Republic of the Philippines

SUPREME COURT
Manila
EN BANC
 
G.R. No. 104960 September 14, 1993
PHILIP G. ROMUALDEZ, petitioner, 
vs.
REGIONAL TRIAL COURT, BRANCH 7, TACLOBAN CITY, DONATO ADVINCULA,
BOARD OF ELECTION INSPECTORS, PRECINCT No. 9, MALBOG, TOLOSA,
LEYTE, and the MUNICIPAL REGISTRAR COMELEC, TOLOSA,
LEYTE, respondents.
Otilia Dimayuga-Molo for petitioner.
The Solicitor General for respondents.
 
VITUG, J.:
An event in this decade, which future generations would likely come to know simply as
the "EDSA People's Power Revolution of 1986," has dramatically changed the course of
our nation's history. So, too, not a few of our countrymen have by it been left alone in
their own personal lives. One such case is that of the petitioner in this special civil action
for certiorari.
The petitioner is Philip Romualdez, a natural born citizen of the Philippines, the son of
the former Governor of Leyte, Benjamin "Kokoy" Romualdez, and nephew of the then
First Lady Imelda Marcos. Sometime in the early part of 1980, the petitioner, in
consonance with his decision to establish his legal residence at Barangay Malbog,
Tolosa, Leyte, 1 caused the construction of his residential house therein. He soon thereafter also
served as Barangay Captain of the place. In the 1984 Batasan Election and 1986 "snap"
Presidential Election, Romualdez acted as the Campaign Manager of the Kilusang Bagong
Lipunan (KBL) in Leyte where he voted. 2
When the eventful days from the 21st to the 24th of February, 1986, came or were about
to come to a close, some relatives and associates of the deposed President, fearing for
their personal safety, whether founded or not, "fled" the country. Petitioner Romualdez,
for one, together with his immediate family, left the Philippines and sought "asylum"
in the United States which the United States (U.S.) government granted. 3 While
abroad, he took special studies on the development of Leyte-Samar and international business
finance. 4
In the early part of 1987, Romualdez attempted to come back to the Philippines to run
for a congressional seat in Leyte. On 23 March 1987, he finally decided to book a flight
back to the Philippines but the flight was somehow aborted. 5
On 25 September 1991, Romualdez received a letter from Mr. Charles Cobb, District
Director of the U.S. Immigration and Naturalization Service, informing him that he should
depart from the U.S. at his expense on or before 23 August 1992, thus:
. . . Failure to depart on or before the specified date may result in the
withdrawal of voluntary departure and action being taken to effect your
deportation. In accordance with a decision made to your case, you are
required to depart from the United States at your expense on or before 23
August 1992. 6
Upon receipt of the letter, Romualdez departed from the U.S. for the Philippines, arriving
on December 1991 apparently without any government document. 7
When Romualdez arrived in the Philippines, he did not delay his return to his residence
at Malbog, Tolosa, Leyte. During the registration of voters conducted by the Commission
on Election ("COMELEC") on 01 February 1992 for the Synchronized National and Local
Election scheduled for 11 May 1992, petitioner registered himself anew as a voter at
Precinct No. 9 of Malbog, Tolosa, Leyte. The chairman of the Board of Election
Inspectors, who had known Romualdez to be a resident of the place and, in fact, an
elected Barangay Chairman of Malbog in 1982, allowed him to be registered.
Romualdez's registration, however, was not to be unquestioned. On 21 February
1992, herein private respondent Donato Advincula ("Advincula") filed a petition with the
Municipal Trial Court of Tolosa, Leyte, praying that Romualdez be excluded from the list
of voters in Precinct No. 9 of Malbog, Tolosa, Leyte, under BP 881 and RA
7166. 8 Advincula alleged that Romualdez was a resident of Massachusetts, U.S.A.; that his
profession and occupation was in the U.S.A.; that he had just recently arrived in the Philippines;
and that he did not have the required one-year residence in the Philippines and the six-month
residence in Tolosa to qualify him to register as a voter in Barangay Malbog, Tolosa, Leyte.  9
On 25 February 1992, Romualdez filed an answer, contending that he has been a
resident of Tolosa, Leyte, since the early 1980's, and that he has not abandoned his said
residence by his physical absence therefrom during the period from 1986 up to the third
week of December 1991. 10
After due hearing, the Municipal Court of Tolosa, Leyte rendered a decision 11 on 28
February 1992, the dispositive portion of which reads:
WHEREFORE PREMISES CONSIDERED, the court finds the respondent
to be a resident of Brgy. Malbog, Tolosa, Leyte and qualified to register
as a voter thereat. Hence, the instant petition for exclusion of Philip G.
Romualdez from the list of voter of Precinct No. 9, Malbog, Tolosa, Leyte
is hereby ordered DENIED and petition DISMISSED.
SO ORDERED.
Upon receipt of the adverse decision, Advincula appealed the case to the respondent
court.
On 03 April 1992, the respondent court rendered the assailed decision, 12 thus:
WHEREFORE, this Court finds respondent Philip Romualdez disqualified
to register as a voter for the 1992 elections and hereby reverses the
decision of the lower court in toto.
The Municipal Registrar of the Commission on Elections of Tolosa, Leyte,
is hereby ordered to delete and cancel the name of respondent Philip G.
Romualdez from the list of qualified voters registered February 1, 1992, at
Precinct 9, barangay Malbog, Tolosa, Leyte.
SO ORDERED.
Hence, this recourse.
On 7 May 1992, this Court issued a temporary restraining order directing respondent
Regional Trial Court Judge Pedro Espino to cease and desist from enforcing questioned
decision. 13
The petitioner has raised several issues which have been well synthesized by the
Solicitor General into —
(1) Whether or not the MTC and RTC acquired jurisdiction over, respectively, Case No.
01-S. 1992 and Case No. 92-03-42, the petition having been filed by one who did not
allege to be himself a registered voter of the municipality concerned; and
(2) Whether or not the respondent court erred in finding the petitioner to have
voluntarily left the country and abandoned his residence in Malbog, Tolosa, Leyte.
The petition is impressed with merit.

Anent the first issue, the petitioner assails for the first time the jurisdiction of the
respondent Court and the MTC of Tolosa, Leyte, in taking cognizance of the case,
despite an absence of any allegation in the petition filed with the MTC that Advincula
was himself a registered voter in Precinct No. 9 of Barangay Malbog, Tolosa, Leyte
conformably with Section 142 of the Omnibus Election Code. 14
When respondent Advincula filed the petition with the MTC for the exclusion of herein
petitioner Romualdez, the latter countered by filing his answer 15 and praying for the denial
of the petition, without raising the issue of jurisdiction. But what can be telling is that when the
MTC decision, denying the petition for disqualification, went on appeal to the RTC, Romualdez, in
his own appeal-memorandum, explicitly prayed that the MTC decision be affirmed. This
unassailable incident leads us to reiterate that "while lack of jurisdiction may be assailed at any
stage, a party's active participation in the proceedings before a court without jurisdiction will estop
such party from assailing such lack of jurisdiction." 16Undoubtedly, the petitioner is now estopped
from questioning the jurisdiction of the respondent not only by his active participation in the
proceedings thereat but, more importantly, in having sought an affirmative relief himself when the
appeal was made to the latter court whose jurisdiction he, in effect, invoked. Furthermore, the
question is not really as much the jurisdiction of the courts below as merely the locus standi of the
complainant in the proceedings, a matter that, at this stage, should be considered foreclosed.
In any case, we consider primordial the second issue of whether or not
Romualdez voluntarily left the country and abandoned his residence in Malbog,
Tolosa, Leyte. Here, this time, we find for the petitioner.
The Solicitor General himself sustains the view of petitioner Romualdez. Expressing
surprise at this stance given by the Solicitor General, respondent Advincula posits non
sequitur argument 17 in his comment assailing instead the person of Solicitor Edgar Chua. If it
would have any value, at all, in disabusing the minds of those concerned, it may well be to recall
what this Court said in Rubio vs. Sto.  Tomas: 18
It is also incumbent upon the Office of the Solicitor General to present to
the Court the position that will legally uphold the best interest of the
government, although it may run counter to a client's position.
In election cases, the Court treats domicile and residence as synonymous terms,
thus: "(t)he term "residence" as used in the election law is synonymous with "domicile",
which imports not only an intention to reside in a fixed place but also personal presence
in that place, coupled with conduct indicative of such intention." 19 "Domicile" denotes a
fixed permanent residence to which when absent for business or pleasure, or for like reasons,
one intends to return. 20 That residence, in the case of the petitioner, was established during the
early 1980's to be at Barangay Malbog, Tolosa, Leyte. Residence thus acquired, however, may
be lost by adopting another choice of domicile.

In order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and (3) an intention to
abandon the old domicile. 21 In other words, there must basically be animus manendicoupled
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. 22
The political situation brought about by the "People's Power Revolution" must have truly
caused great apprehension to the Romualdezes, as well as a serious concern over the
safety and welfare of the members of their families. Their going into self-exile until
conditions favorable to them would have somehow stabilized is understandable.
Certainly, their sudden departure from the country cannot be described as "voluntary," or
as "abandonment of residence" at least in the context that these terms are used in
applying the concept of "domicile by choice."
We have closely examined the records, and we find not that much to convince us that
the petitioner had, in fact, abandoned his residence in the Philippines and established
his domicile elsewhere.
It must be emphasized that the right to vote is a most precious political right, as
well as a bounden duty of every citizen, enabling and requiring him to participate
in the process of government so as to ensure that the government can truly be
said to derive its power solely from the consent of the governed. 23 We, therefore,
must commend respondent Advincula for spending time and effort even all the way up to this
Court, for as the right of suffrage is not to be abridged, so also must we safeguard and preserve it
but only on behalf of those entitled and bound to exercise it.
WHEREFORE, finding merit on the petition the same is hereby GRANTED DUE
COURSE; of the Decision of the respondent Regional Trial Court dated 03 April 1992 is
hereby REVERSED and SET ASIDE, and the Decision of the Municipal Trial Court
dated 28 February 1992 is hereby REINSTATED and the Temporary Restraining Order
issued by the Court in this case is correspondingly made PERMANENT. No
pronouncement as to costs.
SO ORDERED.
 Republic of the Philippines
Supreme Court
                                 Baguio City
 
EN BANC
                                                                           
LUIS A. ASISTIO,   G.R. No. 191124
Petitioner,       
 
  Present:
   
  PUNO, C.J.,
                 - versus - CARPIO,
  CORONA,
  CARPIO MORALES,
  VELASCO, JR.,
HON. THELMA CANLAS NACHURA,
TRINIDAD-PE AGUIRRE, LEONARDO-DE CASTRO,
Presiding Judge, Regional Trial BRION,
Court, Caloocan City, Branch PERALTA,
129; HON. ARTHUR O. BERSAMIN,
MALABAGUIO, Presiding Judge, DEL CASTILLO,
Metropolitan Trial Court, ABAD,
Caloocan City, Branch 52; VILLARAMA, JR.,
ENRICO R. ECHIVERRI, Board PEREZ, and
of Election Inspectors of Precinct MENDOZA, JJ.
1811A, Barangay 15, Caloocan  
City; and the CITY ELECTION Promulgated:
OFFICER, Caloocan City,  
Respondents. April 27, 2010
x-----------------------------------------------------------------------------------------x
 

RESOLUTION
 
NACHURA, J.:
  
[1]
          This is a petition  for certiorari, with prayer for the issuance of a
status quo ante order, under Rule 65 of the Rules of Court, assailing the
Order[2] dated February 15, 2010 issued, allegedly with grave abuse of
discretion amounting to lack or excess of jurisdiction, by public respondent
Judge Thelma Canlas Trinidad-Pe Aguirre (Judge Aguirre) of the Regional
Trial Court (RTC), Branch 129, Caloocan City in SCA No. 997. The petition
likewise ascribes error in, and seeks to nullify, the decision dated February
5, 2010, promulgated by the Metropolitan Trial Court (MeTC), Branch
52, Caloocan City in SCA No. 10-582.
 
The Antecedents
 
          On January 26, 2010, private respondent Enrico R. Echiverri
(Echiverri) filed against petitioner Luis A. Asistio (Asistio) a Petition [3] for
Exclusion of Voter from the Permanent List of Voters of Caloocan City
(Petition for Exclusion) before the MeTC, Branch 52, Caloocan City. Public
respondent Judge Arthur O. Malabaguio (Judge Malabaguio) presides over
MeTC Branch 52. The petition was docketed as SCA No. 10-582, entitled
“Atty. Enrico R. Echiverri v. Luis Aquino Asistio, the Board of Election
Inspectors of Precinct No. 1811A, Barangay 15, Caloocan City and the
City Election Officer of Caloocan.”
 
          In his petition, Echiverri alleged that Asistio is not a resident
of Caloocan City, specifically not of 123 Interior P. Zamora
St., Barangay 15, Caloocan City, the address stated in his Certificate of
Candidacy (COC) for Mayor in the 2010 Automated National and Local
Elections. Echiverri, also a candidate for Mayor of Caloocan City, was the
respondent in a Petition to Deny Due Course and/or Cancellation of the
Certificate of Candidacy filed by Asistio. According to Echiverri, when he
was about to furnish Asistio a copy of his Answer to the latter’s petition, he
found out that Asistio’s address is non-existent. To support this, Echiverri
attached to his petition a Certification[4] dated December 29, 2009 issued by
the Tanggapan ng Punong Barangay of Barangay 15 – Central, Zone 2,
District II of Caloocan City. He mentioned that, upon verification of the
2009 Computerized Voters’ List (CVL) for Barangay 15, Asistio’s name
appeared under voter number 8, with address at 109 Libis
Gochuico, Barangay 15, Caloocan City.[5]
 
Echiverri also claimed that Asistio was no longer residing in this
address, since what appeared in the latter’s COC for Mayor [6] in the
2007 elections was No. 110 Unit 1, P. Zamora St., Barangay 15, Caloocan
City,[7] but that the address used in Asistio’s current COC is situated
in Barangay 17. He said that, per his verification, the voters [8] duly
registered in the 2009 CVL using the address No. 123 P. Zamora
St., Barangay 17, Caloocan City did not include Asistio.[9]
 
          On January 28, 2010, the MeTC issued a Notice of
Hearing[10] notifying Asistio, through Atty. Carlos M. Caliwara, his counsel
of record in SPA No. 09-151 (DC), entitled “Asistio v. Echiverri,” before the
Commission on Elections (COMELEC), of the scheduled hearings of the
case on February 1, 2 and 3, 2010.
 
          On February 2, 2010, Asistio filed his Answer Ex Abundante Ad
Cautelam with Affirmative Defenses.[11] Asistio alleged that he is a resident
of No. 116, P.Zamora St., Caloocan City, and a registered voter of Precinct
No. 1811A because he mistakenly relied on the address stated in the contract
of lease with Angelina dela Torre Tengco (Tengco), which was 123 Interior
P. Zamora St., Barangay 15, Caloocan City.[12]
 
Trial on the merits ensued, after which Judge Malabaguio directed the
parties to file their respective position papers on or before February 4, 2010.
 
          Echiverri filed his Memorandum[13] on February 4, 2010. Asistio, on
the other hand, failed to file his memorandum since the complete transcripts
of stenographic notes (TSN) were not yet available.[14]
 
On February 5, 2010, Judge Malabaguio rendered a decision,
[15]
 disposing, as follows —
 
            WHEREFORE, premises considered, the Election
Registration Board, Caloocan City is hereby directed to remove
the name of LUIS AQUINO ASISTIO from the list of permanent
voters of Caloocan City.
 
            SO ORDERED.[16]
 
 
          Meanwhile, on January 26, 2010, Echiverri filed with the COMELEC
a Petition for Disqualification,[17] which was docketed as SPA No. 10-013
(DC). The Petition was anchored on the grounds that Asistio is not a resident
of Caloocan City and that he had been previously convicted of a crime
involving moral turpitude. Asistio, in his Answer with Special and
Affirmative Defenses (Com Memorandum),[18] raised the same arguments
with respect to his residency and also argued that the President of
the Philippines granted him an absolute pardon.
 
          On February 10, 2010, Asistio filed his Notice of Appeal [19] and his
Appeal (from the Decision dated February 5, 2010)[20] and paid the required
appeal fees through postal money orders.[21]
 
          On February 11, 2010, Echiverri filed a Motion[22] to Dismiss Appeal,
arguing that the RTC did not acquire jurisdiction over the Appeal on the
ground of failure to file the required appeal fees.
 
          On the scheduled hearing of February 15, 2010, Asistio opposed the
Motion and manifested his intention to file a written comment or opposition
thereto. Judge Aguirre directed Echiverri’s counsel to file the appropriate
responsive pleading to Asistio’s appeal in her Order [23] of same date given in
open court.
 
          Judge Aguirre, however, cancelled her February 15, 2010 Order, and
issued an Amended Order[24] on that date holding in abeyance the filing of
the responsive pleading of Echiverri’s counsel and submitting the Motion for
resolution.
 
          In another Order also dated February 15, 2010, Judge Aguirre granted
the Motion on the ground of non-payment of docket fees essential for the
RTC to acquire jurisdiction over the appeal. It stated that Asistio paid his
docket fee only on February 11, 2010 per the Official Receipt of the MeTC,
Office of the Clerk of Court.
 
Hence, this petition.
 
Per Resolution[25] dated February 23, 2010, this Court required the
respondents to comment on the petition, and issued the Status Quo
Ante Order prayed for.
 
On March, 8, 2010, Echiverri filed his Comment to the Petition (with
Motion to Quash Status Quo Ante Order). Departing from Echiverri’s
position against the Petition, the Office of the Solicitor General (OSG), on
March 30, 2010, filed its Comment via registered mail. The OSG points out
that Asistio’s family is “known to be one of the prominent political families
in Caloocan City, and that there is no indication whatsoever that [Asistio]
has ever intended to abandon his domicile, Caloocan City.” Further, the
OSG proposes that the issue at hand is better resolved by the people
of Caloocan City. In all, the OSG propounds that technicalities and
procedural niceties should bow to the sovereign will of the people
of Caloocan City.
 
Our Ruling
 
In her assailed Order, Judge Aguirre found —
 
 The payment of docket fees is an essential requirement for
the perfection of an appeal.
 
The record shows that Respondent-Appellant paid his
docket fee only on February 11, 2010, evidenced by O.R. No.
05247240 for Php1,510.00 at the Metropolitan Trial Court, Office
of the Clerk of Court, yet the Notice of Appeal was filed on
February 10, 2010, at 5:30 p.m., which is way beyond the official
office hours, and a copy thereof was filed at the Office of the
Clerk of Court, Metropolitan Trial Court at 5:00 p.m. of February
10, 2010.  Thus, it is clear that the docket fee was not paid
simultaneously with the filing of the Notice of Appeal.
 
It taxes the credulity of the Court why the Notice of Appeal
was filed beyond the regular office hours, and why did
respondent-appellant had to resort to paying the docket fee at the
Mall of Asia when he can conveniently pay it at the Office of the
Clerk of Court, Metropolitan Trial Court along with the filing of
the Notice of Appeal on February 10, 2010 at 5:30 p.m. at the
Metropolitan Trial Court, which is passed [sic] the regular office
hours.
 
The conclusion is then inescapable that for failure to pay
the appellate docket fee, the Court did not acquire jurisdiction
over the case.[26]
 
 
          This Court observes, that while Judge Aguirre declares in her Order
that the appellate docket fees were paid on February 11, 2010, she
conveniently omits to mention that the postal money orders obtained by
Asistio for the purpose were purchased on February 10, 2010. [27] It is
noteworthy that, as early as February 4, 2010, Asistio already manifested
that he could not properly file his memorandum with the MeTC due to the
non-availability of the TSNs. Obviously, these TSNs were needed in order to
prepare an intelligent appeal from the questioned February 5, 2010 MeTC
Order. Asistio was able to get copies of the TSNs only on February 10,
2010, the last day to file his appeal, and, naturally, it would take some time
for him to review and incorporate them in his arguments on appeal.
Understandably, Asistio filed his notice of appeal and appeal, and purchased
the postal money orders in payment of the appeal fees on the same day. To
our mind, Asistio, by purchasing the postal money orders for the purpose of
paying the appellate docket fees on February 10, 2010, although they were
tendered to the MeTC only on February 11, 2010, had already substantially
complied with the procedural requirements in filing his appeal.
 
          This appeal to the RTC assails the February 5, 2010 MeTC Order
directing Asistio’s name to be removed from the permanent list of voters [in
Precinct 1811A] of Caloocan City. The Order, if implemented, would
deprive Asistio of his right to vote.
 
The right to vote is a most precious political right, as well as a
bounden duty of every citizen, enabling and requiring him to participate in
the process of government to ensure that it can truly be said to derive its
power solely from the consent of its constituents. [28] Time and again, it has
been said that every Filipino’s right to vote shall be respected, upheld, and
given full effect.[29] A citizen cannot be disenfranchised for the flimsiest of
reasons. Only on the most serious grounds, and upon clear and convincing
proof, may a citizen be deemed to have forfeited this precious heritage of
freedom.
 
In this case, even if we assume for the sake of argument, that the
appellate docket fees were not filed on time, this incident alone should not
thwart the proper determination and resolution of the instant case on
substantial grounds. Blind adherence to a technicality, with the inevitable
result of frustrating and nullifying the constitutionally guaranteed right of
suffrage, cannot be countenanced.[30]
 
On more than one occasion, this Court has recognized the emerging
trend towards a liberal construction of procedural rules to serve substantial
justice. Courts have the prerogative to relax rules of even the most
mandatory character, mindful of the duty to reconcile both the need to
speedily end litigation and the parties’ right to due process.
 
It is true that, faced with an appeal, the court has the discretion
whether to dismiss it or not. However, this discretion must be sound; it is to
be exercised pursuant to the tenets of justice, fair play and equity, in
consideration of the circumstances obtaining in each case. Thus, dismissal of
appeals on purely technical grounds is frowned upon as the policy of the
Court is to encourage resolution of cases on their merits over the very rigid
and technical application of rules of procedure used only to help secure, not
override, substantial justice. Verily, it is far better and more prudent for the
court to excuse a technical lapse and afford the parties a review of the case
on appeal rather than dispose of it on a technicality that would cause grave
injustice to the parties.[31]
 
The primordial issue in this case is whether Asistio should be
excluded from the permanent list of voters of [Precinct 1811A]
of Caloocan City for failure to comply with the residency required by law.
 
Section 117 of The Omnibus Election Code (Batas Pambansa
Bilang 881) states:
 
SECTION 117. Qualifications of a voter.—Every citizen of
the Philippines, not otherwise disqualified by law, eighteen years
of age or over, who shall have resided in the Philippines for one
year and in the city or municipality wherein he proposes to vote
for at least six months immediately preceding the election, may be
registered as a voter.
 
Any person who transfers residence to another city,
municipality or country solely by reason of his occupation;
profession; employment in private or public service; educational
activities; work in military or naval reservations; service in the
army, navy or air force; the constabulary or national police force;
or confinement or detention in government institutions in
 accordance with law, shall be deemed not to have lost his original
residence.
 
 
This provision is echoed in Section 9 of The Voters Registration Act of 1996
(Republic Act No. 8189), to wit:
 
SEC. 9. Who May Register.—All citizens of the
Philippines not otherwise disqualified by law who are at least
eighteen (18) years of age and who shall have resided in the
Philippines for at least one (1) year and in the place wherein they
propose to vote for at least six (6) months immediately preceding
the election, may register as a voter.
 
Any person who temporarily resides in another city,
municipality or country solely by reason of his occupation,
profession, employment in private or public service, educational
activities, work in the military or naval reservations within the
Philippines, service in the Armed Forces of the Philippines, the
National Police Force, or confinement or detention in government
institutions in accordance with law, shall not be deemed to have
lost his original residence.
 
Any person who, on the day of registration may not have
reached the required age or period of residence but who, on the
day of election shall possess such qualifications, may register as a
voter.
 
 
From these provisions, the residency requirement of a voter is at least
one (1) year residence in the Philippines and at least six (6) months in the
place where the person proposes or intends to vote. “Residence,” as used in
the law prescribing the qualifications for suffrage and for elective office, is
doctrinally settled to mean “domicile,” importing not only an intention to
reside in a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention[32]inferable from a person’s acts,
activities, and utterances.[33] “Domicile” denotes a fixed permanent residence
where, when absent for business or pleasure, or for like reasons, one intends
to return.[34] In the consideration of circumstances obtaining in each
particular case, three rules must be borne in mind, namely:
(1) that a person must have a residence or domicile somewhere;
(2) once established, it remains until a new one is acquired; and
(3) that a person can have but one residence or domicile at a time.[35]
 
Domicile is not easily lost. To successfully effect a transfer thereof,
one must demonstrate:
(1) an actual removal or change of domicile;
(2) a bona fide intention of abandoning the former place of residence
and establishing a new one; and
(3) acts which correspond with that purpose.[36] There must 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.[37]
 
Asistio has always been a resident of Caloocan City since his birth or
for more than 72 years. His family is known to be among the prominent
political families in Caloocan City. In fact, Asistio served in public office as
Caloocan City Second District representative in the House of
Representatives, having been elected as such in the 1992, 1995, 1998, and
2004 elections. In 2007, he also sought election as City Mayor. In all of
these occasions, Asistio cast his vote in the same city. Taking these
circumstances into consideration, gauged in the light of the doctrines above
enunciated, it cannot be denied that Asistio has qualified, and continues to
qualify, as a voter of Caloocan City. There is no showing that he has
established domicile elsewhere, or that he had consciously and voluntarily
abandoned his residence inCaloocan City. He should, therefore, remain in
the list of permanent registered voters of Precinct No.
1811A, Barangay 15, Caloocan City.
 
 That Asistio allegedly indicated in his Certificate of Candidacy for
Mayor, both for the 2007 and 2010 elections, a non-existent or false address,
or that he could not be physically found in the address he indicated when he
registered as a voter, should not operate to exclude him as a voter of
Caloocan City. These purported misrepresentations in Asistio’s COC, if true,
might serve as basis for an election offense under the Omnibus Election
Code (OEC),[38] or an action to deny due course to the COC. [39] But to our
mind, they do not serve as proof that Asistio has abandoned his domicile
in Caloocan City, or that he has established residence outside
of Caloocan City.
 
With this disquisition, we find no necessity to discuss the other issues
raised in the petition.
 
WHEREFORE, the petition is GRANTED. The assailed Order dated
February 15, 2010 of the Regional Trial Court, Branch 129, Caloocan City
in SCA No. 997 and the decision dated February 5, 2010 of the Metropolitan
Trial Court, Branch 52, Caloocan City in SCA No. 10-582
are REVERSED and SET ASIDE. Petitioner Luis A. Asistio remains a
registered voter of Precinct No. 1811A, Barangay 15, Caloocan City. The
Status Quo Ante Order issued by this Court on February 23, 2010 is MADE
PERMANENT.
 
SO ORDERED.
  EN BANC
   
NARDO M. VELASCO,         G.R. No. 180051
                                             Petitioner,  
          Present:
   
   PUNO, C.J.,     
    QUISUMBING,
- versus -    YNARES-SANTIAGO,
 
 CARPIO,
 
   AUSTRIA-MARTINEZ,
    CORONA,*
COMMISSION ON ELECTIONS  CARPIO MORALES,
and MOZART P. PANLAQUI,  AZCUNA, 
                                         Respondents.  TINGA,
 CHICO-NAZARIO,
 VELASCO, JR.,
 NACHURA,
 REYES,
 LEONARDO-DE CASTRO, and
 BRION, JJ.
 
         Promulgated:
 
      
           December 24, 2008
 
x ----------------------------------------------------------------------------------------------x
 
DECISION
 
BRION, J.:
 
         This petition for certiorari – filed by Nardo M. Velasco (Velasco)
under Rule 64, in relation with Rule 65, of the Revised Rules of Court
–  seeks to set aside and annul [1] the Resolution dated July 6, 2007 of the
Second Division of the Commission on Elections (COMELEC) and [2] the
Resolution dated October 15, 2007 of the COMELEC en banc, in SPA Case
No. 07-148 entitled Mozart P. Panlaqui v. Nardo M. Velasco.  The assailed
resolutions denied due course to the Certificate of Candidacy (COC)
Velasco had filed for the position of Mayor of the Municipality of Sasmuan,
Pampanga. 
 
THE ANTECEDENTS
 
         Velasco was born in San Antonio, Sasmuan, Pampanga on June 22,
1952 to Arsenio Velasco and Lucia Mangalindan.  He married Evelyn D.
Castillo on June 29, 1975 at the Roman Catholic Church of Sasmuan.  In
1983, he moved to and worked in the United States of America where he
subsequently became a citizen. 
 
         Sometime in 2006, Velasco applied for dual citizenship under
Republic Act No. 9225, otherwise known as the Citizenship Retention and
Re-Acquisition Act of 2003.  His application was approved on July 31,
2006.  On the same day, he took his oath of allegiance to the Republic of
the Philippines before the Philippine Consulate General in San
Francisco.  He returned to the Philippines on September 14, 2006 and has
not left since, except for a 3-day Hongkong trip from September 26,
2006 to September 29, 2009.   
 
Soon thereafter or on October 13, 2006, Velasco applied for
registration as a voter of Sasmuan, Pampanga.  The Election Registration
Board (ERB) denied his application.  Thereupon, Velasco filed a petition for
the inclusion of his name in the list of voters with the Municipal Trial Court
of Sasmuan (MTC).  The MTC,finding no evidence of Velasco’s change of
domicile, granted Velasco’s petition on February 9, 2007; it reversed the
ERB’s decision and ordered Velasco’s inclusion in the List of Voters of
Sasmuan.
 
On March 1, 2007, Branch 52 of the Regional Trial Court of Guagua,
Pampanga (RTC) reversed and set aside, on appeal, the MTC decision.  The
RTC reasoned out that Velasco lost his domicile of origin [Sasmuan,
Pampanga] when he became a US citizen; under Philippine immigration
laws, he could only stay in the Philippines as a visitor or as a resident alien.
Velasco, according to the RTC, only regained or reacquired his Philippine
residency on July 31, 2006 when he reacquired his Filipino citizenship.  The
RTC based this conclusion on our ruling in Caasi v. Court of Appeals[1] that
naturalization in a foreign country results in the abandonment of domicile in
the Philippines.  Thus, the RTC found that Velasco failed to comply with the
residency requirement under the Constitution, making him ineligible to vote
in the May 14, 2007 elections.
 
Velasco appealed the RTC decision to the Court of Appeals
(CA) via a petition for review under Rule 42 of the Rules of Court; the
appeal was docketed as CA-G.R. SP No. 98259.
 
It was against this factual backdrop that Velasco filed on March
28, 2007 his COC for the position of Mayor of Sasmuan.  Velasco’s COC
contains, among others, the required information that he is a registered voter
of Precinct No. 103-A of Sasmuan, Pampanga.  He executed on even date an
Affidavit renouncing, abandoning, and relinquishing his American
citizenship. 
 
The next day, private respondent Mozart Panlaqui (Panlaqui), who
also filed his COC for the position of Mayor of Sasmuan, filed a Petition to
Deny Due Course To and/or To Cancel Velasco’s COC, claiming
that:       (1) contrary to Velasco’s claim, he is not a registered voter of
Precinct      No. 103-A, as his name is not included in the list of voters; (2)
the RTC has rendered a decision denying Velasco’s petition for inclusion as
voter;        (3) Velasco does not possess the constitutional requirement of
legal residency (i.e., one year residency in the Philippines immediately
preceding the election as provided under Section 1, Article V of the
Constitution) to register as voter;  he arrived in the Philippines only last
September 14, 2006; and (4) Velasco is not eligible to run for office since he
is not a qualified voter.  Panlaqui asked for the annulment, revocation and
cancellation of, or denial of due course to, Velasco’s COC that allegedly
contained obvious and gross material misrepresentation.  The case was
docketed as SPA Case No. 07-148. 
 
In his Answer, Velasco denied the allegations of Panlaqui’s petition
and claimed in defense that: (1) he possesses all the qualifications of a voter
of Sasmuan, as he is a domiciliary and permanent resident of the Philippines
and Sasmuan since birth; that, when he took his oath of allegiance on July
31, 2006, he is considered not to have lost his Philippine citizenship and
therefore continues to enjoy full civic and political rights under the
Constitution and the statutes; (2) the appeal or review of the RTC decision is
pending resolution with the Court of Appeals; (3) he did not act with malice,
bad faith and gross misrepresentation when he stated that he is a registered
voter of Precinct No. 103-A of Sasmuan in his COC, as the MTC decision
has not been reversed with finality; (4) he has renounced his American
citizenship on March 29, 2007 or prior to the filing of his COC, making him
eligible to seek elective public office pursuant to Republic Act No. 9255;
and (5) he possesses all the qualifications of a voter of Sasmuan and of a
candidate for Municipal Mayor, Sasmuan being his domicile of origin and
permanent residence.  He claimed that he is qualified to vote and seek public
office until a final judgment is rendered saying otherwise; hence, he did not
commit any misrepresentation and Panlaqui’s petition should be dismissed.
 
Velasco garnered 7,822 votes [the most number] for the position of
Mayor of Sasmuan in the May 14, 2007 election.  As the COMELEC failed
to resolve Panlaqui’s petition prior to the election, Velasco was proclaimed
Mayor of Sasmuan on May 16, 2007.  He took his oath of office and
assumed the powers and functions of the office on June 30, 2007.     
 
 On July 6, 2007, the Second Division of the COMELEC issued a
Resolution – the first of the interrelated resolutions assailed in the present
petition – canceling Velasco’s COC and declaring his proclamation as
Mayor of Sasmuan null and void.  Citing Section 138 of the Omnibus
Election Code (OEC)[2] which declared the decision of the RTC in the voters
inclusion/exclusion proceedings final and executory, the Second Division of
the COMELEC found Velasco guilty of material misrepresentation when he
claimed in his COC filed on March 28, 2007 that he is a registered voter of
Sasmuan, Pampanga.  This defect, according to the Second Division,
effectively voided Velasco’s COC.
 
Velasco moved to reconsider the Second Division’s Resolution, but
the COMELEC en banc in a Resolution dated October 15, 2007 (also
assailed in this petition) denied the motion.  The COMELEC en
banc essentially affirmed the Second Division’s ruling.  Additionally, the
COMELEC pointed out that in the absence of a writ or order issued by the
CA (where the appeal from the RTC decision in the inclusion/exclusion case
was then pending) enjoining the enforcement of the RTC decision, it had to
apply Section 138 of the OEC.  Velasco responded to this development by
filing the present petition with this Court.        
 
THE PETITION, COMMENTS AND RELATED DEVELOPMENTS
        
         The petition is based on the following grounds/arguments:
1.      Respondent Comelec committed grave abuse of discretion
when it decided the issue on petitioner’s right to vote
despite its apparent lack of jurisdiction on this issue and
the pendency of such prejudicial issue before the CA.
 
2.      Respondent Comelec committed grave abuse of discretion
when it ruled that the March 1, 2008 decision of the RTC
of Guagua, Pampanga reversing the earlier decision of the
MTC of Sasmuan, Pampanga is already final and
executory.
 
 3.      Respondent COMELEC committed grave abuse of
discretion when it annulled the proclamation of the
petitioner without notice and hearing.
 
4.     Respondent Comelec committed grave abuse of discretion
when it ruled that petitioner committed material
misrepresentation in his COC by merely relying on private
respondent’s baseless allegations in the petition to deny due
course to petitioner’s COC without taking into
consideration that petitioner possesses all the qualifications
and none of the disqualification of a voter.  
 
 
In his comment, Panlaqui asserts that: (1) Velasco committed forum
shopping, as another case involving the same issues is on appeal and
pending resolution with the CA; and (2) in light of this appeal, not all the
requisites for a petition for certiorari are present; in the alternative and
assuming certiorari to be proper, the COMELEC did not commit grave
abuse of discretion, as the RTC decision is final, executory, and non-
appealable.       
 
The Office of the Solicitor General (OSG) filed a Comment in behalf
of the COMELEC.  The OSG argues that the COMELEC did not commit
grave abuse of discretion.  The COMELEC has jurisdiction – under Section
78 of Batas Pambansa Blg. 881, as amended, or the OEC – over petitions to
deny due course and/or cancel a COC (COC-denial/cancellation).  There
was likewise no denial of due process; Velasco filed an Answer to
Panlaqui’s petition and was fully heard before the COMELEC denied due
course to his COC.  
The OSG also argues that Velasco’s immigration to the United
States and subsequent acquisition of US citizenship constituted an
abandonment of his Philippine domicile and residence. Finally, the OSG
claims that Velasco committed misrepresentation in declaring his residence
at Sasmuan in his COC – a ground for the cancellation of COC under
Section 78 of the OEC.  The real issue, according to the OSG, is not
Velasco’s right to vote, but the misrepresentation he committed when he
filed his COC.    
 
On March 5, 2008, the COMELEC issued a writ of execution to
implement the assailed resolutions.   The CA, on the other hand, rendered
on March 13, 2008its decision in CA-GR SP No. 98259 granting Velasco’s
appeal, thereby reversing and setting aside the RTC decision.  The appellate
court ruled that, contrary to the RTC’s finding, Velasco effectively
reacquired his residence when he decided to relocate in the Philippines for
good in 2003; from 2003-2006, Velasco stayed in the Philippines for a total
of almost two (2) years for the last three (3) years immediately preceding the
May 14, 2007 election; from the totality of these acts, Velasco revealed his
intention to reacquire his rights as a Filipino citizen.  Citing Macalintal v.
Commission on Elections,[3] the CA considered Velasco a qualified voter.  
 
On Velasco’s motion, we issued a status quo ante order enjoining the
COMELEC from implementing the assailed resolutions.
 
In an interesting twist, the CA issued on August 19, 2008 an Amended
Decision – in response to a motion for reconsideration of its earlier decision
– dismissing Velasco’s Rule 42 petition for lack of jurisdiction.  It reversed
its earlier ruling that it has jurisdiction to entertain the appeal, explicitly
stating that the jurisprudence it cited to support its appellate jurisdiction in
voters’ inclusion/exclusion proceeding is no longer good law because of the
amendments to the election law on which its cited jurisprudence was
based.  It declared that “Section 138 of the OEC being explicit that the
decision on appeal by the RTC in inclusion and exclusion cases is
immediately final and executory appears to be a clear mandate for this
Court (the CA) not to entertain instant petition for lack of jurisdiction.”    
 
Based on these submissions, we are called upon to resolve the
following issues: (1) whether Velasco forum-shopped; and (2) whether the
COMELEC gravely abused its discretion in canceling Velasco’s COC.  
 
 
THE COURT’S RULING
 
         We find the petition devoid of merit. 
 
 
Grave Abuse of Discretion. 
 
The well-settled rule is that this Court will not interfere with a
COMELEC decision unless the COMELEC is shown to have committed
grave abuse of discretion.[4]  Correctly understood, grave abuse of discretion
is such “capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction, or [an] exercise of power in an arbitrary and despotic
manner by reason of passion or personal hostility, or an exercise of judgment
so patent and gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform the duty enjoined, or to act in a manner not at all in
contemplation of law.”[5]
 
Velasco imputes grave abuse of discretion on the COMELEC for
canceling his COC on the sole ground that he committed false representation
when he claimed that he is a registered voter of Precinct No. 103-A.  This
imputation directly poses to us the question: was the COMELEC ruling
capriciously, whimsically, and arbitrarily made?
 
In answering this question, we recognize at the outset that together
with the cancellation of the COC that is directly before us, we have to
consider the effect and impact of the inclusion/exclusion proceedings that
Velasco brought before the MTC which, on appeal to the RTC, ultimately
led to the denial of his listing as a voter in Sasmuan.  While this
inclusion/exclusion case is not before us, it was the ruling in this proceeding
that the COMELEC cited as ground for the cancellation of Velasco’s COC
after Velasco claimed that he is a registered voter of Precinct No. 103-A of
Sasmuan, Pampanga.
 
  
 
The COC Denial/Cancellation Proceedings.
 
Section 74, in relation with Section 78 of the OEC governs the
cancellation of, and grant or denial of due course to, COCs.  The combined
application of these sections requires that the facts stated in the COC by the
would-be candidate be true, as any false representation of a material fact is a
ground for the COC’s cancellation or the withholding of due course.  To
quote these provisions:
           
SEC. 74.  Contents of certificate of candidacy. — The
certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he
is eligible for said office; if for Member of the Batasang
Pambansa, the province, including its component cities, highly
urbanized city or district or sector which he seeks to represent; the
political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his
profession or occupation; that he will support and defend the
Constitution of the Philippines and will maintain true faith and
allegiance thereto; that he will obey the laws, legal orders, and
decrees promulgated by the duly constituted authorities; that he is
not a permanent resident or immigrant to a foreign country; that
the obligation assumed by his oath is assumed voluntarily, without
mental reservation or purpose of evasion; and that the facts
stated in the certificate of candidacy are true to the best of his
knowledge.
 
            x x x x
 
            SEC. 78.  Petition to deny due course to or cancel a
certificate of candidacy. – A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall
 be decided, after due notice and hearing not later than fifteen days
before the election.
 
 
The false representation that these provisions mention must necessarily
pertain to a material fact, not to a mere innocuous mistake.  This is
emphasized by the consequences of any material falsity: a candidate who
falsifies a material fact cannot run; if he runs and is elected, cannot serve; in
both cases, he or she can be prosecuted for violation of the election laws.
Obviously,  these  facts  are  those that refer to a candidate’s qualification for
elective office, such as his or her citizenship and residence.[6]  The
candidate’s status as a registered voter similarly falls under this
classification as it is a requirement that, by law (the Local Government
Code), must be reflected in the COC. The reason for this is obvious: the
candidate, if he or she wins, will work for and represent the local
government under which he is running.
 
         Separately from the requirement of materiality, a false representation
under Section 78 must consist of a “deliberate attempt to mislead,
misinform, or hide a fact which would otherwise render a candidate
ineligible.”  In other words, it must be made with the intention to deceive the
electorate as to the would-be candidate’s qualifications for public office.[7]
 
The Voters’ Inclusion/Exclusion Proceedings.
 
The process of voters’ inclusion/exclusion, as part of the voters’
registration process, is provided and defined under Sections 138, 139 and
143 of the OEC. These sections provide: 
 
Sec. 138. Jurisdiction in inclusion and exclusion cases. –
The Municipal and Metropolitan Trial Courts shall have original
and exclusive jurisdiction over all cases of inclusion and
exclusion of voters from the list in their respective cities or
municipalities.  Decisions of the Municipal or Metropolitan Trial
Courts may be appealed by the aggrieved party to the Regional
Trial Courts within five (5) days from receipt of notice thereof.
Otherwise, said decision shall become final and executory.  The
regional trial court shall decide the appeal within ten (10) days
from the time it is received and the decision shall become final
and executory.  No motion for reconsideration shall be entertained
[As amended by Section 33 of Republic Act No. 8189 (RA 8189)].
 
Sec. 139. Petition for inclusion of voters in the list. – Any
person whose application for registration has been disapproved by
the Board or whose name has been stricken out from the list may
file with the court a petition to include his name in the permanent
list of voters in his precinct at any time except one hundred five
(105) days prior to a regular election or seventy-five (75) days
prior to a special election.  It shall be supported by a certificate of
disapproval of his application and proof of service of notice of his
petition upon the Board. The petition shall be decided within
fifteen (15) days after its filing.
 
If the decision is for the inclusion of voters in the
permanent list of voters, the Board shall place the application for
registration previously disapproved in the corresponding book of
voters and indicate in the application for registration the date of
the order of inclusion and the court which issued the same [As
amended by Section 34 of RA 8189].
 
Section 143. Common rules governing judicial
proceedings in the matter of inclusion, exclusion and correction
of names of voters. –
 
(a) Petition for inclusion, exclusion, or correction of names
of voters shall be filed during office hours;
 
(b) Notice of the place, date and time of the hearing of the
petition shall be served upon the members of the Board and the
challenged voter upon the filing of the petition.  Service of such
notice may be made by sending a copy thereof by personal
delivery or by leaving it in the possession of a person of sufficient
discretion in the residence of the challenged voter, or by
registered mail.  Should the foregoing procedures be not
practicable, the notice shall be posted in the bulletin board of the
city or municipal hall and in two (2) other conspicuous places
within the city or municipality;
 
xxx
 
(c) A petition shall refer only one to one (1) precinct and
implead the Board as respondents;.
 
(d) No costs shall be assessed against any party in these
proceedings.  However, if the court should find that the
application has been filed solely to harass the adverse party and
cause him to incur expenses, it shall order the culpable party to
pay the costs and incidental expenses.
  
(e) Any voter, candidate or political party who may be
affected by the proceedings may intervene and present his
evidence.
 
(f) The decision shall be based on the evidence presented
and in no case rendered upon a stipulation of facts.  x x x
 
(g) The petition shall be heard and decided within ten (10)
days from the date of its filing. Cases appealed to the Regional
Trial Court shall be decided within ten (10) days from receipt of
the appeal.  In all, cases, the court shall decide these petitions not
later than fifteen (15) days before the election and the decision
shall be immediately final and executory. [As amended by Section
32 of RA 8189]
 
Inclusion/exclusion proceedings essentially involve the simple issue of
whether a petitioner shall be included in or excluded from the list of voters
based on the qualifications required by law and the facts presented to show
possession of these qualifications.
 
 
The Proceedings Compared.
 
In terms of purpose, voters’ inclusion/exclusion and COC
denial/cancellation are different proceedings; one refers to the application to
be registered as a voter to be eligible to vote, while the other refers to the
application to be a candidate.  Because of their differing purposes, they also
involve different issues and entail different reliefs although the facts on
which they rest may have commonalities where they may be said to
converge or interface.  One such commonality is on the matter of
residence.  Section 9 of Republic Act 8189, otherwise known as the Voters’
Registration Act (VRA), requires that voters “shall have resided in
thePhilippines for at least one (1) year, and in the place wherein they
propose to vote, at least six (6) months immediately preceding the
election.”  The OEC, on the other hand, requires under its Section 74 that the
would-be candidate state material facts such as, among others, his
residence.  Under the combined application of Section 65 of the OEC and
Section 39 of the Local Government Code (LGC), a local official must –
among others – have the same residency requirement as required under the
VRA.  Another point of convergence is on the candidate’s status as a
registered voter; a candidate for a local government position must be a
registered voter in the barangay, municipality, province, or city where he or
she intends to run for office.
 
The remedies available in the two proceedings likewise
differ. Velasco’s remedy from the adverse decision in his petition for
inclusion as voter is as provided under Section 138 of the OEC quoted
above.  From the MTC, the recourse is to the RTC whose decision is final
and executory,  correctible by the Court of Appeals only by a writ
of certiorari based on grave abuse of discretion amounting to lack of
jurisdiction.   On the other hand, the approval of a certificate of candidacy or
its denial is a matter directly cognizable by the COMELEC, with the
decision of its Division reviewable by the COMELEC en banc whose
decision is in turn reviewable by this Court under Rule 64 of the Rules of
Court and Section 7, of Article IX-A of the 1987 Constitution. 
 
No Grave Abuse of Discretion.
 
In the present case, the ERB denied Velasco’s registration as a voter,
which denial the RTC subsequently supported. As already mentioned, this
denial by the RTC is, by law, final and executory.  Since Velasco’s
knowledge of the RTC decision at the time he filed his COC is not disputed,
the COMELEC concluded that he committed a material misrepresentation
when he stated under oath in his COC that he is a registered voter of
Sasmuan.  
 
Under these facts and legal situation, we cannot hold that the
COMELEC’s conclusion is legally erroneous, much less that it is tainted by
grave abuse of discretion.  It is a matter of record, appearing in a final RTC
judgment no less, that Velasco was not a registered voter of Sasmuan at the
time he filed his COC.  His claim in this regard was therefore false and was a
material misrepresentation.  Other than his active misrepresentation, Velasco
likewise was inexplicably silent about, and thus knowingly omitted any
mention of, the denial of his registration.  As the COMELEC did, we can
only conclude that he deliberately concealed the existence of the final and
executory RTC ruling when he filed his COC.  He could not disclose this
fact as the unavoidable consequence of disclosure was to render him
unqualified to be a candidate.[8] 
 
That the COMELEC relied on the RTC ruling in canceling the COC of
Velasco cannot likewise be a legal error as Section 138 of the OEC is clear
and categorical in its terms: “Decisions of the Municipal or Metropolitan
Trial Courts may be appealed by the aggrieved party to the Regional Trial
Courts within five (5) days from receipt of notice thereof. Otherwise, said
decision shall become final and executory. The regional trial court shall
decide the appeal within ten days from the time the appeal was received and
its decision shall be final and executory.”  We note that when Velasco
sought recourse with the Court of Appeals, he did so by way of appeal under
Rule 42 of the Rules of Court – a recourse that was not available to him
because an RTC ruling in an inclusion/exclusion is final and executory.  This
led the appellate court to recognize in its Amended Decision of August 19,
2008, albeit on motion for reconsideration, that it had no jurisdiction to
entertain Velasco’s appeal.
 
The Right to Vote
 
The above discussions, particularly on the distinctions between
inclusion/exclusion proceedings and COC denial/cancellation
proceedings,  refute and belie Velasco’s position that the COMELEC
improperly ruled on his right to vote when it cancelled his COC.  The
tribunals given authority by law and who actually ruled on whether Velasco
should have the right to vote in Sasmuan, Pampanga were the ERB, the
MTC, and subsequently, the RTC.  The COMELEC did not so rule; it
merely recognized the RTC’s final and executory ruling on the matter. 
 
This conclusion is not a hairsplitting sophistry, but one based on clear
distinctions drawn by the law. As above pointed out, inclusion/exclusion and
COC denial/cancellation proceedings, while they may ultimately have
common factual bases, are still proceedings poles apart in terms of the
issues, reliefs, and remedies involved. That at some point they may converge
(as in this case, where the COC denial/cancellation proceeding relied on and
used the results of the voters’ inclusion/exclusion proceeding) does not erase
the distinctions between them.  In the context of this case, it does not mean
that the COMELEC – commonly with the ERB, the MTC and the RTC –
ruled on Velasco’s right to vote because the COMELEC relied on the latter’s
ruling.   
 
In Domino v. COMELEC[9] – where this Court faced the contention
that the decision of the first level court in an exclusion proceeding on the
issue of residence is final and conclusive on the COMELEC hearing a COC
denial/cancellation proceeding under Section 78 of the OED – we ruled
that the factual findings of the trial court and its resultant conclusions in the
inclusion/exclusion proceedings on matters other than the right to vote in
the precinct within its territorial jurisdiction are not conclusive on and do
not rise to the level of a res judicata ruling with respect to the COMELEC.
[10]
 The reason is that inclusion/exclusion proceedings, while judicial in
character, are summary proceedings.[11]  We further added that a decision in
an inclusion/exclusion proceeding does not operate as a bar to any future
action in any other election that a party may take concerning his right to be
registered as a voter.[12]  Otherwise stated, a ruling on the right to vote by the
trial court for a specific election is binding on the COMELEC.  By clear
implication, the COMELEC itself does not rule on the right to vote by
recognizing in a Sec. 78 COC denial/cancellation proceeding the final and
executory ruling by a court, as mandated by law, in an inclusion/exclusion
proceeding.
  
Velasco’s Qualifications/Disqualifications as a Voter
 
Whether Velasco possesses all the qualifications and none of the
disqualifications to register as a voter of Sasmuan, Pampanga is a matter
that is not directly before us as his inclusion as a Sasmuan voter is not before
us.  As the COMELEC did, we rely on the final and executory RTC ruling
excluding Velasco from the Sasmuan voters’ list.  We observe, however,
that at the time he filed his application for registration with the COMELEC
local office on October 13, 2006, Velasco was a dual citizen.  The records
show that Velasco renounced his American citizenship only on March 28,
2007,[13] although he secured his dual citizenship status as early as July 31,
2006 at the Philippine Consulate in San Francisco, California.[14]  Under his
dual citizenship status, he possessed the right to vote in Philippine
elections through the absentee voting scheme under Republic Act No.
9189 (the Oversees Absentee Voting Law or the OAVL)[15] as we ruled
in Nicolas-Lewis v. COMELEC.[16]  In Macalintal v. COMELEC,[17] we
significantly said that absentee voters are exempted from the
constitutional residency requirement for regular Philippine
voters.  Thus, the residency requirements we cited above under the VRA
and the LGC do not apply to Velasco, assuming he registered as a dual
citizen/absentee voter. 
 
By law, however, the right of dual citizens who vote as absentee
voters pertains only to the election of national officials, specifically: the
president, the vice-president, the senators, and party-list representatives.
[18]
   Thus, Velasco was not eligible to vote as an absentee voter in the local
election of 2007.  In fact, the records do not show that Velasco ever
registered as an absentee voter for the 2007 election.[19] 
 
On the other hand, Velasco could not have registered as a regular voter
because he did not possess the residency requirement of one-year stay in
the Philippinesand six-months stay in the municipality where he proposed to
vote at the time of the election.  The records show that he arrived in
the Philippines only on September 14, 2006 and applied for registration on
October 13 of that year[20] for the election to be held in May of the following
year (2007).  To hark back and compare his case to a similar case, Coquilla
v. COMELEC,[21] Velasco, before acquiring his dual citizenship status, was
an American citizen who had lost his residency and domiciliary status in
the Philippines; whose sojourn in the Philippines was via a visitor’s visa;
and who never established permanent residence in
the Philippines. Like Coquilla before him, Velasco could not have therefore
validly registered as a regular voter eight months before the May 2007 local
elections.
 
The Due Process Issue.
 
Finally, we see no merit in Velasco’s argument that the COMELEC
annulled his proclamation as Mayor without due process.  The nullification
of his proclamation as a winning candidate was an outcome - a necessary
legal consequence – of the cancellation of his COC pursuant to Section 78 of
the OEC.  A COC cancellation proceeding essentially partakes of the nature
of a disqualification case.[22]  In the present case, Velasco filed an Answer to
Panlaqui’s petition to cancel or deny due course to his (Velasco’s) COC;
hence, he was afforded the opportunity to be heard in the cancellation of his
COC.   
 
Under the combined application of Sections 6 [23] and 7[24] of Republic
Act No. 6646,[25] candidates who are disqualified by final judgment before
the election shall not be voted for and the votes cast for them shall not be
counted.  If the disqualification or COC cancellation/denial case is not
resolved before election day, the proceedings shall continue even after
the  election and the proclamation of the winner.[26]  In the meanwhile, the
candidate may be voted for and be proclaimed if he or she wins, but the
COMELEC’s jurisdiction to deny due course and cancel his or her COC
continues. This rule applies even if the candidate facing disqualification is
voted for and receives the highest number of votes, [27] and even if the
candidate is proclaimed and has taken his oath of office. [28] The only
exception to this rule is in the case of congressional or senatorial candidates
with unresolved disqualification or COC denial/cancellation cases after the
elections. Pursuant to Section 17 of Article VI of the Constitution, the
COMELEC ipso jure loses jurisdiction over these unfinished cases in favor
of the respective Senate or the House of Representatives electoral tribunals
after the candidates take their oath of office.[29]     
 
Under these circumstances, Velasco’s claim of denial of due process is
misplaced since he was given the opportunity to be heard in a proceeding
that would result in the annulment of his proclamation; due process was duly
served because its essence is the opportunity to be heard and this was fully
given to Velasco.[30]  
 
In sum, the COMELEC resolutions canceling Velasco’s COC are
procedurally and substantively correct, thus negating the grave abuse of
discretion that Velasco alleges.
 
As our final point, we are aware that Velasco won the May 14,
2007 mayoralty election in Sasmuan.  We recognize, too, that we have ruled
in the past that a candidate’s victory in the election may be considered a
sufficient basis to rule in favor of the candidate sought to be disqualified if
the main issue involves defects in the candidate’s certificate of
candidacy.  We said that while provisions relating to certificates of
candidacy are mandatory in terms, it is an established rule of interpretation
as regards election laws, that mandatory provisions requiring certain steps
before elections will be construed as directory after the elections, to give
effect to the will of the people. We so ruled in Quizon v.
COMELEC and Saya-ang v. COMELEC.[31]    
 
         The present case perhaps presents the proper time and opportunity to
fine-tune our above ruling.  We say this with the realization that a blanket
and unqualified reading and application of this ruling can be fraught with
dangerous significance for the rule of law and the integrity of our
elections.  For one, such blanket/unqualified reading may provide a way
around the law that effectively negates election requirements aimed at
providing the electorate with the basic information to make an informed
choice about a candidate’s eligibility and fitness for office. 
 
The first requirement that may fall when an unqualified reading is
made is Section 39 of the LGC which specifies the basic qualifications of
local government officials. Equally susceptive of being rendered toothless is
Section 74 of the OEC that sets out what should be stated in a COC.  Section
78 may likewise be emasculated as mere delay in the resolution of the
petition to cancel or deny due course to a COC can render a Section 78
petition useless if a candidate with false COC data wins.  To state the
obvious, candidates may risk falsifying their COC qualifications if they
know that an election victory will cure any defect that their COCs may
have.   Election victory then becomes a magic formula to bypass election
eligibility requirements.
 
In the process, the rule of law suffers; the clear and unequivocal legal
command, framed by a Congress representing the national will, is rendered
inutile because the people of a given locality has decided to vote a candidate
into office despite his or her lack of the qualifications Congress has
determined to be necessary.
 
  In the present case, Velasco is not only going around the law by his
claim that he is registered voter when he is not, as has been determined by a
court in a final judgment.  Equally important is that he has made a material
misrepresentation under oath in his COC regarding his qualification. For
these violations, he must pay the ultimate price – the nullification of his
election victory.  He may also have to account in a criminal court for making
a false statement under oath, but this is a matter for the proper authorities to
decide upon.
 
 We distinguish our ruling in this case from others that we have made
in the past by the clarification that COC defects beyond matters of form and
that involvematerial misrepresentations cannot avail of the benefit of our
ruling that COC mandatory requirements before elections are considered
merely directory after the people shall have spoken. A mandatory and
material election law requirement involves more than the will of the people
in any given locality. Where a material COC misrepresentation under
oath is made, thereby violating both our election and criminal laws, we are
faced as well with an assault on the will of the people of thePhilippines as
expressed in our laws.  In a choice between provisions on material
qualifications of elected officials, on the one hand, and the will of the
electorate in any given locality, on the other, we believe and so hold that we
cannot choose the electorate will.  The balance must always tilt in favor of
upholding and enforcing the law.  To rule otherwise is to slowly gnaw at the
rule of law.
 
         WHEREFORE, we DISMISS the petition for lack of merit.
The Status Quo Order we issued is hereby ordered IMMEDIATELY
LIFTED. WeDECLARE that there is no more legal impediment or obstacle
to the implementation of the assailed COMELEC resolutions.    No costs.
        
SO ORDERED.