Director Ladra
applied Section 80 of the Omnibus Election Code against Eusebio precisely because Eusebio
committed these acts "outside" of the campaign period. However, Director Ladra
erroneously assumed that Eusebio became a "candidate," for purposes of Section 80, when
Eusebio filed his certificate of candidacy on 29 December 2003.
Under Section 11 of RA 8436, Eusebio became a "candidate," for purposes of Section 80 of
the Omnibus Election Code, only on 23 March 2004, the last day for filing certificates of
candidacy. Applying the facts - as found by Director Ladra and affirmed by the COMELEC
First Division - to Section 11 of RA 8436, Eusebio clearly did not violate Section 80 of the
Omnibus Election Code which requires the existence of a "candidate," one who has filed his
certificate of candidacy, during the commission of the questioned acts.
Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability for the
questioned acts.1âwphi1 Eusebio points out that Section 11 contains the following proviso:
Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect
upon the start of the aforesaid campaign period: x x x
Eusebio theorizes that since the questioned acts admittedly took place before the start of
the campaign period, such acts are not "unlawful acts or omissions applicable to a
candidate."
We find no necessity to apply in the present case this proviso in Section 11 of RA 8436.
Eusebio’s theory legalizes election campaigning or partisan political activities before the
campaign period even if a person has already filed his certificate of candidacy based on the
election periods under existing laws prior to RA 8436. Under Eusebio’s theory, Section 11 of
RA 8436 punishes unlawful acts applicable to a candidate only if committed during the
campaign period.
By definition, the election offense in Section 80 of the Omnibus Election Code cannot be
committed during the campaign period. On the other hand, under Eusebio’s theory,
unlawful acts applicable to a candidate cannot be committed outside of the campaign
period. The net result is to make the election offense in Section 80 physically impossible to
commit at any time. We shall leave this issue for some other case in the future since the
present case can be resolved without applying the proviso in Section 11 of RA 8436.
Effect of Eusebio’s Possible
Disqualification
As second placer, Lanot prayed that he be proclaimed as the rightful Pasig City Mayor in the
event of Eusebio’s disqualification. As third placer, Benavides, on the other hand, prays that
she be proclaimed as the rightful Pasig City Mayor in the event of Eusebio’s disqualification
and in view of Lanot’s death. Even if we assume Eusebio’s disqualification as fact, we cannot
grant either prayer.
The disqualification of the elected candidate does not entitle the candidate who obtained
the second highest number of votes to occupy the office vacated because of the
disqualification.51 Votes cast in favor of a candidate who obtained the highest number of
votes, against whom a petition for disqualification was filed before the election, are
presumed to have been cast in the belief that he was qualified. For this reason, the second
placer cannot be declared elected.52
The exception to this rule rests on two assumptions. First, the one who obtained the highest
number of votes is disqualified. Second, the voters are so fully aware in fact and in law of a
candidate’s disqualification to bring such awareness within the realm of notoriety but
nonetheless the voters still cast their votes in favor of the ineligible candidate.53 Lanot and
Benavides failed to prove that the exception applies in the present case. Thus, assuming for
the sake of argument that Eusebio is disqualified, the rule on succession provides that the
duly elected Vice-Mayor of Pasig City shall succeed in Eusebio’s place.54
WHEREFORE, we DISMISS the petition. We find no grave abuse of discretion in the 10 May
2004 Advisory of Chairman Benjamin S. Abalos and in the 21 May 2004 Order of the
Commission on Elections En Banc. We SET ASIDE the 20 August 2004 Resolution of the
Commission En Banc since respondent Vicente P. Eusebio did not commit any act which
would disqualify him as a candidate in the 10 May 2004 elections.
SO ORDERED.
Equal Access to media time and space
G.R. No. 162777 August 31, 2004
FRANCISCO I. CHAVEZ, petitioner,
vs.
COMMISSION ON ELECTIONS, represented by its Chairman, BENJAMIN S. ABALOS,
ESMERALDA AMORA-LADRA, in her capacity as Acting Director IV, National Capital Judicial
Region, Commission on Elections, and the SOLICITOR GENERAL, respondents.
DECISION
AZCUNA, J.:
In this petition for prohibition with prayer for the issuance of a writ of preliminary
injunction, Francisco I. Chavez stands as a taxpayer and a citizen asking this Court to enjoin
the Commission on Elections (COMELEC) from enforcing Section 32 of its Resolution No.
6520, dated January 6, 2004. The assailed provision is, as follows:
Section 32. All propaganda materials such as posters, streamers, stickers or paintings on
walls and other materials showing the picture, image, or name of a person, and all
advertisements on print, in radio or on television showing the image or mentioning the
name of a person, who subsequent to the placement or display thereof becomes a
candidate for public office shall be immediately removed by said candidate and radio
station, print media or television station within 3 days after the effectivity of these
implementing rules; otherwise, he and said radio station, print media or television station
shall be presumed to have conducted premature campaigning in violation of Section 80 of
the Omnibus Election Code.
Petitioner Chavez, on various dates, entered into formal agreements with certain
establishments to endorse their products. On August 18, 2003, he authorized a certain
Andrew So to use his name and image for 96° North, a clothing company. Petitioner also
signed Endorsement Agreements with Konka International Plastics Manufacturing
Corporation and another corporation involved in the amusement and video games business,
G-Box. These last two agreements were entered into on October 14, 2003 and November
10, 2003, respectively. Pursuant to these agreements, three billboards were set up along the
Balintawak Interchange of the North Expressway. One billboard showed petitioner
promoting the plastic products of Konka International Plastics Manufacturing Corporation,
and the other two showed petitioner endorsing the clothes of 96° North. One more
billboard was set up along Roxas Boulevard showing petitioner promoting the game and
amusement parlors of G-Box.
On December 30, 2003, however, petitioner filed his certificate of candidacy for the position
of Senator under Alyansa ng Pag-asa, a tripartite alliance of three political parties: PROMDI,
REPORMA, and Aksyon Demokratiko.
On January 6, 2004, respondent COMELEC issued Resolution No. 6520, which contained
Section 32, the provision assailed herein. On January 21, 2004, petitioner was directed to
comply with the said provision by the COMELEC's Law Department. He replied, on January
29, 2004, by requesting the COMELEC that he be informed as to how he may have violated
the assailed provision. He sent another letter dated February 23, 2004, this time asking the
COMELEC that he be exempted from the application of Section 32, considering that the
billboards adverted to are mere product endorsements and cannot be construed as
paraphernalia for premature campaigning under the rules.
The COMELEC answered petitioner's request by issuing another letter, dated February 27,
2004, wherein it ordered him to remove or cause the removal of the billboards, or to cover
them from public view pending the approval of his request.
Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be enjoined from
enforcing the assailed provision. He urges this Court to declare the assailed provision
unconstitutional as the same is allegedly (1) a gross violation of the non-impairment clause;
(2) an invalid exercise of police power; (3) in the nature of an ex-post facto law; (4) contrary
to the Fair Elections Act; and (5) invalid due to overbreadth.
Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of police power?
Petitioner argues that the billboards, while they exhibit his name and image, do not at all
announce his candidacy for any public office nor solicit support for such candidacy from the
electorate. They are, he claims, mere product endorsements and not election propaganda.
Prohibiting, therefore, their exhibition to the public is not within the scope of the powers of
the COMELEC, he concludes.
This Court takes a contrary view. Police power, as an inherent attribute of sovereignty, is the
power to prescribe regulations to promote the health, morals, peace, education, good
order, or safety, and the general welfare of the people.1 To determine the validity of a
police measure, two questions must be asked: (1) Does the interest of the public in general,
as distinguished from those of a particular class, require the exercise of police power? and
(2) Are the means employed reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals?
A close examination of the assailed provision reveals that its primary objectives are to
prohibit premature campaigning and to level the playing field for candidates of public office,
to equalize the situation between popular or rich candidates, on one hand, and lesser-
known or poorer candidates, on the other, by preventing the former from enjoying undue
advantage in exposure and publicity on account of their resources and popularity. The latter
is a valid reason for the exercise of police power as held in National Press Club v. COMELEC,2
wherein the petitioners questioned the constitutionality of Section 11(b) of Republic Act No.
6646, which prohibited the sale or donation of print space and air time "for campaigning or
other political purposes," except to the COMELEC. The obvious intention of this provision is
to equalize, as far as practicable, the situations of rich and poor candidates by preventing
the former from enjoying the undue advantage offered by huge campaign "war chests." This
Court ruled therein that this objective is of special importance and urgency in a country
which, like ours, is characterized by extreme disparity in income distribution between the
economic elite and the rest of society, and by the prevalence of poverty, with so many of
our population falling below the poverty line.
Moreover, petitioner cannot claim that the subject billboards are purely product
endorsements and do not announce nor solicit any support for his candidacy. Under the
Omnibus Election Code, "election campaign" or "partisan political activity" is defined as an
act designed to promote the election or defeat of a particular candidate or candidates to a
public office. Activities included under this definition are:
(1) Forming organizations, associations, clubs, committees, or other groups of persons for
the purpose of soliciting votes and/or undertaking any campaign for or against a candidate
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or against
the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose
the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.3
(underscoring ours)
It is true that when petitioner entered into the contracts or agreements to endorse certain
products, he acted as a private individual and had all the right to lend his name and image to
these products. However, when he filed his certificate of candidacy for Senator, the
billboards featuring his name and image assumed partisan political character because the
same indirectly promoted his candidacy. Therefore, the COMELEC was acting well within its
scope of powers when it required petitioner to discontinue the display of the subject
billboards. If the subject billboards were to be allowed, candidates for public office whose
name and image are used to advertise commercial products would have more opportunity
to make themselves known to the electorate, to the disadvantage of other candidates who
do not have the same chance of lending their faces and names to endorse popular
commercial products as image models. Similarly, an individual intending to run for public
office within the next few months, could pay private corporations to use him as their image
model with the intention of familiarizing the public with his name and image even before
the start of the campaign period. This, without a doubt, would be a circumvention of the
rule against premature campaigning:
Sec. 80. Election campaign or partisan political activity outside campaign period. – It shall be
unlawful for any person, whether or not a voter or candidate, or for any party, or
association of persons, to engage in an election campaign or partisan political activity except
during the campaign period. x x x 4
Article IX (C) (4) of the Constitution provides:
Sec. 4. The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation and
other public utilities, media of communication or information, all grants, special privileges,
or concessions granted by the Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable, equal rates therefor, for public information campaigns
and forums among candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections.
Under the abovementioned Constitutional provision, the COMELEC is expressly authorized
to supervise or regulate the enjoyment or utilization of all media communication or
information to ensure equal opportunity, time, and space. All these are aimed at the holding
of free, orderly, honest, peaceful, and credible elections.
Neither is Section 32 of Resolution No. 6520 a gross violation of the non-impairment clause.
The non-impairment clause of the Constitution must yield to the loftier purposes targeted
by the Government.5 Equal opportunity to proffer oneself for public office, without regard
to the level of financial resources one may have at his disposal, is indeed of vital interest to
the public. The State has the duty to enact and implement rules to safeguard this interest.
Time and again, this Court has said that contracts affecting public interest contain an implied
reservation of the police power as a postulate of the existing legal order. This power can be
activated at anytime to change the provisions of the contract, or even abrogate it entirely,
for the promotion or protection of the general welfare. Such an act will not militate against
the impairment clause, which is subject to and limited by the paramount police power.6
Furthermore, this Court notes that the very contracts entered into by petitioner provide that
the endorser's photograph and image shall be utilized in whatever form, mode and manner
"in keeping with norms of decency, reasonableness, morals and law;"7 and in whatever
form, mode and manner not contrary to law and norms of decency,"8 and "in whatever
form, mode and manner in keeping with norms of decency, reasonableness, morals and
law."9
Petitioner also claims that Section 32 of Resolution No. 6520 is in the nature of an ex post
facto law. He urges this Court to believe that the assailed provision makes an individual
criminally liable for an election offense for not removing such advertisement, even if at the
time the said advertisement was exhibited, the same was clearly legal. Hence, it makes a
person, whose name or image is featured in any such advertisement, liable for premature
campaigning under the Omnibus Election Code.10 A close scrutiny of this rationale,
however, demonstrates its lack of persuasiveness. Section 32, although not penal in nature,
defines an offense and prescribes a penalty for said offense. Laws of this nature must
operate prospectively, except when they are favorable to the accused. It should be noted,
however, that the offense defined in the assailed provision is not the putting up of
"propaganda materials such as posters, streamers, stickers or paintings on walls and other
materials showing the picture, image or name of a person, and all advertisements on print,
in radio or on television showing the image or mentioning the name of a person, who
subsequent to the placement or display thereof becomes a candidate for public office." Nor
does it prohibit or consider an offense the entering of contracts for such propaganda
materials by an individual who subsequently becomes a candidate for public office. One
definitely does not commit an offense by entering into a contract with private parties to use
his name and image to endorse certain products prior to his becoming a candidate for public
office. The offense, as expressly prescribed in the assailed provision, is the non-removal of
the described propaganda materials three (3) days after the effectivity of COMELEC
Resolution No. 6520. If the candidate for public office fails to remove such propaganda
materials after the given period, he shall be liable under Section 80 of the Omnibus Election
Code for premature campaigning. Indeed, nowhere is it indicated in the assailed provision
that it shall operate retroactively. There is, therefore, no ex post facto law in this case.
Next, petitioner urges that Section 32 is a violation of the Fair Elections Act. According to
him, under this law, billboards are already permitted as lawful election propaganda. He
claims, therefore, that the COMELEC, in effectively prohibiting the use of billboards as a
form of election propaganda through the assailed provision, violated the Fair Elections Act.
Petitioner's argument is not tenable. The Solicitor General rightly points out that the
assailed provision does not prohibit billboards as lawful election propaganda. It only
regulates their use to prevent premature campaigning and to equalize, as much as
practicable, the situation of all candidates by preventing popular and rich candidates from
gaining undue advantage in exposure and publicity on account of their resources and
popularity.11 Moreover, by regulating the use of such election propaganda materials, the
COMELEC is merely doing its duty under the law. Under Sections 3 and 13 of the Fair
Elections Act, all election propaganda are subject to the supervision and regulation by the
COMELEC:
SECTION 3. Lawful Election Propaganda. -- Election propaganda, whether on television, cable
television radio, newspapers or any other medium is hereby allowed for all registered
political parties, national, regional, sectoral parties or organizations participating under the
party list elections and for all bona fide candidates seeking national and local elective
positions subject to the limitation on authorized expenses of candidates and political parties
observance of truth in advertising and to the supervision and regulation by the Commission
on Elections (COMELEC).
For the purpose of this Act, lawful election propaganda shall include:
3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size
of which does not exceed eight and one half inches in width and fourteen inches in length;
3.2. Handwritten or printed letters urging voters to vote for or against any particular political
party or candidate for public office;
3.3. Cloth, paper or cardboard posters whether framed or posted, with an area not
exceeding two(2) feet by three (3) feet, except that, at the site and on the occasion of a
public meeting or rally, or in announcing the holding of said meeting or rally, streamers not
exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said
streamers may be displayed five (5) days before the date of the meeting or rally and shall be
removed within twenty-four (24) hours after said meeting or rally;
3.4. Paid advertisements in print or broadcast media: Provided, That the advertisements
shall follow the requirements set forth in Section 4 of this Act; and
3.5. All other forms of election propaganda not prohibited by the Omnibus Election Code or
this Act.
xxx
SECTION 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. –- The
COMELEC shall promulgate and furnish all political parties and candidates and the mass
media entities the rules and regulations for the implementation of this Act, consistent with
the criteria established in Article IX-C, Section 4 of the Constitution and Section 86 of the
Omnibus Election Code (Batas Pambansa Blg. 881).
Rules and regulations promulgated by the COMELEC under and by authority of this Section
shall take effect on the seventh day after their publication in at least two (2) daily
newspapers of general circulation. Prior to effectivity of said rules and regulations, no
political advertisement or propaganda for or against any candidate or political party shall be
published or broadcast through mass media.
Violation of this Act and the rules and regulations of the COMELEC issued to implement this
Act shall be an election offense punishable under the first and second paragraphs of Section
264 of the Omnibus Election Code (Batas Pambansa Blg. 881).
Finally, petitioner contends that Section 32 of COMELEC Resolution No. 6520 is invalid
because of overbreadth.
A statute or regulation is considered void for overbreadth when it offends the constitutional
principle that a governmental purpose to control or prevent activities constitutionally
subject to State regulations may not be achieved by means that sweep unnecessarily
broadly and thereby invade the area of protected freedoms.12
The provision in question is limited in its operation both as to time and scope. It only
disallows the continued display of a person's propaganda materials and advertisements
after he has filed a certificate of candidacy and before the start of the campaign period. Said
materials and advertisements must also show his name and image.
There is no blanket prohibition of the use of propaganda materials and advertisements.
During the campaign period, these may be used subject only to reasonable limitations
necessary and incidental to achieving the purpose of preventing premature campaigning
and promoting equality of opportunities among all candidates.

The provision, therefore, is not invalid on the ground of overbreadth.

WHEREFORE, the petition is DISMISSED and Section 32 of COMELEC Resolution No. 6520 is
declared valid and constitutional. The prayer for a Temporary Restraining Order and/or a
Writ of Preliminary Injunction is hereby DENIED. No costs.

SO ORDERED.