G.R. No.
L-5397             September 26, 1952 to this time has been occupying the position of income tax
LAURETO A. TALAROC, petitioner-appellee,
vs.
ALEJANDRO D. UY, respondent-appellant.
Claro M. Recto for appellant.
Justiniano R. Borja for appellee.
TUASON, J.:
The election of Alejandro D. Uy to the office of municipal mayor
of Manticao, Misamis Oriental, on November 13, 1951, brought
the instant action of quo warranto in the Court of First Instance
of that province. The petitioner was Laureto A. Talaroc, one of
the defeated candidates for the same office, and the grounds of
the petition were that the respondent is a Chinese national and
therefore ineligible. The court below found the petition well-
founded and declared the position in question vacant.
The personal circumstances of the respondent as found by the
court are not in dispute. They are as follows:
Estan establecidas por las pruebas, y admitidas por
las partes, que Alejandro D. Uy nacio en Enero 28,
1912, en el municipio de Iligan, provincia de Lanao
(Exhibito A), de padre Chino, Uy Piangco, y de
madre Filipina, Ursula Diabo, cuando convivian estos
como marido y mujer, pero despues contrajeron
matrimonio eclestiastico el Marso 3, 1914, en dicho
pueblo (exhibito 9). Tuvieron siete hijos, siendo el
recurrido Alejandro D. Uy el 5. hijo. Uy Piangco
nativo de Chuitao, Amoy, China, nunca se ausento
desde que llego hacia 1893 o 1895, en Filipinas
hasta su fallecimiento el Febrero 17, 19l7, en Iligan,
Lanao, donde estuvo residiendo continuamente.
Ursula Diabo sin contraer nuevo matrimonio, murio
con posterioridad, el Agosto 29, 1949, en el
municipio de Manticao, Misamis Oriental (Exhibito 3).
Aparece tambien que el recurrido Alejandro D. Uy
nunca fue a China y ha votado en las anteriores
elecciones verificades en el pais, y ha desempenado
empleos como Inspector del "Bureau of Plant
Industry" en 1943 (Exh. 4), en los años 1935, 1946 y
1947, maestro bajo el Bureau of Public Schools, en
Manticao District (Exhs. 5 y 5-a); filing clerk en la
Tesoreria Municipal de Initao, en 1935 al 1945 (Exh.
4); y acting Municipal Treasurer de Lagait, en 1942 a
1943 (Exh. 6); ademas de haber servido al 120th
Infantry Regiment de la guerrilla, y algun tiempo "tax
collector" del gobierno de ocupacion Japonesa, en
esta provincia de Misamis Oriental.
These facts also appear uncontroverted in evidence: One of
the respondent's brothers, Pedro D. Uy, before the war and up
nationality with the proviso that they may elect for themselves
examiner of the Bureau of Internal Revenue. His other brother, upon reaching majority.
Jose D. Uy, is a practicing certified public accountant, and
before the war was the accountant of the National Abaca and
The Roa decision, promulgated on October 30, 1912, set a
Fiber Corporation p73 (NAFCO). His other brother, Dr. Victorio
precedent that was uniformly followed in numerous cases. The
D. Uy, is a practising physician, and before the war, was charity
long line of decisions applied the principle of jus soli up to
physician in Initao and later a physician in the provincial
September 16, 1947, when that principle was renounced in the
hospital. During the war, Dr. Uy was a captain in the Philippine
cases of Tan Chong vs. Secretary of Labor and Swee Sang vs.
Army. His younger brother was a lieutenant in the 120th
The Commonwealth of the Philippines cited in the appealed
Infantry Regiment of the guerrillas. All his brothers married
decision.
Filipino girls and they were never identified with any Chinese
political or social organization. Respondent's father acquired
properties in Lugait. His mother, who never remarried, These two decisions are not, in our opinion, controlling in this
campaigned for woman suffrage in 1935 and voted in the case.
subsequent elections.
Article IV, entitled "Citizenship", of the Constitution
The respondent's contentions, which the court below rejected, provides:1âwphïl.nêt
were that his father was a subject of Spain on April 11, 1899 by
virtue of Article 17 of the Civil Code; that his mother ipso
SECTION 1. The following are the citizens of the
facto reacquired her Filipino citizenship upon the death of her
Philippines:
husband on February 17, 1917, and the child followed her
citizenship; and that the respondent is a citizen of the
Philippines by the mere fact of his birth therein. His honor the (1) Those who are citizens of the Philippine Islands
Judge noted that, while under the Roa doctrine (Roa vs. Insular at the time of the adoption of this Constitution.
Collector of Customs, 23 Phil., 315), Alejandro D. Uy would be
a Filipino citizen regardless of the nationality of his parents, yet,
he said this doctrine was abandoned in Tan Chong vs. xxx     xxx     xxx
Secretary of Labor, (79 Phil., 249.), Swee Sang vs. The
Commonwealth of the Philippines, (79 Phil., 249), decided On the strength of the Roa doctrine, Alejandro D. Uy
with Tan Chong vs. Secretary of Labor and Villahermosa vs. undoubtedly was considered a full-fledged Philippine citizen on
The Commissioner of Immigration, 80 Phil., 541. the date of the adoption of the constitution, when jus soli had
been the prevailing doctrine. "With it", as Mr. Justice Laurel
It may be recalled that in the case of Roa vs. Insular Collector said in Ramon Torres, et al. vs. Tan Chin, 69 Phil., 519, "the
of Customs, supra, the petitioner was born in lawful wedlock in bench and the bar were familiar. The members of the
the Philippines on July 6, 1899, his father being a native of Constitutional Convention were also aware of this rule and in
China and his mother a Filipina. His father was domiciled in this abrogating the doctrine laid down in the Roa case, by making
country up to the year 1895 when he went to China and never the jus sanguinis the predominating principle in the
returned, dying there about 1900. In May, 1901, Roa, was then determination of Philippine citizenship, they did not intend to
a minor, was sent to China by his widowed mother for the soul exclude those who, in the situation of Tranquilino Roa, were
purpose of studying and returned in October, 1910, being then citizens of the Philippines by judicial declaration at the time of
about 21 years and 3 months of age. He was denied admission the adoption of the Constitution." "This," the Court went on to
by the board of special inquiry, whose decision was affirmed by say, "is apparent from the following excerpt of the proceedings
the Court of First Instance in habeas corpus proceedings. of the Constitutional Convention when Article IV of the
Constitution was discussed:
This Court held that Article 17 of the Civil Code "is sufficient to
Delegate Aruego. — Mr. President, may I just have
show that the first paragraph affirms and recognizes the
one question? May I ask Mr. Roxas if, under this
principle of nationality by place of birth, jus soli." Citing various
proposition that you have, all children born in the
decisions, authorities, and opinions of the United States
Philippines before the adoption of the Constitution
Attorney General, it found that the decided weight of authority
was included?
was to the effect that the marriage of an American woman with
an alien conferred his nationality upon her during coverture;
that upon the dissolution of the marriage by death of the Delegate Roxas. — No, sir: that is to say, if they are
husband, the wife reverted, ipso facto, to her former status, citizens in accordance with the present law, they will
unless her conduct or acts showed that she elected to retain be citizens.
the nationality of her husband, and that where the widowed
mother herself thus reacquired her former nationality, her
children, she being their natural guardian, should follow her
 Delegate Aruego. — But as I have said they are
citizens by judicial decisions.
Delegate Roxas. — If they are citizens now by
judicial decisions they will be citizens.
Delegate Aruego. — I should like to make it clear
that we are voting on the proposition so that it will
include all those born in the Philippines, regardless
of their parentage, because I have heard some
objections here to the incorporation in toto of the
doctrine of jus soli. There are many who do not want
to include as citizens, children of Chinese parents
but they are included in the proposition we are voting
upon . . .
I should like to find out from the gentleman from
Capiz if that proposition would make Filipino citizens
of children of Chinese parents born last year or this
year.
Delegate Roxas. — No, because by the laws of the
Philippine Islands, they are not Filipino citizens now.
(Record of the Proceedings of the Constitutional
Convention, Session of November 26, 1934.)
Unlike the Tan Chong case, the herein appellant Uy had
attained the age of majority when the Constitution went into
effect, and had been allowed to exercise the right of suffrage,
to hold public office, and to take the oath of allegiance to the
Commonwealth Government or Republic of the Philippines.
The Tan Chong decision itself makes this express reservation:
"Needless to say, this decision is not intended or designed to
deprive, as it can not divest, of their Filipino citizenship, those
who have been declared to be Filipino citizens, or upon whom
such citizenship had been conferred by the courts because of
the doctrine or principle of res adjudicata." Certainly, it would
neither be fair nor good policy to hold the respondent an alien
after he had exercised the privileges of citizenship and the
Government had confirmed his Philippine citizenship on the
faith of legal principle that had the force of law. On several
occasions the Secretary of Justice had declared as Filipino
citizens persons similarly circumstanced as the herein
respondent. (Opinion 40, series of 1940, of the Secretary of
Justice. See also Opinion No. 18, series of 1942, of the
Commissioner of Justice, 1942 Off. Gaz., September.)
Cut out of the same pattern and deserving of the same
consideration is the proposition that Alejandro D. Uy became a
Philippine citizen at least upon his father's death.
It has been seen that, according to the rule of the Roa case, a
Filipino woman married to Chinese ipso facto reacquired her
Filipino citizenship upon her husband's demise and that there
after her minor children's nationality automatically followed that
of the mother's. This rule was not changed by the adoption of
the jus sanguinis doctrine, and was in force until
Commonwealth Act No. 63 went into effect in 1936, by which
the legislature, for the first time, provided a method for
regaining Philippine citizenship by Filipino women in such
cases. It is to be noted that when Commonwealth Act No. 63
was passed Ursula Diabo had been a widow for 19 years and
Alejandro D. Uy had been of age 3 years, and that the new law
carries the provision giving it retroactive effect.
This conclusions make superfluous consideration of the rest of
the several assignments of error by the appellant upon which
we refrain to express on opinion.
The decision of the lower court is reversed and the respondent
and appellant declared a Filipino citizen and eligible to the
office of the municipal mayor. The petitioner and appellee will
pay the costs of both instances.1âwphïl.nêt
Bengzon, Montemayor and Bautista Angelo, JJ., concur.
Paras, C.J., concurs in the result.
Separate Opinions
PABLO, M., concurrente:
Opino que Alejandro D. Uy nacio como ciudadano filipino en 28
de enero de 1912 en Iligan, Lanao, porque su madre Ursula
Diabo no esaba legalmente conUy Piangco, pues el hijo
natural sigue la ciudadania de su madre
(Serra contra Republica de Filipinas, G.R. No. L-4223, mayo
12, 1952); pero al casarse ella con Uy Piangco en 3 de marzo
de 1914, Alejandro D. Uy quedo legitimado por subsiguiente
matrimonio (Art. 120, Cod. Civ. Esp.) ipso factos se habia
hecho ciudadano chino porque como menor de edad, tenia que
seguir la nacionalidad de su padre legitimo (Art. 18, Cod. Civ.
Esp.), como Ursula siguio la de su marido (Art. 22, Cod. Civ.
Esp.).
Al fallecimiento de Uy Piangco en 17 de febrero de 1917,
Ursula Diabo no se hizo automaticamente ciudadana filipina,
pues el articulo 22 del Codigo Civil Español entonces vigente
dispone que la española (filipina) que casare con extrnjero
podra, disuelto el matrimonio, recobrar la nacionalidad
española (filipina llendo los requisitos expresados en el articulo
anterior, y estos requisitos son: (a) volviendo la viuda al Reino
(repatriacion); (b) declarando su voluntad de recobrar la
ciudadania filipina; y (c renunciado la proteccion del pabellon
del pais de su marido. La primera condicion esta practicamente
cumplida proque Diabo no salio nunca de Filipinas; pero no
esta probado que hubiese declarado ante el registrador civil de
su residencia que era su intencion recobrar la ciudadania
filipina, ni que hubiese renunciado la proteccion de la bandera
china. Desde el 26 de noviembre de 1930 en que se establecio
el registro civil en Filipinas, siendo registrador civil local el
tesorero municipal, hasta el 28 de agosto de 1949 en que
fallecio — mas de dieciocho años — Ursula Diabo tenia amplia
oportunidad de hacer la declaracion que exige el articulo 21 del
Codigo Civil, pero no lo ha hecho; su silencio de lugar a la
presuncion de que deseo continuar gozando de la ciudadania
de su marido. Para recobrar la ciudadania filipina, la viuda de
un extranjero debe ejecutar ciertos actos que demuestren su
deseo indubitable de readquirir su antigua ciudadania y perder
la de su finado marido; por tanto, Alejandro D. Uy tampoco
readquirio la ciudadania filipina por el mero hecho de haber
quedado viuda su madre.
Es principio universalmente aceptado que la expatriacion es
derecho inherente a todos. los hijos de un extranjero nacidos
en Filipinas deben manifestar al encargado del Registro Civil
dentro del año siguiente a su mayor edad o emancipacion, si
desean optar por la ciudadania de su pais natal (Art. 19, Cod.
Civ. Esp.). Aunque no aparece que ha hecho tal manifestacion
al registrador civil, Alejandro D. Uy ejercito, sin embargo, el
derecho de sufragio "en las anteriores elessiones verificadas
en el pais" al tener edad competente para votar. Con ello
demostroque queria adoptar la ciudadania del pais de su
nacimiento,prefiriendola a la de su padre. Cuando en 1935
Alejandro D. Uy sirvio al gobierno como maestro de escuela
bajoel Departamento de Instruccion Publica, despues
escribiente en la tesoreria municipal de Initao en 1937, y mas
tarde tesorero de Lugait en 1942 a 1943, y cuando, con
expocision de su vida, ingreso en las filas del 120.0.
Regimiento de infanteria de las guerillas, demostro de una
manera clara e inequivoca que preferia ser ciudadano filipina a
ser ciudadano chino.
Alejandro D. Uy, de acuerdo con el Codigo Civil antiguo, es
ciudadano filipino porque opto serlo al llegar a mayor edad.
Tambien es ciudadano filipino por dispsicion constitucional. Al
votar en las elecciones verificadas en el pais al llegar a la
mayor edad, demonstro que quiso abrazar la ciudadania
filipina. La Constitucion dice asi: "Son ciudadanos filipinos: . . .
(4) los que, siendo hijos de madres de ciudadania filipina,
optaren por esta al llegar a la mayor edad." (Art. 4, Titulo IV,
Constitucion). Bueno es hacer constar que existe error en esta
disposicion: debe decirse "madres de nacionalidad filipina" y no
"madres de ciudadania filipina." La filipina que se casa con un
extranjero sigue la ciudadania de su marido; por el simple
hecho del matrimonio pierde la ciudadania filipina y se hace
extrnjera: no puede continuar en la condicion de ciudadana
filipina por expresa disposicion de la ley, pero no pierde la
nacionalidad filipina.
Por la razones expuestas, y no por otras, Alejandro D. Uy
adquirio la ciudadania filipina.
PADILLA, J., concurring:

I would rest the judgment in this case on the undisputed fact

that the respondent was born out of wedlock in Iligan, Lanao,
on 28 January, 1912 of a Filipino mother and a Chinese father
who were married on 3 March, 1914 and that his father died on
17 February, 1917. He was a Filipino citizen, became Chinese
citizen when his father and mother were married and
reacquired his original citizenship on the death of his father,
because being under age he followed the citizenship of his
mother who reacquired her Filipino citizenship upon the death
of her husband and never remarried.

I do not agree to the proposition that persons born in this

country of alien parentage or whose father is an alien must be
deemed Filipino citizens under and by virtue of the doctrine laid
down in the case of Roa vs. Collector of Customs, 23 Phil.,
315. Precisely, the judgment in the cases of Tan Chong vs.
The Secretary of Labor and Lam Swee Sang vs. The
Commonwealth of the Philippines, 45 Off. Gaz., 1269, holds
that as the doctrine laid down in the case of Roa vs. Collector
of Customs, supra, is in conflict with the law in force at time it
must be abandoned. Jose Tan Chong invoked also the benefit
of the doctrine in the Roa vs. Collector of Customs case. There
is only an exception to the rule laid down in the cases of Tan
Chong vs. The Secretary of Labor and Lam Swee Sang vs.
The Commonwealth of the Philippines, supra.

Labrador, J., concurs.
G.R. Nos. 92191-92             July 30, 1991
ANTONIO Y. CO, petitioner,
vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF
REPRESENTATIVES AND JOSE ONG, JR., respondents.
G.R. Nos. 92202-03             July 30, 1991
SIXTO T. BALANQUIT, JR., petitioner,
vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF
REPRESENTATIVES AND JOSE ONG, JR., respondents.
Hechanova & Associates for petitioner Co.
Brillantes, Nachura, Navarro and Arcilla Law Offices for
respondent Ong, Jr.
GUTIERREZ, JR., J.:
The petitioners come to this Court asking for the setting aside
and reversal of a decision of the House of Representatives
Electoral Tribunal (HRET).
The HRET declared that respondent Jose Ong, Jr. is a natural
born Filipino citizen and a resident of Laoang, Northern Samar
for voting purposes. The sole issue before us is whether or not,
in making that determination, the HRET acted with grave abuse
of discretion.
On May 11, 1987, the congressional election for the second
district of Northern Samar was held.
Among the candidates who vied for the position of
representative in the second legislative district of Northern
Samar are the petitioners, Sixto Balinquit and Antonio Co and
the private respondent, Jose Ong, Jr.
Respondent Ong was proclaimed the duly elected
representative of the second district of Northern Samar.
The petitioners filed election protests against the private
respondent premised on the following grounds:
1) Jose Ong, Jr. is not a natural born citizen of the
Philippines; and
2) Jose Ong, Jr. is not a resident of the second
district of Northern Samar.
The HRET in its decision dated November 6, 1989, found for
the private respondent.
A motion for reconsideration was filed by the petitioners on
November 12, 1989. This was, however, denied by the HRET
in its resolution dated February 22, 1989.
Hence, these petitions for certiorari.
We treat the comments as answers and decide the issues
raised in the petitions.
ON THE ISSUE OF JURISDICTION
The first question which arises refers to our jurisdiction.
The Constitution explicitly provides that the House of
Representatives Electoral Tribunal (HRET) and the Senate
Electoral Tribunal (SET) shall be the sole judges of all contests
relating to the election, returns, and qualifications of their
respective members. (See Article VI, Section 17, Constitution)
The authority conferred upon the Electoral Tribunal is full, clear
and complete. The use of the word sole emphasizes the
exclusivity of the jurisdiction of these Tribunals.
The Supreme Court in the case of Lazatin v. HRET (168 SCRA
391 [1988]) stated that under the 1987 Constitution, the
jurisdiction of the Electoral Tribunal is original and
exclusive, viz:
The use of the word "sole" emphasizes the exclusive
character of the jurisdiction conferred (Angara v.
Electoral Commission, supra at p. 162). The exercise
of power by the Electoral Commission under the
1935 Constitution has been described as "intended
to be as complete and unimpaired as if it had
originally remained in the legislature." (id., at p. 175)
Earlier this grant of power to the legislature was
characterized by Justice Malcolm as "full, clear and
complete; (Veloso v. Board of Canvassers of Leyte
and Samar, 39 Phil. 886 [1919]) Under the amended
1935 Constitution, the power was unqualifiedly
reposed upon the Electoral Tribunal and it remained
as full, clear and complete as that previously granted
the Legislature and the Electoral Commission,
(Lachica v. Yap, 25 SCRA 140 [1968]) The same
may be said with regard to the jurisdiction of the
Electoral Tribunal under the 1987 Constitution. (p.
401)
The Court continued further, ". . . so long as the Constitution
grants the HRET the power to be the sole judge of all contests
relating to election, returns and qualifications of members of
the House of Representatives, any final action taken by the
HRET on a matter within its jurisdiction shall, as a rule, not be
reviewed by this Court . . . the power granted to the Electoral
Tribunal is full, clear and complete and excludes the exercise
of any authority on the part of this Court that would in any wise
restrict it or curtail it or even affect the same." (pp. 403-404)
When may the Court inquire into acts of the Electoral Tribunals
under our constitutional grants of power?
In the later case of Robles v. HRET (181 SCRA 780 [1990]) the
Supreme Court stated that the judgments of the Tribunal are
beyond judicial interference save only "in the exercise of this
Court's so-called extraordinary jurisdiction, . . . upon a
determination that the Tribunal's decision or resolution was
rendered without or in excess of its jurisdiction, or with grave
abuse of discretion or paraphrasing Morrero, upon a clear
showing of such arbitrary and improvident use by the Tribunal
of its power as constitutes a denial of due process of law, or
upon a demonstration of a very clear unmitigated ERROR,
manifestly constituting such GRAVE ABUSE OF DISCRETION
that there has to be a remedy for such abuse." (at pp. 785-786)
In the leading case of Morrero v. Bocar (66 Phil. 429 [1938])
the Court ruled that the power of the Electoral Commission "is
beyond judicial interference except, in any event, upon a clear
showing of such arbitrary and improvident use of power as will
constitute a denial of due process." The Court does not venture
into the perilous area of trying to correct perceived errors of
independent branches of the Government, It comes in only
when it has to vindicate a denial of due process or correct an
abuse of discretion so grave or glaring that no less than the
Constitution calls for remedial action.
The Supreme Court under the 1987 Constitution, has been
given an expanded jurisdiction, so to speak, to review the
decisions of the other branches and agencies of the
government to determine whether or not they have acted within
the bounds of the Constitution. (See Article VIII, Section 1,
Constitution)
Yet, in the exercise thereof, the Court is to merely check
whether or not the governmental branch or agency has gone
beyond the Constitutional limits of its jurisdiction, not that it
erred or has a different view. In the absence of a showing that
the HRET has committed grave abuse of discretion amounting
to lack of jurisdiction, there is no occasion for the Court to
exercise its corrective power; it will not decide a matter which
by its nature is for the HRET alone to decide. (See Marcos v.
Manglapus, 177 SCRA 668 [1989]) It has no power to look into
what it thinks is apparent error.
As constitutional creations invested with necessary power, the
Electoral Tribunals, although not powers in the tripartite
scheme of the government, are, in the exercise of their
functions independent organs — independent of Congress and
the Supreme Court. The power granted to HRET by the
Constitution is intended to be as complete and unimpaired as if
it had remained originally in the legislature. (Angara v. Electoral
Commission, 63 Phil. 139 [1936])
In passing upon petitions, the Court with its traditional and
careful regard for the balance of powers, must permit this
exclusive privilege of the Tribunals to remain where the
Sovereign authority has place it. (See Veloso v. Boards of
Canvassers of Leyte and Samar, 39 Phil. 886 [1919])
It has been argued that under Article VI, Section 17 of the
present Constitution, the situation may exist as it exists today
where there is an unhealthy one-sided political composition of
the two Electoral Tribunals. There is nothing in the Constitution,
however, that makes the HRET because of its composition any
less independent from the Court or its constitutional functions
any less exclusive. The degree of judicial intervention should
not be made to depend on how many legislative members of
the HRET belong to this party or that party. The test remains
the same-manifest grave abuse of discretion.
In the case at bar, the Court finds no improvident use of power,
no denial of due process on the part of the HRET which will
necessitate the exercise of the power of judicial review by the
Supreme Court.
ON THE ISSUE OF CITIZENSHIP
The records show that in the year 1895, the private
respondent's grandfather, Ong Te, arrived in the Philippines
from China. Ong Te established his residence in the
municipality of Laoang, Samar on land which he bought from
the fruits of hard work.
As a resident of Laoang, Ong Te was able to obtain a
certificate of residence from the then Spanish colonial
administration.
The father of the private respondent, Jose Ong Chuan was
born in China in 1905. He was brought by Ong Te to Samar in
the year 1915.
Jose Ong Chuan spent his childhood in the province of Samar.
In Laoang, he was able to establish an enduring relationship
with his neighbors, resulting in his easy assimilation into the
community.
As Jose Ong Chuan grew older in the rural and seaside
community of Laoang, he absorbed Filipino cultural values and
practices. He was baptized into Christianity. As the years
passed, Jose Ong Chuan met a natural born-Filipino, Agripina
Lao. The two fell in love and, thereafter, got married in 1932
according to Catholic faith and practice.
The couple bore eight children, one of whom is the private
respondent who was born in 1948.
The private respondent's father never emigrated from this
country. He decided to put up a hardware store and shared and
survived the vicissitudes of life in Samar.
The business prospered. Expansion became inevitable. As a
result, a branch was set-up in Binondo, Manila. In the
meantime, the father of the private respondent, unsure of his
legal status and in an unequivocal affirmation of where he cast
his life and family, filed with the Court of First Instance of
Samar an application for naturalization on February 15, 1954.
On April 28, 1955, the CFI of Samar, after trial, declared Jose
Ong Chuan a Filipino citizen.
On May 15, 1957, the Court of First Instance of Samar issued
an order declaring the decision of April 28, 1955 as final and
executory and that Jose Ong Chuan may already take his Oath
of Allegiance.
Pursuant to said order, Jose Ong Chuan took his Oath of
Allegiance; correspondingly, a certificate of naturalization was
issued to him.
At the time Jose Ong Chuan took his oath, the private
respondent then a minor of nine years was finishing his
elementary education in the province of Samar. There is
nothing in the records to differentiate him from other Filipinos
insofar as the customs and practices of the local populace
were concerned.
Fortunes changed. The house of the family of the private
respondent in Laoang, Samar was burned to the ground.
Undaunted by the catastrophe, the private respondent's family
constructed another one in place of their ruined house. Again,
there is no showing other than that Laoang was their abode
and home.
After completing his elementary education, the private
respondent, in search for better education, went to Manila in
order to acquire his secondary and college education.
In the meantime, another misfortune was suffered by the family
in 1975 when a fire gutted their second house in Laoang,
Samar. The respondent's family constructed still another
house, this time a 16-door apartment building, two doors of
which were reserved for the family.
The private respondent graduated from college, and thereafter
took and passed the CPA Board Examinations.
Since employment opportunities were better in Manila, the
respondent looked for work here. He found a job in the Central
Bank of the Philippines as an examiner. Later, however, he
worked in the hardware business of his family in Manila. In
1971, his elder brother, Emil, was elected as a delegate to the
1971 Constitutional Convention. His status as a natural born
citizen was challenged. Parenthetically, the Convention which
in drafting the Constitution removed the unequal treatment
given to derived citizenship on the basis of the mother's
citizenship formally and solemnly declared Emil Ong,
respondent's full brother, as a natural born Filipino. The
Constitutional Convention had to be aware of the meaning of
natural born citizenship since it was precisely amending the
article on this subject.
The private respondent frequently went home to Laoang,
Samar, where he grew up and spent his childhood days.
In 1984, the private respondent married a Filipina named
Desiree Lim.
For the elections of 1984 and 1986, Jose Ong, Jr. registered
himself as a voter of Laoang, Samar, and correspondingly,
voted there during those elections.
The private respondent after being engaged for several years
in the management of their family business decided to be of
greater service to his province and ran for public office. Hence,
when the opportunity came in 1987, he ran in the elections for
representative in the second district of Northern Samar.
Mr. Ong was overwhelmingly voted by the people of Northern
Samar as their representative in Congress. Even if the total
votes of the two petitioners are combined, Ong would still lead
the two by more than 7,000 votes.
The pertinent portions of the Constitution found in Article IV
read:
 SECTION 1, the following are citizens of the
Philippines:
1. Those who are citizens of the Philippines at the
time of the adoption of the Constitution;
2. Those whose fathers or mothers are citizens of the
Philippines;
3. Those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon
reaching the age of majority; and
4. Those who are naturalized in accordance with law.
SECTION 2, Natural-born Citizens are those who are
citizens of the Philippines from birth without having to
perform any act to acquire or perfect their citizenship.
Those who elect Philippine citizenship in accordance
with paragraph 3 hereof shall be deemed natural-
born citizens.
The Court interprets Section 1, Paragraph 3 above as applying
not only to those who elect Philippine citizenship after February
2, 1987 but also to those who, having been born of Filipino
mothers, elected citizenship before that date.
The provision in Paragraph 3 was intended to correct an unfair
position which discriminates against Filipino women. There is
no ambiguity in the deliberations of the Constitutional
Commission, viz:
Mr. Azcuna: With respect to the provision of section
4, would this refer only to those who elect Philippine
citizenship after the effectivity of the 1973
Constitution or would it also cover those who elected
it under the 1973 Constitution?
Fr. Bernas: It would apply to anybody who elected
Philippine citizenship by virtue of the provision of the
1935 Constitution whether the election was done
before or after January 17, 1973. (Records of the
Constitutional Commission, Vol. 1, p. 228; Emphasis
supplied)
x x x           x x x          x x x
Mr. Trenas: The Committee on Citizenship, Bill of
Rights, Political Rights and Obligations and Human
Rights has more or less decided to extend the
interpretation of who is a natural-born citizen as
provided in section 4 of the 1973 Constitution by
adding that persons who have elected Philippine
Citizenship under the 1935 Constitution shall be
natural-born? Am I right Mr. Presiding Officer?
Fr. Bernas: yes.
x x x           x x x          x x x
Mr. Nolledo: And I remember very well that in the
Reverend Father Bernas' well written book, he said
that the decision was designed merely to
accommodate former delegate Ernesto Ang and that
the definition on natural-born has no retroactive
effect. Now it seems that the Reverend Father
Bernas is going against this intention by supporting
the amendment?
Fr. Bernas: As the Commissioner can see, there has
been an evolution in my thinking. (Records of the
Constitutional Commission, Vol. 1, p. 189)
x x x           x x x          x x x
Mr. Rodrigo: But this provision becomes very
important because his election of Philippine
citizenship makes him not only a Filipino citizen but a
natural-born Filipino citizen entitling him to run for
Congress. . .
Fr. Bernas: Correct. We are quite aware of that and
for that reason we will leave it to the body to approve
that provision of section 4.
Mr. Rodrigo: I think there is a good basis for the
provision because it strikes me as unfair that the
Filipino citizen who was born a day before January
17, 1973 cannot be a Filipino citizen or a natural-
born citizen. (Records of the Constitutional
Commission, Vol. 1, p. 231)
x x x           x x x          x x x
Mr. Rodrigo: The purpose of that provision is to
remedy an inequitable situation.1avvphi1 Between
1935 and 1973 when we were under the 1935
Constitution, those born of Filipino fathers but alien
mothers were natural-born Filipinos. However, those
born of Filipino mothers but alien fathers would have
to elect Philippine citizenship upon reaching the age
of majority; and if they do elect, they become Filipino
citizens but not natural-born Filipino citizens.
(Records of the Constitutional Commission, Vol. 1, p.
356)
The foregoing significantly reveals the intent of the framers. To
make the provision prospective from February 3, 1987 is to
give a narrow interpretation resulting in an inequitable situation.
It must also be retroactive.
It should be noted that in construing the law, the Courts are not
always to be hedged in by the literal meaning of its language.
The spirit and intendment thereof, must prevail over the letter,
especially where adherence to the latter would result in
absurdity and injustice. (Casela v. Court of Appeals, 35 SCRA
279 [1970])
A Constitutional provision should be construed so as to give it
effective operation and suppress the mischief at which it is
aimed, hence, it is the spirit of the provision which should
prevail over the letter thereof. (Jarrolt v. Mabberly, 103 U.S.
580)
In the words of the Court in the case of J.M. Tuason v. LTA (31
SCRA 413 [1970]:
To that primordial intent, all else is subordinated. Our
Constitution, any constitution is not to be construed
narrowly or pedantically for the prescriptions therein
contained, to paraphrase Justice Holmes, are not
mathematical formulas having their essence in their
form but are organic living institutions, the
significance of which is vital not formal. . . . (p. 427)
The provision in question was enacted to correct the
anomalous situation where one born of a Filipino father and an
alien mother was automatically granted the status of a natural-
born citizen while one born of a Filipino mother and an alien
father would still have to elect Philippine citizenship. If one so
elected, he was not, under earlier laws, conferred the status of
a natural-born.
Under the 1973 Constitution, those born of Filipino fathers and
those born of Filipino mothers with an alien father were placed
on equal footing. They were both considered as natural-born
citizens.
Hence, the bestowment of the status of "natural-born" cannot
be made to depend on the fleeting accident of time or result in
two kinds of citizens made up of essentially the same similarly
situated members.
It is for this reason that the amendments were enacted, that is,
in order to remedy this accidental anomaly, and, therefore,
treat equally all those born before the 1973 Constitution and
who elected Philippine citizenship either before or after the
effectivity of that Constitution.
The Constitutional provision in question is, therefore curative in
nature. The enactment was meant to correct the inequitable
and absurd situation which then prevailed, and thus, render
those acts valid which would have been nil at the time had it
not been for the curative provisions. (See Development Bank of
the Philippines v. Court of Appeals, 96 SCRA 342 [1980])
There is no dispute that the respondent's mother was a natural
born Filipina at the time of her marriage. Crucial to this case is
the issue of whether or not the respondent elected or chose to
be a Filipino citizen.
Election becomes material because Section 2 of Article IV of
the Constitution accords natural born status to children born of
Filipino mothers before January 17, 1973, if
they elect citizenship upon reaching the age of majority.
To expect the respondent to have formally or in writing elected
citizenship when he came of age is to ask for the unnatural and
unnecessary. The reason is obvious. He was already a citizen.
Not only was his mother a natural born citizen but his father
had been naturalized when the respondent was only nine (9)
years old. He could not have divined when he came of age that
in 1973 and 1987 the Constitution would be amended to
require him to have filed a sworn statement in 1969 electing
citizenship inspite of his already having been a citizen since
1957. In 1969, election through a sworn statement would have
been an unusual and unnecessary procedure for one who had
been a citizen since he was nine years old.
We have jurisprudence that defines "election" as both a formal
and an informal process.
In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]),
the Court held that the exercise of the right of suffrage and the
participation in election exercises constitute a positive act of
election of Philippine citizenship. In the exact pronouncement
of the Court, we held:
Esteban's exercise of the right of suffrage when he
came of age, constitutes a positive act of election of
Philippine citizenship (p. 52; emphasis supplied)
The private respondent did more than merely exercise his right
of suffrage. He has established his life here in the Philippines.
For those in the peculiar situation of the respondent who
cannot be expected to have elected citizenship as they were
already citizens, we apply the In Re Mallare rule.
The respondent was born in an outlying rural town of Samar
where there are no alien enclaves and no racial distinctions.
The respondent has lived the life of a Filipino since birth. His
father applied for naturalization when the child was still a small
boy. He is a Roman Catholic. He has worked for a sensitive
government agency. His profession requires citizenship for
taking the examinations and getting a license. He has
participated in political exercises as a Filipino and has always
considered himself a Filipino citizen. There is nothing in the
records to show that he does not embrace Philippine customs
and values, nothing to indicate any tinge of alien-ness no acts
to show that this country is not his natural homeland. The mass
of voters of Northern Samar are frilly aware of Mr. Ong's
parentage. They should know him better than any member of
this Court will ever know him. They voted by overwhelming
numbers to have him represent them in Congress. Because of
his acts since childhood, they have considered him as a
Filipino.
The filing of sworn statement or formal declaration is a
requirement for those who still have to elect citizenship. For
those already Filipinos when the time to elect came up, there
are acts of deliberate choice which cannot be less binding.
Entering a profession open only to Filipinos, serving in public
office where citizenship is a qualification, voting during election
time, running for public office, and other categorical acts of
similar nature are themselves formal manifestations of choice
for these persons.
An election of Philippine citizenship presupposes that the
person electing is an alien. Or his status is doubtful because he
is a national of two countries. There is no doubt in this case
about Mr. Ong's being a Filipino when he turned twenty-one
(21).
We repeat that any election of Philippine citizenship on the part
of the private respondent would not only have been
superfluous but it would also have resulted in an absurdity.
How can a Filipino citizen elect Philippine citizenship?
The respondent HRET has an interesting view as to how Mr.
Ong elected citizenship. It observed that "when protestee was
only nine years of age, his father, Jose Ong Chuan became a
naturalized Filipino. Section 15 of the Revised Naturalization
Act squarely applies its benefit to him for he was then a minor
residing in this country. Concededly, it was the law itself that
had already elected Philippine citizenship for protestee by
declaring him as such." (Emphasis supplied)
The petitioners argue that the respondent's father was not,
validly, a naturalized citizen because of his premature taking of
the oath of citizenship.
The Court cannot go into the collateral procedure of stripping
Mr. Ong's father of his citizenship after his death and at this
very late date just so we can go after the son.
The petitioners question the citizenship of the father through a
collateral approach. This can not be done. In our jurisdiction,
an attack on a person's citizenship may only be done through a
direct action for its nullity. (See Queto v. Catolico, 31 SCRA 52
[1970])
To ask the Court to declare the grant of Philippine citizenship to
Jose Ong Chuan as null and void would run against the
principle of due process. Jose Ong Chuan has already been
laid to rest. How can he be given a fair opportunity to defend
himself. A dead man cannot speak. To quote the words of the
HRET "Ong Chuan's lips have long been muted to perpetuity
by his demise and obviously he could not use beyond where
his mortal remains now lie to defend himself were this matter to
be made a central issue in this case."
The issue before us is not the nullification of the grant of
citizenship to Jose Ong Chuan. Our function is to determine
whether or not the HRET committed abuse of authority in the
exercise of its powers. Moreover, the respondent traces his
natural born citizenship through his mother, not through the
citizenship of his father. The citizenship of the father is relevant
only to determine whether or not the respondent "chose" to be
a Filipino when he came of age. At that time and up to the
present, both mother and father were Filipinos. Respondent
Ong could not have elected any other citizenship unless he first
formally renounced Philippine citizenship in favor of a foreign
nationality. Unlike other persons faced with a problem of
election, there was no foreign nationality of his father which he
could possibly have chosen.
There is another reason why we cannot declare the HRET as
having committed manifest grave abuse of discretion. The
same issue of natural-born citizenship has already been
decided by the Constitutional Convention of 1971 and by the
Batasang Pambansa convened by authority of the Constitution
drafted by that Convention. Emil Ong, full blood brother of the
respondent, was declared and accepted as a natural born
citizen by both bodies.
Assuming that our opinion is different from that of the
Constitutional Convention, the Batasang Pambansa, and the
respondent HRET, such a difference could only be
characterized as error. There would be no basis to call the
HRET decision so arbitrary and whimsical as to amount
to grave abuse of discretion.
What was the basis for the Constitutional Convention's
declaring Emil Ong a natural born citizen?
Under the Philippine Bill of 1902, inhabitants of the Philippines
who were Spanish subjects on the 11th day of April 1899 and
then residing in said islands and their children born subsequent
thereto were conferred the status of a Filipino citizen.
Was the grandfather of the private respondent a Spanish
subject?
Article 17 of the Civil Code of Spain enumerates those who
were considered Spanish Subjects, viz:
ARTICLE 17. The following are Spaniards:
1. Persons born in Spanish territory.
2. Children born of a Spanish father or mother, even
though they were born out of Spain.
3. Foreigners who may have obtained naturalization
papers.
4. Those without such papers, who may have
acquired domicile in any town in the Monarchy.
(Emphasis supplied)
The domicile of a natural person is the place of his habitual
residence. This domicile, once established is considered to
continue and will not be deemed lost until a new one is
established. (Article 50, NCC; Article 40, Civil Code of Spain;
Zuellig v. Republic, 83 Phil. 768 [1949])
As earlier stated, Ong Te became a permanent resident of
Laoang, Samar around 1895. Correspondingly, a certificate of
residence was then issued to him by virtue of his being a
resident of Laoang, Samar. (Report of the Committee on
Election Protests and Credentials of the 1971 Constitutional
Convention, September 7, 1972, p. 3)
The domicile that Ong Te established in 1895 continued until
April 11, 1899; it even went beyond the turn of the 19th
century. It is also in this place were Ong Te set-up his business
and acquired his real property.
As concluded by the Constitutional Convention, Ong Te falls
within the meaning of sub-paragraph 4 of Article 17 of the Civil
Code of Spain.
Although Ong Te made brief visits to China, he, nevertheless,
always returned to the Philippines. The fact that he died in
China, during one of his visits in said country, was of no
moment. This will not change the fact that he already had his
domicile fixed in the Philippines and pursuant to the Civil Code
of Spain, he had become a Spanish subject.
If Ong Te became a Spanish subject by virtue of having
established his domicile in a town under the Monarchy of
Spain, necessarily, Ong Te was also an inhabitant of the
Philippines for an inhabitant has been defined as one who has
actual fixed residence in a place; one who has a domicile in a
place. (Bouvier's Law Dictionary, Vol. II) A priori, there can be
no other logical conclusion but to educe that Ong Te qualified
as a Filipino citizen under the provisions of section 4 of the
Philippine Bill of 1902.
The HRET itself found this fact of absolute verity in concluding
that the private respondent was a natural-born Filipino.
The petitioners' sole ground in disputing this fact is that
document presented to prove it were not in compliance with the
best the evidence rule. The petitioners allege that the private
respondent failed to present the original of the documentary
evidence, testimonial evidence and of the transcript of the
proceedings of the body which the aforesaid resolution of the
1971 Constitutional Convention was predicated.
On the contrary, the documents presented by the private
respondent fall under the exceptions to the best evidence rule.
It was established in the proceedings before the HRET that the
originals of the Committee Report No. 12, the minutes of the
plenary session of 1971 Constitutional Convention held on
November 28, 1972 cannot be found.
This was affirmed by Atty. Ricafrente, Assistant Secretary of
the 1971 Constitutional Convention; by Atty. Nolledo, Delegate
to the 1971 Constitutional Convention; and by Atty. Antonio
Santos, Chief Librarian of the U.P Law Center, in their
respective testimonies given before the HRET to the effect that
there is no governmental agency which is the official custodian
of the records of the 1971 Constitutional Convention. (TSN,
December 12, 1988, pp. 30-31; TSN, January 17, 1989, pp. 34-
35; TSN, February 1, 1989, p. 44; TSN, February 6, 1989, pp.
28-29)
The execution of the originals was established by Atty.
Ricafrente, who as the Assistant Secretary of the 1971
Constitutional Convention was the proper party to testify to
such execution. (TSN, December 12, 1989, pp. 11-24)
The inability to produce the originals before the HRET was also
testified to as aforestated by Atty. Ricafrente, Atty. Nolledo, and
Atty. Santos. In proving the inability to produce, the law does
not require the degree of proof to be of sufficient certainty; it is
enough that it be shown that after a bona fide diligent search,
the same cannot be found. (see Government of P.I. v.
Martinez, 44 Phil. 817 [1918])
Since the execution of the document and the inability to
produce were adequately established, the contents of the
questioned documents can be proven by a copy thereof or by
the recollection of witnesses.
Moreover, to erase all doubts as to the authenticity of the
documentary evidence cited in the Committee Report, the
former member of the 1971 Constitutional Convention, Atty.
Nolledo, when he was presented as a witness in the hearing of
the protest against the private respondent, categorically stated
that he saw the disputed documents presented during the
hearing of the election protest against the brother of the private
respondent. (TSN, February 1, 1989, pp. 8-9)
In his concurring opinion, Mr. Justice Sarmiento, a vice-
president of the Constitutional Convention, states that he was
presiding officer of the plenary session which deliberated on
the report on the election protest against Delegate Emil Ong.
He cites a long list of names of delegates present. Among them
are Mr. Chief Justice Fernan, and Mr. Justice Davide, Jr. The
petitioners could have presented any one of the long list of
delegates to refute Mr. Ong's having been declared a natural-
born citizen. They did not do so. Nor did they demur to the
contents of the documents presented by the private
respondent. They merely relied on the procedural objections
respecting the admissibility of the evidence presented.
The Constitutional Convention was the sole judge of the
qualifications of Emil Ong to be a member of that body. The
HRET by explicit mandate of the Constitution, is the sole
judge of the qualifications of Jose Ong, Jr. to be a member of
Congress. Both bodies deliberated at length on the
controversies over which they were sole judges. Decisions
were arrived at only after a full presentation of all relevant
factors which the parties wished to present. Even assuming
that we disagree with their conclusions, we cannot declare their
acts as committed with grave abuse of discretion. We have to
keep clear the line between error and grave abuse.
ON THE ISSUE OF RESIDENCE
The petitioners question the residence qualification of
respondent Ong.
The petitioners lose sight of the meaning of "residence" under
the Constitution. The term "residence" has been understood as
synonymous with domicile not only under the previous
Constitutions but also under the 1987 Constitution.
The deliberations of the Constitutional Commission reveal that
the meaning of residence vis-a-vis the qualifications of a
candidate for Congress continues to remain the same as that
of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember
that in the 1971 Constitutional Convention, there was
an attempt to require residence in the place not less
than one year immediately preceding the day of the
elections. So my question is: What is the
Committee's concept of residence of a candidate for
the legislature? Is it actual residence or is it the
concept of domicile or constructive residence?
 Mr. Davide: Madame President, in so far as the
regular members of the National Assembly are
concerned, the proposed section merely provides,
among others, and a resident thereof, that is, in the
district, for a period of not less than one year
preceding the day of the election. This was in effect
lifted from the 1973 Constitution, the interpretation
given to it was domicile. (Records of the 1987
Constitutional Convention, Vol. 11, July 22, 1986. p.
87)
x x x           x x x          x x x
Mrs. Rosario Braid: The next question is on Section
7, page 2. I think Commissioner Nolledo has raised
the same point that "resident" has been interpreted at
times as a matter of intention rather than actual
residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentlemen
consider at the proper time to go back to actual
residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some
difficulty especially considering that a provision in the
Constitution in the Article on Suffrage says that
Filipinos living abroad may vote as enacted by law.
So, we have to stick to the original concept that it
should be by domicile and not physical and actual
residence. (Records of the 1987 Constitutional
Commission, Vol. 11, July 22, 1986, p. 110)
The framers of the Constitution adhered to the earlier definition
given to the word "residence" which regarded it as having the
same meaning as domicile.
The term "domicile" denotes a fixed permanent residence to
which when absent for business or pleasure, one intends to
return. (Ong Huan Tin v. Republic, 19 SCRA 966 [1967]) The
absence of a person from said permanent residence, no matter
how long, notwithstanding, it continues to be the domicile of
that person. In other words, domicile is characterized
by animus revertendi (Ujano v. Republic, 17 SCRA 147 [1966])
The domicile of origin of the private respondent, which was the
domicile of his parents, is fixed at Laoang, Samar. Contrary to
the petitioners' imputation, Jose Ong, Jr. never abandoned said
domicile; it remained fixed therein even up to the present.
The private respondent, in the proceedings before the HRET
sufficiently established that after the fire that gutted their house
in 1961, another one was constructed.
Likewise, after the second fire which again destroyed their President, Corazon Aquino is also part Chinese. Verily, some
house in 1975, a sixteen-door apartment was built by their Filipinos of whom we are proud were ethnically more Chinese
family, two doors of which were reserved as their family than the private respondent.
residence. (TSN, Jose Ong, Jr., November 18,1988, p. 8)
Our citizens no doubt constitute the country's greatest wealth.
The petitioners' allegation that since the private respondent Citizenship is a special privilege which one must forever
owns no property in Laoang, Samar, he cannot, therefore, be a cherish.
resident of said place is misplaced.
However, in order to truly revere this treasure of citizenship, we
The properties owned by the Ong Family are in the name of the do not, on the basis of too harsh an interpretation, have to
private respondent's parents. Upon the demise of his parents, unreasonably deny it to those who qualify to share in its
necessarily, the private respondent, pursuant to the laws of richness.
succession, became the co-owner thereof (as a co- heir),
notwithstanding the fact that these were still in the names of his
Under the overly strict jurisprudence surrounding our
parents.
antiquated naturalization laws only the very affluent backed by
influential patrons, who were willing to suffer the indignities of a
Even assuming that the private respondent does not own any lengthy, sometimes humiliating, and often corrupt process of
property in Samar, the Supreme Court in the case of De los clearances by minor bureaucrats and whose lawyers knew how
Reyes v. Solidum (61 Phil. 893 [1935]) held that it is not to overcome so many technical traps of the judicial process
required that a person should have a house in order to were able to acquire citizenship. It is time for the naturalization
establish his residence and domicile. It is enough that he law to be revised to enable a more positive, affirmative, and
should live in the municipality or in a rented house or in that of meaningful examination of an applicant's suitability to be a
a friend or relative. (Emphasis supplied) Filipino. A more humane, more indubitable and less technical
approach to citizenship problems is essential.
To require the private respondent to own property in order to
be eligible to run for Congress would be tantamount to a WHEREFORE, the petitions are hereby DISMISSED. The
property qualification. The Constitution only requires that the questioned decision of the House of Representatives Electoral
candidate meet the age, citizenship, voting and residence Tribunal is AFFIRMED. Respondent Jose Ong, Jr. is declared
requirements. Nowhere is it required by the Constitution that a natural-born citizen of the Philippines and a resident of
the candidate should also own property in order to be qualified Laoang, Northern Samar.
to run. (see Maquera v. Borra, 122 Phil. 412 [1965])
SO ORDERED.
It has also been settled that absence from residence to pursue
studies or practice a profession or registration as a voter other
Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ., concur.
than in the place where one is elected, does not constitute loss
Fernan, C.J., Melencio-Herrera, Cruz, Feliciano and Gancayco,
of residence. (Faypon v. Quirino, 96 Phil. 294 [1954])
JJ., took no part.
As previously stated, the private respondent stayed in Manila
for the purpose of finishing his studies and later to practice his
profession, There was no intention to abandon the residence in
Laoang, Samar. On the contrary, the periodical journeys made
to his home province reveal that he always had
Separate Opinions
the animus revertendi.
The Philippines is made up not only of a single race; it has,
rather, undergone an interracial evolution. Throughout our
history, there has been a continuing influx of Malays, Chinese,
Americans, Japanese, Spaniards and other nationalities. This
PADILLA, J., dissenting:
racial diversity gives strength to our country.
Many great Filipinos have not been whole-blooded nationals, if I dissent.
there is such a person, for there is none. To mention a few, the
great Jose Rizal was part Chinese, the late Chief Justice
These separate petitions for certiorari and mandamus seek to
Claudio Teehankee was part Chinese, and of course our own
annul the decision* of respondent House of Representatives
Electoral Tribunal (hereinafter referred to as the tribunal) dated
6 November 1989 which declared private respondent Jose L.
Ong, a natural-born citizen of the Philippines and a legal
resident of Laoang, Northern Samar, and the resolution of the
tribunal dated 22 February 1990 denying petitioners' motions
for reconsideration.
In G.R. Nos. 92191-92, petitioner Co also prays that the Court
declare private respondent Ong not qualified to be a Member of
the House of Representatives and to declare him (petitioner
Co) who allegedly obtained the highest number of votes among
the qualified candidates, the duly elected representative of the
second legislative district of Northern Samar. In G.R. Nos.
92202-03, petitioner Balanquit prays that the Court declare
private respondent Ong and Co (petitioner in G.R. Nos. 92191-
92) not qualified for membership in the House of
Representatives and to proclaim him (Balanguit) as the duly
elected representative of said district.
Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private
respondent Jose Ong Chuan, Jr. were among the candidates
for the position of Representative or Congressman for the
second district of Northern Samar during the 11 May 1987
congressional elections. Private respondent was proclaimed
duly-elected on 18 May 1987 with a plurality of some sixteen
thousand (16,000) votes over petitioner Co who obtained the
next highest number of votes.
Petitioners Co and Balanquit then filed separate election
protests against private respondent with the tribunal, docketed
as HRET Cases Nos. 13 and 15 respectively. Both protests
raised almost the same issues and were thus considered and
decided jointly by the tribunal.
The issues raised before the tribunal were the following:
1. Whether or not protestee (meaning, Ong) is a
natural-born citizen of the Philippines in
contemplation of Section 6, Article VI of the 1987
Constitution in relation to Sections 2 and 1(3), Article
IV thereof; and
2. Whether or not protestee was a resident of
Laoang, Northern Samar, in contemplation of Section
6, Article VI of the same Constitution, for a period of
not less than one year immediately preceding the
congressional elections of May 1987.
The respondent tribunal in its decision dated 6 November 1989
held that respondent Jose L. Ong is a natural-born citizen of
the Philippines and was a legal resident of Laoang, Northern
Samar for the required period prior to the May 1987
congressional elections. He was, therefore, declared qualified
to continue in office as Member of the House of
Representatives, Congress of the Philippines, representing the
second legislative district of Northern Samar.
The factual antecedents taken from the consolidated
proceedings in the tribunal are the following:
1. The Protestee (Ong) was born on June 19, 1948
to the legal spouses Ong Chuan also known as Jose
Ong Chuan and Agrifina E. Lao. His place of birth is
Laoang which is now one of the municipalities
comprising the province of Northern Samar (Republic
Act No. 6132 approved on August 24, 1970 and the
Ordinance appended to the 1987 Constitution).
2. On the other hand, Jose Ong Chuan was born in
China and arrived in Manila on December 16, 1915.
(Exhibit zz) Subsequently thereafter, he took up
residence in Laoang, Samar.
3. On February 4, 1932, he married Agrifina E. Lao.
Their wedding was celebrated according to the rites
and practices of the Roman Catholic Church in the
Municipality of Laoang (Exh. E).
4. At the time of her marriage to Jose Ong Chuan,
Agrifina E. Lao was a natural-born Filipino citizen,
both her parents at the time of her birth being Filipino
citizens. (Exhibits E & I)
5. On February 15, 1954, Jose Ong Chuan, desiring
to acquire Philippine citizenship, filed his petition for
naturalization with the Court of First Instance of
Samar, pursuant to Commonwealth Act No. 473,
otherwise known as the Revised Naturalization Law.
6. On April 28, 1955, the Court of First Instance of
Samar rendered a decision approving the application
of Jose Ong Chuan for naturalization and declaring
said petitioner a Filipino citizen "with all the rights
and privileges and duties, liabilities and obligations
inherent to Filipino citizens. (Exh. E)
7. On May 15, 1957, the same Court issued an
order:
(1) declaring the decision of this Court of
April 28, 1955 final and executory;
(2) directing the clerk of court to issue the
corresponding Certificate of Naturalization
in favor of the applicant Ong Chuan who
prefers to take his oath and register his
name as Jose Ong Chuan. Petitioner may
take his oath as Filipino citizen under Ms
new christian name, Jose Ong Chuan.
(Exh. F)
8. On the same day, Jose Ong Chuan having taken
the corresponding oath of allegiance to the
Constitution and the Government of the Philippines
as prescribed by Section 12 of Commonwealth Act
No. 473, was issued the corresponding Certificate of
Naturalization. (Exh. G)
9. On November 10, 1970, Emil L. Ong, a full-brother
of the protestee and a son born on July 25, 1937 at
Laoang, Samar to the spouses Jose Ong Chuan and
Agrifina E. Lao, was elected delegate from Northern
Samar to the 1971 Constitutional Convention.
10. By protestee's own -testimony, it was established
that he had attended grade school in Laoang.
Thereafter, he went to Manila where he finished his
secondary as well as his college education. While
later employed in Manila, protestee however went
home to Laoang whenever he had the opportunity to
do so, which invariably would be as frequent as twice
to four times a year.
11. Protestee also showed that being a native and
legal resident of Laoang, he registered as a voter
therein and correspondingly voted in said
municipality in the 1984 and 1986 elections.
12. Again in December 1986, during the general
registration of all voters in the country, Protestee re-
registered as a voter in Precinct No. 4 of Barangay
Tumaguinting in Laoang. In his voter's affidavit,
Protestee indicated that he is a resident of Laoang
since birth. (Exh. 7)1
Petitioners' motions for reconsideration of the tribunal's
decision having been denied, petitioners filed the present
petitions.
In their comments, the respondents first raise the issue of the
Court's jurisdiction to review the decision of the House
Electoral Tribunal, considering the constitutional provision
vesting upon said tribunal the power and authority to act as
the sole judge of all contests relating to the qualifications of the
Members of the House of Representatives.2
On the question of this Court's jurisdiction over the present
controversy, I believe that, contrary to the respondents'
contentions, the Court has the jurisdiction and competence to
review the questioned decision of the tribunal and to decide the
present controversy.
Article VIII, Section I of the 1987 Constitution provides that:
Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights
which are legally demandable and enforceable, and
to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government.
The Constitution, it is true, constitutes the tribunal as the sole
judge of all contests relating to the election, returns, and
qualifications of Members of the House of Representatives. But
as early as 1938, it was held in Morrero vs. Bocar,3 construing
Section 4, Article VI of the 1935 Constitution which provided
that ". . . The Electoral Commission shall be the sole judge of
all contests relating to the election, returns and qualifications of
the Members of the National Assembly," that:
The judgment rendered by the (electoral)
commission in the exercise of such an acknowledged
power is beyond judicial interference, except, in any
event, "upon a clear showing of such arbitrary and
improvident use of the power as will constitute a
denial of due process of law." (Barry vs. US ex rel.
Cunningham, 279 US 597; 73 Law. ed., 867; Angara
vs. Electoral Commission, 35 Off. Gaz., 23.)
And then under the afore-quoted provisions of Article VIII,
Section 1 of the 1987 Constitution, this Court is duty-bound to
determine whether or not, in an actual controversy, there has
been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government.
The present controversy, it will be observed, involves more
than perceived irregularities in the conduct of a congressional
election or a disputed appreciation of ballots, in which cases, it
may be contended with great legal force and persuasion that
the decision of the electoral tribunal should be final and
conclusive, for it is, by constitutional directive, made the sole
judge of contests relating to such matters. The present
controversy, however, involves no less than a determination of
whether the qualifications for membership in the House of
Representatives, as prescribed by the Constitution, have been
met. Indeed, this Court would be unforgivably remiss in the
performance of its duties, as mandated by the Constitution,
were it to allow a person, not a natural-born Filipino citizen, to
continue to sit as a Member of the House of Representatives,
solely because the House Electoral Tribunal has declared him
to be so. In such a case, the tribunal would have acted with
grave abuse of discretion amounting to lack or excess of
jurisdiction as to require the exercise by this Court of its power
of judicial review.
Besides, the citizenship and residence qualifications of private accordance with paragraph (3), Section I hereof shall
respondent for the office of Member of the House of be deemed natural-born citizen,
Representatives, are here controverted by petitioners who, at
the same time, claim that they are entitled to the office illegally
Article IV, Section 1, paragraph (3) of the 1987 Constitution
held by private respondent. From this additional direction,
provides that:
where one asserts an earnestly perceived right that in turn is
vigorously resisted by another, there is clearly a justiciable
controversy proper for this Court to consider and decide. Section 1. The following are citizens of the
Philippines:
Nor can it be said that the Court, in reviewing the decision of
the tribunal, asserts supremacy over it in contravention of the x x x           x x x          x x x
time-honored principle of constitutional separation of powers.
The Court in this instance simply performs a function entrusted
(3) Those born before January 17, 1973, of Filipino
and assigned to it by the Constitution of interpreting, in a
mothers, who elect Philippine citizenship upon
justiciable controversy, the pertinent provisions of the
reaching the age of majority.
Constitution with finality.
The Court in this case is faced with the duty of interpreting the
It is the role of the Judiciary to refine and, when
above-quoted constitutional provisions. The first sentence of
necessary, correct constitutional (and/or statutory)
Section 2 of Article IV states the basic definition of a natural-
interpretation, in the context of the interactions of the
born Filipino citizen. Does private respondent fall within said
three branches of the government, almost always in
definition?
situations where some agency of the State has
engaged in action that stems ultimately from some
legitimate area of governmental power (the Supreme To the respondent tribunal,
Court in Modern Role, C.B. Sevisher, 1958, p. 36).4
Protestee may even be declared a natural-born
Moreover, it is decidedly a matter of great public interest and citizen of the Philippines under the first sentence of
concern to determine whether or not private respondent is Sec. 2 of Article IV of the 1987 Constitution because
qualified to hold so important and high a public office which is he did not have "to perform any act to acquire or
specifically reserved by the Constitution only to natural-born perfect his Philippine citizenship." It bears to repeat
Filipino citizens. that on 15 May 1957, while still a minor of 9 years he
already became a Filipino citizen by declaration of
law. Since his mother was a natural-born citizen at
After a careful consideration of the issues and the evidence, it
the time of her marriage, protestee had an inchoate
is my considered opinion that the respondent tribunal
right to Philippine citizenship at the moment of his
committed grave abuse of discretion amounting to lack or
birth and, consequently the declaration by virtue of
excess of jurisdiction in rendering its questioned decision and
Sec. 15 of CA 473 that he was a Filipino citizen
resolution, for reasons to be presently stated.
retroacted to the moment of his birth without his
having to perform any act to acquire or perfect such
The Constitution5 requires that a Member of the House of Philippine citizenship.6
Representatives must be a natural-born citizen of the
Philippines and, on the day of the election, is at least twenty-
I regret that I am neither convinced nor persuaded by such
five (25) years of age, able to read and write, and, except the
kaleidoscopic ratiocination. The records show that private
party-list representatives, a registered voter in the district in
respondent was born on 19 June 1948 to the spouses Jose
which he shall be elected, and a resident thereof for a period of
Ong Chuan, a Chinese citizen, and Agrifina E. Lao, a natural-
not less than one (1) year immediately preceding the day of the
born Filipino citizen, in Laoang, Northern Samar. In other
election.
words, at birth, private respondent was a Chinese citizen (not a
natural-born Filipino citizen) because his father was then a
Article IV, Section 2 of the 1987 Constitution defines natural- Chinese citizen (not a naturalized Filipino citizen). Under the
born (Filipino) citizens as: 1935 Constitution which was enforced at the time of private
respondent's birth on 19 June 1948, only those whose fathers
were citizens of the Philippines were considered Filipino
Natural-born citizens are those who are citizens of
citizens. Those whose mothers were citizens of the Philippines
the Philippines from birth without having to perform
had to elect Philippine citizenship upon reaching the age of
any act to acquire or perfect their Philippine
majority, in order to be considered Filipino citizens.7
citizenship. Those who elect Philippine citizenship in
Following the basic definition in the 1987 Constitution of a
natural-born citizen, in relation to the 1935 Constitution, private
respondent is not a natural-born Filipino citizen, having been
born a Chinese citizen by virtue of the Chinese citizenship of
his father at the time of his birth, although from birth, private
respondent had the right to elect Philippine citizenship, the
citizenship of his mother, but only upon his reaching the age of
majority.
While under Section 15 of the Revised Naturalization Law (C.A.
473) minor children of a naturalized citizen (father), who were
born in the Philippines prior to the naturalization of the
parent automatically become Filipino citizens,8 this does not
alter the fact that private respondent was not born to a Filipino
father, and the operation of Section 15 of CA 473 did not confer
upon him the status of a natural-born citizen merely because
he did not have to perform any act to acquire or perfect his
status as a Filipino citizen.
But even assuming arguendo that private respondent could be
considered a natural-born citizen by virtue of the operation of
CA 473, petitioners however contend that the naturalization of
private respondent's father was invalid and void from the
beginning, and, therefore, private respondent is not even a
Filipino citizen.
Respondent tribunal in its questioned decision ruled that only a
direct proceeding for nullity of naturalization as a Filipino citizen
is permissible, and, therefore, a collateral attack on Ong
Chuan's naturalization is barred in an electoral contest which
does not even involve him (Ong Chuan).
Private respondent, for his part, avers in his Comment that the
challenge against Ong Chuan's naturalization must emanate
from the Government and must be made in a
proper/appropriate and direct proceeding for de-naturalization
directed against the proper party, who in such case is Ong
Chuan, and also during his lifetime.
A judgment in a naturalization proceeding is not, however,
afforded the character of impregnability under the principle
of res judicata.9 Section 18 of CA 473 provides that a certificate
of naturalization may be cancelled upon motion made in the
proper proceeding by the Solicitor General or his
representative, or by the proper provincial fiscal.
In Republic vs. Go Bon Lee,10 this Court held that:
An alien friend is offered under certain conditions the
privilege of citizenship. He may accept the offer and
become a citizen upon compliance with the
prescribed conditions, but not otherwise. His claim is
of favor, not of right. He can only become a citizen
upon and after a strict compliance with the acts of
Congress. An applicant for this high privilege is
bound, therefore, to conform to the terms upon which
alone the right he seeks can be conferred. It is his
province, and he is bound, to see that the
jurisdictional facts upon which the grant is predicated
actually exist and if they do not he takes nothing by
this paper grant.
x x x           x x x          x x x
Congress having limited this privilege to a specified
class of persons, no other person is entitled to such
privilege, nor to a certificate purporting to grant it,
and any such certificate issued to a person not so
entitled to receive it must be treated as a mere
nullity, which confers no legal rights as against the
government, from which it has been obtained without
warrant of law.
"Naturalization is not a right, but a privilege of the most
discriminating as well as delicate and exacting nature, affecting
public interest of the highest order, and which may be enjoyed
only under the precise conditions prescribed by law therefor."11
Considering the legal implications of the allegation made by the
petitioners that the naturalization of private respondent's father
Ong Chuan, is a nullity, the Court should make a ruling on the
validity of said naturalization proceedings. This course of action
becomes all the more inevitable and justified in the present
case where, to repeat for stress, it is claimed that a foreigner is
holding a public office.12
It cannot be overlooked, in this connection, that the citizenship
of private respondent is derived from his father. If his father's
Filipino citizenship is void from the beginning, then there is
nothing from which private respondent can derive his own
claimed Filipino citizenship. For a spring cannot rise higher
than its source. And to allow private respondent to avail of the
privileges of Filipino citizenship by virtue of a void naturalization
of his father, would constitute or at least sanction a continuing
offense against the Constitution.
The records show that private respondent's father, Jose Ong
Chuan, took the oath of allegiance to the Constitution and the
Philippine Government, as prescribed by Section 12 of CA 473
on the same day (15 May 1957) that the CFI issued its order
directing the clerk of court to issue the corresponding
Certificate of Naturalization and for the applicant to take the
oath of allegiance.
However, it is settled that an order granting a petition to take
the requisite oath of allegiance of one who has previously
obtained a decision favorable to his application for
naturalization, is appealable. It is, therefore, improper and
illegal to authorize the taking of said oath upon the issuance of
said order and before the expiration of the reglementary period
to perfect any appeal from said order.13
In Cua Sun Ke vs. Republic,14 this Court held that:
Administration of the oath of allegiance on the same
day as issuance of order granting citizenship is
irregular and makes the proceedings so taken null
and void. (Republic vs. Guy, 115 SCRA 244
[1982]; citing the case of Ong So vs. Republic of the
Philippines, 121 Phil. 1381).
It would appear from the foregoing discussion that the
naturalization of Jose Ong Chuan (private respondent's father)
was null and void. It follows that the private respondent did not
acquire any legal rights from the void naturalization of his father
and thus he cannot himself be considered a Filipino citizen,
more so, a natural-born Filipino citizen.
But assuming that the CFI order of 15 May 1957 directing the
clerk of court to issue the certificate of naturalization to Ong
Chuan and for the latter to take the oath of allegiance was final
and not appealable, the resulting naturalization of Ong Chuan
effected, as previously stated, an automatic naturalization of
private respondent, then a minor, as a Filipino citizen on 15
May 1957, but not his acquisition or perfection of the status of a
natural-born Filipino citizen.
Let us now look into the question of whether or not private
respondent acquired the status of a natural-born Filipino citizen
by reason of the undisputed fact that his mother was a natural-
born Filipino citizen. This in turn leads us to an examination of
the second sentence in Article IV, Section 2 of the 1987
Constitution. It expands, in a manner of speaking, in relation to
Section 1, paragraph (3) of the same Article IV, the status of a
natural-born Filipino citizen to those who elect Philippine
citizenship upon reaching the age of majority. The right or
privilege of election is available, however, only to those born to
Filipino mothers under the 1935 Constitution, and before the
1973 Constitution took effect on 17 January 1973.
The petitioners contend that the respondent tribunal acted in
excess of its jurisdiction or gravely abused its discretion as to
exceed its jurisdiction in "distorting" the conferment by the 1987
Constitution of the status of "natural-born" Filipino citizen on
those who elect Philippine citizenship — all in its strained effort,
according to petitioners, to support private respondent's
qualification to be a Member of the House of Representatives.15
Petitioners argue that the clear, unambiguous wording of
section 1(3) of Article IV of the 1987 Constitution contemplates
that only the legitimate children of Filipino mothers with alien
father, born before 17 January 1973 and who would reach the
age of majority (and thus elect Philippine citizenship) after the
effectivity of the 1987 Constitution are entitled to the status of
natural-born Filipino citizen.16
The respondent tribunal in resolving the issue of the
constitutional provisions' interpretation, found reason to refer to
the interpellations made during the 1986 Constitutional
Commission. It said:
That the benevolent provisions of Sections 2 and
1(3) of Article IV of the 1987 Constitution was (sic)
intended by its (sic) framers to be endowed, without
distinction, to all Filipinos by election pursuant to the
1935 Constitution is more than persuasively
established by the extensive interpellations and
debate on the issue as borne by the official records
of the 1986 Constitutional Commission.17
Although I find the distinction as to when election of Philippine
citizenship was made irrelevant to the case at bar, since private
respondent, contrary to the conclusion of the respondent
tribunal, did not elect Philippine citizenship, as provided by law,
I still consider it necessary to settle the controversy regarding
the meaning of the constitutional provisions in question.
I agree with respondent tribunal that the debates,
interpellations petitions and opinions expressed in the 1986
Constitutional Commission may be resorted to in ascertaining
the meaning of somewhat elusive and even nebulous
constitutional provisions. Thus —
The ascertainment of that intent is but in keeping
with the fundamental principle of constitutional
construction that the intent of the framers of the
organic law and of the people adopting it should be
given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the
people in the adoption of the Constitution. It may also
be safely assumed that the people in ratifying the
constitution were guided mainly by the explanation
offered by the framers.18
The deliberations of the 1986 Constitutional Commission
relevant to Section 2, Article IV in relation to Section 1(3) of the
same Article, appear to negate the contention of petitioners
that only those born to Filipino mothers before 17 January 1973
and who would elect Philippine citizenship after the effectivity
of the 1987 Constitution, are to be considered natural-born
Filipino citizens.
During the free-wheeling discussions on citizenship,
Commissioner Treñas specifically asked Commissioner Bernas
regarding the provisions in question, thus:
MR. TRENAS: The Committee on Citizenship, Bill of
Rights, Political Rights and Obligations and Human
Rights has more or less decided to extend the
interpretation of who is a natural-born Filipino citizen
as provided in Section 4 of the 1973 Constitution, by
adding that persons who have elected Philippine
citizenship under the 1935 Constitution shall be
considered natural-born. Am I right, Mr. Presiding
Officer?
FR BERNAS: Yes.
MR. TRENAS: And does the Commissioner think that
tills addition to Section 4 of the 1973 Constitution
would be contrary to the spirit of that section?
FR BERNAS: Yes, we are quite aware that it is
contrary to the letter really. But whether it is contrary
to the spirit is something that has been debated
before and is being debated even now. We will recall
that during the 1971 Constitutional Convention, the
status of natural-born citizenship of one of the
delegates, Mr. Ang, was challenged precisely
because he was a citizen by election. Finally, the
1971 Constitutional Convention considered him a
natural-born citizen, one of the requirements to be a
Member of the 1971 Constitutional Convention. The
reason behind that decision was that a person under
his circumstances already had the inchoate right to
be a citizen by the fact that the mother was a Filipino.
And as a matter of fact, the 1971 Constitutional
Convention formalized that recognition by adopting
paragraph 2 of Section 1 of the 1971 Constitution.
So, the entire purpose of this proviso is simply to
perhaps remedy whatever injustice there may be so
that these people born before January 17, 1973 who
are not naturalized and people who are not natural
born but who are in the same situation as we are
considered natural-born citizens. So, the intention of
the Committee in proposing this is to equalize their
status.19
When asked to clarify the provision on natural-born citizens,
Commissioner Bernas replied to Commissioner Azcuna thus:
MR. AZCUNA: With respect to the proviso in Section
4, would this refer only to those who elect Philippine
citizenship after the effectivity of the 1973
Constitution or would it also cover those who elected
it under the 1935 Constitution?
FR BERNAS: It would apply to anybody who elected
Philippine citizenship by virtue of the provision of the
1935 Constitution, whether the election was done
before or after 17 January 1973.20
And during the period of amendments. Commissioner Rodrigo
explained the purpose of what now appear as Section 2 and
Section 1, paragraph (3) of Article IV of the 1987 Constitution,
thus:
MR. RODRIGO: The purpose of that proviso is to
remedy an inequitable situation. Between 1935 and
1973, when we were under the 1935 Constitution,
those born of Filipino fathers but alien mothers were
natural-born Filipinos. However, those born of
Filipino mothers but alien fathers would have to elect
Philippine citizenship upon reaching the age of
majority; and, if they do elect, they become Filipino
citizens, yet, but not natural-born Filipino citizens.
The 1973 Constitution equalized the status of those born of
Filipino mothers and those born of Filipino fathers. So that from
January 17, 1973 when the 1973 Constitution took effect, those
born of Filipino mothers but of alien fathers are natural-born
Filipino citizens. Also, those who are born of Filipino fathers
and alien mothers are natural-born Filipino citizens.
If the 1973 Constitution equalized the status of a child born of a
Filipino mother and that born of a Filipino father, why do we not
give a chance to a child born before January 17, 1973, if and
when he elects Philippine citizenship, to be in the same status
as one born of a Filipino father — namely, natural-born citizen.
Another thing I stated is equalizing the status of a father and a
mother vis-a-vis the child. I would like to state also that we
showed equalize the status of a child born of a Filipino mother
the day before January 17, 1973 and a child born also of a
Filipino mother on January 17 or 24 hours later. A child born of
a Filipino mother but an alien father one day before January
17, 1973 is a Filipino citizen, if he elects Philippine citizenship,
but he is not a natural-born Filipino citizen. However, the other
child who luckily was born 24 hours later — maybe because of
parto laborioso — is a natural-born Filipino citizen.21
It would appear then that the intent of the framers of the 1987
Constitution in defining a natural-born Filipino citizen was to
equalize the position of Filipino fathers and Filipino mothers as
to their children becoming natural-born Filipino citizens. In
other words, after 17 January 1973, effectivity date of the 1973
Constitution, all those born of Filipino fathers (with alien
spouse) or Filipino mothers (with alien spouse) are natural-born
Filipino citizens. But those born to Filipino mothers prior to 17
January 1973 must still elect Philippine citizenship upon their
reaching the age of majority, in order to be deemed natural-
born Filipino citizens. The election, which is related to the
attainment of the age of majority, may be made before or after
17 January 1973. This interpretation appears to be in
consonance with the fundamental purpose of the Constitution
which is to protect and enhance the people's individual
interests,22 and to foster equality among them.
Since private respondent was born on 19 June 1948 (or before
17 January 1973) to a Filipino mother (with an alien spouse)
and should have elected Philippine citizenship on 19 June
1969 (when he attained the age of majority), or soon thereafter,
in order to have the status of a natural-born Filipino citizen
under the 1987 Constitution, the vital question is: did private
respondent really elect Philippine citizenship? As earlier stated,
I believe that private respondent did not elect Philippine
citizenship, contrary to the ruling of the respondent tribunal.
The respondent tribunal, on this issue, ruled as follows:
Where a person born to a Filipino mother and an
alien father had exercised the right of suffrage when
he came of age, the same constitutes a positive act
of election of Philippine citizenship. (Florencio vs.
Mallare) [sic] The acts of the petitioner in registering
as a voter, participating in elections and campaigning
for certain candidates were held by the Supreme
Court as sufficient to show his preference for
Philippine citizenship. Accordingly, even without
complying with the formal requisites for election, the
petitioner's Filipino citizenship was judicially upheld.23
I find the above ruling of the respondent tribunal to be patently
erroneous and clearly untenable, as to amount to grave abuse
of discretion. For it is settled doctrine in this jurisdiction that
election of Philippine citizenship must be made in accordance
with Commonwealth Act 625. Sections 1 and 224 of the Act
mandate that the option to elect Philippine citizenship must be
effected expressly not impliedly.
The respondent tribunal cites In re: Florencio Mallare25 which
held that Esteban Mallare's exercise of the right of suffrage
when he came of age, constituted a positive act of election of
Philippine citizenship.
Mallare, cited by respondent tribunal as authority for the
doctrine of implied election of Philippine citizenship, is not
applicable to the case at bar. The respondent tribunal failed to
consider that Esteban Mallare reached the age of majority in
1924, or seventeen (17) years before CA 625 was approved
and, more importantly, eleven (11) years before the 1935
Constitution (which granted the right of election) took effect.
To quote Mr. Justice Fernandez in Mallare:
Indeed, it would be unfair to expect the presentation
of a formal deed to that effect considering that prior
to the enactment of Commonwealth Act 625 on June
7, 1941, no particular proceeding was required to
exercise the option to elect Philippine citizenship,
granted to the proper party by Section 1, subsection
4, Article IV of the 1935 Philippine Constitution.26
Moreover, Esteban Mallare was held to be a Filipino citizen number of votes in the election, he was obviously not the
because he was an illegitimate (natural) child of a Filipino choice of the people of Baguio City for mayor of that City.
mother and thus followed her citizenship. I therefore agree with
the petitioners' submission that, in citing the Mallare case, the
A petition alleging that the candidate-elect is not qualified for
respondent tribunal had engaged in an obiter dictum.
the office is, in effect, a quo warranto proceeding even if it is
labelled an election protest.28 It is a proceeding to unseat the
The respondent tribunal also erred in ruling that by operation of ineligible person from office but not necessarily to install the
CA 473, the Revised Naturalization Law, providing for private protestant in his place.29
respondent's acquisition of Filipino citizenship by reason of the
naturalization of his father, the law itself had already elected
The general rule is that the fact that a plurality or a majority of
Philippine citizenship for him. For, assuming arguendo that the
the votes are cast for an ineligible candidate in an election
naturalization of private respondent's father was valid, and that
does not entitle the candidate receiving the next highest
there was no further need for private respondent to elect
number of votes to be declared elected. In such a case, the
Philippine citizenship (as he had automatically become a
electors have failed to make a choice and the election is a
Filipino citizen) yet, this did not mean that the operation of the
nullity.30
Revised Naturalization Law amounted to an election by him of
Philippine citizenship as contemplated by the Constitution.
Besides, election of Philippine citizenship derived from one's Sound policy dictates that public elective offices are
Filipino mother, is made upon reaching the age of majority, not filled by those who have the highest number of votes
during one's minority. 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
There is no doubt in my mind, therefore, that private
no measure can be declared carried unless he or it
respondent did not elect Philippine citizenship upon reaching
receives a majority or plurality of the legal votes cast
the age of majority in 1969 or within a reasonable time
in the election. (20 Corpus Juris 2nd, S 243, p. 676).
thereafter as required by CA 625. Consequently, he cannot be
deemed a natural-born Filipino citizen under Sections 2 and
1(3), Article IV of the 1987 Constitution. As early as 1912, this Court has already declared
that the candidate who lost in an election cannot be
proclaimed the winner in the event that the candidate
Based on all the foregoing considerations and premises, I am
who won is found ineligible for the office to which he
constrained to state that private respondent is not a natural-
was elected. This was the ruling in Topacio v.
born citizen of the Philippines in contemplation of Section 6,
Paredes (23 Phil. 238) —
Article VI of the 1987 Constitution in relation to Sections 2 and
1(3), Article IV thereof, and hence is disqualified or ineligible to
be a Member of the House of Representatives. Again, the effect of a decision that a
candidate is not entitled to the office
because of fraud or irregularities in the
At this point, I find it no longer necessary to rule on the issue of
election is quite different from that
required residence, inasmuch as the Constitution requires that
produced by declaring a person ineligible
a Member of the House of Representatives must be both a
to hold such an office. . . . If it be found
natural-born Filipino citizen and a resident for at least one (1)
that the successful candidate (according to
year in the district in which he shall be elected.
the board of canvassers) obtained a
plurality in an illegal manner, and that
The next question that comes up is whether or not either of the another candidate was the real victor, the
petitioners can replace private respondent as the former must retire in favor of the latter. In
Representative of the second legislative district of Northern the other case, there is not, strictly
Samar in the House of Representatives. speaking, a contest, as the wreath of
victory cannot be transferred from an
ineligible to any other candidate when the
I agree with respondent tribunal that neither of the petitioners
sole question is the eligibility of the one
may take the place of private respondent in the House of
receiving a plurality of the legally cast
Representatives representing the second district of Northern
ballots. . . .31
Samar. The ruling of this Court in Ramon L. Labo, Jr. vs. The
Commission on Elections (COMELEC) EN BANC and Luis L.
Lardizabal,27 is controlling. There we held that Luis L. The recognition of Emil L. Ong by the 1971
Lardizabal, who filed the quo warranto petition, could not Constitutional Convention as a natural-born Filipino
replace Ramon L. Labo, Jr. as mayor of Baguio City for the citizen, in relation to the present case.
simple reason that as he obtained only the second highest
Private respondent, as previously stated, is a full brother of a) the 1971 Constitutional Convention decision in the and held to be citizens of the Philippine Islands."
Emil L. Ong, both of them having the same father and mother. Emil L. Ong case involved the 1935 Constitution; the (Section 4, Philippine Bill of 1902).36
present case, on the other hand involves the
1987 Constitution:
Private respondent, relying on a resolution of the 1971 The "test" then, following the premises of the 1971
Constitutional Convention32 to the effect that Emil L. Ong was a Constitutional Convention, is whether or not Ong Te private
natural-born Filipino citizen, alleged before the House Electoral b) the 1935 Constitution contained no specific respondent's and Emil L. Ong's grandfather was "an inhabitant
Tribunal that, by analogy, he is himself a natural-born Filipino definition of a "natural-born citizen" of the Philippines; of the Philippines who continued to reside therein and was a
citizen. This submission, while initially impressive, is, as will the 1987 Constitution contains a precise and specific Spanish subject on April 11, 1899." If he met these
now be shown, flawed and not supported by the evidence. Not definition of a "natural-born citizen" of the Philippines requirements of the Philippine Bill of 1902, then, Ong Te was a
even the majority decision of the electoral tribunal adopted the in Sec. 2, Art. IV thereof and private respondent does Filipino citizen; otherwise, he was not a Filipino citizen.
same as the basis of its decision in favor of private respondent. not qualify under such definition in the 1987
The tribunal, in reference to this submission, said: Constitution;
Petitioners (protestants) submitted and offered in evidence
before the House Electoral Tribunal exhibits W, X, Y, Z ,AA,
Be that as it may and in the light of the Tribunal's c) the decision of the 1971 Constitutional Convention BB, CC, DD and EE which are copies of entries in the "Registro
disposition of protestee's citizenship based on an in the case of Emil L. Ong was a decision of de Chinos" from years 1896 to 1897 which show that Ong Te
entirely different set of circumstances, apart from the a political body, not a court of law. And, even if we was not listed as an inhabitant of Samar where he is claimed to
indisputable fact that the matters attempted to be have to take such a decision as a decision of have been a resident. Petitioners (protestants) also submitted
brought in issue in connection therewith are too far a quasi-judicial body (i.e., a political body exercising and offered in evidence before the House Electoral Tribunal
removed in point of time and relevance from the quasi-judicial functions), said decision in the Emil L. exhibit V, a certification of the Chief of the Archives Division,
decisive events relied upon by the Tribunal, we view Ong case can not have the category or character Records and Management and Archives Office, stating that the
these two issues as being already inconsequential.33 of res judicata in the present judicial controversy, name of Ong Te does not appear in the "Registro Central de
because between the two (2) cases, there is no Chinos" for the province of Samar for 1895. These exhibits
identity of parties (one involves Emil L. Ong, while prove or at least, as petitioners validly argue, tend to prove that
The electoral tribunal (majority) instead chose to predicate its
the other involves private respondent) and, more Ong Te was NOT a resident of Samar close to 11 April 1899
decision on the alleged citizenship by naturalization of private
importantly, there is no identity of causes of action and, therefore, could not continue residing in Samar,
respondent's father (Ong Chuan) and on the alleged election of
because the first involves the 1935 Constitution while Philippines after 11 April 1899, contrary to private respondent's
Philippine citizenship by private respondent.
the second involves the 1987 Constitution. pretense. In the face of these proofs or evidence, private
respondent FAILED TO PRESENT ANY REBUTTAL OR
Emil L. Ong, was elected delegate to the 1971 Constitutional COUNTERVAILING EVIDENCE, except the decision of the
But even laying aside the foregoing reasons based on
Convention. Electoral protests, numbers EP-07 and EP-08, 1971 Constitutional Convention in the case of Emil L. Ong,
procedural rules and logic, the evidence submitted before the
were filed by Leonardo D. Galing and Gualberto D. Luto previously discussed.
electoral tribunal and, therefore, also before this Court, does
against Emil L. Ong, contesting his citizenship qualification.
not support the allegations made by Emil L. Ong before the
The Committee on Election Protests Credentials of the 1971
1971 Constitutional Convention and inferentially adopted by It is not surprising then that, as previously noted, the majority
Contitution Convention heard the protests and submitted to the
private respondent in the present controversy. This leads us to decision of the House Electoral Tribunal skirted any reliance on
Convention a report dated 4 September 1972, the dispositive
an interesting inquiry and finding. the alleged ipso facto Filipino citizenship of Ong Te under the
portion of which stated:
Philippine Bill of 1902. It is equally not surprising that Ong
Chuan, the son of Ong Te and father or private respondent, did
The 1971 Constitutional Convention in holding that Emil L. Ong
It appearing that protestee's grandfather was himself not even attempt to claim Filipino citizenship by reason of Ong
was a "natural-born citizen" of the Philippines under the 1935
a Filipino citizen under the provisions of the Te's alleged Filipino citizenship under the Philippine Bill of 1902
Constitution laid stress on the "fact" — and this appears crucial
Philippine Bill of 1902 and the Treaty of Paris of but instead applied for Philippine citizenship through
and central to its decision — that Emil L. Ong's
December 10, 1898, thus conferring upon protestee's naturalization.
grandfather, Ong Te became a Filipino citizen under the
own father, Ong Chuan, Philippine citizenship at
Philippine Bill of 1902 and, therefore, his descendants like Emil
birth, the conclusion is inescapable that protestee
L. Ong (and therefore, also private respondent) became Nor can it be contended by the private respondent that the
himself is a natural-born citizen, and is therefore
natural-born Filipinos. The 1971 Constitutional Convention House Electoral Tribunal should no longer have reviewed the
qualified to hold the office of delegate to the
said: factual question or issue of Ong Te's citizenship in the light of
Constitutional Convention.34
the resolution of the 1971 Constitutional Convention finding him
(Ong Te to have become a Filipino citizen under the Philippine
Ong Te Emil Ong's grandfather, was a Spanish
On 28 November 1972, during a plenary session of the 1971 Bill of 1902. The tribunal had to look into the question because
subject residing in the Philippines on April 11, 1899
Constitutional Convention, the election protests filed against the finding that Ong Te had become a Filipino citizen under the
and was therefore one of the many who became ipso
Emil L. Ong were dismissed, following the report of the Philippine Bill of 1902 was the central core of said 1971
facto citizens of the Philippines under the provisions
Committee on Election Protests and Credentials.35 resolution but as held in Lee vs. Commissioners of
of the Philippine Bill of 1902. Said law expressly
Immigration:37
declared that all inhabitants of the Philippine Islands
It is evident, up to this point, that the action of the 1971 who continued to reside therein and who were
Constitutional Convention in the case of Emil L. Ong is, to say Spanish subjects on April 11, 1899 as well as their . . . Everytime the citizenship of a person is material
the least, inconclusive to the case at bar, because — children born subsequent thereto, "shall be deemed or indispensable in a judicial or administrative case,
whatever the corresponding Court or administrative
 authority decides therein as to such citizenship is
generally not considered as res adjudicata, hence it
has to be threshed out again and again as the
occasion may demand.
Which finally brings us to the resolution of this Court in Emil L.
Ong vs. COMELEC, et al., G.R. No. 67201, 8 May
1984.1âwphi1 In connection with said resolution, it is
contended by private respondent that the resolution of the 1971
Constitutional Convention in the Emil L. Ong case was
elevated to this Court on a question involving Emil L. Ong's
disqualification to run for membership in the Batasang
Pambansa and that, according to private respondent, this Court
allowed the use of the Committee Report to the 1971
Constitutional Convention.
To fully appreciate the implications of such contention, it would
help to look into the circumstances of the case brought before
this Court in relation to the Court's action or disposition. Emil L.
Ong and Edilberto Del Valle were both candidates for the
Batasang Pambansa in the 14 May 1984 election. Valle filed a
petition for disqualification with the Commission on Election on
29 March 1984 docketed as SPC No. 84-69 contending that
Ong is not a natural-born citizen. Ong filed a motion to dismiss
the petition on the ground that the judgment of the 1971
Constitutional Convention on his status as a natural-born
citizen of the Philippines bars the petitioner from raising the
Identical issue before the COMELEC. (G.R. No. 67201, Rollo,
p. 94) The motion was denied by the COMELEC, thus,
prompting Emil L. Ong to file with this Court a petition
for certiorari, prohibition and mandamus with preliminary
injunction against the COMELEC, docketed as G.R. No. 67201.
In a resolution dated 8 May 1984, this Court resolved to issue a
writ of preliminary injunction enjoining respondent COMELEC
from holding any further hearing on the disqualification case
entitled "Edilberto Del Valle vs. Emil Ong (SPC No. 84-69)
except to dismiss the same. (G.R. Nos. 92202-03, Rollo, p.
335)
This Court, in explaining its action, held that:
Acting on the prayer of the petitioner for the issuance
of a Writ of Preliminary Injunction, and considering
that at the hearing this morning, it was brought out
that the 1971 Constitutional Convention, at its
session of November 28, 1972, after considering the
Report of its Committee on Election Protests and
Credentials, found that the protest questioning the
citizenship of the protestee (the petitioner herein)
was groundless and dismissed Election Protests
Nos. EP 07 and EP 08 filed against said petitioner (p.
237, Rollo), the authenticity of the Minutes of said
session as well as of the said Committee's Report
having been duly admitted in evidence without
objection and bears out, for now, without need for a
full hearing, that petitioner is a natural-born citizen,
the Court Resolved to ISSUE, effective immediately,
a Writ of Preliminary Injunction enjoining respondent
COMELEC from holding any further hearing on the
disqualification case entitled Edilberto Del Valle vs.
Emil Ong (SPC No. 84-69) scheduled at 3:00 o'clock
this afternoon, or any other day, except to dismiss
the same. This is without prejudice to any
appropriate action that private respondent may wish
to take after the elections. (emphasis supplied)
It is thus clear that the resolution of this Court in G.R. No.
67201 was rendered without the benefit of a hearing on the
merits either by the Court or by the COMELEC and merely on
the basis of a Committee's Report to the 1971 Constitutional
Convention, and that this Court (and this is quite significant) did
not foreclose any appropriate action that Del Valle (therein
petitioner) may wish to take after the elections.
It is thus abundantly clear also that to this Court, the resolution
of the 1971 Constitutional Convention recognizing Emil L. Ong
as a natural-born citizen under the 1935 Constitution did not
foreclose a future or further proceeding in regard to the same
question and that, consequently, there is no vested right of
Emil L. Ong to such recognition. How much more when the
Constitution involved is not the 1935 Constitution but the 1987
Constitution whose provisions were never considered in all
such proceedings because the 1987 Constitution was still
inexistent.
A final word. It is regrettable that one (as private respondent)
who unquestionably obtained the highest number of votes for
the elective position of Representative (Congressman) to the
House of Representatives for the second district of Northern
Samar, would have had to cease in office by virtue of this
Court's decision, if the full membership of the Court had
participated in this case, with the result that the legislative
district would cease to have, in the interim, a representative in
the House of Representatives. But the fundamental
consideration in cases of this nature is the Constitution and
only the Constitution. It has to be assumed, therefore, that
when the electorate in the second legislative district of Northern
Samar cast the majority of their votes for private
respondent, they assumed and believed that he was fully
eligible and qualified for the office because he is a natural-born
Filipino citizen. That erroneous assumption and belief can not
prevail over, but must yield to the majesty of the Constitution.
This is a sad day for the Constitution. As I see it, the
Constitution mandates that members of the House of
Representatives should be "natural-born citizens of the
Philippines". The voting majority of the present Court says,
"Filipino citizens will do." This is bad enough. What is worse is,
the same voting majority, in effect, says, "even aliens will do as
well."
WHEREFORE, my vote is clear: to declare private respondent
Jose L. Ong Chua, Jr., as he clearly is, NOT a natural-born
citizen of the Philippines and therefore NOT QUALIFIED to be
a Member of the House of Representatives, Congress of the
Philippines.
Narvasa, J., Paras, J. and Regalado, J., dissenting.
SARMIENTO, J., concurring:
I concur with the majority.
(1)
I wish to point out first that the question of citizenship is a
question of fact, and as a rule, the Supreme Court leaves facts
to the tribunal that determined them. I am quite agreed that the
Electoral Tribunal of the House of Representatives, as the "sole
judge" of all contests relating to the membership in the House,
as follows:
Sec. 17. The Senate and the House of
Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of
their respective Members. Each Electoral Tribunal
shall be composed of nine Members, three of whom
shall be Justices of the Supreme Court to be
designated by the Chief Justice, and the remaining
six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be
chosen on the basis of proportional representation
from the political parties and the parties or
organizations registered under the party-list system
represented therein. The senior Justice in the
Electoral Tribunal shall be its Chairman.1
is the best judge of facts and this Court can not substitute its
judgment because it thinks it knows better.
In the case of Aratuc v. Commission on Elections,2 it was held
that this Court can not review the errors of the Commission on
Elections (then the "sole judge" of all election contests) — in
the sense of reviewing facts and unearthing mistakes — and
that this Court's jurisdiction is to see simply whether or not it is
guilty of a grave abuse of discretion. It is true that the new
Constitution has conferred expanded powers on the Court,3 but
as the Charter states, our authority is "to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."4 It is not to review facts.
"Grave abuse of discretion" has been defined as whimsical
exercise of power amounting to excess of jurisdiction, or
otherwise, to denial of due process of law.5
I find none of that here.
As the majority indicates, Jose Ong's citizenship is a matter of
opinion with which men may differ, but certainly, it is quite
another thing to say that the respondent Tribunal has gravely
abused its discretion because the majority has begged to differ.
It does not form part of the duty of the Court to remedy all
imagined wrongs committed by the Government.
The respondent Tribunal has spoken. According to the
Tribunal, Jose Ong is a Filipino citizen and consequently, is
possessed of the qualifications to be a member of the House.
As the sole judge, precisely, of this question, the Court can not
be more popish than the pope.
(2)
I can not say, in the second place, that the Decision in question
stands exactly on indefensible grounds. It is to be noted that
Jose Ong had relied on the Report dated September 4, 1972 of
the 1971 Constitutional Convention Committee6 on Election
Protests and Credentials, in which the Committees upheld the
citizenship, and sustained the qualification to sit as Delegate, of
Emil Ong, Jose Ong's full blood brother. According to the
Report, Ong Te the Ongs' grandfather, was already a Filipino
citizen having complied with the requirements on Filipinization
by existing laws for which his successors need not have
elected Filipino citizenship. I quote:
x x x           x x x          x x x
There is merit in protestee's claim. There can hardly
be any doubt that Ong Te protestees's grandfather,
was a Spanish subject residing in the Philippines on
April 11, 1899, and was therefore one of the many
who became ipso facto citizens of the Philippines
under the provisions of the Philippine Bill of 1902.
Said law expressly declared that all inhabitants of the
Philippine Islands who continued to reside therein
and who were Spanish subjects on April 11, 1899, as
well as their children born subsequent thereto, "shall
be deemed and held to be citizens of the Philippine
Islands" (Sec. 4, Philippine Bill of 1902). Excepted
from the operation of this rule were Spanish subjects
who shall have elected to preserve their allegiance to
the Crown of Spain in accordance with the Treaty of
Paris of December 10, 1898. But under the Treaty of
Paris, only Spanish subjects who were natives of
Peninsular Spain had the privilege of preserving their
Spanish nationality.7
x x x           x x x          x x x It is to be noted that the Report was unanimously approved by
the Committee, and on November 28, 1972, approved without
any objection by the Convention in plenary session.10
x x x           x x x          x x x
I am not, of course, to be mistaken as acting as mouthpiece of
As earlier noted, protestee's grandfather established
Emil Ong, but in all candor, I speak from experience, because
residence in the Philippines in 1895, as shown by
when the Convention approved the Report in question, I was
the Registro Central de Chinos. He was also issued
one of its vice-presidents and the presiding officer.
a certificate of registration. He established a
business here, and later acquired real property.
Although he went back to China for brief visits, he It is to be noted finally, that the matter was elevated to this
invariably came back. He even brought his eldest Court (on a question involving Emil Ong's qualification to sit as
son, Ong Chuan, to live in the Philippines when the member of the defunct Batasang Pambansa)11 in which this
latter was only 10 years old. And Ong Chuan was Court allowed the use of the Committee Report.
admitted into the country because, as duly noted on
his landing certificate, his father, Ong Te had been
Faced with such positive acts of the Government, I submit that
duly enrolled under CR 16009-36755 — i.e., as a
the question of the Ong's citizenship is a settled matter. Let it
permanent resident. Indeed, even when Ong Te
rest.
went back to China in the 1920's for another visit, he
left his son, Ong Chuan, who was then still a minor,
in the Philippines — obviously because he had long It is true that Electoral Protest Nos. EP-07 and EP-08 of the
considered the Philippines his home. The domicile Convention as well as G.R. No. 67201 of this Court, involved
he established in 1895 is presumed to have Emil Ong and not his brother; I submit, however, that what is
continued up to, and beyond, April 11, 1899, for, as sauce for the goose is sauce for the gander.
already adverted to, a domicile once acquired is not
lost until a new one is gained. The only conclusion
I also submit that the fundamental question is whether or not
then can thus be drawn is that Ong Te was duly
we will overturn the unanimous ruling of 267 delegates, indeed,
domiciled in the Philippines as of April 11, 1899,
also of this Court.
within the meaning of par. 4, Art. 17, of the Civil
Code of 1889 — and was, consequently, a Spanish
subject, he qualified as a Filipino citizen under the
provisions of Section 4 of the Philippine Bill of 1902.8
Footnotes
It is true that Ong Chuan, the Ong brothers' father,
subsequently sought naturalization in the belief that he was, all
along, a Chinese citizen, but as the Report held: Sarmiento J.: concurring
Protestants, however, make capital of the fact that
1
 CONST., art. VI, sec. 17.
both Ong Te and his son, Ong Chuan (protestee's
father), appear to have been registered as Chinese  Nos. L-49705-09; 49717-21, February 8, 1979, 88
2
citizens even long after the turn of the century. SCRA 251.
Worse, Ong Chuan himself believed the was alien, to
the extent of having to seek admission as a Pilipino
3
 CONST., supra, art. VIII, sec. 1.
citizen through naturalization proceedings. The point,
to our mind, is neither crucial nor substantial. Ong's
status as a citizen is a matter of law, rather than of 4
 Supra.
personal belief. It is what the law provides, and not
what one thinks his status to be, which determines
5
 Robles v. House of Representatives Electoral
whether one is a citizen of a particular state or not.
Tribunal, G.R. No. 86647, February 5, 1990, 181
Mere mistake or misapprehension as to one's
SCRA 780.
citizenship, it has been held, is not a sufficient cause
or reason for forfeiture of Philippine citizenship; it
does not even constitute estoppel (Palanca vs. 6
 Galing v. Ong, Elec. Protest No. EP-07 (Const.
Republic, 80 Phil. 578, 584). Too, estoppel applies Con), September 4, 1972; Luto v. Ong, Elec. Protest,
only to questions of fact and not of law (Tanada v. No. EP-08 (Const. Con) September 4, 1972; Liwag,
Cuenco, L-10520, Feb. 28, 1957).9 Juan, Chmn.
 7
 Rept., Comm. on Election Protests andDelegate
Credentials
Caliwara Delegate Lim R.
(Const. Con.), September 4, 1972, 3.
Delegate Garcia J. Delegate Rodriguez B.
8
 Id., 4-5. Delegate Camello Delegate Macaraya
Delegate Gaudiel Delegate Rodriguez P.
9
 Id., 5-6. Delegate Campomanes Delegate Macias
Delegate Gonzaga Delegate Romualdo
10
 The Delegates present were as follows:
Delegate Canilao Delegate Madrillejos
Delegate Guevara Delegate Sabio

Abalos E. Delegate Carrillo

Delegate Bacaltos Delegate Momenta
Delegate Guirnalda Delegate Salazar A.

Ablan Delegate Castillo P.

Delegate Badelles Delegate Mapupuno
Delegate Guzman Delegate Sangkula

Abueg Delegate BaguilatDelegate Castro Delegate Marino Delegate Hilado Delegate Santillan

Delegate Catan Delegate Mendiola

Delegate Hocson Delegate Santos O.
Abundo Delegate Baradi

Delegate Ceniza Delegate MijaresDelegate Ignacio Delegate Sarmiento

Adil Delegate Barbers

Delegate Clements Delegate Misa Delegate Kintanar J. Delegate Serapio

Alanis Delegate Bautista
Delegate Corpus Delegate MontejoDelegate Lachica Delegate Serrano
Alano Delegate Belo
Delegate Montinola
Delegate Lagamon Delegate Sinco
Amante Delegate Blancia
Delegate Davide Delegate OlmedoDelegate Tabuena Delegate Britanico
Anni Delegate Bongbong
Delegate De Guzman Delegate Ong Delegate Tanopo Delegate Cabal
Apalisok Delegate Borja
Delegate De la Serna Delegate OzamizDelegate Tingson Delegate Calaycay

Arabejo Delegate Borra Delegate Encarnacion Delegate PanotesDelegate Tolentino Delegate Calderon J.

Borromeo Delegate Laggui Delegate Espiritu A.C. Delegate Pepito Delegate Capulong

Buen Delegate Lazo Delegate Estaniel Delegate Pimentel A.

Delegate Tupaz A. Delegate Castilo N.

Bugnosen Delegate
Delegate Ledesma C. Estrella Delegate Quibranza
Delegate Valdez Delegate Catubig

Delegate Exmundo Delegate Quintero

Delegate Velasco Delegate Cea
Cainglet Delegate Legaspi

Delegate Flores A. Delegate QuirinoDelegate Verzola Delegate Claver

Calderon C. Delegate Leviste C.
Delegate Flores T. Delegate Reyes G. Delegate Concordia
Calderon P. Delegate Lim P.
Vinzons Delegate Cruz Delegate Astilla Delegate Hortinela
Delegate Nuguid Delegate Sambolawan

Viterbo Delegate De la Cruz

Delegate Azcuna Delegate Imperial Delegate Sanchez

Yap Delegate De la Paz

Delegate Balane Delegate Jamir Delegate Opinion Delegate Santelices

Yulo A. Delegate De Lima

Delegate Balindong Delegate Johnston
Delegate Ordonez Delegate Santiago

Yulo J.G. Delegate De los Reyes

Delegate Barrera Delegate JuabanDelegate Ortega Delegate Santos E.

Zafra Delegate De Pio Delegate Bengzon Delegate KintanarDelegate

S. Ortiz P. Delegate Sarraga

dent Delegate Deavit Delegate Ledesma F. Delegate Laurel Delegate Ortiz R. Delegate Sarte

Abad Delegate Esparrago

Delegate Ledesma O. Delegate RaquizaDelegate Pacificador Delegate Sawit

Abalos F. Delegate Espina Delegate Restor Delegate Padiernos Delegate Seares

Abubakar Delegate EspirituDelegate

R. Lobregat Delegate Reyes B.
Delegate Padua C. Delegate Sevilla

Aguilar Delegate FajardoDelegate Lobrin Delegate Reyes C.

Delegate Padua M. Delegate Siguion Reyna

Albano Delegate Falgui Delegate Locsin J. Delegate Reyes J.

Delegate Pangandaman Delegate Sinsuat

Aldaba Delegate Fernan Delegate Locsin M. Delegate Reyes P.

Delegate Parades Delegate Sison A.

Alfelor Delegate Fernandez

Delegate Madarang Delegate Robles Delegate Sison E.

Alonto Delegate GanganDelegate Martinez Delegate Roco Delegate Pimentel V. Delegate Sorongan

Amatong Delegate Garcia Delegate

A. Mastura Delegate RosalesDelegate Pingoy Delegate Suarez

Ampatuan Delegate Garcia Delegate

F. Matas Delegate Ruben Delegate Ponchinlan Delegate Syjuco

Angara Delegate Garda L.P.

Delegate Mendoza Delegate SagadalDelegate Primicias Delegate Teodoro

Angala Delegate Garcia Delegate

L.M. Molina Delegate Sagmit Delegate Purisma Delegate Teves

Antonio Delegate GordonDelegate Mantilla Delegate Saguin Delegate Puruganan Delegate Tirador

Araneta T. Delegate Gunigundo

Delegate Mordeno Delegate SalazarDelegate
R. Puzon Delegate Tirol

Aruego Delegate Hermoso Delegate Salva Delegate Quintos Delegate Tocao

 (4) Those whose mothers are -citizens of SECTION 1. The option to elect Philippine
the Philippines and upon reaching the age citizenship in accordance with subsection
Ramos Delegate Trillana of majority, elect Philippine citizenship. (4), section 1, Article IV, of the Constitution
shall be expressed in a statement to be
signed and sworn to by the party
Valera Delegate Tupaz D. 8
 Burca vs. Republic, G.R. No. L-24252, January 30,
concerned before any officer authorized to
1967, 19 SCRA 186.
administer oaths, and shall be filed with
Veloso D. Delegate Yaneza the nearest civil registry. The said party
9
 Sia Reyes vs. Deportation Board, No. L-31763, May shall accompany the aforesaid statement
30, 1983, 122 SCRA 478. with the oath of allegiance to the
Veloso I. Delegate Yaranon
Constitution and the Government of the
Philippines.
 G.R. No. L-11499, April 29, 1961, 1 SCRA citing
10
Villadelgado Delegate Yniguez
U.S. vs. Sponrer, 175 Fed. 440.
"SECTION 2. If the party concerned is
Yancha Delegate Yuzon absent from the Philippines, he may make
 Cuaski Tan Si vs. Republic, G.R. No. L-18006,
11
the statement herein authorized before any
October 31, 1962, 6 SCRA 545. officer of the Government of the United
Delegate Zosa
States authorized to administer oaths, and
 Labo vs. COMELEC, G.R. No. 86564, August 1,
12 he shall forward such statement together
1989, 176 SCRA 1. with his oath of allegiance, to the Civil
 Ong v. Commission on Elections, G.R. No. 67201,
11
Registry of Manila."
May 8, 1984.
 Tan vs. Republic, G.R. No. L-28706, January 30,
13

1971, 37 SCRA 353.  Administrative Case No. 533, September 12, 1974,
25
Padilla J.: dissenting
59 SCRA 45.

* With the concurrence of Congressmen Mario L.

14
 G.R. No. L-29674, April 8, 1988, 159 SCRA 477.
 In Re: Florencio Mallare, supra, p. 52.
26
Tagarao, David A. Ponce De Leon, Simeon E.
Garcia, Juanito G. Camasura, Jr. and Jose E. 15
 G.R. Nos. 92191-92, Rollo, p. 7.
Calingasan; Justices Ameurfina A. Melencio-Herrera,  G.R. No. 86564, August 1, 1989, 176 SCRA 1.
27

Isagani A. Cruz, Florentino P. Feliciano and

Congressman Antonio H. Cerilles dissented.
16
 G.R. Nos. 92202-03, Rollo, p. 23.
 Luison vs. Garcia, No. L-10981, April 25, 1958,
28

103 Phil. 453.

1
 G.R. Nos. 92191-92, Rollo, pp. 21-23.
17
 G.R. Nos. 92191-92, Rollo, p. 30.

 Topacio vs. Paredes, No. 8069, October 7, 1912,

29
2
 Section 17, Article VI, 1987 Constitution.  Nitafan vs. Commissioner of Internal Revenue,
18
23 Phil. 238.
G.R. No. L-78780, July 23, 1987, 152 SCRA 284.
3
 No. 45352, October 31, 1938, 66 Phil. 429.  Llamoso vs. Ferrer, et al. No. L-2470. August 30,
30
 Record of the Constitutional Commission, Vol. I, p.
19
1949, 84 Phil. 490.
189.
 Chartered Bank Employees Association vs. Ople,
4

G.R. No. 44717, August 28, 1985, 138 SCRA 273.  Geronimo vs. Ramos, G.R. No. 60504, May 14,
31

Article VI, Section 6.  Record of the Constitutional Commission, Vol. I, p.

20
1985,136 SCRA 435.
228.
6
 G.R. No. 92191-92, Rollo, pp. 41-42.  Two (2) of the members of said 1971 Constitutional
32
 Record of the Constitutional Commission, Vol. I, p.
21
Convention are now distinguished members of the
356. Court, namely, Sarmiento and Davide, JJ. and they
7
 Article III, Section 1 (3) and (4),1935 Constitution
are part of the voting majority in this case.
provide:
 Acar vs. Rosal, G.R. No. L-21707, March 18, 1967,
22

19 SCRA 625.  G.R. Nos. 92191-92, Rollo, pp. 42-43.

33
Section 1. The following are citizens of the
Philippines. 23
 G.R. No. 92191-92, Rollo, p. 40.  G.R. Nos. 92202-03, Rollo, p. 196.
34

(3) Those whose fathers are citizens of the

Philippines.
24
 Sections 1 and 2, C.A. 625 state:  G.R. Nos. 92202-03, Rollo, p. 211.
35
  G.R. Nos. 92202-03, Rollo, p. 193.
36

 G.R. No. L-23446, 20 December 1971, 42 SCRA

37

561.
G.R. No. L-20169             February 26, 1965
IN THE MATTER OF THE PETITION OF YU KIAN CHIE TO
BE ADMITTED A CITIZEN OF THE PHILIPPINES.
YU KIAN CHIE, petitioner-appellee,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellant.
R. L. Rabayon for petitioner-appellee.
Office of the Solicitor General for oppositor-appellant.
PAREDES, J.:
Yu Kian Chie, a citizen of the Republic of China, presented with
the CFI of Manila, on February 4, 1960, a petition for
naturalization, containing all the jurisdictional requirements, the
pertinent portion of which is hereby reproduced:
THIRD.— My trade or profession is that of an
employee in which I have been engaged since 1957
and from which I derive an average annual income of
P3,000.00.
Attached to the petition were affidavits of Marcelo de la Cruz
and Federico G. Santos, who acted as character witnesses;
Declaration of Intention and Certificate of Arrival. After the trial,
the Office of the Solicitor General on October 4, 1961, filed an
"Opposition" claiming that the two witnesses of petitioner are
not credible and did not testify as to petitioner's good reputation
and moral irreproachability.
On December 18, 1961, the lower court rendered a decision,
the dispositive portion of which states:
xxx     xxx     xxx
In view of the foregoing, this Court finds that petitioner has all
the qualifications required by, and none of the disqualifications
specified in, Commonwealth Act No. 473, as amended by
Commonwealth Act No. 535, and has complied with all the
requisites established therein..
WHEREFORE, the said petition of Yu Kian Chie to
be admitted a citizen of the Philippines is hereby
granted, and let the proper naturalization certificate
be issued in his favor and the registration thereof in
the proper civil registry, this decision to become
executory in accordance with the provisions of
Section 1 of Republic Act No. 53.
After the Solicitor General has perfected his appeal from the petitioner's true income is only P150.00, any additional thereof
above judgment, but during the pendency of the approval of the being purely contingent, accidental or incidental, which amount
record on appeal, petitioner-appellee herein presented with the does not come up to the category of a lucrative income,
lower court a "Motion to Reopen Case to Enable Petitioner to considering that the petitioner is now a married
present Additional Documentary Proof of his Income," claiming man.1äwphï1.ñët
that his income has risen from P3,000.00 in 1957, to P5,100.00
in 1960 and P5,200.00 in 1961. The increase in the income
Furthermore, We are not convinced that petitioner's employee
had been due to a little increase in the salary, plus, the
could be that generous to him. It will be noted that the Republic
bonuses of P100.00 in 1960 and P1,000.00 in 1961. The
Hardware did not present its books to show that it was making
motion was heard, and on July 18, 1962, the court a
a good profit, as to enable it to give such big allowance and
quo rendered a "Supplemental Decision." Both the original and
bonus to appellee, and considering that the raise in salary was
the supplemental decisions are the subjects of the instant
given during the pendency of his naturalization case.
appeal, the Solicitor General urging a reversal thereof on a
singular assignment of error, allegedly committed by the
court a quo, to wit: in not finding that the petitioner failed to But even granting, for purpose of argument, that petitioner
prove that he has a lucrative income. started to receive a fixed salary of P400.00 a month in 1962,
still this amount cannot be considered lucrative in the face of
the fact that in 1961 he got married, as pointed out in his
There seem to be no question regarding the fact that there has
Income Tax Return for 1961 (Exh. P-4).
been an increase in the income of petitioner, from the time he
presented his petition, to the rendition of the Supplemental
Decision. In 1961 also, there has been a change in the status PREMISES CONSIDERED, the decision appealed from,
of petitioner, from single to married. Even granting, for should be, as it is hereby reversed and another entered
purposes of argument, that the figures appearing in the denying Yu Kian Chie's petition for Philippine citizenship. Costs
documentary evidence submitted are correct, although We against petitioner-appellee.
entertain serious doubts regarding their veracity — a point
which We will discuss later — the overriding issue would be,
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L.,
the same lucrative income. As a starter on this point, We quote
Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., and
a portion of the argument of counsel for petitioner-appellee,
Zaldivar, JJ., concur.
which states:
... . He received a uniform living allowance of
P150.00 a month, aside from the yearly bonus which
the company gives him, depending of course, on the
profit which said company realizes every year from
its business. (p. 3, brief.)
And the living allowance is given regularly from the
time the petitioner started working with the Republic
Hardware in 1959 up to the present. In other words,
it (living allowance) has assumed its regularity as a
part of the salary in consideration of the services
rendered by the petitioner. ...
The above-quoted portion of the arguments of petitioner's
counsel is a clear indication that as far as salary is concerned,
his client, appellee herein, was only receiving P150.00, the rest
being in the form of allowances and bonuses which may or
may not be given to appellee. In other words, petitioner's
employer was not duty bound to give such allowances and
bonuses, but must spring from purely voluntary actuations,
conditioned to the circumstance that the employer was making
profits. When there are no profits, the allowances and the
bonuses are not given. It is not, therefore, safe to consider that
the income of petitioner is P3,000.00 yearly, or more. Insofar
as the evidence is concerned, it becomes indisputable that
G.R. No. L-25441            October 26, 1968
HON. MARTINIANO P. VIVO, as (Acting) Commissioner of
Immigration, petitioner,
vs.
HON. GAUDENCIO CLORIBEL, as Judge of the Court of
First Instance of Manila, Branch VI, CHUA PIC LUAN, UY
KOC SIONG and UY TIAN SIONG, respondents.
Assistant Solicitor General Isidro C. Borromeo and Solicitor
General P. Pardo for petitioner.
Jose S. Zafra and Tomas B. Torrefranca for respondents.
REYES, J.B.L., J.:
This is another case involving Chinese nationals who came to
the Philippines allegedly for a visit but thereafter refuse to
leave. And one where the improvident issuance of an ex-
parte preliminary injunction, followed by judicial inaction,
actually extended the stay of aliens beyond the period
authorized by law, and even beyond what the visitors had
asked for.
The private respondents herein, Chua Pic Luan, a Chinese
mother, and her minor children, Uy Koc Siong and Uy Tian
Siong, arrived from Hongkong and were admitted in the
Philippines as temporary visitors on 16 October 1960, with an
initial authorized stay of three (3) months. The husband and
father of these aliens, Uy Pick Tuy had applied for
naturalization, and the Court of First Instance of Manila (in its
Civil Case No. 43163) granted his petition therefor only on 11
April 1961. Meanwhile, said temporary visitors petitioned for an
indefinite extension of their stay. Acting thereon, and
purportedly in accordance with a Cabinet Resolution on 29
February 1956 granting them concurrent jurisdiction to act on
petitions for extension of stay of temporary visitors, the
Secretary of Foreign Affairs, Felixberto Serrano, on 16 May
1961, authorized the change in category from temporary
visitors to that of special non-immigrants under Section 47(a)
(2) of the Immigration Law for a period of stay extending up to
11 April 1963; and the Secretary of Justice, Alejo Mabanag, on
8 June 1961, approved the extension thus authorized, subject
to the condition that Chua Pic Luan, Uy Koc Siong, and Uy
Tian Siong shall secure reentry permits to Hongkong valid at
least two months over and beyond their extended stay, and
that they shall maintain their cash bonds filed with the Bureau
of Immigration and to pay the corresponding fees. But the
herein petitioner, Commissioner of Immigration, refused to
recognize the said extension further than 16 June 1962, and
denied acceptance of payment of the extension fees.
Thereupon, the respondents, on 4 June 1962, requested the
Office of the President of the Philippines to extend their stay up
to 11 April 1963 in order to coincide with their hope — for and
forthcoming oath-taking of allegiance of Uy Pick Tuy. The
request was referred to the Immigration Commissioner. The
latter, on 11 June 1962, informed the respondents, through
counsel, that the new Secretary of Justice, Jose Diokno, had
ruled in January, 1962 that the Cabinet Resolution of 29
February 1956 had no force and effect, and forthwith denied
the request for extension of stay of the respondents and
advised them to leave the country voluntarily not later than 16
June 1962; otherwise, they would be proceeded against, in
accordance with law.
The respondents did not leave the country on the date
specified, but instead filed a petition for mandamus with
injunction, docketed as Civil Case No. 50671, in the Court of
First Instance of Manila, to restrain the Commissioner of
Immigration from issuing a warrant for their arrest and from
confiscating their bond for their temporary stay and to order the
Commissioner to implement the extension previously
authorized and approved by Secretaries Serrano and
Mabanag.
His Honor, Judge Federico Alikpala, to whose sala the case
was assigned, denied the prayer for preliminary injunction for
lack of a prima facie showing and set the case for hearing on
13 July 1962. On the said date, which was pre-selected with
the conformity of petitioner's counsel, said counsel did not
appear but another lawyer appeared to ask for postponement.
Judge Alikpala denied the postponement and dismissed the
case without prejudice.
On 19 July 1962, the herein respondents re-filed the same
petition with the same court, which was docketed as Civil Case
No. 50993. The petition alleged three grounds therefor,
namely: (1) the extension of the stay of the petitioners (herein
respondents) up to 11 April 1963 was authorized and approved
by the Secretaries of Foreign Affairs and of Justice; (2) they
were due for eventual conversion into Filipino citizens by virtue
of the granting of Uy Pick Tuy's petition for naturalization, which
had not been appealed, and he was due to take his oath of
allegiance on 11 April 1963; and (3) their departure from the
Philippines would work great injury and injustice to themselves.
As before, the petition prayed for a preliminary injunction. This
time, the case was assigned to the sala of herein co-
respondent Judge Gaudencio Cloribel.
On 21 July 1962, respondent judge, ex-parte and without
hearing, issued an order granting preliminary injunction, and,
on a bond of P3,000.00, issued the writ on 24 July 1962.
On 3 August 1962, the Immigration Commissioner filed his
answer (as respondent therein) stating, in defense, inter alia,
that the visitors' authorized stay expired on 16 June 1962; that
their change in category from temporary visitors to special non-
immigrants and the extension of their stay up to 11 April 1963
by the Secretaries of Foreign Affairs and of Justice was invalid,
as subsequently ruled by their successors in office, and that it
is the Commissioner of Immigration who is vested by law with
power to grant extensions of stay; that the petition filed was not
the proper remedy; that the Solicitor General will oppose the
oath-taking of Uy Pick Tuy and that, even if Tuy will become a
Filipino citizen, his wife would not automatically become a
Filipino citizen, as she has yet to show that she, herself, can be
lawfully naturalized.
Three (3) years passed without the case having been heard.
Then, on 14 September 1965, the Commissioner filed a motion
to dismiss the case for the unreasonable length of time that the
petitioners had failed to prosecute their case, and that even the
final relief that they sought, which was to implement the
extension up to 11 April 1963, had already expired. But, on
opposition of herein respondents, the court, on 26 October
1965, denied the motion to dismiss for being "not well taken."
On 9 December 1965, the Immigration Commissioner filed with
the Supreme Court the present original action of certiorari and
prohibition with preliminary injunction, contesting the
respondent court's order of 21 July 1962 granting preliminary
injunction ex-parte, the writ of preliminary injunction of 24 July
1962, and the order of 26 October 1965 denying the motion to
dismiss.
This Court required the respondents to answer, and on 16
December 1966, on motion of the petitioning Commissioner, it
restrained the private respondents from representing
themselves to be Filipinos and from exercising any of the rights
and privileges of Filipino citizens, until further orders from the
Court.
The conclusions derivable from the foregoing chain of
uncontested facts are: that herein private respondents secured
admission to the Philippines as temporary visitors by falsely
pretending to come for a visit but, actually, with the intent to
stay permanently; that, knowing that their authorized stay
would expire on 16 June 1962, private respondents filed their
petition in court for injunction, then delayed its adjudication, the
better to prolong their stay, and that private respondents have
thus succeeded in prolonging their stay in the country even
beyond the date that they had originally sought and asked for,
which was 11 April 1963, upon the respondent court's
compounded abuse of discretion, inaction and excess of
jurisdiction.
Which was, in law, the expiry date of the respondents' stay: the
16th of June 1962, as fixed by the Immigration Commissioner,
or 11 April 1963, as authorized and approved by the Serrano-
Mabanag indorsements? This question, as well as the question
of whether temporary visitors may change their status to
special non-immigrants without first departing from the country,
were specifically answered by this Court in Lim Chiok, et al.,
vs. Vivo, L-20513, 26 December 1963, in the following manner:
... The so-called Cabinet Resolution of February 29,
1956 did not specifically authorize the Secretaries of
Foreign Affairs and of Justice to extend the stay of
temporary visitors. It could not legally do so because
under the express provisions of the Immigration Law,
it is the Commissioner of Immigration who is vested
with the power and authority to grant such
extensions. And, the Cabinet has no power to amend
or modify the law. We so declared in Ang Liong vs.
Commissioner of Immigration (51 O.G. 2893)1 when
we said: "The Secretary of Foreign Affairs is not
authorized to admit into the Philippines aliens for
temporary stay, or extend the period authorized by
the Commissioner of Immigration for their stay in the
Philippines."
Neither can the two Secretaries authorize the change
of status from temporary visitors to special non-
immigrants. The law and our decisions on the matter
are clear on this point: temporary visitors could not
have their status changed to special non-immigrants
without first departing from the country. (citing
authorities)
As early as 1956, in fact, this Court had already ruled that the
period of stay of alien temporary visitors could not be extended
without first departing from the Islands; and in Chiong Tiao
Bing vs. Commissioner of Immigration (28 September 1956),
99 Phil. 1021, 1023, we ruled:
No officer can relieve him of the departure
requirements of Section 9 of the Immigration Act,
under the guise of "change" or "correction"', for the
law makes no distinctions, and no officer is above
the law. Any other ruling would, as stated in our
previous decision, encourage aliens to enter the
Islands on false pretenses; every alien, so permitted
to enter for a limited time, might then claim a right to
permanent admission, however flimsy such claim
should be, and thereby compel our government to
spend time, money and effort to examining and
verifying whether or not every such alien really has a
right to take up permanent residence here. In the
meanwhile, the alien would be able to prolong his
stay and evade his return to the port whence he
came, contrary to what he promised to do when he
entered. The damages inherent in such ruling are
self-evident.
That the Cabinet Secretaries acted as alter egos of the
President, as now claimed by the respondents, is not true;
because the President, when a request for extension was
made directly to him, did not affirm the acts of the Secretaries
but referred the matter to the Commissioner. The respondents
knew that said Secretaries did not act as alter egos of the
President; otherwise, they would not have written the President
after they received the Secretaries' indorsements. And when
the Immigration Commissioner insisted upon private
respondents departing from the Islands, they did not dare ask
the President for relief.
The other reason given by the respondents to support their
petition filed with the court below is their expectation to follow
the citizenship of Uy Pick Tuy when he should take his oath of
allegiance as a Filipino citizen.2 Such expectation is legally
baseless.
As to the wife, Chua Pic Luan, she does not, under Section 15
of the Revised Naturalization Law, automatically become a
Filipino citizen on account of her marriage to a naturalized
Filipino citizen, since she must first prove that she possesses
all the qualifications and none of the disqualifications for
naturalization.3
By having misrepresented before Philippine consular and
administrative authorities that she came to the country for only
a temporary visit when, in fact, her intention was to stay
permanently; and for having intentionally delayed court
processes the better to prolong her stay, respondent Chua Pic
Luan demonstrated her incapacity to satisfy the qualifications
exacted by the third paragraph of Section 2 of the Revised
Naturalization Law, that she must be of good moral character
and must have conducted herself in a proper and
irreproachable manner during the entire period of her residence
in the Philippines in her relation with the constituted
government.
And, having lawfully resided in the Philippines only from her
arrival on 16 October 1960 to 16 June 1962, she (Chua Pick
Luan) also failed to meet the required qualification of
continuous residence in the Philippines for ten (10) years, her
stay beyond 16 June 1962 being illegal. As to the foreign born
minors, Uy Koc Siong and Uy Tian Siong, our pronouncement
in Vivo vs. Cloribel, L-23239, 23 November 1966, 18 SCRA
713, applies to them:
As to foreign born minor children, they are extended
citizenship "if dwelling in the Philippines at the time of
the naturalzation of the parent." "Dwelling" means
lawful residence. Since prior to the time the father of
respondents visitors was supposed to have taken his
oath of citizenship ... their lawful period of stay had
already expired and they had already been required
to leave, they were no longer lawfully residing here
(Kua Suy et al. v. The Commissioner of Immigration,
L-13790, Oct. 31, 1963).
Nor can these temporary visitors claim any right to a stay
coterminous with the result of the naturalization proceeding of
their husband and father, Uy Pick Tuy, because their
authorized stay was for a definite period, up to a fixed day, a
circumstance incompatible with the termination of the
naturalization proceeding, which is uncertain and can not be
set at a definite date.4
It is contended for the respondents that two-year old
respondent Uy Tian Siong cannot, under Article 363 of the Civil
Code, be separated from his mother; that husband Uy Pick Tuy
has the right to fix the residence of the family (Article 110), to
the company of his wife (Article 109) and those of his minor
children (Article 316), and said wife and chidren are obliged to
obey and live with him (Articles 109, 311, 357); and that to
make said wife and children depart from the Philippines is
destructive of family solidarity (Articles 218-221). These
arguments are beside the point. Said laws govern the relations
between husband and wife inter se or between private
persons,5 not the relations between visiting alien and the
sovereign host country. Respondents seem to have forgotten
that they came here for a visit, and, as visitors, they have no
right to impose upon their host a period of stay of their own
choosing. Furthermore, being still aliens,6 they are not in
position to invoke the provisions of the Civil Code of the
Philippines, for that Code cleaves to the principle that family
rights and duties are governed by their personal law, i.e., the
laws of the nation to which they belong even when staying in a
foreign country (cf. Civil Code, Article 15).
The date insisted upon by the Commissioner as the terminal
date of stay of the respondents (16 June 1962) had already
passed when respondent judge issued his writ of preliminary
injunction (24 July 1962). This fact should have cautioned him
to issue notice to the Immigration Commissioner and hold a
hearing before issuing the writ. But respondent judge never did
hold a hearing, either on the preliminary injunction or on the
merits, so that it is mild to say that his ex-parte preliminary
injunction was improvidently issued. The date insisted on by
the repondents as their terminal date of stay (11 April 1963)
had, likewise, long expired when the Commissioner filed his
motion to dismiss (14 September 1965) in the court below.
Plainly, the case had by then become moot and
academic,7 and the court was left with no further controversy to
adjudicate. Hence, the respondent, Judge Cloribel, whimsically
and arbitrarily denied the motion, in open disregard of the
public interest and of the national policy expressed in the
Immigration Act.
Thus, the respondent judge, by refusing to dismiss the case,
allowed these alien visitors to remain in the country for as long
as the case remained pending in his docket; in effect, he
abusively arrogated unto himself the power to grant extensions
of stay to temporary visitors, a faculty that, under the law,
belongs to the Commissioner. Thus, respondent judge, instead
of applying and interpreting the law, has effectively disregarded
the same and violated its policy.
WHEREFORE, the order granting preliminary injunction on 21
July 1962, the writ of preliminary injunction on 24 July 1962,
and the order of 26 October 1965, all issued in Civil Case No.
50993 of the Court of First Instance of Manila, are all hereby
set aside, and the respondent judge is hereby permanently
restrained from taking cognizance and assuming jurisdiction
over said Civil Case No. 50993, except to dismiss it as moot
and academic. The preliminary injunction heretofore issued by
this Court is hereby made permanent. Costs against private
respondents.

Concepcion, C.J., Dizon, Makalintal, Sanchez, Castro,

Angeles, Fernando and Capistrano, JJ., concur.
Zaldivar, J., took no part.

Footnotes

1
 106 Phil. 793, at pages 799-800, promulgated 29
December 1959. Ruling reiterated in Vivo vs. Arca,
L-21728, 27 December 1963, and in Vivo vs.
Cloribel, 18 SCRA 713 (23 November 1966).

2
 Uy Pick Tuy took his oath of allegiance in August,
1963 but the Solicitor General moved for the
cancellation of his naturalization certificate on 16
March 1966 (Rollo, pages 68-69).

3
 Lee Suan Ay, et al., vs. Galang, et al., 106 Phil.
706; Austria, et al. vs. Conchu, L-20716, 22 June
1965; Lo Beng Ha Ong vs. Republic, L-24503, 28
September 1968.

4
 Vivo Vs. Arca, L-21728, 27 December 1963.

5
 Lo Beng Ha Ong vs. Republic, supra.

6
 Vivo vs. Cloribel, supra.

7
 Kua Suy vs. Commissioner of Immigration, L-
13790, 31 October 1963; Vivo vs. Cloribel, 18 SCRA
713, 722 (1966) ; Vivo vs. Cloribrel, 22 SCRA 159,
164 (1968).
G.R. No. L-21289 October 4, 1971 connection with her contemplated action of
application for a respondent to
temporary visitor's confiscate her bond
MOY YA LIM YAO alias EDILBERTO AGUINALDO LIM and
visa to enter the and order her arrest
LAU YUEN YEUNG, petitioners-appellants,
Philippines, she stated and immediate
vs.
that she was a deportation, after the
THE COMMISSIONER OF IMMIGRATION, respondent-
Chinese residing at expiration of her
appellee.
Kowloon, Hongkong, authorized stay, she
and that she desired brought this action for
Aruego, Mamaril & Associates for petitioners-appellants. to take a pleasure trip injunction with
to the Philippines to preliminary injunction.
visit her great (grand) At the hearing which
Office of the Solicitor General Arturo A. Alafriz, Assistant uncle Lau Ching Ping took place one and a
Solicitor General Frine' C. Zaballero and Solicitor Sumilang V. for a period of one half years after her
Bernardo for respondent-appellee. month (Exhibits "l," "1- arrival, it was admitted
a," and "2"). She was that petitioner Lau
permitted to come into Yuen Yeung could not
the Philippines on write either English or
March 13, 1961, and Tagalog. Except for a
BARREDO, J.: was permitted to stay few words, she could
for a period of one not speak either
Appeal from the following decision of the Court of First Instance month which would English or Tagalog.
of Manila in its Civil Case No. 49705 entitled Moy Ya Lim Yao, expire on April 13, She could not name
etc., et al. vs. The Commissioner of Immigration which, brief as 1961. On the date of any Filipino neighbor,
it is, sufficiently depicts the factual setting of and the her arrival, Asher Y, with a Filipino name
fundamental issues involved in this case thus: Cheng filed a bond in except one, Rosa. She
the amount of did not know the
P1,000.00 to names of her brothers-
In the instant case, petitioners seek the undertake, among in-law, or sisters-in-
issuance of a writ of injunction against the others that said Lau law.
Commissioner of Immigration, "restraining Yuen Yeung would
the latter and/or his authorized actually depart from
representative from ordering plaintiff Lau Under the facts unfolded above, the Court
the Philippines on or
Yuen Yeung to leave the Philippines and is of the considered opinion, and so holds,
before the expiration
causing her arrest and deportation and the that the instant petition for injunction
of her authorized
confiscation of her bond, upon her failure cannot be sustained for the same reason
period of stay in this
to do so." as set forth in the Order of this Court,
country or within the
dated March 19, 1962, the pertinent
period as in his
portions of which read:
The prayer for preliminary injunction discretion the
embodied in the complaint, having been Commissioner of
denied, the case was heard on the merits Immigration or his First, Section 15 of the Revised
and the parties submitted their respective authorized Naturalization Law provides:
evidence. representative might
properly allow. After
Effect of the
repeated extensions,
The facts of the case, as substantially and naturalization on wife
petitioner Lau Yuen
correctly stated by the Solicitor General and children. — Any
Yeung was allowed to
are these: woman who is now or
stay in the Philippines
may hereafter be
up to February 13,
married to a citizen of
On February 8, 1961, 1962 (Exhibit "4"). On
the Philippines, and
Lau Yuen Yeung January 25, 1962, she
who might herself be
applied for a passport contracted marriage
lawfully naturalized
visa to enter the with Moy Ya Lim Yao
shall be deemed a
Philippines as a non- alias Edilberto
citizen of the
immigrant. In the Aguinaldo Lim an
Philippines.
interrogation made in alleged Filipino citizen.
Because of the
The above-quoted provision is clear and its citizen, need only be The aforequoted argument of the Solicitor
import unequivocal and hence it should be not disqualified under General is well buttressed not only by the
held to mean what it plainly and explicitly the Naturalization decided cases of the Supreme Court on
expresses in unmistakable terms. The Law, it would have the point mentioned above, but also on the
clause "who might herself be lawfully been worded "and very provisions of Section 9, sub-
naturalized" incontestably implies that an who herself is not paragraph (g) of the Philippine Immigration
alien woman may be deemed a citizen of disqualified to become Act of 1940 which reads:
the Philippines by virtue of her marriage to a citizen of the
a Filipino citizen only if she possesses all Philippines."
An alien who is
the qualifications and none of the
admitted as a non-
disqualifications specified in the law,
Second, Lau Yuen Yeung, a temporary immigrant cannot
because these are the explicit requisites
Chinese woman visitor, whose authorized remain in the
provided by law for an alien to be
stay in the Philippines, after repeated Philippines
naturalized. (Lee Suan Ay, Alberto Tan
extensions thereof, was to expire last permanently. To
and Lee Chiao vs. Emilio Galang, etc., G.
February 28, 1962, having married her co- obtain permanent
R. No. L-11855). However, from the
plaintiff only on January 25, 1962, or just a admission, a non-
allegation of paragraph 3 of the complaint,
little over one month before the expiry date immigrant alien must
to wit:
of her stay, it is evident that said marriage depart voluntarily to
was effected merely for convenience to some foreign country
3. That plaintiff Lau defeat or avoid her then impending and procure from the
Yuen Yeung, Chinese compulsory departure, not to say appropriate Philippine
by birth, who might deportation. This cannot be permitted. Consul the proper visa
herself be lawfully and thereafter
naturalized as a undergo examination
Third, as the Solicitor General has well
Filipino citizen (not by the Officers of the
stated:
being disqualified to Bureau of Immigration
become such by at a Philippine port of
naturalization), is a 5. That petitioner Lau entry for determination
Filipino citizen by Yuen Yeung, having of his admissibility in
virtue of her marriage been admitted as a accordance with the
on January 25, 1962 temporary alien visitor requirements of this
to plaintiff MOY YA on the strength of a Act. (This paragraph is
LIM YAO alias deliberate and added by Republic Act
EDILBERTO voluntary 503). (Sec. 9,
AGUINALDO LIM, representation that subparagraph (g) of
under the she will enter and stay the Philippine
Naturalization Laws of only for a period of Immigration Act of
the Philippines. one month and 1940).
thereby secured a
visa, cannot go back
it can be deduced beyond debate that And fourth, respondent Commissioner of
on her representation
petitioner Lau Yuen Yeung while claiming Immigration is charged with the
to stay permanently
not to be disqualified, does not and cannot administration of all laws relating to
without first departing
allege that she possesses all the immigration (Sec. 3, Com. Act No. 613)
from the Philippines as
qualifications to be naturalized, naturally and in the performance of his duties in
she had promised.
because, having been admitted as a relation to alien immigrants, the law gives
(Chung Tiao Bing, et
temporary visitor only on March 13, 1961, the Commissioner of Immigration a wide
al. vs. Commissioner
it is obvious at once that she lacks at least, discretion, a quasi-judicial function in
of Immigration, G. R.
the requisite length of residence in the determining cases presented to him
No. L-9966,
Philippines (Revised Naturalization Law, (Pedro Uy So vs. Commissioner of
September 29, 1956;
Sec. 2, Case No. 2, Sec. 3, Case No. 3). Immigration CA-G. R. No. 23336-R, Dec.
Ong Se Lun vs. Board
15, 1960), so that his decision thereon
of Commissioners, G.
may not be disturbed unless he acted with
Were if the intention of R. No. L-6017,
abuse of discretion or in excess of his
the law that the alien September 16, 1954;
jurisdiction.
woman, to be deemed Sec. 9, last par., Phil.
a citizen of the Immigration Law).
Philippines by virtue of It may also be not amiss to state that wife
marriage to a Filipino Lau Yuen Yeung, while she barely and
 insufficiently talk in broken Tagalog and
English, she admitted that she cannot write
either language.
The only matter of fact not clearly passed upon by His Honor
which could have some bearing in the resolution of this appeal
is the allegation in the brief of petitioners-appellants, not denied
in the governments brief, that "in the hearing ..., it was shown
thru the testimony of the plaintiff Lau Yuen Yeung that she
does not possess any of the disqualifications for naturalization."
Of course, as an additional somehow relevant factual matter, it
is also emphasized by said appellants that during the hearing
in the lower court, held almost ten months after the alleged
marriage of petitioners, "Lau Yuen Yeung was already carrying
in her womb for seven months a child by her husband."
Appellants have assigned six errors allegedly committed by the
court a quo, thus:
I of the disqualifications. (Lee Suan Ay,
THE LOWER COURT ERRED IN
HOLDING THAT THE CLAUSE "WHO
MIGHT HERSELF BE LAWFULLY
NATURALIZED" (OF SECTION 15,
REVISED NATURALIZATION LAW)
INCONTESTABLY IMPLIES THAT AN
ALIEN WOMAN MAY BE DEEMED A
CITIZEN OF THE PHILIPPINES BY
VIRTUE OF HER MARRIAGE TO A
FILIPINO CITIZEN, ONLY IF SHE
POSSESSES ALL THE QUALIFICATIONS
AND NONE OF THE
DISQUALIFICATIONS SPECIFIED IN THE
LAW.
II
THE LOWER COURT ERRED IN
HOLDING THAT A WOMAN FOREIGNER
WHO DOES NOT POSSESS ANY OF
THE DISQUALIFICATIONS FOR
CITIZENSHIP AND WHO MARRIED A
FILIPINO CITIZEN IS STILL
CONSIDERED AN ALIEN EVEN AFTER
SUCH MARRIAGE AS TO FALL WITHIN
THE REQUIREMENT OF SECTION 9,
SUB-PARAGRAPH (9) OF THE
PHILIPPINE IMMIGRATION ACT OF
1940.
III
THE COURT ERRED IN CONCLUDING
THAT LAU YUEN YEUNG'S MARRIAGE
TO A FILIPINO CITIZEN WAS ONLY FOR
CONVENIENCE, MERELY BECAUSE
THE SAME WAS CELEBRATED JUST
OVER A MONTH BEFORE THE EXPIRY
DATE OF HER AUTHORIZED STAY.
IV
THE LOWER COURT ERRED IN FAILING
TO FIND THAT THE COMMISSIONER OF
IMMIGRATION ACTED WITH ABUSE OF
DISCRETION OR IN EXCESS OF HIS
JURISDICTION WHEN SAID OFFICER
THREATENED TO SEND OUT OF THE
COUNTRY PLAINTIFF LAU YUEN
YEUNG WITH WARNING THAT HER
FAILURE TO DO SO WOULD MEAN
CONFISCATION OF HER BOND,
ARREST AND IMMEDIATE
DEPORTATION, IN SPITE OF THE FACT
THAT LAU YUEN YEUNG IS NOW A
FILIPINO CITIZEN.
V
THE LOWER COURT ERRED IN
DISMISSING PLAINTIFFS-APPELLANTS'
COMPLAINT AND IN REFUSING TO
PERMANENTLY ENJOIN THE
COMMISSIONER FROM ORDERING
PLAINTIFF LAU YUEN YEUNG TO
LEAVE THE PHILIPPINES AS A
TEMPORARY VISITOR WHICH SHE IS
NOT.
VI
THE LOWER COURT ERRED IN
REFUSING TO GRANT PLAINTIFFS-
APPELLANTS' MOTION FOR
PRELIMINARY INJUNCTION EMBODIED
IN THEIR COMPLAINT, IN AN ORDER
DATED MARCH 19, 1962. (PAGES 36-41,
RECORD ON APPEAL) .
We need not discuss these assigned errors separately. In
effect, the above decision upheld the two main grounds of
objection of the Solicitor General to the petition in the court
below, viz:
That petitioner Lau Yuen Yeung, having
been admitted as a temporary alien visitor
on the strength of a deliberate and
voluntary representation that she will enter
and stay only for a period of one month
and thereby secured a visa, cannot go
back on her representation to stay
permanently without first departing from
the Philippines as she had promised.
(Chung Tiao Bing, et al. vs. Commissioner
of Immigration, G.R. No. L-9966,
September 29, 1956; Ong Se Lun vs.
Board of Commissioners, G.R. No. L-6017,
Sept. 16, 1954, Sec. 9, last par. Phil.
Immigration Law);
That the mere marriage of a Filipino citizen
to an alien does not automatically confer
on the latter Philippine citizenship. The
alien wife must possess all the
qualifications required by law to become a
Filipino citizen by naturalization and none
Alberto Tan and Lee Chiao vs. Galang,
etc., G. R. No. L-11855, Dec. 25, 1959)
It is obvious from the nature of these objection that their proper
resolution would necessarily cover all the points raised in
appellants' assignments of error, hence, We will base our
discussions, more or less, on said objections.
I
The first objection of the Solicitor General which covers the
matters dealt with in appellants' second and fourth assignments
of error does not require any lengthy discussion. As a matter of
fact, it seem evident that the Solicitor General's pose that an
alien who has been admitted into the Philippines as a non-
immigrant cannot remain here permanently unless he
voluntarily leaves the country first and goes to a foreign country
to secure thereat from the appropriate Philippine consul the
proper visa and thereafter undergo examination by officers of
the Bureau of Immigration at a Philippine port of entry for
determination of his admissibility in accordance with the
requirements of the Philippine Immigration Act of 1940, as
amended by Republic Act 503, is premised on the assumption
that petitioner Lau Yuen Yeung is not a Filipino citizen. We
note the same line of reasoning in the appealed decision of the
court a quo. Accordingly, it is but safe to assume that were the
Solicitor General and His Honor of the view that said petitioner
had become ipso facto a Filipina by virtue of her marriage to
her Filipino husband, they would have held her as entitled to
assume the status of a permanent resident without having to
depart as required of aliens by Section 9 (g) of the law.
In any event, to set this point at rest, We hereby hold that
portion of Section 9 (g) of the Immigration Act providing:
 An alien who is admitted as a non-
immigrant cannot remain in the Philippines
permanently. To obtain permanent
admission, a non-immigrant alien must
depart voluntarily to some foreign country
and procure from the appropriate
Philippine consul the proper visa and
thereafter undergo examination by the
officers of the Bureau of Immigration at a
Philippine port of entry for determination of
his admissibility in accordance with the
requirements of this Act.
does not apply to aliens who after coming into the Philippines
as temporary visitors, legitimately become Filipino citizens or
acquire Filipino citizenship. Such change of nationality naturally
bestows upon their the right to stay in the Philippines
permanently or not, as they may choose, and if they elect to
reside here, the immigration authorities may neither deport
them nor confiscate their bonds. True it is that this Court has
vehemently expressed disapproval of convenient ruses
employed by alien to convert their status from temporary
visitors to permanent residents in circumvention of the
procedure prescribed by the legal provision already mentioned,
such as in Chiong Tiao Bing vs. Commissioner of Immigration,
99 Phil. 1020, wherein, thru Mr. Justice J.B.L. Reyes, the
Court, reiterating the ruling in Ong Se Lun vs. Board of
Immigration Commissioners, 95 PMI. 785, said:
... It is clear that if an alien gains admission
to the Islands on the strength of a
deliberate and voluntary representation
that he will enter only for a limited time,
and thereby secures the benefit of a
temporary visa, the law will not allow him
subsequently to go back on his
representation and stay permanently,
without first departing from the Philippines
as he had promised. No officer can relieve
him of the departure requirements of
section 9 of the Immigration Act, under the
guise of "change" or "correction", for the
law makes no distinctions, and no officer is
above the law. Any other ruling would, as
stated in our previous decision, encourage
aliens to enter the Islands on false
pretences; every alien so permitted to
enter for a limited time, might then claim a
right to permanent admission, however
flimsy such claim should be, and thereby
compel our government to spend time,
money and effort to examining and
verifying whether or not every such alien
really has a right to take up permanent
residence here. In the meanwhile, the alien
would be able to prolong his stay and
evade his return to the port whence he
came, contrary to what he promised to do Precisely, the second objection, of the Solicitor General
when he entered. The damages inherent in sustained by the trial judge is that appellant Lau Yuen Yeung's
such ruling are self-evident. marriage to appellant Moya Lim Yao alias Edilberto Aguinaldo
whose Filipino citizenship is not denied did not have the effect
of making her a Filipino, since it has not been shown that she
On the other hand, however, We cannot see any reason why
"might herself be lawfully naturalized," it appearing clearly in
an alien who has been here as a temporary visitor but who has
the record that she does not possess all the qualifications
in the meanwhile become a Filipino should be required to still
required of applicants for naturalization by the Revised
leave the Philippines for a foreign country, only to apply thereat
Naturalization Law, Commonwealth Act 473, even if she has
for a re-entry here and undergo the process of showing that he
proven that she does not suffer from any of the disqualifications
is entitled to come back, when after all, such right has become
thereunder. In other words, the Solicitor General implicitly
incontestible as a necessary concomitant of his assumption of
concedes that had it been established in the proceedings
our nationality by whatever legal means this has been
below that appellant Lau Yuen Yeung possesses all the
conferred upon him. Consider for example, precisely the case
qualifications required by the law of applicants for
of the minor children of an alien who is naturalized. It is
naturalization, she would have been recognized by the
indubitable that they become ipso facto citizens of the
respondent as a Filipino citizen in the instant case, without
Philippines. Could it be the law that before they can be allowed
requiring her to submit to the usual proceedings for
permanent residence, they still have to be taken abroad so that
naturalization.
they may be processed to determine whether or not they have
a right to have permanent residence here? The difficulties and
hardships which such a requirement entails and its seeming To be sure, this position of the Solicitor General is in accord
unreasonableness argue against such a rather absurd with what used to be the view of this Court since Lee Suan Ay,
construction. Indeed, as early as 1957, in Ly Giok Ha vs. et al. v. Emilio Galang, etc., et al., G.R. No. L-11855,
Galang, 101 Phil. 459, Mr. Justice Concepcion, our present promulgated December 23, 1959, 106 Phil., 706,713,1 for it
Chief Justice, already ruled thus: was only in Zita Ngo Burca vs. Republic, G.R. NO. L-24252
which was promulgated on January 30, 1967 (19 SCRA 186),
that over the pen of Mr. Justice Conrado Sanchez, this Court
... (P)etitioners allege that, upon her
held that for an alien woman who marries a Filipino to be
marriage to a Filipino, Ly Giok Ha became
deemed a Filipina, she has to apply for naturalization in
also a citizen of the Philippines. Indeed, if
accordance with the procedure prescribed by the Revised
this conclusion were correct, it would follow
Naturalization Law and prove in said naturalization proceeding
that, in consequence of her marriage, she
not only that she has all the qualifications and none of the
had been naturalized as such citizen, and,
disqualifications provided in the law but also that she has
hence the decision appealed from would
complied with all the formalities required thereby like any other
have to be affirmed, for section 40(c) of
applicant for naturalization,2 albeit said decision is not yet part
Commonwealth Act 613 provides that "in
of our jurisprudence inasmuch as the motion for its
the event of the naturalization as a
reconsideration is still pending resolution. Appellants are in
Philippine citizen ... of the alien on whose
effect urging Us, however, in their first and second
behalf the bond deposit is given, the bond
assignments of error, not only to reconsider Burca but to even
shall be cancelled or the sum deposited
reexamine Lee Suan Ay which, as a matter of fact, is the
shall be returned to the depositor or his
prevailing rule, having been reiterated in all subsequent
legal representative." (At. pp. 462-463)
decisions up to Go Im Ty.3
In other words, the applicable statute itself more than implies
Actually, the first case in which Section 15 of the Naturalization
that the naturalization of an alien visitor as a Philippine citizen
Law, Commonwealth Act 473, underwent judicial construction
logically produces the effect of conferring upon him ipso
was in the first Ly Giok Ha case,4 one almost identical to the
facto all the rights of citizenship including that of being entitled
one at bar. Ly Giok Ha, a woman of Chinese nationality, was a
to permanently stay in the Philippines outside the orbit of
temporary visitor here whose authority to stay was to expire on
authority of the Commissioner of Immigration vis-a-vis aliens, if
March 14, 1956. She filed a bond to guaranty her timely
only because by its very nature and express provisions, the
departure. On March 8, 1956, eight days before the expiration
Immigration Law is a law only for aliens and is inapplicable to
of her authority to stay, she married a Filipino by the name of
citizens of the Philippines. In the sense thus discussed
Restituto Lacasta. On March 9, 1956, her husband notified the
therefore, appellants' second and fourth assignments of error
Commissioner of Immigration of said marriage and, contending
are well taken.
that his wife had become a Filipina by reason of said marriage,
demanded for the cancellation of her bond, but instead of
II acceding to such request, the Commissioner required her to
leave, and upon her failure to do so, on March 16, 1956, the
Commissioner confiscated her bond; a suit was filed for the
recovery of the bond; the lower court sustained her contention under section 4 of said Commonwealth Act (h) Citizens or
that she had no obligation to leave, because she had become No. 473, namely: subjects of a foreign
Filipina by marriage, hence her bond should be returned. The country other than the
Commissioner appealed to this Court. In the said appeal, Mr. United States, whose
(a) Persons opposed
Justice Roberto Concepcion, our present Chief Justice, spoke laws does not grant
to organized
for the Court, thus: Filipinos the right to
government or
become naturalized
affiliated with any
citizens or subjects
The next and most important question for association or group of
thereof.
determination is whether her marriage to a persons who uphold
Filipino justified or, at least, excused the and teach doctrines
aforesaid failure of Ly Giok Ha to depart opposing all organized In the case at bar, there is neither proof
from the Philippines on or before March governments; nor allegation in the pleadings that Ly Giok
14, 1956. In maintaining the affirmative Ha does not fall under any of the classes
view, petitioners alleged that, upon her disqualified by law. Moreover, as the
(b) Persons defending
marriage to a Filipino, Ly Giok Ha became, parties who claim that, despite her failure
or teaching the
also, a citizen of the Philippines. Indeed, if to depart from the Philippines within the
necessity or propriety
this conclusion were correct, it would follow period specified in the bond in question,
of violence, personal
that, in consequence of her marriage, she there has been no breach thereof,
assault, or
had been naturalized as such citizen, and, petitioners have the burden of proving her
assassination for the
hence, the decision appealed from would alleged change of political status, from
success and
have to be affirmed, for section 40(c) of alien to citizen. Strictly speaking,
predominance of their
Commonwealth Act No. 613 provides that petitioners have not made out, therefore a
ideas;
"in the event of the naturalization as a case against the respondents-appellants.
Philippine citizen ... of the alien on whose
behalf the bond deposit is given, the bond (c) Polygamists or
Considering, however, that neither in the
shall be cancelled or the sum deposited believers in the
administrative proceedings, nor in the
shall be returned to the depositor or his practice of polygamy;
lower court, had the parties seemingly felt
legal representative." Thus the issue boils
that there was an issue on whether Ly
down to whether an alien female who
(d) Persons convicted Giok Ha may "be lawfully naturalized," and
marries a male citizen of the Philippines
of crimes involving this being a case of first impression in our
follows ipso facto his political status.
moral turpitude; courts, we are of the opinion that, in the
interest of equity and justice, the parties
The pertinent part of section 15 of herein should be given an opportunity to
(e) Persons suffering
Commonwealth Act No. 473, upon which introduce evidence, if they have any, on
from mental alienation
petitioners rely, reads: said issue. (At pp. 462-464.) .
or incurable
contagious diseases;
Any woman who is As may be seen, although not specifically in so many words, no
now or may hereafter doubt was left in the above decision as regards the following
(f) Persons who,
be married to a citizen propositions: .
during the period of
of the Philippines, and
their residence in the
who might herself be
Philippines, have not 1. That under Section 15 of Commonwealth Act 473, the
lawfully naturalized
mingled socially with Revised Naturalization Law, the marriage of an alien woman to
shall be deemed a
the Filipinos, or who a Filipino makes her a Filipina, if she "herself might be lawfully
citizen of the
have not evinced a naturalized";
Philippines.
sincere desire to learn
and embrace the
2. That this Court declared as correct the opinion of the
Pursuant thereto, marriage to a male customs, traditions,
Secretary of Justice that the limitation of Section 15 of the
Filipino does not vest Philippine citizenship and ideals of the
Naturalization Law excludes from the benefits of naturalization
to his foreign wife, unless she "herself may Filipinos;
by marriage, only those disqualified from being naturalized
be lawfully naturalized." As correctly held
under Section 4 of the law qouted in the decision;
in an opinion of the Secretary of
(g) Citizens or
Justice (Op. No. 52, series of 1950),* this
subjects of nations
limitation of section 15 excludes, from the 3. That evidence to the effect that she is not disqualified may
with whom the ...
benefits of naturalization by marriage, be presented in the action to recover her bond confiscated by
Philippines are at war,
those disqualified from being the Commissioner of Immigration;
during the period of
naturalized as citizens of the Philippines
such war;
4. That upon proof of such fact, she may be recognized as
Filipina; and
5. That in referring to the disqualification enumerated in the
law, the Court somehow left the impression that no inquiry
need be made as to qualifications,5 specially considering that
the decision cited and footnotes several opinions of the
Secretary of Justice, the immediate superior of the
Commissioner of Immigration, the most important of which are
the following:
Paragraph (a), section 13 of Act No. 2927,
as amended, (now section 15,
Commonwealth Act No. 473), provided that
"any woman who is now or may hereafter
be married to a citizen of the Philippines,
and who might herself be lawfully
naturalized shall be deemed a citizen of
the Philippines." A similar provision in the
naturalization law of the United States has
been construed as not requiring the
woman to have the qualifications of
residence, good character, etc., as in the
case of naturalization by judicial
proceedings, but merely that she is of the
race of persons who may be naturalized.
(Kelly v. Owen [Dist. Col. 1868] 7 Wall 496,
5F, 11, 12; ex parte Tryason [D. C. Wash.
1914] 215 F. 449, 27 Op. Atty. Gen. 507).
(Op. No. 168, s. 1940 of Justice Sec. Jose
Abad Santos.)
In a previous opinion rendered for your
Office, I stated that the clause "who might
herself be lawfully naturalized", should be
construed as not requiring the woman to
have the qualifications of residence, good
character, etc., as in cases of
naturalization by judicial proceedings, but
merely that she is of the race of persons
who may be naturalized. (Op. No. 79, s.
1940)
Inasmuch as the race qualification has
been removed by the Revised
Naturalization Law, it results that any
woman who married a citizen of the
Philippines prior to or after June 17, 1939,
and the marriage not having been
dissolved, and on the assumption that she
possesses none of the disqualifications
mentioned in Section 4 of Commonwealth
Act No. 473, follows the citizenship of her
husband. (Op. No. 176, s. 1940 of Justice
Sec. Jose Abad Santos.)
From the foregoing narration of facts, it
would seem that the only material point of
inquiry is as to the citizenship of Arce
Machura. If he shall be found to be a
citizen of the Philippines, his wife, Mrs. Lily
James Machura, shall likewise be deemed
a citizen of the Philippines pursuant to the
provision of Section 15, Commonwealth
Act No. 473, which reads in part as follows:
Any woman who is
now or may hereafter
be married to a citizen
of the Philippines, and
who might herself be
lawfully naturalized
shall be deemed a
citizen of the
Philippines.
The phrase "who might herself be lawfully
naturalized", as contained in the above
provision, means that the woman who is
married to a Filipino citizen must not
belong to any of the disqualified classes
enumerated in Section 4 of the
Naturalization Law (Ops., Sec. of Jus., No.
28, s. 1950; No. 43, s. 1948, No. 95, s.
1941; Nos. 79 and 168, s. 1940). Under
the facts stated in the within papers, Mrs.
Machura does not appear to be among the
disqualified classes mentioned in the law.
It having been shown that Arce Machura or
Arsenio Guevara was born as an
illegitimate of a Filipino mother, he should
be considered as a citizen of the
Philippines in consonance with the well-
settled rule that an illegitimate child follows
the citizenship of his only legally
recognized parent, the mother (Op., Sec.
of Jus., Nos. 58, 98 & 281, s. 1948; No.
96, s. 1949). Her husband being a Filipino,
Mrs. Machura must necessarily be deemed
as a citizen of the Philippines by marriage
(Sec. 15, Com. Act No. 473.) (Op. No. 52,
s. 1950 of Justice Sec. Ricardo
Nepomuceno.)
The logic and authority of these opinions, compelling as they
are, must have so appealed to this Court that five days later, on
May 22, 1957, in Ricardo Cua v. The Board of Commissioners,
101 Phil. 521, Mr. Justice J.B.L. Reyes, reiterated the same
ruling on the basis of the following facts:
Tjioe Wu Suan, an Indonesian, arrived in Manila on November
1, 1952, but it turned out that her passport was forged. On
December 10, 1953, a warrant was issued for her arrest for
purpose of deportation. Later, on December 20, 1953, she
married Ricardo Cua, a Filipino, and because of said marriage,
the Board of Special Inquiry considered her a Filipina. Upon a
review of the case, however, the Board of Immigration
Commissioners insisted on continuing with the deportation
proceedings and so, the husband filed prohibition and
mandamus proceedings. The lower court denied the petition.
Although this Court affirmed said decision, it held, on the other
hand, that:
Granting the validity of marriage, this Court
has ruled in the recent case of Ly Giok Ha
v. Galang, supra, p. 459, that the bare fact
of a valid marriage to a citizen does not
suffice to confer his citizenship upon the
wife. Section 15 of the Naturalization Law
requires that the alien woman who marries
a Filipino must show, in addition, that she
"might herself be lawfully naturalized" as a
Filipino citizen. As construed in the
decision cited, this last condition requires
proof that the woman who married a
Filipino is herself not disqualified under
section 4 of the Naturalization Law.
No such evidence appearing on record,
the claim of assumption of Filipino
citizenship by Tjioe Wu Suan, upon her
marriage to petitioner, is untenable. The
lower court, therefore, committed no error
in refusing to interfere with the deportation
proceedings, where she can anyway
establish the requisites indispensable for
her acquisition of Filipino citizenship, as
well as the alleged validity of her
Indonesian passport. (Ricardo Cua v. The
Board of Immigration Commissioners, G.
R. No. L-9997, May 22, 1957, 101 Phil.
521, 523.) [Emphasis supplied] .
For emphasis, it is reiterated that in the above two cases, this
Court expressly gave the parties concerned opportunity to
prove the fact that they were not suffering from any of the
disqualifications of the law without the need of undergoing any
judicial naturalization proceeding. It may be stated, therefore,
that according to the above decisions, the law in this country,
on the matter of the effect of marriage of an alien woman to a
Filipino is that she thereby becomes a Filipina, if it can be
proven that at the time of such marriage, she does not possess
any of the disqualifications enumerated in Section 4 of the
Naturalization Law, without the need of submitting to any
naturalization proceedings under said law.
It is to be admitted that both of the above decisions made no
reference to qualifications, that is, as to whether or not they
need also to be proved, but, in any event, it is a fact that the
Secretary of Justice understood them to mean that such
qualifications need not be possessed nor proven. Then
Secretary of Justice Jesus Barrera, who later became a
distinguished member of this Court,6 so ruled in opinions
rendered by him subsequent to Ly Giok Ha, the most
illustrative of which held: .
At the outset it is important to note that an
alien woman married to a Filipino citizen
needs only to show that she "might herself
be lawfully naturalized" in order to acquire
Philippine citizenship. Compliance with
other conditions of the statute, such as
those relating to the qualifications of an
applicant for naturalization through judicial
proceedings, is not necessary. (See:
Leonard v. Grant, 5 Fed. 11; 27 Ops. Atty.
Gen [U.S.] 507; Ops. Sec. of Justice, No.
776, s. 1940, and No. 111, s. 1953.
This view finds support in the case of Ly
Giok Ha et al. v. Galang et al., G.R. No. L-
10760, promulgated May 17, 1957, where
the Supreme Court, construing the
abovequoted section of the Naturalization
Law, held that "marriage to a male Filipino
does not vest Philippine citizenship to his
foreign wife," unless she "herself may be
lawfully naturalized," and that "this
limitation of Section 15 excludes, from the
benefits of naturalization by marriage,
those disqualified from being naturalized
as citizens of the Philippines under Section
4 of said Commonwealth Act No. 473." In
other words, disqualification for any of the
causes enumerated in Section 4 of the Act
is the decisive factor that defeats the right
of the foreign wife of a Philippine citizen to
acquire Philippine citizenship.
xxx xxx xxx
Does petitioner, Lim King Bian, belong to
any of these groups The Commissioner of
Immigration does not say so but merely
predicates his negative action on the
ground that a warrant of deportation for
"overstaying" is pending against the
petitioner.
We do not believe the position is well
taken. Since the grounds for
disqualification for naturalization are
expressly enumerated in the law, a warrant acquire Philippine citizenship. (Op. 57, s.
of deportation not based on a finding of 1958 of Justice Sec. Jesus G. Barrera.)
unfitness to become naturalized for any of
those specified causes may not be invoked
The contention is untenable. The doctrine
to negate acquisition of Philippine
enunciated in the Ly Giok Ha case is not a
citizenship by a foreign wife of a Philippine
new one. In that case, the Supreme Court
citizen under Section 15 of the
held that under paragraph I of Section 15
Naturalization Law. (Inclusio unius est
Of Commonwealth Act No. 473, 'marriage
exclusio alterius) (Op. No. 12, s. 1958 of
to a male Filipino does not vest Philippine
Justice Undersec. Jesus G. Barrera.)
citizenship to his foreign wife unless she
"herself may be lawfully naturalized"', and,
Regarding the steps that should be taken quoting several earlier opinions of the
by an alien woman married to a Filipino Secretary of Justice, namely: No. 52, s.
citizen in order to acquire Philippine 1950; No. 168, s. 1940; No. 95, s. 1941;
citizenship, the procedure followed in the No. 63, s. 1948; No. 28. s. 1950, "this
Bureau of Immigration is as follows: The limitation of section 15 excludes from the
alien woman must file a petition for the benefits of naturalization by marriage,
cancellation of her alien certificate of those disqualified from being naturalized
registration alleging, among other things, as citizens of the Philippines under section
that she is married to a Filipino citizen and 4 of said Commonwealth Act No. 473."
that she is not disqualified from acquiring (Op. 134, s. 1962 of Justice Undersec.
her husband's citizenship pursuant to Magno S. Gatmaitan.)
section 4 of Commonwealth Act No. 473,
as amended. Upon the filing of said
It was not until more than two years later that, in one respect,
petition, which should be accompanied or
the above construction of the law was importantly modified by
supported by the joint affidavit of the
this Court in Lee Suan Ay, supra, in which the facts were as
petitioner and her Filipino husband to the
follows:
effect that the petitioner does not belong to
any of the groups disqualified by the cited
section from becoming naturalized Filipino Upon expiration of the appellant Lee Suan
citizen (please see attached CEB Form 1), Ay's authorized period of temporary stay in
the Bureau of Immigration conducts an the Philippines (25 March 1955), on 26
investigation and thereafter promulgates March 1955 the Commissioner of
its order or decision granting or denying Immigration asked the bondsman to
the petition. (Op. No. 38, s. 19058 of present her to the Bureau of Immigration
Justice Sec. Jesus G. Barrera.) within 24 hours from receipt of notice,
otherwise the bond will be
confiscated(Annex 1). For failure of the
This view finds support in the case of Ly
bondsman to comply with the foregoing
Giok Ha et al., v. Galang et al. (G.R. No. L-
order, on 1 April 1955. the Commissioner
10760, promulgated May 17, 1957), where
of Immigration ordered the cash bond
the Supreme Court, construing the above-
confiscated (Annex E). Therefore, there
quoted section in the Revised
was an order issued by the Commissioner
Naturalization Law, held that "marriage to
of Immigration confiscating or forfeiting the
a male Filipino does not vest Philippine
cash bond. Unlike in forfeiture of bail
citizenship to his foreign wife, unless she
bonds in criminal proceedings, where the
herself may be lawfully naturalized," and
Court must enter an order forfeiting the bail
that "this limitation of Section 15 excludes,
bond and the bondsman must be given an
from the benefits of naturalization by
opportunity to present his principal or give
marriage, those disqualified from being
a satisfactory reason for his inability to do
naturalized as citizens of the Philippines
so, before final judgment may be entered
under Section 4 of said Commonwealth
against the bondsman,(section 15, Rule
Act No. 473." In other words,
110; U.S. v. Bonoan, 22 Phil. 1.) in
disqualification for any of the causes
forfeiture of bonds posted for the
enumerated in section 4 of the Act is the
temporary stay of an alien in the
decisive factor that defeats the right of an
Philippines, no court proceeding is
alien woman married to a Filipino citizen to
necessary. Once a breach of the terms
and conditions of the undertaking in the
 bond is committed, the Commissioner of
Immigration may, under the terms and
conditions thereof, declare it forfeited in
favor of the Government. (In the
meanwhile, on April 1, 1955, Lee Suan Ay
and Alberto Tan, a Filipino, were joined in
marriage by the Justice of the Peace of
Las Piñas, Rizal.)
Mr. Justice Sabino Padilla speaking for a unanimous court
which included Justices Concepcion and Reyes who had
penned Ly Giok Ha, and Ricardo Cua, ruled thus:
The fact that Lee Suan Ay (a Chinese) was
married to a Filipino citizen does not
relieve the bondsman from his liability on
the bond. The marriage took place on 1
April 1955, and the violation of the terms
and conditions of the undertaking in the
bond — failure to depart from the
Philippines upon expiration of her
authorized period of temporary stay in the
Philippines (25 March 1955) and failure to
report to the Commissioner of Immigration
within 24 hours from receipt of notice —
were committed before the marriage.
Moreover, the marriage of a Filipino citizen
to an alien does not automatically confer
Philippine citizenship upon the latter. She
must possess the qualifications required by
law to become a Filipino citizen by
naturalization.* There is no showing that
the appellant Lee Suan Ay possesses all
the qualifications and none of the
disqualifications provided for by law to
become a Filipino citizen by naturalization.
Pertinently to be noted at once in this ruling, which, to be sure,
is the one relied upon in the appealed decision now before Us,
is the fact that the footnote of the statement therein that the
alien wife "must possess the qualifications required by law to
become a Filipino citizen by naturalization" makes reference to
Section 15, Commonwealth Act 473 and precisely, also to Ly
Giok Ha v. Galang, supra. As will be recalled, on the other
hand, in the opinions of the Secretary of Justice explicitly
adopted by the Court in Ly Giok Ha, among them, Opinion No.
176, Series of 1940, above-quoted, it was clearly held that "(I)n
a previous opinion rendered for your Office, I stated that the
clause "who might herself be lawfully naturalized", should be
construed as not requiring the woman to have the qualifications
of residence, good character, etc., as in cases of naturalization
by judicial proceedings but merely that she is of the race by
persons who may be naturalized. (Op. No. 79, s. 1940)
Since Justice Padilla gave no reason at all for the obviously
significant modification of the construction of the law, it could
be said that there was need for clarification of the seemingly
new posture of the Court. The occasion for such clarification
should have been in Kua Suy, etc., et al. vs. The
Commissioner of Immigration, G.R. No. L-13790, October 31,
1963, penned by Mr. Justice J.B.L. Reyes, who had rendered
the opinion in Ricardo Cua, supra, which followed that in Ly
Giok Ha, supra, but apparently seeing no immediate relevancy
in the case on hand then of the particular point in issue now,
since it was not squarely raised therein similarly as in Lee Suan
Ay, hence, anything said on the said matter would at best be
no more than obiter dictum, Justice Reyes limited himself to
holding that "Under Section 15 of the Naturalization Act, the
wife is deemed a citizen of the Philippines only if she "might
herself be lawfully naturalized," so that the fact of marriage to a
citizen, by itself alone, does not suffice to confer citizenship, as
this Court has previously ruled in Ly Giok Ha v. Galang, 54
O.G. 356, and in Cua v. Board of Immigration Commissioners,
53 O.G. 8567; and there is here no evidence of record as to the
qualifications or absence of disqualifications of appellee Kua
Suy", without explaining the apparent departure already
pointed out from Ly Giok Ha and Ricardo Cua. Even Justice
Makalintal, who wrote a separate concurring and dissenting
opinion merely lumped together Ly Giok Ha, Ricardo Cua and
Lee Suan Ay and opined that both qualifications and non-
disqualifications have to be shown without elucidating on what
seemed to be departure from the said first two decisions.
It was only on November 30, 1963 that to Mr. Justice Roberto
Regala fell the task of rationalizing the Court's position. In Lo
San Tuang v. Galang, G.R. No. L-18775, November 30, 1963,
9 SCRA 638, the facts were simply these: Lo San Tuang, a
Chinese woman, arrived in the Philippines on July 1, 1960 as a
temporary visitor with authority to stay up to June 30, 1961.
She married a Filipino on January 7, 1961, almost six months
before the expiry date of her permit, and when she was
requested to leave after her authority to stay had expired, she
refused to do so, claiming she had become a Filipina by
marriage, and to bolster her position, she submitted an affidavit
stating explicitly that she does not possess any of the
disqualifications enumerated in the Naturalization Law,
Commonwealth Act 473. When the case reached the court, the
trial judge held for the government that in addition to not having
any of the disqualifications referred to, there was need that Lo
San Tuang should have also possessed all the qualifications of
residence, moral character, knowledge of a native principal
dialect, etc., provided by the law. Recognizing that the issue
squarely to be passed upon was whether or not the possession
of all the qualifications were indeed needed to be shown apart
from non-disqualification, Justice Regala held affirmatively for
the Court, reasoning out thus: .
It is to be noted that the petitioner has
anchored her claim for citizenship on the
basis of the decision laid down in the case
of Leonard v. Grant, 5 Swy. 603, 5 F 11,
where the Circuit Court of Oregon held that
it was only necessary that the woman
"should be a person of the class or race
permitted to be naturalized by existing
laws, and that in respect of the
qualifications arising out of her conduct or
opinions, being the wife of a citizen, she is
to be regarded as qualified for citizenship,
and therefore considered a citizen." (In
explanation of its conclusion, the Court
said: "If, whenever during the life of the
woman or afterwards, the question of her
citizenship arises in a legal proceeding, the
party asserting her citizenship by reason of
her marriage with a citizen must not only
prove such marriage, but also that the
woman then possessed all the further
qualifications necessary to her becoming
naturalized under existing laws, the statute
will be practically nugatory, if not a
delusion and a share. The proof of the
facts may have existed at the time of the
marriage, but years after, when a
controversy arises upon the subject, it may
be lost or difficult to find.")
In other words, all that she was required to
prove was that she was a free white
woman or a woman of African descent or
nativity, in order to be deemed an
American citizen, because, with respect to
the rest of the qualifications on residence,
moral character, etc., she was presumed
to be qualified.
Like the law in the United States, our
former Naturalization Law (Act No. 2927,
as amended by Act No. 3448) specified
the classes of persons who alone might
become citizens of the Philippines, even as
it provided who were disqualified. Thus,
the pertinent provisions of that law
provided:
Section 1. Who may
become Philippine
citizens — Philippine
citizenship may be
acquired by (a) natives
of the Philippines who
are not citizens thereof
under the Jones Law;
(b) natives of the
Insular possessions of
the United States; (c)
citizens of the United
States, or foreigners
who under the laws of
the United States may
become citizens of subsections (b) and state or sovereignty of
said country if residing (c) of said section one which he was a native,
therein. shall, in addition to citizen or subject.
being not less than
twenty-one years of
Section 2. Who are Applying the interpretation given
age on the day of the
disqualified. — The by Leonard v. Grant supra, to our law as it
hearing of the petition,
following cannot be then stood, alien women married to
have all and each of
naturalized as citizens of the Philippines must, in order to
the following
Philippine citizens: (a) be deemed citizens of the Philippines, be
qualifications:
Persons opposed to either (1) natives of the Philippines who
organized government were not citizens thereof under the Jones
or affiliated with any First. Residence in the Law, or (2) natives of other Insular
association or group of Philippine Islands for a possessions of the United States, or (3)
persons who uphold continuous period of citizens of the United States or foreigners
and teach doctrines not less than five who under the laws of the United States
opposing all organized years, except as might become citizens of that country if
government; (b) provided in the next residing therein. With respect to the
persons defending or following section; qualifications set forth in Section 3 of the
teaching the necessity former law, they were deemed to have the
or propriety of same for all intents and purposes.
Second. To have
violence, personal
conducted themselves
assault or
in a proper and But, with the approval of the Revised
assassination for the
irreproachable manner Naturalization Law (Commonwealth Act
success and
during the entire No. 473) on June 17, 1939, Congress has
predominance of their
period of their since discarded class or racial
ideas; (c) polygamists
residence in the consideration from the qualifications of
or believers in the
Philippine Islands, in applicants for naturalization (according to
practice of polygamy;
their relation with the its proponent, the purpose in eliminating
(d) persons convicted
constituted this consideration was, first, to remove the
of crimes involving
government as well as features of the existing naturalization act
moral turpitude; (e)
with the community in which discriminated in favor of the
persons suffering from
which they are living; Caucasians and against Asiatics who are
mental alienation or
our neighbors, and are related to us by
incurable contagious
racial affinity and, second, to foster amity
diseases; (f) citizens Third. To hold in the
with all nations [Sinco, Phil. Political Law
or subjects of nations Philippine Islands real
502 — 11 ed.]), even as it retained in
with whom the United estate worth not less
Section 15 the phrase in question. The
States and the than one thousand
result is that the phrase "who might herself
Philippines are at war, pesos, Philippine
be lawfully naturalized" must be
during the period of currency, or have
understood in the context in which it is now
such war. some known trade or
found, in a setting so different from that in
profession; and
which it was found by the Court in Leonard
Section 3. v. Grant.
Qualifications. — The Fourth. To speak and
persons comprised in write English, Spanish,
The only logical deduction from the
subsection (a) of or some native
elimination of class or racial consideration
section one of this Act, tongue.
is that, as the Solicitor General points out,
in order to be able to
the phrase "who might herself be lawfully
acquire Philippine
In case the petitioner naturalized" must now be understood as
citizenship, must be
is a foreign subject, he referring to those who under Section 2 of
not less than twenty-
shall, besides, declare the law are qualified to become citizens of
one years of age on
in writing and under the Philippines.
the day of the hearing
oath his intention of
of their petition.
renouncing absolutely
There is simply no support for the view that
and perpetually all
the phrase "who might herself be lawfully
The persons faith and allegiance to
naturalized" must now be understood as
comprised in the foreign authority,
 requiring merely that the alien woman must
not belong to the class of disqualified
persons under Section 4 of the Revised
Naturalization Law. Such a proposition
misreads the ruling laid down in Leonard v.
Grant. A person who is not disqualified is
not necessarily qualified to become a
citizen of the Philippines, because the law
treats "qualifications" and
"disqualifications" in separate sections.
And then it must not be lost sight of that
even under the interpretation given to the
former law, it was to be understood that
the alien woman was not disqualified
under Section 2 of that law. Leonard v.
Grant did not rule that it was enough if the
alien woman does not belong to the class
of disqualified persons in order that she
may be deemed to follow the citizenship of
her husband: What that case held was that
the phrase "who might herself be lawfully
naturalized, merely means that she
belongs to the class or race of persons
qualified to become citizens by
naturalization — the assumption being
always that she is not otherwise
disqualified.
We therefore hold that under the first
paragraph of Section 15 of the
Naturalization Law, an alien woman, who
is married to a citizen of the Philippines,
acquires the citizenship of her husband
only if she has all the qualifications and
none of the disqualifications provided by
law. Since there is no proof in this case
that petitioner has all the qualifications and
is not in any way disqualified, her marriage
to a Filipino citizen does not automatically
make her a Filipino citizen. Her affidavit to
the effect that she is not in any way
disqualified to become a citizen of this
country was correctly disregarded by the
trial court, the same being self-serving.
Naturally, almost a month later in Sun Peck Yong v.
Commissioner of Immigration, G.R. No. L-20784, December
27, 1963, 9 SCRA 875, wherein the Secretary of Foreign
Affairs reversed a previous resolution of the preceding
administration to allow Sun Peck Yong and her minor son to
await the taking of the oath of Filipino citizenship of her
husband two years after the decision granting him
nationalization and required her to leave and this order was
contested in court, Justice Barrera held:
In the case of Lo San Tuang v.
Commissioner of Immigration (G.R. No. L-
18775, promulgated November 30,
1963; Kua Suy vs. Commissioner of
Immigration, L-13790, promulgated
October 31, 1963), we held that the fact
that the husband became a naturalized
citizen does not automatically make the
wife a citizen of the Philippines. It must
also be shown that she herself possesses
all the qualifications, and none of the
disqualifications, to become a citizen. In
this case, there is no allegation, much less
showing, that petitioner-wife is qualified to
become a Filipino citizen herself.
Furthermore, the fact that a decision was
favorably made on the naturalization
petition of her husband is no assurance
that he (the husband) would become a
citizen, as to make a basis for the
extension of her temporary stay.
On the same day, in Tong Siok Sy v. Vivo, G.R. No. L-21136,
December 27, 1963, 9 SCRA 876, Justice Barrera reiterated
the same ruling and citing particularly Lo San Tuang and Kua
Suy, held that the marriage of Tong Siok Sy to a Filipino on
November 12, 1960 at Taichung, Taiwan and her taking oath of
Filipino citizenship before the Philippine Vice-Consul at Taipeh,
Taiwan on January 6, 1961 did not make her a Filipino citizen,
since she came here only in 1961 and obviously, she had not
had the necessary ten-year residence in the Philippines
required by the law.
Such then was the status of the jurisprudential law on the
matter under discussion when Justice Makalintal sought a
reexamination thereof in Choy King Tee v. Galang, G.R. No. L-
18351, March 26, 1965, 13 SCRA 402. Choy King Tee's
husband was granted Philippine citizenship on January 13,
1959 and took the oath on January 31 of the same year. Choy
King Tee first came to the Philippines in 1955 and kept
commuting between Manila and Hongkong since then, her last
visa before the case being due to expire on February 14, 1961.
On January 27, 1961, her husband asked the Commissioner of
Immigration to cancel her alien certificate of registration, as
well as their child's, for the reason that they were Filipinos, and
when the request was denied as to the wife, a mandamus was
sought, which the trial court granted. Discussing anew the
issue of the need for qualifications, Justice Makalintal not only
reiterated the arguments of Justice Regala in Lo San Tuang
but added further that the ruling is believed to be in line with the
national policy of selective admission to Philippine citizenship.7
No wonder, upon this authority, in Austria v. Conchu, G.R. No.
L-20716, June 22, 1965, 14 SCRA 336, Justice J.P. Bengzon
readily reversed the decision of the lower court granting the
writs of mandamus and prohibition against the Commissioner
of Immigration, considering that Austria's wife, while admitting
she did not possess all the qualifications for naturalization, had
submitted only an affidavit that she had none of the
disqualifications therefor. So also did Justice Dizon similarly
hold eight days later in Brito v. Commissioner, G.R. No. L-
16829, June 30, 1965, 14 SCRA 539.
Then came the second Ly Giok Ha case8 wherein Justice J. B.
L. Reyes took occasion to expand on the reasoning of Choy
King Tee by illustrating with examples "the danger of relying
exclusively on the absence of disqualifications, without taking
into account the other affirmative requirements of the law."9
Lastly, in Go Im Ty v. Republic, G.R. No. L-17919, decided on
July 30, 1966, 10 Justice Zaldivar held for the Court that an alien
woman who is widowed during the dependency of the
naturalization proceedings of her husband, in order that she
may be allowed to take the oath as Filipino, must, aside from
proving compliance with the requirements of Republic Act 530,
show that she possesses all the qualifications and does not
suffer from any of the disqualifications under the Naturalization
Law, citing in the process the decision to such effect discussed
above, 11 even as he impliedly reversed pro tanto the ruling
in Tan Lin v. Republic, G.R. No. L-13786, May 31, 1961, 2
SCRA 383.
Accordingly, in Burca, Justice Sanchez premised his opinion on
the assumption that the point now under discussion is settled
law.
In the case now at bar, the Court is again called upon to rule on
the same issue. Under Section 15 of the Naturalization Law,
Commonwealth Act 473, providing that:
SEC. 15. Effect of the naturalization on
wife and children. — Any woman, who is
now or may hereafter be married to a
citizen of the Philippines, and who might
herself be lawfully naturalized shall be
deemed a citizen of the Philippines.
Minor children of persons naturalized
under this law who have been born in the
Philippines shall be considered citizens
thereof.
A foreign-born minor child, if dwelling in the
Philippines at the time of the naturalization
of the parent, shall automatically become a
Philippine citizen, and a foreign-born child,
who is not in the Philippines at the time the
parent is naturalized, shall be deemed a
Philippine citizen only during his minority,
unless he begins to reside permanently in
the Philippines when still a minor, in which
case, he will continue to be a Philippine
citizen even after becoming of age.
 A child born outside of the Philippines after
the naturalization of his parent, shall be
considered a Philippine citizen unless
within one year after reaching the age of
majority he fails to register himself as a
Philippine citizen at the American
Consulate of the country where he resides,
and to take the necessary oath of
allegiance.
is it necessary, in order that an alien woman who marries a
Filipino or who is married to a man who subsequently becomes
a Filipino, may become a Filipino citizen herself, that, aside
from not suffering from any of the disqualifications enumerated
in the law, she must also possess all the qualifications required
by said law? if nothing but the unbroken line from Lee Suan Ay
to Go Im Ty, as recounted above, were to be considered, it is
obvious that an affirmative answer to the question would be
inevitable, specially, if it is noted that the present case was
actually submitted for decision on January 21, 1964 yet, shortly
after Lo San Tuang, Tong Siok Sy and Sun Peck Yong,
all supra, and even before Choy King Tee, supra, were
decided. There are other circumstances, however, which make
it desirable, if not necessary, that the Court take up the matter
anew. There has been a substantial change in the membership
of the Court since Go Im Ty, and of those who were in the
Court already when Burca was decided, two members, Justice
Makalintal and Castro concurred only in the result, precisely,
according to them, because (they wanted to leave the point
now under discussion open in so far as they are
concerned. 12 Truth to tell, the views and arguments discussed
at length with copious relevant authorities, in the motion for
reconsideration as well as in the memorandum of the amici
curae 13 in the Burca case cannot just be taken lightly and
summarily ignored, since they project in the most forceful
manner, not only the legal and logical angles of the issue, but
also the imperative practical aspects thereof in the light of the
actual situation of the thousands of alien wives of Filipinos who
have so long, even decades, considered themselves as
Filipinas and have always lived and acted as such, officially or
otherwise, relying on the long standing continuous recognition
of their status as such by the administrative authorities in
charge of the matter, as well as by the courts. Under these
circumstances, and if only to afford the Court an opportunity to
consider the views of the five justices who took no part in Go
Im Ty (including the writer of this opinion), the Court decided to
further reexamine the matter. After all, the ruling first laid in Lee
Suan Ay, and later in Lo San Tuang, Choy King Tee stand the
second (1966) Ly Giok Ha, did not categorically repudiate the
opinions of the Secretary of Justice relied upon by the first
(1959) Ly Giok Ha. Besides, some points brought to light
during the deliberations in this case would seem to indicate that
the premises of the later cases can still bear further
consideration.
Whether We like it or not, it is undeniably factual that the legal
provision We are construing, Section 15, aforequoted, of the
Naturalization Law has been taken directly, copied and
adopted from its American counterpart. To be more accurate,
said provision is nothing less than a reenactment of the
American provision. A brief review of its history proves this
beyond per adventure of doubt.
The first Naturalization Law of the Philippines approved by the
Philippine Legislature under American sovereignty was that of
March 26, 1920, Act No. 2927. Before then, as a consequence
of the Treaty of Paris, our citizenship laws were found only in
the Organic Laws, the Philippine Bill of 1902, the Act of the
United States Congress of March 23, 1912 and later the Jones
Law of 1916. In fact, Act No. 2927 was enacted pursuant to
express authority granted by the Jones Law. For obvious
reasons, the Philippines gained autonomy on the subjects of
citizenship and immigration only after the effectivity of the
Philippine Independence Act. This made it practically
impossible for our laws on said subject to have any perspective
or orientation of our own; everything was American.
The Philippine Bill of 1902 provided pertinently: .
SECTION 4. That all inhabitants of the
Philippine Islands continuing to reside
herein who were Spanish subjects on the
eleventh day of April, eighteen-hundred
and ninety-nine, and then resided in said
Islands, and their children born
subsequent thereto, shall be deemed and
held to be citizens of the Philippine Islands
and as such entitled to the protection of
the United States, except such as shall
have elected to preserve their allegiance to
the Crown of Spain in accordance with the
provisions of the treaty of peace between
the United States and Spain signed at
Paris December tenth, eighteen hundred
and ninety-eight.
This Section 4 of the Philippine Bill of 1902 was amended by
Act of Congress of March 23, 1912, by adding a provision as
follows:
Provided, That the Philippine Legislature is
hereby authorized to provide by law for the
acquisition of Philippine citizenship by
those natives of the Philippine Islands who
do not come within the foregoing
provisions, the natives of other insular
possessions of the United States, and
such other persons residing in the
Philippine Islands who would become
citizens of the United States, under the
laws of the United States, if residing
therein.
The Jones Law reenacted these provisions substantially: .
SECTION 2. That all inhabitants of the
Philippine Islands who were Spanish
subjects on the eleventh day of April,
eighteen hundred and ninety-nine, and
then resided in said islands, and their
children born subsequent thereto, shall be
deemed and held to be citizens of the
Philippine Islands, except such as shall
have elected to preserve their allegiance to
the Crown of Spain in accordance with the
provisions of the treaty of peace between
the United States and Spain, signed at
Paris December tenth, eighteen hundred
and ninety-eight and except such others as
have since become citizens of some other
country: Provided, That the Philippine
Legislature, herein provided for, is hereby
authorized to provide by law for the
acquisition of Philippine citizenship by
those natives of the Philippine Islands who
do not come within the foregoing
provisions, the natives of the insular
possessions of the United States, and
such other persons residing in the
Philippine Islands who are citizens of the
United States under the laws of the United
States if residing therein.
For aught that appears, there was nothing in any of the said
organic laws regarding the effect of marriage to a Filipino upon
the nationality of an alien woman, albeit under the Spanish Civil
Code provisions on citizenship, Articles 17 to 27, which were,
however, abrogated upon the change of sovereignty, it was
unquestionable that the citizenship of the wife always followed
that of the husband. Not even Act 2927 contained any
provision regarding the effect of naturalization of an alien, upon
the citizenship of his alien wife, nor of the marriage of such
alien woman with a native born Filipino or one who had
become a Filipino before the marriage, although Section 13
thereof provided thus: .
SEC. 13. Right of widow and children of
petitioners who have died. — In case a
petitioner should die before the final
decision has been rendered, his widow
and minor children may continue the
proceedings. The decision rendered in the
case shall, so far as the widow and minor
children are concerned, produce the same
legal effect as if it had been rendered
during the life of the petitioner.
It was not until November 30, 1928, upon the approval of Act As stated earlier, in the opinion of Chief Justice Concepcion in
3448, amending Act 2977, that the following provisions were the first Ly Giok Ha, it was quite clear that for an alien woman
added to the above Section 13: who marries a Filipino to become herself a Filipino citizen,
there is no need for any naturalization proceeding because she
becomes a Filipina ipso facto from the time of such marriage,
SECTION 1. The following new sections
provided she does not suffer any of the disqualifications
are hereby inserted between sections
enumerated in Section 4 of Commonwealth Act 473, with no
thirteen and fourteen of Act Numbered
mention being made of whether or not the qualifications
Twenty-nine hundred and Twenty-seven:
enumerated in Section 2 thereof need be shown. It was only
in Lee Suan Ay in 1959 that the possession of qualifications
SEC. 13(a). Any were specifically required, but it was not until 1963, in Lo San
woman who is now or Tuang, that Justice Regala reasoned out why the possession
may hereafter be of the qualifications provided by the law should also be shown
married to a citizen of to be possessed by the alien wife of a Filipino, for her to
the Philippine Islands become a Filipina by marriage.
and who might herself
be lawfully naturalized,
As may be recalled, the basic argument advanced by Justice
shall be deemed a
Regala was briefly as follows: That "like the law in the United
citizen of the
States, our Naturalization Law specified the classes of persons
Philippine Islands.
who alone might become citizens, even as it provided who
were disqualified," and inasmuch as Commonwealth Act 473,
SEC. 13(b). Children our Naturalization Law since 1939 did not reenact the section
of persons who have providing who might become citizens, allegedly in order to
been duly naturalized remove racial discrimination in favor of Caucasians and against
under this law, being Asiatics, "the only logical deduction ... is that the phrase "who
under the age of might herself be lawfully naturalized" must now be understood
twenty-one years at as referring to those who under Section 2 of the law are
the time of the qualified to become citizens of the Philippines" and "there is
naturalization of their simply no support for the view that the phrase "who might
parents, shall, if herself be lawfully naturalized" must now be understood as
dwelling in the requiring merely that the alien woman must not belong to the
Philippine Islands, be class of disqualified persons under Section 4 of the Revised
considered citizens Naturalization Law." 14
thereof.
A similar line of reasoning was followed in Choy King Tee,
SEC. 13(c). Children which for ready reference may be qouted:
of persons naturalized
under this law who
The question has been settled by the
have been born in the
uniform ruling of this Court in a number of
Philippine Islands after
cases. The alien wife of a Filipino citizen
the naturalization of
must first prove that she has all the
their parents shall be
qualifications required by Section 2 and
considered citizens
none of the disqualifications enumerated in
thereof.
Section 4 of the Naturalization Law before
she may be deemed a Philippine citizen
When Commonwealth Act 473, the current naturalization law, (Lao Chay v. Galang, L-190977, Oct. 30,
was enacted on June 17, 1939, the above Section 13 became 1964, citing Lo San Tuang v. Galang, L-
its Section 15 which has already been quoted earlier in this 18775, Nov. 30, 1963; Sun Peck Yong v.
decision. As can be seen, Section 13 (a) abovequoted was re- Commissioner of Immigration, L-20784,
enacted practically word for word in the first paragraph of this December 27, 1963; Tong Siok Sy v. Vivo,
Section 15 except for the change of Philippine Islands to L-21136, December 27, 1963). The writer
Philippines. And it could not have been on any other basis than of this opinion has submitted the question
this legislative history of our naturalization law that each and anew to the court for a possible
everyone of the decisions of this Court from the first Ly Giok Ha reexamination of the said ruling in the light
to Go Im Ty, discussed above, were rendered. of the interpretation of a similar law in the
United States after which Section 15 of our
Naturalization Law was patterned. That law
was section 2 of the Act of February 10,
1855 (Section 1994 of the Revised
Statutes of the U.S.). The local law, Act
No. 3448, was passed on November 30,
1928 as an amendment to the former
Philippine Naturalization Law, Act No.
2927, which was approved on March 26,
1920. Under this Naturalization Law,
acquisition of Philippine citizenship was
limited to three classes of persons, (a)
Natives of the Philippines who were not
citizens thereof; (b) natives of the other
insular possessions of the United States;
and (c) citizens of the United States, or
foreigners who, under the laws of the
United States, may become citizens of the
latter country if residing therein. The
reference in subdivision (c) to foreigners
who may become American Citizens is
restrictive in character, for only persons of
certain specified races were qualified
thereunder. In other words, in so far as
racial restrictions were concerned there
was at the time a similarity between the
naturalization laws of the two countries
and hence there was reason to accord
here persuasive force to the interpretation
given in the United States to the statutory
provision concerning the citizenship of
alien women marrying American citizens.
This Court, however, believes that such
reason has ceased to exist since the
enactment of the Revised Naturalization
Law, (Commonwealth Act No. 473) on
June 17, 1939. The racial restrictions have
been eliminated in this Act, but the
provision found in Act No. 3448 has been
maintained. It is logical to presume that
when Congress chose to retain the said
provision — that to be deemed a Philippine
citizen upon marriage the alien wife must
be one "who might herself be lawfully
naturalized," the reference is no longer to
the class or race to which the woman
belongs, for class or race has become
immaterial, but to the qualifications and
disqualifications for naturalization as
enumerated in Sections 2 and 4 of the
statute. Otherwise the requirement that the
woman "might herself be lawfully
naturalized" would be meaningless
surplusage, contrary to settled norms of
statutory construction.
The rule laid down by this Court in this and
in other cases heretofore decided is
 believed to be in line with the national
policy of selective admission to Philippine
citizenship, which after all is a privilege
granted only to those who are found
worthy thereof, and not indiscriminately to
anybody at all on the basis alone of
marriage to a man who is a citizen of the
Philippines, irrespective of moral character,
ideological beliefs, and identification with
Filipino ideals, customs and traditions.
Appellee here having failed to prove that
she has all the qualifications for
naturalization, even, indeed, that she has
none of the disqualifications, she is not
entitled to recognition as a Philippine
citizen.
In the second Ly Giok Ha, the Court further fortified the
arguments in favor of the same conclusion thus:
On cross-examination, she (Ly Giok Ha)
failed to establish that: (1) she has been
residing in the Philippines for a continuous
period of at least (10) years (p. 27,
t.s.n., id.); (2) she has a lucrative trade,
profession, or lawful occupation (p. 13,
t.s.n., id.); and (3) she can speak and write
English, or any of the principal Philippine
languages (pp. 12, 13, t.s.n., id.).
While the appellant Immigration
Commissioner contends that the words
emphasized indicate that the present
Naturalization Law requires that an alien
woman who marries a Filipino husband
must possess the qualifications prescribed
by section 2 in addition to not being
disqualified under any of the eight ("a" to
"h") subheadings of section 4 of
Commonwealth Act No. 473, in order to
claim our citizenship by marriage, both the
appellee and the court below (in its second
decision) sustain the view that all that the
law demands is that the woman be not
disqualified under section 4.
At the time the present case was
remanded to the court of origin (1960) the
question at issue could be regarded as not
conclusively settled, there being only the
concise pronouncement in Lee Suan Ay,
et al. v. Galang, G. R. No. L-11855, Dec.
23, 1959, to the effect that:
The marriage of a
Filipino citizen to an
alien does not
automatically confer
Philippine citizenship
upon the latter. She
must possess the
qualifications required
by law to become a
Filipino citizen by
naturalization.
Since that time, however, a long line of
decisions of this Court has firmly
established the rule that the requirement of
section 15 of Commonwealth Act 473 (the
Naturalization Act), that an alien woman
married to a citizen should be one who
"might herself be lawfully naturalized,"
means not only woman free from the
disqualifications enumerated in section 4
of the Act but also one who possesses the
qualifications prescribed by section 2 of
Commonwealth Act 473 (San Tuan v.
Galang, L-18775, Nov. 30, 1963; Sun Peck
Yong v. Com. of Immigration, L-20784,
Dee. 27, 1963; Tong Siok Sy v. Vivo, L-
21136, Dec. 27, 1963; Austria v. Conchu,
L-20716, June 22, 1965; Choy King Tee v.
Galang, L-18351, March 26, 1965; Brito v.
Com. of Immigration, L-16829, June 30,
1965).
Reflection will reveal why this must be so.
The qualifications prescribed under section
2 of the Naturalization Act, and the
disqualifications enumerated in its section
4 are not mutually exclusive; and if all that
were to be required is that the wife of a
Filipino be not disqualified under section 4,
the result might well be that citizenship
would be conferred upon persons in
violation of the policy of the statute. For
example, section 4 disqualifies only —
(c) Polygamists or believers in the practice
of polygamy; and
(d) Persons convicted of crimes involving
moral turpitude,
so that a blackmailer, or a maintainer of
gambling or bawdy houses, not previously
convicted by a competent court would not
be thereby disqualified; still, it is certain
that the law did not intend such person to
be admitted as a citizen in view of the
requirement of section 2 that an applicant
for citizenship "must be of good moral
character."
Similarly, the citizen's wife might be a
convinced believer in racial supremacy, in
government by certain selected classes, in
the right to vote exclusively by certain
"herrenvolk", and thus disbelieve in the
principles underlying the Philippine
Constitution; yet she would not be
disqualified under section 4, as long as
she is not "opposed to organized
government," nor affiliated to groups
"upholding or teaching doctrines opposing
all organized governments", nor "defending
or teaching the necessity or propriety of
violence, personal assault or assassination
for the success or predominance of their
ideas." Et sic de caeteris.
The foregoing instances should suffice to
illustrate the danger of relying exclusively
on the absence of disqualifications, without
taking into account the other affirmative
requirements of the law, which, in the case
at bar, the appellee Ly Giok Ha admittedly
does not possess.
As to the argument that the phrase "might
herself be lawfully naturalized" was derived
from the U.S. Revised Statutes (section
1994) and should be given the same
territorial and racial significance given to it
by American courts, this Court has rejected
the same in Lon San Tuang v. Galang, L-
18775, November 30, 1963; and in Choy
King Tee v. Galang, L-18351, March 26,
1965.
It is difficult to minimize the persuasive force of the foregoing
rationalizations, but a closer study thereof cannot bat reveal
certain relevant considerations which adversely affect the
premises on which they are predicated, thus rendering the
conclusions arrived thereby not entirely unassailable.
1. The main proposition, for instance, that in eliminating
Section 1 of Act 2927 providing who are eligible for Philippine
citizenship, the purpose of Commonwealth Act 473, the
Revised Naturalization Law, was to remove the racial
requirements for naturalization, thereby opening the door of
Filipino nationality to Asiatics instead of allowing the admission
thereto of Caucasians only, suffers from lack of exact accuracy.
It is important to note, to start with, that Commonwealth Act
473 did away with the whole Section 1 of Act 2927 which
reads, thus:
SECTION 1. Who may become Philippine
citizens. — Philippine citizenship may be
acquired by: (a) natives of the Philippines
who are not citizens thereof under the
Jones Law; (b) natives of the other Insular
possessions of the United States; (c)
citizens of the United States, or foreigners
who under the laws of the United States
may become citizens of said country if
residing therein.
and not only subdivision (c) thereof. Nowhere in this whole
provision was there any mention of race or color of the persons
who were then eligible for Philippine citizenship. What is more
evident from said provision is that it reflected the inevitable
subordination of our legislation during the pre-Commonwealth
American regime to the understandable stations flowing from
our staffs as a territory of the United States by virtue of the
Treaty of Paris. In fact, Section 1 of Act 2927 was precisely
approved pursuant to express authority without which it could
not have been done, granted by an amendment to Section 4 of
the Philippine Bill of 1902 introduced by the Act of the United
States Congress of March 23, 1912 and which was reenacted
as part of the Jones Law of 1916, the pertinent provisions of
which have already been footed earlier. In truth, therefore, it
was because of the establishment of the Philippine
Commonwealth and in the exercise of our legislative autonomy
on citizenship matters under the Philippine Independence Act
that Section 1 of Act 2927 was eliminated, 15 and not purposely
to eliminate any racial discrimination contained in our
Naturalization Law. The Philippine Legislature naturally wished
to free our Naturalization Law from the impositions of American
legislation. In other words, the fact that such discrimination was
removed was one of the effects rather than the intended
purpose of the amendment.
2. Again, the statement in Choy King Tee to the effect that "the
reference in subdivision (c) (of Section 1 of Act 2927) to
foreigners who may become American citizens is restrictive in
character, for only persons of certain specified races were
qualified thereunder" fails to consider the exact import of the
said subdivision. Explicitly, the thrust of the said subdivision
was to confine the grant under it of Philippine citizenship only
to the three classes of persons therein mentioned, the third of
which were citizens of the United States and, corollarily,
persons who could be American citizens under her laws. The
words used in the provision do not convey any idea of favoring
aliens of any particular race or color and of excluding others,
but more accurately, they refer to all the disqualifications of
foreigners for American citizenship under the laws of the United
States. The fact is that even as of 1906, or long before 1920,
when our Act 2927 became a law, the naturalization, laws of
the United States already provided for the following
disqualifications in the Act of the Congress of June 29, 1906:
SEC. 7. That no person who disbelieves in
or who is opposed to organized
government, or who is a member of or
affiliated with any organization entertaining
and teaching such disbelief in or
opposition to organized government, or
who advocates or teaches the duty,
necessity, or propriety of the unlawful
assaulting or killing of any officer or
officers, either of specific individuals or of
officers generally, of the Government of
the United States, or of any other
organized government, because of his or
their official character, or who is a
polygamist, shall be naturalized or be
made a citizen of the United States.
and all these disqualified persons were, therefore, ineligible for
Philippine citizenship under Section 1 of Act 2927 even if they
happened to be Caucasians. More importantly, as a matter of
fact, said American law, which was the first "Act to Establish a
Bureau of Immigration and Naturalization and to provide for a
Uniform Rule for Naturalization of Aliens throughout the United
States" contained no racial disqualification requirement, except
as to Chinese, the Act of May 6, 1882 not being among the
expressly repealed by this law, hence it is clear that when Act
2927 was enacted, subdivision (e) of its Section 1 could not
have had any connotation of racial exclusion necessarily, even
if it were traced back to its origin in the Act of the United States
Congress of 1912 already mentioned above. 16 Thus, it would
seem that the rationalization in the qouted decisions predicated
on the theory that the elimination of Section 1 of Act 2927 by
Commonwealth Act 473 was purposely for no other end than
the abolition of racial discrimination in our naturalization law
has no clear factual basis. 17
3. In view of these considerations, there appears to be no
cogent reason why the construction adopted in the opinions of
the Secretary of Justice referred to in the first Ly Giok Ha
decision of the Chief Justice should not prevail. It is beyond
dispute that the first paragraph of Section 15 of Commonwealth
Act 473 is a reenactment of Section 13(a) of Act 2927, as
amended by Act 3448, and that the latter is nothing but an
exact copy, deliberately made, of Section 1994 of the Raised
Statutes of the United States as it stood before its repeal in
1922. 18 Before such repeal, the phrase "who might herself be
lawfully naturalized" found in said Section 15 had a definite
unmistakable construction uniformly foIlowed in all courts of the
United States that had occasion to apply the same and which,
therefore, must be considered, as if it were written in the
statute itself. It is almost trite to say that when our legislators
enacted said section, they knew of its unvarying construction in
the United States and that, therefore, in adopting verbatim the
American statute, they have in effect incorporated into the
provision, as thus enacted, the construction given to it by the
American courts as well as the Attorney General of the United
States and all administrative authorities, charged with the
implementation of the naturalization and immigration laws of
that country. (Lo Cham v. Ocampo, 77 Phil., 635 [1946];
Laxamana v. Baltazar, 92 Phil., 32 [1952]; Hartley v.
Commissioner, 295 U.S. 216, 79 L. ed. 1399, 55 S Ct. 756
[19353; Helvering v. Winmill, 305 U.S. 79, 83 L ed. 52, 59 S Ct.
45 [1938]; Helvering v. R. J. Reynolds Tobacco Co., 306 U.S.
110, 83 L ed. 536, 59 S Ct. 423 [1939]. [p. 32, Memo of Amicus
Curiae]).
A fairly comprehensive summary of the said construction by the
American courts and administrative authorities is contained in
United States of America ex rel. Dora Sejnensky v. Robert E.
Tod, Commissioner of Immigration, Appt., 295 Fed. 523,
decided November 14, 1922, 26 A. L. R. 1316 as follows:
Section 1994 of the Revised Statutes
(Comp. Stat. 3948, 2 Fed. Sta. Anno. 2d
ed. p. 117) provides as follows: "Any
woman who is now or may hereafter be
married to a citizen of the United States,
and who might herself be lawfully
naturalized, shall be deemed a citizen."
Section 1944 of the Revised Stat. is said to
originate in the Act of Congress of
February 10, 1855 (10 Stat. at L. 604,
chap. 71), which in its second section
provided "that any woman, who might
lawfully be naturalized under the existing
laws, married, or who shall be married to a
citizen of the United States, shall be
deemed and taken to be a citizen."
And the American Statute of 1855 is
substantially a copy of the earlier British
Statute 7 & 8 Vict. chap. 66, s 16, 1844,
which provided that "any woman married,
or who shall be married, to a natural-born
subject or person naturalized, shall be
deemed and taken to be herself
naturalized, and have all the rights and
privileges of a natural born subject."
The Act of Congress of September 22,
1922 (42 Stat. at L. 1021, chap. 411,
Comp. Stat. 4358b, Fed. Stat. Anno. Supp.
1922, p. 255), being "An Act Relative to
the Naturalization and Citizenship of
Married Women," in 2, provides "that any
woman who marries a citizen of the United
States after the passage of this Act, ...
shall not become a citizen of the United
States by reason of such marriage ..."
Section 6 of the act also provides "that
1994 of the Revised Statutes ... are
repealed."
Section 6 also provides that `such repeal
shall not terminate citizenship acquired or
retained under either of such sections, ..."
meaning 2 and 6. So that this Act of
September 22, 1922, has no application to
the facts of the present case, as the
marriage of the relator took place prior to
its passage. This case, therefore, depends
upon the meaning to be attached to 1994
of the Revised Statutes.
In 1868 the Supreme Court, in Kelly v.
Owen, 7 Wall. 496, 498, 19 L. ed. 283,
284, construed this provision as found in
the Act of 1855 as follows: "The term, "who
might lawfully be naturalized under the
existing laws," only limits the application of
the law to free white women. The previous
Naturalization Act, existing at the time, only
required that the person applying for its
benefits should be "a free white person,"
and not an alien enemy."
This construction limited the effect of the
statute to those aliens who belonged to the
class or race which might be lawfully
naturalized, and did not refer to any of the
other provisions of the naturalization laws
as to residence or moral character, or to
any of the provisions of the immigration
laws relating to the exclusion or
deportation of aliens.
In 1880, in Leonard v. Grant (C. C.) 5 Fed.
11, District Judge Deady also construed
the Act of 1855, declaring that "any woman
who is now or may hereafter be married to
a citizen of the United States, and might
herself be lawfully naturalized, shall be
deemed a citizen." He held that "upon the
authorities, and the reason, if not the
necessity, of the case," the statute must be
construed as in effect declaring that an
alien woman, who is of the class or race
that may be lawfully naturalized under the
existing laws, and who marries a citizen of
the United States, is such a citizen also,
and it was not necessary that it should
appear affirmatively that she possessed
the other qualifications at the time of her
marriage to entitle her to naturalization.
In 1882, the Act of 1855 came before Mr.
Justice Harlan, sitting in the circuit court,
in United States v. Kellar, 13 Fed. 82. An
alien woman, a subject of Prussia came to
the United States and married here a
naturalized citizen. Mr. Justice Harlan, with
the concurrence of Judge Treat, held that
upon her marriage she became ipso
facto a citizen of the United States as fully
as if she had complied with all of the
provisions of the statutes upon the subject
of naturalization. He added: "There can be
no doubt of this, in view of the decision of
the Supreme Court of the United, States in
Kelly v. Owen, 7 Wall. 496, 19 L. ed. 283."
The alien "belonged to the class of
persons" who might be lawfully
naturalized.
In 1904, in Hopkins v. Fachant, 65 C. C. A.
1, 130 Fed. 839, an alien woman came to
the United States from France and entered
the country contrary to the immigration
laws. The immigration authorities took her
into custody at the port of New York, with
the view of deporting her. She applied for
her release under a writ of habeas corpus,
and pending the disposition of the matter
she married a naturalized American
citizen. The circuit court of appeals for the
ninth Circuit held, affirming the court
below, that she was entitled to be
discharged from custody. The court
declared: "The rule is well settled that her
marriage to a naturalized citizen of the
United States entitled her to be
discharged. The status of the wife follows
that of her husband, ... and by virtue of her
marriage her husband's domicil became
her domicil." .
In 1908, the circuit court for the district of
Rhode Island in Re Rustigian, 165. Fed.
980, had before it the application of a
husband for his final decree of
naturalization. It appeared that at that time
his wife was held by the immigration
authorities at New York on the ground that
she was afflicted with a dangerous and
contagious disease. Counsel on both sides
agreed that the effect of the husband's
naturalization would be to confer
citizenship upon the wife. In view of that
contingency District Judge Brown declined
to pass upon the husband's application for
naturalization, and thought it best to wait
until it was determined whether the wife's
disease was curable. He placed his failure
to act on the express ground that the effect
of naturalizing the husband might
naturalize her. At the same time he
express his opinion that the husband's
naturalization would not effect her
naturalization, as she was not one who
could become lawfully naturalized. "Her
own capacity (to become naturalized)," the
court stated "is a prerequisite to her
attaining citizenship. If herself lacking in
that capacity, the married status cannot
confer it upon her." Nothing, however, was
actually decided in that case, and the
views expressed therein are really nothing
more than mere dicta. But, if they can be
regarded as something more than that, we
find ourselves, with all due respect for the
learned judge, unable to accept them.
In 1909, in United States ex rel. Nicola v.
Williams, 173 Fed. 626, District Judge
Learned Hand held that an alien woman, a
subject of the Turkish Empire, who married
an American citizen while visiting Turkey,
and then came to the United States, could
not be excluded, although she had, at the
time of her entry, a disease which under
the immigration laws would have been
sufficient ground for her exclusion, if she
bad not had the status of a citizen. The
case was brought into this court on appeal,
and in 1911 was affirmed, in 106 C. C. A.
464, 184 Fed. 322. In that case, however
at the time the relators married, they might
have been lawfully naturalized, and we
said: "Even if we assume the contention of
the district attorney to be correct that
marriage will not make a citizen of a
woman who would be excluded under our
immigration laws, it does not affect these
relators."
We held that, being citizens, they could not
be excluded as aliens; and it was also said
to be inconsistent with the policy of our law
that the husband should be a citizen and
the wife an alien. The distinction between
that case and the one now before the court
is that, in the former case, the marriage
took place before any order of exclusion
had been made, while in this the marriage
was celebrated after such an order was
made. But such an order is a mere
administrative provision, and has not the
force of a judgment of a court, and works
no estoppel. The administrative order is
based on the circumstances that existed at
the time the order of exclusion was made.
If the circumstances change prior to the
order being carried into effect, it cannot be
executed. For example, if an order of
exclusion should be based on the ground
that the alien was at the time afflicted with
a contagious disease, and it should be
made satisfactorily to appear, prior to
actual deportation, that the alien had
entirely recovered from the disease, we
think it plain that the order could not be
carried into effect. So, in this case, if, after
the making of the order of exclusion and
while she is permitted temporarily to
remain, she in good faith marries an
American citizen, we cannot doubt the
validity of her marriage, and that she
thereby acquired, under international law
and under 1994 of the Revised Statutes,
American citizenship, and ceased to be an
alien. There upon, the immigration
authorities lost their jurisdiction over her,
as that jurisdiction applies only to aliens,
and not to citizens.
In 1910, District Judge Dodge, in Ex
parte Kaprielian, 188 Fed. 694, sustained
the right of the officials to deport a woman
under the following circumstances: She
entered this country in July, 1910, being an
alien and having been born in Turkey. She
was taken into custody by the immigration
authorities in the following September, and
in October a warrant for her deportation
was issued. Pending hearings as to the
validity of that order, she was paroled in
the custody of her counsel. The ground
alleged for her deportation was that she
was afflicted with a dangerous and
contagious disease at the time of her
entry. One of the reasons assigned to
defeat deportation was that the woman
had married a citizen of the United States
pending the proceedings for her
deportation. Judge Dodge declared himself
unable to believe that a marriage under
such circumstances "is capable of having
the effect claimed, in view of the facts
shown." He held that it was no part of the
intended policy of 1994 to annul or
override the immigration laws, so as to
authorize the admission into the country of
the wife of a naturalized alien not
otherwise entitled to enter, and that an
alien woman, who is of a class of persons
excluded by law from admission to the
United States does not come within the
provisions of that section. The court relied had been found an inmate of a house of
wholly upon the dicta contained in the prostitution and practicing the same within
Rustigian Case. No other authorities were three years after landing. It appeared,
cited. however, that after she was taken before
the United States commissioner, but prior
to her arrest under a warrant by the
In 1914, District Judge Neterer, in Ex parte
Department of Justice, she was lawfully
Grayson, 215 Fed. 449, construed 1994
married to a native-born citizen of the
and held that where, pending proceedings
United States. The woman professed at
to deport an alien native of France as an
the time of her marriage an intention to
alien prostitute, she was married to a
abandon her previous mode of life and to
citizen of the United States, she thereby
remove with her husband to his home in
became a citizen, and was not subject to
Pennsylvania. He knew what her mode of
deportation until her citizenship was
life had been, but professed to believe in
revoked by due process of law. It was his
her good intentions. The question was
opinion that if, as was contended, her
raised as to the right to deport her, the
marriage was conceived in fraud, and was
claim being advance that by her marriage
entered into for the purpose of evading the
she bad become an American citizen and
immigration laws and preventing her
therefore could not be deported. The
deportation, such fact should be
Attorney General ruled against the right to
established in a court of competent
deport her as she had become an
jurisdiction in an action commenced for the
American citizen. He held that the words,
purpose. The case was appealed and the
"who might herself be lawfully naturalized,"
appeal was dismissed. 134 C. C. A. 666,
refer to a class or race who might be
219 Fed. 1022.
lawfully naturalized, and that compliance
with the other conditions of the
It is interesting also to observe the naturalization laws was not required. 27
construction placed upon the language of Ops. Atty. Gen. 507.
the statute by the Department of Justice. In
1874, Attorney General Williams, 14 Ops.
Before concluding this opinion, we may
Atty. Gen. 402, passing upon the Act of
add that it has not escaped our
February 10, 1855, held that residence
observation that Congress, in enacting the
within the United States for the period
Immigration Act of 1917, so as to provide,
required by the naturalization laws was riot
in 19, "that the marriage to an American
necessary in order to constitute an alien
citizen of a female of the sexually immoral
woman a citizen, she having married a
classes ... shall not invest such female with
citizen of the United States abroad,
United States citizenship if the marriage of
although she never resided in the United
such alien female shall be solemnized after
States, she and her husband having
her arrest or after the commission of acts
continued to reside abroad after the
which make her liable to deportation under
marriage.
this act."
In 1909, a similar construction was given to
Two conclusions seem irresistibly to follow
the Immigration Act of May 5, 1907, in an
from the above change in the law:
opinion rendered by Attorney General
Wickersham. It appeared an unmarried
woman, twenty-eight years of age and a (1) Congress deemed legislation essential
native of Belgium, arrived in New York and to prevent women of the immoral class
went at once to a town in Nebraska, where avoiding deportation through the device of
she continued to reside. About fifteen marrying an American citizen.
months after her arrival she was taken
before a United States commissioner by
(2) If Congress intended that the marriage
way of instituting proceedings under the
of an American citizen with an alien
Immigration Act (34 Stat. at L. 898, chap.
woman of any other of the excluded
1134, Comp. Stat. 4242, 3 Fed. Stat.
classes, either before or after her
Anno. 2d ed. p. 637) for her deportation,
detention, should not confer upon her
on the ground that she had entered this
American citizenship, thereby entitling her
country for the purpose of prostitution, and
 to enter the country, its intention would
have been expressed, and 19 would not
have been confined solely to women of the
immoral class.
Indeed, We have examined all the leading American decisions
on the subject and We have found no warrant for the
proposition that the phrase "who might herself be lawfully
naturalized" in Section 1994 of the Revised Statutes was
meant solely as a racial bar, even if loose statements in some
decisions and other treaties and other writings on the subject
would seem to give such impression. The case of Kelley v.
Owen, supra, which appears to be the most cited among the
first of the decisions 19 simply held:
As we construe this Act, it confers the
privileges of citizenship upon women
married to citizens of the United States, if
they are of the class of persons for whose
naturalization the previous Acts of
Congress provide. The terms "married" or
"who shall be married," do not refer in our
judgment, to the time when the ceremony
of marriage is celebrated, but to a state of
marriage. They mean that, whenever a
woman, who under previous Acts might be
naturalized, is in a state of marriage to a
citizen, whether his citizenship existed at
the passage of the Act or subsequently, or
before or after the marriage, she becomes,
by that fact, a citizen also. His citizenship,
whenever it exists, confers, under the Act,
citizenship upon her. The construction
which would restrict the Act to women
whose husbands, at the time of marriage,
are citizens, would exclude far the greater
number, for whose benefit, as we think, the
Act was intended. Its object, in our opinion,
was to allow her citizenship to follow that of
her husband, without the necessity of any
application for naturalization on her part;
and, if this was the object, there is no
reason for the restriction suggested.
The terms, "who might lawfully be
naturalized under the existing laws," only
limit the application of the law to free white
women. The previous Naturalization Act,
existing at the time only required that the
person applying for its benefits should be
"a free white person," and not an alien
enemy. Act of April 14th, 1802, 2 Stat. at L.
153.
A similar construction was given to the Act
by the Court of Appeals of New York,
in Burton v. Burton, 40 N. Y. 373; and is
the one which gives the widest extension
to its provisions.
Note that write the court did say that "the terms, "who might
lawfully be naturalized under existing laws" only limit the
application to free white women" 20 it hastened to add that "the
previous Naturalization Act, existing at the time, ... required that
the person applying for its benefits should be (not only) a "free
white person" (but also) ... not an alien enemy." This is simply
because under the Naturalization Law of the United States at
the time the case was decided, the disqualification of enemy
aliens had already been removed by the Act of July 30, 1813,
as may be seen in the corresponding footnote hereof anon. In
other words, if in the case of Kelly v. Owen only the race
requirement was mentioned, the reason was that there was no
other non-racial requirement or no more alien enemy
disqualification at the time; and this is demonstrated by the fact
that the court took care to make it clear that under the previous
naturalization law, there was also such requirement in addition
to race. This is impotent, since as stated in re Rustigian, 165
Fed. Rep. 980, "The expression used by Mr. Justice Field, (in
Kelly v. Owen) the terms "who might lawfully be naturalized
under existing laws" only limit the application of the law to free
white women, must be interpreted in the application to the
special facts and to the incapacities under the then existing
laws," (at p. 982) meaning that whether or not an alien wife
marrying a citizen would be a citizen was dependent, not only
on her race and nothing more necessarily, but on whether or
not there were other disqualifications under the law in force at
the time of her marriage or the naturalization of her husband.
4. As already stated, in Lo San Tuang, Choy King Tee and the
second Ly Giok Ha, the Court drew the evidence that because
Section 1 of Act 2927 was eliminated by Commonwealth Act
473, it follows that in place of the said eliminated section
particularly its subdivision (c), being the criterion of whether or
not an alien wife "may be lawfully naturalized," what should be
required is not only that she must not be disqualified under
Section 4 but that she must also possess the qualifications
enumerated in Section 2, such as those of age, residence,
good moral character, adherence to the underlying principles of
the Philippine Constitution, irreproachable conduct, lucrative
employment or ownership of real estate, capacity to speak and
write English or Spanish and one of the principal local
languages, education of children in certain schools, etc.,
thereby implying that, in effect, sails Section 2 has been
purposely intended to take the place of Section 1 of Act 2927.
Upon further consideration of the proper premises, We have
come, to the conclusion that such inference is not sufficiently
justified.
To begin with, nothing extant in the legislative history, which
We have already explained above of the mentioned provisions
has been shown or can be shown to indicate that such was the
clear intent of the legislature. Rather, what is definite is that
Section 15 is, an exact copy of Section 1994 of the Revised
Statutes of the United States, which, at the time of the approval
of Commonwealth Act 473 had already a settled construction
by American courts and administrative authorities.
Secondly, as may be gleaned from the summary of pertinent
American decisions quoted above, there can be no doubt that
in the construction of the identically worded provision in the
Revised Statutes of the United States, (Section 1994, which
was taken, from the Act of February 10, 1855) all authorities in
the United States are unanimously agreed that the
qualifications of residence, good moral character, adherence to
the Constitution, etc. are not supposed to be considered, and
that the only eligibility to be taken into account is that of the
race or class to which the subject belongs, the conceptual
scope of which, We have just discussed. 21 In the very case
of Leonard v. Grant, supra, discussed by Justice Regala in Lo
San Tuang, the explanation for such posture of the American
authorities was made thus:
The phrase, "shall be deemed a citizen" in
section 1994 Rev. St., or as it was in the
Act of 1855, supra, "shall be deemed and
taken to be a citizen" while it may imply
that the person to whom it relates has not
actually become a citizen by ordinary
means or in the usual way, as by the
judgment of a competent court, upon a
proper application and proof, yet it does
not follow that such person is on that
account practically any the less a citizen.
The word "deemed" is the equivalent of
"considered" or "judged"; and, therefore,
whatever an act of Congress requires to
be "deemed" or "taken" as true of any
person or thing, must, in law, be
considered as having been duly adjudged
or established concerning "such person or
thing, and have force and effect
accordingly. When, therefore, Congress
declares that an alien woman shall, under
certain circumstances, be "deemed' an
American citizen, the effect when the
contingency occurs, is equivalent to her
being naturalized directly by an act of
Congress, or in the usual mode thereby
prescribed.
Unless We disregard now the long settled familiar rule of
statutory construction that in a situation like this wherein our
legislature has copied an American statute word for word, it is
understood that the construction already given to such statute
before its being copied constitute part of our own law, there
seems to be no reason how We can give a different
connotation or meaning to the provision in question. At least,
We have already seen that the views sustaining the contrary
conclusion appear to be based on in accurate factual premises
related to the real legislative background of the framing of our
naturalization law in its present form.
Thirdly, the idea of equating the qualifications enumerated in
Section 2 of Commonwealth Act 473 with the eligibility
requirements of Section 1 of Act 2927 cannot bear close
scrutiny from any point of view. There is no question that
Section 2 of Commonwealth Act 473 is more or less
substantially the same as Section 3 of Act 2927. In other
words, Section 1 of Act 2927 co-existed already with practically
the same provision as Section 2 of Commonwealth Act 473. If it
were true that the phrase "who may be lawfully naturalized" in
Section 13 (a) of Act 2927, as amended by Act 3448, referred
to the so-called racial requirement in Section 1 of the same Act,
without regard to the provisions of Section 3 thereof, how could
the elimination of Section 1 have the effect of shifting the
reference to Section 3, when precisely, according to the
American jurisprudence, which was prevailing at the time
Commonwealth Act 473 was approved, such qualifications as
were embodied in said Section 3, which had their counterpart
in the corresponding American statutes, are not supposed to
be taken into account and that what should be considered only
are the requirements similar to those provided for in said
Section 1 together with the disqualifications enumerated in
Section 4?
Fourthly, it is difficult to conceive that the phrase "who might be
lawfully naturalized" in Section 15 could have been intended to
convey a meaning different than that given to it by the
American courts and administrative authorities. As already
stated, Act 3448 which contained said phrase and from which it
was taken by Commonwealth Act 473, was enacted in 1928.
By that, time, Section 1994 of the Revised Statutes of the
United States was no longer in force because it had been
repealed expressly the Act of September 22, 1922 which did
away with the automatic naturalization of alien wives of
American citizens and required, instead, that they submit to
regular naturalization proceedings, albeit under more liberal
terms than those of other applicants. In other words, when our
legislature adopted the phrase in question, which, as already
demonstrated, had a definite construction in American law, the
Americans had already abandoned said phraseology in favor of
a categorical compulsion for alien wives to be natural judicially.
Simple logic would seem to dictate that, since our lawmakers,
at the time of the approval of Act 3448, had two choices, one to
adopt the phraseology of Section 1994 with its settled
construction and the other to follow the new posture of the
Americans of requiring judicial naturalization and it appears
that they have opted for the first, We have no alternative but to
conclude that our law still follows the old or previous American
Law On the subject. Indeed, when Commonwealth Act 473 was
approved in 1939, the Philippine Legislature, already
autonomous then from the American Congress, had a clearer
chance to disregard the old American law and make one of our
own, or, at least, follow the trend of the Act of the U.S.
Congress of 1922, but still, our legislators chose to maintain
the language of the old law. What then is significantly important
is not that the legislature maintained said phraseology after
Section 1 of Act 2927 was eliminated, but that it continued
insisting on using it even after the Americans had amended
their law in order to provide for what is now contended to be
the construction that should be given to the phrase in question.
Stated differently, had our legislature adopted a phrase from an
American statute before the American courts had given it a
construction which was acquiesced to by those given upon to
apply the same, it would be possible for Us to adopt a
construction here different from that of the Americans, but as
things stand, the fact is that our legislature borrowed the
phrase when there was already a settled construction thereof,
and what is more, it appears that our legislators even ignored
the modification of the American law and persisted in
maintaining the old phraseology. Under these circumstances, it
would be in defiance of reason and the principles of Statutory
construction to say that Section 15 has a nationalistic and
selective orientation and that it should be construed
independently of the previous American posture because of the
difference of circumstances here and in the United States. It is
always safe to say that in the construction of a statute, We
cannot fall on possible judicial fiat or perspective when the
demonstrated legislative point of view seems to indicate
otherwise.
5. Viewing the matter from another angle, there is need to
emphasize that in reality and in effect, the so called racial
requirements, whether under the American laws or the
Philippine laws, have hardly been considered as qualifications
in the same sense as those enumerated in Section 3 of Act
2927 and later in Section 2 of Commonwealth Act 473. More
accurately, they have always been considered as
disqualifications, in the sense that those who did not possess
them were the ones who could not "be lawfully naturalized,"
just as if they were suffering from any of the disqualifications
under Section 2 of Act 2927 and later those under Section 4 of
Commonwealth Act 473, which, incidentally, are practically
identical to those in the former law, except those in paragraphs
(f) and (h) of the latter. 22 Indeed, such is the clear impression
anyone will surely get after going over all the American
decisions and opinions quoted and/or cited in the latest USCA
(1970), Title 8, section 1430, pp. 598-602, and the first
decisions of this Court on the matter, Ly Giok Ha (1959) and
Ricardo Cua, citing with approval the opinions of the secretary
of Justice. 23 Such being the case, that is, that the so-called
racial requirements were always treated as disqualifications in
the same light as the other disqualifications under the law, why
should their elimination not be viewed or understood as a
subtraction from or a lessening of the disqualifications? Why
should such elimination have instead the meaning that what
were previously considered as irrelevant qualifications have
become disqualifications, as seems to be the import of the
holding in Choy King Tee to the effect that the retention in
Section 15 of Commonwealth Act 473 of the same language of
what used to be Section 13 (a) of Act 2927 (as amended by Act
3448), notwithstanding the elimination of Section 1 of the latter,
necessarily indicates that the legislature had in mind making
the phrase in question "who may be lawfully naturalized" refer
no longer to any racial disqualification but to the qualification
under Section 2 of Commonwealth Act 473? Otherwise stated,
under Act 2927, there were two groups of persons that could
not be naturalized, namely, those falling under Section 1 and
those falling under Section 2, and surely, the elimination of one
group, i.e. those belonging to Section 1, could not have had, by
any process of reasoning, the effect of increasing, rather than
decreasing, the disqualifications that used to be before such
elimination. We cannot see by what alchemy of logic such
elimination could have convicted qualifications into
disqualifications specially in the light of the fact that, after all,
these are disqualifications clearly set out as such in the law
distinctly and separately from qualifications and, as already
demonstrated, in American jurisprudence, qualifications had
never been considered to be of any relevance in determining
"who might be lawfully naturalized," as such phrase is used in
the statute governing the status of alien wives of American
citizens, and our law on the matter was merely copied verbatim
from the American statutes.
6. In addition to these arguments based on the applicable legal
provisions and judicial opinions, whether here or in the United
States, there are practical considerations that militate towards
the same conclusions. As aptly stated in the motion for
reconsideration of counsel for petitioner-appellee dated
February 23, 1967, filed in the case of Zita Ngo Burca v.
Republic, supra:
Unreasonableness of requiring alien wife
to prove "qualifications" —
There is one practical consideration that
strongly militates against a construction
that Section 15 of the law requires that an
alien wife of a Filipino must affirmatively
prove that she possesses the qualifications
prescribed under Section 2, before she
may be deemed a citizen. Such condition,
if imposed upon an alien wife, becomes
unreasonably onerous and compliance
therewith manifestly difficult. The
unreasonableness of such requirement is
shown by the following:
1. One of the
qualifications required
of an Applicant for
naturalization under
Section 2 of the law is
that the applicant
"must have resided in
the Philippines for a
continuous period of
not less than ten
years." If this
requirement is applied
to an alien wife citizenship of her qualify her for
married to a Filipino husband must have to citizenship?
citizen, this means prove that she has a
that for a period of ten lucrative income
3. Under Section 2 of
years at least, she derived from a lawful
the law, the applicant
cannot hope to trade, profession or
for naturalization
acquire the citizenship occupation. The
"must have enrolled
of her husband. If the income requirement
his minor children of
wife happens to be a has been interpreted
school age, in any of
citizen of a country to mean that the
the public schools or
whose law declares petitioner herself must
private schools
that upon her marriage be the one to possess
recognized by the
to a foreigner she the said income. (Uy
Office of the Private
automatically loses v. Republic, L-19578,
Education of the
her citizenship and Oct. 27, 1964; Tanpa
Philippines, where
acquires the Ong vs. Republic, L-
Philippine history,
citizenship of her 20605, June 30, 1965;
government and civics
husband, this could Li Tong Pek v.
are taught or
mean that for a period Republic, L-20912,
prescribed as part of
of ten years at least, November 29, 1965).
the school curriculum
she would be In other words, the
during the entire
stateless. And even wife must prove that
period of residence in
after having acquired she has a lucrative
the Philippines
continuous residence income derived from
required of him prior to
in the Philippines for sources other than her
the hearing of his
ten years, there is no husband's trade,
petition for
guarantee that her profession or calling. It
naturalization as
petition for is of common
Philippine citizen." If
naturalization will be knowledge, and
an alien woman has
granted, in which case judicial notice may be
minor children by a
she would remain taken of the fact that
previous marriage to
stateless for an most wives in the
another alien before
indefinite period of Philippines do not
she marries a Filipino,
time. have gainful
and such minor
occupations of their
children had not been
own. Indeed,
2. Section 2 of the law enrolled in Philippine
Philippine law,
likewise requires of schools during her
recognizing the
the applicant for period of residence in
dependence of the
naturalization that he the country, she
wife upon the
"must own real estate cannot qualify for
husband, imposes
in the Philippines naturalization under
upon the latter the
worth not less than the interpretation of
duty of supporting the
five thousand pesos, this Court. The reason
former. (Art. 291, Civil
Philippine currency, or behind the
Code). It should be
must have some requirement that
borne in mind that
known lucrative trade, children should be
universally, it is an
profession, or lawful enrolled in recognized
accepted concept that
occupation." educational institutions
when a woman
Considering the is that they follow the
marries, her primary
constitutional citizenship of their
duty is to be a wife,
prohibition against father. (Chan Ho Lay
mother and
acquisition by an alien v. Republic, L-5666,
housekeeper. If an
of real estate except in March 30, 1954; Tan
alien wife is not to be
cases of hereditary Hi v. Republic, 88 Phil.
remiss in this duty,
succession (Art. XIII, 117 [1951]; Hao Lian
how can she hope to
Sec. 5, Constitution), Chu v. Republic, 87
acquire a lucrative
an alien wife desiring Phil. 668 [1950]; Yap
income of her own to
to acquire the Chin v. Republic, L-
 4177, May 29, 1953; point, the observation made by the the Philippine Islands.
Lim Lian Hong v. Secretary of Justice in 1941 is (Op. No. 22, s. 1941;
Republic, L-3575, enlightening: emphasis ours).
Dec. 26, 1950).
Considering that said
It is true that under, If Section 15 of the, Revised Naturalization
minor children by her
Article 22 of the Law were to be interpreted, as this Court
first husband generally
(Spanish) Civil Code, did, in such a way as to require that the
follow the citizenship
the wife follows the alien wife must prove the qualifications
of their alien father,
nationality of the prescribed in Section 2, the privilege
the basis for such
husband; but the granted to alien wives would become
requirement as
Department of State of illusory. It is submitted that such a
applied to her does
the United States on construction, being contrary to the
not exist. Cessante
October 31, 1921, manifested object of the statute must be
ratione legis cessat
ruled that the alien rejected.
ipsa lex.
wife of a Filipino
citizen is not a Filipino
A statute is to be
4. Under Section 3 of citizen, pointing out
construed with
the law, the 10-year that our Supreme
reference to its
continuous residence Court in the leading
manifest object, and if
prescribed by Section case of Roa v.
the language is
2 "shall be understood Collector of Customs
susceptible of two
as reduced to five (23 Phil. 315) held that
constructions, one
years for any Articles 17 to 27 of the
which will carry out
petitioner (who is) Civil Code being
and the other defeat
married to a Filipino political have been
such manifest object,
woman." It is absurd abrogated upon the
it should receive the
that an alien male cession of the
former construction.
married to a Filipino Philippine Islands to
(In re National Guard,
wife should be the United States.
71 Vt. 493, 45 A.
required to reside only Accordingly, the
1051; Singer v. United
for five years in the stated taken by the
States, 323 U.S. 338,
Philippines to qualify Attorney-General prior
89 L. ed. 285. See
for citizenship, to the envictment of
also, U.S. v. Navarro,
whereas an alien Act No. 3448, was
19 Phil. 134 [1911]; U.
woman married to a that marriage of alien
S. v. Toribio, 15 Phil.
Filipino husband must women to Philippine
85 [1910).
reside for ten years. citizens did not make
the former citizens of
this counting. (Op. ... A construction
Thus under the interpretation given by this
Atty. Gen., March 16, which will cause
Court, it is more difficult for an alien wife
1928) . objectionable results
related by marriage to a Filipino citizen to
should be avoided and
become such citizen, than for a foreigner
the court will, if
who is not so related. And yet, it seems To remedy this
possible, place on the
more than clear that the general purpose anomalous condition,
statute a construction
of the first paragraph of Section 15 was Act No. 3448 was
which will not result in
obviously to accord to an alien woman, by enacted in 1928
injustice, and in
reason of her marriage to a Filipino, a adding section 13(a)
accordance with the
privilege not similarly granted to other to Act No. 2927 which
decisions construing
aliens. It will be recalled that prior to the provides that "any
statutes, a
enactment of Act No. 3448 in 1928, woman who is now or
construction which will
amending Act No. 2927 (the old may hereafter be
result in oppression,
Naturalization Law), there was no law married to a citizen of
hardship, or
granting any special privilege to alien the Philippine Islands,
inconveniences will
wives of Filipinos. They were treated as and who might herself
also be avoided, as
any other foreigner. It was precisely to be lawfully
will a construction
remedy this situation that the Philippine naturalized, shall be
which will prejudice
legislature enacted Act No. 3448. On this deemed a citizen of
public interest, or
 construction resulting arising from Philippine citizenship may motivate such marriage, obviously deliberate choice of words. It is
in unreasonableness, but must the minority, as such cases are bound to be, serve as universally accepted that a State, in
as well as a the criterion for the construction of law? Moreover, it is not extending the privilege of citizenship to an
construction which will farfetched to believe that in joining a Filipino family the alien alien wife of one of its citizens could have
result in absurd woman is somehow disposed to assimilate the customs, beliefs had no other objective than to maintain
consequences. and ideals of Filipinos among whom, after all, she has to live a unity of allegiance among the members
and associate, but surely, no one should expect her to do so of the family. (Nelson v. Nelson, 113 Neb.
even before marriage. Besides, it may be considered that in 453, 203 N. W. 640 [1925]; see also
So a construction
reality the extension of citizenship to her is made by the law not "Convention on the Nationality of Married
should, if possible, be
so much for her sake as for the husband. Indeed, We find the Women: Historical Background and
avoided if the result
following observations anent the national policy rationalization Commentary." UNITED NATIONS,
would be an apparent
in Choy King Tee and Ly Giok Ha (the second) to be quite Department of Economic and Social Affairs
inconsistency in
persuasive: E/CN, 6/399, pp. 8 et seq.). Such objective
legislative intent, as
can only be satisfactorily achieved by
has been determined
allowing the wife to acquire citizenship
by the judicial We respectfully suggest that this
derivatively through the husband. This is
decisions, or which articulation of the national policy begs the
particularly true in the Philippines where
would result in futility, question. The avowed policy of "selectives
tradition and law has placed the husband
redundancy, or a admission" more particularly refers to a
as head of the family, whose personal
conclusion not case where citizenship is sought to be
status and decisions govern the life of the
contemplated by the acquired in a judicial proceeding for
family group. Corollary to this, our laws
legislature; and the naturalization. In such a case, the courts
look with favor on the unity and solidarity
court should adopt should no doubt apply the national policy
of the family (Art. 220, Civil Code), in
that construction of selecting only those who are worthy to
whose preservation of State as a vital and
which will be the least become citizens. There is here a choice
enduring interest. (See Art. 216, Civil
likely to produce between accepting or rejecting the
Code). Thus, it has been said that by
mischief. Unless application for citizenship. But this policy
tradition in our country, there is a theoretic
plainly shown to have finds no application in cases where
identity of person and interest between
been the intention of citizenship is conferred by operation of
husband and wife, and from the nature of
the legislature, an law. In such cases, the courts have no
the relation, the home of one is that of the
interpretation which choice to accept or reject. If the individual
other. (See De la Viña v. Villareal, 41 Phil.
would render the claiming citizenship by operation of law
13). It should likewise be said that because
requirements of the proves in legal proceedings that he
of the theoretic identity of husband and
statute uncertain and satisfies the statutory requirements, the
wife, and the primacy of the husband, the
vague is to be courts cannot do otherwise than to declare
nationality of husband should be the
avoided, and the court that he is a citizen of the Philippines. Thus,
nationality of the wife, and the laws upon
will not ascribe to the an individual who is able to prove that his
one should be the law upon the other. For
legislature an intent to father is a Philippine citizen, is a citizen of
as the court, in Hopkins v. Fachant (9th
confer an illusory right. the Philippines, "irrespective of his moral
Cir., 1904) 65 C.C.A., 1, 130 Fed. 839,
... (82 C.J.S., Statutes, character, ideological beliefs, and
held: "The status of the wife follows that of
sec. 326, pp. 623- identification with Filipino ideals, customs,
the husband, ... and by virtue of her
632). and traditions." A minor child of a person
marriage her husband's domicile became
naturalized under the law, who is able to
her domicile." And the presumption under
prove the fact of his birth in the Philippines,
7. In Choy King Tee and the second Ly Giok Ha, emphasis was Philippine law being that the property
is likewise a citizen, regardless of whether
laid on the need for aligning the construction of Section 15 with relations of husband and wife are under
he has lucrative income, or he adheres to
"the national policy of selective admission to Philippine the regime of conjugal partnership (Art.
the principles of the Constitution. So it is
citizenship." But the question may be asked, is it reasonable to 119, Civil Code), the income of one is also
with an alien wife of a Philippine citizen.
suppose that in the pursuit of such policy, the legislature that of the other.
She is required to prove only that she may
contemplated to make it more difficult if not practically
herself be lawfully naturalized, i.e., that
impossible in some instances, for an alien woman marrying a
she is not one of the disqualified persons It is, therefore, not congruent with our
Filipino to become a Filipina than any ordinary applicant for
enumerated in Section 4 of the law, in cherished traditions of family unity and
naturalization, as has just been demonstrated above? It seems
order to establish her citizenship status as identity that a husband should be a citizen
but natural and logical to assume that Section 15 was intended
a fact. and the wife an alien, and that the national
to extend special treatment to alien women who by marrying a
treatment of one should be different from
Filipino irrevocably deliver themselves, their possessions, their
that of the other. Thus, it cannot be that
fate and fortunes and all that marriage implies to a citizen of A paramount policy consideration of graver
the husband's interests in property and
this country, "for better or for worse." Perhaps there can and import should not be overlooked in this
business activities reserved by law to
will be cases wherein the personal conveniences and benefits regard, for it explains and justifies the
citizens should not form part of the
 conjugal partnership and be denied to the
wife, nor that she herself cannot, through
her own efforts but for the benefit of the
partnership, acquire such interests. Only in
rare instances should the identity of
husband and wife be refused recognition,
and we submit that in respect of our
citizenship laws, it should only be in the
instances where the wife suffers from the
disqualifications stated in Section 4 of the
Revised Naturalization Law. (Motion for
Reconsideration, Burca vs.
Republic, supra.)
With all these considerations in mind, We are persuaded that it
is in the best interest of all concerned that Section 15 of the
Naturalization Law be given effect in the same way as it was
understood and construed when the phrase "who may be
lawfully naturalized," found in the American statute from which
it was borrowed and copied verbatim, was applied by the
American courts and administrative authorities. There is merit,
of course in the view that Philippine statutes should be
construed in the light of Philippine circumstances, and with
particular reference to our naturalization laws. We should
realize the disparity in the circumstances between the United
States, as the so-called "melting pot" of peoples from all over
the world, and the Philippines as a developing country whose
Constitution is nationalistic almost in the come. Certainly, the
writer of this opinion cannot be the last in rather passionately
insisting that our jurisprudence should speak our own concepts
and resort to American authorities, to be sure, entitled to
admiration, and respect, should not be regarded as source of
pride and indisputable authority. Still, We cannot close our
eyes to the undeniable fact that the provision of law now under
scrutiny has no local origin and orientation; it is purely
American, factually taken bodily from American law when the
Philippines was under the dominating influence of statutes of
the United States Congress. It is indeed a sad commentary on
the work of our own legislature of the late 1920's and 1930's
that given the opportunity to break away from the old American
pattern, it took no step in that direction. Indeed, even after
America made it patently clear in the Act of Congress of
September 22, 1922 that alien women marrying Americans
cannot be citizens of the United States without undergoing
naturalization proceedings, our legislators still chose to adopt
the previous American law of August 10, 1855 as embodied
later in Section 1994 of the Revised Statutes of 1874, Which, it
is worth reiterating, was consistently and uniformly understood
as conferring American citizenship to alien women marrying
Americans ipso facto, without having to submit to any
naturalization proceeding and without having to prove that they
possess the special qualifications of residence, moral
character, adherence to American ideals and American
constitution, provided they show they did not suffer from any of
the disqualifications enumerated in the American Naturalization
Law. Accordingly, We now hold, all previous decisions of this
Court indicating otherwise notwithstanding, that under Section
15 of Commonwealth Act 473, an alien woman marrying a
Filipino, native born or naturalized, becomes ipso facto a
Filipina provided she is not disqualified to be a citizen of the
Philippines under Section 4 of the same law. Likewise, an alien
woman married to an alien who is subsequently naturalized
here follows the Philippine citizenship of her husband the
moment he takes his oath as Filipino citizen, provided that she
does not suffer from any of the disqualifications under said
Section 4.
As under any other law rich in benefits for those coming under
it, doubtless there will be instances where unscrupulous
persons will attempt to take advantage of this provision of law
by entering into fake and fictitious marriages or mala
fide matrimonies. We cannot as a matter of law hold that just
because of these possibilities, the construction of the provision
should be otherwise than as dictated inexorably by more
ponderous relevant considerations, legal, juridical and
practical. There can always be means of discovering such
undesirable practice and every case can be dealt with
accordingly as it arises.
III.
The third aspect of this case requires necessarily a re-
examination of the ruling of this Court in Burca, supra,
regarding the need of judicial naturalization proceedings before
the alien wife of a Filipino may herself be considered or
deemed a Filipino. If this case which, as already noted, was
submitted for decision in 1964 yet, had only been decided
earlier, before Go Im Ty, the foregoing discussions would have
been sufficient to dispose of it. The Court could have held that
despite her apparent lack of qualifications, her marriage to her
co-petitioner made her a Filipina, without her undergoing any
naturalization proceedings, provided she could sustain, her
claim that she is not disqualified under Section 4 of the law. But
as things stand now, with the Burca ruling, the question We
have still to decide is, may she be deemed a Filipina without
submitting to a naturalization proceeding?
Naturally, if Burca is to be followed, it is clear that the answer to
this question must necessarily be in the affirmative. As already
stated, however, the decision in Burca has not yet become final
because there is still pending with Us a motion for its
reconsideration which vigorously submits grounds worthy of
serious consideration by this Court. On this account, and for
the reasons expounded earlier in this opinion, this case is as
good an occasion as any other to re-examine the issue.
In the said decision, Justice Sanchez held for the Court:
We accordingly rule that: (1) An alien
woman married to a Filipino who desires to
be a citizen of this country must apply
therefore by filing a petition for citizenship
reciting that she possesses all the
qualifications set forth in Section 2 and
none of the disqualifications under Section
4, both of the Revised Naturalization Law;
(2) Said petition must be filed in the Court
of First Instance where petitioner has
resided at least one year immediately
preceding the filing of the petition; and (3)
Any action by any other office, agency,
board or official, administrative or
otherwise — other than the judgment of a
competent court of justice — certifying or
declaring that an alien wife of the Filipino
citizen is also a Filipino citizen, is hereby
declared null and void.
3. We treat the present petition as one for
naturalization. Or, in the words of law, a
"petition for citizenship". This is as it should
be. Because a reading of the petition will
reveal at once that efforts were made to
set forth therein, and to prove afterwards,
compliance with Sections 2 and 4 of the
Revised Naturalization law. The trial court
itself apparently considered the petition as
one for naturalization, and, in fact,
declared petitioner "a citizen of the
Philippines."
In other words, under this holding, in order for an alien woman
marrying a Filipino to be vested with Filipino citizenship, it is not
enough that she possesses the qualifications prescribed by
Section 2 of the law and none of the disqualifications
enumerated in its Section 4. Over and above all these, she has
to pass thru the whole process of judicial naturalization
apparently from declaration of intention to oathtaking, before
she can become a Filipina. In plain words, her marriage to a
Filipino is absolutely of no consequence to her nationality vis-a-
vis that of her Filipino husband; she remains to be the national
of the country to which she owed allegiance before her
marriage, and if she desires to be of one nationality with her
husband, she has to wait for the same time that any other
applicant for naturalization needs to complete, the required
period of ten year residence, gain the knowledge of English or
Spanish and one of the principle local languages, make her
children study in Filipino schools, acquire real property or
engage in some lawful occupation of her own independently of
her husband, file her declaration of intention and after one year
her application for naturalization, with the affidavits of two
credible witnesses of her good moral character and other
qualifications, etc., etc., until a decision is ordered in her favor,
after which, she has to undergo the two years of probation, and
only then, but not before she takes her oath as citizen, will she
begin to be considered and deemed to be a citizen of the
Philippines. Briefly, she can become a Filipino citizen only by
judicial declaration.
Such being the import of the Court's ruling, and it being quite
obvious, on the other hand, upon a cursory reading of the
provision, in question, that the law intends by it to spell out
what is the "effect of naturalization on (the) wife and children"
of an alien, as plainly indicated by its title, and inasmuch as the
language of the provision itself clearly conveys the thought that
some effect beneficial to the wife is intended by it, rather than
that she is not in any manner to be benefited thereby, it
behooves Us to take a second hard look at the ruling, if only to
see whether or not the Court might have overlooked any
relevant consideration warranting a conclusion different from
that complained therein. It is undeniable that the issue before
Us is of grave importance, considering its consequences upon
tens of thousands of persons affected by the ruling therein
made by the Court, and surely, it is for Us to avoid, whenever
possible, that Our decision in any case should produce any
adverse effect upon them not contemplated either by the law or
by the national policy it seeks to endorse.
AMICI CURIAE in the Burca case, respectable and impressive
by their number and standing in the Bar and well known for
their reputation for intellectual integrity, legal acumen and
incisive and comprehensive resourcefulness in research, truly
evident in the quality of the memorandum they have submitted
in said case, invite Our attention to the impact of the decision
therein thus:
The doctrine announced by this Honorable
Court for the first time in the present case
-- that an alien woman who marries a
Philippine citizen not only does not ipso
facto herself become a citizen but can
acquire such citizenship only through
ordinary naturalization proceedings under
the Revised Naturalization Law, and that
all administrative actions "certifying or
declaring such woman to be a Philippine
citizen are null and void" — has
consequences that reach far beyond the
confines of the present case. Considerably
more people are affected, and affected
deeply, than simply Mrs. Zita N. Burca.
The newspapers report that as many as 15
thousand women married to Philippine
citizens are affected by this decision of the
Court. These are women of many and
diverse nationalities, including Chinese,
Spanish, British, American, Columbian,
Finnish, Japanese, Chilean, and so on.
These members of the community, some
of whom have been married to citizens for
two or three decades, have all exercised
rights and privileges reserved by law to
Philippine citizens. They will have
acquired, separately or in conjugal
partnership with their citizen husbands,
real property, and they will have sold and
transferred such property. Many of these After mature deliberation, and in the light
women may be in professions membership of the reasons adduced in appellant's
in which is limited to citizens. Others are motion for reconsideration and in the reply
doubtless stockholders or officers or thereto of the Government, as well as of
employees in companies engaged in the data contained in the latter, the Court
business activities for which a certain holds that the doctrine laid down in the
percentage of Filipino equity content is Ong Son Cui case shall apply and affect
prescribed by law. All these married the validity of certificates of naturalization
women are now faced with possible issued after, not on or before May 29,
divestment of personal status and of rights 1957.
acquired and privileges exercised in
reliance, in complete good faith, upon a
Here We are met again by the same problem. In Gan Tsitung,
reading of the law that has been accepted
the Court had to expressly enjoin the prospective application of
as correct for more than two decades by
its construction of the law made in a previous decision, 24 which
the very agencies of government charged
had already become final, to serve the ends of justice and
with the administration of that law. We
equity. In the case at bar, We do not have to go that far. As
must respectfully suggest that judicial
already observed, the decision in Burca still under
doctrines which would visit such
reconsideration, while the ruling in Lee Suan Ay, Lo San
comprehensive and far-reaching injury
Tuang, Choy King Tee and others that followed them have at
upon the wives and mothers of Philippine
the most become the law of the case only for the parties
citizens deserve intensive scrutiny and
thereto. If there are good grounds therefor, all We have to do
reexamination.
now is to reexamine the said rulings and clarify or modify them.
To be sure, this appeal can be no less than what this Court
For ready reference, We requote Section 15:
attended to in Gan Tsitung vs. Republic, G.R. No. L-20819,
Feb. 21, 1967, 19 SCRA 401 — when Chief Justice
Concepcion observed: Sec. 15. Effect of the naturalization on wife
and children. — Any woman who is now or
may hereafter be married to a citizen of the
The Court realizes, however, that the
Philippines, and who might herself be
rulings in the Barretto and Delgado cases
lawfully naturalized shall be deemed a
— although referring to situations the
citizen of the Philippines.
equities of which are not identical to those
obtaining in the case at bar — may have
contributed materially to the irregularities Minor children of persons naturalized
committed therein and in other analogous under this law who have been born in the
cases, and induced the parties concerned Philippines shall be considered citizens
to believe, although erroneously, that the thereof.
procedure followed was valid under the
law.
A foreign-born minor child, if dwelling in the
Philippines at the time of naturalization of
Accordingly, and in view of the implications the parents, shall automatically become a
of the issue under consideration, the Philippine citizen, and a foreign-born minor
Solicitor General was required, not only, to child, who is not in the Philippines at the
comment thereon, but, also, to state "how time the parent is naturalized, shall be
many cases there are, like the one at bar, deemed a Philippine citizen only during his
in which certificates of naturalization have minority, unless he begins to reside
been issued after notice of the filing of the permanently in the Philippines when still a
petition for naturalization had been minor, in which case, he will continue to be
published in the Official Gazette only once, a Philippine citizen even after becoming of
within the periods (a) from January 28, age.
1950" (when the decision in Delgado v.
Republic was promulgated) "to May 29,
A child born outside of the Philippines after
1957" (when the Ong Son Cui was
the naturalization of his parent, shall be
decided) "and (b) from May 29, 1957 to
considered a Philippine citizen, unless
November 29, 1965" (when the decision in
within one year after reaching the age of
the present case was rendered).
majority, he fails to register himself as a
 Philippine citizen at the American
Consulate of the country where he resides,
and to take the necessary oath of
allegiance.
It is obvious that the main subject-matter and purpose of the
statute, the Revised Naturalization Law or Commonwealth Act
473, as a whole, is to establish a complete procedure for the
judicial conferment of the status of citizenship upon qualified
aliens. After laying out such a procedure, remarkable for its
elaborate and careful inclusion of all safeguards against the
possibility of any undesirable persons becoming a part of our
citizenry, it carefully but categorically states the consequence
of the naturalization of an alien undergoing such procedure it
prescribes upon the members of his immediate family, his wife
and children, 25 and, to that end, in no uncertain terms it ordains
that: (a) all his minor children who have been born in the
Philippines shall be "considered citizens" also; (b) all such
minor children, if born outside the Philippines but dwelling here
at the time of such naturalization "shall automatically become"
Filipinos also, but those not born in the Philippines and not in
the Philippines at the time of such naturalization, are also
redeemed citizens of this country provided that they shall lose
said status if they transfer their permanent residence to a
foreign country before becoming of age; (c) all such minor
children, if born outside of the Philippines after such
naturalization, shall also be "considered" Filipino citizens,
unless they expatriate themselves by failing to register as
Filipinos at the Philippine (American) Consulate of the country
where they reside and take the necessary oath of allegiance;
and (d) as to the wife, she "shall be deemed a citizen of the
Philippines" if she is one "who might herself be lawfully
naturalized". 26
No doubt whatever is entertained, so Burca holds very
correctly, as to the point that the minor children, falling within
the conditions of place and time of birth and residence
prescribed in the provision, are vested with Philippine
citizenship directly by legislative fiat or by force of the law itself
and without the need for any judicial proceeding or declaration.
(At p. 192, 19 SCRA). Indeed, the language of the provision, is
not susceptible of any other interpretation. But it is claimed that
the same expression "shall be deemed a citizen of the
Philippines" in reference to the wife, does not necessarily
connote the vesting of citizenship status upon her by legislative
fiat because the antecedent phrase requiring that she must be
one "who might herself be lawfully naturalized" implies that
such status is intended to attach only after she has undergone
the whole process of judicial naturalization required of any
person desiring to become a Filipino. Stated otherwise, the
ruling in Burca is that while Section 15 envisages and intends
legislative naturalization as to the minor children, the same
section deliberately treats the wife differently and leaves her
out for the ordinary judicial naturalization.
Of course, it goes without saying that it is perfectly within the
constitutional authority of the Congress of the Philippines to
confer or vest citizenship status by legislative fiat. (U.S. v. than those for other applicants for citizenship, on the other
Wong Kim Ark, 169 U.S. 649, 42 L ed. 890 [1898]; See, 1 hand, the Philippine Legislature, instead of following suit and
Tañada & Carreon, Political Law of the Philippines 152 [1961 adopting such a requirement, enacted Act 3448 on November
ed.]) In fact, it has done so for particular individuals, like two 30, 1928 which copied verbatim the aforementioned Section
foreign religious prelates, 27 hence there is no reason it cannot 1994 of the Revised Statutes, thereby indicating its preference
do it for classes or groups of persons under general conditions to adopt the latter law and its settled construction rather than
applicable to all of the members of such class or group, like the reform introduced by the Act of 1922.
women who marry Filipinos, whether native-born or
naturalized. The issue before Us in this case is whether or not
Obviously, these considerations leave Us no choice. Much as
the legislature hag done so in the disputed provisions of
this Court may feel that as the United States herself has
Section 15 of the Naturalization Law. And Dr. Vicente G. Sinco,
evidently found it to be an improvement of her national policy
one of the most respect authorities on political law in the
vis-a-vis the alien wives of her citizens to discontinue their
Philippines 28 observes in this connection thus: "A special form
automatic incorporation into the body of her citizenry without
of naturalization is often observed by some states with respect
passing through the judicial scrutiny of a naturalization
to women. Thus in the Philippines a foreign woman married to
proceeding, as it used to be before 1922, it seems but proper,
a Filipino citizen becomes ipso facto naturalized, if she belongs
without evidencing any bit of colonial mentality, that as a
to any of the classes who may apply for naturalization under
developing country, the Philippines adopt a similar policy,
the Philippine Laws." (Sinco, Phil. Political Law 498-499 [10th
unfortunately, the manner in which our own legislature has
ed. 1954]; emphasis ours; this comment is substantially
enacted our laws on the subject, as recounted above, provides
reiterated in the 1962 edition, citing Ly Giok Ha and Ricardo
no basis for Us to construe said law along the line of the 1922
Cua, supra.)
modification of the American Law. For Us to do so would be to
indulge in judicial legislation which it is not institutionally
More importantly, it may be stated, at this juncture, that in permissible for this Court to do. Worse, this court would be
construing the provision of the United States statutes from going precisely against the grain of the implicit Legislative
which our law has been copied, 28a the American courts have intent.
held that the alien wife does not acquire American citizenship
by choice but by operation of law. "In the Revised Statutes the
There is at least one decision of this Court
words "and taken" are omitted. The effect of this statute is that
before Burca wherein it seems it is quite clearly implied that
every alien woman who marries a citizen of the United States
this Court is of the view that under Section 16 of the
becomes perforce a citizen herself, without the formality of
Naturalization Law, the widow and children of an applicant for
naturalization, and regardless of her wish in that respect."
naturalization who dies during the proceedings do not have to
(USCA 8, p. 601 [1970 ed.], citing Mackenzie v. Hare, 1913,
submit themselves to another naturalization proceeding in
134 P. 713, 165 Cal. 766, affirmed 36 S. Ct. 106, 239 U.S. 299,
order to avail of the benefits of the proceedings involving the
60 L ed. 297.) .
husband. Section 16 provides: .
We need not recount here again how this provision in question
SEC. 16. Right of widow and children of
was first enacted as paragraph (a) of Section 13, by way of an
petitioners who have died. — In case a
insertion into Act 2927 by Act 3448 of November 30, 1928, and
petitioner should die before the final
that, in turn, and paragraph was copied verbatim from Section
decision has been rendered, his widow
1994 of the Revised Statutes of the United States, which by
and minor children may continue the
that time already had a long accepted construction among the
proceedings. The decision rendered in the
courts and administrative authorities in that country holding that
case shall, so far as the widow and minor
under such provision an alien woman who married a citizen
children are concerned, produce the same
became, upon such marriage, likewise a citizen by force of law
legal effect as if it had been rendered
and as a consequence of the marriage itself without having to
during the life of the petitioner.
undergo any naturalization proceedings, provided that, it could
be shown that at the time of such marriage, she was not
disqualified to be naturalized under the laws then in force. To In Tan Lin v. Republic, G.R. No. L-13706, May 31, 1961, 2
repeat the discussion We already made of these undeniable SCRA 383, this Court held:
facts would unnecessarily make this decision doubly extensive.
The only point which might be reiterated for emphasis at this
Invoking the above provisions in their
juncture is that whereas in the United States, the American
favor, petitioners-appellants argue (1) that
Congress, recognizing the construction, of Section 1994 of the
under said Sec. 16, the widow and minor
Revised Statutes to be as stated above, and finding it desirable
children are allowed to continue the same
to avoid the effects of such construction, approved the Act of
proceedings and are not substituted for the
September 22, 1922 Explicitly requiring all such alien wives to
original petitioner; (2) that the qualifications
submit to judicial naturalization albeit under more liberal terms
of the original petitioner remain to be in
issue and not those of the widow and
minor children, and (3) that said Section 16
applies whether the petitioner dies before
or after final decision is rendered, but
before the judgment becomes executory.
There is force in the first and second
arguments. Even the second sentence of
said Section 16 contemplate the fact that
the qualifications of the original petitioner
remains the subject of inquiry, for the
simple reason that it states that "The
decision rendered in the case shall, so far
as the widow and minor children are
concerned, produce the same legal effect
as if it had been rendered during the life of
the petitioner." This phraseology
emphasizes the intent of the law to
continue the proceedings with the
deceased as the theoretical petitioner, for
if it were otherwise, it would have been
unnecessary to consider the decision
rendered, as far as it affected the widow
and the minor children.
xxx xxx xxx
The Chua Chian case (supra), cited by the
appellee, declared that a dead person can
not be bound to do things stipulated in the
oath of allegiance, because an oath is a
personal matter. Therein, the widow
prayed that she be allowed to take the
oath of allegiance for the deceased. In the
case at bar, petitioner Tan Lin merely
asked that she be allowed to take the oath
of allegiance and the proper certificate of
naturalization, once the naturalization
proceedings of her deceased husband,
shall have been completed, not on behalf
of the deceased but on her own behalf and
of her children, as recipients of the benefits
of his naturalization. In other words, the
herein petitioner proposed to take the oath
of allegiance, as a citizen of the
Philippines, by virtue of the legal provision
that "any woman who is now or may
hereafter be married to a citizen of the
Philippines and who might herself be
lawfully naturalized shall be deemed a
citizen of the Philippines. Minor children of
persons naturalized under this law who
have been born in the Philippines shall be
considered citizens thereof." (Section 15,
Commonwealth Act No. 473). The decision
granting citizenship to Lee Pa and the
record of the case at bar, do not show that
the petitioning widow could not have been The phrase "shall be deemed a citizen of
lawfully naturalized, at the time Lee Pa the Philippines" found in Section 14 of the
filed his petition, apart from the fact that his Revised Naturalization Law clearly
9 minor children were all born in the manifests an intent to confer citizenship.
Philippines. (Decision, In the Matter of the Construing a similar phrase found in the
Petition of Lee Pa to be admitted a citizen old U.S. naturalization law (Revised
of the Philippines, Civil Case No. 16287, Statutes, 1994), American courts have
CFI, Manila, Annex A; Record on Appeal, uniformly taken it to mean that upon her
pp. 8-11). The reference to Chua Chian marriage, the alien woman becomes by
case is, therefore, premature. operation of law a citizen of the United
States as fully as if she had complied with
all the provisions of the statutes upon the
Section 16, as may be seen, is a parallel provision to Section
subject of naturalization. (U.S. v. Keller, 13
15. If the widow of an applicant for naturalization as Filipino,
F. 82; U.S. Opinions of the US Attorney
who dies during the proceedings, is not required to go through
General dated June 4, 1874 [14 Op. 4021,
a naturalization preceeding, in order to be considered as a
July 20, 1909 [27 Op. 507], December 1,
Filipino citizen hereof, it should follow that the wife of a living
1910 [28 Op. 508], Jan. 15, 1920 [32 Op.
Filipino cannot be denied the same privilege. This is plain
2091 and Jan. 12, 1923 [23 398]).
common sense and there is absolutely no evidence that the
Legislature intended to treat them differently.
The phrase "shall be
deemed a citizen," in
Additionally, We have carefully considered the arguments
Section 1994 Revised
advanced in the motion for reconsideration in Burca, and We
Statute (U.S. Comp.
see no reason to disagree with the following views of counsel: .
Stat. 1091, 1268) or
as it was in the Act of
It is obvious that the provision itself is 1855 (10 Stat. at L.
a legislative declaration of who may be 604, Chapt. 71, Sec.
considered citizens of the Philippines. It is 2), "shall be deemed
a proposition too plain to be disputed that and taken to be a
Congress has the power not only to citizens" while it may
prescribe the mode or manner under which imply that the person
foreigners may acquire citizenship, but to whom it relates has
also the very power of conferring not actually become a
citizenship by legislative fiat. (U. S. v. citizen by the ordinary
Wong Kim Ark, 169 U. S. 649, 42 L. Ed. means or in the usual
890 [1898] ; see 1 Tañada and Carreon, way, as by the
Political Law of the Philippines 152 [1961 judgment of a
ed.]) The Constitution itself recognizes as competent court, upon
Philippine citizens "Those who are a proper application
naturalized in accordance with law" and proof, yet it does
(Section 1[5], Article IV, Philippine not follow that such
Constitution). Citizens by naturalization, person is on that
under this provision, include not only those account practically any
who are naturalized in accordance with the less a citizen. The
legal proceedings for the acquisition of word "deemed" is the
citizenship, but also those who acquire equivalent of
citizenship by "derivative naturalization" "considered" or
or by operation of law, as, for example, the "judged," and
"naturalization" of an alien wife through the therefore, whatever an
naturalization of her husband, or by Act of Congress
marriage of an alien woman to a citizen. requires to be
(See Tañada & Carreon, op. cit. supra, at "deemed" or "taken"
152, 172; Velayo, Philippine Citizenship as true of any person
and Naturalization 2 [1965 ed.]; 1 Paras, or thing must, in law,
Civil Code 186 [1967 ed.]; see also 3 be considered as
Hackworth, Digest of International Law 3). having been duly
adjudged or
established
 concerning such
person or thing, and
have force and effect
accordingly. When,
therefore, Congress
declares that an alien
woman shall, under
certain circumstances,
be "deemed" an
American citizen, the
effect when the
contingency occurs, is
equivalent to her
being naturalized
directly by an Act of
Congress or in the
usual mode thereby
prescribed. (Van
Dyne, Citizenship of
the United States 239,
cited in Velayo,
Philippine Citizenship
and Naturalization
146-147 [1965 ed.];
emphasis ours).
That this was likewise the intent of the
Philippine legislature when it enacted the
first paragraph of Section 15 of the
Revised Naturalization Law is shown by a
textual analysis of the entire statutory
provision. In its entirety, Section 15 reads:
(See supra).
The phrases "shall be deemed" "shall be
considered," and "shall automatically
become" as used in the above provision,
are undoubtedly synonymous. The leading
idea or purpose of the provision was to
confer Philippine citizenship by operation
of law upon certain classes of aliens as a
legal consequence of their relationship, by
blood or by affinity, to persons who are
already citizens of the Philippines.
Whenever the fact of relationship of the
persons enumerated in the provision
concurs with the fact of citizenship of the
person to whom they are related, the effect
is for said persons to become ipso
facto citizens of the Philippines. "Ipso
facto" as here used does not mean that all
alien wives and all minor children of
Philippine citizens, from the mere fact of
relationship, necessarily become such
citizens also. Those who do not meet the
statutory requirements do not ipso
facto become citizens; they must apply for
naturalization in order to acquire such
status. What it does mean, however, is
that in respect of those persons
enumerated in Section 15, the relationship
to a citizen of the Philippines is the
operative fact which establishes the
acquisition of Philippine citizenship by
them. Necessarily, it also determines
the point of time at which such citizenship
commences. Thus, under the second
paragraph of Section 15, a minor child of a
Filipino naturalized under the law, who
was born in the Philippines, becomes ipso
facto a citizen of the Philippines from the
time the fact of relationship concurs with
the fact of citizenship of his parent, and the
time when the child became a citizen does
not depend upon the time that he is able to
prove that he was born in the Philippines.
The child may prove some 25 years after
the naturalization of his father that he was
born in the Philippines and should,
therefore, be "considered" a citizen
thereof. It does not mean that he became
a Philippine citizen only at that later time.
Similarly, an alien woman who married a
Philippine citizen may be able to prove
only some 25 years after her marriage
(perhaps, because it was only 25 years
after the marriage that her citizenship
status became in question), that she is one
who might herself be lawfully naturalized."
It is not reasonable to conclude that she
acquired Philippine citizenship only after
she had proven that she "might herself be
lawfully naturalized." It is not reasonable to
conclude that she acquired Philippine
citizenship only after she had proven that
she "might herself be lawfully naturalized."
The point that bears emphasis in this
regard is that in adopting the very
phraseology of the law, the legislature
could not have intended that an alien
wife should not be deemed a Philippine
citizen unless and until she proves that
she might herself be lawfully naturalized.
Far from it, the law states in plain terms
that she shall be deemed a citizen of the
Philippines if she is one "who might herself
be lawfully naturalized." The proviso that
she must be one "who might herself be
lawfully naturalized" is not a condition
precedent to the vesting or acquisition of
citizenship; it is only a condition or a state
of fact necessary to establish her
citizenship as a factum probandum, i.e., as
a fact established and proved in evidence.
The word "might," as used in that phrase,
precisely replies that at the time of her
marriage to a Philippine citizen, the alien
woman "had (the) power" to become such
a citizen herself under the laws then in
force. (Owen v. Kelly, 6 DC 191 [1867],
aff'd Kelly v. Owen, 76 US 496, 19 L ed
283 [1869). That she establishes such
power long after her marriage does not
alter the fact that at her marriage, she
became a citizen.
(This Court has held) that "an alien wife of
a Filipino citizen may not acquire the
status of a citizen of the Philippines unless
there is proof that she herself may be
lawfully naturalized" (Decision, pp. 3-4).
Under this view, the "acquisition" of
citizenship by the alien wife depends on
her having proven her qualifications for
citizenship, that is, she is not a
citizen unless and until she proves that she
may herself be lawfully naturalized. It is
clear from the words of the law that the
proviso does not mean that she must first
prove that she "might herself be lawfully
naturalized" before she shall be deemed
(by Congress, not by the courts) a citizen.
Even the "uniform" decisions cited by this
Court (at fn. 2) to support its holding did
not rule that the alien wife becomes a
citizen only after she has proven her
qualifications for citizenship. What those
decisions ruled was that the alien wives in
those cases failed to prove their
qualifications and therefore they failed to
establish their claim to citizenship. Thus
in Ly Giok Ha v. Galang, 101 Phil. 459
[l957], the case was remanded to the lower
court for determination of whether
petitioner, whose claim to citizenship by
marriage to a Filipino was disputed by the
Government, "might herself be lawfully
naturalized," for the purpose of " proving
her alleged change of political status from
alien to citizen" (at 464). In Cua v. Board,
101 Phil. 521 [1957], the alien wife who
was being deported, claimed she was a
Philippine citizen by marriage to a Filipino.
This Court finding that there was no proof
that she was not disqualified under Section
4 of the Revised Naturalization Law, ruled
that: "No such evidence appearing on
record, the claim of assumption of
Philippine citizenship by Tijoe Wu Suan,
upon her marriage to petitioner, is
untenable." (at 523) It will be observed that
in these decisions cited by this Court, the
lack of proof that the alien wives "might
(themselves) be lawfully naturalized" did
not necessarily imply that they did not
become, in truth and in fact, citizens upon
their marriage to Filipinos. What the
decisions merely held was that these wives
failed to establish their claim to that
status as a proven fact.
In all instances where citizenship is
conferred by operation of law, the time
when citizenship is conferred should not
be confused with the time when citizenship
status is established as a proven fact.
Thus, even a natural-born citizen of the
Philippines, whose citizenship status is put
in issue in any proceeding would be
required to prove, for instance, that his
father is a citizen of the Philippines in order
to factually establish his claim to
citizenship.* His citizenship status
commences from the time of birth,
although his claim thereto is established as
a fact only at a subsequent time. Likewise,
an alien woman who might herself be
lawfully naturalized becomes a Philippine
citizen at the time of her marriage to a
Filipino husband, not at the time she is
able to establish that status as a proven
fact by showing that she might herself be
lawfully naturalized. Indeed, there is no
difference between a statutory declaration
that a person is deemed a citizen of the
Philippines provided his father is such
citizen from a declaration that an alien
woman married to a Filipino citizen of the
Philippines provided she might herself be
lawfully naturalized. Both become citizens
by operation of law; the former becomes a
citizen ipso facto upon birth; the later ipso
facto upon marriage.
It is true that unless and until the alien wife
proves that she might herself be lawfully
naturalized, it cannot be said that she has
established her status as a proven fact.
But neither can it be said that on that
account, she did not become a citizen of
the Philippines. If her citizenship status is
not questioned in any legal proceeding,
she obviously has no obligation to
establish her status as a fact. In such a
case, the presumption of law should be
that she is what she claims to be. (U.S. v.
Roxas, 5 Phil. 375 [1905]; Hilado v. Assad,
51 O.G. 4527 [1955]). There is a
presumption that a representation shown section from becoming naturalized Filipino
to have been made is true. (Aetna citizen (please see attached CEB Form 1),
Indemnity Co. v. George A. Fuller, Co., 73 the Bureau of Immigration conducts an
A. 738, 74 A. 369, 111 ME. 321). investigation and thereafter promulgates
its order or decision granting or denying
the petition.
The question that keeps bouncing back as a consequence of
the foregoing views is, what substitute is them for naturalization
proceedings to enable the alien wife of a Philippine citizen to Once the Commissioner of Immigration cancels the subject's
have the matter of her own citizenship settled and established registration as an alien, there will probably be less difficulty in
so that she may not have to be called upon to prove it establishing her Filipino citizenship in any other proceeding,
everytime she has to perform an act or enter in to a transaction depending naturally on the substance and vigor of the
or business or exercise a right reserved only to Filipinos? The opposition.
ready answer to such question is that as the laws of our
country, both substantive and procedural, stand today, there is
Before closing, it is perhaps best to clarify that this third issue
no such procedure, but such paucity is no proof that the
We have passed upon was not touched by the trial court, but
citizenship under discussion is not vested as of the date of
as the point is decisive in this case, the Court prefers that the
marriage or the husband's acquisition of citizenship, as the
matter be settled once and for all now.
case may be, for the truth is that the same situation objections
even as to native-born Filipinos. Everytime the citizenship of a
person is material or indispensable in a judicial or IN VIEW OF ALL THE FOREGOING, the judgment of the
administrative case, whatever the corresponding court or Court a quo dismissing appellants' petition for injunction is
administrative authority decides therein as to such citizenship hereby reversed and the Commissioner of Immigration and/or
is generally not considered as res adjudicata, hence it has to his authorized representative is permanently enjoined from
be threshed out again and again as the occasion may demand. causing the arrest and deportation and the confiscation of the
This, as We view it, is the sense in which Justice Dizon bond of appellant Lau Yuen Yeung, who is hereby declared to
referred to "appropriate proceeding" in Brito v. have become a Filipino citizen from and by virtue of her
Commissioner, supra. Indeed, only the good sense and marriage to her co-appellant Moy Ya Lim Yao alias Edilberto
judgment of those subsequently inquiring into the matter may Aguinaldo Lim, a Filipino citizen on January 25, 1962. No
make the effort easier or simpler for the persons concerned by costs.
relying somehow on the antecedent official findings, even if
these are not really binding.
Dizon, Castro, Teehankee and Villamor, JJ., concur.
It may not be amiss to suggest, however, that in order to have
 
a good starting point and so that the most immediate relevant
public records may be kept in order, the following observations
in Opinion No. 38, series of 1958, of then Acting Secretary of  
Justice Jesus G. Barrera, may be considered as the most
appropriate initial step by the interested parties:
Footnotes
Regarding the steps that should be taken
by an alien woman married to a Filipino 1 Followed in Kua Suy, etc., et al. vs. The
citizen in order to acquire Philippine Commissioner of Immigration, G.R. No. L-
citizenship, the procedure followed in the 13790, promulgated Oct. 31, 1963, 9
SCRA 300; Lu Choy Fa vs. Commissioner,
Bureau of Immigration is as follows: The
G.R. No. L-20597, Nov. 29, 1963, 9 SCRA
alien woman must file a petition for the
604; the other cases are discussed in the
cancellation of her alien certificate of
opinion.
registration alleging, among other things,
that she is married to a Filipino, citizen and
that she is not disqualified from acquiring 2 Justices Makalintal and Castro concurred
her husband's citizenship pursuant to only in the result.
section 4 of Commonwealth Act No. 473,
as amended. Upon the filing of said
3 Kua Suy v. Commissioner, G.R. No. L-
petition, which should be accompanied or
13790, Oct. 31, 1963, 9 SCRA 300; Lo
supported by the joint affidavit of the
San Tuang v. Galang, G. R. No. L-18775,
petitioner and her Filipino husband to the
Nov. 30, 1963, 9 SCRA 638; Sun Peck
effect that the petitioner does not belong to
Yong v. Commissioner, G.R. No. L-20784,
any of the groups disqualified by the cited
Dec. 27, 1963, 9 SCRA 874; Tong Siok Sy
v. Vivo, G.R. No. L-21136, Dec. 27, 1963,
9 SCRA 876; Choy King Tee v. Galang,
G.R. No. L-18351, March 26, 1965, 13
SCRA 402; Austria v. Conchu, G.R. No. L-
20716, June 22, 1965, 14 SCRA 336; Brito
v. Commissioner, G.R. No. L-16829, June
30, 1965, 14 SCRA 539; Ly Giok Ha v.
Galang (2nd), G. R. No. L-21332, March
18, 1966, 16 SCRA 414; Go Im Ty v. Rep.,
G.R. No. L-17919, July 30, 1966, 17 SCRA
797.
4 Supra. (101 Phil. 459).
* See, also Ops. Sec. of Justice, No. 28, s.
1950; No. 96, s. 1949; Nos. 43, 58, 98 and
281, s. 1948; No. 95, s. 1941; Nos. 79 and
168, s. 1940.
5 In the deliberations, Chief Justice
Concepcion explained that his opinion was
not meant to give that impression.
6 Justice Barrera penned the decision in
Sun Peck Yong, supra, and Tong Siok Sy
v. Vivo, supra.
* Section 15, Commonwealth Act No. 473;
Ly Giok Ha @ Wy Giok Ha v. Galang, 54
Off. Gaz., 356.
7 To avoid repetition, the pertinent portions
of the opinion will be quoted in a more
appropriate place later in this decision.
8 G.R. No. L-21332, March 18, 1966, 16
SCRA 414.
9 Pertinent portions of the opinion of
Justice Reyes will be quoted later in a
more appropriate place in this decision.
10 17 SCRA 797.
11 See id., pp. 801-804.
12 One can easily perceive from the
language of Justice Makalintal in Choy
King Tee that he was expressing the
consensus of the Court's membership then
rather than his own personal views.
13 The law firms PAREDES, POBLADOR
& NAZARENO; LICHAUCO, PICAZO &
AGCAOLI; MEER, MEER & MEER;
PONCE ENRILE, SIGUION REYNA,
MONTECILLO & BELO; RAMIREZ &
ORTIGAS; SALVA, CHUA & ASSO.; and
SYCIP, SALAZAR, LUNA, MANALO &
FELICIANO.
14 See quotation from Lo San
Tuang earlier on pp. 27-32 of this opinion.
15 See opinion of the Secretary of Justice,
No. 79, s. 1940.
16 For ready reference, attached as an
appendix of this decision is a brief study of
all the naturalization laws of the United
States from 1790 to 1970 showing how the
matter of qualifications and
disqualifications, whether racial or
otherwise, have been treated in the said
statutes, from which it can be readily seen
that the disqualification of alien wives from
becoming citizens has not been always
exclusively on racial grounds during the
period that the Act of Feb. 10, 1855 and,
later, section 1994 of the Revised Statutes
were in force.
17 The statement in Sinco's book cited by
Justice Regala in Lo San Tuang does not
indicate any authoritative source. In any
event, for the reasons already stated the
racial motive could at most be only one of
the reasons for the elimination of Section
1.
18 A more extensive discussion of the
relevance of this repeal of 1922 is made
further in this opinion.
19 Decided, April 15, 1869, next to Burton
v. Burton, 40 N. Y. 373.
20 More accurately, the phrase "free white
persons," does not only refer to people of
the white race but also to non-slaves.
21 In this connection, it is to be noted that
all the naturalization laws of the United
States from 1790 provided for such
qualifications of residence, good moral
character, adherence to the Constitution.
22 (f) Persons who, during the period of
their residence in the Philippines, have not
mingled socially with the Filipinos, or who
have not evinced a sincere desire to learn
and embrace the customs, traditions, and
ideals of the Filipinos;
(h) Citizens or subjects of a foreign country
other than the United States, whose laws
do not grant Filipinos the right to become
naturalized citizens or subjects thereof.
23 After Ly Giok Ha and Cua, the
Secretary of Justice found more reason to
sustain the previous view of the
Department on the matter. See opinions
already cited.
24 Og Son Cui v. Republic, G.R. No. L-
9858, May 29, 1957, 101 Phil. 649.
25 Somehow, the language of the whole
law conveys the idea that only male aliens
are contemplated for judicial naturalization.
26 Three possible situations are
contemplated, namely: (a) the woman is
already married to the alien before the
latter's naturalization; (b) she marries him
after such naturalization; or (c) she marries
a native-born Filipino; in all these
instances, the effect of marriage is the
same.
27 Brother Cannon of La Salle College and
Father Moran of Ateneo University.
28 Former Dean of the College of Law,
U.P. and later President of the University,
now delegate to the Constitutional
Convention of 1971.
28a Sec. 1994 Revised Statutes.
* It should be observed, parenthetically,
that by its very nature, citizenship is one of
the most difficult facts to prove.
G.R. No. 87193 June 23, 1989
JUAN GALLANOSA FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS AND THE LEAGUE OF
MUNICIPALITIES, SORSOGON CHAPTER, HEREIN
REPRESENTED BY ITS PRESIDENT, SALVADOR NEE
ESTUYE, respondents.
J.L. Misa & Associates for petitioner.
Lladoc, Huab & Associates for private respondent.
CRUZ, J.:
Petitioner Juan G. Frivaldo was proclaimed governor-elect of
the province of Sorsogon on January 22, 1988, and assumed
office in due time. On October 27, 1988, the League of
Municipalities, Sorsogon Chapter (hereafter, League),
represented by its President, Salvador Estuye, who was also
suing in his personal capacity, filed with the Commission on
Elections a petition for the annulment of Frivaldo; election and
proclamation on the ground that he was not a Filipino citizen,
having been naturalized in the United States on January 20,
1983. In his answer dated May 22, 1988, Frivaldo admitted that
he was naturalized in the United States as alleged but pleaded
the special and affirmative defenses that he had sought
American citizenship only to protect himself against President
Marcos. His naturalization, he said, was "merely forced upon
himself as a means of survival against the unrelenting
persecution by the Martial Law Dictator's agents abroad." He
added that he had returned to the Philippines after the EDSA
revolution to help in the restoration of democracy. He also
argued that the challenge to his title should be dismissed,
being in reality a quo warranto petition that should have been
filed within ten days from his proclamation, in accordance with
Section 253 of the Omnibus Election Code. The League,
moreover, was not a proper party because it was not a voter
and so could not sue under the said section.
Frivaldo moved for a preliminary hearing on his affirmative
defenses but the respondent Commission on Elections decided
instead by its Order of January 20, 1988, to set the case for
hearing on the merits. His motion for reconsideration was
denied in another Order dated February 21, 1988. He then
came to this Court in a petition for certiorari and prohibition to
ask that the said orders be set aside on the ground that they
had been rendered with grave abuse of discretion. Pending
resolution of the petition, we issued a temporary order against
the hearing on the merits scheduled by the COMELEC and at
the same time required comments from the respondents.
In their Comment, the private respondents reiterated their
assertion that Frivaldo was a naturalized American citizen and
had not reacquired Philippine citizenship on the day of the
election on January 18, 1988. He was therefore not qualified to
run for and be elected governor. They also argued that their
petition in the Commission on Elections was not really for quo
warranto under Section 253 of the Omnibus Election Code.
The ultimate purpose was to prevent Frivaldo from continuing
as governor, his candidacy and election being null and void ab
initio because of his alienage. Even if their petition were to be
considered as one for quo warranto, it could not have been
filed within ten days from Frivaldo's proclamation because it
was only in September 1988 that they received proof of his
naturalization. And assuming that the League itself was not a
proper party, Estuye himself, who was suing not only for the
League but also in his personal capacity, could nevertheless
institute the suit by himself alone.
Speaking for the public respondent, the Solicitor General
supported the contention that Frivaldo was not a citizen of the
Philippines and had not repatriated himself after his
naturalization as an American citizen. As an alien, he was
disqualified from public office in the Philippines. His election did
not cure this defect because the electorate of Sorsogon could
not amend the Constitution, the Local Government Code, and
the Omnibus Election Code. He also joined in the private
respondent's argument that Section 253 of the Omnibus
Election Code was not applicable because what the League
and Estuye were seeking was not only the annulment of the
proclamation and election of Frivaldo. He agreed that they
were also asking for the termination of Frivaldo's incumbency
as governor of Sorsogon on the ground that he was not a
Filipino.
In his Reply, Frivaldo insisted that he was a citizen of the
Philippines because his naturalization as an American citizen
was not "impressed with voluntariness." In support he cited the
Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where
a German national's naturalization in Liechtenstein was not
recognized because it had been obtained for reasons of
convenience only. He said he could not have repatriated
himself before the 1988 elections because the Special
Committee on Naturalization created for the purpose by LOI
No. 27C had not yet been organized then. His oath in his
certificate of candidacy that he was a natural-born citizen
should be a sufficient act of repatriation. Additionally, his active
participation in the 1987 congressional elections had divested
him of American citizenship under the laws of the United
States, thus restoring his Philippine citizenship. He ended by
reiterating his prayer for the rejection of the move to disqualify
him for being time-barred under Section 253 of the Omnibus
Election Code.
Considering the importance and urgency of the question herein
raised, the Court has decided to resolve it directly instead of
allowing the normal circuitous route that will after all eventually
end with this Court, albeit only after a, long delay. We cannot
permit this delay. Such delay will be inimical to the public
interest and the vital principles of public office to be here
applied.
It is true that the Commission on Elections has the primary
jurisdiction over this question as the sole judge of all contests
relating to the election, returns and qualifications of the
members of the Congress and elective provincial and city
officials. However, the decision on Frivaldo's citizenship has
already been made by the COMELEC through its counsel, the
Solicitor General, who categorically claims that Frivaldo is a
foreigner. We assume this stance was taken by him after
consultation with the public respondent and with its approval. It
therefore represents the decision of the COMELEC itself that
we may now review. Exercising our discretion to interpret the
Rules of Court and the Constitution, we shall consider the
present petition as having been filed in accordance with Article
IX-A Section 7, of the Constitution, to challenge the
aforementioned Orders of the COMELEC.
The basic question we must resolve is whether or not Juan G.
Frivaldo was a citizen of the Philippines at the time of his
election on January 18, 1988, as provincial governor of
Sorsogon. All the other issues raised in this petition are merely
secondary to this basic question.
The reason for this inquiry is the provision in Article XI, Section
9, of the Constitution that all public officials and employees owe
the State and the Constitution "allegiance at all times" and the
specific requirement in Section 42 of the Local Government
Code that a candidate for local elective office must be inter
alia a citizen of the Philippines and a qualified voter of the
constituency where he is running. Section 117 of the Omnibus
Election Code provides that a qualified voter must be, among
other qualifications, a citizen of the Philippines, this being an
indispensable requirement for suffrage under Article V, Section
1, of the Constitution.
In the certificate of candidacy he filed on November 19, 1987,
Frivaldo described himself as a "natural-born" citizen of the
Philippines, omitting mention of any subsequent loss of such
status. The evidence shows, however, that he was naturalized
as a citizen of the United States in 1983 per the following
certification from the United States District Court, Northern
District of California, as duly authenticated by Vice Consul
Amado P. Cortez of the Philippine Consulate General in San
Francisco, California, U.S.A.
OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
 September 23, 1988
TO WHOM IT MAY CONCERN:
Our records show that JUAN GALLANOSA
FRIVALDO, born on October 20, 1915,
was naturalized in this Court on January
20, 1983, and issued Certificate of
Naturalization No. 11690178.
Petition No. 280225.
Alien Registration No. A23 079 270.
Very truly yours,
 
WILLIAM L. WHITTAKER
Clerk
by:
(Sgd.)
 
ARACELI V. BAREN
Deputy Clerk
This evidence is not denied by the
petitioner. In fact, he expressly admitted it
in his answer. Nevertheless, as earlier
noted, he claims it was "forced" on him as
a measure of protection from the
persecution of the Marcos government
through his agents in the United States.
The Court sees no reason not to believe
that the petitioner was one of the enemies
of the Marcos dictatorship. Even so, it
cannot agree that as a consequence
thereof he was coerced into embracing
American citizenship. His feeble
suggestion that his naturalization was not
the result of his own free and voluntary
choice is totally unacceptable and must be
rejected outright.
There were many other Filipinos in the
United States similarly situated as Frivaldo,
and some of them subject to greater risk
than he, who did not find it necessary —
nor do they claim to have been coerced —
to abandon their cherished status as
Filipinos. They did not take the oath of
allegiance to the United States, unlike the
petitioner who solemnly declared "on oath,
that I absolutely and entirely renounce and
abjure all allegiance and fidelity to any
foreign prince, potentate, state or
sovereignty of whom or which I have
heretofore been a subject or citizen,"
meaning in his case the Republic of the
Philippines. The martyred Ninoy Aquino
heads the impressive list of those Filipinos
in exile who, unlike the petitioner, held fast
to their Philippine citizenship despite the
perils of their resistance to the Marcos
regime.
The Nottebohm case cited by the petitioner
invoked the international law principle of
effective nationality which is clearly not
applicable to the case at bar. This principle
is expressed in Article 5 of the Hague
Convention of 1930 on the Conflict of
Nationality Laws as follows:
Art. 5. Within a third
State a person having
more than one
nationality shall be
treated as if he had
only one. Without
prejudice to the
application of its law in
matters of personal
status and of any
convention in force, a
third State shall, of the
nationalities which any
such person
possesses, recognize
exclusively in its
territory either the
nationality of the
country in which he is
habitually and
principally resident or
the nationality of the
country with which in
the circumstances he
appears to be in fact
most closely
connected.
Nottebohm was a German by birth but a
resident of Guatemala for 34 years when
he applied for and acquired naturalization
in Liechtenstein one month before the
outbreak of World War II. Many members
of his family and his business interests
were in Germany. In 1943, Guatemala,
which had declared war on Germany,
arrested Nottebohm and confiscated all his
properties on the ground that he was a
German national. Liechtenstein thereupon
filed suit on his behalf, as its citizen,
against Guatemala. The International
Court of Justice held Nottebohm to be still
a national of Germany, with which he was
more closely connected than with
Liechtenstein.
That case is not relevant to the petition
before us because it dealt with a conflict
between the nationality laws of two states
as decided by a third state. No third state
is involved in the case at bar; in fact, even
the United States is not actively claiming
Frivaldo as its national. The sole question
presented to us is whether or not Frivaldo
is a citizen of the Philippines under our
own laws, regardless of other nationality
laws. We can decide this question alone as
sovereign of our own territory, conformably
to Section 1 of the said Convention
providing that "it is for each State to
determine under its law who are its
nationals."
It is also worth noting that Nottebohm
was invoking his naturalization in
Liechtenstein whereas in the present case
Frivaldo is rejecting his naturalization in
the United States.
If he really wanted to disavow his
American citizenship and reacquire
Philippine citizenship, the petitioner should
have done so in accordance with the laws
of our country. Under CA No. 63 as
amended by CA No. 473 and PD No. 725,
Philippine citizenship may be reacquired
by direct act of Congress, by
naturalization, or by repatriation.
While Frivaldo does not invoke either of
the first two methods, he nevertheless
claims he has reacquired Philippine
citizenship by virtue of a valid repatriation.
He claims that by actively participating in
the elections in this country, he
automatically forfeited American
citizenship under the laws of the United
States. Such laws do not concern us here.
The alleged forfeiture is between him and
the United States as his adopted country.
It should be obvious that even if he did
lose his naturalized American citizenship,
such forfeiture did not and could not have
the effect of automatically restoring his
citizenship in the Philippines that he had
earlier renounced. At best, what might
have happened as a result of the loss of
his naturalized citizenship was that he
became a stateless individual.
Frivaldo's contention that he could not
have repatriated himself under LOI 270
because the Special Committee provided
for therein had not yet been constituted
seems to suggest that the lack of that body
rendered his repatriation unnecessary.
That is far-fetched if not specious Such a
conclusion would open the floodgates, as it
were. It would allow all Filipinos who have
renounced this country to claim back their
abandoned citizenship without formally
rejecting their adoptedstate and reaffirming
their allegiance to the Philippines.
It does not appear that Frivaldo has taken
these categorical acts. He contends that
by simply filing his certificate of candidacy
he had, without more, already effectively
recovered Philippine citizenship. But that is
hardly the formal declaration the law
envisions — surely, Philippine citizenship
previously disowned is not that cheaply
recovered. If the Special Committee had
not yet been convened, what that meant
simply was that the petitioner had to wait
until this was done, or seek naturalization
by legislative or judicial proceedings.
The argument that the petition filed with
the Commission on Elections should be
dismissed for tardiness is not well-taken.
The herein private respondents are
seeking to prevent Frivaldo from continuing
to discharge his office of governor because
he is disqualified from doing so as a
foreigner. Qualifications for public office
are continuing requirements and must be
possessed not only at the time of
appointment or election or assumption of
office but during the officer's entire tenure.
Once any of the required qualifications is
lost, his title may be seasonably
challenged. If, say, a female legislator
were to marry a foreigner during her term
and by her act or omission acquires his
nationality, would she have a right to
remain in office simply because the
challenge to her title may no longer be
made within ten days from her
proclamation? It has been established, and
not even denied, that the evidence of
Frivaldo's naturalization was discovered
only eight months after his proclamation
and his title was challenged shortly
thereafter.
This Court will not permit the anomaly of a
person sitting as provincial governor in this
country while owing exclusive allegiance to
another country. 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.
It is true as the petitioner points out that
the status of the natural-born citizen is
favored by the Constitution and our laws,
which is all the more reason why it should
be treasured like a pearl of great price. But
once it is surrendered and renounced, the
gift is gone and cannot be lightly restored.
This country of ours, for all its difficulties
and limitations, is like a jealous and
possessive mother. Once rejected, it is not
quick to welcome back with eager arms its
prodigal if repentant children. The
returning renegade must show, by an
express and unequivocal act, the renewal
of his loyalty and love.
WHEREFORE, the petition is DISMISSED
and petitioner JUAN G. FRIVALDO is
hereby declared not a citizen of the
Philippines and therefore DISQUALIFIED
from serving as Governor of the Province
of Sorsogon. Accordingly, he is ordered to
vacate his office and surrender the same
to the duly elected Vice-Governor of the
said province once this decision becomes
final and executory. The temporary
restraining order dated March 9, 1989, is
LIFTED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera,
Paras, Feliciano, Gancayco, Padilla, Bidin,
Griño-Aquino, Medialdea and Regalado,
JJ., concur.
Sarmiento, J., took no part.
Cortes J., concurs in the result.
  
Separate Opinions
 GUTIERREZ, JR., J., concurring:
I concur in the pragmatic approach taken
by the Court. I agree that when the higher
interests of the State are involved, the
public good should supersede any
procedural infinities which may affect a
petition filed with the Commission on
Elections. I fail to see how the Court could
allow a person who by his own admissions
is indubitably an alien to continue holding
the office of Governor of any province.
It is an established rule of long standing
that the period fixed by law for the filing of
a protest — whether quo warranto or
election contest — is mandatory and
jurisdictional. 1
As a rule, the quo warranto petition
seeking to annul the petitioner's election
and proclamation should have been filed
with ten days after the proclamation of
election results.2 The purpose of the law in
not allowing the filing of protests beyond
the period fixed by law is to have a certain
and definite time within which petitions
against the results of an election should be
filed and to provide summary proceedings
for the settlement of such disputes. 3 The As a rule, the quo warranto petition 3 Municipal Council of
Rules of Court allow the Republic of the seeking to annul the petitioner's election Masantol v. Guevarra,
Philippines to file quo warranto and proclamation should have been filed 44 Phil. 580 [1923].
proceedings against any public officer who with ten days after the proclamation of
performs an act which works a forfeiture of election results.2 The purpose of the law in
4 Rule 66, Section 1,
his office. 4 However, where the Solicitor not allowing the filing of protests beyond
Rules of Court.
General or the President feel that there are the period fixed by law is to have a certain
no good reasons to commence quo and definite time within which petitions
warranto proceedings, 5 the Court should against the results of an election should be 5 Rule 66, Section 2.
allow a person like respondent Estuye or filed and to provide summary proceedings
his league to bring the action. for the settlement of such disputes. 3 The
6 Section 253,
Rules of Court allow the Republic of the
Omnibus Election
Philippines to file quo warranto
I must emphasize, however, that my Code; See Casin v.
proceedings against any public officer who
concurrence is limited to a clear case of an Caluag, 80 Phil. 758
performs an act which works a forfeiture of
alien holding an elective public office. And [1948].
his office. 4 However, where the Solicitor
perhaps in a clear case of disloyalty to the
General or the President feel that there are
Republic of the Philippines. 6 Where the
no good reasons to commence quo 7 Among them are
disqualification is based on age, residence,
warranto proceedings, 5 the Court should corrupting voters or
or any of the many grounds for
allow a person like respondent Estuye or election officials with
ineligibility, 7 I believe that the ten-day
his league to bring the action. money or other
period should be applied strictly.
material
considerations
I must emphasize, however, that my
The pragmatic approach is also shown by (Section 68, B.P. 881);
concurrence is limited to a clear case of an
the fact that the Court found it inexpedient committing acts of
alien holding an elective public office. And
to wait for the final decision of COMELEC. terrorism to enhance
perhaps in a clear case of disloyalty to the
This step is most unusual but considering one's candidacy (id);
Republic of the Philippines. 6 Where the
the total lack of any serious grounds for over spending for
disqualification is based on age, residence,
the petitioner's claim of having regained election expenses (id);
or any of the many grounds for
his Philippine citizenship, I am constrained soliciting, receiving, or
ineligibility, 7 I believe that the ten-day
to concur in the procedure pro hac vice. making prohibited
period should be applied strictly.
contributions (Sections
89, 95, 96, 97, and
  
The pragmatic approach is also shown by 104 of B.P. 881); the
the fact that the Court found it inexpedient use of a void
Separate Opinions to wait for the final decision of COMELEC. certificate of
This step is most unusual but considering candidacy (Section 78,
the total lack of any serious grounds for id); engaging in
GUTIERREZ, JR., J., concurring: the petitioner's claim of having regained partisan political
his Philippine citizenship, I am constrained activity outside of the
I concur in the pragmatic approach taken to concur in the procedure pro hac vice. campaign period
by the Court. I agree that when the higher (Section 80, id);
interests of the State are involved, the destroying or defacing
Footnotes
public good should supersede any lawful election
procedural infinities which may affect a propaganda (Section
petition filed with the Commission on Gutierrez, Jr. 83, id); using
Elections. I fail to see how the Court could prohibited forms of
allow a person who by his own admissions certificate election
1 Ferrer v. Gutierrez
is indubitably an alien to continue holding propaganda (Section
and Lucot, 43 Phil.
the office of Governor of any province. 85, id); unlawful use of
795 [1922]; and
mass media (Section
Nisperos v. Araneta
86, id); coercion by a
It is an established rule of long standing Diaz and Flores, 47
public officer of
that the period fixed by law for the filing of Phil. 806 [1925].
subordinates to
a protest — whether quo warranto or campaign for or
election contest — is mandatory and
2 Section 253, against a candidate
jurisdictional. 1
Omnibus Election (Section 261-d, id);
Code, B.P. Blg. 881. using threats and
intimidation to force a
person to campaign or
to prevent him from
campaigning for or
against a candidate
(Section 261 -e, id);
electioneering within
the prohibited space
around or inside a
polling place (Section
261 -k, id); use of
public funds for certain
election purposes
(Section 261 -u, id);
and use of a void
certificate of
candidacy (Section
78). Under Section
2175 of the Revised
Administrative Code,
certain persons like
ecclesiastics and
soldiers in the active
service are
disqualified from
running for elective
municipal office.
G.R. No. 120295 June 28, 1996
JUAN G. FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAUL R.
LEE, respondents.
G.R. No. 123755 June 28, 1996
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G.
FRIVALDO, respondents.
 
PANGANIBAN, J.:p
The ultimate question posed before this Court in these twin
cases is: Who should be declared the rightful governor of
Sorsogon -
(i) Juan G. Frivaldo, who unquestionably obtained the highest
number of votes in three successive elections but who was
twice declared by this Court to be disqualified to hold such
office due to his alien citizenship, and who now claims to have
re-assumed his lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but
who claims that the votes cast in favor of Frivaldo should be
considered void; that the electorate should be deemed to have
intentionally thrown away their ballots; and that legally, he
secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who
obviously was not voted directly to the position of governor, but
who according to prevailing jurisprudence should take over the
said post inasmuch as, by the ineligibility of Frivaldo, a
"permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on
repatriation, clarifies/reiterates/amplifies existing jurisprudence
on citizenship and elections, and upholds the superiority of
substantial justice over pure legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules
of Court for certiorari and preliminary injunction to review and
annul a Resolution of the respondent Commission on Elections
(Comelec), First Division,1 promulgated on December 19,
19952 and another Resolution of the Comelec en
banc promulgated February 23, 19963 denying petitioner's
motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed
his Certificate of Candidacy for the office of Governor of
Sorsogon in the May 8, 1995 elections. On March 23, 1995,
petitioner Raul R. Lee, another candidate, filed a petition4 with
the Comelec docketed as SPA No. 95-028 praying that
Frivaldo "be disqualified from seeking or holding any public
office or position by reason of not yet being a citizen of the
Philippines", and that his Certificate of Candidacy be canceled.
On May 1, 1995, the Second Division of the Comelec
promulgated a Resolution5 granting the petition with the
following disposition6:
WHEREFORE, this Division resolves to
GRANT the petition and declares that
respondent is DISQUALIFIED to run for
the Office of Governor of Sorsogon on the
ground that he is NOT a citizen of the
Philippines. Accordingly, respondent's
certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained
unacted upon until after the May 8, 1995 elections. So, his
candidacy continued and he was voted for during the elections
held on said date. On May 11, 1995, the Comelec en
banc7 affirmed the aforementioned Resolution of the Second
Division.
The Provincial Board of Canvassers completed the canvass of
the election returns and a Certificate of Votes8 dated May 27,
1995 was issued showing the following votes obtained by the
candidates for the position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a
(supplemental) petition9 praying for his proclamation as the
duly-elected Governor of Sorsogon.
In an order10 dated June 21, 1995, but promulgated according
to the petition "only on June 29, 1995," the Comelec en
banc directed "the Provincial Board of Canvassers of Sorsogon
to reconvene for the purpose of proclaiming candidate Raul
Lee as the winning gubernatorial candidate in the province of
Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the
evening of June 30, 1995, Lee was proclaimed governor of
Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new
petition,11 docketed as SPC No. 95-317, praying for the
annulment of the June 30, 1995 proclamation of Lee and for his
own proclamation. He alleged that on June 30, 1995, at 2:00 in
the afternoon, he took his oath of allegiance as a citizen of the
Philippines after "his petition for repatriation under P.D. 725
which he filed with the Special Committee on Naturalization in
September 1994 had been granted". As such, when "the said
order (dated June 21, 1995) (of the Comelec) . . . was released
and received by Frivaldo on June 30, 1995 at 5:30 o'clock in
the evening, there was no more legal impediment to the
proclamation (of Frivaldo) as governor . . ." In the alternative,
he averred that pursuant to the two cases of Labo
vs. Comelec,12 the Vice-Governor - not Lee - should occupy
said position of governor.
On December 19, 1995, the Comelec First Division
promulgated the herein assailed Resolution13 holding that Lee,
"not having garnered the highest number of votes," was not
legally entitled to be proclaimed as duly-elected governor; and
that Frivaldo, "having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by
repatriation on June 30, 1995 under the provisions of
Presidential Decree No. 725 . . . (is) qualified to hold the office
of governor of Sorsogon"; thus:
PREMISES CONSIDERED, the
Commission (First Division), therefore
RESOLVES to GRANT the Petition.
Consistent with the decisions of the
Supreme Court, the proclamation of Raul
R. Lee as Governor of Sorsogon is hereby
ordered annulled, being contrary to law, he
not having garnered the highest number of
votes to warrant his proclamation.
Upon the finality of the annulment of the
proclamation of Raul R. Lee, the Provincial
Board of Canvassers is directed to
immediately reconvene and, on the basis
of the completed canvass, proclaim
petitioner Juan G. Frivaldo as the duly
elected Governor of Sorsogon having
garnered the highest number of votes, and
 he having reacquired his Filipino
citizenship by repatriation on June 30,
1995 under the provisions of Presidential
Decree No. 725 and, thus, qualified to hold
the office of Governor of Sorsogon.
Conformably with Section 260 of the
Omnibus Election Code (B.P. Blg. 881),
the Clerk of the Commission is directed to
notify His Excellency the President of the
Philippines, and the Secretary of the
Sangguniang Panlalawigan of the Province
of Sorsogon of this resolution immediately
upon the due implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration
which was denied by the Comelec en banc in its
Resolution 14 promulgated on February 23, 1996. On February
26, 1996, the present petition was filed. Acting on the prayer for
a temporary restraining order, this Court issued on February
27, 1996 a Resolution which inter alia directed the parties "to
maintain the status quo prevailing prior to the filing of this
petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be
capsulized in the following propositions"15:
First -- The initiatory petition below was so
far insufficient in form and substance to
warrant the exercise by the COMELEC of
its jurisdiction with the result that, in effect,
the COMELEC acted without jurisdiction in
taking cognizance of and deciding said
petition;
Second -- The judicially declared
disqualification of respondent was a
continuing condition and rendered him
ineligible to run for, to be elected to and to
hold the Office of Governor;
Third -- The alleged repatriation of
respondent was neither valid nor is the
effect thereof retroactive as to cure his
ineligibility and qualify him to hold the
Office of Governor; and
Fourth -- Correctly read and applied, the
Labo Doctrine fully supports the validity of
petitioner's proclamation as duly elected
Governor of Sorsogon.
G.R. No. 120295 By Resolution on March 12, 1996, the Court consolidated G.R.
Nos. 120295 and 123755 since they are intimately related in
their factual environment and are identical in the ultimate
This is a petition to annul three Resolutions of the respondent
question raised, viz., who should occupy the position of
Comelec, the first two of which are also at issue in G.R. No.
governor of the province of Sorsogon.
123755, as follows:
On March 19, 1995, the Court heard oral argument from the
1. Resolution16 of the Second Division,
parties and required them thereafter to file simultaneously their
promulgated on May 1, 1995, disqualifying
respective memoranda.
Frivaldo from running for governor of
Sorsogon in the May 8, 1995 elections "on
the ground that he is not a citizen of the The Consolidated Issues
Philippines";
From the foregoing submissions, the consolidated issues may
2. Resolution17 of the Comelec en banc, be restated as follows:
promulgated on May 11, 1995; and
1. Was the repatriation of Frivaldo valid and legal? If so, did it
3. Resolution18 of the Comelec en banc, seasonably cure his lack of citizenship as to qualify him to be
promulgated also on May 11, 1995 proclaimed and to hold the Office of Governor? If not, may it be
suspending the proclamation of, among given retroactive effect? If so, from when?
others, Frivaldo.
2. Is Frivaldo's "judicially declared" disqualification for lack of
The Facts and the Issue Filipino citizenship a continuing bar to his eligibility to run for,
be elected to or hold the governorship of Sorsogon?
The facts of this case are essentially the same as those in G.R.
No. 123755. However, Frivaldo assails the above-mentioned 3. Did the respondent Comelec have jurisdiction over the
resolutions on a different ground: that under Section 78 of the initiatory petition in SPC No. 95-317 considering that said
Omnibus Election Code, which is reproduced hereinunder: petition is not "a pre-proclamation case, an election protest or
a quo warranto case"?
Sec. 78. Petition to deny due course or to
cancel a certificate of candidacy. -- A 4. Was the proclamation of Lee, a runner-up in the election,
verified petition seeking to deny due valid and legal in light of existing jurisprudence?
course or to cancel a certificate of
candidacy may be filed by any person
5. Did the respondent Commission on Elections exceed its
exclusively on the ground that any material
jurisdiction in promulgating the assailed Resolutions, all of
representation contained therein as
which prevented Frivaldo from assuming the governorship of
required under Section 74 hereof is false.
Sorsogon, considering that they were not rendered within the
The petition may be filed at any time not
period referred to in Section 78 of the Omnibus Election
later than twenty-five days from the time of
Code, viz., "not later than fifteen days before the elections"?
the filing of the certificate of candidacy
and shall be decided, after notice and
hearing, not later than fifteen days before The First Issue: Frivaldo's Repatriation
the election. (Emphasis supplied.)
The validity and effectivity of Frivaldo's repatriation is the lis
the Comelec had no jurisdiction to issue said mota, the threshold legal issue in this case. All the other
Resolutions because they were not rendered "within matters raised are secondary to this.
the period allowed by law" i.e., "not later than fifteen
days before the election."
The Local Government Code of 199119 expressly requires
Philippine citizenship as a qualification for elective local
Otherwise stated, Frivaldo contends that the failure of the officials, including that of provincial governor, thus:
Comelec to act on the petition for disqualification within the
period of fifteen days prior to the election as provided by law is
Sec. 39. Qualifications. -- (a) An elective
a jurisdictional defect which renders the said Resolutions null
local official must be a citizen of the
and void.
Philippines; a registered voter in the
 barangay, municipality, city, or province or,
in the case of a member of the
sangguniang panlalawigan, sangguniang
panlungsod, or 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.
(b) Candidates for the
position of governor,
vice governor or
member of the
sangguniang
panlalawigan, or
mayor, vice mayor or
member of the
sangguniang
panlungsod of highly
urbanized cities must
be at least twenty-
three (23) years of age
on election day.
x x x           x x x          x x x
Inasmuch as Frivaldo had been declared by this Court20 as a
non-citizen, it is therefore incumbent upon him to show that he
has reacquired citizenship; in fine, that he possesses the
qualifications prescribed under the said statute (R.A. 7160).
Under Philippine law,  citizenship may be reacquired by direct
21
act of Congress, by naturalization or by repatriation. Frivaldo
told this Court in G.R. No. 10465422 and during the oral
argument in this case that he tried to resume his citizenship
by direct act of Congress, but that the bill allowing him to do so
"failed to materialize, notwithstanding the endorsement of
several members of the House of Representatives" due,
according to him, to the "maneuvers of his political rivals." In
the same case, his attempt at naturalization was rejected by
this Court because of jurisdictional, substantial and procedural
defects.
Despite his lack of Philippine citizenship, Frivaldo was
overwhelmingly elected governor by the electorate of
Sorsogon, with a margin of 27,000 votes in the 1988 elections,
57,000 in 1992, and 20,000 in 1995 over the same opponent
Raul Lee. Twice, he was judicially declared a non-Filipino and
thus twice disqualified from holding and discharging his popular
mandate. Now, he comes to us a third time, with a fresh vote
from the people of Sorsogon and a favorable decision from the
Commission on Elections to boot. Moreover, he now boasts of
having successfully passed through the third and last mode of
reacquiring citizenship: by repatriation under P.D. No. 725, with
no less than the Solicitor General himself, who was the prime
opposing counsel in the previous cases he lost, this time, as
counsel for co-respondent Comelec, arguing the validity of his
cause (in addition to his able private counsel Sixto S. Brillantes,
Jr.). That he took his oath of allegiance under the provisions of
said Decree at 2:00 p.m. on June 30, 1995 is not disputed.
Hence, he insists that he -- not Lee -- should have been
proclaimed as the duly-elected governor of Sorsogon when the
Provincial Board of Canvassers met at 8:30 p.m. on the said
date since, clearly and unquestionably, he garnered the highest
number of votes in the elections and since at that time, he
already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted
with serious defects, which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively
repealed", asserting that "then President Corazon Aquino
exercising legislative powers under the Transitory Provisions of
the 1987 Constitution, forbade the grant of citizenship by
Presidential Decree or Executive Issuances as the same poses
a serious and contentious issue of policy which the present
government, in the exercise of prudence and sound discretion,
should best leave to the judgment of the first Congress under
the 1987 Constitution", adding that in her memorandum dated
March 27, 1987 to the members of the Special Committee on
Naturalization constituted for purposes of Presidential Decree
No. 725, President Aquino directed them "to cease and desist
from undertaking any and all proceedings within your functional
area of responsibility as defined under Letter of Instructions
(LOI) No. 270 dated April 11, 1975, as amended."23
This memorandum dated March 27, 198724 cannot by any
stretch of legal hermeneutics be construed as a law
sanctioning or authorizing a repeal of P.D. No. 725. Laws are
repealed only by subsequent ones 25 and a repeal may be
express or implied. It is obvious that no express repeal was
made because then President Aquino in her memorandum --
based on the copy furnished us by Lee -- did not categorically
and/or impliedly state that P.D. 725 was being repealed or was
being rendered without any legal effect. In fact, she did not
even mention it specifically by its number or text. On the other
hand, it is a basic rule of statutory construction that repeals by
implication are not favored. An implied repeal will not be
allowed "unless it is convincingly and unambiguously
demonstrated that the two laws are clearly repugnant and
patently inconsistent that they cannot co-exist".26
The memorandum of then President Aquino cannot even be
regarded as a legislative enactment, for not every
pronouncement of the Chief Executive even under the
Transitory Provisions of the 1987 Constitution can nor should
be regarded as an exercise of her law-making powers. At best,
it could be treated as an executive policy addressed to the
Special Committee to halt the acceptance and processing of
applications for repatriation pending whatever "judgment the
first Congress under the 1987 Constitution" might make. In
other words, the former President did not repeal P.D. 725 but
left it to the first Congress -- once created -- to deal with the
matter. If she had intended to repeal such law, she should have
unequivocally said so instead of referring the matter to
Congress. The fact is she carefully couched her presidential
issuance in terms that clearly indicated the intention of "the
present government, in the exercise of prudence and sound
discretion" to leave the matter of repeal to the new Congress.
Any other interpretation of the said Presidential Memorandum,
such as is now being proffered to the Court by Lee, would visit
unmitigated violence not only upon statutory construction but
on common sense as well.
Second, Lee also argues that "serious congenital irregularities
flawed the repatriation proceedings," asserting that Frivaldo's
application therefor was "filed on June 29, 1995 . . . (and) was
approved in just one day or on June 30, 1995 . . .", which
"prevented a judicious review and evaluation of the merits
thereof." Frivaldo counters that he filed his application for
repatriation with the Office of the President in Malacañang
Palace on August 17, 1994. This is confirmed by the Solicitor
General. However, the Special Committee was reactivated only
on June 8, 1995, when presumably the said Committee started
processing his application. On June 29, 1995, he filled up and
re-submitted the FORM that the Committee required. Under
these circumstances, it could not be said that there was
"indecent haste" in the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the
Special Committee on Naturalization was intended solely for
the personal interest of respondent,"27 the Solicitor General
explained during the oral argument on March 19, 1996 that
such allegation is simply baseless as there were many others
who applied and were considered for repatriation, a list of
whom was submitted by him to this Court, through a
Manifestation28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that
the presumption of regularity in the performance of official duty
and the presumption of legality in the repatriation of Frivaldo
have not been successfully rebutted by Lee. The mere fact that
the proceedings were speeded up is by itself not a ground to
conclude that such proceedings were necessarily tainted. After
all, the requirements of repatriation under P.D. No. 725 are not
difficult to comply with, nor are they tedious and cumbersome.
In fact, P.D.
72529 itself requires very little of an applicant, and even the
rules and regulations to implement the said decree were left to
the Special Committee to promulgate. This is not unusual
since, unlike in naturalization where an alien covets a first-
time entry into Philippine political life, in repatriation the
applicant is a former natural-born Filipino who is merely
seeking to reacquire his previous citizenship. In the case of
Frivaldo, he was undoubtedly a natural-born citizen who openly
and faithfully served his country and his province prior to his
naturalization in the United States -- a naturalization he insists
was made necessary only to escape the iron clutches of a
dictatorship he abhorred and could not in conscience embrace
-- and who, after the fall of the dictator and the re-
establishment of democratic space, wasted no time in returning
to his country of birth to offer once more his talent and services
to his people.
So too, the fact that ten other persons, as certified to by the
Solicitor General, were granted repatriation argues
convincingly and conclusively against the existence of
favoritism vehemently posited by Raul Lee. At any rate, any
contest on the legality of Frivaldo's repatriation should have
been pursued before the Committee itself, and, failing there, in
the Office of the President, pursuant to the doctrine of
exhaustion of administrative remedies.
Third, Lee further contends that assuming the assailed
repatriation to be valid, nevertheless it could only be effective
as at 2:00 p.m. of June 30, 1995 whereas the citizenship
qualification prescribed by the Local Government Code "must
exist on the date of his election, if not when the certificate of
candidacy is filed," citing our decision in G.R. 10465430 which
held that "both the Local Government Code and the
Constitution require that only Philippine citizens can run and be
elected to public office." Obviously, however, this was a
mere obiter as the only issue in said case was whether
Frivaldo's naturalization was valid or not -- and NOT the
effective date thereof. Since the Court held his naturalization to
be invalid, then the issue of when an aspirant for public office
should be a citizen was NOT resolved at all by the Court.
Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective
local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay,
municipality, city, or province . . . where he
intends to be elected;
* a resident therein for at least one (1) year
immediately preceding the day of the
election;
* able to read and write Filipino or any
other local language or dialect.
* In addition, "candidates for the position of
governor . . . must be at least twenty-three
(23) years of age on election day.
From the above, it will be noted that the law does not specify
any particular date or time when the candidate must possess
citizenship, unlike that for residence (which must consist of at
least one year's residency immediately preceding the day of
election) and age (at least twenty three years of age on
election day).
Philippine citizenship is an indispensable requirement for
holding an elective public office,31 and the purpose of the
citizenship qualification is none other than to ensure that no
alien, i.e., no person owing allegiance to another nation, shall
govern our people and our country or a unit of territory thereof.
Now, an official begins to govern or to discharge his functions
only upon his proclamation and on the day the law mandates
his term of office to begin. Since Frivaldo re-assumed his
citizenship on June 30, 1995 -- the very day32 the term of office
of governor (and other elective officials) began -- he was
therefore already qualified to be proclaimed, to hold such office
and to discharge the functions and responsibilities thereof as of
said date. In short, at that time, he was already qualified to
govern his native Sorsogon. This is the liberal interpretation
that should give spirit, life and meaning to our law on
qualifications consistent with the purpose for which such law
was enacted. So too, even from a literal (as distinguished
from liberal) construction, it should be noted that Section 39 of
the Local Government Code speaks of "Qualifications" of
"ELECTIVE OFFICIALS", not of candidates. Why then should
such qualification be required at the time of election or at the
time of the filing of the certificates of candidacies, as Lee
insists? Literally, such qualifications -- unless otherwise
expressly conditioned, as in the case of age and residence --
should thus be possessed when the "elective [or elected]
official" begins to govern, i.e., at the time he is
proclaimed and at the start of his term -- in this case, on June
30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giap
and Li Seng Giap & Sons, 33 if the purpose of the citizenship
requirement is to ensure that our people and country do not
end up being governed by aliens, i.e., persons owing
allegiance to another nation, that aim or purpose would not be
thwarted but instead achieved by construing the citizenship
qualification as applying to the time of proclamation of the
elected official and at the start of his term.
But perhaps the more difficult objection was the one raised
during the oral argument34 to the effect that the citizenship
qualification should be possessed at the time the candidate (or
for that matter the elected official) registered as a voter. After
all, Section 39, apart from requiring the official to be a citizen,
also specifies as another item of qualification, that he be a
"registered voter". And, under the law35 a "voter" must be a
citizen of the Philippines. So therefore, Frivaldo could not have
been a voter -- much less a validly registered one -- if he was
not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose
of the requirement. If the law intended
the citizenship qualification to be possessed prior to election
consistent with the requirement of being a registered voter,
then it would not have made citizenship a SEPARATE
qualification. The law abhors a redundancy. It therefore stands
to reason that the law intended CITIZENSHIP to be a
qualification distinct from being a VOTER, even if being a voter
presumes being a citizen first. It also stands to reason that the
voter requirement was included as another qualification (aside
from "citizenship"), not to reiterate the need for nationality but
to require that the official be registered as a voter IN THE
AREA OR TERRITORY he seeks to govern, i.e., the law
states: "a registered voter in the barangay, municipality, city, or
province . . . where he intends to be elected." It should be
emphasized that the Local Government Code requires an
elective official to be a registered voter. It does not require him
to vote actually. Hence, registration -- not the actual voting -- is
the core of this "qualification". In other words, the law's purpose
in this second requirement is to ensure that the prospective
official is actually registered in the area he seeks to govern
-- and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and
Lee has not disputed -- that he "was and is a registered voter of
Sorsogon, and his registration as a voter has been sustained
as valid by judicial declaration . . . In fact, he cast his vote in his
precinct on May 8, 1995."36
So too, during the oral argument, his counsel steadfastly
maintained that "Mr. Frivaldo has always been a registered
voter of Sorsogon. He has voted in 1987, 1988, 1992, then he
voted again in 1995. In fact, his eligibility as a voter was
questioned, but the court dismissed (sic) his eligibility as a
voter and he was allowed to vote as in fact, he voted in all the
previous elections including on May 8, 1995."3 7
It is thus clear that Frivaldo is a registered voter in the
province where he intended to be elected.
There is yet another reason why the prime issue
of citizenship should be reckoned from the date of
proclamation, not necessarily the date of election or date of
filing of the certificate of candidacy. Section 253 of the
Omnibus Election Code 38 gives any voter, presumably
including the defeated candidate, the opportunity to question
the ELIGIBILITY (or the disloyalty) of a candidate. This is the
only provision of the Code that authorizes a remedy on how to
contest before the Comelec an incumbent's ineligibility arising
from failure to meet the qualifications enumerated under Sec.
39 of the Local Government Code. Such remedy of Quo
Warranto can be availed of "within ten days after proclamation"
of the winning candidate. Hence, it is only at such time that the
issue of ineligibility may be taken cognizance of by the
Commission. And since, at the very moment of Lee's
proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was
already and indubitably a citizen, having taken his oath of
allegiance earlier in the afternoon of the same day, then he
should have been the candidate proclaimed as he
unquestionably garnered the highest number of votes in the
immediately preceding elections and such oath had already
cured his previous "judicially-declared" alienage. Hence, at
such time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold
that the repatriation of Frivaldo RETROACTED to the date of
the filing of his application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws
shall have no retroactive effect, unless the contrary is
provided." But there are settled exceptions40 to this general
rule, such as when the statute is CURATIVE or REMEDIAL in
nature or when it CREATES NEW RIGHTS.
According to Tolentino,41 curative statutes are those which
undertake to cure errors and irregularities, thereby validating
judicial or administrative proceedings, acts of public officers, or
private deeds and contracts which otherwise would not
produce their intended consequences by reason of some
statutory disability or failure to comply with some technical
requirement. They operate on conditions already existing, and
are necessarily retroactive in operation. Agpalo,42 on the other
hand, says that curative statutes are
"healing acts . . . curing defects and adding to the means of
enforcing existing obligations . . . (and) are intended to supply
defects, abridge superfluities in existing laws, and curb certain
evils. . . . By their very nature, curative statutes are retroactive .
. . (and) reach back to past events to correct errors or
irregularities and to render valid and effective attempted acts
which would be otherwise ineffective for the purpose the
parties intended."
On the other hand, remedial or procedural laws, i.e., those
statutes relating to remedies or modes of procedure, which do
not create new or take away vested rights, but only operate in
furtherance of the remedy or confirmation of such rights,
ordinarily do not come within the legal meaning of a
retrospective law, nor within the general rule against the
retrospective operation of statutes.43
A reading of P.D. 725 immediately shows that it creates a new
right, and also provides for a new remedy, thereby filling certain
voids in our laws. Thus, in its preamble, P.D. 725 expressly
recognizes the plight of "many Filipino women (who) had lost
their Philippine citizenship by marriage to aliens" and who
could not, under the existing law (C.A. No. 63, as amended)
avail of repatriation until "after the death of their husbands or
the termination of their marital status" and who could neither be
benefitted by the 1973 Constitution's new provision allowing "a
Filipino woman who marries an alien to retain her Philippine
citizenship . . ." because "such provision of the new
Constitution does not apply to Filipino women who had married
aliens before said constitution took effect." Thus, P.D. 725
granted a new right to these women -- the right to re-acquire
Filipino citizenship even during their marital coverture, which
right did not exist prior to P.D. 725. On the other hand, said
statute also provided a new remedy and a new right in favor of
other "natural born Filipinos who (had) lost their Philippine
citizenship but now desire to re-acquire Philippine citizenship",
because prior to the promulgation of P.D. 725 such former
Filipinos would have had to undergo the tedious and
cumbersome process of naturalization, but with the advent of
P.D. 725 they could now re-acquire their Philippine citizenship
under the simplified procedure of repatriation.
The Solicitor General44 argues:
By their very nature, curative statutes are
retroactive, (DBP vs. CA, 96 SCRA 342),
since they are intended to supply defects,
abridge superfluities in existing laws (Del
Castillo vs. Securities and Exchange
Commission, 96 Phil. 119) and curb certain
evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to
cure the defect in the existing
naturalization law, specifically C.A. No. 63
wherein married Filipino women are
allowed to repatriate only upon the death
of their husbands, and natural-born
Filipinos who lost their citizenship by
naturalization and other causes faced the
difficulty of undergoing the rigid
procedures of C.A. 63 for reacquisition of
Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a
remedy for the aforementioned legal
aberrations and thus its provisions are
considered essentially remedial and
curative.
In light of the foregoing, and prescinding from the wording of
the preamble, it is unarguable that the legislative intent was
precisely to give the statute retroactive operation. "(A)
retrospective operation is given to a statute or amendment
where the intent that it should so operate clearly appears from
a consideration of the act as a whole, or from the terms
thereof."45 It is obvious to the Court that the statute was meant
to "reach back" to those persons, events and transactions not
otherwise covered by prevailing law and jurisprudence. And
inasmuch as it has been held that citizenship is a political and
civil right equally as important as the freedom of speech, liberty
of abode, the right against unreasonable searches and
seizures and other guarantees enshrined in the Bill of Rights,
therefore the legislative intent to give retrospective operation to
P.D. 725 must be given the fullest effect possible. "(I)t has
been said that a remedial statute must be so construed as to
make it effect the evident purpose for which it was enacted, so
that if the reason of the statute extends to past transactions, as
well as to those in the future, then it will be so applied although
the statute does not in terms so direct, unless to do so would
impair some vested right or violate some constitutional
guaranty."46 This is all the more true of P.D. 725, which did not
specify any restrictions on or delimit or qualify the right of
repatriation granted therein.
At this point, a valid question may be raised: How can the
retroactivity of P.D. 725 benefit Frivaldo considering that said
law was enacted on June 5, 1975, while Frivaldo lost his
Filipino citizenship much later, on January 20, 1983, and
applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that
Frivaldo became an American citizen, nevertheless, it is not
only the law itself (P.D. 725) which is to be given retroactive
effect, but even the repatriation granted under said law to
Frivaldo on June 30, 1995 is to be deemed to have retroacted
to the date of his application therefor, August 17, 1994. The
reason for this is simply that if, as in this case, it was the intent
of the legislative authority that the law should apply
to past events -- i.e., situations and transactions existing even
before the law came into being -- in order to benefit the
greatest number of former Filipinos possible thereby enabling
them to enjoy and exercise the constitutionally guaranteed right
of citizenship, and such legislative intention is to be given the
fullest effect and expression, then there is all the more reason
to have the law apply in a retroactive or retrospective manner
to situations, events and transactions subsequent to the
passage of such law. That is, the repatriation granted to
Frivaldo on June 30, 1995 can and should be made to take
effect as of date of his application. As earlier mentioned, there
is nothing in the law that would bar this or would show a
contrary intention on the part of the legislative authority; and
there is no showing that damage or prejudice to anyone, or
anything unjust or injurious would result from giving retroactivity
to his repatriation. Neither has Lee shown that there will result
the impairment of any contractual obligation, disturbance of any
vested right or breach of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly,
Frivaldo deserves a liberal interpretation of Philippine laws and
whatever defects there were in his nationality should now be
deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it
would prevent prejudice to applicants. If P.D. 725 were not to
be given retroactive effect, and the Special Committee decides
not to act, i.e., to delay the processing of applications for any
substantial length of time, then the former Filipinos who may be
stateless, as Frivaldo -- having already renounced his
American citizenship -- was, may be prejudiced for causes
outside their control. This should not be. In case of doubt in the
interpretation or application of laws, it is to be presumed that
the law-making body intended right and justice to prevail.4 7
And as experience will show, the Special Committee was able
to process, act upon and grant applications for repatriation
within relatively short spans of time after the same were
filed.48 The fact that such interregna were relatively insignificant
minimizes the likelihood of prejudice to the government as a
result of giving retroactivity to repatriation. Besides, to the mind
of the Court, direct prejudice to the government is possible only
where a person's repatriation has the effect of wiping out a
liability of his to the government arising in connection with or as
a result of his being an alien, and accruing only during the
interregnum between application and approval, a situation that
is not present in the instant case.
And it is but right and just that the mandate of the people,
already twice frustrated, should now prevail. Under the
circumstances, there is nothing unjust or iniquitous in treating
Frivaldo's repatriation as having become effective as of the
date of his application, i.e., on August 17, 1994. This being so,
all questions about his possession of the nationality
qualification -- whether at the date of proclamation (June 30,
1995) or the date of election (May 8, 1995) or date of filing his
certificate of candidacy (March 20, 1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's
status as a registered voter would also be deemed settled.
Inasmuch as he is considered as having been repatriated
-- i.e., his Filipino citizenship restored -- as of August 17, 1994,
his previous registration as a voter is likewise deemed
validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an
American. Would the retroactivity of his repatriation not
effectively give him dual citizenship, which under Sec. 40 of the
Local Government Code would disqualify him "from running for
any elective local position?"49 We answer this question in the
negative, as there is cogent reason to hold that Frivaldo was
really STATELESS at the time he took said oath of allegiance
and even before that, when he ran for governor in 1988. In his
Comment, Frivaldo wrote that he "had long renounced and had
long abandoned his American citizenship -- long before May 8,
1995. At best, Frivaldo was stateless in the interim -- when he
abandoned and renounced his US citizenship but before he
was repatriated to his Filipino citizenship."50
On this point, we quote from the assailed Resolution dated
December 19, 1995:51
By the laws of the United States, petitioner
Frivaldo lost his American citizenship when
he took his oath of allegiance to the
Philippine Government when he ran for
Governor in 1988, in 1992, and in 1995.
Every certificate of candidacy contains an
oath of allegiance to the Philippine
Government."
These factual findings that Frivaldo has lost his foreign
nationality long before the elections of 1995 have not been
effectively rebutted by Lee. Furthermore, it is basic that such
findings of the Commission are conclusive upon this Court,
absent any showing of capriciousness or arbitrariness or
abuse.52
The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the
Comelec Second Division in SPA No. 95-028 as affirmed in
toto by Comelec En Banc in its Resolution of May 11, 1995
"became final and executory after five (5) days or on May 17,
1995, no restraining order having been issued by this
Honorable Court.54 Hence, before Lee "was proclaimed as the
elected governor on June 30, 1995, there was already a final
and executory judgment disqualifying" Frivaldo. Lee adds that
this Court's two rulings (which Frivaldo now concedes were
legally "correct") declaring Frivaldo an alien have also become
final and executory way before the 1995 elections, and these
"judicial pronouncements of his political status as an American
citizen absolutely and for all time disqualified (him) from
running for, and holding any public office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193
disqualifying Frivaldo was rendered in connection with the 1988
elections while that in G.R. No. 104654 was in connection with
the 1992 elections. That he was disqualified for such elections
is final and can no longer be changed. In the words of the
respondent Commission (Second Division) in its assailed
Resolution:55
The records show that the Honorable
Supreme Court had decided that Frivaldo
was not a Filipino citizen and thus
disqualified for the purpose of the 1988
and 1992 elections. However, there is no
record of any "final judgment" of the
disqualification of Frivaldo as a candidate
for the May 8, 1995 elections. What the
Commission said in its Order of June 21,
1995 (implemented on June 30, 1995),
directing the proclamation of Raul R. Lee,
was that Frivaldo was not a Filipino citizen
"having been declared by the Supreme
Court in its Order dated March 25, 1995,
not a citizen of the Philippines." This
declaration of the Supreme Court,
however, was in connection with the 1992
elections.
Indeed, decisions declaring the acquisition or denial of
citizenship cannot govern a person's future status with finality.
This is because a person may subsequently reacquire, or for
that matter lose, his citizenship under any of the modes
recognized by law for the purpose. Hence, in Lee
vs. Commissioner of Immigration,56 we held:
Everytime the citizenship of a person is
material or indispensable in a judicial or
administrative case, whatever the
corresponding court or administrative
authority decides therein as to such
citizenship is generally not considered res
judicata, hence it has to be threshed out
again and again, as the occasion
demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to
entertain the petition in SPC No. 95-317 because the only
"possible types of proceedings that may be entertained by the
Comelec are a pre-proclamation case, an election protest or
a quo warranto case". Again, Lee reminds us that he was
proclaimed on June 30, 1995 but that Frivaldo filed SPC No.
95-317 questioning his (Lee's) proclamation only on July 6,
1995 -- "beyond the 5-day reglementary period." Hence,
according to him, Frivaldo's "recourse was to file either an
election protest or a quo warranto action."
This argument is not meritorious. The Constitution57 has given
the Comelec ample power to "exercise exclusive original
jurisdiction over all contests relating to the elections, returns
and qualifications of all elective . . . provincial . . . officials."
Instead of dwelling at length on the various petitions that
Comelec, in the exercise of its constitutional prerogatives, may
entertain, suffice it to say that this Court has invariably
recognized the Commission's authority to hear and decide
petitions for annulment of proclamations -- of which SPC No.
95-317 obviously is one.58 Thus, in Mentang
vs. COMELEC,59 we ruled:
The petitioner argues that after
proclamation and assumption of office, a
pre-proclamation controversy is no longer
viable. Indeed, we are aware of cases
holding that pre-proclamation
controversies may no longer be
entertained by the COMELEC after the
winning candidate has been proclaimed.
(citing Gallardo vs. Rimando, 187 SCRA
463; Salvacion vs. COMELEC, 170 SCRA
513; Casimiro vs. COMELEC, 171 SCRA
468.) This rule, however, is premised on
an assumption that the proclamation is no
 proclamation at all and the proclaimed
candidate's assumption of office cannot
deprive the COMELEC of the power to
make such declaration of nullity.
(citing Aguam vs. COMELEC, 23 SCRA
883; Agbayani vs. COMELEC, 186 SCRA
484.)
The Court however cautioned that such power to annul a
proclamation must "be done within ten (10) days following the
proclamation." Inasmuch as Frivaldo's petition was filed only six
(6) days after Lee's proclamation, there is no question that the
Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold
him for the following reasons:
First. To paraphrase this Court in Labo vs. COMELEC,60 "the
fact remains that he (Lee) was not the choice of the sovereign
will," and in Aquino vs. COMELEC,61 Lee is "a second
placer, . . . just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on
the pronouncement of this Court in the aforesaid Labo62 case,
as follows:
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 such holding is qualified by the next paragraph, thus:
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 Payor 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.
The last-quoted paragraph in Labo, unfortunately for Lee, is the
ruling appropriate in this case because Frivaldo was in 1995 in
an identical situation as Labo was in 1992 when the Comelec's
cancellation of his certificate of candidacy was not yet final on
election day as there was in both cases a pending motion for
reconsideration, for which reason Comelec issued an
(omnibus) resolution declaring that Frivaldo (like Labo in 1992)
and several others can still be voted for in the May 8, 1995
election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented
to show that the electorate of Sorsogon was "fully aware in fact
and in law" of Frivaldo's alleged disqualification as to "bring
such awareness within the realm of notoriety;" in other words,
that the voters intentionally wasted their ballots knowing that, in
spite of their voting for him, he was ineligible. If Labo has any
relevance at all, it is that the vice-governor -- and not Lee --
should be pro- claimed, since in losing the election, Lee was, to
paraphrase Labo again, "obviously not the choice of the
people" of Sorsogon. This is the emphatic teaching of Labo:
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.
Second. As we have earlier declared Frivaldo to have
seasonably reacquired his citizenship and inasmuch as he
obtained the highest number of votes in the 1995 elections, he
-- not Lee -- should be proclaimed. Hence, Lee's proclamation
was patently erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed
Resolution of the Comelec (Second Division) dated May 1,
1995 and the confirmatory en banc Resolution of May 11, 1995
disqualifying him for want of citizenship should be annulled
because they were rendered beyond the fifteen (15) day period
prescribed by Section 78, of the Omnibus Election Code which
reads as follows:
Sec. 78. Petition to deny due course or to
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 notice and
hearing, not later than fifteen days before
the election. (Emphasis supplied.)
This claim is now moot and academic inasmuch as these
resolutions are deemed superseded by the subsequent ones
issued by the Commission (First Division) on December 19,
1995, affirmed en banc63 on February 23, 1996; which both
upheld his election. At any rate, it is obvious that Section 78 is
merely directory as Section 6 of R.A. No. 6646 authorizes the
Commission to try and decide petitions for disqualifications
even after the elections, thus:
Sec. 6. Effect of Disqualification Case. --
Any candidate who has been declared by
final judgment to be disqualified shall not
be voted for, and the votes cast for him
shall not be counted. If for any reason a
candidate is not declared by final judgment
before an election to be disqualified and
he is voted for and receives the winning
number of votes in such election, the Court
or Commission shall continue with the trial
and hearing of the action, inquiry or protest
and upon motion of the complainant or any
intervenor, may during the pendency
thereof order the suspension of the
proclamation of such candidate whenever
the evidence of his guilt is strong.
(emphasis supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G.
Davide, Jr. argues that President Aquino's memorandum dated
March 27, 1987 should be viewed as a suspension (not a
repeal, as urged by Lee) of P.D. 725. But whether it decrees a
suspension or a repeal is a purely academic distinction
because the said issuance is not a statute that can amend or
abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in
the first Frivaldo case;64 viz., "(u)nder CA No. 63 as amended
by CA No. 473 and P.D. No. 725, Philippine citizenship maybe
reacquired by . . . repatriation". He also contends that by
allowing Frivaldo to register and to remain as a registered
voter, the Comelec and in effect this Court abetted a "mockery"
of our two previous judgments declaring him a non-citizen. We
do not see such abetting or mockery. The retroactivity of his
repatriation, as discussed earlier, legally cured whatever
defects there may have been in his registration as a voter for
the purpose of the 1995 elections. Such retroactivity did not
change his disqualifications in 1988 and 1992, which were the
subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the
sole remedy to question the ineligibility of a candidate, citing
the Comelec's authority under Section 78 of the Omnibus
Election Code allowing the denial of a certificate of candidacy
on the ground of a false material representation therein as
required by Section 74. Citing Loong, he then states his
disagreement with our holding that Section 78 is merely
directory. We really have no quarrel. Our point is that Frivaldo
was in error in his claim in G.R. No. 120295 that the Comelec
Resolutions promulgated on May 1, 1995 and May 11, 1995
were invalid because they were issued "not later than fifteen
days before the election" as prescribed by Section 78. In
dismissing the petition in G.R. No. 120295, we hold that the
Comelec did not commit grave abuse of discretion because
"Section 6 of R.A. 6646 authorizes the Comelec to try and
decide disqualifications even after the elections." In spite of his
disagreement with us on this point, i.e., that Section 78 "is
merely directory", we note that just like us, Mr. Justice Davide
nonetheless votes to "DISMISS G.R. No. 120295". One other
point. Loong, as quoted in the dissent, teaches that a petition to
deny due course under Section 78 must be filed within the 25-
day period prescribed therein. The present case however deals
with the period during which the Comelec may decide such
petition. And we hold that it may be decided even after
the fifteen day period mentioned in Section 78. Here, we rule
that a decision promulgated by the Comelec even after the
elections is valid but Loong held that a petition filed beyond the
25-day period is out of time. There is no inconsistency nor
conflict.
Mr. Justice Davide also disagrees with the Court's holding that,
given the unique factual circumstances of Frivaldo, repatriation
may be given retroactive effect. He argues that such
retroactivity "dilutes" our holding in the first Frivaldo case. But
the first (and even the second Frivaldo) decision did not directly
involve repatriation as a mode of acquiring citizenship. If we
may repeat, there is no question that Frivaldo was not a Filipino
for purposes of determining his qualifications in the 1988 and
1992 elections. That is settled. But his supervening repatriation
has changed his political status -- not in 1988 or 1992, but only
in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo
was stateless prior to his repatriation, saying that "informal
renunciation or abandonment is not a ground to lose American
citizenship". Since our courts are charged only with the duty of
determining who are Philippine nationals, we cannot rule on the
legal question of who are or who are not Americans. It is basic
in international law that a State determines ONLY those who
are its own citizens -- not who are the citizens of other
countries.65 The issue here is: the Comelec made a finding of
fact that Frivaldo was stateless and such finding has not been
shown by Lee to be arbitrary or whimsical. Thus, following
settled case law, such finding is binding and final.
The dissenting opinion also submits that Lee who lost by
chasmic margins to Frivaldo in all three previous elections,
should be declared winner because "Frivaldo's ineligibility for
being an American was publicly known". First, there is
absolutely no empirical evidence for such "public" knowledge.
Second, even if there is, such knowledge can be true post
facto only of the last two previous elections. Third, even the
Comelec and now this Court were/are still deliberating on his
nationality before, during and after the 1995 elections. How
then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local
Government Code refers to the qualifications of elective local
officials, i.e., candidates, and not elected officials, and that the
citizenship qualification [under par. (a) of that section] must be
possessed by candidates, not merely at the commencement of
the term, but by election day at the latest. We see it differently.
Section 39, par. (a) thereof speaks of "elective local official"
while par. (b) to (f) refer to "candidates". If the qualifications
under par. (a) were intended to apply to "candidates" and not
elected officials, the legislature would have said so, instead of
differentiating par. (a) from the rest of the paragraphs.
Secondly, if Congress had meant that the citizenship
qualification should be possessed at election day or prior
thereto, it would have specifically stated such detail, the same
way it did in pars. (b) to (f) far other qualifications of candidates
for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive
effect to Frivaldo's repatriation on the ground, among others,
that the law specifically provides that it is only after taking the
oath of allegiance that applicants shall be deemed to have
reacquired Philippine citizenship. We do not question what the
provision states. We hold however that the provision should be
understood thus: that after taking the oath of allegiance the
applicant is deemed to have reacquired Philippine citizenship,
which reacquisition (or repatriation) is deemed for all purposes
and intents to have retroacted to the date of his application
therefor.
In any event, our "so too" argument regarding the literal
meaning of the word "elective" in reference to Section 39 of the
Local Authority Code, as well as regarding Mr. Justice Davide's
thesis that the very wordings of P.D. 725 suggest non-
retroactivity, were already taken up rather extensively earlier in
this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This
Court must be the first to uphold the Rule of Law." We agree --
we must all follow the rule of law. But that is NOT the issue
here. The issue is how should the law be interpreted and
applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of
philosophy and perception of how to interpret and apply laws
relating to elections: literal or liberal; the letter or the spirit, the
naked provision or its ultimate purpose; legal syllogism or
substantial justice; in isolation or in the context of social
conditions; harshly against or gently in favor of the voters'
obvious choice. In applying election laws, it would be far better
to err in favor of popular sovereignty than to be right in complex
but little understood legalisms. Indeed, to inflict a thrice
rejected candidate upon the electorate of Sorsogon would
constitute unmitigated judicial tyranny and an unacceptable
assault upon this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local
Government Code is to be possessed by an elective official at
the latest as of the time he is proclaimed and at the start of the
term of office to which he has been elected. We further hold
P.D. No. 725 to be in full force and effect up to the present, not
having been suspended or repealed expressly nor impliedly at
any time, and Frivaldo's repatriation by virtue thereof to have
been properly granted and thus valid and effective. Moreover,
by reason of the remedial or curative nature of the law granting
him a new right to resume his political status and the legislative
intent behind it, as well as his unique situation of having been
forced to give up his citizenship and political aspiration as his
means of escaping a regime he abhorred, his repatriation is to
be given retroactive effect as of the date of his application
therefor, during the pendency of which he was stateless, he
having given up his U.S. nationality. Thus, in contemplation of
law, he possessed the vital requirement of Filipino citizenship
as of the start of the term of office of governor, and should
have been proclaimed instead of Lee. Furthermore, since his
reacquisition of citizenship retroacted to August 17, 1994, his
registration as a voter of Sorsogon is deemed to have been
validated as of said date as well. The foregoing, of course, are
precisely consistent with our holding that lack of the citizenship
requirement is not a continuing disability or disqualification to
run for and hold public office. And once again, we emphasize
herein our previous rulings recognizing the Comelec's authority
and jurisdiction to hear and decide petitions for annulment of
proclamations.
This Court has time and again liberally and equitably construed
the electoral laws of our country to give fullest effect to the
manifest will of our people,66 for in case of doubt, political laws
must be interpreted to give life and spirit to the popular
mandate freely expressed through the ballot. Otherwise stated,
legal niceties and technicalities cannot stand in the way of the
sovereign will. Consistently, we have held:
. . . (L)aws 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 (citations omitted).67
The law and the courts must accord Frivaldo every possible
protection, defense and refuge, in deference to the popular will.
Indeed, this Court has repeatedly stressed the importance of
giving effect to the sovereign will in order to ensure the survival
of our democracy. In any action involving the possibility of a
reversal of the popular electoral choice, this Court must exert
utmost effort to resolve the issues in a manner that would give
effect to the will of the majority, for it is merely sound public
policy to cause elective offices to be filled by those who are the
choice of the majority. To successfully challenge a winning
candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic68 to
constitutional and legal principles that overriding such
ineligibility and thereby giving effect to the apparent will of the
people, would ultimately create greater prejudice to the very
democratic institutions and juristic traditions that our
Constitution and laws so zealously protect and promote. In this
undertaking, Lee has miserably failed.
In Frivaldo's case. it would have been technically easy to find
fault with his cause. The Court could have refused to grant
retroactivity to the effects of his repatriation and hold him still
ineligible due to his failure to show his citizenship at the time he
registered as a voter before the 1995 elections. Or, it could
have disputed the factual findings of the Comelec that he was
stateless at the time of repatriation and thus hold his
consequent dual citizenship as a disqualification "from running
for any elective local position." But the real essence of justice
does not emanate from quibblings over patchwork legal
technicality. It proceeds from the spirit's gut consciousness of
the dynamic role of law as a brick in the ultimate development
of the social edifice. Thus, the Court struggled against and
eschewed the easy, legalistic, technical and sometimes harsh
anachronisms of the law in order to evoke substantial justice in
the larger social context consistent with Frivaldo's unique
situation approximating venerability in Philippine political life.
Concededly, he sought American citizenship only to escape the
clutches of the dictatorship. At this stage, we cannot seriously
entertain any doubt about his loyalty and dedication to this
country. At the first opportunity, he returned to this land, and
sought to serve his people once more. The people of Sorsogon
overwhelmingly voted for him three times. He took an oath of
allegiance to this Republic every time he filed his certificate of
candidacy and during his failed naturalization bid. And let it not
be overlooked, his demonstrated tenacity and sheer
determination to re-assume his nationality of birth despite
several legal set-backs speak more loudly, in spirit, in fact and
in truth than any legal technicality, of his consuming intention
and burning desire to re-embrace his native Philippines even
now at the ripe old age of 81 years. Such loyalty to and love of
country as well as nobility of purpose cannot be lost on this
Court of justice and equity. Mortals of lesser mettle would have
given up. After all, Frivaldo was assured of a life of ease and
plenty as a citizen of the most powerful country in the world.
But he opted, nay, single-mindedly insisted on returning to and
serving once more his struggling but beloved land of birth. He
therefore deserves every liberal interpretation of the law which
can be applied in his favor. And in the final analysis, over and
above Frivaldo himself, the indomitable people of Sorsogon
most certainly deserve to be governed by a leader of their
overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The
assailed Resolutions of the respondent Commission are
AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for
being moot and academic. In any event, it has no merit.
No costs.
SO ORDERED.
Padilla, Regalado, Romero, Bellosillo, Francisco, Hermosisima,
Jr. and Torres, Jr., JJ., concur.
Melo, Vitug and Kapunan, JJ., concurs in the result.
Narvasa, C.J. and Mendoza, J., took no part.
 
 
 
 
 
Separate Opinions
 
PUNO, J., concurring:
I concur with the path-breaking ponencia of Mr. Justice
Panganiban which is pro-people and pierces the myopia of
legalism. Upholding the sovereign will of the people which is
the be-all and the end-all of republicanism, it rests on a
foundation that will endure time and its tempest.
The sovereignty of our people is the primary postulate of the
1987 Constitution. For this reason, it appears as the first in our
declaration of principles and state policies. Thus, section 1 of
Article II of our fundamental law proclaims that "[t]he
Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates
from them." The same principle served as the bedrock of our
1973 and 1935 Constitutions.1 It is one of the few principles
whose truth has been cherished by the Americans as self-
evident. Section 4, Article IV of the U.S. Constitution makes it a
duty of the Federal government to guarantee to every state a
"republican form of government." With understandable fervor,
the American authorities imposed republicanism as the
cornerstone of our 1935 Constitution then being crafted by its
Filipino framers.2
Borne out of the 1986 people power EDSA revolution, our 1987
Constitution is more people-oriented. Thus, section 4 of Article
II provides as a state policy that the prime duty of the
Government is "to serve and protect the people." Section 1,
Article XI also provides that ". . . public officers . . . must at all
times be accountable to the people . . ." Sections 15 and 1 of
Article XIII define the role and rights of people's organizations.
Section 5(2) of Article XVI mandates that "[t]he state shall
strengthen the patriotic spirit and nationalist consciousness of
the military, and respect for people's rights in the performance
of their duty." And section 2 of Article XVII provides that
"amendments to
this Constitution may likewise be directly proposed by the
people through initiative . . ." All these provisions and more are
intended to breathe more life to the sovereignty of our people.
To be sure, the sovereignty of our people is not a kabalistic
principle whose dimensions are buried in mysticism. Its metes
and bounds are familiar to the framers of our Constitutions.
They knew that in its broadest sense, sovereignty is meant to
be supreme, the jus summi imperu, the absolute right to
govern.3 Former Dean Vicente Sinco4 states that an essential
quality of sovereignty is legal omnipotence, viz.: "Legal theory
establishes certain essential qualities inherent in the nature of
sovereignty. The first is legal omnipotence. This means that the
sovereign is legally omnipotent and absolute in relation to other
legal institutions. It has the power to determine exclusively its
legal competence. Its powers are original, not derivative. It is
the sole judge of what it should do at any given time."5 Citing
Barker,6 he adds that a more amplified definition of sovereignty
is that of "a final power of final legal adjustment of all legal
issues." The U.S. Supreme Court expressed the same thought
in the landmark case of Yick Wo v. Hopkins,7 where it held that
". . . sovereignty itself is, of course, not subject to law, for it is
the author and source of law; but in our system, while
sovereign powers are delegated to the agencies of
government, sovereignty itself remains with the people, by
whom and for whom all government exists and acts."
In our Constitution, the people established a representative
democracy as distinguished from a pure democracy. Justice
Isagani Cruz explains:8
xxx xxx xxx
A republic is a representative government,
a government run by and for the people. It
is not a pure democracy where the people
govern themselves directly. The essence
of republicanism is representation and
renovation, the selection by the citizenry of
a corps of public functionaries who derive
their mandate from the people and act on
their behalf, serving for a limited period
only, after which they are replaced or
retained, at the option of their
principal. Obviously, a republican
government is a responsible government
whose officials hold and discharge their
position as a public trust and shall,
according to the Constitution, "at all times
be accountable to the people" they are
sworn to serve. The purpose of a
republican government it is almost
needless to state, is the promotion of the
common welfare according to the will of
the people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I agree
that sovereignty is indivisible but it need not always
be exercised by the people together, all the time.9 For this
reason, the Constitution and our laws provide when the entire
electorate or only some of them can elect those who make our
laws and those who execute our laws. Thus, the entire
electorate votes for our senators but only our district
electorates vote for our congressmen, only our provincial
electorates vote for the members of our provincial boards, only
our city electorates vote for our city councilors, and only our
municipal electorates vote for our councilors. Also, the entire
electorate votes for our President and Vice-President but only
our provincial electorates vote for our governors, only our city
electorates vote for our mayors, and only our municipal
electorates vote for our mayors. By defining and delimiting the
classes of voters who can exercise the sovereignty of the
people in a given election, it cannot be claimed that said
sovereignty has been fragmented.
It is my respectful submission that the issue in the case at bar
is not whether the people of Sorsogon should be given the right
to defy the law by allowing Frivaldo to sit as their governor.
Rather, the issue is: whether the will of the voters of Sorsogon
clearly choosing Frivaldo as governor ought to be given
a decisive value considering the uncertainty of the law on when
a candidate ought to satisfy the qualification of citizenship. The
uncertainty of law and jurisprudence, both here and abroad, on
this legal issue cannot be denied. In the United States, 10 there authority."11 The choice of the governed on who shall be their
are two (2) principal schools of thought on the matter. One governor merits the highest consideration by all agencies of
espouses the view that a candidate must possess the government. In cases where the sovereignty of the people is at
qualifications for office at the time of his election. The other stake, we must not only be legally right but also politically
ventures the view that the candidate should satisfy the correct. We cannot fail by making the people succeed.
qualifications at the time he assumes the powers of the office. I
am unaware of any Philippine decision that has squarely
DAVIDE, JR., J., dissenting:
resolved this difficult question of law. The ponencia of Mr.
Justice Panganiban adhered to the second school of thought
while Mr. Justice Davide dissents. After deliberating on the re-formulated issues and the
conclusions reached by my distinguished colleague, Mr.
Justice Artemio V. Panganiban, I find myself unable to join him.
I emphasize the honest-to-goodness difference in interpreting
our law on the matter for this is vital to dispel the fear of Mr.
Justice Davide that my opinion can bring about ill effects to the I
State. Mr. Justice Davide's fear is based on
the assumption that Frivaldo continues to be disqualified and
I agree with petitioner Lee that Frivaldo's repatriation was void,
we cannot allow him to sit as governor without transgressing
but not on the ground that President Corazon C. Aquino's 27
the law. I do not concede this assumption for as stressed
March 1987 memorandum "effectively repealed" P.D. No. 725.
above, courts have been sharply divided by this mind boggling
In my view, the said memorandum only suspended the
issue. Given this schism, I do not see how we can derogate on
implementation of the latter decree by divesting the Special
the sovereignty of the people by according more weight to the
Committee on Naturalization of its authority to further act on
votes of the people of Sorsogon.
grants of citizenship under LOI No. 270, as amended, P.D. No.
836, as amended; P.D. No. 1379; and "any other related laws,
Mr. Justice Davide warns that should the people of Batanes orders, issuances and rules and regulations." A reading of the
stage a rebellion, we cannot prosecute them "because of the last paragraph of the memorandum can lead to no other
doctrine of people's sovereignty." With due respect, the conclusion, thus:
analogy is not appropriate. In his hypothetical case, rebellion
is concededly a crime, a violation of Article 134 of the Revised
In view of the foregoing, you as Chairman
Penal Code, an offense against the sovereignty of our
and members of the Special Committee on
people. In the case at bar, it cannot be held with certitude that
Naturalization, are hereby directed to
the people of Sorsogon violated the law by voting for Frivaldo
cease and desist from undertaking any
as governor. Frivaldo's name was in the list of candidates
and all proceedings within your functional
allowed by COMELEC to run for governor. At that time too,
area of responsibility, as defined in Letter
Frivaldo was taking all steps to establish his Filipino citizenship.
of Instruction No. 270 dated April 11, 1975,
And even our jurisprudence has not settled the issue when a
as amended, Presidential Decree No. 836
candidate should possess the qualification of citizenship. Since
dated December 3, 1975, as amended,
the meaning of the law is arguable then and now, I cannot
and Presidential Decree No. 1379 dated
imagine how it will be disastrous for the State if we tilt the
May 17, 1978, relative to the grant of
balance in the case at bar in favor of the people of Sorsogon.
citizenship under the said laws, and any
other related laws, orders, issuances and
In sum, I respectfully submit that the sovereign will of our rules and regulations. (emphasis supplied)
people should be resolutory of the case at bar which is one of
its kind, unprecedented in our political history. For three (3)
It is self-evident that the underscored clause can only refer to
times, Frivaldo ran as governor of the province of Sorsogon.
those related to LOI No. 270, P.D. No. 836, and P.D. No. 1379.
For two (2) times, he was disqualified on the ground of
There is no doubt in my mind that P.D. No. 725 is one such
citizenship. The people of Sorsogon voted for him as their
"related law" as it involves the reacquisition of Philippine
governor despite his disqualification. The people never waffled
citizenship by repatriation and designates the Special
in their support for Frivaldo. In 1988, they gave him a winning
Committee on Naturalization created under LOI No. 270 to
margin of 27,000; in 1992, they gave him a winning spread of
receive and act on (i.e., approve or disapprove) applications
57,000; in 1995, he posted a margin of 20,000. Clearly then,
under the said decree. The power of President Aquino to
Frivaldo is the overwhelming choice of the people of Sorsogon.
suspend these issuances by virtue of the 27 March 1987
In election cases, we should strive to align the will of the
memorandum is beyond question considering that under
legislature as expressed in its law with the will of the sovereign
Section 6, Article XVIII of the 1987 Constitution, she exercised
people as expressed in their ballots. For law to reign, it must
legislative power until the Congress established therein
respect the will of the people. For in the eloquent prose of Mr.
convened on the fourth Monday of July 1987.
Justice Laurel, ". . . an enfranchised citizen is a particle of
popular sovereignty and is the ultimate source of established
I disagree with the view expressed in the ponencia that the
memorandum of 27 March 1987 was merely a declaration of
"executive policy," and not an exercise of legislative power. LOI
No. 270, P.D. No. 836, P.D. No. 1379 and "any other related
laws," such as P.D. No. 725, were issued by President
Ferdinand E. Marcos in the exercise of his legislative powers --
not executive power. These laws relate to the acquisition (by
naturalization) and reacquisition (by repatriation) of Philippine
citizenship, and in light of Sections 1(4) and 3, Article IV of the
1987 Constitution (naturalization and reacquisition of Philippine
citizenship shall be in accordance with law), it is indubitable
that these subjects are a matter of legislative prerogative. In
the same vein, the creation of the Special Committee on
Naturalization by LOI No. 270 and the conferment of the power
to accept and act on applications under P.D. No. 725 are
clearly legislative acts.
Accordingly, the revocation of the cease and desist order and
the reactivation or revival of the Committee can be done only
by legislative fiat, i.e., by Congress, since the President had
long lost his authority to exercise "legislative power."
Considering that Congress has not seen it fit to do so, the
President cannot, in the exercise of executive power, lift the
cease and desist order nor reactivate/reconstitute/revive the
Committee. A multo fortiori, the Committee cannot validly
accept Frivaldo's application for repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is valid, it
did not "cure his lack of citizenship." I depart from the view in
the ponencia that Section 39 of the Local Government Code of
1991 does not specify the time when the citizenship
requirement must be met, and that being the case, then it
suffices that citizenship be possessed upon commencement of
the term of the office involved; therefore, since Frivaldo "re-
assumed" his Philippine citizenship at 2:00 p.m. on 30 June
1995 and the term of office of Governor commenced at 12:00
noon of that day, he had, therefore, complied with the
citizenship requirement.
In the first place, Section 39 actually prescribes the
qualifications of elective local officials and not those of
an elected local official. These adjectives are not synonymous,
as the ponencia seems to suggest. The first refers to the
nature of the office, which requires the process of voting by the
electorate involved; while the second refers to a victorious
candidate for an elective office. The section unquestionably
refers to elective -- not elected -- local officials. It falls under
Title Two entitled ELECTIVE OFFICIALS; under Chapter 1
entitled Qualifications and Election; and paragraph (a) thereof
begins with the phrase "An elective local official," while
paragraphs (b) to (f) thereof speak of candidates. It reads as
For another, it is not at all true that Section 39 does not specify
follows:
the time when the citizenship requirement must be possessed.
I submit that the requirement must be satisfied, or that
Philippine citizenship must be possessed, not merely at the
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, or 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.
(b) Candidates for the position of governor,
vice governor or member of the
sangguniang panlalawigan, or mayor, vice
mayor or member of the sangguniang
panlungsod of highly urbanized cities must
be at least twenty-three (23) years of age
on election day.
(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.
(d) Candidates for the position of member
of the sangguniang panlungsod or
sangguniang bayan must be at least
eighteen (18) years of age on election day.
(e) Candidates for the position of punong
barangay or member of the sangguniang
barangay must be at least eighteen (18)
years of age on election day.
(f) Candidates for the sangguniang
kabataan must be at least fifteen (15)
years of age but not more than twenty-one
(21) years of age on election day
(emphasis supplied)
It is thus obvious that Section 39 refers to no other
than the qualifications of candidates for elective local
offices and their election. Hence, in no way may the
section be construed to mean that possession of
qualifications should be reckoned from the
commencement of the term of office of the elected
candidate.
commencement of the term, but at an earlier time, the latest
being election day itself. Section 39 is not at all ambiguous nor
uncertain that it meant this to be, as one basic qualification of
an elective local official is that he be "A REGISTERED VOTER
IN THE BARANGAY, MUNICIPALITY, CITY OR PROVINCE . .
. WHERE HE INTENDS TO VOTE." This simply means that he
possesses all the qualifications to exercise the right of suffrage.
The fundamental qualification for the exercise of this sovereign
right is the possession of Philippine citizenship. No less than
the Constitution makes it the first qualification, as Section 1,
Article V thereof provides:
Sec. 1. Suffrage may be exercised by all
citizens of the Philippines not otherwise
disqualified by law, who are at least
eighteen years of age, and who shall have
resided in the Philippines for at least one
year and in the place wherein they
propose to vote for at least six months
immediately preceding the election. . . .
(emphasis supplied)
And Section 117 of the Omnibus Election Code of
the Philippines (B.P. Blg. 881) expressly provides for
the qualifications of a voter. Thus:
Sec. 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 a
registered voter. (emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's election
as Governor in the 1988 and 1992 elections on the ground that
for lack of Philippine citizenship -- he being a naturalized citizen
of the United States of America -- he was DISQUALIFIED to be
elected as such and to serve the position (Frivaldo vs.
Commission on Elections, 174 SCRA 245 [1989]; Republic of
the Philippines vs. De la Rosa, 232 SCRA 785 [1994]). This
disqualification inexorably nullified Frivaldo's registration as a
voter and declared it void ab initio. Our judgments therein were
self-executory and no further act, e.g., a COMELEC order to
cancel his registration as a voter or the physical destruction of
his voter's certificate, was necessary for the ineffectivity. Thus,
he was never considered a registered voter for the elections of
May 1992, and May 1995, as there is no showing that Frivaldo
registered anew as a voter for the latter elections. Even if he
did -- in obvious defiance of his decreed disqualification -- this
did not make him a Filipino citizen, hence it was equally
void ab initio. That he filed his certificate of candidacy for the
1995 elections and was even allowed to vote therein were of
no moment. Neither act made him a Filipino citizen nor nullified
the judgments of this Court. On the contrary, said acts made a This remedy was recognized in Loong all qualifications may be doubtful, its invalidity is not
mockery of our judgments. For the Court now to validate vs. Commission on Elections (216 SCRA 760, 768 in issue here.
Frivaldo's registration as a voter despite the judgments of [1992]), where this Court held:
disqualification is to modify the said judgments by making their
In this connection, it would seem appropriate to take up the last
effectivity and enforceability dependent on a COMELEC order
Thus, if a person qualified to file a petition issue grappled within the ponencia, viz., is Section 78 of the
cancelling his registration as a voter, or on the physical
to disqualify a certain candidate fails to file Omnibus Election Code mandatory? The answer is provided
destruction of his certificate of registration as a voter which, of
the petition within the 25-day period in Loong.
course, was never our intention. Moreover, to sanction
Section 78 of the Code for whatever
Frivaldo's registration as a voter would be to sacrifice
reasons, the election laws do not leave
substance in favor of form (the piece of paper that is the book We also do not find merit in the contention
him completely helpless as he has another
of voters or list of voters or voter's ID), and abet the of respondent Commission that in the light
chance to raise the disqualification of the
COMELEC's incompetence in failing to cancel Frivaldo's of the provisions of Sections 6 and 7 of
candidate by filing a petition for quo
registration and allowing him to vote. Rep. Act No. 6646, a petition to deny due
warranto within ten (10) days from the
course to or cancel a certificate of
proclamation of the results of the election,
candidacy may be filed even beyond the
The second reason in the ponencia as to why the citizenship as provided under Section 253 of the
25-day period prescribed by Section 78 of
disqualification should be reckoned not from the date of the Code. Section 1, Rule 21 of the Comelec
the Code, as long as it is filed within
election nor the filing of the certificate of candidacy, but from Rules of Procedure similarly provides that
a reasonable time from the discovery of
the date of proclamation, is that the only available remedy to any voter contesting the election of any
the ineligibility.
question the ineligibility (or disloyalty) of a candidate is a regional, provincial or city official on the
petition for quo warranto which, under Section 253 of the ground of ineligibility or of disloyalty to the
Omnibus Election Code, may be filed only within ten days from Republic of the Philippines may file a Sections 6 and 7 of Rep. Act No. 6646 are
proclamation and not earlier. petition for quo warranto with the Electoral here re-quoted:
Contest Adjudication Department. The
petition may be filed within ten (10) days
I beg to differ. Sec. 6. Effect of
from the date the respondent is proclaimed
Disqualification case.
(Section 2).
Any candidate who
Clearly, quo warranto is not the sole remedy available to
has been declared by
question a candidate's ineligibility for public office. Section 78
Likewise, Rule 25 of the Revised COMELEC Rules of final judgment to be
of the Omnibus Election Code allows the filing of a petition to
Procedure allows the filing of a petition for disqualification on disqualified shall not
deny due course to or cancel the certificate of candidacy on the
the ground of failure to possess all the qualifications of a be voted for, and the
ground that any material representation contained therein, as
candidate as provided by the Constitution or by existing laws, votes cast for him
required by Section 74, is false. Section 74, in turn, requires
"any day after the last day for filing of certificates of candidacy shall not be counted. If
that the person filing the certificate of candidacy must
but not later than the date of proclamation." Sections 1 and 3 for any reason a
state, inter alia, that he is eligible for the office, which means
thereof provide: candidate is not
that he has all the qualifications (including, of course, fulfilling
declared by final
the citizenship requirement) and none of the disqualifications
judgment before an
as provided by law. The petition under Section 78 may be Rule 25 -- Disqualification of Candidates
election to be
filed at any time not later than 25 days from the filing of the
disqualified and he is
certificate of candidacy. The section reads in full as follows:
Sec. 1. Grounds for Disqualification. Any voted for and receives
candidate who does not possess all the the winning number of
Sec. 78. Petition to deny due course to or qualifications of a candidate as provided votes in such election,
cancel a certificate of candidacy. -- A for by the Constitution or by existing law or the Court or
verified petition seeking to deny due who commits any act declared by law to be Commission shall
course or to cancel a certificate of grounds for disqualification may be continue with the trial
candidacy may be filed by any person disqualified from continuing as a and hearing of the
exclusively on the ground that any material candidate. action, inquiry or
representation contained therein as protest and, upon
required under Section 74 hereof is false. motion of the
xxx xxx xxx
The petition may be filed at any time not complainant or any
later than twenty-five days from the time of intervenor, may during
the filing of the certificate of candidacy and Sec. 3. Period to File Petition. The petition the pendency thereof
shall be decided, after due notice and shall be filed any day after the last day for order the suspension
hearing, not later than fifteen days before filing of certificates of candidacy but not of the proclamation of
the election. later than the date of proclamation. such candidate
whenever the
evidence of his guilt is
While the validity of this rule insofar as it concerns strong.
petitions for disqualification on the ground of lack of
 Sec. 7. Petition to
Deny Due Course To
or Cancel a Certificate
of Candidacy. The
procedure
hereinabove provided
shall apply to petitions
to deny due course to
or cancel a certificate
of candidacy as
provided in Section 78
of Batas Pambansa
Blg. 881.
It will be noted that nothing in Sections 6 or
7 modifies or alters the 25- day period
prescribed by Section 78 of the Code for
filing the appropriate action to cancel a
certificate of candidacy on account of any
false representation made therein. On the
contrary, said Section 7 affirms and
reiterates Section 78 of the Code.
We note that Section 6 refers only to
the effects of a disqualification case which
may be based on grounds other than that
provided under Section 78 of the Code.
But Section 7 of Rep. Act No. 6646 also
makes the effects referred to in Section 6
applicable to disqualification cases filed
under Section 78 of the Code. Nowhere in
Sections 6 and 7 of Rep. Act No. 6646 is
mention made of the period within which
these disqualification cases may be filed.
This is because there are provisions in the
Code which supply the periods within
which a petition relating to disqualification
of candidates must be filed, such as
Section 78, already discussed, and
Section 253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that
Section 78 is merely directory because Section 6 of R.A. No.
6646 authorizes the COMELEC to try and decide petitions for
disqualification even after elections. I submit that Section 6
refers to disqualifications under Sections 12 and 68 of the
Omnibus Election Code and consequently modifies Section 72
thereof. As such, the proper court or the COMELEC are
granted the authority to continue hearing the case after the
election, and during the pendency of the case, suspend the
proclamation of the victorious candidate, if the evidence
against him is strong. Sections 12, 68, and 72 of the Code
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 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.
xxx xxx xxx
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, sub-paragraph 6, shall be
disqualified from continuing as a
candidate, or if he has been elected, from
holding the office. Any person who is a
permanent resident of or an immigrant to a
foreign country shall not be qualified to run
for any elective office under this Code,
unless said person has waived his status
as permanent resident or immigrant of a
foreign country in accordance with the
residence requirement provided for in the
election laws. (Sec. 25, 1971 EC)
Sec. 72. Effects of disqualification cases
and priority. The Commission and the
courts shall give priority to cases of
disqualification by reason of violation of
this Act to the end that a final decision
shall be rendered not later than seven
days before the election in which the
disqualification is sought.
Any candidate who has been declared by
final judgment to be disqualified shall not
be voted for, and the votes cast for him
shall not be counted. Nevertheless, if for
any reason, a candidate is not declared by
final judgment before an election to be
disqualified and he is voted for and
receives the winning number of votes in
such election, his violation of the
provisions of the preceding sections shall
not prevent his proclamation and
assumption to office.
III
Still assuming that the repatriation is valid, I am not persuaded
by the arguments in support of the thesis that Frivaldo's
repatriation may be given retroactive effect, as such goes
against the spirit and letter of P.D. No. 725. The spirit adheres
to the principle that acquisition or re-acquisition of Philippine
citizenship is not a right, but a mere privilege. Before the
advent of P.D. No. 725, only the following could apply for
repatriation: (a) Army, Navy, or Air Corps deserters; and (b) a
woman who lost her citizenship by reason of her marriage to an
alien after the death of her spouse (Section 2[2], C.A. No. 63).
P.D. NO. 725 expanded this to include Filipino women who lost
their Philippine citizenship by marriage to aliens even before
the death of their alien husbands, or the termination of their
marital status and to natural-born Filipino citizens who lost their
Philippine citizenship but subsequently desired to reacquire the
latter.
Turning now to the letter of the law, P.D. No. 725 expressly
provides that repatriation takes effect only after taking the oath
of allegiance to the Republic of the Philippines, thus:
. . . may reacquire Philippine
citizenship . . . by applying with the Special
Committee on Naturalization created by
Letter of Instruction No. 270, and, if their
applications are approved, taking the
necessary oath of allegiance to the
Republic of the Philippines, AFTER
WHICH THEY SHALL BE DEEMED TO
HAVE REACQUIRED PHILIPPINE
CITIZENSHIP. (emphasis and
capitalization supplied)
Clearly then, the steps to reacquire Philippine
citizenship by repatriation under the decree are: (1)
filing the application; (2) action by the committee;
 and (3) taking of the oath of allegiance if the
application is approved. It is only UPON TAKING
THE OATH OF ALLEGIANCE that the applicant is
deemed ipso jure to have reacquired Philippine
citizenship. If the decree had intended the oath
taking to retroact to the date of the filing of the
application, then it should not have explicitly provided
otherwise.
This theory in the ponencia likewise dilutes this Court's
pronouncement in the first Frivaldo case that what reacquisition
of Filipino citizenship requires is an act "formally rejecting [the]
adopted state and reaffirming . . . allegiance to the Philippines."
That act meant nothing less than taking of the oath of
allegiance to the Republic of the Philippines. If we now take
this revision of doctrine to its logical end, then it would also
mean that if Frivaldo had chosen and reacquired Philippine
citizenship by naturalization or through Congressional action,
such would retroact to the filing of the petition for naturalization
or the bill granting him Philippine citizenship. This is a
proposition which both the first and second Frivaldo cases
soundly rejected.
The other reason adduced in the ponencia in support of the
proposition that P.D. No. 725 can be given retroactive effect is
its alleged curative or remedial nature.
Again, I disagree. In the first place, by no stretch of legal
hermeneutics may P.D. No. 725 be characterized as a curative
or remedial statute:
Curative or remedial statutes are healing
acts. They are remedial by curing defects
and adding to the means of enforcing
existing obligations. The rule in regard to
curative statutes is that if the thing omitted
or failed to be done, and which constitutes
the defect sought to be removed or made
harmless, is something the legislature
might have dispensed with by a previous
statute, it may do so by a subsequent one.
Curative statutes are intended to supply
defects, abridge superfluities in existing
laws, and curb certain evils. They are
intended to enable a person to carry into
effect that which they have designed and
intended, but has failed of expected legal
consequence by reason of some statutory
disability or irregularity in their own action.
They make valid that which, before the
enactment of the statute, was invalid.
(RUBEN E. AGPALO, Statutory
Construction, Second ed. [1990], 270-271,
citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine United States of America, Third ed., [1948] 341-342). It follows
citizenship lost through the marriage of a Filipina to an alien then that on election day and until the hour of the
and through naturalization in a foreign country of natural-born commencement of the term for which he was elected - noon of
Filipino citizens. It involves then the substantive, nay 30 June 1995 as per Section 43 of the Local Government Code
primordial, right of citizenship. To those for whom it is intended, - Frivaldo possessed dual citizenship, viz., (a) as an American
it means, in reality, the acquisition of "a new right," as citizen; and (b) as a Filipino citizen through the adoption of the
the ponencia cannot but concede. Therefore, it may not be theory that the effects of his taking the oath of allegiance were
said to merely remedy or cure a defect considering that one retrospective. Hence, he was disqualified to run for Governor
who has lost Philippine citizenship does not have the right to for yet another reason: possession of dual citizenship, in
reacquire it. As earlier stated, the Constitution provides that accordance with Section 40 (d) of the Local Government Code.
citizenship, once lost, may only be reacquired in the manner
provided by law. Moreover, it has also been observed that:
V
The idea is implicit from many of the cases
The assertion in the ponencia that Frivaldo may be considered
that remedial statutes are statutes relating
STATELESS on the basis of his claim that he "had long
to procedure and not substantive rights.
renounced and had long abandoned his American citizenship -
(Sutherland, Statutory Construction, Vol. 3,
long before May 8, 1985" - is untenable, for the following
Third ed. [1943], §5704 at 74, citations
reasons: first, it is based on Frivaldo's unproven, self-serving
omitted).
allegation; second, informal renunciation or abandonment is
not a ground to lose American citizenship; and third, simply put,
If we grant for the sake of argument, however, that P.D. No. never did the status of a STATELESS person attach to
725 is curative or remedial statute, it would be an inexcusable Frivaldo.
error to give it a retroactive effect since it explicitly provides the
date of its effectivity. Thus:
Statelessness may be either de jure, which is the status of
individuals stripped of their nationality by their former
This Decree shall take effect immediately. government without having an opportunity to acquire another;
or de facto, which is the status of individuals possessed of a
nationality whose country does not give them protection
Done in the city of Manila, this 5th day of
outside their own country, and who are commonly, albeit
June, in the year of Our Lord, nineteen
imprecisely, referred to as refugees (JORGE R. COQUIA, et
hundred and seventy five.
al., Conflict of Laws Cases, Materials and Comments, 1995
ed., 290).
Nevertheless, if the retroactivity is to relate only to the
reacquisition of Philippine citizenship, then nothing therein
Specifically, under Chapter 1, Article 1 of the United Nations
supports such theory, for as the decree itself unequivocally
Convention Regarding the Status of Stateless Persons
provides, it is only after taking the oath of allegiance to the
(Philippine Treaty Series, Compiled and Annotated by Haydee
Republic of the Philippines that the applicant is DEEMED TO
B. Yorac, vol. III, 363), a stateless person is defined as "a
HAVE REACQUIRED PHILIPPINE CITIZENSHIP.
person who is not considered as a national by any State under
the operation of its law." However, it has not been shown that
IV the United States of America ever ceased to consider Frivaldo
its national at any time before he took his oath of allegiance to
the Republic of the Philippines on 30 June 1995.
Assuming yet again, for the sake of argument, that taking the
oath of allegiance retroacted to the date of Frivaldo's
application for repatriation, the same could not be said insofar VI
as it concerned the United States of America, of which he was
a citizen. For under the laws of the United States of America,
Finally, I find it in order to also express my view on the
Frivaldo remained an American national until he renounced his
concurring opinion of Mr. Justice Reynato S. Puno. I am
citizenship and allegiance thereto at 2:00 p.m. on 30 June
absolutely happy to join him in his statement that "[t]he
1995, when he took his oath of allegiance to the Republic of
sovereignty of our people is the primary postulate of the 1987
the Philippines. Section 401 of the Nationality Act of 1940 of
Constitution" and that the said Constitution is "more people-
the United States of America provides that a person who is a
oriented," "borne [as it is] out of the 1986 people power EDSA
national of the United States of America, whether by birth or
revolution." I would even go further by saying that this
naturalization, loses his nationality by, inter alia, "(b) Taking an
Constitution is pro-God (Preamble), pro-people (Article II,
oath or making an affirmation or other formal declaration of
Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section 1, Article XII,
allegiance to a foreign state" (SIDNEY KANSAS, U.S.
Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article
Immigration Exclusion and Deportation and Citizenship of the
XVI, Sections 5(2), 6), pro-Filipino (Article XII, Sections 1, 2,
10, 11, 12, 14; Article XIV, Sections 1, 4(2), 13; Article XVI,
Section 11), pro-poor (Article II, Sections 9, 10, 18, 21; Article
XII, Sections 1, 2(3); Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10,
11, 13), pro-life (Article II, Section 12), and pro-family (Article
II, Section 12; Article XV).
Nevertheless, I cannot be with him in carrying out the principle
of sovereignty beyond what I perceive to be the reasonable
constitutional parameters. The doctrine of people's sovereignty
is founded on the principles of democracy and republicanism
and refers exclusively to the sovereignty of the people of the
Philippines. Section 1 of Article II is quite clear on this, thus:
Sec. 1. The Philippines is a democratic
and republican State. Sovereignty resides
in the people and all government authority
emanates from them.
And the Preamble makes it clear when it solemnly
opens it with a clause "We, the sovereign Filipino
people . . ." Thus, this sovereignty is an attribute of
the Filipino people as one people, one body.
That sovereign power of the Filipino people cannot be
fragmentized by looking at it as the supreme authority of the
people of any of the political subdivisions to determine their
own destiny; neither can we convert and treat every fragment
as the whole. In such a case, this Court would provide the
formula for the division and destruction of the State and render
the Government ineffective and inutile. To illustrate the evil, we
may consider the enforcement of laws or the pursuit of a
national policy by the executive branch of the government, or
the execution of a judgment by the courts. If these are opposed
by the overwhelming majority of the people of a certain
province, or even a municipality, it would necessarily follow that
the law, national policy, or judgment must not be enforced,
implemented, or executed in the said province or municipality.
More concretely, if, for instance, the vast majority of the people
of Batanes rise publicly and take up arms against the
Government for the purpose of removing from the allegiance to
the said Government or its laws, the territory of the Republic of
the Philippines or any part thereof, or any body of land, naval,
or other armed forces, or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or
prerogatives, then those who did so -- and which are
composed of the vast majority of the people of Batanes -- a
political subdivision -- cannot be prosecuted for or be held
guilty of rebellion in violation of Article 134 of the Revised
Penal Code because of the doctrine of peoples' sovereignty.
Indeed, the expansion of the doctrine of sovereignty by
investing upon the people of a mere political subdivision that
which the Constitution places in the entire Filipino people, may
be disastrous to the Nation.
So it is in this case if we follow the thesis in the concurring
opinion. Thus, simply because Frivaldo had obtained a margin
of 20,000 votes over his closest rival, Lee, i.e., a vast majority
of the voters of Sorsogon had expressed their sovereign will for
the former, then this Court must yield to that will and must,
therefore, allow to be set aside, for Frivaldo, not just the laws
on qualifications of candidates and elective officials and
naturalization and reacquisition of Philippine citizenship, but
even the final and binding decisions of this Court affecting him.
This Court must be the first to uphold the Rule of Law. I vote
then to DISMISS G.R. No. 120295 and GRANT G.R. No.
123755.
Separate Opinions
PUNO, J., concurring:
I concur with the path-breaking ponencia of Mr. Justice
Panganiban which is pro-people and pierces the myopia of
legalism. Upholding the sovereign will of the people which is
the be-all and the end-all of republicanism, it rests on a
foundation that will endure time and its tempest.
The sovereignty of our people is the primary postulate of the
1987 Constitution. For this reason, it appears as the first in our
declaration of principles and state policies. Thus, section 1 of
Article II of our fundamental law proclaims that "[t]he
Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates
from them." The same principle served as the bedrock of our
1973 and 1935 Constitutions.1 It is one of the few principles
whose truth has been cherished by the Americans as self-
evident. Section 4, Article IV of the U.S. Constitution makes it a
duty of the Federal government to guarantee to every state a
"republican form of government." With understandable fervor,
the American authorities imposed republicanism as the
cornerstone of our 1935 Constitution then being crafted by its
Filipino framers.2
Borne out of the 1986 people power EDSA revolution, our 1987
Constitution is more people-oriented. Thus, section 4 of Article
II provides as a state policy that the prime duty of the
Government is "to serve and protect the people." Section 1,
Article XI also provides that ". . . public officers . . . must at all
times be accountable to the people . . ." Sections 15 and 1 of
Article XIII define the role and rights of people's organizations.
Section 5(2) of Article XVI mandates that "[t]he state shall
strengthen the patriotic spirit and nationalist consciousness of
the military, and respect for people's rights in the performance
of their duty." And section 2 of Article XVII provides that
"amendments to
this Constitution may likewise be directly proposed by the
people through initiative . . ." All these provisions and more are
intended to breathe more life to the sovereignty of our people.
To be sure, the sovereignty of our people is not a kabalistic
principle whose dimensions are buried in mysticism. Its metes
and bounds are familiar to the framers of our Constitutions.
They knew that in its broadest sense, sovereignty is meant to
be supreme, the jus summi imperu, the absolute right to
govern.3 Former Dean Vicente Sinco4 states that an essential
quality of sovereignty is legal omnipotence, viz.: "Legal theory
establishes certain essential qualities inherent in the nature of
sovereignty. The first is legal omnipotence. This means that the
sovereign is legally omnipotent and absolute in relation to other
legal institutions. It has the power to determine exclusively its
legal competence. Its powers are original, not derivative. It is
the sole judge of what it should do at any given time."5 Citing
Barker,6 he adds that a more amplified definition of sovereignty
is that of "a final power of final legal adjustment of all legal
issues." The U.S. Supreme Court expressed the same thought
in the landmark case of Yick Wo v. Hopkins,7 where it held that
". . . sovereignty itself is, of course, not subject to law, for it is
the author and source of law; but in our system, while
sovereign powers are delegated to the agencies of
government, sovereignty itself remains with the people, by
whom and for whom all government exists and acts."
In our Constitution, the people established a representative
democracy as distinguished from a pure democracy. Justice
Isagani Cruz explains:8
xxx xxx xxx
A republic is a representative government,
a government run by and for the people. It
is not a pure democracy where the people
govern themselves directly. The essence
of republicanism is representation and
renovation, the selection by the citizenry of
a corps of public functionaries who derive
their mandate from the people and act on
their behalf, serving for a limited period
only, after which they are replaced or
retained, at the option of their
principal. Obviously, a republican
government is a responsible government
whose officials hold and discharge their
position as a public trust and shall,
according to the Constitution, "at all times
be accountable to the people" they are
sworn to serve. The purpose of a
republican government it is almost
needless to state, is the promotion of the
common welfare according to the will of
the people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I agree
that sovereignty is indivisible but it need not always
be exercised by the people together, all the time.9 For this
reason, the Constitution and our laws provide when the entire
electorate or only some of them can elect those who make our
laws and those who execute our laws. Thus, the entire
electorate votes for our senators but only our district
electorates vote for our congressmen, only our provincial
electorates vote for the members of our provincial boards, only
our city electorates vote for our city councilors, and only our
municipal electorates vote for our councilors. Also, the entire
electorate votes for our President and Vice-President but only
our provincial electorates vote for our governors, only our city
electorates vote for our mayors, and only our municipal
electorates vote for our mayors. By defining and delimiting the
classes of voters who can exercise the sovereignty of the
people in a given election, it cannot be claimed that said
sovereignty has been fragmented.
It is my respectful submission that the issue in the case at bar
is not whether the people of Sorsogon should be given the right
to defy the law by allowing Frivaldo to sit as their governor.
Rather, the issue is: whether the will of the voters of Sorsogon
clearly choosing Frivaldo as governor ought to be given
a decisive value considering the uncertainty of the law on when
a candidate ought to satisfy the qualification of citizenship. The
uncertainty of law and jurisprudence, both here and abroad, on
this legal issue cannot be denied. In the United States, 10 there
are two (2) principal schools of thought on the matter. One
espouses the view that a candidate must possess the
qualifications for office at the time of his election. The other
ventures the view that the candidate should satisfy the
qualifications at the time he assumes the powers of the office. I
am unaware of any Philippine decision that has squarely
resolved this difficult question of law. The ponencia of Mr.
Justice Panganiban adhered to the second school of thought
while Mr. Justice Davide dissents.
I emphasize the honest-to-goodness difference in interpreting
our law on the matter for this is vital to dispel the fear of Mr.
Justice Davide that my opinion can bring about ill effects to the
State. Mr. Justice Davide's fear is based on
the assumption that Frivaldo continues to be disqualified and
we cannot allow him to sit as governor without transgressing
the law. I do not concede this assumption for as stressed
above, courts have been sharply divided by this mind boggling
issue. Given this schism, I do not see how we can derogate on
the sovereignty of the people by according more weight to the
votes of the people of Sorsogon.
Mr. Justice Davide warns that should the people of Batanes
stage a rebellion, we cannot prosecute them "because of the
doctrine of people's sovereignty." With due respect, the
analogy is not appropriate. In his hypothetical case, rebellion
is concededly a crime, a violation of Article 134 of the Revised
Penal Code, an offense against the sovereignty of our
people. In the case at bar, it cannot be held with certitude that
the people of Sorsogon violated the law by voting for Frivaldo
as governor. Frivaldo's name was in the list of candidates
allowed by COMELEC to run for governor. At that time too,
Frivaldo was taking all steps to establish his Filipino citizenship.
And even our jurisprudence has not settled the issue when a
candidate should possess the qualification of citizenship. Since
the meaning of the law is arguable then and now, I cannot
imagine how it will be disastrous for the State if we tilt the
balance in the case at bar in favor of the people of Sorsogon.
In sum, I respectfully submit that the sovereign will of our
people should be resolutory of the case at bar which is one of
its kind, unprecedented in our political history. For three (3)
times, Frivaldo ran as governor of the province of Sorsogon.
For two (2) times, he was disqualified on the ground of
citizenship. The people of Sorsogon voted for him as their
governor despite his disqualification. The people never waffled
in their support for Frivaldo. In 1988, they gave him a winning
margin of 27,000; in 1992, they gave him a winning spread of
57,000; in 1995, he posted a margin of 20,000. Clearly then,
Frivaldo is the overwhelming choice of the people of Sorsogon.
In election cases, we should strive to align the will of the
legislature as expressed in its law with the will of the sovereign
people as expressed in their ballots. For law to reign, it must
respect the will of the people. For in the eloquent prose of Mr.
Justice Laurel, ". . . an enfranchised citizen is a particle of
popular sovereignty and is the ultimate source of established
authority."11 The choice of the governed on who shall be their
governor merits the highest consideration by all agencies of
government. In cases where the sovereignty of the people is at
stake, we must not only be legally right but also politically
correct. We cannot fail by making the people succeed.
DAVIDE, JR., J., dissenting:
After deliberating on the re-formulated issues and the
conclusions reached by my distinguished colleague, Mr.
Justice Artemio V. Panganiban, I find myself unable to join him.
I Naturalization by LOI No. 270 and the conferment of the power
I agree with petitioner Lee that Frivaldo's repatriation was void,
but not on the ground that President Corazon C. Aquino's 27
March 1987 memorandum "effectively repealed" P.D. No. 725.
In my view, the said memorandum only suspended the
implementation of the latter decree by divesting the Special
Committee on Naturalization of its authority to further act on
grants of citizenship under LOI No. 270, as amended, P.D. No.
836, as amended; P.D. No. 1379; and "any other related laws,
orders, issuances and rules and regulations." A reading of the
last paragraph of the memorandum can lead to no other
conclusion, thus:
In view of the foregoing, you as Chairman
and members of the Special Committee on
Naturalization, are hereby directed to
cease and desist from undertaking any
and all proceedings within your functional
area of responsibility, as defined in Letter
of Instruction No. 270 dated April 11, 1975,
as amended, Presidential Decree No. 836
dated December 3, 1975, as amended,
and Presidential Decree No. 1379 dated
May 17, 1978, relative to the grant of
citizenship under the said laws, and any
other related laws, orders, issuances and
rules and regulations. (emphasis supplied)
It is self-evident that the underscored clause can only refer to
those related to LOI No. 270, P.D. No. 836, and P.D. No. 1379.
There is no doubt in my mind that P.D. No. 725 is one such
"related law" as it involves the reacquisition of Philippine
citizenship by repatriation and designates the Special
Committee on Naturalization created under LOI No. 270 to
receive and act on (i.e., approve or disapprove) applications
under the said decree. The power of President Aquino to
suspend these issuances by virtue of the 27 March 1987
memorandum is beyond question considering that under
Section 6, Article XVIII of the 1987 Constitution, she exercised
legislative power until the Congress established therein
convened on the fourth Monday of July 1987.
I disagree with the view expressed in the ponencia that the
memorandum of 27 March 1987 was merely a declaration of
"executive policy," and not an exercise of legislative power. LOI
No. 270, P.D. No. 836, P.D. No. 1379 and "any other related
laws," such as P.D. No. 725, were issued by President
Ferdinand E. Marcos in the exercise of his legislative powers --
not executive power. These laws relate to the acquisition (by
naturalization) and reacquisition (by repatriation) of Philippine
citizenship, and in light of Sections 1(4) and 3, Article IV of the
1987 Constitution (naturalization and reacquisition of Philippine
citizenship shall be in accordance with law), it is indubitable
that these subjects are a matter of legislative prerogative. In
the same vein, the creation of the Special Committee on
to accept and act on applications under P.D. No. 725 are
clearly legislative acts.
Accordingly, the revocation of the cease and desist order and
the reactivation or revival of the Committee can be done only
by legislative fiat, i.e., by Congress, since the President had
long lost his authority to exercise "legislative power."
Considering that Congress has not seen it fit to do so, the
President cannot, in the exercise of executive power, lift the
cease and desist order nor reactivate/reconstitute/revive the
Committee. A multo fortiori, the Committee cannot validly
accept Frivaldo's application for repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is valid, it
did not "cure his lack of citizenship." I depart from the view in
the ponencia that Section 39 of the Local Government Code of
1991 does not specify the time when the citizenship
requirement must be met, and that being the case, then it
suffices that citizenship be possessed upon commencement of
the term of the office involved; therefore, since Frivaldo "re-
assumed" his Philippine citizenship at 2:00 p.m. on 30 June
1995 and the term of office of Governor commenced at 12:00
noon of that day, he had, therefore, complied with the
citizenship requirement.
In the first place, Section 39 actually prescribes the
qualifications of elective local officials and not those of
an elected local official. These adjectives are not synonymous,
as the ponencia seems to suggest. The first refers to the
nature of the office, which requires the process of voting by the
electorate involved; while the second refers to a victorious
candidate for an elective office. The section unquestionably
refers to elective -- not elected -- local officials. It falls under
Title Two entitled ELECTIVE OFFICIALS; under Chapter 1
entitled Qualifications and Election; and paragraph (a) thereof
begins with the phrase "An elective local official," while
paragraphs (b) to (f) thereof speak of candidates. It reads as
follows:
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, or 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.
(b) Candidates for the position of governor,
vice governor or member of the
sangguniang panlalawigan, or mayor, vice
mayor or member of the sangguniang
panlungsod of highly urbanized cities must
be at least twenty-three (23) years of age
on election day.
(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.
(d) Candidates for the position of member
of the sangguniang panlungsod or
sangguniang bayan must be at least
eighteen (18) years of age on election day.
(e) Candidates for the position of punong
barangay or member of the sangguniang
barangay must be at least eighteen (18)
years of age on election day.
(f) Candidates for the sangguniang
kabataan must be at least fifteen (15)
years of age but not more than twenty-one
(21) years of age on election day
(emphasis supplied)
It is thus obvious that Section 39 refers to no other
than the qualifications of candidates for elective local
offices and their election. Hence, in no way may the
section be construed to mean that possession of
qualifications should be reckoned from the
commencement of the term of office of the elected
candidate.
For another, it is not at all true that Section 39 does not specify
the time when the citizenship requirement must be possessed.
I submit that the requirement must be satisfied, or that
Philippine citizenship must be possessed, not merely at the
commencement of the term, but at an earlier time, the latest
being election day itself. Section 39 is not at all ambiguous nor
uncertain that it meant this to be, as one basic qualification of
an elective local official is that he be "A REGISTERED VOTER
IN THE BARANGAY, MUNICIPALITY, CITY OR PROVINCE . .
. WHERE HE INTENDS TO VOTE." This simply means that he
possesses all the qualifications to exercise the right of suffrage.
The fundamental qualification for the exercise of this sovereign
right is the possession of Philippine citizenship. No less than
the Constitution makes it the first qualification, as Section 1,
Article V thereof provides:
Sec. 1. Suffrage may be exercised by all
citizens of the Philippines not otherwise
disqualified by law, who are at least
eighteen years of age, and who shall have
resided in the Philippines for at least one
year and in the place wherein they
propose to vote for at least six months
immediately preceding the election. . . .
(emphasis supplied)
And Section 117 of the Omnibus Election Code of
the Philippines (B.P. Blg. 881) expressly provides for
the qualifications of a voter. Thus:
Sec. 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 a
registered voter. (emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's election
as Governor in the 1988 and 1992 elections on the ground that
for lack of Philippine citizenship -- he being a naturalized citizen
of the United States of America -- he was DISQUALIFIED to be
elected as such and to serve the position (Frivaldo vs.
Commission on Elections, 174 SCRA 245 [1989]; Republic of
the Philippines vs. De la Rosa, 232 SCRA 785 [1994]). This
disqualification inexorably nullified Frivaldo's registration as a
voter and declared it void ab initio. Our judgments therein were
self-executory and no further act, e.g., a COMELEC order to
cancel his registration as a voter or the physical destruction of
his voter's certificate, was necessary for the ineffectivity. Thus,
he was never considered a registered voter for the elections of
May 1992, and May 1995, as there is no showing that Frivaldo
registered anew as a voter for the latter elections. Even if he
did -- in obvious defiance of his decreed disqualification -- this
did not make him a Filipino citizen, hence it was equally
void ab initio. That he filed his certificate of candidacy for the
1995 elections and was even allowed to vote therein were of
no moment. Neither act made him a Filipino citizen nor nullified
the judgments of this Court. On the contrary, said acts made a
mockery of our judgments. For the Court now to validate
Frivaldo's registration as a voter despite the judgments of
disqualification is to modify the said judgments by making their
effectivity and enforceability dependent on a COMELEC order
cancelling his registration as a voter, or on the physical
destruction of his certificate of registration as a voter which, of
course, was never our intention. Moreover, to sanction
Frivaldo's registration as a voter would be to sacrifice
substance in favor of form (the piece of paper that is the book
of voters or list of voters or voter's ID), and abet the
COMELEC's incompetence in failing to cancel Frivaldo's
registration and allowing him to vote.
The second reason in the ponencia as to why the citizenship
disqualification should be reckoned not from the date of the
election nor the filing of the certificate of candidacy, but from
the date of proclamation, is that the only available remedy to
question the ineligibility (or disloyalty) of a candidate is a
petition for quo warranto which, under Section 253 of the
Omnibus Election Code, may be filed only within ten days from
proclamation and not earlier.
I beg to differ.
Clearly, quo warranto is not the sole remedy available to
question a candidate's ineligibility for public office. Section 78
of the Omnibus Election Code allows the filing of a petition to
deny due course to or cancel the certificate of candidacy on the
ground that any material representation contained therein, as "any day after the last day for filing of certificates of candidacy shall not be counted. If
required by Section 74, is false. Section 74, in turn, requires but not later than the date of proclamation." Sections 1 and 3 for any reason a
that the person filing the certificate of candidacy must thereof provide: candidate is not
state, inter alia, that he is eligible for the office, which means declared by final
that he has all the qualifications (including, of course, fulfilling judgment before an
Rule 25 -- Disqualification of Candidates
the citizenship requirement) and none of the disqualifications election to be
as provided by law. The petition under Section 78 may be disqualified and he is
filed at any time not later than 25 days from the filing of the Sec. 1. Grounds for Disqualification. Any voted for and receives
certificate of candidacy. The section reads in full as follows: candidate who does not possess all the the winning number of
qualifications of a candidate as provided votes in such election,
for by the Constitution or by existing law or the Court or
Sec. 78. Petition to deny due course to or
who commits any act declared by law to be Commission shall
cancel a certificate of candidacy. -- A
grounds for disqualification may be continue with the trial
verified petition seeking to deny due
disqualified from continuing as a and hearing of the
course or to cancel a certificate of
candidate. action, inquiry or
candidacy may be filed by any person
protest and, upon
exclusively on the ground that any material
motion of the
representation contained therein as xxx xxx xxx complainant or any
required under Section 74 hereof is false.
intervenor, may during
The petition may be filed at any time not
Sec. 3. Period to File Petition. The petition the pendency thereof
later than twenty-five days from the time of
shall be filed any day after the last day for order the suspension
the filing of the certificate of candidacy and
filing of certificates of candidacy but not of the proclamation of
shall be decided, after due notice and
later than the date of proclamation. such candidate
hearing, not later than fifteen days before
whenever the
the election.
evidence of his guilt is
While the validity of this rule insofar as it concerns strong.
petitions for disqualification on the ground of lack of
This remedy was recognized in Loong
all qualifications may be doubtful, its invalidity is not
vs. Commission on Elections (216 SCRA 760, 768
in issue here. Sec. 7. Petition to
[1992]), where this Court held:
Deny Due Course To
or Cancel a Certificate
In this connection, it would seem appropriate to take up the last of Candidacy. The
Thus, if a person qualified to file a petition
issue grappled within the ponencia, viz., is Section 78 of the procedure
to disqualify a certain candidate fails to file
Omnibus Election Code mandatory? The answer is provided hereinabove provided
the petition within the 25-day period
in Loong. shall apply to petitions
Section 78 of the Code for whatever
reasons, the election laws do not leave to deny due course to
him completely helpless as he has another We also do not find merit in the contention or cancel a certificate
chance to raise the disqualification of the of respondent Commission that in the light of candidacy as
candidate by filing a petition for quo of the provisions of Sections 6 and 7 of provided in Section 78
warranto within ten (10) days from the Rep. Act No. 6646, a petition to deny due of Batas Pambansa
proclamation of the results of the election, course to or cancel a certificate of Blg. 881.
as provided under Section 253 of the candidacy may be filed even beyond the
Code. Section 1, Rule 21 of the Comelec 25-day period prescribed by Section 78 of It will be noted that nothing in Sections 6 or
Rules of Procedure similarly provides that the Code, as long as it is filed within 7 modifies or alters the 25- day period
any voter contesting the election of any a reasonable time from the discovery of prescribed by Section 78 of the Code for
regional, provincial or city official on the the ineligibility. filing the appropriate action to cancel a
ground of ineligibility or of disloyalty to the
certificate of candidacy on account of any
Republic of the Philippines may file a
Sections 6 and 7 of Rep. Act No. 6646 are false representation made therein. On the
petition for quo warranto with the Electoral
here re-quoted: contrary, said Section 7 affirms and
Contest Adjudication Department. The
reiterates Section 78 of the Code.
petition may be filed within ten (10) days
from the date the respondent is proclaimed Sec. 6. Effect of
(Section 2). Disqualification case. We note that Section 6 refers only to
Any candidate who the effects of a disqualification case which
has been declared by may be based on grounds other than that
Likewise, Rule 25 of the Revised COMELEC Rules of
final judgment to be provided under Section 78 of the Code.
Procedure allows the filing of a petition for disqualification on
disqualified shall not But Section 7 of Rep. Act No. 6646 also
the ground of failure to possess all the qualifications of a
be voted for, and the makes the effects referred to in Section 6
candidate as provided by the Constitution or by existing laws,
votes cast for him applicable to disqualification cases filed
 under Section 78 of the Code. Nowhere in
Sections 6 and 7 of Rep. Act No. 6646 is
mention made of the period within which
these disqualification cases may be filed.
This is because there are provisions in the
Code which supply the periods within
which a petition relating to disqualification
of candidates must be filed, such as
Section 78, already discussed, and
Section 253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that
Section 78 is merely directory because Section 6 of R.A. No.
6646 authorizes the COMELEC to try and decide petitions for
disqualification even after elections. I submit that Section 6
refers to disqualifications under Sections 12 and 68 of the
Omnibus Election Code and consequently modifies Section 72
thereof. As such, the proper court or the COMELEC are
granted the authority to continue hearing the case after the
election, and during the pendency of the case, suspend the
proclamation of the victorious candidate, if the evidence
against him is strong. Sections 12, 68, and 72 of the Code
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 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.
xxx xxx xxx
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, sub-paragraph 6, shall be
disqualified from continuing as a
candidate, or if he has been elected, from
holding the office. Any person who is a
permanent resident of or an immigrant to a
foreign country shall not be qualified to run
for any elective office under this Code,
unless said person has waived his status
as permanent resident or immigrant of a
foreign country in accordance with the
residence requirement provided for in the
election laws. (Sec. 25, 1971 EC)
Sec. 72. Effects of disqualification cases
and priority. The Commission and the
courts shall give priority to cases of
disqualification by reason of violation of
this Act to the end that a final decision
shall be rendered not later than seven
days before the election in which the
disqualification is sought.
Any candidate who has been declared by
final judgment to be disqualified shall not
be voted for, and the votes cast for him
shall not be counted. Nevertheless, if for
any reason, a candidate is not declared by
final judgment before an election to be
disqualified and he is voted for and
receives the winning number of votes in
such election, his violation of the
provisions of the preceding sections shall
not prevent his proclamation and
assumption to office.
III
Still assuming that the repatriation is valid, I am not persuaded
by the arguments in support of the thesis that Frivaldo's
repatriation may be given retroactive effect, as such goes
against the spirit and letter of P.D. No. 725. The spirit adheres
to the principle that acquisition or re-acquisition of Philippine
citizenship is not a right, but a mere privilege. Before the
advent of P.D. No. 725, only the following could apply for
repatriation: (a) Army, Navy, or Air Corps deserters; and (b) a
woman who lost her citizenship by reason of her marriage to an
alien after the death of her spouse (Section 2[2], C.A. No. 63).
P.D. NO. 725 expanded this to include Filipino women who lost
their Philippine citizenship by marriage to aliens even before
the death of their alien husbands, or the termination of their
marital status and to natural-born Filipino citizens who lost their
Philippine citizenship but subsequently desired to reacquire the
latter.
Turning now to the letter of the law, P.D. No. 725 expressly
provides that repatriation takes effect only after taking the oath
of allegiance to the Republic of the Philippines, thus:
. . . may reacquire Philippine
citizenship . . . by applying with the Special
Committee on Naturalization created by
Letter of Instruction No. 270, and, if their
applications are approved, taking the
necessary oath of allegiance to the
Republic of the Philippines, AFTER
WHICH THEY SHALL BE DEEMED TO
HAVE REACQUIRED PHILIPPINE
CITIZENSHIP. (emphasis and
capitalization supplied)
Clearly then, the steps to reacquire Philippine
citizenship by repatriation under the decree are: (1)
filing the application; (2) action by the committee;
and (3) taking of the oath of allegiance if the
application is approved. It is only UPON TAKING
THE OATH OF ALLEGIANCE that the applicant is
deemed ipso jure to have reacquired Philippine
citizenship. If the decree had intended the oath
taking to retroact to the date of the filing of the
application, then it should not have explicitly provided
otherwise.
This theory in the ponencia likewise dilutes this Court's
pronouncement in the first Frivaldo case that what reacquisition
of Filipino citizenship requires is an act "formally rejecting [the]
adopted state and reaffirming . . . allegiance to the Philippines."
That act meant nothing less than taking of the oath of
allegiance to the Republic of the Philippines. If we now take
this revision of doctrine to its logical end, then it would also
mean that if Frivaldo had chosen and reacquired Philippine
citizenship by naturalization or through Congressional action,
such would retroact to the filing of the petition for naturalization
or the bill granting him Philippine citizenship. This is a
proposition which both the first and second Frivaldo cases
soundly rejected.
The other reason adduced in the ponencia in support of the
proposition that P.D. No. 725 can be given retroactive effect is
its alleged curative or remedial nature.
Again, I disagree. In the first place, by no stretch of legal
hermeneutics may P.D. No. 725 be characterized as a curative
or remedial statute:
 Curative or remedial statutes are healing
acts. They are remedial by curing defects
and adding to the means of enforcing
existing obligations. The rule in regard to
curative statutes is that if the thing omitted
or failed to be done, and which constitutes
the defect sought to be removed or made
harmless, is something the legislature
might have dispensed with by a previous
statute, it may do so by a subsequent one.
Curative statutes are intended to supply
defects, abridge superfluities in existing
laws, and curb certain evils. They are
intended to enable a person to carry into
effect that which they have designed and
intended, but has failed of expected legal
consequence by reason of some statutory
disability or irregularity in their own action.
They make valid that which, before the
enactment of the statute, was invalid.
(RUBEN E. AGPALO, Statutory
Construction, Second ed. [1990], 270-271,
citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine
citizenship lost through the marriage of a Filipina to an alien
and through naturalization in a foreign country of natural-born
Filipino citizens. It involves then the substantive, nay
primordial, right of citizenship. To those for whom it is intended,
it means, in reality, the acquisition of "a new right," as
the ponencia cannot but concede. Therefore, it may not be
said to merely remedy or cure a defect considering that one
who has lost Philippine citizenship does not have the right to
reacquire it. As earlier stated, the Constitution provides that
citizenship, once lost, may only be reacquired in the manner
provided by law. Moreover, it has also been observed that:
The idea is implicit from many of the cases
that remedial statutes are statutes relating
to procedure and not substantive rights.
(Sutherland, Statutory Construction, Vol. 3,
Third ed. [1943], §5704 at 74, citations
omitted).
If we grant for the sake of argument, however, that P.D. No.
725 is curative or remedial statute, it would be an inexcusable
error to give it a retroactive effect since it explicitly provides the
date of its effectivity. Thus:
This Decree shall take effect immediately.
Done in the city of Manila, this 5th day of
June, in the year of Our Lord, nineteen
hundred and seventy five.
Nevertheless, if the retroactivity is to relate only to the
reacquisition of Philippine citizenship, then nothing therein
supports such theory, for as the decree itself unequivocally
provides, it is only after taking the oath of allegiance to the
Republic of the Philippines that the applicant is DEEMED TO
HAVE REACQUIRED PHILIPPINE CITIZENSHIP.
IV
Assuming yet again, for the sake of argument, that taking the
oath of allegiance retroacted to the date of Frivaldo's
application for repatriation, the same could not be said insofar
as it concerned the United States of America, of which he was
a citizen. For under the laws of the United States of America,
Frivaldo remained an American national until he renounced his
citizenship and allegiance thereto at 2:00 p.m. on 30 June
1995, when he took his oath of allegiance to the Republic of
the Philippines. Section 401 of the Nationality Act of 1940 of
the United States of America provides that a person who is a
national of the United States of America, whether by birth or
naturalization, loses his nationality by, inter alia, "(b) Taking an
oath or making an affirmation or other formal declaration of
allegiance to a foreign state" (SIDNEY KANSAS, U.S.
Immigration Exclusion and Deportation and Citizenship of the
United States of America, Third ed., [1948] 341-342). It follows
then that on election day and until the hour of the
commencement of the term for which he was elected - noon of
30 June 1995 as per Section 43 of the Local Government Code
- Frivaldo possessed dual citizenship, viz., (a) as an American
citizen; and (b) as a Filipino citizen through the adoption of the
theory that the effects of his taking the oath of allegiance were
retrospective. Hence, he was disqualified to run for Governor
for yet another reason: possession of dual citizenship, in
accordance with Section 40 (d) of the Local Government Code.
V
The assertion in the ponencia that Frivaldo may be considered
STATELESS on the basis of his claim that he "had long
renounced and had long abandoned his American citizenship -
long before May 8, 1985" - is untenable, for the following
reasons: first, it is based on Frivaldo's unproven, self-serving
allegation; second, informal renunciation or abandonment is
not a ground to lose American citizenship; and third, simply put,
never did the status of a STATELESS person attach to
Frivaldo.
Statelessness may be either de jure, which is the status of
individuals stripped of their nationality by their former
government without having an opportunity to acquire another;
or de facto, which is the status of individuals possessed of a
nationality whose country does not give them protection
outside their own country, and who are commonly, albeit
imprecisely, referred to as refugees (JORGE R. COQUIA, et
al., Conflict of Laws Cases, Materials and Comments, 1995
ed., 290).
Specifically, under Chapter 1, Article 1 of the United Nations
Convention Regarding the Status of Stateless Persons
(Philippine Treaty Series, Compiled and Annotated by Haydee
B. Yorac, vol. III, 363), a stateless person is defined as "a
person who is not considered as a national by any State under
the operation of its law." However, it has not been shown that
the United States of America ever ceased to consider Frivaldo
its national at any time before he took his oath of allegiance to
the Republic of the Philippines on 30 June 1995.
VI
Finally, I find it in order to also express my view on the
concurring opinion of Mr. Justice Reynato S. Puno. I am
absolutely happy to join him in his statement that "[t]he
sovereignty of our people is the primary postulate of the 1987
Constitution" and that the said Constitution is "more people-
oriented," "borne [as it is] out of the 1986 people power EDSA
revolution." I would even go further by saying that this
Constitution is pro-God (Preamble), pro-people (Article II,
Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section 1, Article XII,
Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article
XVI, Sections 5(2), 6), pro-Filipino (Article XII, Sections 1, 2,
10, 11, 12, 14; Article XIV, Sections 1, 4(2), 13; Article XVI,
Section 11), pro-poor (Article II, Sections 9, 10, 18, 21; Article
XII, Sections 1, 2(3); Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10,
11, 13), pro-life (Article II, Section 12), and pro-family (Article
II, Section 12; Article XV).
Nevertheless, I cannot be with him in carrying out the principle
of sovereignty beyond what I perceive to be the reasonable
constitutional parameters. The doctrine of people's sovereignty
is founded on the principles of democracy and republicanism
and refers exclusively to the sovereignty of the people of the
Philippines. Section 1 of Article II is quite clear on this, thus:
Sec. 1. The Philippines is a democratic
and republican State. Sovereignty resides
in the people and all government authority
emanates from them.
And the Preamble makes it clear when it solemnly
opens it with a clause "We, the sovereign Filipino
people . . ." Thus, this sovereignty is an attribute of
the Filipino people as one people, one body.
That sovereign power of the Filipino people cannot be
fragmentized by looking at it as the supreme authority of the
people of any of the political subdivisions to determine their
own destiny; neither can we convert and treat every fragment
as the whole. In such a case, this Court would provide the
formula for the division and destruction of the State and render
the Government ineffective and inutile. To illustrate the evil, we
may consider the enforcement of laws or the pursuit of a
national policy by the executive branch of the government, or
the execution of a judgment by the courts. If these are opposed
by the overwhelming majority of the people of a certain
province, or even a municipality, it would necessarily follow that
the law, national policy, or judgment must not be enforced,
implemented, or executed in the said province or municipality.
More concretely, if, for instance, the vast majority of the people
of Batanes rise publicly and take up arms against the
Government for the purpose of removing from the allegiance to
the said Government or its laws, the territory of the Republic of
the Philippines or any part thereof, or any body of land, naval,
or other armed forces, or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or
prerogatives, then those who did so -- and which are
composed of the vast majority of the people of Batanes -- a
political subdivision -- cannot be prosecuted for or be held
guilty of rebellion in violation of Article 134 of the Revised
Penal Code because of the doctrine of peoples' sovereignty.
Indeed, the expansion of the doctrine of sovereignty by
investing upon the people of a mere political subdivision that
which the Constitution places in the entire Filipino people, may
be disastrous to the Nation.
So it is in this case if we follow the thesis in the concurring
opinion. Thus, simply because Frivaldo had obtained a margin
of 20,000 votes over his closest rival, Lee, i.e., a vast majority
of the voters of Sorsogon had expressed their sovereign will for
the former, then this Court must yield to that will and must,
therefore, allow to be set aside, for Frivaldo, not just the laws
on qualifications of candidates and elective officials and
naturalization and reacquisition of Philippine citizenship, but
even the final and binding decisions of this Court affecting him.
This Court must be the first to uphold the Rule of Law. I vote
then to DISMISS G.R. No. 120295 and GRANT G.R. No.
123755.
1 Composed of Pres. CoFootnotesmm. Regalado E.
Maambong, ponente; Comm. Graduacion A.R. Claravall,
concurring, and Comm. Julio F. Desamito, dissenting.
2 In SPC No. 95-317, entitled Juan G. Frivaldo, petitioner, vs.
Raul R. Lee, respondent; rollo, pp. 110-129.
3 Signed by Chairman Bernardo P. Pardo, Comms. Regalado
E. Maambong, Remedios A. Salazar-Fernando, Manolo B.
Gorospe and Teresita Dy-Liaco Flores. Chairman Pardo
certified that "Commissioner Julio F. Desamito was on official
travel at the time of the deliberation and resolution of this case.
However, the Commission has reserved to Comm. Desamito
the right to submit a dissenting opinion." Rollo, pp. 159-171.
4 Rollo, pp. 46-49.
5 Rollo, pp. 50-55. The Second Division was composed of
Pres. Comm. Remedios A. Salazar-Fernando, ponente;
Comm. Teresita Dy-Liaco Flores, concurring, and Comm. 19 Republic Act No. 7160.
Manolo B. Gorospe ("on official business").
20 See footnote no. 6, supra.
6 Frivaldo was naturalized as an American citizen on January
20, 1983. In G.R. No. 87193, Frivaldo vs. Commission on
21 In debunking Frivaldo's claim of citizenship, this Court in
Elections, 174 SCRA 245 (June 23, 1989), the Supreme Court,
G.R. No. 87193, supra, p. 254, observed that "(i)f he (Frivaldo)
by reason of such naturalization, declared Frivaldo "not a
really wanted to disavow his American citizenship and
citizen of the Philippines and therefore DISQUALIFIED from
reacquire Philippine citizenship, petitioner should have done so
serving as Governor of the Province of Sorsogon." On
in accordance with the laws of our country. Under C.A. No. 63
February 28, 1992, the Regional Trial Court of Manila granted
as amended by C.A. No. 473 and P.D. 725, Philippine
the petition for naturalization of Frivaldo. However, the
citizenship may be reacquired by direct act of Congress, by
Supreme Court in G.R. No. 104654, Republic of the Philippines
naturalization, or by repatriation."
vs. De la Rosa, et al., 232 SCRA 785 (June 6, 1994),
overturned this grant, and Frivaldo was "declared not a citizen
of the Philippines" and ordered to vacate his office. On the 22 Supra, p. 794.
basis of this latter Supreme Court ruling, the Comelec
disqualified Frivaldo in SPA No. 95-028.
23 Petition, p. 27; rollo, p. 29.
7 Signed by Chairman Bernardo P. Pardo and the six
24 The full text of said memorandum reads as follows:
incumbent commissioners, namely, Regalado E. Maambong,
Remedios A. Salazar-Fernando, Manolo B. Gorospe,
Graduacion A. Reyes-Claravall, Julio F. Desamito and Teresita MEMORANDUM
Dy-Liaco Flores; rollo, pp. 56-57.
TO : The Solicitor General
8 Rollo, p. 60.
The Undersecretary of Foreign Affairs
9 Rollo, pp. 61-67.
The Director-General
10 Rollo, pp. 86-87. The Comelec considered the votes cast for
Frivaldo as "stray votes", and thus Lee was held as having
garnered the "highest number of votes." National Intelligence Coordinating Agency
11 Rollo, pp. 88-97. This is the forerunner of the present case. The previous administration's practice of granting citizenship by
Presidential Decree or any other executive issuance, and the
derivative administrative authority thereof, poses a serious and
12 211 SCRA 297 (July 3, 1992) and 176 SCRA 1 (August 1, contentious issue of policy which the present government, in
1989). the exercise of prudence and sound discretion, should best
leave to the judgment of the first Congress under the 1987
Constitution.
13 Rollo, pp. 110-128.
In view of the foregoing, you as Chairman and members of the
14 Rollo, pp. 159-170.
Special Committee on Naturalization, are hereby directed to
cease and desist from undertaking any and all proceedings
15 Rollo, pp. 16-17; petition, pp. 14-15. within your functional area of responsibility, as defined in Letter
of Instructions No. 270 dated April 11, 1975, as amended,
Presidential Decree No. 836 dated December 3, 1975, as
16 Rollo, pp. 10-15. This is the same resolution referred to in
amended, and Presidential Decree No. 1379 dated May 17,
footnote no. 5.
1978, relative to the grant of citizenship under the said laws,
and any other related laws, orders, issuances and rules and
17 Rollo, pp. 16-17. This is the same resolution referred to in regulations.
footnote no. 7.
(Sgd.) Corazon C. Aquino
18 Rollo, pp. 18-21. This is signed also by the Chairman and
the six other Comelec Commissioners.
Manila, March 27, 1987.
25 Art. 7, Civil Code of the Philippines. WHEREAS, there are many Filipino women who had lost their
Philippine citizenship by marriage to aliens;
26 Cf. Ty, et al. vs. Trampe, et al., G.R. No. 117577 (December
1, 1995). WHEREAS, while the new Constitution allows a Filipino woman
who marries an alien to retain her Philippine citizenship unless
by her act or omission, she is deemed under the law to have
27 Petition, p. 28; rollo, p. 30.
renounced her Philippine citizenship, such provision of the new
Constitution does not apply to Filipino women who had married
28 The aforesaid Manifestation reads as follows: aliens before said constitution took effect;
MANIFESTATION WHEREAS, the existing law (C.A. No. 63, as amended) allows
the repatriation of Filipino women who lost their citizenship by
reason of their marriage to aliens only after the death of their
The Solicitor General, as Chairman of the Special Committee
husbands or the termination of their marital status; and
on Naturalization, hereby manifests that the following persons
have been repatriated by virtue of Presidential Decree No. 725,
since June 8, 1995: WHEREAS, there are natural born Filipinos who have lost their
Philippine citizenship but now desire to re-acquire Philippine
citizenship;
1. Juan Gallanosa Frivaldo R-000900
Now, THEREFORE, I, FERDINAND E. MARCOS, President of
2. Manuel Reyes Sanchez 901 the Philippines, by virtue of the powers in me vested by the
Constitution, do hereby decree and order that: (1) Filipino
3. Ma. Nelly Dessalla Ty 902 women who lost their Philippine citizenship by marriage to
aliens; and (3) natural born Filipinos who have lost their
Philippine citizenship may reacquire Philippine citizenship
4. Terry Herrera and
through repatriation by applying with the Special Committee on
Naturalization created by Letter of Instructions No. 270, and, if
Antonio Ching 903 their applications are approved, taking the necessary oath of
allegiance to the Republic of the Philippines, after which they
shall be deemed to have reacquired Philippine citizenship. The
5. Roberto Salas Benedicto 904
Commission on Immigration and Deportation shall thereupon
cancel their certificate of registration.
6. Winthrop Santos Liwag 905
The aforesaid Special Committee is hereby authorized to
7. Samuel M. Buyco 906 promulgate rules and regulations and prescribe the appropriate
forms and the required fees for the effective implementation of
this Decree.
8. Joselito Holganza Ruiz 907
This Decree shall take effect immediately.
9. Samuel Villanueva 908
Done in the City of Manila, this 5th day of June, in the year of
10. Juan Leonardo Collas, Jr. 909 Our Lord, nineteen hundred and seventy-five.
11. Felicilda Otilla Sacnanas-Chua 910
30 See footnote no. 6, supra.
29 The text of P.D. 725 is reproduced below: 31 Cf. Labo, Jr. vs. Comelec, 211 SCRA 297 (July 3, 1992).
PRESIDENTIAL DECREE No. 725 32 The term of office of all local elective officials elected after
the effectivity of this Code shall be three (3) years, starting from
PROVIDING FOR REPATRIATION OF FILIPINO WOMEN noon of June 30, 1992 or such date as may be provided for by
WHO HAD LOST THEIR PHILIPPINE CITIZENSHIP BY law, . . ." Sec. 43, Local Government Code.
MARRIAGE TO ALIENS AND OF NATURAL BORN
FILIPINOS.
33 96 Phil. 447, 453 (1955).
34 The following are excerpts from the transcript of
stenographic notes of the oral argument held on March 19,
1996:
JUSTICE PANGANIBAN: Mr. Counsel, it is
your position then that the candidate
should be a citizen at the time of
proclamation?
ATTY. BRILLANTES: Yes, Your Honor, it
is required that he must be a citizen at the
time of proclamation and not only that, at
the time that he assumes the office he
must have the continuing qualification as a
citizen.
JUSTICE PANGANIBAN: Should that not
be reckoned from the time of filing of
certificate of candidacy or at least the day
of the election?
ATTY. BRILLANTES: Yes, Your Honor,
there are positions taken that it should be
reckoned from the date of certificate of
candidacy as in the case of qualification for
Batasang Pambansa before under B.P. 53
- it says that for purposes of residence it
must be reckoned . . . from the time of the
filing of the certificate, for purposes of age,
from the time of the date of the election.
But when we go over all the provisions of
law under current laws, Your Honor, there
is no qualification requirement insofar as
citizenship is concern(ed) as to when, as to
when you should be a citizen of the
Philippines and we say that if there is no
provision under any existing law which
requires that you have to be a citizen of
the Philippines on the date of the filing or
on the date of election then it has to be
equitably interpreted to mean that if you
are already qualified at the time that the
office is supposed to be assumed then you
should be allowed to assume the office.
JUSTICE PANGANIBAN: Is it not also true
that under the Local Autonomy Code the
candidate should also be a registered
voter and to be a registered voter one
must be a citizen?
ATTY. BRILLANTES: Yes, Your Honor, in
fact, Mr. Frivaldo has always been a
registered voter of Sorsogon. He has voted
in 1987, 1988, 1992, then he voted again
in 1995. In fact, his eligibility as a voter
was questioned but the Court dismissed
(sic) his eligibility as a voter and he was
allowed to vote as in fact, he voted in all
the previous elections including on May 8,
1995.
JUSTICE PANGANIBAN: But the fact that
he voted does not make him a citizen. The
fact is, he was declared not a citizen by
this Court twice.
ATTY. BRILLANTES: That is true, Your
Honor, we admit that he has been twice
declared not citizen and we admit the
ruling of the Supreme Court is correct but
the fact is, Your Honor, the matter of his
eligibility to vote as being a registered
voter was likewise questioned before the
judiciary. There was a ruling by the
Municipal Court, there was a ruling by the
Regional Trial Court and he was sustained
as a valid voter, so he voted.
JUSTICE PANGANIBAN: I raised this
question in connection with your
contention that citizenship should be
determined as of the time of proclamation
and not as of the time of the election or at
the time of the filing of the certificate of
candidacy.
ATTY. BRILLANTES: That is right, Your 44 Memorandum, p. 9.
Honor, but the fact of voting is not an issue
here because he was allowed to vote and
45 73 Am Jur 2d, Sec. 351, p. 488.
he did in fact vote and in fact, he was a
registered voter. (TSN, March 19, 1996.)
46 73 Am Jur 2d, Sec. 354, p. 490; emphasis supplied.
35 Section 117, Batas Pambansa Blg. 881, otherwise known
as "The Omnibus Election Code of the Philippines", as 47 Art. 10, Civil Code of the Philippines.
amended, provides for the various qualifications of voters, one
of which is Filipino citizenship.
48 Based on the "Corrected Compliance" dated May 16, 1996
filed by the Solicitor General, it appears that, excluding the
36 Comment, p. 11; rollo, p. 259. case of Frivaldo, the longest interval between date of filing of
an application for repatriation and its approval was three
months and ten days; the swiftest action was a same-day
37 See footnote no. 33.
approval.
38 Section 253 reads as follows:
49 Sec. 40. Disqualifications. -- The following persons are
disqualified from running for any elective local position:
Sec. 253. Petition for quo warranto. -- Any voter contesting the
election of any member of the Congress, regional, provincial, or
xxx xxx xxx
city officer on the ground of ineligibility or of disloyalty to the
Republic of the Philippines shall file a sworn petition for quo
warranto with the Commission within ten days after the (d) Those with dual citizenship;"
proclamation of the results of the election. (Art. XIV, Sec. 60,
BP 697; Art. XVIII, Sec. 189, par. 2, 1978 EC).
50 p. 11; rollo, p. 259.
Any voter contesting the election of any municipal or barangay
51 Resolution, p. 12; rollo, p. 121.
officer on the ground of ineligibility or of disloyalty to the
Republic of the Philippines shall file a sworn petition for quo
warranto with the regional trial court or metropolitan or 52 Cf. Navarro vs. Commission on Elections, 228 SCRA 596
municipal trial court, respectively, within ten days after the (December 17, 1993); Arao vs. Commission on Elections, 210
proclamation of the results of the election. (Art. XVIII, Sec. 189, SCRA 290 (June 23, 1992).
par. 2, 1978 EC).

ATTY. BRILLANTES: That is true, Your
Honor.
JUSTICE PANGANIBAN: And is it your
contention that under the law, particularly
the Local Autonomy Code, the law does
not specify when citizenship should be
possessed by the candidate, is that not
correct?
ATTY. BRILLANTES: That is right, Your
Honor, there is no express provision.
39 Art. 4, New Civil Code. See also Gallardo vs. Borromeo,
161 SCRA 500 (May 25, 1988), and Nilo vs. Court of Appeals,
128 SCRA 519 (April 2, 1984).
40 Tolentino, Commentaries and Jurisprudence on the Civil
Code of the Philippines, Vol. I, 1990 ed., p. 23 states:
Exceptions to Rule. -- Statutes can be given retroactive effect
in the following cases: (1) when the law itself so expressly
provides, (2) in case of remedial statutes, (3) in case of
curative statutes, (4) in case of laws interpreting others, and (5)
in case of laws creating new rights.
53 The dispositive portion of said Resolution reads:
WHEREFORE, this Division resolves to GRANT the petition
and declares that respondent is DISQUALIFIED to run for the
office of Provincial Governor of Sorsogon on the ground that he
is not a citizen of the Philippines. Accordingly respondent's
certificate of candidacy is cancelled.
54 Petition, p. 19; rollo, p. 21.
55 Resolution promulgated on December 19, 1995, p. 7; rollo,
p. 116.

JUSTICE PANGANIBAN: I am also asking
you that under the Local Autonomy Code
the candidate for governor or for other
local positions should be a voter and to be
a voter one must be a citizen?
56 42 SCRA 561, 565 (December 20, 1971), citing Moy Ya Lim
41 Id., p. 25.
Yao vs. Commissioner of Immigration, L-21289, October 4,
1971.
42 Agpalo, Statutory Construction, 1990 ed., pp. 270-271.
57 Art. IX, Sec. 2.
43 73 Am Jur 2d, Sec. 354, p. 489, cited in Castro vs. Sagales,
94 Phil. 208, 210 (1953).
58 SPC No. 95-317 is entitled "Annulment of Proclamation" and laws have always been interpreted to give fullest effect to the
contains the following prayer: political will.

WHEREFORE, it is most respectfully prayed of this Honorable
Commission that after due notice and hearing an Oder (sic)
/Resolution/Decision be issued as follows:
a) Annulling/setting aside the 30 June 1995 proclamation of
respondent as the duly election (sic), Governor of Sorsogon for
being contrary to law;
67 Benito vs. Commission on Elections, 235 SCRA 436, 442
(August 17, 1994).
68 This antagonism was clearly present in the two earlier cases
involving Frivaldo. See footnote no. 6.
PUNO, J., concurring:

b) Ordering the proclamation of the petitioner as duly elected

1 The 1987 Constitution added the word "democratic" in the
governor of Sorsogon;
statement of the principle.

xxx xxx xxx

59 229 SCRA 666, 674 (February 4, 1994).
60 211 SCRA 297, 309 (July 3, 1992).
61 G.R. No. 120265, September 18, 1995.
62 Supra, at p. 312.
63 See footnotes 2 and 3.
2 Section 24(a) of the Tydings-McDuffie Law which authorized
the Filipino people to draft a Constitution in 1934 required that
the "constitution formulated and drafted shall be republican in
form."
This Court has observed that even before the Tydings-
McDuffie Law, the Philippine Bill and the Jones Law have ". . .
extended the powers of a republican form of government
modeled after that of the United States to the Philippines." Roa
v. Collector of Customs, 23 Phil. 315, 340 [1912], Severino v.
Gov. General, 16 Phil. 366, 383 [1910], US v. Bull, 15 Phil. 7,
27 [1910].

3 Words and Phrases, Vol. 39 A., p. 68 citing Cherokee Nation

64 174 SCRA 245, 254 (June 23, 1959). v. Southern Kan. R. Co., 33 F. 900, 906.

65 Salonga and Yap, Public International Law, 1966 ed., p. 4 Dean of the UP College of Law; later President of U.P., and
239. Delegate to the 1971 Constitutional Convention.

66 In Espinosa vs. Aquino, (Electoral Case No. 9, Senate 5 Since, Philippine Political Law, Principles and Concepts,
Electoral Tribunal [SET]), the election of the late Senator 1954, ed., p. 22.
Benigno S. Aquino, Jr. was upheld, despite his not being of the
required age on the day of the election, although he celebrated
his thirty-fifth birthday before his proclamation. Much later, in 6 Barker, Principles of Social and Political Theory, p. 59 (1952
1990, this Court held in Aznar vs. Comelec (185 SCRA 703, ed.).
May 25, 1990) that even if Emilio "Lito" Osmeña held an Alien
Certificate of Registration as an American citizen, he was still
7 118 US 356.
not disqualified from occupying the local elective post of
governor, since such certificate did not preclude his being
"still a Filipino." The holding in Aquino was subsequently 8 Cruz, Philippine Political Law, p. 49, [1991 ed.].
nullified by the adoption of the 1987 Constitution (Art. VI, Sec.
3), which specified that the age qualification must be
9 Sinco, op. cit., pp. 23-24.
possessed on the day of the elections, and not on the day of
the proclamation of the winners by the board of canvassers. On
the other hand, Sec. 40 of Republic Act No. 7160 (Local 10 3 AM JUR 2d 889-890; 63 AM JUR 2d 653; 67 CSJ 926.
Government Code of 1991) which took effect on January 1,
1992, provides that those with dual citizenship are disqualified
11 Moya v. del Fierro, 69 Phil. 199.
from running for any elective local position, and effectively
overturns the ruling in Aznar. But the point is that to the extent
possible, and unless there exist provisions to the contrary, the
G.R. No. 86564 August 1, 1989
RAMON L. LABO, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC
AND LUIS L. LARDIZABAL, respondents
Estelito P. Mendoza for petitioner.
Rillera and Quintana for private respondent.
CRUZ, J.:
The petitioner asks this Court to restrain the Commission on
Elections from looking into the question of his citizenship as a
qualification for his office as Mayor of Baguio City. The
allegation that he is a foreigner, he says, is not the issue. The
issue is whether or not the public respondent has jurisdiction to
conduct any inquiry into this matter, considering that the
petition for quo warranto against him was not filed on time.
It is noteworthy that this argument is based on the alleged
tardiness not of the petition itself but of the payment of the filing
fee, which the petitioner contends was an indispensable
requirement. The fee is, curiously enough, all of P300.00 only.
This brings to mind the popular verse that for want of a horse
the kingdom was lost. Still, if it is shown that the petition was
indeed filed beyond the reglementary period, there is no
question that this petition must be granted and the challenge
abated.
The petitioner's position is simple. He was proclaimed mayor-
elect of Baguio City, on January 20, 1988. The petition for quo
warranto was filed by the private respondent on January 26,
1988, but no filing fee was paid on that date. This fee was
finally paid on February 10, 1988, or twenty-one days after his
proclamation. As the petition by itself alone was ineffectual
without the filing fee, it should be deemed filed only when the
fee was paid. This was done beyond the reglementary period
provided for under Section 253 of the Omnibus Election Code
reading as follows:
SEC. 253. Petition for quo warranto.
— Any voter contesting the election of a
Member of the Batasang Pambansa,
regional, provincial, or city officer on the
ground of ineligibility or of disloyalty to the
Republic of the Philippines shall file a
sworn petition for quo warranto with the
Commission within ten days after the 6646, otherwise known as the Electoral Reform Law of 1987,
proclamation of the result of the election. which became effective on January 5, 1988. Its Section 30
provides in part:
The petitioner adds that the payment of the filing fee is required
under Rule 36, Section 5, of the Procedural Rules of the Sec. 30. Effectivity of Regulations and
COMELEC providing that — Orders of the Commission. — The rules
and regulations promulgated by the
Commission shall take effect on the
Sec. 5. No petition for quo warranto shall
seventh day after their publication in the
be given due course without the payment
Official Gazette or in at least (2) daily
of a filing fee in the amount of Three
newspapers of general circulation in the
Hundred Pesos (P300.00) and the legal
Philippines.
research fee as required by law.
The Court has considered the arguments of the parties and
and stresses that there is abundant jurisprudence holding that
holds that the petition for quo warranto was filed on time. We
the payment of the filing fee is essential to the timeliness of the
agree with the respondents that the fee was paid during the
filling of the petition itself. He cites many rulings of the Court to
ten-day period as extended by the pendency of the petition
this effect, specifically Manchester v. Court of Appeals. 1
when it was treated by the COMELEC as a pre-proclamation
proceeding which did not require the payment of a filing fee. At
For his part, the private respondent denies that the filing fee that, we reach this conclusion only on the assumption that the
was paid out of time. In fact he says, it was flied ahead of time. requirement for the payment of the fees in quo
His point is that when he filed his "Petition for Quo Warranto warranto proceedings was already effective. There is no record
with Prayer for Immediate Annulment of Proclamation and that Res. No. 1450 was even published; and as for Res. No.
Restraining Order or Injunction" on January 26, 1988, the 1996, this took effect only on March 3, 1988, seven days after
COMELEC treated it as a pre-proclamation controversy and its publication in the February 25, 1988 issues of the Manila
docketed it as SPC Case No. 88-288. No docket fee was Chronicle and the Philippine Daily Inquirer, or after the petition
collected although it was offered. It was only on February 8, was filed.
1988, that the COMELEC decided to treat his petition as solely
for quo warranto and re-docketed it as EPC Case No. 88-19,
The petitioner forgets Tañ;ada v. Tuvera 4 when he argues that
serving him notice on February 10, 1988. He immediately paid
the resolutions became effective "immediately upon approval"
the filing fee on that date.
simply because it was so provided therein. We held in that
case that publication was still necessary under the due process
The private respondent argues further that during the period clause despite such effectivity clause.
when the COMELEC regarded his petition as a pre-
proclamation controversy, the time for filing an election protest
In any event, what is important is that the filing fee was paid,
or quo warranto proceeding was deemed suspended under
and whatever delay there may have been is not imputable to
Section 248 of the Omnibus Election Code. 2 At any rate, he
the private respondent's fault or neglect. It is true that in
says, Rule 36, Section 5, of the COMELEC Rules of Procedure
the Manchester Case, we required the timely payment of the
cited by the petitioner, became effective only on November 15,
filing fee as a precondition for the timeliness of the filing of the
1988, seven days after publication of the said Rules in the
case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however
Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These
this Court, taking into account the special circumstances of that
rules could not retroact to January 26,1988, when he filed his
case, declared:
petition with the COMELEC.
This Court reiterates the rule that the trial
In his Reply, the petitioner argues that even if the Omnibus
court acquires jurisdiction over a case only
Election Code did not require it, the payment of filing fees was
upon the payment of the prescribed filing
still necessary under Res. No. 1996 and, before that, Res. No.
fee. However, the court may allow the
1450 of the respondent COMELEC, promulgated on January
payment of the said fee within a
12, 1988, and February 26, 1980, respectively. To this, the
reasonable time. In the event of non-
private respondent counters that the latter resolution was
compliance therewith, the case shall be
intended for the local elections held on January 30, 1980, and
dismissed.
did not apply to the 1988 local elections, which were supposed
to be governed by the first-mentioned resolution. However,
Res. No. 1996 took effect only on March 3, 1988, following the
lapse of seven days after its publication as required by RA No.
The same idea is expressed in Rule 42, Section 18, of the
COMELEC Rules of Procedure adopted on June 20, 1988,
thus:
Sec. 18. Non-payment of prescribed fees.
— If the fees above prescribed are not
paid, the Commission may refuse to take
action thereon until they are paid and may
dismiss the action or the proceeding.
(Emphasis supplied.)
The Court notes that while arguing the technical point that the
petition for quo warranto should be dismissed for failure to pay
the filing fee on time, the petitioner would at the same time
minimize his alleged lack of citizenship as "a futile technicality,"
It is regrettable, to say the least, that the requirement of
citizenship as a qualification for public office can be so
demeaned. What is worse is that it is regarded as an even less
important consideration than the reglementary period the
petitioner insists upon.
steps which would not anyway affect
substantially the merits of their respective
claims. 6
xxx
While it is the fault of the petitioner for
appealing to the wrong court and thereby
allowing the period for appeal to lapse, the
more correct procedure was for the
respondent court to forward the case to the
proper court which was the Court of
Appeals for appropriate action.
Considering, however, the length of time
that this case has been pending, we apply
the rule in the case of Del Castillo v.
Jaymalin, (112 SCRA 629) and follow the
principle enunciated in Alger Electric, Inc.
v. Court of Appeals, (135 SCRA 37) which
states:
(See Sotto v. Samson, 5 SCRA 733;
Republic v. Paredes, 108 Phil. 57; Lianga
Lumber Co. v. Lianga Timber Co., Inc., 76
SCRA 197; Erico v. Heirs of Chigas, 98
SCRA 575; Francisco v. City of Davao, 12
SCRA 628; Valencia v. Mabilangan, 105
Phil. 162).lâwphî1.ñèt Sound practice
seeks to accommodate the theory which
avoids waste of time, effort and expense,
both to the parties and the government,
not to speak of delay in the disposal of the
case (cf. Fernandez v. Garcia, 92 Phil.
592, 597). A marked characteristic of our
judicial set-up is that where the dictates of
justice so demand ... the Supreme Court
should act, and act with finality.' (Li Siu
Liat v. Republic, 21 SCRA 1039, 1046,
citing Samal v. CA, 99 Phil. 230 and U.S.
v. Gimenez, 34 Phil. 74). In this case, the
dictates of justice do demand that this
Court act, and act with finality. 7

This matter should normally end here as the sole issue
originally raised by the petitioner is the timeliness of the quo
warranto proceedings against him. However, as his citizenship
is the subject of that proceeding, and considering the necessity
for an early resolution of that more important question clearly
and urgently affecting the public interest, we shall directly
address it now in this same action.
The Court has similarly acted in a notable number of cases,
thus:
From the foregoing brief statement of the
nature of the instant case, it would appear
that our sole function in this proceeding
should be to resolve the single issue of
whether or not the Court of Appeals erred
in ruling that the motion for new trial of the
GSIS in question should indeed be
deemed pro forma. But going over the
extended pleadings of both parties, the
Court is immediately impressed that
substantial justice may not be timely
achieved, if we should decide this case
upon such a technical ground alone. We
have carefully read all the allegations and
arguments of the parties, very ably and
comprehensively expounded by evidently
knowledgeable and unusually competent
counsel, and we feel we can better serve
the interests of justice by broadening the
scope of our inquiry, for as the record
before us stands, we see that there is
enough basis for us to end the basic
controversy between the parties here and
now, dispensing, however, with procedural
... it is a cherished rule xxx
of procedure for this
Court to always strive
Remand of the case to the lower court for
to settle the entire
further reception of evidence is not
controversy in a single
necessary where the court is in a position
proceeding leaving no
to resolve the dispute based on the
root or branch to bear
records before it. On many occasions, the
the seeds of future
Court, in the public interest and the
litigation. No useful
expeditious administration of justice, has
purpose will be served
resolved actions on the merits instead of
if this case is
remanding them to the trial court for further
remanded to the trial
proceedings, such as where the ends of
court only to have its
justice would not be subserved by the
decision raised again
remand of the case or when public interest
to the Intermediate
demands an early disposition of the case
Appellate Court and
or where the trial court had already
from there to this
received all the evidence of the parties. 8
Court. (p. 43)
This course of action becomes all the more justified in the
Only recently in the case of Beautifont,
present case where, to repeat for stress, it is claimed that a
Inc., et al. v. Court of Appeals, et al. (G.R.
foreigner is holding a public office.
No. 50141, January 29, 1988), we stated
that:
We also note in his Reply, the petitioner says:
... But all those relevant facts are now
before this Court. And those facts dictate In adopting private respondent's comment,
the rendition of a verdict in the petitioner's respondent COMELEC implicitly adopted
favor. There is therefore no point in as "its own" private respondent's repeated
referring the case back to the Court of assertion that petitioner is no longer a
Appeals. The facts and the legal Filipino citizen. In so doing, has not
propositions involved will not change, nor respondent COMELEC effectively
should the ultimate judgment. disqualified itself, by reason of
Considerable time has already elapsed prejudgment, from resolving the petition for
and, to serve the ends of justice, it is time quo warranto filed by private respondent
that the controversy is finally laid to rest. still pending before it? 9
This is still another reason why the Court has seen fit to rule
directly on the merits of this case.
Going over the record, we find that there are two administrative
decisions on the question of the petitioner's citizenship. The
first was rendered by the Commission on Elections on May 12,
1982, and found the petitioner to be a citizen of the
Philippines. 10 The second was rendered by the Commission on
Immigration and Deportation on September 13, 1988, and held
that the petitioner was not a citizen of the Philippines. 11
The first decision was penned by then COMELEC Chigas,
Vicente Santiago, Jr., with Commissioners Pabalate Savellano
and Opinion concurring in full and Commissioner Bacungan
concurring in the dismissal of the petition "without prejudice to
the issue of the respondent's citizenship being raised anew in a
proper case." Commissioner Sagadraca reserved his vote,
while Commissioner Felipe was for deferring decision until
representations shall have been made with the Australian
Embassy for official verification of the petitioner's alleged
naturalization as an Australian.
The second decision was unanimously rendered by Chairman
Miriam Defensor-Santiago and Commissioners Alano and
Geraldez of the Commission on Immigration and Deportation. It
is important to observe that in the proceeding before the
COMELEC, there was no direct proof that the herein petitioner
had been formally naturalized as a citizen of Australia. This
conjecture, which was eventually rejected, was merely inferred
from the fact that he had married an Australian citizen,
obtained an Australian passport, and registered as an alien
with the CID upon his return to this country in 1980.
On the other hand, the decision of the CID took into account
the official statement of the Australian Government dated
August 12, 1984, through its Consul in the Philippines, that the
petitioner was still an Australian citizen as of that date by
reason of his naturalization in 1976. That statement 12 is
reproduced in full as follows:
I, GRAHAM COLIN WEST, Consul of Australia in the
Philippines, by virtue of a certificate of appointment signed and
sealed by the Australian Minister of State for Foreign Affairs on
19 October 1983, and recognized as such by Letter of Patent
signed and sealed by the Philippines Acting Minister of Foreign
Affairs on 23 November 1983, do hereby provide the following
statement in response to the subpoena Testificandum dated 9
April 1984 in regard to the Petition for disqualification against
RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do
hereby certify that the statement is true and correct.
STATEMENT
A) RAMON LABO, JR. Y LOZANO, date of
birth 23 December 1934, was married in
the Philippines to an Australian citizen. As MANILA, THIS 12th DAY OF APRIL 1984.
the spouse of an Australian citizen, he was DONE AT MANILA IN THE PHILIPPINES.
not required to meet normal requirements
for the grant of citizenship and was
(Signed) GRAHAM C. WEST Consul
granted Australian citizenship by
Sydney on 28 July 1976.
This was affirmed later by the letter of
February 1, 1988, addressed to the private
B) Any person over the age of 16 years
respondent by the Department of Foreign
who is granted Australian citizenship must
Affairs reading as follows: 13
take an oath of allegiance or make an
affirmation of allegiance. The wording of
the oath of affirmation is: "I ..., renouncing Sir:
all other allegiance ..." etc. This need not
necessarily have any effect on his former
With reference to your letter dated 1
nationality as this would depend on the
February 1988, I wish to inform you that
citizenship laws of his former country.
inquiry made with the Australian
Government through the Embassy of the
C) The marriage was declared void in the Philippines in Canberra has elicited the
Australian Federal Court in Sydney on 27 following information:
June 1980 on the ground that the marriage
had been bigamous.
1) That Mr. Ramon L. Labo, Jr. acquired
Australian citizenship on 28 July 1976.
D) According to our records LABO is still
an Australian citizen.
2) That prior to 17 July 1986, a candidate
for Australian citizenship had to either
E) Should he return to Australia, LABO swear an oath of allegiance or make an
may face court action in respect of Section affirmation of allegiance which carries a
50 of Australian Citizenship Act 1948 renunciation of "all other allegiance.
which relates to the giving of false or
misleading information of a material nature
Very truly yours, For the Secretary of
in respect of an application for Australian
Foreign Affairs: (SGD) RODOLFO
citizenship. If such a prosecution was
SEVERINO, JR. Assistant Secretary
successful, he could be deprived of
Australian citizenship under Section 21 of
the Act. The decision also noted the oath of allegiance taken by every
naturalized Australian reading as follows:
F) There are two further ways in which
LABO could divest himself of Australian OATH OF ALLEGIANCE
citizenship:
I, A.B., renouncing all other allegiance,
(i) He could make a declaration of swear by Almighty God that I will be faithful
Renunciation of Australian citizenship and bear true allegiance to Her Majesty
under Section 18 of the Australian Elizabeth the Second, Queen of Australia,
Citizenship Act, or Her heirs and successors according to law,
and that I will faithfully observe the laws of
Australia and fulfill my duties as an
(ii) If he acquired another nationality, (for
Australian citizen. 14
example, Filipino) by a formal and
voluntary act other than marriage, then he
would automatically lose as Australian and the Affirmation of Allegiance, which declares:
citizenship under Section 17 of the Act.
AFFIRMATION OF ALLEGIANCE
IN WITNESS WHEREOF, I HAVE
HEREUNTO SET MAY HAND AND SEAL
OF THE AUSTRALIAN EMBASSY,
 I, A.B., renouncing all other allegiance,
solemnly and sincerely promise and
declare that I will be faithful and bear true
allegiance to Her Majesty Elizabeth the
Second, Queen of Australia, Her heirs and
successors according to law, and that I will
faithfully observe the Laws of Australia and
fulfill my duties as an Australian citizen. 15
The petitioner does not question the authenticity of the above
evidence. Neither does he deny that he obtained Australian
Passport No. 754705, which he used in coming back to the
Philippines in 1980, when he declared before the immigration
authorities that he was an alien and registered as such under
Alien Certificate of Registration No. B-323985. 16 He later asked
for the change of his status from immigrant to a returning
former Philippine citizen and was granted Immigrant Certificate
of Residence No. 223809. 17 He also categorically declared that
he was a citizen of Australia in a number of sworn statements
voluntarily made by him and. even sought to avoid the
jurisdiction of the barangay court on the ground that he was a
foreigner. 18
The decision of the COMELEC in 1982 quaintly dismisses all
these acts as "mistakes" that did not divest the petitioner of his
citizenship, although, as earlier noted, not all the members
joined in this finding. We reject this ruling as totally baseless.
The petitioner is not an unlettered person who was not aware
of the consequences of his acts, let alone the fact that he was
assisted by counsel when he performed these acts.
The private respondent questions the motives of the
COMELEC at that time and stresses Labo's political affiliation
with the party in power then, but we need not go into that now.
There is also the claim that the decision can no longer be
reversed because of the doctrine of res judicata, but this too
must be dismissed. This doctrine does not apply to questions
of citizenship, as the Court has ruled in several
cases. 19 Moreover, it does not appear that it was properly and
seasonably pleaded, in a motion to dismiss or in the answer,
having been invoked only when the petitioner filed his
reply 20 to the private respondent's comment. Besides, one of
the requisites of res judicata, to wit, identity of parties, is not
present in this case.
The petitioner's contention that his marriage to an Australian
national in 1976 did not automatically divest him of Philippine
citizenship is irrelevant. There is no claim or finding that he
automatically ceased to be a Filipino because of that marriage.
He became a citizen of Australia because he was naturalized
as such through a formal and positive process, simplified in his
case because he was married to an Australian citizen. As a
condition for such naturalization, he formally took the Oath of
Allegiance and/or made the Affirmation of Allegiance, both
quoted above. Renouncing all other allegiance, he swore "to be
faithful and bear true allegiance to Her Majesty Elizabeth the
Second, Queen of Australia ..." and to fulfill his duties "as an
Australian citizen."
The petitioner now claims that his naturalization in Australia
made him at worst only a dual national and did not divest him
of his Philippine citizenship. Such a specious argument cannot
stand against the clear provisions of CA No. 63, which
enumerates the modes by which Philippine citizenship may be
lost. Among these are: (1) naturalization in a foreign country;
(2) express renunciation of citizenship; and (3) subscribing to
an oath of allegiance to support the Constitution or laws of a
foreign country, all of which are applicable to the petitioner. It is
also worth mentioning in this connection that under Article IV,
Section 5, of the present Constitution, "Dual allegiance of
citizens is inimical to the national interest and shall be dealt
with by law."
Even if it be assumed that, as the petitioner asserts, his
naturalization in Australia was annulled after it was found that
his marriage to the Australian citizen was bigamous, that
circumstance alone did not automatically restore his Philippine
citizenship. His divestiture of Australian citizenship does not
concern us here. That is a matter between him and his adopted
country. What we must consider is the fact that he voluntarily
and freely rejected Philippine citizenship and willingly and
knowingly embraced the citizenship of a foreign country. The
possibility that he may have been subsequently rejected by
Australia, as he claims, does not mean that he has been
automatically reinstated as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine
citizenship may be reacquired by direct act of Congress, by
naturalization, or by repatriation. It does not appear in the
record, nor does the petitioner claim, that he has reacquired
Philippine citizenship by any of these methods. He does not
point to any judicial decree of naturalization as to any statute
directly conferring Philippine citizenship upon him. Neither has
he shown that he has complied with PD No. 725, providing
that:
... (2) natural-born Filipinos who have lost
their Philippine citizenship may reacquire
Philippine citizenship through repatriation
by applying with the Special Committee on
Naturalization created by Letter of
Instruction No. 270, and, if their
applications are approved, taking the
necessary oath of allegiance to the
Republic of the Philippines, after which
they shall be deemed to have reacquired
Philippine citizenship. The Commission on
Immigration and Deportation shall
thereupon cancel their certificate of
registration. (Emphasis supplied.)
That is why the Commission on Immigration and Deportation
rejected his application for the cancellation of his alien
certificate of registration. And that is also the reason we must
deny his present claim for recognition as a citizen of the
Philippines.
The petitioner is not now, nor was he on the day of the local
elections on January 18, 1988, a citizen of the Philippines. In
fact, he was not even a qualified voter under the Constitution
itself because of his alienage. 21 He was therefore ineligible as
a candidate for mayor of Baguio City, under Section 42 of the
Local Government Code providing in material part as follows:
Sec. 42. Qualifications. — An elective local
official must be a citizen of the Philippines,
at least twenty-three years of age on
election day, a qualified voter registered as
such in the barangay, municipality, city or
province where he proposes to be elected,
a resident therein for at least one year at
the time of the filing of his certificate of
candidacy, and able to read and write
English, Filipino, or any other local
language or dialect.
The petitioner argues that his alleged lack of citizenship is a
"futile technicality" that should not frustrate the will of the
electorate of Baguio City, who elected him by a "resonant and
thunderous majority." To be accurate, it was not as loud as all
that, for his lead over the second-placer was only about 2,100
votes. In any event, the people of that locality could not have,
even unanimously, changed the requirements of the Local
Government Code and the Constitution. The electorate had no
power to permit a foreigner owing his total allegiance to the
Queen of Australia, or at least a stateless individual owing no
allegiance to the Republic of the Philippines, to preside over
them as mayor of their city. Only citizens of the Philippines
have that privilege over their countrymen.
The probability that many of those who voted for the petitioner
may have done so in the belief that he was qualified only
strengthens the conclusion that the results of the election
cannot nullify the qualifications for the office now held by him.
These qualifications are continuing requirements; once any of
them is lost during incumbency, title to the office itself is
deemed forfeited. In the case at bar, the citizenship and voting
requirements were not subsequently lost but were not
possessed at all in the first place on the day of the election.
The petitioner was disqualified from running as mayor and,
although elected, is not now qualified to serve as such.
Finally, there is the question of whether or not the private
respondent, who filed the quo warranto petition, can replace
the petitioner as mayor. He cannot. The simple reason is that
as he obtained only the second highest number of votes in the
election, he was obviously not the choice of the people of
Baguio city.
The latest ruling of the Court on this issue is Santos v.
Commission on Elections  22 decided in 1985. In that case, the
candidate who placed second was proclaimed elected after the
votes for his winning rival, who was disqualified as a turncoat
and considered a non-candidate, were all disregarded as stray.
In effect, the second placer won by default. That decision was
supported by eight members of the Court then 23 with three
dissenting 24 and another two reserving their vote. 25 One was
on official leave. 26
Re-examining that decision, the Court finds, and so holds, that
it should be reversed in favor of the earlier case of Geronimo v.
Ramos,  27 Which represents the more logical and democratic
rule. That case, which reiterated the doctrine first announced in
1912 in Topacio vs. Paredes 28 was supported by ten members
of the Court 29 without any dissent, although one reserved his
vote, 30 another took no part 31 and two others were on
leave. 32 There the Court held:
... it would be extremely repugnant to the
basic concept of the constitutionally
guaranteed right to suffrage if a candidate
who has not acquired the majority or
plurality of votes is proclaimed a winner
and imposed as the representative of a
constituency, the majority of which have
positively declared through their ballots
that they do not choose him.
Sound policy dictates that public elective
offices are filled by those who have
received the highest number of votes cast
in the election for that office, and it is a
fundamental Idea in all republican forms of
government that no one can be declared
elected and no measure can be declared
carried unless he or it receives a majority
or plurality of the legal votes cast in the
election. (20 Corpus Juris 2nd, S 243, p.
676.)
The fact that the candidate who obtained
the highest number of votes is later
declared to be disqualified or not eligible
for the office to which he was elected does
not necessarily entitle the candidate who
obtained the second highest number of
votes to be declared the winner of the
elective office. The votes cast for a dead,
disqualified, or non-eligible person may not
be valid to vote the winner into office or
maintain him there. However, in the
absence of a statute which clearly asserts
a contrary political and legislative policy on
the matter, if the votes were cast in the
sincere belief that the candidate was alive,
qualified, or eligible, they should not be
treated as stray, void or meaningless.
It remains to stress that the citizen of the Philippines must take
pride in his status as such and cherish this priceless gift that,
out of more than a hundred other nationalities, God has seen fit
to grant him. Having been so endowed, he must not lightly yield
this precious advantage, rejecting it for another land that may
offer him material and other attractions that he may not find in
his own country. To be sure, he has the right to renounce the
Philippines if he sees fit and transfer his allegiance to a state
with more allurements for him. 33 But having done so, he cannot
expect to be welcomed back with open arms once his taste for
his adopted country turns sour or he is himself disowned by it
as an undesirable alien.
Philippine citizenship is not a cheap commodity that can be
easily recovered after its renunciation. It may be restored only
after the returning renegade makes a formal act of re-
dedication to the country he has abjured and he solemnly
affirms once again his total and exclusive loyalty to the
Republic of the Philippines. This may not be accomplished by
election to public office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby
declared NOT a citizen of the Philippines and therefore
DISQUALIFIED from continuing to serve as Mayor of Baguio
City. He is ordered to VACATE his office and surrender the
same to the Vice-Mayor of Baguio City, once this decision
becomes final and executory. The temporary restraining order
dated January 31, 1989, is LIFTED.
Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griñ;o-Aquino
Medialdea and Regalado, JJ., concur.
Separate Opinions
GUTTIERREZ, JR., J.,concurring:
As in the case of Frivaldo v. Commission on Elections (G. R.
No. 87193, June 23, 1989) and inspire of what would otherwise
be insuperable procedural obstacles, I am constrained to
concur in the Court's decision so forcefully and felicitously
written by Mr. Justice Isagani A. Cruz. I do so because I cannot
see how the Court can countenance a citizen of a foreign
country or one who has renounced Filipino citizenship sitting as
the mayor of one of the most important cities in the Philippines.
What was raised to the Court was only the issue of the
COMELEC's jurisdiction to inquire into the citizenship of the
petitioner. Ordinarily, we would have limited ourselves to
sustaining the jurisdiction of the COMELEC and remanding the
case for further proceedings and the rendition of a decision.
Under Section 7, Article IXA of the Constitution, a decision,
order, or ruling of the COMELEC may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty
day from receipt of a copy thereof. No decision on the
petitioner's citizenship has been rendered and no decision can,
as yet, be elevated to us for review. I, therefore, reiterate my
statement in Frivaldo that my concurrence is limited only to
cases involving citizenship and disloyalty but not to any of the
many other grounds for disqualification cited in my concurring
opinion.
Our decision to disqualify the petitioner is particularly
distressing to me because I am impressed by the singular
achievements in the beautification of Baguio City, in the peace
and order situation, and in the resurgence of civic pride so
visible to anyone who has gone up to Baguio since Mr. Labo
assumed the mayorship. However, I see no other way this case
can be resolved except by adopting a pragmatic approach. It is
beyond dispute that a non-citizen cannot be the mayor of
Baguio City. I join the rest of the Court.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griñ;o-Aquino
Medialdea and Regalado, JJ., concur.
Separate Opinions
GUTTIERREZ, JR., J.,concurring:
As in the case of Frivaldo v. Commission on Elections (G. R.
No. 87193, June 23, 1989) and inspire of what would otherwise
be insuperable procedural obstacles, I am constrained to
concur in the Court's decision so forcefully and felicitously
written by Mr. Justice Isagani A. Cruz. I do so because I cannot
see how the Court can countenance a citizen of a foreign
country or one who has renounced Filipino citizenship sitting as
the mayor of one of the most important cities in the Philippines.
What was raised to the Court was only the issue of the
COMELEC's jurisdiction to inquire into the citizenship of the
petitioner. Ordinarily, we would have limited ourselves to
sustaining the jurisdiction of the COMELEC and remanding the
case for further proceedings and the rendition of a decision. SCRA 629; Francisco v. City, of Davao, 12 23 Cuevas, J., ponente, with Makasiar,
Under Section 7, Article IXA of the Constitution, a decision, SCRA 628. Concepcion, Jr., Escolin, Relova, De la
order, or ruling of the COMELEC may be brought to the Fuente, Alampay and Aquino, JJ.,
Supreme Court on certiorari by the aggrieved party within thirty concurring.
7 Tejones v. Gironella 159 SCRA 100.
day from receipt of a copy thereof. No decision on the
petitioner's citizenship has been rendered and no decision can,
24 Teehankee, Acting C.J., Abad Santos
as yet, be elevated to us for review. I, therefore, reiterate my 8 Lianga Bay Logging Co., Inc. v. CA, 157
and Melencio- Herrera,
statement in Frivaldo that my concurrence is limited only to SCRA 357.
cases involving citizenship and disloyalty but not to any of the
many other grounds for disqualification cited in my concurring 25 Plana and Gutierrez, Jr., JJ.
9 Rollo, p. 159.
opinion.
26 Fernando, C.J.
10 Ibid., pp. 182A-1 95.
Our decision to disqualify the petitioner is particularly
distressing to me because I am impressed by the singular
27 136 SCRA 435.
achievements in the beautification of Baguio City, in the peace 11 Id., pp. 94-107.
and order situation, and in the resurgence of civic pride so
visible to anyone who has gone up to Baguio since Mr. Labo 28 23 Phil. 238.
assumed the mayorship. However, I see no other way this case 12 Id. Emphasis supplied.
can be resolved except by adopting a pragmatic approach. It is
beyond dispute that a non-citizen cannot be the mayor of 29 Gutierrez, Jr., J., ponente, with
13 Id. Emphasis supplied.
Baguio City. I join the rest of the Court. Teehankee, Abad Santos, Melencio-
Herrera, Plana, Escolin, Relova, De la
14 Id. Emphasis supplied. Fuente, Cuevas and Alampay, JJ.,
Footnotes concurring.
15 Id. Emphasis supplied.
1 49 SCRA 562. SYCIP, SALAZAR 30 Makasiar, J.
16 Id.
2 Sec. 248. Effect of filing petition to annul 31 Aquino, J.
or suspend the proclamation. The filing
with the Commission of a petition to annul 17 Id.
or to suspend the proclamation of any 32 Fernando, C.J. and Concepcion, Jr.,
candidate shall suspend the running of the C.J.
18 (i) Statement dated 25 November 1976
period within which to file an election that he is an "Australian made before Det.
protest or quo warranto proceedings. Abaya. 33 Except in times of war, under CA No.
63.
3 Rule 44, See. 4. COMELEC Rules of (ii) Statement affirming that he is an
Procedure, Effectivity. These Rules shall Australian citizen in the affidavit-complaint
be published in the Official Gazette and executed on 1 July 1988 and in the
shall take effect on the seventh day complaint filed on 13 January 1982 with
following its publication. Actually, the Rules the City, Court of Baguio: "... being an
became effective seven days after the Australian citizen the subject of this
official release of the Official Gazette dated complaint is one of which the Barangay
June 27, 1988 on November 8, 1988. Court cannot take cognizance of."

4 146 SCRA 446. 19 Soria v. Commissioner of Immigration,

37 SCRA 213; Lee v. Commissioner of
5 G.R. Nos. 79937-38, February 13, 1989. Immigration, 42 SCRA 561; Sia Reyes v.
Deportation Board, 122 SCRA 478.

6 Velasco v. Court of Appeals, 95 SCRA

616. See also Ortigas v. RUIZ, 148 SCRA 20 Rollo, pp. 159-160.
326; First Asian Transport and Shipping
Agency, Inc. v. Ople 142 SCRA 542; 21 Art. V, Sec. 1, 1987 Constitution.
Quisumbing v. Court of Appeals, 122
SCRA 031 Del Castillo v. Jaymalin, 112
22 137 SCRA 740.
G.R. No. 83820 May 25, 1990
JOSE B. AZNAR (as Provincial Chairman of PDP Laban in
Cebu), petitioner,
vs.
COMMISSION ON ELECTIONS and EMILIO MARIO
RENNER OSMEÑA, respondents.
Rufino B. Requina for petitioner.
Angara, Abello, Concepcion, Regala & Cruz for private
respondent.
PARAS, J.:
Before Us is a petition for certiorari assailing the Resolution of
the Commission on Elections (COMELEC) dated June 11,
1988, which dismissed the petition for the disqualification of
private respondent Emilio "Lito" Osmeña as candidate for
Provincial Governor of Cebu Province.
The facts of the case are briefly as follows:
On November 19, 1987, private respondent Emilio "Lito"
Osmeña filed his certificate of candidacy with the COMELEC
for the position of Provincial Governor of Cebu Province in the
January 18, 1988 local elections.
On January 22, 1988, the Cebu PDP-Laban Provincial Council
(Cebu-PDP Laban, for short), as represented by petitioner Jose
B. Aznar in his capacity as its incumbent Provincial Chairman,
filed with the COMELEC a petition for the disqualification of
private respondent on the ground that he is allegedly not a
Filipino citizen, being a citizen of the United States of America.
On January 27, 1988, petitioner filed a Formal Manifestation
submitting a Certificate issued by the then Immigration and
Deportation Commissioner Miriam Defensor Santiago certifying
that private respondent is an American and is a holder of Alien
Certificate of Registration (ACR) No. B-21448 and Immigrant
Certificate of Residence (ICR) No. 133911, issued at Manila on
March 27 and 28, 1958, respectively. (Annex "B-1").
The petitioner also filed a Supplemental Urgent Ex-
Parte Motion for the Issuance of a Temporary Restraining
Order to temporarily enjoin the Cebu Provincial Board of
Canvassers from tabulating/canvassing the votes cast in favor
of private respondent and proclaiming him until the final
resolution of the main petition.
Thus, on January 28, 1988, the COMELEC en banc resolved exclusively on the ground that any material
to order the Board to continue canvassing but to suspend the representation contained therein as
proclamation. 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
At the hearing before the COMELEC (First Division), the
the filing of the certificate of candidacy and
petitioner presented the following exhibits tending to show that
shall be decided, after the notice and
private respondent is an American citizen: Application for Alien
hearing, not later than fifteen days before
Registration Form No. 1 of the Bureau of Immigration signed by
the election.
private respondent dated November 21, 1979 (Exh. "B"); Alien
Certificate of Registration No. 015356 in the name of private
respondent dated November 21, 1979 (Exh. "C"); Permit to Re- and
enter the Philippines dated November 21, 1979 (Exh. "D");
Immigration Certificate of Clearance dated January 3, 1980
(2) After election, pursuant to Section 253
(Exh. "E"). (pp. 117-118, Rollo)
thereof, viz:
Private respondent, on the other hand, maintained that he is a
'Sec. 253. Petition for quo warranto. —
Filipino citizen, alleging: that he is the legitimate child of Dr.
Any voter contesting the election of any
Emilio D. Osmeña, a Filipino and son of the late President
Member of the Batasang Pambansa,
Sergio Osmeña, Sr.; that he is a holder of a valid and
regional, provincial, or city officer on the
subsisting Philippine Passport No. 0855103 issued on March
ground of ineligibility or of disloyalty to the
25, 1987; that he has been continuously residing in the
Republic of the Philippines shall file a
Philippines since birth and has not gone out of the country for
sworn petition for quo warranto with the
more than six months; and that he has been a registered voter
Commission within ten days after the
in the Philippines since 1965. (pp. 107-108, Rollo)
proclamation of the results of the election.
On March 3, 1988, COMELEC (First Division) directed the
The records show that private respondent filed his certificate of
Board of Canvassers to proclaim the winning candidates.
candidacy on November 19, 1987 and that the petitioner filed
Having obtained the highest number of votes, private
its petition for disqualification of said private respondent on
respondent was proclaimed the Provincial Governor of Cebu.
January 22, 1988. Since the petition for disqualification was
filed beyond the twenty five-day period required in Section 78
Thereafter, on June 11, 1988, COMELEC (First Division) of the Omnibus Election Code, it is clear that said petition was
dismissed the petition for disqualification for not having been filed out of time.
timely filed and for lack of sufficient proof that private
respondent is not a Filipino citizen.
The petition for the disqualification of private respondent
cannot also be treated as a petition for quo warranto under
Hence, the present petition. Section 253 of the same Code as it is unquestionably
premature, considering that private respondent was proclaimed
Provincial Governor of Cebu only on March 3, 1988.
The petition is not meritorious.
However, We deem it is a matter of public interest to ascertain
There are two instances where a petition questioning the
the respondent's citizenship and qualification to hold the public
qualifications of a registered candidate to run for the office for
office to which he has been proclaimed elected. There is
which his certificate of candidacy was filed can be raised under
enough basis for us to rule directly on the merits of the case, as
the Omnibus Election Code (B.P. Blg. 881), to wit:
the COMELEC did below.
(1) Before election, pursuant to Section 78
Petitioner's contention that private respondent is not a Filipino
thereof which provides that:
citizen and, therefore, disqualified from running for and being
elected to the office of Provincial Governor of Cebu, is not
'Section 78. Petition to deny due course or supported by substantial and convincing evidence.
to cancel a certificate of candidacy. — A
verified petition seeking to deny due
In the proceedings before the COMELEC, the petitioner failed
course or to cancel a certificate of
to present direct proof that private respondent had lost his
candidacy may be filed by any person
Filipino citizenship by any of the modes provided for under C.A.
No. 63. Among others, these are: (1) by naturalization in a
foreign country; (2) by express renunciation of citizenship; and
(3) by subscribing to an oath of allegiance to support the
Constitution or laws of a foreign country. From the evidence, it
is clear that private respondent Osmeña did not lose his
Philippine citizenship by any of the three mentioned
hereinabove or by any other mode of losing Philippine
citizenship.
In concluding that private respondent had been naturalized as
a citizen of the United States of America, the petitioner merely
relied on the fact that private respondent was issued alien
certificate of registration and was given clearance and permit to
re-enter the Philippines by the Commission on Immigration and
Deportation. Petitioner assumed that because of the foregoing,
the respondent is an American and "being an American",
private respondent "must have taken and sworn to the Oath of
Allegiance required by the U.S. Naturalization Laws." (p. 81,
Rollo)
Philippine courts are only allowed to determine who are Filipino
citizens and who are not. Whether or not a person is
considered an American under the laws of the United States
does not concern Us here.
By virtue of his being the son of a Filipino father, the
presumption that private respondent is a Filipino remains. It
was incumbent upon the petitioner to prove that private
respondent had lost his Philippine citizenship. As earlier stated,
however, the petitioner failed to positively establish this fact.
The cases of Juan Gallanosa Frivaldo v. COMELEC et al,
(G.R. No. 87193, June 21, 1989) and Ramon L. Labo v.
COMELEC et al (G.R. No. 86564, August 1, 1989) are not
applicable to the case at bar.
In the Frivaldo case, evidence shows that he was naturalized
as a citizen of the United States in 1983 per certification from
the United States District Court, Northern District of California,
as duly authenticated by Vice Consul Amado P. Cortez of the
Philippine Consulate General in San Francisco, California,
U.S.A.
Frivaldo expressly admitted in his answer that he was
naturalized in the United States but claimed that he was forced
to embrace American citizenship to protect himself from the
persecution of the Marcos government. The Court, however,
found this suggestion of involuntariness unacceptable, pointing
out that there were many other Filipinos in the United States
similarly situated as Frivaldo who did not find it necessary to
abandon their status as Filipinos.
Likewise, in the case of Labo, records show that Labo was
married to an Australian citizen and that he was naturalized as
an Australian citizen in 1976, per certification from the
Australian Government through its Consul in the Philippines. concept of dual citizenship or allegiance, the fact is it actually
This was later affirmed by the Department of Foreign Affairs. existed. Be it noted further that under the aforecited proviso,
the effect of such dual citizenship or allegiance shall be dealt
with by a future law. Said law has not yet been enacted.
The authenticity of the above evidence was not disputed by
Labo. In fact, in a number of sworn statements, Labo
categorically declared that he was a citizen of Australia. WHEREFORE, the petition for certiorari is hereby DISMISSED
and the Resolution of the COMELEC is hereby AFFIRMED.
In declaring both Frivaldo and Labo not citizens of the
Philippines, therefore, disqualified from serving as Governor of SO ORDERED.
the Province of Sorsogon and Mayor of Baguio City,
respectively, the Court considered the fact that by their own
Narvasa, Bidin, Griño-Aquino, Medialdea and Regalado, JJ.,
admissions, they are indubitably aliens, no longer owing any
concur.
allegiance to the Republic of the Philippines since they have
sworn their total allegiance to a foreign state.
Feliciano, J., I concur. I also join in the concurring opinion of
Justice Sarmiento.
In the instant case, private respondent vehemently denies
having taken the oath of allegiance of the United States (p. 81,
Rollo). He is a holder of a valid and subsisting Philippine Cortes, J., concur in the result.
passport and has continuously participated in the electoral
process in this country since 1963 up to the present, both as a
Fernan, C.J., took no part.
voter and as a candidate (pp. 107-108, Rollo). Thus, private
respondent remains a Filipino and the loss of his Philippine
citizenship cannot be presumed. Gancayco, J., is on leave.
In the learned dissent of Mr. Justice Teodoro Padilla, he  
stresses the fact that because Osmeña obtained Certificates of
Alien Registration as an American citizen, the first in 1958
 
when he was 24 years old and the second in 1979, he,
Osmeña should be regarded as having expressly renounced
Philippine citizenship. To Our mind, this is a case of non Separate Opinions
sequitur (It does not follow). Considering the fact that
admittedly Osmeña was both a Filipino and an American, the
mere fact that he has a Certificate stating he is an American  
does not mean that he is not still a Filipino. Thus, by way of
analogy, if a person who has two brothers named Jose and SARMIENTO, J., concurring:
Mario states or certifies that he has a brother named Jose, this
does not mean that he does not have a brother named Mario;
The majority seems agreed that the private respondent has
or if a person is enrolled as student simultaneously in two
acquired American citizenship, only that he did not necessarily
universities, namely University X and University Y, presents a
lose his Filipino citizenship. The important question, however,
Certification that he is a student of University X, this does not
inheres in how he obtained American citizenship. I find that
necessarily mean that he is not still a student of University Y. In
there is a dearth of facts here.
the case of Osmeña, the Certification that he is an American
does not mean that he is not still a Filipino, possessed as he is,
of both nationalities or citizenships. Indeed, there is no express For, if the private respondent became an American by
renunciation here of Philippine citizenship; truth to tell, there is naturalization, he has lost Filipino citizenship (Com. Act No. 63;
even no implied renunciation of said citizenship. When We Frivaldo v. COMELEC, G.R. No. 87193, June 21, 1989; Labo v.
consider that the renunciation needed to lose Philippine COMELEC, G.R. No. 86564, August 1, 1989). If he, however,
citizenship must be "express", it stands to reason that there can became one by the application of the principle of jus soli it is by
be no such loss of Philippine 'citizenship when there is no force of circumstances rather than choice. But he does not lose
renunciation either "'express" or "implied". his Filipino citizenship, if he were otherwise born of Filipino
parents.
Parenthetically, the statement in the 1987 Constitution that
"dual allegiance of citizens is inimical to the national interest In the absence of evidence, we can not presume that he had
and shall be dealt with by law"(Art. IV, Sec. 5) has no ceased to be a citizen of the Philippines, simply because he is,
retroactive effect. And while it is true that even before the 1987 at the same time. a citizen of the United States. There must be
Constitution, Our country had already frowned upon the
a clear showing that he lost his Filipino citizenship by any of the
means enumerated by Commonwealth Act No. 63. The fact
that he had obtained an alien certificate of registration,
standing alone, does not amount to "express renunciation."
 
MELENCIO-HERRERA, J., dissenting:
I join the dissent of Messrs. Justices Isagani A. Cruz and
Teodoro R. Padilla.
While it may be that dual citizenship usually results from
accident of birth, a choice will have to be made by the
individual concerned at some point in time in his life, involving
as it does the priceless heritage of citizenship.
That election was made by private respondent when, in 1958,
at the age of 24, and in 1979, at 45, he obtained Alien
Certificates of Registration. Registration as an alien is a clear
and unambiguous act or declaration that one is not a citizen. If,
in fact, private respondent was merely compelled to so register
because of the "uncooperativeness" of the past regime, he
could have, under the new dispensation, asked for the
cancellation of those Alien Certificates and abandoned his
alienage, specially before he ran for public office in 1988.
The 1987 Constitution declares in no uncertain terms that "dual
allegiance of citizens is inimical to the national interest and
shall be dealt with by law" (Article IV, Section 5). That
statement is but a reaffirmation of an innate conviction shared
by every Filipino. The law referred to need not be awaited for
one to consider giving up the legal convenience of dual
citizenship.
Accordingly, I vote to grant the Petition.
 
CRUZ, J., dissenting:
I join Mr. Justice Padilla in his dissent.
It seems to me that when a person voluntarily registers as an
alien, he is in effect affirming that he is not a citizen. The terms
"citizen" and "alien" are mutually exclusive from the viewpoint
of municipal law, which is what really matters in the case at
bar. Under this discipline, one is either a citizen of the local
state or he is not; and the question is resolved on the basis of
its own laws alone and not those of any other state.
One of the several modes of losing Philippine citizenship under
C.A. No. 63 is by "express renunciation" thereof. In the case
of Frivaldo v. Commission on Elections, G.R. No. 87193, June
23,1989, there was such renunciation when the petitioner took
an oath as a naturalized citizen of the United States in which
he renounced all allegiance to all other states. In the case
of Labo v. Commission on Elections, G.R. No. 86546, August
1, 1989, the petitioner not only took a similar oath after his
naturalization in Australia but also executed other documents in
which he stated that he was not a Filipino.
The fact that his naturalization was later revoked did not also
invalidate his disavowal of Philippine citizenship. "Express
renunciation" is a separate mode of losing Philippine
citizenship and is not necessarily dependent on "naturalization
in a foreign country," which is another and different mode.
When a person rejects and divorces his wife to enter into a
second marriage, he cannot say he still loves her despite his
desertion. The undeniable fact is that he has left her for
another woman to whom he has totally and solemnly
transferred his troth. It does him no credit when he protests he
married a second time simply for material convenience and that
his heart still belongs to the wife he has abandoned. At worst, it
would reveal his sordid and deceitful character.
By the same token, professing continued allegiance to the
Philippines after renouncing it because of its meager
resources, or for other ulterior and equally base reasons, is to
me a paltry form of patriotism. It is a sop to the repudiated state
and a slight to the adopted state. No matter how noble this
attitude may appear to others, it is to me nothing less than plain
and simple hypocrisy that we should not condone, let alone
extol.
Coming now to the case at bar, I note first of all that no
naturalization is involved here as the private respondent claims
to be a citizen both of the Philippines and of the United States.
The question I think we must answer is: Was there an express
renunciation of Philippine citizenship by the private respondent
when he knowingly and voluntarily registered as an alien with
the Commission of Immigration and Deportation in 1958 and in
1979?
In Yu v. Commission of Immigration and Deportation, G.R. No.
83882, January 24, 1989, I made the following observations in
a separate opinion:
Regretfully, I cannot agree with the finding that the petitioner
has expressly renounced his Philippine citizenship. The
evidence on this point is in my view rather meager. Express
renunciation of citizenship as a made of losing citizenship
under Com. Act No. 63 is an unequivocal and deliberate act
with full awareness of its significance and consequences. I do
not think the "commercial documents he signed" suggest such
categorical disclaimer.
That case is distinguished from the one before us now in that
Yu did not ask the Philippine government to register him as an
alien. Gov. Osmeña did.
It is my opinion that if the governor had confined himself to
simply seeking and using an American passport, these acts
could not have by themselves alone constituted a repudiation
of Philippine citizenship. The problem, though, is that he did
more than enjoy this legal convenience. What he actually did
was register with the Philippine government as an alien within
its own territory, presumably so he could be insulated from the
jurisdiction it exercises over its nationals. This was a voluntary
act. As a citizen of the Philippines, he was not required to
register as an alien. Nevertheless, he chose to do so of his own
free will. By this decision, he categorically asked the Republic
of the Philippines to treat him as an American and not a
Filipino, choosing to be an alien in this land that was willing to
consider him its own.
C.A. No. 63 does not necessarily require that the express
renunciation of Philippine citizenship be made in connection
with the naturalization of the erstwhile Filipino in a foreign
country. Renunciation may be made independently of
naturalization proceedings. Moreover, no sacramental words
are prescribed by the statute for the express renunciation of
Philippine citizenship. As long as the repudiation is categorical
enough and the preference for the foreign state is
unmistakable, as in the case at bar, Philippine citizenship is
lost.
The private respondent would have his cake and eat it too, but
this can never be allowed where Philippine citizenship is
involved. It is a gift that must be deserved to be retained. The
Philippines for all her modest resources compared to those of
other states, is a jealous and possessive mother demanding
total love and loyalty from her children. It is bad enough that
the love of the dual national is shared with another state; what
is worse is where he formally rejects the Philippines, and in its
own territory at that, and offers his total devotion to the other
state.
I am aware of the praiseworthy efforts of Gov. Osmeña to
improve the province of Cebu, and also, I should add, of the
commendable record of Gov. Frivaldo and Mayor Labo in the
administration of their respective jurisdictions. But that is not
the point. The point is that it is not lawful to maintain in public
office any person who, although supported by the electorate, is
not a Filipino citizen. This is a relentless restriction we cannot
ignore.
Regretfully, therefore, I must vote to GRANT the petition.
 
PADILLA, J., dissenting:
I am constrained to dissent.
I start from the premise that the private respondent Emilio
Mario Renner Osmeña enjoyed at one time dual citizenship,
i.e,, Philippine and U.S. citizenships. He was born in the
Philippines of a Filipino father and an American (U.S.) mother.
However, his sworn application for alien registration dated 21
November 1979 (Exh. B) filed with the Philippine immigration
authorities was, in my view, an express renunciation of his
Philippine citizenship. As held in Board of Immigration
Commissioners vs. Go Callano 1 express renunciation means a
renunciation that is made known distinctly and explicitly and not
left to inference or implication.
Nothing can be more distinct and explicit than when a dual
citizenship holder-like the private respondent of age, and with
full legal capacity to act, voluntarily and under oath applies with
the Philippine Government for registration as an alien, insofar
as his intention not to remain a Filipino citizen is concerned.
And because of that distinct and explicit manifestation of desire
to be considered an alien in the Philippines, the Philippine
immigration authorities issued to private respondent Alien
Certificate of Registration No. 015356 dated 21 November
1979 (Exh. C), Permit to Re- enter the Philippines No. 122018
dated 21 November 1979 (Exh. D) and Immigration Certificate
of Clearance No. D-146483 dated 3 January 1980 (Exh E) 2
All the foregoing documents issued by the Philippine
immigration authorities to the private respondent at his request
are predicated on the proposition that private respondent is an
alien under Philippine laws. It should also be mentioned that,
while not marked as exhibit in the case at bar, private
respondent was likewise issued in Cebu City Native Born
Certificate of Residence No. 115883 on 21 November 1979 (as
verified from Immigration records). This document, copy of
which is attached hereto as Annex A, is again predicated on
the proposition that private respondent is a duly-registered
align (American) residing in the Philippines.
Another relevant document that merits attention is the
Application for Re-entry Permit executed and signed by private
respondent on 3 January 1980, again under oath, and verified
from the records at the CID wherein private respondent
expressly stated that he is a U.S. national. The importance of
this document cannot be underestimated For, if private
respondent believed that he is a Filipino citizen, he would not
have executed said Application for Re-entry Permit, since it is
the right of every Filipino citizen to return to his country (the
Philippines). The fact, therefore, that private respondent
executed said sworn Application for Re-entry Permit, copy of
which is attached hereto as Annex B, is again an abundant
proof that he himself, no less, believed that he was, as he
continuous to be, a resident alien (American) in the Philippines.
It will further be noted that earlier, or in 1958, private
respondent had already registered as an alien with the Bureau
of Immigration under the Alien Registration Act of 1950 RA
562). Section 1 of said Act provides:
SECTION 1. Aliens residing in the
Philippines shall, within thirty days after the
approval of this Act, apply for registration,
in the case of those residing in the City of
Manila, at the Bureau of Immigration and
in the case of those residing in other
localities at the office of the city or
municipal treasurers, or at any other office
designated by the
President. ... . 3 (Emphasis supplied)
Accordingly, per certification of the Commissioner of
Immigration and Deportation Miriam Defensor Santiago (Exh.
A), issued on 26 January 1988, private respondent had been
issued ACR No. B-21-448 and ICR No. 13391 on 27 and 28
March 1958 respectively. He, therefore, registered himself in
the Philippines as an alien twice; first, in the year 1958, when
he was 24 years old and again in 1979, when he was 45 years
old. By twice registering under oath as an alien with the Bureau
of Immigration, private respondent thereby clearly, distinctly
and explicitly manifested and declared that he was an alien
(and, therefore, not a Filipino citizen) residing in the Philippines
and under its laws.
At this point, and to be objectively fair to the private
respondent, a clarification should be made. In his Comment on
the Petition at bar (Rollo, p. 81), it is stated by his counsel that
he (private respondent) was born in 1934 — hence, our
mathematical conclusion that when he first registered as an
alien in 1958, he was 24 years old and in 1979 when he re-
registered as an alien, he was 45 years old. However, private
respondent's immigration records disclose that he was born in
1938 (not in 1934). On the assumption that the year 1938 is the
correct year of birth of private respondent (and that his alleged
year of birth, 1934, as stated in his Comment at bar is
erroneous), then in 1958, when he first registered as an alien,
he was 20 years old, while in 1979 when he re-registered as an
alien, he was 41 years old.
Still, his first registration as an alien (at age 20) has to be
taken, in my view, as an express renunciation of his Philippine
citizenship, because (1) at that time, he was almost 21 years
old the age of majority, and (2) more importantly, under the
applicable Alien Registration Act RA 562), an alien 14 years or
over has to register in person (and not through his parents or
guardian). It provides:
The parent or legal guardian of an alien
who is less than fourteen years of age,
shall have the duty of registering such
alien: Provided, That whenever any such
alien attains his fourteenth birthday in the
Philippines he shall, within fifteen days
thereafter, apply in person for registration.
(Sec. 1, par. 2)
I take the above provision to mean that the choice by a dual
nationality holder on whether to remain a Filipino citizen or an
alien has to be made at age 14, and private respondent
(although a bit late) made the notice in 1958 (at age 20) in
favor of his U.S. citizenship.
If all the foregoing acts of express renunciation of Philippine
citizenship had been made or filed by private respondent
elsewhere (not with the Philippine Government), there could
perhaps be some room for contention that vis-a- vis the
Philippine Government, private respondent had not renounced
his Philippine citizenship. But said acts of express renunciation
were filed with the Philippine Government and done right in the
Philippines. In turn the Philippine Government, through the
immigration authorities, accepted and acted on private
respondent's aforesaid representations, and registered and
documented him TWICE as an alien under Philippine law.
The policy of our laws has been, and with laudable reason, to
discourage dual citizenship, because this condition or status
assumes as a necessary complement thereof dual allegiance
at the same time to two (2) different countries. As early as 16
September 1947, a unanimous Supreme Court, speaking thru
Mr. Justice Sabino Padilla in the celebrated case of Tan Chong
vs. Secretary of Labor, rejected the principle of jus soli as
determinative of Philippine citizenship, for the following reason,
among others:
... . Citizenship, the main integrate element
of which is allegiance, must not be taken
lightly. Dual allegiance must be
discouraged and prevented. But the
application of the principle jus soli to
persons born in this country of alien
parentage would encourage dual
allegiance which in the long run would be
detrimental to both countries of which such
persons might claim to be citizens. 4
This policy found later expression in the 1987 Constitution
which now provides —
Sec. 5. Dual allegiance of citizen is inimical
to the national interest and shall be dealt
with by law. (Article IV)
Dual citizenship, in my considered opinion, must be eschewed.
While having the "best of two (2) words" maybe the result of
birth or other factors accidentally brought about, the "dual
citizen" has to make a choice at one time or another. Having
two (2) citizenships is, as I see it, similar in many ways to
having two (2) legal spouses, when as a matter of principle and
sound public policy, fealty to only one (1) spouse is both
compelling and certainly desirable.
Gordon and Rosenfield in their book on Immigration Law and
Procedure state:
Dual nationality is universally recognized
as an undesirable phenomenon. It
inevitably results in questionable loyalties
and leads to international conflicts. Dual
nationality also makes possible the use of
citizenship as a badge of convenience
rather than of undivided loyalty. And it
impairs the singleness of commitment
which is the hallmark of citizenship and
allegiance. A person should have a right to
choose his own nationality, and this choice
should be honored by all countries.
However, he should not be entitled to
claim more than one
nationality. 5 (Emphasis supplied)
Private respondent made a deliberate and decisive choice
when he asked the Philippine Government which, like many
other countries, considers dual allegiance as against national
or public interest to register him at least twice (and, therefore,
unmistakably) as an alien in this country. That choice pro
tanto was a renunciation of his Philippine citizenship. The
choice must be respected as a conscious and knowledgeable
act of a discerning, distinguished and respected person who
must be presumed to have known the full import of his acts.
Finally, the last thing that should be said against the Court is
that it is inconsistent in its rulings. In the light of its recent
decision in G.R. No. 86565 (Ramon L. Labo, Jr. vs. The
Commission on Elections, et al.) I see no valid justification for
holding Mr. Labo an alien upper Philippine law while holding
private respondent herein a Filipino citizen. For, as the majority
states: "In fact, in a number of sworn statements, Labo
categorically declared that he was a citizen of Australia" (p. 7,
Decision). And is exactly what private respondent did. In a
number of sworn statements, he declared that he was a citizen
of the United States.
To Mr. Labo, the Court said, "so be it, you are an Australian,"
yet to the private respondent, despite such sworn statements
that he is a U.S. citizen, the Court says, "never mind those
sworn statements, you are still a Filipino." Sauce for the goose,
as the saying goes, is sauce for the gander. The doctrinal basis
of the Court's decisions should be built on the merits, not on
distinctions that really make no difference.
ACCORDINGLY, I vote to GRANT the petition and to declare
the private respondent not a Filipino citizen by his own acts of
express renunciation of such citizenship.
GUTIERREZ, JR., J., dissenting:
My stand in the cases of Willie Yu vs. Miriam Defensor
Santiago, et al. (G.R. No, 83882, January 24, 1989)
and Ramon Labo, Jr, v. Commission on Elections (G.R. 86564,
August 2, 1989) is clear. I regret, however, that I cannot
participate in this case because one of the principal counsel is
my relative by affinity, within the fourth civil degree.
 
 
Separate Opinions
 
SARMIENTO, J., concurring:
The majority seems agreed that the private respondent has
acquired American citizenship, offly that he did not necessarily
lose his Filipino citizenship. The important question, however,
inheres in how he obtained American citizenship. I find that
there is a dearth of facts here.
For, if the private respondent became an American by
naturalization, he has lost Filipino citizenship (Com. Act No. 63;
Frivaldo v. COMELEC, G.R. No. 87193, June 21, 1989; Labo v.
COMELEC, G.R. No. 86564, August 1, 1989). If he, however,
became one by the application of the principle of jus soli it is by
force of circumstances rather than choice. But he does not lose
his Filipino citizenship, if he were otherwise born of Filipino
parents.
In the absence of evidence, we can not presume that he had
ceased to be a citizen of the Philippines, simply because he is,
at the same time. a citizen of the United States. There must be
a clear showing that he lost his Filipino citizenship by any of the
means enumerated by Commonwealth Act No. 63. The fact
that he had obtained an alien certificate of registration,
standing alone, does not amount to "express renunciation."
 
MELENCIO-HERRERA, J., dissenting:
I join the dissent of Messrs. Justices Isagani A. Cruz and
Teodoro R. Padilla.
While it may be that dual citizenship usually results from
accident of birth, a choice will have to be made by the
individual concerned at some point in time in his life, involving
as it does the priceless heritage of citizenship.
That election was made by private respondent when, in 1958,
at the age of 24, and in 1979, at 45, he obtained Alien
Certificates of Registration. Registration as an alien is a clear
and unambiguous act or declaration that one is not a citizen. If,
in fact, private respondent was merely compelled to so register
because of the "uncooperativeness" of the past regime, he
could have, under the new dispensation, asked for the
cancellation of those Alien Certificates and abandoned his
alienage, specially before he ran for public office in 1988.
The 1987 Constitution declares in no uncertain terms that "dual
allegiance of citizens is inimical to the national interest and
shall be dealt with by law" (Article IV, Section 5). That
statement is but a reaffirmation of an innate conviction shared
by every Filipino. The law referred to need not be awaited for
one to consider giving up the legal convenience of dual
citizenship.
Accordingly, I vote to grant the Petition.
 
CRUZ, J., dissenting:
I join Mr. Justice Padilla in his dissent.
It seems to me that when a person voluntarily registers as an
alien, he is in effect affirming that he is not a citizen. The terms
"citizen" and "alien" are mutually exclusive from the viewpoint
of municipal law, which is what really matters in the case at
bar. Under this discipline, one is either a citizen of the local
state or he is not; and the question is resolved on the basis of
its own laws alone and not those of any other state.
One of the several modes of losing Philippine citizenship under
C.A. No. 63 is by "express renunciation" thereof. In the case
of Frivaldo v. Commission on Elections, G.R. No. 87193, June
23,1989, there was such renunciation when the petitioner took
an oath as a naturalized citizen of the United States in which
he renounced all allegiance to all other states. In the case
of Labo v. Commission on Elections, G.R. No. 86546, August
1, 1989, the petitioner not only took a similar oath after his
naturalization in Australia but also executed other documents in
which he stated that he was not a Filipino.
The fact that his naturalization was later revoked did not also
invalidate his disavowal of Philippine citizenship. "Express
renunciation" is a separate mode of losing Philippine
citizenship and is not necessarily dependent on "naturalization
in a foreign country," which is another and different mode.
When a person rejects and divorces his wife to enter into a
second marriage, he cannot say he still loves her despite his
desertion. The undeniable fact is that he has left her for
another woman to whom he has totally and solemnly
transferred his troth. It does him no credit when he protests he
married a second time simply for material convenience and that
his heart still belongs to the wife he has abandoned. At worst, it
would reveal his sordid and deceitful character.
By the same token, professing continued allegiance to the
Philippines after renouncing it because of its meager
resources, or for other ulterior and equally base reasons, is to
me a paltry form of patriotism. It is a sop to the repudiated state
and a slight to the adopted state. No matter how noble this
attitude may appear to others, it is to me nothing less than plain
and simple hypocrisy that we should not condone, let alone
extol.
Coming now to the case at bar, I note first of all that no
naturalization is involved here as the private respondent claims
to be a citizen both of the Philippines and of the United States.
The question I think we must answer is: Was there an express
renunciation of Philippine citizenship by the private respondent
when he knowingly and voluntarily registered as an alien with
the Commission of Immigration and Deportation in 1958 and in
1979?
In Yu v. Commission of Immigration and Deportation, G.R. No.
83882, January 24, 1989, I made the following observations in
a separate opinion:
Regretfully, I cannot agree with the finding that the petitioner
has expressly renounced his Philippine citizenship. The
evidence on this point is in my view rather meager. Express
renunciation of citizenship as a made of losing citizenship
under Com. Act No. 63 is an unequivocal and deliberate act
with full awareness of its significance and consequences. I do
not think the "commercial documents he signed" suggest such
categorical disclaimer.
That case is distinguished from the one before us now in that
Yu did not ask the Philippine government to register him as an
alien. Gov. Osmeña did.
It is my opinion that if the governor had confined himself to
simply seeking and using an American passport, these acts
could not have by themselves alone constituted a repudiation
of Philippine citizenship. The problem, though, is that he did
more than enjoy this legal convenience. What he actually did
was register with the Philippine government as an alien within
its own territory, presumably so he could be insulated from the
jurisdiction it exercises over its nationals. This was a voluntary
act. As a citizen of the Philippines, he was not required to
register as an alien. Nevertheless, he chose to do so of his own
free will. By this decision, he categorically asked the Republic
of the Philippines to treat him as an American and not a
Filipino, choosing to be an alien in this land that was willing to
consider him its own.
C.A. No. 63 does not necessarily require that the express
renunciation of Philippine citizenship be made in connection
with the naturalization of the erstwhile Filipino in a foreign
country. Renunciation may be made independently of
naturalization proceedings. Moreover, no sacramental words
are prescribed by the statute for the express renunciation of
Philippine citizenship. As long as the repudiation is categorical
enough and the preference for the foreign state is
unmistakable, as in the case at bar, Philippine citizenship is
lost.
The private respondent would have his cake and eat it too, but
this can never be allowed where Philippine citizenship is
involved. It is a gift that must be deserved to be retained. The
Philippines for all her modest resources compared to those of
other states, is a jealous and possessive mother demanding
total love and loyalty from her children. It is bad enough that
the love of the dual national is shared with another state; what
is worse is where he formally rejects the Philippines, and in its
own territory at that, and offers his total devotion to the other
state.
I am aware of the praiseworthy efforts of Gov. Osmeña to
improve the province of Cebu, and also, I should add, of the
commendable record of Gov. Frivaldo and Mayor Labo in the
administration of their respective jurisdictions. But that is not
the point. The point is that it is not lawful to maintain in public
office any person who, although supported by the electorate, is
not a Filipino citizen. This is a relentless restriction we cannot
ignore.
Regretfully, therefore, I must vote to GRANT the petition.
PADILLA, J., dissenting:
I am constrained to dissent.
I start from the premise that the private respondent Emilio
Mario Renner Osmeña enjoyed at one time dual citizenship,
i.e,, Philippine and U.S. citizenships. He was born in the
Philippines of a Filipino father and an American (U.S.) mother.
However, his sworn application for alien registration dated 21
November 1979 (Exh. B) filed with the Philippine immigration
authorities was, in my view, an express renunciation of his
Philippine citizenship. As held in Board of Immigration
Commissioners vs. Go Callano 1 express renunciation means a
renunciation that is made known distinctly and explicitly and not
left to inference or implication.
Nothing can be more distinct and explicit than when a dual
citizenship holder-like the private respondent of age, and with
full legal capacity to act, voluntarily and under oath applies with
the Philippine Government for registration as an alien, insofar
as his intention not to remain a Filipino citizen is concerned.
And because of that distinct and explicit manifestation of desire
to be considered an alien in the Philippines, the Philippine
immigration authorities issued to private respondent Alien
Certificate of Registration No. 015356 dated 21 November
1979 (Exh. C), Permit to Re- enter the Philippines No. 122018
dated 21 November 1979 (Exh. D) and Immigration Certificate
of Clearance No. D-146483 dated 3 January 1980 (Exh E) 2
All the foregoing documents issued by the Philippine
immigration authorities to the private respondent at his request
are predicated on the proposition that private respondent is an
alien under Philippine laws. It should also be mentioned that,
while not marked as exhibit in the case at bar, private
respondent was likewise issued in Cebu City Native Born
Certificate of Residence No. 115883 on 21 November 1979 (as
verified from Immigration records). This document, copy of
which is attached hereto as Annex A, is again predicated on
the proposition that private respondent is a duly-registered
alien (American) residing in the Philippines.
Another relevant document that merits attention is the
Application for Re-entry Permit executed and signed by private
respondent on 3 January 1980, again under oath, and verified
from the records at the CID wherein private respondent
expressly stated that he is a U.S. national. The importance of
this document cannot be underestimated. For, if private
respondent believed that he is a Filipino citizen, he would not
have executed said Application for Re-entry Permit, since it is
the right of every Filipino citizen to return to his country (the
Philippines). The fact, therefore, that private respondent
executed said sworn Application for Re-entry Permit, copy of
which is attached hereto as Annex B, is again an abundant
proof that he himself, no less, believed that he was, as he
continuous to be, a resident alien (American) in the Philippines.
It will further be noted that earlier, or in 1958, private
respondent had already registered as an alien with the Bureau
of Immigration under the Alien Registration Act of 1950 RA
562). Section 1 of said Act provides:
SECTION 1. Aliens residing in the
Philippines shall, within thirty days after the
approval of this Act, apply for registration,
in the case of those residing in the City of
Manila, at the Bureau of Immigration and
in the case of those residing in other
localities at the office of the city or
municipal treasurers, or at any other office
designated by the
President. ... . 3 (Emphasis supplied)
Accordingly, per certification of the Commissioner of
Immigration and Deportation Miriam Defensor Santiago (Exh.
A), issued on 26 January 1988, private respondent had been
issued ACR No. B-21-448 and ICR No. 13391 on 27 and 28
March 1958 respectively. He, therefore, registered himself in
the Philippines as an alien twice; first, in the year 1958, when
he was 24 years old and again in 1979, when he was 45 years
old. By twice registering under oath as an alien with the Bureau
of Immigration, private respondent thereby clearly, distinctly
and explicitly manifested and declared that he was an alien
(and, therefore, not a Filipino citizen) residing in the Philippines
and under its laws.
At this point, and to be objectively fair to the private
respondent, a clarification should be made. In his Comment on
the Petition at bar (Rollo, p. 81), it is stated by his counsel that
he (private respondent) was born in 1934-hence, our
mathematical conclusion that when he first registered as an
alien in 1958, he was 24 years old and in 1979 when he re-
registered as an alien, he was 45 years old. However, private
respondent's immigration records disclose that he was born in
1938 (not in 1934). On the assumption that the year 1938 is the
correct year of birth of private respondent (and that his alleged
year of birth, 1934, as stated in his Comment at bar is
erroneous), then in 1958, when he first registered as an alien,
he was 20 years old, while in 1979 when he re-registered as an
alien, he was 41 years old.
Still, his first registration as an alien (at age 20) has to be
taken, in my view, as an express renunciation of his Philippine
citizenship, because (1) at that time, he was almost 21 years
old the age of majority, and (2) more importantly, under the
applicable Alien Registration Act RA 562), an alien 14 years or
over has to register in person (and not through his parents or
guardian). It provides:
The parent or legal guardian of an alien
who is less than fourteen years of age,
shall have the duty of registering such
alien: Provided, That whenever any such
alien attains his fourteenth birthday in the
Philippines he shall, within fifteen days
thereafter, apply in person for registration.
(Sec. 1, par. 2)
I take the above provision to mean that the choice by a dual
nationality holder on whether to remain a Filipino citizen or an
alien has to be made at age 14, and private respondent
(although a bit late) made the notice in 1958 (at age 20) in
favor of his U.S. citizenship.
If all the foregoing acts of express renunciation of Philippine
citizenship had been made or filed by private respondent
elsewhere (not with the Philippine Government), there could
perhaps be some room for contention that vis-a- vis the
Philippine Government, private respondent had not renounced
his Philippine citizenship. But said acts of express renunciation
were filed with the Philippine Government and done right in the
Philippines. In turn the Philippine Government, through the
immigration authorities, accepted and acted on private
respondent's aforesaid representations, and registered and
documented him TWICE as an alien under Philippine law.
The policy of our laws has been, and with laudable reason, to
discourage dual citizenship, because this condition or status
assumes as a necessary complement thereof dual allegiance
at the same time to two (2) different countries. As early as 16
September 1947, a unanimous Supreme Court, speaking thru
Mr. Justice Sabino Padilla in the celebrated case of Tan Chong
vs. Secretary of Labor, rejected the principle of jus soli as
determinative of Philippine citizenship, for the following reason,
among others:
... . Citizenship, the main integrate element
of which is allegiance, must not be taken
lightly. Dual allegiance must be
discouraged and prevented. But the
application of the principle jus soli to
persons born in this country of alien
parentage would encourage dual
allegiance which in the long run would be
detrimental to both countries of which such
persons might claim to be citizens. 4
This policy found later expression in the 1987 Constitution
which now provides-
Sec. 5. Dual allegiance of citizen is inimical
to the national interest and shall be dealt
with by law. (Article IV)
Dual citizenship, in my considered opinion, must be eschewed.
While having the "best of two (2) words" maybe the result of
birth or other factors accidentally brought about, the "dual
citizen" has to make a choice at one time or another. Having
two (2) citizenships is, as I see it, similar in many ways to
having two (2) legal spouses, when as a matter of principle and
sound public policy, fealty to only one (1) spouse is both
compelling and certainly desirable.
Gordon and Rosenfield in their book on Immigration Law and
Procedure state:
Dual nationality is universally recognized
as an undesirable phenomenon. It
inevitably results in questionable loyalties
and leads to international conflicts. Dual
nationality also makes possible the use of
citizenship as a badge of convenience
rather than of undivided loyalty. And it
impairs the singleness of commitment
which is the hallmark of citizenship and
allegiance. A person should have a right to
choose his own nationality, and this choice
should be honored by all countries.
However, he should not be entitled to
claim more than one
nationality. 5 (Emphasis supplied)
Private respondent made a deliberate and decisive choice
when he asked the Philippine Government which, like many
other countries, considers dual allegiance as against national
or public interest to register him at least twice (and, therefore,
unmistakably) as an alien in this country. That choice pro
tanto was a renunciation of his Philippine citizenship. The
choice must be respected as a conscious and knowledgeable
act of a discerning, distinguished and respected person who
must be presumed to have known the full import of his acts.
Finally, the last thing that should be said against the Court is
that it is inconsistent in its rulings. In the light of its recent
decision in G.R. No. 86565 (Ramon L. Labo, Jr. vs. The
Commission on Elections, et al.), I see no valid justification for
holding Mr. Labo an alien upper Philippine law while holding
private respondent herein a Filipino citizen. For, as the majority
states: "In fact, in a number of sworn statements, Labo
categorically declared that he was a citizen of Australia" (p. 7,
Decision). And is exactly what private respondent did. In a
number of sworn statements, he declared that he was a citizen
of the United States.
To Mr. Labo, the Court said, "so be it, you are an Australian,"
yet to the private respondent, despite such sworn statements
that he is a U.S. citizen, the Court says, "never mind those
sworn statements, you are still a Filipino." Sauce for the goose,
as the saying goes, is sauce for the gander The doctrinal basis
of the Court's decisions should be built on the merits, not on
distinctions that really make no difference.
ACCORDINGLY, I vote to GRANT the petition and to declare
the private respondent not a Filipino citizen by his own acts of
express renunciation of such citizenship.
 
GUTIERREZ, JR., J., separate opinion:
My stand in the cases of Willie Yu vs. Miriam Defensor
Santiago, et al. (G.R. No, 83882, January 24, 1989)
and Ramon Labo, Jr, v. Commission on Elections (G.R. 86564,
August 2, 1989) is clear. I regret, however, that I cannot
participate in this case because one of the principal counsel is
my relative by affinity, within the fourth civil degree.
 
 
Separate Opinions
SARMIENTO, J., concurring:
The majority seems agreed that the private respondent has
acquired American citizenship, offly that he did not necessarily
lose his Filipino citizenship. The important question, however,
inheres in how he obtained American citizenship. I find that
there is a dearth of facts here.
For, if the private respondent became an American by
naturalization, he has lost Filipino citizenship (Com. Act No. 63;
Frivaldo v. COMELEC, G.R. No. 87193, June 21, 1989; Labo v.
COMELEC, G.R. No. 86564, August 1, 1989). If he, however,
became one by the application of the principle of jus soli it is by
force of circumstances rather than choice. But he does not lose
his Filipino citizenship, if he were otherwise born of Filipino
parents.
In the absence of evidence, we can not presume that he had
ceased to be a citizen of the Philippines, simply because he is,
at the same time. a citizen of the United States. There must be
a clear showing that he lost his Filipino citizenship by any of the
means enumerated by Commonwealth Act No. 63. The fact
that he had obtained an alien certificate of registration,
standing alone, does not amount to "express renunciation."
MELENCIO-HERRERA, J., dissenting:
I join the dissent of Messrs. Justices Isagani A. Cruz and
Teodoro R. Padilla.
While it may be that dual citizenship usually results from
accident of birth, a choice will have to be made by the
individual concerned at some point in time in his life, involving
as it does the priceless heritage of citizenship.
That election was made by private respondent when, in 1958,
at the age of 24, and in 1979, at 45, he obtained Alien
Certificates of Registration. Registration as an alien is a clear
and unambiguous act or declaration that one is not a citizen. If,
in fact, private respondent was merely compelled to so register
because of the "uncooperativeness" of the past regime, he
could have, under the new dispensation, asked for the
cancellation of those Alien Certificates and abandoned his
alienage, specially before he ran for public office in 1988.
The 1987 Constitution declares in no uncertain terms that "dual
allegiance of citizens is inimical to the national interest and
shall be dealt with by law" (Article IV, Section 5). That
statement is but a reaffirmation of an innate conviction shared
by every Filipino. The law referred to need not be awaited for
one to consider giving up the legal convenience of dual
citizenship.
Accordingly, I vote to grant the Petition.
CRUZ, J., dissenting:
I join Mr. Justice Padilla in his dissent.
It seems to me that when a person voluntarily registers as an
alien, he is in effect affirming that he is not a citizen. The terms
"citizen" and "alien" are mutually exclusive from the viewpoint
of municipal law, which is what really matters in the case at
bar. Under this discipline, one is either a citizen of the local
state or he is not; and the question is resolved on the basis of
its own laws alone and not those of any other state.
One of the several modes of losing Philippine citizenship under
C.A. No. 63 is by "express renunciation" thereof. In the case of
Frivaldo v. Commission on Elections, G.R. No. 87193, June
23,1989, there was such renunciation when the petitioner took
an oath as a naturalized citizen of the United States in which
he renounced all allegiance to all other states. In the case of
Labo v. Commission on Elections, G.R. No. 86546, August 1,
1989, the petitioner not only took a similar oath after his
naturalization in Australia but also executed other documents in
which he stated that he was not a Filipino.
The fact that his naturalization was later revoked did not also
invalidate his disavowal of Philippine citizenship. "Express
renunciation" is a separate mode of losing Philippine
citizenship and is not necessarily dependent on "naturalization
in a foreign country," which is another and different mode.
When a person rejects and divorces his wife to enter into a
second marriage, he cannot say he still loves her despite his
desertion. The undeniable fact is that he has left her for
another woman to whom he has totally and solemnly
transferred his troth It does him no credit when he protests he
married a second time simply for material convenience and that
his heart still belongs to the wife he has abandoned. At worst, it
would reveal his sordid and deceitful character.
By the same token, professing continued allegiance to the
Philippines after renouncing it because of its meager
resources, or for other ulterior and equally base reasons, is to
me a paltry form of patriotism. It is a sop to the repudiated state
and a slight to the adopted state. No matter how noble this
attitude may appear to others, it is to me nothing less than plain
and simple hypocrisy that we should not condone, let alone
extol.
Coming now to the case at bar, I note first of all that no
naturalization is involved here as the private respondent claims
to be a citizen both of the Philippines and of the United States.
The question I think we must answer is: Was there an express
renunciation of Philippine citizenship by the private respondent
when he knowingly and voluntarily registered as an alien with
the Commission of Immigration and Deportation in 1958 and in
1979?
In Yu v. Commission of Immigration and Deportation, G.R. No.
83882, January 24, 1989, I made the following observations in
a separate opinion:
Regretfully, I cannot agree with the finding that the petitioner
has expressly renounced his Philippine citizenship. The
evidence on this point is in my view rather meager. Express
renunciation of citizenship as a made of losing citizenship
under Com. Act No. 63 is an unequivocal and deliberate act
with full awareness of its significance and consequences. I do
not think the "commercial documents he signed" suggest such
categorical disclaimer.
That case is distinguished from the one before us now in that
Yu did not ask the Philippine government to register him as an
alien. Gov. Osmeña did.
It is my opinion that if the governor had confined himself to
simply seeking and using an American passport, these acts
could not have by themselves alone constituted a repudiation
of Philippine citizenship. The problem, though, is that he did
more than enjoy this legal convenience. What he actually did
was register with the Philippine government as an alien within
its own territory, presumably so he could be insulated from the
jurisdiction it exercises over its nationals. This was a voluntary
act. As a citizen of the Philippines, he was not required to
register as an alien. Nevertheless, he chose to do so of his own
free will. By this decision, he categorically asked the Republic
of the Philippines to treat him as an American and not a
Filipino, choosing to be an alien in this land that was willing to
consider him its own.
C.A. No. 63 does not necessarily require that the express
renunciation of Philippine citizenship be made in connection
with the naturalization of the erstwhile Filipino in a foreign
country. Renunciation may be made independently of
naturalization proceedings. Moreover, no sacramental words
are prescribed by the statute for the express renunciation of
Philippine citizenship. As long as the repudiation is categorical
enough and the preference for the foreign state is
unmistakable, as in the case at bar, Philippine citizenship is
lost.
The private respondent would have his cake and eat it too, but
this can never be allowed where Philippine citizenship is
involved. It is a gift that must be deserved to be retained. The
Philippines for all her modest resources compared to those of
other states, is a jealous and possessive mother demanding
total love and loyalty from her children. It is bad enough that
the love of the dual national is shared with another state; what
is worse is where he formally rejects the Philippines, and in its
own territory at that, and offers his total devotion to the other
state.
I am aware of the praiseworthy efforts of Gov. Osmeña to
improve the province of Cebu, and also, I should add, of the
commendable record of Gov. Frivaldo and Mayor Labo in the
administration of their respective jurisdictions. But that is not
the point. The point is that it is not lawful to maintain in public
office any person who, although supported by the electorate, is
not a Filipino citizen. This is a relentless restriction we cannot
ignore.
Regretfully, therefore, I must vote to GRANT the petition.
PADILLA, J., dissenting:
I am constrained to dissent.
I start from the premise that the private respondent Emilio
Mario Renner Osmeña enjoyed at one time dual citizenship,
i.e,, Philippine and U.S. citizenships. He was born in the
Philippines of a Filipino father and an American (U.S.) mother.
However, his sworn application for alien registration dated 21
November 1979 (Exh. B) filed with the Philippine immigration
authorities was, in my view, an express renunciation of his
Philippine citizenship. As held in Board of Immigration
Commissioners vs. Go Callano 1 express renunciation means a
renunciation that is made known distinctly and explicitly and not
left to inference or implication.
Nothing can be more distinct and explicit than when a dual
citizenship holder-like the private respondent of age, and with
full legal capacity to act, voluntarily and under oath applies with
the Philippine Government for registration as an alien, insofar
as his intention not to remain a Filipino citizen is concerned.
And because of that distinct and explicit manifestation of desire
to be considered an alien in the Philippines, the Philippine
immigration authorities issued to private respondent Alien
Certificate of Registration No. 015356 dated 21 November
1979 (Exh. C), Permit to Re- enter the Philippines No. 122018
dated 21 November 1979 (Exh. D) and Immigration Certificate
of Clearance No. D-146483 dated 3 January 1980 (Exh E) 2
All the foregoing documents issued by the Philippine
immigration authorities to the private respondent at his request
are predicated on the proposition that private respondent is an
alien under Philippine laws. It should also be mentioned that,
while not marked as exhibit in the case at bar, private
respondent was likewise issued in Cebu City Native Born
Certificate of Residence No. 115883 on 21 November 1979 (as
verified from Immigration records). This document, copy of
which is attached hereto as Annex A, is again predicated on
the proposition that private respondent is a duly-registered
align (American) residing in the Philippines.
Another relevant document that merits attention is the
Application for Re-entry Permit executed and signed by private
respondent on 3 January 1980, again under oath, and verified
from the records at the CID wherein private respondent
expressly stated that he is a U.S. national. The importance of
this document cannot be underestimated For, if private
respondent believed that he is a Filipino citizen, he would not
have executed said Application for Re-entry Permit, since it is
the right of every Filipino citizen to return to his country (the
Philippines). The fact, therefore, that private respondent
executed said sworn Application for Re-entry Permit, copy of
which is attached hereto as Annex B, is again an abundant
proof that he himself, no less, believed that he was, as he
continuous to be, a resident alien (American) in the Philippines.
It will further be noted that earlier, or in 1958, private
respondent had already registered as an alien with the Bureau
of Immigration under the Alien Registration Act of 1950 RA
562). Section 1 of said Act provides:
SECTION 1. Aliens residing in the
Philippines shall, within thirty days after the
approval of this Act, apply for registration,
in the case of those residing in the City of
Manila, at the Bureau of Immigration and
in the case of those residing in other
localities at the office of the city or
municipal treasurers, or at any other office
designated by the
President. ... . 3 (Emphasis supplied)
Accordingly, per certification of the Commissioner of
Immigration and Deportation Miriam Defensor Santiago (Exh.
A), issued on 26 January 1988, private respondent had been
issued ACR No. B-21-448 and ICR No. 13391 on 27 and 28
March 1958 respectively. He, therefore, registered himself in
the Philippines as an alien twice; first, in the year 1958, when
he was 24 years old and again in 1979, when he was 45 years
old. By twice registering under oath as an alien with the Bureau
of Immigration, private respondent thereby clearly, distinctly
and explicitly manifested and declared that he was an alien
(and, therefore, not a Filipino citizen) residing in the Philippines
and under its laws.
At this point, and to be objectively fair to the private
respondent, a clarification should be made. In his Comment on
the Petition at bar (Rollo, p. 81), it is stated by his counsel that
he (private respondent) was born in 1934-hence, our
mathematical conclusion that when he first registered as an
alien in 1958, he was 24 years old and in 1979 when he re-
registered as an alien, he was 45 years old. However, private
respondent's immigration records disclose that he was born in
1938 (not in 1934). On the assumption that the year 1938 is the
correct year of birth of private respondent (and that his alleged
year of birth, 1934, as stated in his Comment at bar is
erroneous), then in 1958, when he first registered as an alien,
he was 20 years old, while in 1979 when he re-registered as an
alien, he was 41 years old.
Still, his first registration as an alien (at age 20) has to be
taken, in my view, as an express renunciation of his Philippine
citizenship, because (1) at that time, he was almost 21 years
old the age of majority, and (2) more importantly, under the
applicable Alien Registration Act RA 562), an alien 14 years or
over has to register in person (and not through his parents or
guardian). It provides:
The parent or legal guardian of an alien
who is less than fourteen years of age,
shall have the duty of registering such
alien: Provided, That whenever any such
alien attains his fourteenth birthday in the
Philippines he shall, within fifteen days
thereafter, apply in person for registration.
(Sec. 1, par. 2)
I take the above provision to mean that the choice by a dual
nationality holder on whether to remain a Filipino citizen or an
alien has to be made at age 14, and private respondent
(although a bit late) made the notice in 1958 (at age 20) in
favor of his U.S. citizenship.
If all the foregoing acts of express renunciation of Philippine
citizenship had been made or filed by private respondent
elsewhere (not with the Philippine Government), there could
perhaps be some room for contention that vis-a- vis the
Philippine Government, private respondent had not renounced
his Philippine citizenship. But said acts of express renunciation
were filed with the Philippine Government and done right in the
Philippines. In turn the Philippine Government, through the
immigration authorities, accepted and acted on private
respondent's aforesaid representations, and registered and
documented him TWICE as an alien under Philippine law.
The policy of our laws has been, and with laudable reason, to
discourage dual citizenship, because this condition or status
assumes as a necessary complement thereof dual allegiance
at the same time to two (2) different countries. As early as 16
September 1947, a unanimous Supreme Court, speaking thru
Mr. Justice Sabino Padilla in the celebrated case of Tan Chong
vs. Secretary of Labor, rejected the principle of jus soli as
determinative of Philippine citizenship, for the following reason,
among others:
... . Citizenship, the main integrate element
of which is allegiance, must not be taken
lightly. Dual allegiance must be
discouraged and prevented. But the
application of the principle jus soli to
persons born in this country of alien
parentage would encourage dual
allegiance which in the long run would be
detrimental to both countries of which such
persons might claim to be citizens. 4
This policy found later expression in the 1987 Constitution
which now provides-
Sec. 5. Dual allegiance of citizen is inimical
to the national interest and shall be dealt
with by law. (Article IV)
Dual citizenship, in my considered opinion, must be eschewed.
While having the "best of two (2) words" maybe the result of
birth or other factors accidentally brought about, the "dual
citizen" has to make a choice at one time or another. Having
two (2) citizenships is, as I see it, similar in many ways to
having two (2) legal spouses, when as a matter of principle and
sound public policy, fealty to only one (1) spouse is both
compelling and certainly desirable.
Gordon and Rosenfield in their book on Immigration Law and
Procedure state:
Dual nationality is universally recognized
as an undesirable phenomenon. It
inevitably results in questionable loyalties
and leads to international conflicts. Dual
nationality also makes possible the use of
citizenship as a badge of convenience
rather than of undivided loyalty. And it
impairs the singleness of commitment
which is the hallmark of citizenship and 1 G.R. No. L-24530, October 31, 1968, 25
allegiance. A person should have a right to SCRA 890.
choose his own nationality, and this choice
should be honored by all countries.
2 Rollo, pp. 117-118.
However, he should not be entitled to
claim more than one
nationality. 5 (Emphasis supplied) 3 46 OG 11, 5367.
Private respondent made a deliberate and decisive choice 4 79 Phil. 257.
when he asked the Philippine Government which, like many
other countries, considers dual allegiance as against national
5 Volume 4, Nationality, 1989 ed., p. 11-1
or public interest to register him at least twice (and, therefore,
2.
unmistakably) as an alien in this country. That choice pro tanto
was a renunciation of his Philippine citizenship. The choice
must be respected as a conscious and knowledgeable act of a
discerning, distinguished and respected person who must be
presumed to have known the full import of his acts.
Finally, the last thing that should be said against the Court is
that it is inconsistent in its rulings. In the light of its recent
decision in G.R. No. 86565 (Ramon L. Labo, Jr. vs. The
Commission on Elections, et al., I see no valid justification for
holding Mr. Labo an alien upper Ph. Philippine law while
holding private respondent herein a Filipino citizen. For, as the
majority states: "In fact,, in a number of sworn statements,
Labo categorically declared that he was a citizen of
Australia"(p. 7, Decision). And is exactly what private
respondent did. In a number of sworn statements, he declared
that he was a citizen of the United States.
To Mr. Labo, the Court said, "so be it, you are an Australian,"
yet to the private respondent, despite such sworn statements
that he is a U.S. citizen, the Court says, "never mind those
sworn statements, you are still a Filipino." Sauce for the goose,
as the saying goes, is sauce for the gender The doctrinal basis
of the Court's decisions should be built on the merits, not on
distinctions that really make no difference.
ACCORDINGLY, I vote to GRANT the petition and to declare
the private respondent not a Filipino citizen by his own acts of
express renunciation of such citizenship.
GUTIERREZ, JR., J., separate opinion:
My stand in the cases of Willie Yu vs. Miriam Defensor
Santiago, et al. (G.R. No, 83882, January 24, 1989)
and Ramon Labo, Jr, v. Commission on Elections (G.R. 86564,
August 2, 1989) is clear. I regret, however, that I cannot
participate in this case because one of the principal counsel is
my relative by affinity, within the fourth civil degree.
Footnotes
G.R. No. L-35947 October 20, 1992
REPUBLIC OF THE PHILIPPINES, movant-appellee,
vs.
WILLIAM LI YAO, petitioner-appellant.
ROMERO, J.:
This is an appeal from the order of the then Court of First
Instance of Manila over twenty years ago, or on July 22, 1971,
cancelling the certificate of naturalization of William Li Yao as
well as from the ordered dated December 29, 1971 denying Li
Yao's motion for reconsiderations.
William Li Yao, a Chinese national, filed a petition for
naturalization on June 3, 1949 with the then Court of First
Instance of Manila, which petition was docketed as Case No.
8225. 1
After several hearings on the petition were held wherein the
Office of the Solicitor General, in the representation of the
Republic of the Philippines appeared, the lower court rendered
a decision dated October 25, 1950, the dispositive portion of
which reads as follows:
IN VIEW OF ALL THE FOREGOING, the
Court hereby declares William Li Yao, for
all intents and purposes a naturalized
Filipino citizen, it appearing that he
possesses all the qualifications to become
a naturalized Filipino and none of the
disqualifications provided for by the law.
However, in view of the provisions of
Republic Act No. 530, this decision shall
not become final and executory until after
two (2) years from its promulgation and
after this Court, on proper hearing, with the
attendance of the Solicitor General or his
representative, is satisfied, and so finds,
that during the intervening time the
applicant herein has (1) not left the
Philippines, (2) has dedicated himself
continuously to a lawful calling or
profession, (3) has not been convicted of
any offense and violation of the
government promulgated rules, (4) or
committed any act prejudicial to the
interest of the nation or contrary to any
Government announce policies. After the
finding mentioned herein, this decision
granting Philippine citizenship to the
applicant herein shall be registered and (i) In contracting marriage, he used the name Fransisco Li Yao
the oath provided by existing law shall be (Exh. "J," p. 31, rec.) without prior judicial authority to use the
taken by said applicant, whereupon, and aforesaid first name Fransisco, the same not appearing to be
not before, he will be entitled to all the his baptismal name (Cosme Co Tian An vs. Republic, L-1983,
privileges of the Filipino citizen and the August 31, 1966).
certificate of naturalization shall forthwith
issue in his favor by the Clerk of this
(ii) He was also known and had used the name and/or alias
Court. 2
LI CHAY TOO, JR. before the last World War, and under
which name, a trust fund was created for him (see Decision,
On November 20, 1952, acting on the petition of William Li Yao Court of Tax Appeals, CTA Case No. 30, dated July 31,
praying for the execution of the foregoing decision and that he 1956; also Decision, Supreme Court, G.R. No. L-11861,
be allowed to take his oath of allegiance as a Filipino citizen, Dec. 28, 1963).
the lower court issued an order, the dispositive portion of which
reads as follows:
(iii) He evaded the payment of lawful taxes due to the
government by underdeclaration of income as reflected in
WHEREFORE, it appearing that the his income tax returns for the years 1946-1951
petitioner has complied, within the two year (see Decision, Supreme Court, William Li Yao v. Collector of
probation period, with the provisions of Internal Revenue, L-11875, December 28, 1963).
Republic Act No. 530, he is hereby allowed
to take his oath of allegiance as a Filipino
(iv) He committed violations of the Constitution and Anti-
citizen, and Clerk of Court is directed to
Dummy laws prohibiting aliens from acquiring real properties
issue in his favor to the corresponding
by employing dummies in the formation of a private domestic
certificate of naturalization. 3
corporation, which acquired the real properties.
About fifteen years later, or on January 5, 1968, the Republic of
(v) He made it appear, falsely, in the baptismal certificate of
the Philippines, through the Solicitor General, filed a motion to
an illegitimate son he fathered, named William Jose Antonio,
cancel William Li Yao's certificate of naturalization on the
that the latter's mother is Juanita Tan Ho Ti, his law-mother
ground that it was fraudulently and illegally obtained for the
is another woman (sic). 4
following reasons:
William Li Yao opposed the forgoing motion on July 22, 1971.
1. At the time of the filing of the petition,
The lower court, however, without touching on all the grounds
the applicant was not qualified to acquire
upon which the said motion was based, relied solely on ground
Filipino citizenship by naturalization
(iii) that William Li Yao evaded the payment of lawful taxes due
because:
the government by underdeclaration of income as reflected in
his income tax returns for the years 1946-1951. It issued an
a. He was not a order, the dispositive portion of which reads as follows:
person of good moral
character, having had
WHEREFORE, the motion of the Republic
illicit amorous
of the Philippines to cancel Certificate of
relationship (sic) with
Naturalization No. 1139 dated November
several women other
20, 1952 issued to the petitioner is hereby
than his lawfully
granted, and the said Certificate of
wedded wife, by whom
Naturalization should be, as it is hereby
he fathered illegitimate
cancelled. Without pronouncement as to
children (Li Siu Liat vs.
cost. 5
Republic, L-25356,
November 25, 1967).
William Li Yao filed a motion for reconsideration on December
29, 1971, which the lower court denied. 6
b. Nor had he
conducted himself in
an irreproachable On January 7, 1972, William LI Yao filed a notice of appeal to
manner in his dealings this Court, manifesting that he was appealing from the order of
with the duly the lower court dated July 22, 1971, and from the order dated
constituted authorities: December 29, 1971. 7
After the parties had filed their respective briefs, petitioner-
appellant Li Yao died. 8 The case has not, however, become
moot and academic since its disposition, either way, will have
grave implications for the late petitioner-appellant's wife and
children.
The issue in this case is whether or not the cancellation of the
certificate of naturalization of the deceased petitioner-appellant
William Li Yao made by the government through the Office of
the Solicitor General is valid.
The appeal is without merit.
In his motion filed on January 5, 1968, the Solicitor General
asked for the cancellation of the naturalization certificate of
appellant on the ground that it was "fraudelently and illegally
obtained." This based on Section 18(a) of Com. Act No. 473,
known as the Revised Naturalization Act, which provides that a
naturalization certificate may be cancelled "[i]f it is shown that
said naturalization certificate was obtained fraudelently and
illegally."
It is indisputable that a certificate of naturalization may be
cancelled if it is subsequently discovered that the applicant
therefore obtained it by misleading the court upon any material
fact. 9 Law and jurisprudence even authorize the cancellation
of a certificate of naturalization upon grounds had conditions
arising subsequent to the granting of the
certificate. 10 Moreover, a naturalization proceeding is not a
judicial adversary proceeding, the decision rendered therein,
not constituting res judicata as to any matter that would support
a judgment cancelling a certificate of naturalization on the
ground of illegal or fraudulent procurement thereof. 11
In ordering the cancellation of the naturalization certificate
previously issued to appellant, the lower court sustained the
government's motion for cancellation on the sole finding that Li
Yao had committed underdeclaration of income and
underpayment of income tax.
In the case entitled In the Matter of the Petition for
Naturalization as Citizen of the Philippines, Lim Eng Yu
vs. Republic, 12 It was held that the concealment of applicant's
income to evade payment of lawful taxes shows that his moral
character is not irreproachable, thus disqualifying him for
naturalization.
Assuming arguendo, that appellant, as alleged, has fully paid
or settled his tax liability under P.D. No. 68 which granted a tax
amnesty, such payment is not a sufficient ground for lifting the
order of the lower court of July 22, 1971 cancelling his
certificate of naturalization. The legal effect of payment under
the decree is merely the removal of any civil, criminal or
administrative liability on the part of the taxpayer, only insofar
as his tax case is concerned. Thus, paragraph 4 of the decree 1 Record on Appeal, pp. 1-5.
provides;
2 Ibid, pp. 16-17.
4. That after full settlement of the accounts
mentioned herein, the taxpayer shall be
3 Ibid, p. 18.
free of any civil, criminal or administrative
liability insofar as his tax case is
involved (Emphasis supplied) 4 Ibid, pp. 20-21.
In other words, the tax amnesty does not have the 5 Ibid., p. 86.
effect of obliterating his lack of good moral character
and irreproachable conduct which are grounds for
6 Ibid, p. 250.
denaturalization.
7 Ibid, p. 250.
The lower court based its order of cancellation of citizenship on
the finding of evasion of payment of lawful taxes which is
sufficient ground, under Sec. 2 of the Revised Naturalization 8 Rollo, pp. 229-233.
Law requiring, among others, that applicant conduct himself "in
a proper and irreproachable manner during the entire period of
his residence in the Philippines in his relation with constituted 9 Republic vs. Lee Bon Ui, G.R. No. L-
government as well as with the community in which he is 33504, September 28, 1984, 132 SCRA
living," 13 to strip him of his citizenship without going into the 181; Bell vs. Attorney-General, 56 Phil.
other grounds for cancellation presented by the Solicitor 667 (1932).
General.
10 Pars. (b), (d) and (e) of Sec. 18 of Com.
Finally, taking into account the fact that naturalization laws Act 473; Republic v. Go Bon Lee, G.R. No.
should be rigidly enforced in favor of the Government and L-11499, April 29, 1961, 1 SCRA 1166.
against the applicant, this Court has repeatedly maintained the
view that where the applicant failed to meet the qualifications 11 Republic vs. Lee Bon Ui, supra;
required for naturalization, the latter is not entitled to Filipino Republic vs. Go Bon Lee, supra.
citizenship. 14 More specifically, the Court has had occasion to
state: "Admission to citizenship is one of the highest privileges
that the Republic of the Philippines can confer upon an alien. It 12 L-20809, August 21, 1966, 17 SCRA
is a privilege that should not be conferred except upon persons 1058.
fully qualified for it, and upon strict compliance with the
law." 15 Philippine citizenship is a pearl of great price which 13 Lim Cho Kuan vs. Republic, L-21198,
should be cherished and not taken for granted. Once acquired, January 22, 1966, 16 SCRA 25; Emphasis
its sheen must be burnished and not stained by any supplied.
wrongdoing which could constitute ample ground for divesting
one of said citizenship. Hence, compliance with all the
requirements of the law must be proved to the satisfaction of 14 Sy Ang Hoc vs. Republic, L-12400,
the Court. 16 March 29, 1961, 1 SCRA 886.
15 Yap vs. Republic, L-19832, August 23,
WHEREFORE, the instant appeal is hereby DISMISSED and
1966, 17 SCRA 956.
the assailed decision AFFIRMED.
SO ORDERED. 16 Chua Eng Hok vs. Republic, L-20479,
October 29, 1965, 15 SCRA 170.
Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ., concur.
Footnotes
Nottebohm (Liechtenstein v. Guatemala)

Full text: https://www.icj-cij.org/en/case/18

Digest:

Brief Fact Summary. A month after the start of World War II,
Nottebohn (P), a German citizen who had lived in Guatemala (D) for
34 years, applied for Liechtenstein (P) citizenship.

Synopsis of Rule of Law. Nationality may be disregarded by other

states where it is clear that it was a mere device since the nationality
conferred on a party is normally only the concerns of that nation

Facts. Nottebohn (P), a German by birth, lived in Guatemala (D) for

34 years, retaining his German citizenship and family and business
ties with it. He however applied for Liechtenstein (P) citizenship a
month after the outbreak of World War II. Nottebohm (P) had no ties
with Liechtenstein but intended to remain in Guatemala. The
naturalization application was approved by Liechtenstein and
impliedly waived its three-year. After this approval, Nottebohm (P)
travelled to Liechtenstein and upon his return to Guatemala (D), he
was refused entry because he was deemed to be a German citizen. His
Liechtenstein citizenship was not honored.  Liechtenstein (P) thereby
filed a suit before the International Court to compel Guatemala (D) to
recognize him as one of its national. Guatemala (D) challenged the
validity of Nottebohm’s (P) citizenship, the right of Liechtenstein (P)
to bring the action and alleged its belief that Nottebohm (P) remained
a German national.

Issue. Must nationality be disregarded by other states where it is clear

that it was a mere device since the nationality conferred on a party is
normally the concerns of that nation?

Held. NO. issues relating to citizenship are solely the concern of the

granting nation. This is the general rule. But it does not mean that
other states will automatically accept the conferring state’s
designation unless it has acted in conformity with the general aim of
forging a genuine bond between it and its national aim. In this case,
there was no relationship between Liechtenstein (P) and Nottebohm
(P). the change of nationality was merely a subterfuge mandated by
the war. Under this circumstance, Guatemala (D) was not forced to
recognize it. Dismissed.

Discussion. A state putting forth a claim must establish a locus standi

for that purpose. Without interruption and continuously from the time
of the injury to the making of an award been a national of the state
making the claim and must not have been a national of the state
against whom the claim has been filed. International law 347 (8th Ed.
1955) Vol.1.
G.R. No. L-27429             August 27, 1969
IN THE MATTER OF THE PETITION FOR ADMISSION AS
CITIZEN OF THE PHILIPPINES.
OH HEK HOW, petitioner appellee,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellant.
Eliezer M. Echavez for petitioner-appellee.
Office of the Solicitor General Antonio P. Barredo, Assistant
Solicitor General Felicisimo R. Rosete and Solicitor Santiago
M. Kapunan for oppositor-appellant.
CONCEPCION, C.J.:
A decision granting his petition for naturalization as citizen of
the Philippines having been rendered on January 16, 1964,
petitioner Oh Hek How filed, on January 17, 1966, a motion
alleging that he had complied with the requirements of
Republic Act No. 530 and praying that he be allowed to take
his oath of allegiance as such citizen and issued the
corresponding certificate of naturalization. Upon petitioner's
testimony, taken on February 9, 1966, the date set for the
hearing of said motion, the Court of First Instance of
Zamboanga del Norte issued forthwith an order authorizing the
taking of said oath. On that same date, petitioner took it and
the certificate of naturalization was issued to him.
The Government seasonably gave notice of its intention to
appeal from said order of February 9, 1966 and filed its record
on appeal. Before the same was approved, it also moved to
cancel petitioner's certificate of naturalization, upon the ground,
among others, that it was issued and the oath taken before
said order of February 9, 1966, had become final and
executory. Acting upon this motion and petitioner's opposition
thereto, the court issued, on October 3, 1966, an order granting
the motion, but, at the same time, authorizing the taking of a
new oath by the petitioner and the issuance in his favor of
another certificate of naturalization, after thirty (30) days from
notice to the Solicitor General. Thereafter, or on November 26,
1966, the court approved the record on appeal and, once more,
authorized the petitioner to "take a new or proper oath to
validate the first one made on February 9, 1966." The case is
now before us on said record on appeal filed by the
Government.
At the outset, it is obvious that the oath of allegiance taken by
petitioner on November 28, 1966, and the certificate of
naturalization issued to him in pursuance thereof, as well as
the authority given therefor by the lower court, are null and
void. Indeed, the order of February 9, had not — and up to the
present has not — become final and executory in view of the
appeal duly taken by the Government. What is more,
petitioner's second oath was taken, not only after the filing of
the notice of appeal 1 and the submission of the record on
appeal, but also after the approval thereof. In other words, the
lower court had already lost its jurisdiction over the case. 2
Again, petitioner's net income in 1960 and 1961 was P3,945.65
and P5,105.79, respectively, or from about P330 to P425 a
month. His income tax return for 1962, filed subsequently to the
institution of this case, showed a net income of P6,485.50 for
that year, or about P540 a month. Considering that petitioner
has a wife and three (3) children, one of them of school age, at
the time of the filing of his application for naturalization, his
aforementioned income is not a lucrative one. Indeed, it has
been held that the following incomes are not lucrative, from the
viewpoint of our naturalization laws, namely: (1) P4,200 3 or
P5,000 a year 4 for one married, with five (5) children; 5 (2)
P6,000 a year for one married, with two (2) minor
children; 5 and (3) P6,000 6 or P6,300 a year 7 for one married,
with only one (1) child.
Lastly, it is conceded that petitioner has not required from the
Minister of the Interior of Nationalist China the permission
required by the laws thereof for a valid renunciation of his
Chinese citizenship. In Go A. Leng v. Republic, 8 a decision
granting the application for naturalization of a Chinese national
was reversed by this Court, upon the ground, among others, of
"his failure to secure" the aforementioned permission.
It is argued that the same is not required by our laws and that
the naturalization of an alien, as a citizen of the Philippines, is
governed exclusively by such laws and cannot be controlled by
any foreign law. Section 12 of Commonwealth Act No. 473
provides, however, that before the naturalization certificate is
issued, the petitioner shall "solemnly swear," inter alia, that he
renounces "absolutely and forever all allegiance and fidelity to
any foreign prince, potentate" and particularly to the state "of
which" he is "a subject or citizen." The obvious purpose of this
requirement is to divest him of his former nationality, before
acquiring Philippine citizenship, because, otherwise, he would
have two nationalities and owe allegiance to two (2) distinct
sovereignties, which our laws do not permit, except that,
pursuant to Republic Act No. 2639, "the acquisition of
citizenship by a natural-born Filipino citizen from one of the
Iberian and any friendly democratic Ibero-American countries
shall not produce loss or forfeiture of his Philippine citizenship,
if the law of that country grants the same privilege to its citizens
and such had been agreed upon by treaty between the
Philippines and the foreign country from which citizenship is
acquired." The question of how a Chinese citizen may strip
himself of that status is necessarily governed — pursuant to
Articles 15 and 16 of our Civil Code — by the laws of China,
not by those of the Philippines. 9 As a consequence, a Chinese
national cannot be naturalized as a citizen of the Philippines,
unless he has complied with the laws of Nationalist China
requiring previous permission of its Minister of the Interior for
the renunciation of nationality.
The view to the contrary, adhered to in Parado v.
Republic, 10 Chausintek v. Republic, 11 and Lim So v.
Republic 12 has been superseded by our ruling in the
subsequent case of Go A. Leng v. Republic 13 which we hereby
reiterate.
WHEREFORE, the order appealed from is reversed, and the
oath of allegiance taken, on November 28, 1966, by petitioner
Oh Hek How, as well as the certificate of naturalization issued
in pursuance thereto, are hereby declared null and void, with
costs against said petitioner, who is, moreover, directed to
surrender the aforementioned certificate of naturalization to the
Clerk of the Court of First Instance of Zamboanga del Norte,
within ten (10) days after this decision shall have become final.
It is so ordered.
Dizon, Makalintal, Sanchez and Capistrano, JJ., concur.
Castro, Fernando and Teehankee, JJ., concur in the result.
Barredo, J., took no part.
Reyes, J.B.L., and Zaldivar, JJ., are on leave.
Footnotes
1
Qua v. Republic, L-21418, Dec. 31, 1965; Jose
Syson v. Republic, L-21199, May 29, 1967; Republic
v. Santos, L-23919, July 29, 1968.
2
Kwan Kwock How v. Republic, L-18521, Jan. 30,
1964; Tio Tek Chai v. Republic, L-19112, Oct. 30,
1964; Lee v. Republic, L-20148, April 30, 1965;
Cheng v. Republic, L-20013, March 30, 1965; Lee
Ng Len v. Republic, L-20151, March 31, 1965; Tan
Huy Liong v. Republic, L-21671, Feb. 28, 1966; Ong
Kim Kong v. Republic, L-20505, Feb. 28, 1966; Co
Im Ty v. Republic, L-17919, July 30, 1966; Lim Eng
Yu v. Republic, L-20809, Aug. 31, 1966; Yong Sai v.
Republic, L-20483, Sept. 30, 1966; Dy Bu Si v.
Republic, L-22076, Oct. 29, 1966; Syson v. Republic,
L-21199, May 29, 1967; Go Yanko v. Republic, L-
21542, Aug. 10, 1967; Cu King Nan v. Republic, L-
20490, June 29, 1968; Republic v. Santos, L-23919,
July 29, 1968; Leon Te Poot v. Republic, L-20017,
March 28, 1969.
3
Uy v. Republic, L-19578, October 27, 1964.
4
Tio Tek Chai v. Republic, L-19112, October 30,
1964.
5
Ng v. Republic, L-21179, January 22, 1966.
6
Chua Lian Yan v. Republic, L-26416, April 25, 1969.
7
Tan v. Republic, L-16013, March 30, 1963.

8
L-19836, June 21, 1965.

9
Yañes de Barnuevo v. Fuster, 29 Phil. 606; Babcock
Templeton v. Babcock, 52 Phil. 130; Gonzalez v.
Gonzalez, 58 Phil. 67; Sikat v. Canson, 67 Phil. 207;
Arca v. Javier, 95 Phil. 579, 584-585; Vivo v.
Cloribel, L-25411, Oct. 26, 1968.

10
86 Phil. 340.

11
89 Phil. 4.

12
89 Phil. 74.

13
Supra.
G.R. No. L-1812             August 27, 1948
EREMES KOOKOORITCHKIN, petitioner,
vs.
THE SOLICITOR GENERAL, oppositor.
First Assistant Solicitor General Roberto A. Gianzon and
Solicitor Florencio Villamor for appellant.
L. D. Lockwood and Manuel O. Chan for appellee.
PERFECTO, J.:
In August, 1941, appellee filed with the lower court a petition
for naturalization, accompanied with supporting affidavits of two
citizens, copy of a declaration of intention sworn in July, 1940,
and proper notice of the hearing. The petition was finally set for
hearing on December 18, 1941, but it was held on that date
because the province was invaded by the Japanese forces on
December 14, and the case remained pending until the records
were destroyed during the military operations for liberation in
March, 1945. The case was declared reconstituted on May 10,
1947, and the evidence was presented on August 28 and
September 30, 1947. On the same day resolution was issued
granting the petition.
Although appellant was represented at the hearing and cross-
examined the witnesses for the petitioner, he did not file an
opposition or presented any evidence.
The lower court made the findings of fact in the following
paragraphs of its resolution:
Eremes Kookooritchkin applies for Philippine
citizenship naturalization under the provisions of
Commonwealth Act 473, as amended by Act 535.
The records shows that in August, 1941, he filed his
petition for naturalization supported by the affidavits
of ex-Judge Jaime M. Reyes and Dr. Salvador
Mariano, both residents of Camarines Sur. In the
preceding year, in July, 1940 to be precise, he filed
his declaration of intention to become a citizen of this
country. Notice of the hearing was published as
required by law.
It was established at the hearing that the petitioner is
a native-born Russian, having first seen the light of
day on November 4, 1897 in the old City of St.
Petersburg, Russia. He grew up as a citizen of the
defunct Imperial Russian Government under the
Czars. World War I found him in the military service
of this Government. In 1915 he volunteered for the
Imperial Russian navy and was sent to the Navy Russian-born during the years preceding the
Aviation School. He fought with the Allies in the declaration of war by Russia against Japan, the
Baltic Sea, was later transferred to the eastern front applicant of his own volition chose to cast his lot with
in Poland, and much later was sent as a navy flier to the guerrilla movement and fought the enemy in
Asia Minor. In the latter part of the war, but before several encounters in the Province of Camarines
the Russian capitulation, he was transferred to the Sur. He belonged to the guerrilla outfit of Colonel
British Air Force under which he served for fourteen Padua with rank of major. Upon the arrival of the
months. When the revolution broke out in Russia in forces of liberation he was attached to the American
1917, he joined the White Russian Army at Army from April to June, 1945.
Vladivostok and fought against the Bolsheviks until
1922 when the White Russian Army was
Although a Russian by birth he is not a citizen of
overwhelmed by the Bolsheviks. As he refused to
Soviet Russia. He disclaims allegiance to the present
join the Bolshevik regime, he fled by sea from
Communist Government of Russia. He is, therefore,
Vladivostok to Shanghai and from this Chinese port
a stateless refugee in this country, belonging to no
he found his way to Manila, arriving at this port as a
State, much less to the present Government of the
member of a group of White Russians under Admiral
land of his birth to which he is uncompromisingly
Stark in March, 1923. He stayed in Manila for about
opposed. He is not against organized government or
seven months, then moved to Olongapo, Zambales,
affiliated with any association which upholds and
where he resided for about a year, and from this
teaches doctrine opposing all organized
place he went to Iriga, Camarines Sur, where he
governments. He does not believe in the necessity or
established his permanent residence since May,
propriety of violence, personal assault or
1925. He has remained a resident of this
assassination for the success or predominance of his
municipality, except for a brief period from 1942 to
ideas. Neither is he a polygamist or a believer in the
July, 1945, when by reason of his underground
practice of polygamy. He is not suffering from any
activities he roamed mountains of Caramoan as a
mental alienation or incurable contagious disease.
guerrilla officer. After liberation he returned to Iriga
where again he resides up to the present time.
Appellant assigns four errors in the appealed resolution. We
will consider them separately.
The applicant is married to a Filipino by the name of
Concepcion Segovia, with whom he has one son
named Ronald Kookooritchkin. He is at present I
studying in Saint Agnes Academy, at Legaspi, Albay,
a school duly recognized by the Government.
Appellant claims that the lower court erred in not finding that
the declaration of intention to become a Filipino citizen filed by
The applicant is shop superintendent of A. L. Ammen appellee is invalid and insufficient as a basis for the petition of
Transportation Company, with about eighty Filipino naturalization. The question calls for the application of the
employees working under him. He receives an following provision of section 5 of the Revised Naturalization
annual salary of P13,200 with free quarters and Law:
house allowance. He also owns stocks and bonds of
this and other companies.
No declaration shall be valid until entry for
permanent residence has been established and a
The applicant speaks and writes English and the certificate showing the date, place and manner of his
Bicol dialect. Socially he intermingles with the arrival has been issued.
Filipinos, attending parties, dances and other social
functions with his wife. He has a good moral
Appellant alleges that no documentary or testimonial evidence
character and believes in the principles underlying
was introduced to establish the fact that appellee had lawfully
the Philippine Constitution. He has never been
been admitted into the Philippines for permanent residence.
accused of any crime. On the other hand, he has
always conducted himself in a proper and
irreproachable manner during his entire period of In the reconstituted declaration (page 11, record on appeal) the
residence in Camarines Sur, in his relations with the following can be read:
constituted authorities as well as with the community.
I arrived at the Port of Manila on or about the first
Although he could have lived in ease by maintaining day of March, 1923, as shown by the attached
good relations with the enemy by reason of his being
 certificate of arrival or landing certificate of
residence.
The records of the Bureau of Justice, where the declarations of
intention to become a Filipino citizen were filed, had been lost
or destroyed during the battle for the liberation of Manila, and
the certificate alluded to has not been reconstituted.
Appellant's contention that attachment of the certificate of
arrival is essential to the validity of a declaration finds no
support in the wordings of the law, as the above-quoted section
5 of Commonwealth Act no. 473 uses the words "has been
issued.
Appellee suggests that we would not consider the question
here raised by appellant, the latter having failed to raise it in
lower court and points out that there is testimonial evidence
showing appellee's arrival March, 1923, and that he was
lawfully admitted for permanent residence, and the testimony of
petitioner has not been refuted. Appellee's alleges that the
office of the President has certified that it is a matter of record
that petitioner was one of the Russian refugees who entered
the Philippines under the command of Admiral Stark, the facts
regarding arrival of the latter fleet being a matter of common
knowledge, widely publicized in the newspapers at the time, of
which this Court may properly take judicial notice under section
5 of Rule 123. When the fleet entered the Philippine waters, it
was met by a Governor General Wood who, later, took the
matter up with the authorities in Washington in lengthy
correspondence, and the 1,200 persons manning the fleet were
allowed to land and to remain in the Philippines or proceed to
other countries, except about 800 who were allowed to go to
the United States and given free transportation on the naval
transport "Merritt." The ships of the fleet were sold in the
Philippines.
The undisputed fact that the petitioner has been continuously
residing in the Philippines for about 25 years, without having
been molested by the authorities, who are presumed to have
been regularly performing their duties and would have arrested
petitioner if his residence is illegal, as rightly contended by
appellee, can be taken as evidence that he is enjoying
permanent residence legally. That a certificate of arrival has
been issued is a fact that should be accepted upon the
petitioner's undisputed statement in his declaration of July,
1940, that the certificate cannot be supposed that the receiving
official would have accepted the declaration without the
certificate mentioned therein as attached thereto.
We conclude that petitioner's declaration is valid under section
5 of the Naturalization Law, failure to reconstitute the certificate
of arrival notwithstanding. What an unreconstituted document
intended to prove may be shown by other competent evidence.
II
The second assignment of error touches upon two questions,
that the lower court erred (1) in not finding that appellee has
not established a legal residence in the Philippines, and (2) in
not finding that he cannot speak and write any of the principal
Philippine languages.
The first question has already been disposed of in the above
discussion. Perusal of the testimonies on record leads to the
conclusion that petitioner has shown legal residence in the
Philippines for a continuous period of not less than ten years as
required by section 2 of Commonwealth Act No. 473.
As to the next question, appellant alleges that in the oral test at
the hearing, it was demonstrated that petitioner has only a
smattering of Bicol, the Filipino language that petitioner alleges
to know, and he cannot speak it as he was not able to translate
from English to Bicol questions asked by the court and the
provincial fiscal, although, in the continuation of the hearing on
September 30, 1947, "surprisingly enough, he succeeded
answering correctly in Bicol the questions propounded by his
counsel, however, he fumbled and failed to give the translation
of such a common word as 'love' which the fiscal asked of him.
The lower court made the finding of fact that applicant speaks
and writes English and Bicol and there seems to be no
question about the competency of the judge who made the
pronouncement, because he has shown by the appealed
resolution and by his questions propounded to appellee, that
he has command of both English and Bicol.
The law has not set a specific standard of the principal
Philippine languages. A great number of standards can be set.
There are experts in English who say that Shakespeare has
used in his works 15,000 different English words, and the
King's Bible about 10,000, while about 5,000 are used by the
better educated persons and about 3,000 by the average
individual. While there may be persons ambitious enough to
have a command of the about 600,000 words recorded in the
Webster's International Dictionary, there are authorities who
would reduce basic English to a few hundred words. Perhaps
less than one hundred well selected words will be enough for
the ordinary purposes of daily life.
There is a reason to believe that the lower court's
pronouncement is well taken considering the fact that, after he
was liberated in 1942 from the Japanese in the Naga prison,
petitioner joined the guerrilla in the Bicol region, took part in
encounters and skirmishes against the Japanese, and
remained with the guerrilla until the Americans liberated the
Bicol provinces. If appellee with his smattering of Bicol was
able to get along with his Bicol comrades in the hazardous life
of the resistance movement, we believe that his knowledge of
the language satisfies the requirement of the law.
But appellant contends that there is no piece of positive
evidence to support petitioner's allegation that he can write too
in the Bicol language. There, is, however, on record
circumstantial evidence from which it can be concluded that
petitioner ought to know also how to write Bicol. We know that
Bicol, as all the important Philippine languages, uses the same
alphabet used in English, and it is much easier to write Bicol
than English, because it is phonetic. Vowels and consonants
have in them single and not interchangeable phonetic values,
while English words deviate very often from the basic sounds
of the alphabet. The ability to write cannot be denied to a
person like petitioner, who has undergone the exacting
technical training to be able to render services as flier in the
Russian Naval Squadron in the Baltic Sea and in the British Air
Forces during the first World War. The difference between the
Cyrillic alphabet, as now used by Russians, and our Roman
alphabet, cannot weigh much to deny petitioner the ability to
use the latter. A person who has shown the command of
English which can be seen in his testimony on record can
easily make use of an alphabet of twenty or more letters
universally used in this country where he has been residing
continuously for 25 years.
III
Appellant contends that the lower court erred in finding
appellee stateless and not a Russian citizen and in not finding
that he has failed to establish that he is not disqualified for
Philippine citizenship under section 4 (h) of the Revised
Naturalization Law.
It is contended that petitioner failed to show that under the laws
of Russia, appellee has lost his Russian citizenship and failed
to show that Russia grants to Filipinos the right to become a
naturalized citizens or subjects thereof. The controversy
centers on the question as to whether petitioner is a Russian
citizen or is stateless.
Petitioner testified categorically that he is not a Russian citizen
and that he has no citizenship. His testimony supports the
lower court's pronouncement that petitioner is a stateless
refugee in this country.
Appellant points out that petitioner stated in his petition for
naturalization that he is citizen or subject of the Empire of
Russia, but the Empire of Russia has ceased to exist since the
Czars were overthrown in 1917 by the Bolshevists, and the
petitioner disclaims allegiance or connection with the Soviet
Government established after the overthrow of the Czarist
Government.
We do not believe that the lower court erred in pronouncing
appellee stateless. Appellee's testimony, besides being
uncontradicted, is supported by the well-known fact that the
ruthlessness of modern dictatorship has scattered throughout
the world a large number of stateless refugees or displaced
persons, without country and without flag. The tyrannical
intolerance of said dictatorships toward all opposition induced
them to resort to beastly oppression, concentration camps and
blood purges, and it is only natural that the not-so-fortunate
ones who were able to escape to foreign countries should feel
the loss of all bonds of attachment to the hells which were
formerly their fatherland's. Petitioner belongs to that group of
stateless refugees.

Knowing, as all cultured persons all over the world ought to

know, the history, nature and character of the Soviet
dictatorship, presently the greatest menace to humanity and
civilization, it would be technically fastidious to require further
evidence of petitioner's claim that he is stateless than his
testimony that he owes no allegiance to the Russian
Communist Government and, is because he has been at war
with it, he fled from Russia to permanently reside in the
Philippines. After finding in this country economic security in a
remunerative job, establishing a family by marrying a Filipina
with whom he has a son, and enjoying for 25 years the
freedoms and blessings of our democratic way of life, and after
showing his resolution to retain the happiness he found in our
political system to the extent of refusing to claim Russian
citizenship even to secure his release from the Japanese and
of casting his lot with that of our people by joining the fortunes
and misfortunes of our guerrillas, it would be beyond
comprehension to support that the petitioner could feel any
bond of attachment to the Soviet dictatorship.

IV

The fourth and last assignment of error need not be discussed,

it being only a sequel of the other assignments and has
necessarily been disposed of in their discussion.

The appealed resolution is affirmed.

Paras, Feria, Pablo, Bengzon, Briones, Padilla and Tuason,

JJ., concur.
G.R. No. 88831 November 8, 1990
MATEO CAASI, petitioner,
vs.
THE HON. COURT OF APPEALS and MERITO C.
MIGUEL, respondents.
G.R. No. 84508 November 13, 1990
ANECITO CASCANTE petitioner,
vs.
THE COMMISSION ON ELECTIONS and MERITO C.
MIGUEL, respondents.
Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508.
Montemayor & Montemayor Law Office for private respondent.
GRIÑO-AQUINO, J.:
These two cases were consolidated because they have the
same objective; the disqualification under Section 68 of the
Omnibus Election Code of the private respondent, Merito
Miguel for the position of municipal mayor of Bolinao,
Pangasinan, to which he was elected in the local elections of
January 18, 1988, on the ground that he is a green card holder,
hence, a permanent resident of the United States of America,
not of Bolinao.
G.R. No. 84508 is a petition for review on certiorari of the
decision dated January 13, 1988 of the COMELEC First
Division, dismissing the three (3) petitions of Anecito Cascante
(SPC No. 87-551), Cederico Catabay (SPC No. 87-595) and
Josefino C. Celeste (SPC No. 87-604), for the disqualification
of Merito C. Miguel filed prior to the local elections on January
18, 1988.
G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a
petition for review of the decision dated June 21, 1989, of the
Court of Appeals in CA-G.R. SP No. 14531 dismissing the
petition for quo warranto filed by Mateo Caasi, a rival candidate
for the position of municipal mayor of Bolinao, Pangasinan,
also to disqualify Merito Miguel on account of his being a green
card holder.
In his answer to both petitions, Miguel admitted that he holds a
green card issued to him by the US Immigration Service, but he
denied that he is a permanent resident of the United States. He
allegedly obtained the green card for convenience in order that
he may freely enter the United States for his periodic medical ... it is pointless for the Regional Trial Court
examination and to visit his children there. He alleged that he is to hear the case questioning the
a permanent resident of Bolinao, Pangasinan, that he voted in qualification of the petitioner as resident of
all previous elections, including the plebiscite on February the Philippines, after the COMELEC has
2,1987 for the ratification of the 1987 Constitution, and the ruled that the petitioner meets the very
congressional elections on May 18,1987. basic requirements of citizenship and
residence for candidates to elective local
officials (sic) and that there is no legal
After hearing the consolidated petitions before it, the
obstacles (sic) for the candidacy of the
COMELEC with the exception of Commissioner Anacleto
petitioner, considering that decisions of the
Badoy, Jr., dismissed the petitions on the ground that:
Regional Trial Courts on quo
warranto cases under the Election Code
The possession of a green card by the are appealable to the COMELEC. (p. 22,
respondent (Miguel) does not sufficiently Rollo, G.R. No. 88831.)
establish that he has abandoned his
residence in the Philippines. On the
These two cases pose the twin issues of: (1) whether or not a
contrary, inspite (sic) of his green card,
green card is proof that the holder is a permanent resident of
Respondent has sufficiently indicated his
the United States, and (2) whether respondent Miguel had
intention to continuously reside in Bolinao
waived his status as a permanent resident of or immigrant to
as shown by his having voted in
the U.S.A. prior to the local elections on January 18, 1988.
successive elections in said municipality.
As the respondent meets the basic
requirements of citizenship and residence Section 18, Article XI of the 1987 Constitution provides:
for candidates to elective local officials
(sic) as provided for in Section 42 of the
Sec. 18. Public officers and employees
Local Government Code, there is no legal
owe the State and this Constitution
obstacle to his candidacy for mayor of
allegiance at all times, and any public
Bolinao, Pangasinan. (p. 12, Rollo, G.R.
officer or employee who seeks to change
No. 84508).
his citizenship or acquire the status of an
immigrant of another country during his
In his dissenting opinion, Commissioner Badoy, Jr. opined that: tenure shall be dealt with by law.
A green card holder being a permanent In the same vein, but not quite, Section 68 of the Omnibus
resident of or an immigrant of a foreign Election Code of the Philippines (B.P. Blg. 881) provides:
country and respondent having admitted
that he is a green card holder, it is
SEC. 68. Disqualifications ... Any person
incumbent upon him, under Section 68 of
who is a permanent resident of or an
the Omnibus Election Code, to prove that
immigrant to a foreign country shall not be
he "has waived his status as a permanent
qualified to run for any elective office under
resident or immigrant" to be qualified to run
this Code, unless said person has waived
for elected office. This respondent has not
his status as permanent resident or
done. (p. 13, Rollo, G.R. No. 84508.)
immigrant of a foreign country in
accordance with the residence
In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of requirement provided for in the election
Appeals and Merito Miguel, respondents," the petitioner prays laws. (Sec. 25, 1971, EC).
for a review of the decision dated June 21, 1989 of the Court of
Appeals in CA-G.R. SP No. 14531 "Merito C. Miguel, petitioner
In view of current rumor that a good number of elective and
vs. Hon. Artemio R. Corpus, etc., respondents," reversing the
appointive public officials in the present administration of
decision of the Regional Trial Court which denied Miguel's
President Corazon C. Aquino are holders of green cards in
motion to dismiss the petition for quo warranto filed by Caasi.
foreign countries, their effect on the holders' right to hold
The Court of Appeals ordered the regional trial court to dismiss
elective public office in the Philippines is a question that excites
and desist from further proceeding in the quo warranto case.
much interest in the outcome of this case.
The Court of Appeals held:
In the case of Merito Miguel, the Court deems it significant that
in the "Application for Immigrant Visa and Alien Registration"
(Optional Form No. 230, Department of State) which Miguel
filled up in his own handwriting and submitted to the US
Embassy in Manila before his departure for the United States in
1984, Miguel's answer to Question No. 21 therein regarding his
"Length of intended stay (if permanently, so state)," Miguel's
answer was, "Permanently."
On its face, the green card that was subsequently issued by
the United States Department of Justice and Immigration and
Registration Service to the respondent Merito C. Miguel
identifies him in clear bold letters as a RESIDENT ALIEN. On
the back of the card, the upper portion, the following
information is printed:
Alien Registration Receipt Card.
Person identified by
this card is entitled
to reside
permanently and work
in the United States."
(Annex A pp. 189-190,
Rollo of G.R. No.
84508.)
Despite his vigorous disclaimer, Miguel's immigration to the
United States in 1984 constituted an abandonment of his
domicile and residence in the Philippines. For he did not go to
the United States merely to visit his children or his doctor there;
he entered the limited States with the intention to have there
permanently as evidenced by his application for an immigrant's
(not a visitor's or tourist's) visa. Based on that application of his,
he was issued by the U.S. Government the requisite green
card or authority to reside there permanently.
Immigration is the removing into one place
from another; the act of immigrating the
entering into a country with the intention of
residing in it.
An immigrant is a person who removes
into a country for the purpose
of permanent residence. As shown infra
84, however, statutes sometimes give a
broader meaning to the term "immigrant."
(3 CJS 674.)
As a resident alien in the U.S., Miguel owes temporary and
local allegiance to the U.S., the country in which he resides (3
CJS 527). This is in return for the protection given to him during
the period of his residence therein.
Aliens reading in the limited States, while
they are permitted to remain, are in
general entitled to the protection of the
laws with regard to their rights of person
and property and to their civil and criminal
responsibility.
In general, aliens residing in the United
States, while they are permitted to remain
are entitled to the safeguards of the
constitution with regard to their rights of
person and property and to their civil and
criminal responsibility. Thus resident alien
friends are entitled to the benefit of the
provision of the Fourteenth Amendment to
the federal constitution that no state shall
deprive "any person" of life liberty, or
property without due process of law, or
deny to any person the equal protection of
the law, and the protection of this
amendment extends to the right to earn a
livelihood by following the ordinary
occupations of life. So an alien is entitled
to the protection of the provision of the
Fifth Amendment to the federal constitution
that no person shall be deprived of life,
liberty, or property without due process of
law. (3 CJS 529-530.)
Section 18, Article XI of the 1987 Constitution which provides
that "any public officer or employee who seeks to change his
citizenship or acquire the status of an immigrant of another
country during his tenure shall be dealt with by law" is not
applicable to Merito Miguel for he acquired the status of an
immigrant of the United States before he was elected to public
office, not "during his tenure" as mayor of Bolinao, Pangasinan.
The law applicable to him is Section 68 of the Omnibus
Election Code (B.P. Blg. 881), which provides:
x x x           x x x          x x x
Any person who is a permanent resident of
or an immigrant to a foreign country shall
not be qualified to run for any elective
office under this Code, unless such person
has waived his status as permanent
resident or immigrant of a foreign country
in accordance with the residence
requirement provided for in the election
laws.'
Did Miguel, by returning to the Philippines in November 1987
and presenting himself as a candidate for mayor of Bolinao in
the January 18,1988 local elections, waive his status as a
permanent resident or immigrant of the United States?
To be "qualified to run for elective office" in the Philippines, the
law requires that the candidate who is a green card holder
must have "waived his status as a permanent resident or
immigrant of a foreign country." Therefore, his act of filing a
certificate of candidacy for elective office in the Philippines, did
not of itself constitute a waiver of his status as a permanent
resident or immigrant of the United States. The waiver of his
green card should be manifested by some act or acts
independent of and done prior to filing his candidacy for
elective office in this country. Without such prior waiver, he was
"disqualified to run for any elective office" (Sec. 68, Omnibus
Election Code).
Respondent Merito Miguel admits that he holds a green card,
which proves that he is a permanent resident or immigrant it of
the United States, but the records of this case are starkly bare
of proof that he had waived his status as such before he ran for
election as municipal mayor of Bolinao on January 18, 1988.
We, therefore, hold that he was disqualified to become a
candidate for that office.
The reason for Section 68 of the Omnibus Election Code is not
hard to find. Residence in the municipality where he intends to
run for elective office for at least one (1) year at the time of
filing his certificate of candidacy, is one of the qualifications that
a candidate for elective public office must possess (Sec. 42,
Chap. 1, Title 2, Local Government Code). Miguel did not
possess that qualification because he was a permanent
resident of the United States and he resided in Bolinao for a
period of only three (3) months (not one year) after his return to
the Philippines in November 1987 and before he ran for mayor
of that municipality on January 18, 1988.
In banning from elective public office Philippine citizens who
are permanent residents or immigrants of a foreign country, the
Omnibus Election Code has laid down a clear policy of
excluding from the right to hold elective public office those
Philippine citizens who possess dual loyalties and allegiance.
The law has reserved that privilege for its citizens who have
cast their lot with our country "without mental reservations or
purpose of evasion." The assumption is that those who are
resident aliens of a foreign country are incapable of such entire
devotion to the interest and welfare of their homeland for with
one eye on their public duties here, they must keep another
eye on their duties under the laws of the foreign country of their
choice in order to preserve their status as permanent residents
thereof.
Miguel insists that even though he applied for immigration and
permanent residence in the United States, he never really
intended to live there permanently, for all that he wanted was a
green card to enable him to come and go to the U.S. with ease.
In other words, he would have this Court believe that he
applied for immigration to the U.S. under false pretenses; that
all this time he only had one foot in the United States but kept
his other foot in the Philippines. Even if that were true, this
Court will not allow itself to be a party to his duplicity by
permitting him to benefit from it, and giving him the best of both
worlds so to speak.

Miguel's application for immigrant status and permanent

residence in the U.S. and his possession of a green card
attesting to such status are conclusive proof that he is a
permanent resident of the U.S. despite his occasional visits to
the Philippines. The waiver of such immigrant status should be
as indubitable as his application for it. Absent clear evidence
that he made an irrevocable waiver of that status or that he
surrendered his green card to the appropriate U.S. authorities
before he ran for mayor of Bolinao in the local elections on
January 18, 1988, our conclusion is that he was disqualified to
run for said public office, hence, his election thereto was null
and void.

WHEREFORE, the appealed orders of the COMELEC and the

Court of Appeals in SPC Nos. 87-551, 87-595 and 87-604, and
CA-G.R. SP No. 14531 respectively, are hereby set aside. The
election of respondent Merito C. Miguel as municipal mayor of
Bolinao, Pangasinan is hereby annulled. Costs against the said
respondent.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz,

Paras, Gancayco, Padilla, Bidin, Sarmiento, Medialdea and
Regalado, JJ., concur.

Feliciano, J., is on leave.

G.R. No. L-6379             September 29, 1954
In the matter of the petition of WILFRED UYTENGSU to be
admitted a citizen of the Philippine. WILFRED
UYTENGSU, petitioner-appellee,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellant.
Manuel A. Zosa for appellee.
Office of the Solicitor General Juan R. Liwag and Solicitor
Isidro C. Borromeo for appellant.
CONCEPCION, J.:
This is an appeal taken by the Solicitor General from a decision
of the Court of First Instance of Cebu, granting the application
of Wilfred Uytengsu, for naturalization as citizen of the
Philippines.
The main facts are not disputed. Petitioner-appellee was born,
of Chinese parents, in Dumaguete, Negros Oriental on October
6, 1927. He began his primary education at the Saint Theresa's
College in said municipality Subsequently, he attended the
Little Flower of Jesus Academy, then the San Carlos College
and, still later the Siliman University — all in the same locality
— where he completed the secondary course. Early in 1946,
he studied, for one semester, in the Mapua Institute of
Technology, in Manila. Soon after, he went to the United
States, where, from 1947 to 1950, he was enrolled in the
Leland Stanford Junior University, in California, and was
graduated, in 1950, with the degree of Bachelor of Science. In
April of the same year he returned to the Philippines for four (4)
months vacation. Then, to be exact, on July 15, 1950, his
present application for naturalization was filed. Forthwith, he
returned to the United States and took a post-graduate course,
in chemical engineering, in another educational institution, in
Fort Wayne, Indiana. He finished this course in July 1951; but
did not return to the Philippines until October 13, 1951. Hence,
the hearing of the case, originally scheduled to take place on
July 12, 1951, had to be postponed on motion of counsel for
the petitioner.
The only question for the determination in this appeal is
whether or not the application for naturalization may be
granted, notwithstanding the fact that petitioner left the
Philippines immediately after the filing of his petition and did
not return until several months after the first date set for the
hearing thereof. The Court of First Instance of Cebu decided
this question in the affirmative and accordingly rendered
judgment for the petitioner. The Solicitor General, who
maintains the negative, has appealed from said judgment.
Section 7 of Commonwealth Act No. 473 reads as follows:
Any person desiring to acquire Philippine citizenship
shall file with the competent court, a petition in
triplicate, accompanied by two photographs of the
petitioner, setting forth his name and surname, his
present and former place of residence; his
occupation; the place and date of his birth; whether
single or married and if the father of children, the
name, age birthplace and residence of the wife and
of each of the children; the approximate date of his
arrival in the Philippines, the name of the port of
debarkation, and if he remembers it, the name of the
ship on which he came; a declaration that he has the
qualifications required by this Act, specifying the
same, and that he is not disqualified for
naturalization under the provision of this Act; that he
has complied with the requirements of section five of
this Act, and that he will reside continuously in the
Philippines from the date of the filing of the petition
up to the time of his admission to Philippine
citizenship ..." (Emphasis supplied.)
In conformity with this provision, petitioner stated in paragraph
13 of his application:
. . . I will reside continuously in the Philippine from
the date of the filing of my petition up to the time of
my admission to Philippine citizenship. (Record on
Appeal, page 3.)
Petitioner contends, and the lower court held, that the word
"residence", as used in the aforesaid provision of the
Naturalization Law, is synonymous with domicile, which, once
acquired, is not lost by physical absence, until another domicile
is obtained, and that, from 1946 to 1951, he continued to be
domiciled in, and hence a resident of the Philippines, his
purpose in staying in the United States, at that time, being
merely to study therein.
It should be noted that to become a citizen of the Philippines by
naturalization, one must reside therein for not less than 10
years, except in some special cases, in which 5 years of
residence is sufficient (sections 2 and 3, Commonwealth Act
No. 473). Pursuant to the provision above quoted, he must,
also, file an application stating therein, among other things, that
he "has the qualifications required" by law. Inasmuch as these
qualifications include the residence requirement already
referred to, it follows that the applicant must prove that he is a
residence of the Philippines at the time, not only of the filing of
the application, but, also, of its hearing. If the residence thus
required is the actual or constructive permanent home,
otherwise known as legal residence or domicile, then the
applicant must be domiciled in the Philippines on both dates.
Consequently, when section 7 of Commonwealth Act No. 473
imposes upon the applicant the duty to state in his sworn
application "that he will reside continuously in the Philippines"
in the intervening period, it can not refer merely to the need of
an uninterrupted domicile or legal residence, irrespective of
actual residence, for said legal residence or domicile is
obligatory under the law, even in the absence of the
requirement contained in said clause, and, it is well settled that,
whenever possible, a legal provision must not be so construed
as to be a useless surplusage, and, accordingly, meaningless,
in the sense of adding nothing to the law or having no effect
whatsoever thereon. This consequences may be avoided only
by construing the clause in question as demanding actual
residence in the Philippines from the filing of the petition for
naturalization to its determination by the court.
Indeed, although the words "residence" and "domicile" are
often used interchangeably, each has, in strict legal parlance, a
meaning distinct and different from that of the other.
xxx     xxx     xxx
. . . There is a decided preponderance of authority to
the effect that residence and domicile
are not synonymous in connection with citizenship,
jurisdiction, limitations, school privileges, probate and
succession.
. . . the greater or less degree of permanency
contemplated or intended furnishes a clue to the
sometimes shadowy distinction between residence
and domicile. To be a resident one must be
physically present in that place for a longer or shorter
period of time. "The essential distinction between
residence and domicile is this: the first involves the
intent to leave when the purpose for which he has
taken up his abode ceases; the other has no such
intent, the abiding is animo manendi. One may seek
a place for purposes of pleasure, of business, or of
health. If his intent be to remain it becomes his
domicile; if his intent is to leave as soon as his
purpose is accomplished, it is his residence. Perhaps
the most satisfactory definition is that one is a
resident of a place from which his departure is in
indefinite as to time, definite as to purpose; and for
this purpose he has made the place his temporary
home.
For many legal purposes there is a clear distinction
between "residence" and "domicile". A person may
hold an office or may have business or employment
or other affair which requires him to reside at a
particular place. His intention is to remain there while
the office or business or employment or other
concern continues; but he has no purpose to remain
beyond the time the interest exists which determines
his place of abode. Domicile is characterized by
the animus manendi. . . . .
Residence and domicile are not to be held
synonymous. Residence is an act. Domicile is an act
coupled with an intent. A man may have a residence
in one state or country and his domicile in another,
and he may be a nonresident of the date of his
domicile in the sense that his place of actual
residence is not there. Hence the great weight of
authorities. — rightly so, as we think — that a debtor,
although his legal domicile is in the state, may reside
or remain out of it for so long a time and under such
circumstances as to acquire so to speak, an actual
nonresidence within the meaning of the attachment
statute.
Domicile is a much broader term than residence. A
man may have his domicile in one state and actually
reside in another, or in a foreign country. If he has
once had a residence in a particular place and
removed to another, but with the intention of
returning after a certain time, however long that may
be, his domicile is at the former residence and his
residence at the place of his temporary habitation.
Residence and habitation are generally regarded as
synonymous. A resident and an inhabitant mean the
same thing. A person resident is defined to be one
"dwelling and having his abode in any place," "an
inhabitant," "one that resides in a place." The
question of domicile is not involved in determining
whether a person is a resident of a state or country.
The compatability of domicile in one state with actual
residence in another has been asserted and acted
upon in the law of attachment by the Courts of New
York, New Jersey, Maryland, North Carolina,
Mississippi and Wisconsin.
Residence indicates permanency of occupation,
distinct from lodging or boarding, or temporary
occupation. It does not include as much as domicile,
which requires intention combined with residence." ...
"one may seek a place for purposes of pleasure, of
business, or of health. If his intent be to remain, it
becomes his domicile; if his intent be to leave as
soon as his purpose is accomplished, it is his
residence."
The derivation of the two words "residence" and
"domicile" fairly illustrates the distinction in their
meaning. A home (domus) is something more than a
temporary place of remaining (residendi) however
long such stay may continue.
"While, generally speaking, domicile and residence
mean one and the same thing, residence combined
with intention to remain, constitutes domicile while an making a declaration of intention at least one (1) year prior to
established abode, fixed permanently for a time the filing of the application — is not difficult to determine. It is
[!] for business or other purposes, constitutes a nothing but to give the government sufficient time to check the
residence, though there may be an intent, existing all truth of the statements made in said declaration of intention, if
the while, to return to the true domicile." any, and in the application for naturalization, especially the
allegations therein relative to the possession of the
qualifications and none of the disqualifications provided by law.
There is a difference between domicile and
Although data pertinent to said qualifications and
residence. "Residence" is used to indicate the place
disqualifications could generally be obtained from persons
of abode, whether permanent or temporary;
familiar with the applicant, it is to be expected that the
"domicile" denotes a fixed permanent residence to
information thus secured would consist, mainly, of conclusions
which, when absent, one has the intention of
and opinions of said individuals. Indeed, what else can they be
returning. A man may have a residence in one place
expected to say on whether the applicant has a good moral
and a domicile in another." "Residence is not
character; or whether he believes in the principles underlying
domicile, but domicile is residence coupled with
our Constitution; or whether his conduct has been proper and
intention to remain for an unlimited time. A man can
irreproachable; or whether he is suffering from mental
have but one domicile for one and the same purpose
alienation or incurable contagious diseases, or has not mingled
at any time, but he may have numerous places of
socially with the Filipinos, or has not evinced a sincere desire
residence. His place of residence generally is his
to learn and embrace the customs, traditions and ideals of the
place of domicile, but is not by any means
Filipinos? Obviously, the Government would be in a better
necessarily as, since no length of residence without
position to draw its own conclusions on these matters if its
intention of remaining will constitute domicile.
officers could personally observe the behavior of the applicant
(Kennan on Residence and Domicile, pp. 26, 31-35)
and confer with him if necessary.
Such distinction was, in effect, applied by this Court in the case
In the case at bar, the Government has not had any chance
of Domingo Dy, alias William Dy Chinco vs. Republic of the
whatsoever to thus keep a watchful eye on petitioner herein.
Philippines (92 Phil., 278). The applicant in that case was born
Immediately after the filing of his application — and
in Naga, Camarines Sur, on May 19, 1915. "At the age of
notwithstanding the explicit promise therein made by him,
seven or eight, or in the year 1923, he went to China, with his
under oath, to the effect that he would reside continuously in
mother to study, and while he used to go back and forth from
the Philippines "from the date of the filing of his petition up to
China to the Philippines during school vacations, he did not
the time of his admission to Philippine citizenship" — he
come back to live permanently here until the year 1937." He
returned to the United States, where he stayed, continuously,
applied for naturalization in 1949. The question arose whether,
until October 13, 1951. For this reason, when this case was
having been domiciled in the Philippines for over 30 years, he
called for hearing, for the first time, on July 12, 1951, his
could be naturalized as a citizen of the Philippines, without a
counsel had to move for continuance. The adverse effect of
previous declaration of intention, in view of section 6 of
such absence upon the opportunity needed by the Government
Commonwealth Act No. 473 (as amended by Commonwealth
to observe petitioner herein was enhanced by the fact that,
Act No. 535), exempting from such requirement "those who
having been born in the Philippines, where he finished his
have resided in the Philippines continuously for a period of
primary and secondary education, petitioner did not have to
thirty years or more, before filing their application." This Court
file, and did not file, a declaration of intention prior to the filing
decided the question in the negative, upon that ground that
of his petition for naturalization. Thus, the Government had no
"actual and substantial residence within the Philippines, not
previous notice of his intention to apply for naturalization until
legal residence", or "domicile," alone, is essential to the
the filing of his petition and could not make the requisite
enjoyment of the benefits of said exemption.
investigation prior thereto.
If said actual and substantial residence — not merely legal
Moreover, considering that petitioner had stayed in the United
residence — is necessary to dispense with the filing of a
States, practically without interruption, from early in 1947 to
declaration of intention, it is even more necessary during the
late in 1951, or for almost five (5) years, over three years and a
period intervening from the filing of the petition for
half of which preceded the filing of the application, it may be
naturalization to the date of the hearing thereof. In this
said that he resided — as distinguished from domiciled — in
connection, it should be remembered that, upon the filing of
the United States at that time and for over a year subsequently
said petition, the clerk of court is ordained by law to publish it
thereto. In fact, under our laws, residence for six (6) months
with a notice of the date of the hearing, which pursuant to
suffices to entitle a person to exercise the right of suffrage in a
section 7 of Act No. 2927, shall not be less than 60 days from
given municipality (section 98), Republic Act No. 180);
the date of the last publication. This period was extended to
residence for one (1) year, to run for a seat in the House of
two (2) months, by section 7 of Commonwealth Act No. 473,
Representatives (sec. 7, Art. VI, of the Constitution); and
and then to six (6) months, by Republic Act No. 530. The
residence for two (2) years, to run for the Senate (sec. 4, Art.
purpose of said period, particularly the extensions thereof — of
VI, of the Constitution). In some states of the United States, a
residence of several weeks or months is enough to establish a
domicile for purposes of divorce. Although in these cases the
word "residence" has been construed, generally, to mean
"domicile" — that it to say, actual residence, coupled with the
intention to stay permanently, at least at the time of the
acquisition of said domicile — it would seem apparent from the
foregoing that the length of petitioner's habitation in the United
States amply justifies the conclusion that he was residing
abroad when his application for naturalization was filed and for
fifteen (15) months thereafter, and that this is precisely the
situation sought to be forestalled by the law in enjoining the
applicant to "reside continuously in the Philippines from the
date of the filing of the petition up to the time of his admission
to Philippine citizenship," unless this legal mandate — which
did not exist under Act No. 2927, and was advisedly inserted,
therefore, by section 7 of Commonwealth Act No. 473 — were
to be regarded as pure verbiage, devoid, not only, of any force
or effect, but, also, of any intent or purpose, as it would, to our
mind, turn out to be, were we to adopt petitioner's
pretense.1âwphïl.nêt

In short, we are of the opinion that petitioner herein has not

complied with the requirements of section 7 of Commonwealth
Act No. 473, and with the aforementioned promise made by
him in his application, and, accordingly, is not entitled, in the
present proceedings, to a judgment in his favor. Wherefore, the
decision appealed from is hereby reversed, and the case
dismissed, with costs against the petitioner, but without
prejudice to the filing of another application, if he so desires, in
conformity with law. It is so ordered.

Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, and

Reyes, J.B.L., J., concur.
G.R. No. 119976 September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO, respondents.
KAPUNAN, J.:
A constitutional provision should be construed as to give it
effective operation and suppress the mischief at which it is
aimed.1 The 1987 Constitution mandates that an aspirant for
election to the House of Representatives be "a registered voter
in the district in which he shall be elected, and a resident
thereof for a period of not less than one year immediately
preceding the election."2 The mischief which this provision —
reproduced verbatim from the 1973 Constitution — seeks to
prevent is the possibility of a "stranger or newcomer
unacquainted with the conditions and needs of a community
and not identified with the latter, from an elective office to serve
that community."3
Petitioner Imelda Romualdez-Marcos filed her Certificate of
Candidacy for the position of Representative of the First District
of Leyte with the Provincial Election Supervisor on March 8,
1995, providing the following information in item no. 8:4
RESIDENCE IN THE CONSTITUENCY
WHERE I SEEK TO BE ELECTED
IMMEDIATELY PRECEDING THE
ELECTION: __________ Years
and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the
incumbent Representative of the First District of Leyte and a
candidate for the same position, filed a "Petition for
Cancellation and Disqualification"5 with the Commission on
Elections alleging that petitioner did not meet the constitutional
requirement for residency. In his petition, private respondent
contended that Mrs. Marcos lacked the Constitution's one year
residency requirement for candidates for the House of
Representatives on the evidence of declarations made by her
in Voter Registration Record 94-No. 33497726 and in her
Certificate of Candidacy. He prayed that "an order be issued
declaring (petitioner) disqualified and canceling the certificate
of candidacy."7
On March 29, 1995, petitioner filed an Amended/Corrected
Certificate of Candidacy, changing the entry "seven" months to
"since childhood" in item no. 8 of the amended certificate.8 On
the same day, the Provincial Election Supervisor of Leyte
informed petitioner that:
[T]his office cannot receive or accept the
aforementioned Certificate of Candidacy
on the ground that it is filed out of time, the
deadline for the filing of the same having
already lapsed on March 20, 1995. The
Corrected/Amended Certificate of
Candidacy should have been filed on or
before the March 20, 1995 deadline.9
Consequently, petitioner filed the Amended/Corrected
Certificate of Candidacy with the COMELEC's Head Office in
Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in
SPA No. 95-009 was likewise filed with the head office on the
same day. In said Answer, petitioner averred that the entry of
the word "seven" in her original Certificate of Candidacy was
the result of an "honest misinterpretation" 10 which she sought
to rectify by adding the words "since childhood" in her
Amended/Corrected Certificate of Candidacy and that "she has
always maintained Tacloban City as her domicile or
residence. 11 Impugning respondent's motive in filing the
petition seeking her disqualification, she noted that:
When respondent (petitioner herein)
announced that she was intending to
register as a voter in Tacloban City and run
for Congress in the First District of Leyte,
petitioner immediately opposed her
intended registration by writing a letter
stating that "she is not a resident of said
city but of Barangay Olot, Tolosa, Leyte.
After respondent had registered as a voter
in Tolosa following completion of her six
month actual residence therein, petitioner
filed a petition with the COMELEC to
transfer the town of Tolosa from the First
District to the Second District and pursued
such a move up to the Supreme Court, his
purpose being to remove respondent as
petitioner's opponent in the congressional
election in the First District. He also filed a
bill, along with other Leyte Congressmen,
seeking the creation of another legislative
district to remove the town of Tolosa out of
the First District, to achieve his purpose.
However, such bill did not pass the
Senate. Having failed on such moves,
petitioner now filed the instant petition for
the same objective, as it is obvious that he
is afraid to submit along with respondent
for the judgment and verdict of the
electorate of the First District of Leyte in an
honest, orderly, peaceful, free and clean
elections on May 8, 1995. 12
On April 24, 1995, the Second Division of the Commission on
Elections (COMELEC), by a vote of 2 to 1, 13 came up with a
Resolution 1) finding private respondent's Petition for
Disqualification in SPA 95-009 meritorious; 2) striking off
petitioner's Corrected/Amended Certificate of Candidacy of
March 31, 1995; and 3) canceling her original Certificate of
Candidacy. 14 Dealing with two primary issues, namely, the
validity of amending the original Certificate of Candidacy after
the lapse of the deadline for filing certificates of candidacy, and
petitioner's compliance with the one year residency
requirement, the Second Division held:
Respondent raised the affirmative defense
in her Answer that the printed word
"Seven" (months) was a result of an
"honest misinterpretation or honest
mistake" on her part and, therefore, an
amendment should subsequently be
allowed. She averred that she thought that
what was asked was her "actual and
physical" presence in Tolosa and not
residence of origin or domicile in the First
Legislative District, to which she could
have responded "since childhood." In an
accompanying affidavit, she stated that her
domicile is Tacloban City, a component of
the First District, to which she always
intended to return whenever absent and
which she has never abandoned.
Furthermore, in her memorandum, she
tried to discredit petitioner's theory of
disqualification by alleging that she has
been a resident of the First Legislative
District of Leyte since childhood, although
she only became a resident of the
Municipality of Tolosa for seven months.
She asserts that she has always been a
resident of Tacloban City, a component of
the First District, before coming to the
Municipality of Tolosa.
Along this point, it is interesting to note that
prior to her registration in Tolosa,
respondent announced that she would be
registering in Tacloban City so that she
can be a candidate for the District.
However, this intention was rebuffed when
petitioner wrote the Election Officer of
Tacloban not to allow respondent since
she is a resident of Tolosa and not
Tacloban. She never disputed this claim
and instead implicitly acceded to it by
registering in Tolosa.
This incident belies respondent's claim of
"honest misinterpretation or honest
mistake." Besides, the Certificate of
Candidacy only asks for RESIDENCE.
Since on the basis of her Answer, she was
quite aware of "residence of origin" which
she interprets to be Tacloban City, it is
curious why she did not cite Tacloban City
in her Certificate of Candidacy. Her
explanation that she thought what was
asked was her actual and physical
presence in Tolosa is not easy to believe
because there is none in the question that
insinuates about Tolosa. In fact, item no. 8
in the Certificate of Candidacy speaks
clearly of "Residency in the
CONSTITUENCY where I seek to be
elected immediately preceding the
election." Thus, the explanation of
respondent fails to be persuasive.
From the foregoing, respondent's defense
of an honest mistake or misinterpretation,
therefore, is devoid of merit.
To further buttress respondent's contention
that an amendment may be made, she
cited the case of Alialy v. COMELEC (2
SCRA 957). The reliance of respondent on
the case of Alialy is misplaced. The case
only applies to the "inconsequential
deviations which cannot affect the result of
the election, or deviations from provisions
intended primarily to secure timely and
orderly conduct of elections." The
Supreme Court in that case considered the
amendment only as a matter of form. But
in the instant case, the amendment cannot
be considered as a matter of form or an
inconsequential deviation. The change in
the number of years of residence in the
place where respondent seeks to be
elected is a substantial matter which
determines her qualification as a
candidacy, specially those intended to
suppress, accurate material representation
in the original certificate which adversely
affects the filer. To admit the amended
certificate is to condone the evils brought
by the shifting minds of manipulating
candidate, of the detriment of the integrity
of the election.
Moreover, to allow respondent to change
the seven (7) month period of her
residency in order to prolong it by claiming
it was "since childhood" is to allow an
untruthfulness to be committed before this
Commission. The arithmetical accuracy of
the 7 months residency the respondent
indicated in her certificate of candidacy
can be gleaned from her entry in her
Voter's Registration Record accomplished
on January 28, 1995 which reflects that
she is a resident of Brgy. Olot, Tolosa,
Leyte for 6 months at the time of the said
registration (Annex A, Petition). Said
accuracy is further buttressed by her letter
to the election officer of San Juan, Metro
Manila, dated August 24, 1994, requesting
for the cancellation of her registration in
the Permanent List of Voters thereat so
that she can be re-registered or transferred
to Brgy. Olot, Tolosa, Leyte. The dates of
these three (3) different documents show
the respondent's consistent conviction that
she has transferred her residence to Olot,
Tolosa, Leyte from Metro Manila only for
such limited period of time, starting in the
last week of August 1994 which on March
8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be
persuaded to believe in the respondent's
contention that it was an error.
xxx xxx xxx
Based on these reasons the
Amended/Corrected Certificate of
Candidacy cannot be admitted by this
Commission.
xxx xxx xxx
Anent the second issue, and based on the
foregoing discussion, it is clear that
respondent has not complied with the one
year residency requirement of the
Constitution.
In election cases, the term "residence" has
always been considered as synonymous
with "domicile" which imports not only the
intention to reside in a fixed place but also
personal presence in-that place, coupled
with conduct indicative of such intention.
Domicile denotes a fixed permanent
residence to which when absent for
business or pleasure, or for like reasons,
one intends to return. (Perfecto Faypon vs.
Eliseo Quirino, 96 Phil 294; Romualdez vs.
RTC-Tacloban, 226 SCRA 408). In
respondent's case, when she returned to
the Philippines in 1991, the residence she
chose was not Tacloban but San Juan,
Metro Manila. Thus, her animus
revertendi is pointed to Metro Manila and
not Tacloban.
This Division is aware that her claim that
she has been a resident of the First District
since childhood is nothing more than to
give her a color of qualification where she
is otherwise constitutionally disqualified. It
cannot hold ground in the face of the facts
admitted by the respondent in her affidavit.
Except for the time that she studied and
worked for some years after graduation in
Tacloban City, she continuously lived in
Manila. In 1959, after her husband was
elected Senator, she lived and resided in
San Juan, Metro Manila where she was a
registered voter. In 1965, she lived in San
Miguel, Manila where she was again a
registered voter. In 1978, she served as
member of the Batasang Pambansa as the
representative of the City of Manila and
later on served as the Governor of Metro
Manila. She could not have served these
positions if she had not been a resident of
the City of Manila. Furthermore, when she
filed her certificate of candidacy for the
office of the President in 1992, she
claimed to be a resident of San Juan,
Metro Manila. As a matter of fact on
August 24, 1994, respondent wrote a letter
with the election officer of San Juan, Metro
Manila requesting for the cancellation of
her registration in the permanent list of
voters that she may be re-registered or
transferred to Barangay Olot, Tolosa,
Leyte. These facts manifest that she could
not have been a resident of Tacloban City
since childhood up to the time she filed her
certificate of candidacy because she
became a resident of many places,
including Metro Manila. This debunks her
claim that prior to her residence in Tolosa,
Leyte, she was a resident of the First
Legislative District of Leyte since
childhood.
In this case, respondent's conduct reveals
her lack of intention to make Tacloban her
domicile. She registered as a voter in
different places and on several occasions
declared that she was a resident of Manila.
Although she spent her school days in
Tacloban, she is considered to have
abandoned such place when she chose to
stay and reside in other different places. In
the case of Romualdez vs. RTC (226
SCRA 408) the Court explained how one
acquires a new domicile by choice. There
must concur: (1) residence or bodily
presence in the new locality; (2) intention
to remain there; and (3) intention to
abandon the old domicile. In other words
there must basically be animus
manendi with animus non revertendi.
When respondent chose to stay in Ilocos
and later on in Manila, coupled with her
intention to stay there by registering as a
voter there and expressly declaring that
she is a resident of that place, she is
deemed to have abandoned Tacloban
City, where she spent her childhood and
school days, as her place of domicile.
Pure intention to reside in that place is not
sufficient, there must likewise be conduct
indicative of such intention. Respondent's
statements to the effect that she has
always intended to return to Tacloban,
without the accompanying conduct to
prove that intention, is not conclusive of
her choice of residence. Respondent has
not presented any evidence to show that
her conduct, one year prior the election,
showed intention to reside in Tacloban.
Worse, what was evident was that prior to
her residence in Tolosa, she had been a
resident of Manila.
It is evident from these circumstances that
she was not a resident of the First District
of Leyte "since childhood."
To further support the assertion that she
could have not been a resident of the First
District of Leyte for more than one year,
petitioner correctly pointed out that on
January 28, 1995 respondent registered as
a voter at precinct No. 18-A of Olot,
Tolosa, Leyte. In doing so, she placed in
her Voter Registration Record that she
resided in the municipality of Tolosa for a
period of six months. This may be
inconsequential as argued by the
respondent since it refers only to her
residence in Tolosa, Leyte. But her failure
to prove that she was a resident of the
First District of Leyte prior to her residence
in Tolosa leaves nothing but a convincing
proof that she had been a resident of the
district for six months only. 15
In a Resolution promulgated a day before the May 8, 1995
elections, the COMELEC en banc denied petitioner's Motion for
Reconsideration 16 of the April 24, 1995 Resolution declaring
her not qualified to run for the position of Member of the House
of Representatives for the First Legislative District of
Leyte. 17 The Resolution tersely stated:
After deliberating on the Motion for
Reconsideration, the Commission
RESOLVED to DENY it, no new
substantial matters having been raised
therein to warrant re-examination of the
resolution granting the petition for
disqualification. 18
On May 11, 1995, the COMELEC issued a Resolution allowing
petitioner's proclamation should the results of the canvass
show that she obtained the highest number of votes in the
congressional elections in the First District of Leyte. On the
same day, however, the COMELEC reversed itself and issued
a second Resolution directing that the proclamation of
petitioner be suspended in the event that she obtains the
highest number of votes. 19
In a Supplemental Petition dated 25 May 1995, petitioner
averred that she was the overwhelming winner of the elections
for the congressional seat in the First District of Leyte held May
8, 1995 based on the canvass completed by the Provincial
Board of Canvassers on May 14, 1995. Petitioner alleged that
the canvass showed that she obtained a total of 70,471 votes
compared to the 36,833 votes received by Respondent
Montejo. A copy of said Certificate of Canvass was annexed to
the Supplemental Petition.
On account of the Resolutions disqualifying petitioner from
running for the congressional seat of the First District of Leyte
and the public respondent's Resolution suspending her
proclamation, petitioner comes to this court for relief.
Petitioner raises several issues in her Original and
Supplemental Petitions. The principal issues may be classified
into two general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident,
for election purposes, of the First District of
Leyte for a period of one year at the time
of the May 9, 1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly
exercised its jurisdiction in disqualifying
petitioner outside the period mandated by
the Omnibus Election Code for
disqualification cases under Article 78 of
the said Code.
b) After the Elections
Whether or not the House of
Representatives Electoral Tribunal
assumed exclusive jurisdiction over the
question of petitioner's qualifications after
the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second
Division reveals a startling confusion in the application of
settled concepts of "Domicile" and "Residence" in election law.
While the COMELEC seems to be in agreement with the
general proposition that for the purposes of election law,
residence is synonymous with domicile, the Resolution reveals
a tendency to substitute or mistake the concept of domicile for
actual residence, a conception not intended for the purpose of
determining a candidate's qualifications for election to the
House of Representatives as required by the 1987
Constitution. As it were, residence, for the purpose of meeting
the qualification for an elective position, has a settled meaning
in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of
civil rights and the fulfillment of civil obligations, the domicile of
natural persons is their place of habitual residence." In Ong
vs. Republic  20 this court took the concept of domicile to mean
an individual's "permanent home", "a place to which, whenever
absent for business or for pleasure, one intends to return, and
depends on facts and circumstances in the sense that they
disclose intent." 21 Based on the foregoing, domicile includes
the twin elements of "the fact of residing or physical presence
in a fixed place" and animus manendi, or the intention of
returning there permanently.
Residence, in its ordinary conception, implies the factual
relationship of an individual to a certain place. It is the physical
presence of a person in a given area, community or country.
The essential distinction between residence and domicile in law
is that residence involves the intent to leave when the purpose
for which the resident has taken up his abode ends. One may
seek a place for purposes such as pleasure, business, or
health. If a person's intent be to remain, it becomes his
domicile; if his intent is to leave as soon as his purpose is
established it is residence. 22 It is thus, quite perfectly normal
for an individual to have different residences in various places.
However, a person can only have a single domicile, unless, for
various reasons, he successfully abandons his domicile in
favor of another domicile of choice. In Uytengsu
vs. Republic, 23 we laid this distinction quite clearly:
There is a difference between domicile and
residence. "Residence" is used to indicate
a place of abode, whether permanent or
temporary; "domicile" denotes a fixed
permanent residence to which, when
absent, one has the intention of returning.
A man may have a residence in one place
and a domicile in another. Residence is
not domicile, but domicile is residence
coupled with the intention to remain for an
unlimited time. A man can have but one
domicile for the same purpose at any time,
but he may have numerous places of
residence. His place of residence is
generally his place of domicile, but it is not
by any means necessarily so since no
length of residence without intention of
remaining will constitute domicile.
For political purposes the concepts of residence and domicile
are dictated by the peculiar criteria of political laws. As these
concepts have evolved in our election law, what has clearly
and unequivocally emerged is the fact that residence for
election purposes is used synonymously with domicile.
In Nuval vs. Guray, 24 the Court held that "the term
residence. . . is synonymous with domicile which imports not
only intention to reside in a fixed place, but also personal
presence in that place, coupled with conduct indicative of such
intention." 25 Larena vs. Teves  26 reiterated the same doctrine in
a case involving the qualifications of the respondent therein to
the post of Municipal President of Dumaguete, Negros
Oriental. Faypon vs. Quirino, 27 held that the absence from
residence to pursue studies or practice a profession or
registration as a voter other than in the place where one is
elected does not constitute loss of residence. 28 So settled is
the concept (of domicile) in our election law that in these and
other election law cases, this Court has stated that the mere
absence of an individual from his permanent residence without
the intention to abandon it does not result in a loss or change
of domicile.
The deliberations of the 1987 Constitution on the residence
qualification for certain elective positions have placed beyond
doubt the principle that when the Constitution speaks of
"residence" in election law, it actually means only "domicile" to
wit:
Mr. Nolledo: With respect to Section 5, I
remember that in the 1971 Constitutional
Convention, there was an attempt to
require residence in the place not less than
one year immediately preceding the day of
the elections. So my question is: What is
the Committee's concept of residence of a
candidate for the legislature? Is it actual
residence or is it the concept of domicile or
constructive residence?
Mr. Davide: Madame President, insofar as
the regular members of the National
Assembly are concerned, the proposed
section merely provides, among others,
"and a resident thereof", that is, in the
district for a period of not less than one
year preceding the day of the election.
This was in effect lifted from the 1973
Constitution, the interpretation given to it
was domicile. 29
xxx xxx xxx
Mrs. Rosario Braid: The next question is
on Section 7, page 2. I think Commissioner
Nolledo has raised the same point that
"resident" has been interpreted at times as
a matter of intention rather than actual
residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the
gentleman consider at the proper time to
go back to actual residence rather than
mere intention to reside?
Mr. De los Reyes: But we might encounter
some difficulty especially considering that
a provision in the Constitution in the Article
on Suffrage says that Filipinos living
abroad may vote as enacted by law. So,
we have to stick to the original concept
that it should be by domicile and not
physical residence. 30
In Co vs. Electoral Tribunal of the House of
Representatives, 31 this Court concluded that the framers of the
1987 Constitution obviously adhered to the definition given to
the term residence in election law, regarding it as having the
same meaning as domicile. 32
In the light of the principles just discussed, has petitioner
Imelda Romualdez Marcos satisfied the residency requirement
mandated by Article VI, Sec. 6 of the 1987 Constitution? Of
what significance is the questioned entry in petitioner's
Certificate of Candidacy stating her residence in the First
Legislative District of Leyte as seven (7) months?
It is the fact of residence, not a statement in a certificate of
candidacy which ought to be decisive in determining whether or
not and individual has satisfied the constitution's residency
qualification requirement. The said statement becomes
material only when there is or appears to be a deliberate
attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible. It would be plainly
ridiculous for a candidate to deliberately and knowingly make a
statement in a certificate of candidacy which would lead to his
or her disqualification.
It stands to reason therefore, that petitioner merely committed
an honest mistake in jotting the word "seven" in the space
provided for the residency qualification requirement. The
circumstances leading to her filing the questioned entry
obviously resulted in the subsequent confusion which prompted
petitioner to write down the period of her actual stay in Tolosa,
Leyte instead of her period of residence in the First district,
which was "since childhood" in the space provided. These
circumstances and events are amply detailed in the
COMELEC's Second Division's questioned resolution, albeit
with a different interpretation. For instance, when herein
petitioner announced that she would be registering in Tacloban
City to make her eligible to run in the First District, private
respondent Montejo opposed the same, claiming that petitioner
was a resident of Tolosa, not Tacloban City. Petitioner then
registered in her place of actual residence in the First District,
which is Tolosa, Leyte, a fact which she subsequently noted
down in her Certificate of Candidacy. A close look at said
certificate would reveal the possible source of the confusion:
the entry for residence (Item No. 7) is followed immediately by
the entry for residence in the constituency where a candidate
seeks election thus:
7. RESIDENCE (complete Address): Brgy.
Olot, Tolosa, Leyte
POST OFFICE ADDRESS FOR
ELECTION PURPOSES: Brgy. Olot,
Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY
WHERE I SEEK TO
BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION:_________
Years and Seven Months.
Having been forced by private respondent to register in her
place of actual residence in Leyte instead of petitioner's
claimed domicile, it appears that petitioner had jotted down her
period of stay in her legal residence or domicile. The
juxtaposition of entries in Item 7 and Item 8 — the first requiring
actual residence and the second requiring domicile — coupled
with the circumstances surrounding petitioner's registration as
a voter in Tolosa obviously led to her writing down an
unintended entry for which she could be disqualified. This
honest mistake should not, however, be allowed to negate the
fact of residence in the First District if such fact were
established by means more convincing than a mere entry on a
piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not
possibly be in the First District of Leyte, the Second Division of
the COMELEC, in its assailed Resolution of April 24,1995
maintains that "except for the time when (petitioner) studied
and worked for some years after graduation in Tacloban City,
she continuously lived in Manila." The Resolution additionally
cites certain facts as indicative of the fact that petitioner's
domicile ought to be any place where she lived in the last few
decades except Tacloban, Leyte. First, according to the
Resolution, petitioner, in 1959, resided in San Juan, Metro
Manila where she was also registered voter. Then, in 1965,
following the election of her husband to the Philippine
presidency, she lived in San Miguel, Manila where she as a
voter. In 1978 and thereafter, she served as a member of the
Batasang Pambansa and Governor of Metro Manila. "She
could not, have served these positions if she had not been a
resident of Metro Manila," the COMELEC stressed. Here is
where the confusion lies.
We have stated, many times in the past, that an individual does
not lose his domicile even if he has lived and maintained
residences in different places. Residence, it bears repeating,
implies a factual relationship to a given place for various
purposes. The absence from legal residence or domicile to
pursue a profession, to study or to do other things of a
temporary or semi-permanent nature does not constitute loss
of residence. Thus, the assertion by the COMELEC that "she
could not have been a resident of Tacloban City since
childhood up to the time she filed her certificate of candidacy
because she became a resident of many places" flies in the
face of settled jurisprudence in which this Court carefully made
distinctions between (actual) residence and domicile for
election law purposes. In Larena vs. Teves, 33 supra, we
stressed:
[T]his court is of the opinion and so holds
that a person who has his own house
wherein he lives with his family in a
municipality without having ever had the
intention of abandoning it, and without
having lived either alone or with his family
in another municipality, has his residence
in the former municipality, notwithstanding
his having registered as an elector in the
other municipality in question and having
been a candidate for various insular and
provincial positions, stating every time that
he is a resident of the latter municipality.
More significantly, in Faypon vs. Quirino, 34 We explained that:
A citizen may leave the place of his birth to
look for "greener pastures," as the saying
goes, to improve his lot, and that, of
course includes study in other places,
practice of his avocation, or engaging in
business. When an election is to be held,
the citizen who left his birthplace to
improve his lot may desire to return to his
native town to cast his ballot but for
professional or business reasons, or for
any other reason, he may not absent
himself from his professional or business
activities; so there he registers himself as
voter as he has the qualifications to be one
and is not willing to give up or lose the
opportunity to choose the officials who are
to run the government especially in
national elections. Despite such
registration, the animus revertendi to his
home, to his domicile or residence of origin
has not forsaken him. This may be the
explanation why the registration of a voter
in a place other than his residence of origin
has not been deemed sufficient to
constitute abandonment or loss of such
residence. It finds justification in the
natural desire and longing of every person
to return to his place of birth. This strong
feeling of attachment to the place of one's
birth must be overcome by positive proof
of abandonment for another.
From the foregoing, it can be concluded that in its above-cited
statements supporting its proposition that petitioner was
ineligible to run for the position of Representative of the First
District of Leyte, the COMELEC was obviously referring to
petitioner's various places of (actual) residence, not her
domicile. In doing so, it not only ignored settled jurisprudence
on residence in election law and the deliberations of the
constitutional commission but also the provisions of the
Omnibus Election Code (B.P. 881). 35
What is undeniable, however, are the following set of facts
which establish the fact of petitioner's domicile, which we lift
verbatim from the COMELEC's Second Division's assailed
Resolution: 36
In or about 1938 when respondent was a
little over 8 years old, she established her
domicile in Tacloban, Leyte (Tacloban
City). She studied in the Holy Infant
Academy in Tacloban from 1938 to 1949
when she graduated from high school. She
pursued her college studies in St. Paul's
College, now Divine Word University in
Tacloban, where she earned her degree in
Education. Thereafter, she taught in the
Leyte Chinese School, still in Tacloban
City. In 1952 she went to Manila to work
with her cousin, the late speaker Daniel Z.
Romualdez in his office in the House of
Representatives. In 1954, she married ex-
President Ferdinand E. Marcos when he
was still a congressman of Ilocos Norte
and registered there as a voter. When her
husband was elected Senator of the
Republic in 1959, she and her husband
lived together in San Juan, Rizal where
she registered as a voter. In 1965, when
her husband was elected President of the
Republic of the Philippines, she lived with
him in Malacanang Palace and registered
as a voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she
and her family were abducted and
kidnapped to Honolulu, Hawaii. In
November 1991, she came home to
Manila. In 1992, respondent ran for
election as President of the Philippines
and filed her Certificate of Candidacy
wherein she indicated that she is a
resident and registered voter of San Juan,
Metro Manila.
Applying the principles discussed to the facts found by
COMELEC, what is inescapable is that petitioner held various
residences for different purposes during the last four decades.
None of these purposes unequivocally point to an intention to
abandon her domicile of origin in Tacloban, Leyte. Moreover,
while petitioner was born in Manila, as a minor she naturally
followed the domicile of her parents. She grew up in Tacloban,
reached her adulthood there and eventually established
residence in different parts of the country for various reasons.
Even during her husband's presidency, at the height of the
Marcos Regime's powers, petitioner kept her close ties to her
domicile of origin by establishing residences in Tacloban,
celebrating her birthdays and other important personal
milestones in her home province, instituting well-publicized
projects for the benefit of her province and hometown, and
establishing a political power base where her siblings and close
relatives held positions of power either through the ballot or by
appointment, always with either her influence or consent.
These well-publicized ties to her domicile of origin are part of
the history and lore of the quarter century of Marcos power in
our country. Either they were entirely ignored in the
COMELEC'S Resolutions, or the majority of the COMELEC did
not know what the rest of the country always knew: the fact of
petitioner's domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban
was not petitioner's domicile of origin because she did not live
there until she was eight years old. He avers that after leaving
the place in 1952, she "abandoned her residency (sic) therein
for many years and . . . (could not) re-establish her domicile in
said place by merely expressing her intention to live there
again." We do not agree.
First, minor follows the domicile of his parents. As domicile,
once acquired is retained until a new one is gained, it follows
that in spite of the fact of petitioner's being born in Manila,
Tacloban, Leyte was her domicile of origin by operation of law.
This domicile was not established only when her father brought
his family back to Leyte contrary to private respondent's
averments.
Second, domicile of origin is not easily lost. To successfully
effect a change of domicile, one must demonstrate: 37
1. An actual removal or an actual change
of domicile;
2. A bona fide intention of abandoning the
former place of residence and establishing
a new one; and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these
criteria, the residence of origin should be deemed to continue.
Only with evidence showing concurrence of all three
requirements can the presumption of continuity or residence be
rebutted, for a change of residence requires an actual and
deliberate abandonment, and one cannot have two legal
residences at the same time. 38 In the case at bench, the
evidence adduced by private respondent plainly lacks the
degree of persuasiveness required to convince this court that
an abandonment of domicile of origin in favor of a domicile of
choice indeed occurred. To effect an abandonment requires
the voluntary act of relinquishing petitioner's former domicile
with an intent to supplant the former domicile with one of her
own choosing (domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner
lost her domicile of origin by operation of law as a result of her
marriage to the late President Ferdinand E. Marcos in 1952.
For there is a clearly established distinction between the Civil
Code concepts of "domicile" and "residence." 39 The
presumption that the wife automatically gains the husband's
domicile by operation of law upon marriage cannot be inferred
from the use of the term "residence" in Article 110 of the Civil
Code because the Civil Code is one area where the two
concepts are well delineated. Dr. Arturo Tolentino, writing on
this specific area explains:
In the Civil Code, there is an obvious
difference between domicile and
residence. Both terms imply relations
between a person and a place; but in
residence, the relation is one of fact while
in domicile it is legal or juridical,
independent of the necessity of physical
presence. 40
Article 110 of the Civil Code provides:
Art. 110. — The husband shall fix the
residence of the family. But the court may
exempt the wife from living with the
husband if he should live abroad unless in
the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the
concepts of domicile or residence as they affect the female
spouse upon marriage yields nothing which would suggest that
the female spouse automatically loses her domicile of origin in
favor of the husband's choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish
Civil Code of 1889 which states:
La mujer esta obligada a seguir a su
marido donde quiera que fije su
residencia. Los Tribunales, sin embargo,
podran con justa causa eximirla de esta
obligacion cuando el marido transende su
residencia a ultramar o' a pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia"
in the aforequoted article, which means wherever (the
husband) wishes to establish residence. This part of the article
clearly contemplates only actual residence because it refers to
a positive act of fixing a family home or residence. Moreover,
this interpretation is further strengthened by the phrase
"cuando el marido translade su residencia" in the same
provision which means, "when the husband shall transfer his
residence," referring to another positive act of relocating the
family to another home or place of actual residence. The article
obviously cannot be understood to refer to domicile which is a
fixed,
fairly-permanent concept when it plainly connotes the
possibility of transferring from one place to another not only
once, but as often as the husband may deem fit to move his
family, a circumstance more consistent with the concept of
actual residence.
The right of the husband to fix the actual residence is in
harmony with the intention of the law to strengthen and unify
the family, recognizing the fact that the husband and the wife
bring into the marriage different domiciles (of origin). This
difference could, for the sake of family unity, be reconciled only
by allowing the husband to fix a single place of actual
residence.
Very significantly, Article 110 of the Civil Code is found under
Title V under the heading: RIGHTS AND OBLIGATIONS
BETWEEN HUSBAND AND WIFE. Immediately preceding
Article 110 is Article 109 which obliges the husband and wife to
live together, thus:
Art. 109. — The husband and wife are
obligated to live together, observe mutual
respect and fidelity and render mutual help
and support.
The duty to live together can only be fulfilled if the husband and
wife are physically together. This takes into account the
situations where the couple has many residences (as in the
case of the petitioner). If the husband has to stay in or transfer
to any one of their residences, the wife should necessarily be
with him in order that they may "live together." Hence, it is
illogical to conclude that Art. 110 refers to "domicile" and not to
"residence." Otherwise, we shall be faced with a situation
where the wife is left in the domicile while the husband, for
professional or other reasons, stays in one of their (various)
residences. As Dr. Tolentino further explains:
Residence and Domicile — Whether the
word "residence" as used with reference to
particular matters is synonymous with
"domicile" is a question of some difficulty,
and the ultimate decision must be made
from a consideration of the purpose and
intent with which the word is used.
Sometimes they are used synonymously,
at other times they are distinguished from
one another.
xxx xxx xxx
Residence in the civil law is a material fact,
referring to the physical presence of a
person in a place. A person can have two
or more residences, such as a country
residence and a city residence. Residence
 is acquired by living in place; on the other
hand, domicile can exist without actually
living in the place. The important thing for
domicile is that, once residence has been
established in one place, there be an
intention to stay there permanently, even if
residence is also established in some other
place. 41
In fact, even the matter of a common residence between the
husband and the wife during the marriage is not an iron-clad
principle; In cases applying the Civil Code on the question of a
common matrimonial residence, our jurisprudence has
recognized certain situations 42 where the spouses could not be
compelled to live with each other such that the wife is either
allowed to maintain a residence different from that of her
husband or, for obviously practical reasons, revert to her
original domicile (apart from being allowed to opt for a new
one). In De la Vina vs. Villareal  43 this Court held that "[a]
married woman may acquire a residence or domicile separate
from that of her husband during the existence of the marriage
where the husband has given cause for divorce." 44 Note that
the Court allowed the wife either to obtain new residence or to
choose a new domicile in such an event. In instances where
the wife actually opts, .under the Civil Code, to live separately
from her husband either by taking new residence or reverting to
her domicile of origin, the Court has held that the wife could not
be compelled to live with her husband on pain of contempt.
In Arroyo vs. Vasques de Arroyo  45 the Court held that:
Upon examination of the authorities, we
are convinced that it is not within the
province of the courts of this country to
attempt to compel one of the spouses to
cohabit with, and render conjugal rights to,
the other. Of course where the property
rights of one of the pair are invaded, an
action for restitution of such rights can be
maintained. But we are disinclined to
sanction the doctrine that an order,
enforcible (sic) by process of contempt,
may be entered to compel the restitution of
the purely personal right of consortium. At
best such an order can be effective for no
other purpose than to compel the spouses
to live under the same roof; and he
experience of those countries where the
courts of justice have assumed to compel
the cohabitation of married people shows
that the policy of the practice is extremely
questionable. Thus in England, formerly
the Ecclesiastical Court entertained suits
for the restitution of conjugal rights at the
instance of either husband or wife; and if
the facts were found to warrant it, that
court would make a mandatory decree,
enforceable by process of contempt in
case of disobedience, requiring the
delinquent party to live with the other and
render conjugal rights. Yet this practice
was sometimes criticized even by the
judges who felt bound to enforce such
orders, and in Weldon v. Weldon (9 P.D.
52), decided in 1883, Sir James Hannen,
President in the Probate, Divorce and
Admiralty Division of the High Court of
Justice, expressed his regret that the
English law on the subject was not the
same as that which prevailed in Scotland,
where a decree of adherence, equivalent
to the decree for the restitution of conjugal
rights in England, could be obtained by the
injured spouse, but could not be enforced
by imprisonment. Accordingly, in
obedience to the growing sentiment
against the practice, the Matrimonial
Causes Act (1884) abolished the remedy
of imprisonment; though a decree for the
restitution of conjugal rights can still be
procured, and in case of disobedience may
serve in appropriate cases as the basis of
an order for the periodical payment of a
stipend in the character of alimony.
In the voluminous jurisprudence of the
United States, only one court, so far as we
can discover, has ever attempted to make
a preemptory order requiring one of the
spouses to live with the other; and that
was in a case where a wife was ordered to
follow and live with her husband, who had
changed his domicile to the City of New
Orleans. The decision referred to (Bahn v.
Darby, 36 La. Ann., 70) was based on a
provision of the Civil Code of Louisiana
similar to article 56 of the Spanish Civil
Code. It was decided many years ago, and
the doctrine evidently has not been fruitful
even in the State of Louisiana. In other
states of the American Union the idea of
enforcing cohabitation by process of
contempt is rejected. (21 Cyc., 1148).
In a decision of January 2, 1909, the
Supreme Court of Spain appears to have
affirmed an order of the Audiencia
Territorial de Valladolid requiring a wife to
return to the marital domicile, and in the
alternative, upon her failure to do so, to
make a particular disposition of certain
money and effects then in her possession
and to deliver to her husband, as
administrator of the ganancial property, all
income, rents, and interest which might
accrue to her from the property which she
had brought to the marriage. (113 Jur.
Civ., pp. 1, 11) But it does not appear that
this order for the return of the wife to the
marital domicile was sanctioned by any
other penalty than the consequences that
would be visited upon her in respect to the
use and control of her property; and it does
not appear that her disobedience to that
order would necessarily have been
followed by imprisonment for contempt.
Parenthetically when Petitioner was married to then
Congressman Marcos, in 1954, petitioner was obliged — by
virtue of Article 110 of the Civil Code — to follow her husband's
actual place of residence fixed by him. The problem here is that
at that time, Mr. Marcos had several places of residence,
among which were San Juan, Rizal and Batac, Ilocos Norte.
There is no showing which of these places Mr. Marcos did fix
as his family's residence. But assuming that Mr. Marcos had
fixed any of these places as the conjugal residence, what
petitioner gained upon marriage was actual residence. She did
not lose her domicile of origin.
On the other hand, the common law concept of "matrimonial
domicile" appears to have been incorporated, as a result of our
jurisprudential experiences after the drafting of the Civil Code
of 1950, into the New Family Code. To underscore the
difference between the intentions of the Civil Code and the
Family Code drafters, the term residence has been supplanted
by the term domicile in an entirely new provision (Art. 69)
distinctly different in meaning and spirit from that found in
Article 110. The provision recognizes revolutionary changes in
the concept of women's rights in the intervening years by
making the choice of domicile a product of mutual agreement
between the spouses. 46
Without as much belaboring the point, the term residence may
mean one thing in civil law (or under the Civil Code) and quite
another thing in political law. What stands clear is that insofar
as the Civil Code is concerned-affecting the rights and
obligations of husband and wife — the term residence should
only be interpreted to mean "actual residence." The
inescapable conclusion derived from this unambiguous civil law
delineation therefore, is that when petitioner married the former
President in 1954, she kept her domicile of origin and merely
gained a new home, not a domicilium necessarium.
Even assuming for the sake of argument that petitioner gained
a new "domicile" after her marriage and only acquired a right to
choose a new one after her husband died, petitioner's acts
following her return to the country clearly indicate that she not
only impliedly but expressly chose her domicile of origin
(assuming this was lost by operation of law) as her domicile.
This "choice" was unequivocally expressed in her letters to the
Chairman of the PCGG when petitioner sought the PCGG's
permission to "rehabilitate (our) ancestral house in Tacloban
and Farm in Olot, Leyte. . . to make them livable for the Marcos
family to have a home in our homeland." 47 Furthermore,
petitioner obtained her residence certificate in 1992 in
Tacloban, Leyte, while living in her brother's house, an act
which supports the domiciliary intention clearly manifested in
her letters to the PCGG Chairman. She could not have gone
straight to her home in San Juan, as it was in a state of
disrepair, having been previously looted by vandals. Her
"homes" and "residences" following her arrival in various parts
of Metro Manila merely qualified as temporary or "actual
residences," not domicile. Moreover, and proceeding from our
discussion pointing out specific situations where the female
spouse either reverts to her domicile of origin or chooses a new
one during the subsistence of the marriage, it would be highly
illogical for us to assume that she cannot regain her original
domicile upon the death of her husband absent a positive act of
selecting a new one where situations exist within the
subsistence of the marriage itself where the wife gains a
domicile different from her husband.
In the light of all the principles relating to residence and
domicile enunciated by this court up to this point, we are
persuaded that the facts established by the parties weigh
heavily in favor of a conclusion supporting petitioner's claim of
legal residence or domicile in the First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had
already lapsed considering that the assailed resolutions were
rendered on April 24, 1995, fourteen (14) days before the
election in violation of Section 78 of the Omnibus Election
Code. 48 Moreover, petitioner contends that it is the House of
Representatives Electoral Tribunal and not the COMELEC
which has jurisdiction over the election of members of the
House of Representatives in accordance with Article VI Sec. 17
of the Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of
judgment within a specified time is generally construed to be
merely directory, 49 "so that non-compliance with them does not
invalidate the judgment on the theory that if the statute had
intended such result it would have clearly indicated it." 50 The
difference between a mandatory and a directory provision is
often made on grounds of necessity. Adopting the same view
held by several American authorities, this court in Marcelino
vs. Cruz held that: 51
The difference between a mandatory and
directory provision is often determined on
grounds of expediency, the reason being
that less injury results to the general public
by disregarding than enforcing the letter of
the law.
In Trapp v. Mc Cormick, a case calling for
the interpretation of a statute containing a
limitation of thirty (30) days within which a
decree may be entered without the
consent of counsel, it was held that "the
statutory provisions which may be thus
departed from with impunity, without
affecting the validity of statutory
proceedings, are usually those which
relate to the mode or time of doing that
which is essential to effect the aim and
purpose of the Legislature or some
incident of the essential act." Thus, in said
case, the statute under examination was
construed merely to be directory.
The mischief in petitioner's contending that the COMELEC
should have abstained from rendering a decision after the
period stated in the Omnibus Election Code because it lacked
jurisdiction, lies in the fact that our courts and other quasi-
judicial bodies would then refuse to render judgments merely
on the ground of having failed to reach a decision within a
given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A.
6646 in relation to Section 78 of B.P. 881, 52 it is evident that
the respondent Commission does not lose jurisdiction to hear
and decide a pending disqualification case under Section 78 of
B.P. 881 even after the elections.
As to the House of Representatives Electoral Tribunal's
supposed assumption of jurisdiction over the issue of
petitioner's qualifications after the May 8, 1995 elections,
suffice it to say that HRET's jurisdiction as the sole judge of all
contests relating to the elections, returns and qualifications of
members of Congress begins only after a candidate has
become a member of the House of
Representatives. 53 Petitioner not being a member of the House
of Representatives, it is obvious that the HRET at this point has
no jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the
1987 Constitution for us to either to ignore or deliberately make
distinctions in law solely on the basis of the personality of a
petitioner in a case. Obviously a distinction was made on such
a ground here. Surely, many established principles of law, even
of election laws were flouted for the sake perpetuating power
during the pre-EDSA regime. We renege on these sacred
ideals, including the meaning and spirit of EDSA ourselves
bending established principles of principles of law to deny an
individual what he or she justly deserves in law. Moreover, in
doing so, we condemn ourselves to repeat the mistakes of the
past.
WHEREFORE, having determined that petitioner possesses
the necessary residence qualifications to run for a seat in the
House of Representatives in the First District of Leyte, the
COMELEC's questioned Resolutions dated April 24, May 7,
May 11, and May 25, 1995 are hereby SET ASIDE.
Respondent COMELEC is hereby directed to order the
Provincial Board of Canvassers to proclaim petitioner as the
duly elected Representative of the First District of Leyte.
SO ORDERED.
Feliciano, J., is on leave.
Separate Opinions
PUNO, J., concurring:
It was Aristotle who taught mankind that things that are alike
should be treated alike, while things that are unalike should be
treated unalike in proportion to their unalikeness.1 Like other
candidates, petitioner has clearly met the residence
requirement provided by Section 6, Article VI of the
Constitution.2 We cannot disqualify her and treat her unalike,
for the Constitution guarantees equal protection of the law. I
proceed from the following factual and legal propositions:
First. There is no question that petitioner's original domicile is in
Tacloban, Leyte. Her parents were domiciled in Tacloban.
Their ancestral house is in Tacloban. They have vast real
estate in the place. Petitioner went to school and thereafter
worked there. I consider Tacloban as her initial domicile, both
her domicile of origin and her domicile of choice. Her domicile
of origin as it was the domicile of her parents when she was a
minor; and her domicile of choice, as she continued living there
even after reaching the age of majority.
Second. There is also no question that in May, 1954, petitioner
married the late President Ferdinand E. Marcos. By contracting
marriage, her domicile became subject to change by law, and
the right to change it was given by Article 110 of the Civil Code
provides:
Art. 110. The husband shall fix the
residence of the family. But the court may
exempt the wife from living with the
husband if he should live abroad unless in
the service of the Republic.3 (Emphasis
supplied)
 In De la Viña v. Villareal and Geopano,4 this Court
explained why the domicile of the wife ought to follow
that of the husband. We held: "The reason is
founded upon the theoretic identity of person and
interest between the husband and the wife, and the
presumption that, from the nature of the relation, the
home of one is the home of the other. It is intended
to promote, strengthen, and secure their interests in
this relation, as it ordinarily exists, where union and
harmony prevail."5 In accord with this objective,
Article 109 of the Civil Code also obligated the
husband and wife "to live together."
Third. The difficult issues start as we determine whether
petitioner's marriage to former President Marcos ipso
facto resulted in the loss of her Tacloban domicile. I
respectfully submit that her marriage by itself alone did not
cause her to lose her Tacloban domicile. Article 110 of the Civil
Code merely gave the husband the right to fix the domicile of
the family. In the exercise of the right, the husband
may explicitly choose the prior domicile of his wife, in which
case, the wife's domicile remains unchanged. The husband can
also implicitly acquiesce to his wife's prior domicile even if it is
different. So we held in de la Viña,6
. . . . When married women as well as
children subject to parental authority
live, with the acquiescence of their
husbands or fathers, in a place distinct
from where the latter live, they have their
own independent domicile. . . .
It is not, therefore, the mere fact of marriage but the
deliberate choice of a different domicile by the
husband that will change the domicile of a wife from
what it was prior to their marriage. The domiciliary
decision made by the husband in the exercise of the
right conferred by Article 110 of the Civil Code binds
the wife. Any and all acts of a wife during her
coverture contrary to the domiciliary choice of the
husband cannot change in any way the domicile
legally fixed by the husband. These acts are void not
only because the wife lacks the capacity to choose
her domicile but also because they are contrary to
law and public policy.
In the case at bench, it is not disputed that former President
Marcos exercised his right to fix the family domicile and
established it in Batac, Ilocos Norte, where he was then the
congressman. At that particular point of time and throughout
their married life, petitioner lost her domicile in Tacloban, Leyte.
Since petitioner's Batac domicile has been fixed by operation of
law, it was not affected in 1959 when her husband was elected
as Senator, when they lived in San Juan, Rizal and where she
registered as a voter. It was not also affected in 1965 when her
husband was elected President, when they lived in
Malacañang Palace, and when she registered as a voter in San
Miguel, Manila. Nor was it affected when she served as a
member of the Batasang Pambansa, Minister of Human
Settlements and Governor of Metro Manila during the
incumbency of her husband as President of the nation. Under
Article 110 of the Civil Code, it was only her husband who
could change the family domicile in Batac and the evidence
shows he did not effect any such change. To a large degree,
this follows the common law that "a woman on her marriage
loses her own domicile and by operation of law, acquires that
of her husband, no matter where the wife actually lives or what
she believes or intends."7
Fourth. The more difficult task is how to interpret the effect of
the death on September 28, 1989 of former President Marcos
on petitioner's Batac domicile. The issue is of first
impression in our jurisdiction and two (2) schools of thought
contend for acceptance. One is espoused by our distinguished
colleague, Mr. Justice Davide, Jr., heavily relying on American
authorities.8 He echoes the theory that after the husband's
death, the wife retains the last domicile of her husband until
she makes an actual change.
I do not subscribe to this submission. The American case law
that the wife still retains her dead husband's domicile is based
on ancient common law which we can no longer apply in the
Philippine setting today. The common law identified the
domicile of a wife as that of the husband and denied to her the
power of acquiring a domicile of her own separate and apart
from him.9 Legal scholars agree that two (2) reasons support
this common law doctrine. The first reason as pinpointed by
the legendary Blackstone is derived from the view that "the
very being or legal existence of the woman is suspended
during
the marriage, or at least is incorporated and consolidated into
that of the husband."10 The second reason lies in "the
desirability of having the interests of each member of the family
unit governed by the same law."11 The presumption that the
wife retains the domicile of her deceased husband is
an extension of this common law concept. The concept and its
extension have provided some of the most iniquitous
jurisprudence against women. It was under common law that
the 1873 American case of Bradwell v. Illinois 12 was decided
where women were denied the right to practice law. It was
unblushingly ruled that "the natural and proper timidity and
delicacy which belongs to the female sex evidently unfits it for
many of the occupations of civil life . . . This is the law of the
Creator." Indeed, the rulings relied upon by Mr. Justice Davide
in CJS 13 and AM JUR 2d14 are American state court decisions
handed down between the years 191715 and 1938,16 or before
the time when women were accorded equality of rights with
men. Undeniably, the women's liberation movement resulted in
far-ranging state legislations in the United States to eliminate
gender inequality.17 Starting in the decade of the seventies, the
courts likewise liberalized their rulings as they started
invalidating laws infected with gender-bias. It was in 1971 when
the US Supreme Court in Reed v. Reed,18 struck a big blow for
women equality when it declared as unconstitutional an Idaho
law that required probate courts to choose male family
members over females as estate administrators. It held that
mere administrative inconvenience cannot justify a sex-based
distinction. These significant changes both in law and in case
law on the status of women virtually obliterated the iniquitous
common law surrendering the rights of married women to their
husbands based on the dubious theory of the parties' theoretic
oneness. The Corpus Juris Secundum editors did not miss the
relevance of this revolution on women's right as they observed:
"However, it has been declared that under modern
statutes changing the status of married women and departing
from the common law theory of marriage, there is no reason
why a wife may not acquire a separate domicile for every
purpose known to the law."19 In publishing in 1969
the Restatement of the Law, Second (Conflict of Laws 2d), the
reputable American Law Institute also categorically stated that
the view of Blackstone ". . . is no longer held. As the result of
statutes and court decisions, a wife now possesses practically
the same rights and powers as her unmarried sister."20
In the case at bench, we have to decide whether we should
continue clinging to the anachronistic common law that
demeans women, especially married women. I submit that the
Court has no choice except to break away from this common
law rule, the root of the many degradations of Filipino women.
Before 1988, our laws particularly the Civil Code, were full of
gender discriminations against women. Our esteemed
colleague, Madam Justice Flerida Ruth Romero, cited a few of
them as follows:21
xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under
the Civil Code, wives suffer under certain
restrictions or disabilities. For instance, the
wife cannot accept gifts from others,
regardless of the sex of the giver or the
value of the gift, other than from her very
close relatives, without her husband's
consent. She may accept only from, say,
her parents, parents-in-law, brothers,
sisters and the relatives within the so-
called fourth civil degree. She may not
exercise her profession or occupation or
engage in business if her husband objects
on serious grounds or if his income is
sufficient to support their family in
accordance with their social standing. As
to what constitutes "serious grounds" for
objecting, this is within the discretion of the
husband.
xxx xxx xxx
 Because of the present inequitable the absolute community system or in the system of conjugal Rosario v. Del
situation, the amendments to the Civil Law partnership;23 joint parental authority over their minor children, Rosario, CA, 46 OG
being proposed by the University of the both over their persons as well as their properties;24 joint 6122);
Philippines Law Center would allow responsibility for the support of the family;25 the right to jointly
absolute divorce which severes the manage the household;26 and, the right to object to their
(d) Where the
matrimonial ties, such that the divorced husband's exercise of profession, occupation, business or
husband has
spouses are free to get married a year activity.27 Of particular relevance to the case at bench is Article
continuously carried
after the divorce is decreed by the courts. 69 of the Family Code which took away the exclusive right of
illicit relations for 10
However, in order to place the husband the husband to fix the family domicile and gave it jointly to the
years with different
and wife on an equal footing insofar as the husband and the wife, thus:
women and treated his
bases for divorce are concerned, the
wife roughly and
following are specified as the grounds for
Art. 69. The husband and wife shall fix the without consideration.
absolute divorce: (1) adultery or having a
family domicile. In case of disagreement, (Dadivas v.
paramour committed by the respondent in
the court shall decide. Villanueva, 54 Phil.
any of the ways specified in the Revised
92);
Penal Code or (2) an attempt by the
respondent against the life of the petitioner The court may exempt one spouse from
which amounts to attempted parricide living with the other if the latter should live (e) Where the
under the Revised Penal Code; (3) abroad or there are other valid and husband spent his
abandonment of the petitioner by the compelling reasons for the exemption. time in gambling,
respondent without just cause for a period However, such exemption shall not apply if giving no money to his
of three consecutive years; or (4) habitual the same is not compatible with the family for food and
maltreatment. solidarity of the family. (Emphasis necessities, and at the
supplied) same time insulting his
wife and laying hands
With respect to property relations, the
on her. (Panuncio v.
husband is automatically the administrator Article 69 repealed Article 110 of the Civil Code.
Sula, CA, 34 OG 129);
of the conjugal property owned in common Commenting on the duty of the husband and wife to
by the married couple even if the wife may live together, former Madam Justice Alice Sempio-
be the more astute or enterprising partner. Diy of the Court of Appeals specified the instances (f) If the husband has
The law does not leave it to the spouses to when a wife may now refuse to live with her no fixed residence and
decide who shall act as such administrator. husband, thus:28 lives a vagabond life
Consequently, the husband is authorized as a tramp (1 Manresa
to engage in acts and enter into 329);
(2) The wife has the duty to live with her
transactions beneficial to the conjugal
husband, but she may refuse to do so in
partnership. The wife, however, cannot
certain cases like: (g) If the husband is
similarly bind the partnership without the
carrying on a shameful
husband's consent.
business at home
(a) If the place chosen
(Gahn v. Darby, 38 La.
by the husband as
And while both exercise joint parental Ann. 70).
family residence is
authority over their children, it is the father
dangerous to her Life;
whom the law designates as the legal
The inescapable conclusion is that our Family Code
administrator of the property pertaining to
has completely emancipated the wife from the
the unemancipated child. (b) If the husband
control of the husband, thus abandoning the parties'
subjects her to
theoretic identity of interest. No less than the late
maltreatment or
Taking the lead in Asia, our government exerted revered Mr. Justice J.B.L. Reyes who chaired the
abusive conduct or
efforts, principally through legislations, to eliminate Civil Code Revision Committee of the UP Law Center
insults, making
inequality between men and women in our land. The gave this insightful view in one of his rare lectures
common life
watershed came on August 3, 1988 when our Family after retirement:29
impossible;
Code took effect which, among others, terminated
the unequal treatment of husband and wife as to
xxx xxx xxx
their rights and responsibilities.22 (c) If the husband
compels her to live
with his parents, but The Family Code is primarily intended to
The Family Code attained this elusive objective by giving new
she cannot get along reform the family law so as to emancipate
rights to married women and by abolishing sex-based
with her mother-in-law the wife from the exclusive control of the
privileges of husbands. Among others, married women are now
and they have husband and to place her at parity with him
given the joint right to administer the family property, whether in
constant quarrels (Del insofar as the family is concerned. The
 wife and the husband are now placed on act but through the act of her deceased husband when he fixed Saints' Day and All
equal standing by the Code. They are now their domicile in Batac. Her husband is dead and he cannot Souls' Day that year, I
joint administrators of the family properties rule her beyond the grave. The law disabling her to choose her renovated my parents'
and exercise joint authority over the own domicile has been repealed. Considering all these, burial grounds and
persons and properties of their children. common law should not put the burden on petitioner to prove entombed their bones
This means a dual authority in the she has abandoned her dead husband's domicile. There is which had been
family. The husband will no longer prevail neither rhyme nor reason for this gender-based burden. excalvated, unearthed
over the wife but she has to agree on all and scattered.
matters concerning the family. (Emphasis
But even assuming arguendo that there is need for convincing
supplied)
proof that petitioner chose to reacquire her Tacloban domicile, 41. On November 29, 1993, I formally
still, the records reveal ample evidence to this effect. In her wrote PCGG Chairman Magtanggol
In light of the Family Code which abrogated the affidavit submitted to the respondent COMELEC, petitioner Gunigundo for permissions to —
inequality between husband and wife as started and averred:
perpetuated by the common law, there is no reason
. . . rehabilitate . . .
in espousing the anomalous rule that the wife still
xxx xxx xxx (o)ur ancestral house
retains the domicile of her dead husband. Article 110
in Tacloban and
of the Civil Code which provides the statutory
farmhouse in Olot,
support for this stance has been repealed by Article 36. In November, 1991, I came home to
Leyte . . . to make
69 of the Family Code. By its repeal, it becomes a our beloved country, after several requests
them livable for us the
dead-letter law, and we are not free to resurrect it by for my return were denied by President
Marcos family to have
giving it further effect in any way or manner such as Corazon C. Aquino, and after I filed suits
a home in our own
by ruling that the petitioner is still bound by the for our Government to issue me my
motherland.
domiciliary determination of her dead husband. passport.

xxx xxx xxx

Aside from reckoning with the Family Code, we have to 37. But I came home without the mortal
consider our Constitution and its firm guarantees of due remains of my beloved husband, President
process and equal protection of Ferdinand E. Marcos, which the 42. It was only on 06 June 1994, however,
law.30 It can hardly be doubted that the common law imposition Government considered a threat to the when PCGG Chairman Gunigundo, in his
on a married woman of her dead husband's domicile even national security and welfare. letter to Col. Simeon Kempis, Jr., PCGG
beyond his grave is patently discriminatory to women. It is a Region 8 Representative, allowed me to
gender-based discrimination and is not rationally related to the repair and renovate my Leyte residences. I
38. Upon my return to the country, I
objective of promoting family solidarity. It cannot survive a quote part of his letter:
wanted to immediately live and reside in
constitutional challenge. Indeed, compared with our previous
Tacloban City or in Olot, Tolosa, Leyte,
fundamental laws, the 1987 Constitution is more concerned
even if my residences there were not Dear Col. Kempis,
with equality between sexes as it explicitly commands that the
livable as they had been destroyed and
State ". . . shall ensure fundamental equality before the law of
cannibalized. The PCGG, however, did not
women and men." To be exact, section 14, Article II provides: Upon representation
permit and allow me.
"The State recognizes the role of women in nation building, and by Mrs. Imelda R.
shall ensure fundamental equality before the law of women and Marcos to this
men. We shall be transgressing the sense and essence of this 39. As a consequence, I had to live at Commission, that she
constitutional mandate if we insist on giving our women the various times in the Westin Philippine intends to visit our
caveman's treatment. Plaza in Pasay City, a friend's apartment sequestered
on Ayala Avenue, a house in South Forbes properties in Leyte,
Park which my daughter rented, and please allow her
Prescinding from these premises, I respectfully submit that the
Pacific Plaza, all in Makati. access thereto. She
better stance is to rule that petitioner reacquired her Tacloban
may also cause
domicile upon the death of her husband in 1989. This is the
repairs and renovation
necessary consequence of the view that petitioner's Batac 40. After the 1992 Presidential Elections, I
of the sequestered
dictated domicile did not continue after her husband's death; lived and resided in the residence of my
properties, in which
otherwise, she would have no domicile and that will violate the brother in San Jose, Tacloban City, and
event, it shall be
universal rule that no person can be without a domicile at any pursued my negotiations with PCGG to
understood that her
point of time. This stance also restores the right of petitioner to recover my sequestered residences in
undertaking said
choose her domicile before it was taken away by Article 110 of Tacloban City and Barangay Olot, Tolosa,
repairs is not
the Civil Code, a right now recognized by the Family Code and Leyte.
authorization for her to
protected by the Constitution. Likewise, I cannot see the
take over said
fairness of the common law requiring petitioner to choose again
40.1 In preparation for properties, and that all
her Tacloban domicile before she could be released from her
my observance of All expenses shall be for
Batac domicile. She lost her Tacloban domicile not through her
 her account and not
reimbursable. Please
extend the necessary
courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live
and stay in the Sto. Niño Shrine residence
in Tacloban City where I wanted to stay
and reside, after repairs and renovations
were completed. In August 1994, I
transferred from San Jose, Tacloban City,
to my residence in Barangay Olot, Tolosa,
Leyte, when PCGG permitted me to stay
and live there.
It is then clear that in 1992 petitioner reestablished
her domicile in the First District of Leyte. It is not
disputed that in 1992, she first lived at the house of
her brother in San Jose, Tacloban City and later, in
August 1994, she transferred her residence in
Barangay Olot, Tolosa, Leyte. Both Tacloban City
and the municipality of Olot are within the First
District of Leyte. Since petitioner reestablished her
old domicile in 1992 in the First District of Leyte, she
more than complied with the constitutional
requirement of residence
". . . for a period of not less than one year
immediately preceding the day of the election," i.e.,
the May 8, 1995 elections.
The evidence presented by the private respondent to negate
the Tacloban domicile of petitioner is nil. He presented
petitioner's Voter's Registration Record filed with the Board of
Election Inspectors of Precinct 10-A of Barangay Olot, Tolosa,
Leyte wherein she stated that her period of residence in said
barangay was six (6) months as of the date of her filing of said
Voter's Registration Record on January 28, 1995.31 This
statement in petitioner's Voter's Registration Record is a non-
prejudicial admission. The Constitution requires at least one (1)
year residence in the district in which the candidate shall be
elected. In the case at bench, the reference is the First District
of Leyte. Petitioner's statement proved that she resided in Olot
six (6) months before January 28, 1995 but did not
disprove that she has also resided in Tacloban City starting
1992. As aforestated, Olot and Tacloban City are both within
the First District of Leyte, hence, her six (6) months residence
in Olot should be counted not against, but in her favor. Private
respondent also presented petitioner's Certificate of Candidacy
filed on March 8, 199532 where she placed seven (7) months
after Item No. 8 which called for information regarding
"residence in the constituency where I seek to be elected
immediately preceding the election." Again, this original
certificate of candidacy has no evidentiary value because an
March 1, 1995 it was corrected by petitioner. In her
Amended/Corrected Certificate of Candidacy,33 petitioner wrote
"since childhood" after Item No. 8. The amendment of a
certificate of candidacy to correct a bona fide mistake has been
allowed by this Court as a matter of course and as a matter of
right. As we held in Alialy v. COMELEC,34 viz.:
xxx xxx xxx
The absence of the signature of the
Secretary of the local chapter N.P in the
original certificate of candidacy presented
before the deadline September 11, 1959,
did not render the certificate invalid. The
amendment of the certificate, although at a
date after the deadline, but before the
election, was substantial compliance with
the law, and the defect was cured.
It goes without saying that petitioner's erroneous
Certificate of Candidacy filed on March 8, 1995
cannot be used as evidence against her. Private
respondent's petition for the disqualification of
petitioner rested alone on these two (2) brittle pieces
of documentary evidence — petitioner's Voter's
Registration Record and her original Certificate of
Candidacy. Ranged against the evidence of the
petitioner showing her ceaseless contacts with
Tacloban, private respondent's two (2) pieces of
evidence are too insufficient to disqualify petitioner,
more so, to deny her the right to represent the
people of the First District of Leyte who have
overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution mandates that
"bona fide candidates for any public office shall be free from
any form of harassment and discrimination."35 A detached
reading of the records of the case at bench will show that all
forms of legal and extra-legal obstacles have been thrown
against petitioner to prevent her from running as the people's
representative in the First District of Leyte. In petitioner's
Answer to the petition to disqualify her, she averred:36
xxx xxx xxx
10. Petitioner's (herein private respondent
Montejo) motive in filing the instant petition
is devious. When respondent (petitioner
herein) announced that she was intending
to register as a voter in Tacloban City and
run for Congress in the First District of
Leyte, petitioner (Montejo) immediately
opposed her intended registration by
writing a letter stating that "she is not a
resident of said city but of Barangay Olot,
Tolosa, Leyte." (Annex "2" of respondent's
affidavit, Annex "2"). After respondent
(petitioner herein) had registered as a
voter in Tolosa following completion of her
six-month actual residence therein,
petitioner (Montejo) filed a petition with the
COMELEC to transfer the town of Tolosa
from the First District to the Second District
and pursued such move up to the
Supreme Court in G.R. No. 118702, his
purpose being to remove respondent
(petitioner herein) as petitioner's
(Montejo's) opponent in the congressional
election in the First District. He also filed a
bill, along with other Leyte Congressmen,
seeking to create another legislative
district, to remove the town of Tolosa out
of the First District and to make it a part of
the new district, to achieve his purpose.
However, such bill did not pass the
Senate. Having, failed on such moves,
petitioner now filed the instant petition, for
the same objective, as it is obvious that he
is afraid to submit himself along with
respondent (petitioner herein) for the
judgment and verdict of the electorate of
the First District of Leyte in an honest,
orderly, peaceful, free and clean elections
on May 8, 1995.
These allegations which private respondent did not
challenge were not lost
to the perceptive eye of Commissioner Maambong
who in his Dissenting Opinion,37 held:
xxx xxx xxx
Prior to the registration date — January
28, 1995 the petitioner (herein private
respondent Montejo) wrote the Election
Officer of Tacloban City not to allow
respondent (petitioner herein) to register
thereat since she is a resident of Tolosa
and not Tacloban City. The purpose of this
move of the petitioner (Montejo) is not lost
to (sic) the Commission. In UND No. 95-
001 (In the matter of the Legislative
Districts of the Provinces of Leyte, Iloilo,
and South Cotabato, Out of Which the
New Provinces of Biliran, Guimaras and
Saranggani Were Respectively
Created), . . . Hon. Cirilo Roy G. Montejo,
Representative, First District of Leyte,
wanted the Municipality of Tolosa, in the
First District of Leyte, transferred to the
Second District of Leyte. The Hon. Sergio
A.F. Apostol, Representative of the
Second District of Leyte, opposed the
move of the petitioner (Montejo). Under
Comelec Resolution No. 2736 (December
29, 1994), the Commission on Elections
refused to make the proposed transfer.
Petitioner (Montejo) filed "Motion for
Reconsideration of Resolution
No. 2736" which the Commission denied in
a Resolution promulgated on February 1,
1995. Petitioner (Montejo) filed a petition
for certiorari before the Honorable
Supreme Court (Cirilo Roy G. Montejo vs.
Commission on Elections, G.R. No.
118702) questioning the resolution of the
Commission. Believing that he could get a
favorable ruling from the Supreme Court,
petitioner (Montejo) tried to make sure that
the respondent (petitioner herein) will
register as a voter in Tolosa so that she
will be forced to run as Representative not
in the First but in the Second District.
It did not happen. On March 16, 1995, the
Honorable Supreme Court unanimously
promulgated a "Decision," penned by
Associate Justice Reynato S. Puno, the
dispositive portion of which reads:
IN VIEW WHEREOF,
Section 1 of
Resolution No. 2736
insofar as it
transferred the
municipality of
Capoocan of the
Second District and
the municipality of
Palompon of the
Fourth District to the
Third District of the
province of Leyte, is
annulled and set
aside. We also deny
the Petition praying for
the transfer of the
municipality of Tolosa
from the First District
to the Second District
of the province of
Leyte. No costs.
Petitioner's (Montejo's) plan did not work.
But the respondent (petitioner herein) was
constrained to register in the Municipality
of Tolosa where her house is instead of
Tacloban City, her domicile. In any case,
both Tacloban City and Tolosa are in the
First Legislative District.
All these attempts to misuse our laws and legal FRANCISCO, J., concurring:
processes are forms of rank harassments and
invidious discriminations against petitioner to deny
I concur with Mr. Justice Kapunan's ponencia finding petitioner
her equal access to a public office. We cannot
qualified for the position of Representative of the First
commit any hermeneutic violence to the Constitution
Congressional District of Leyte. I wish, however, to express a
by torturing the meaning of equality, the end result of
few comments on the issue of petitioner's domicile.
which will allow the harassment and discrimination of
petitioner who has lived a controversial life, a past of
alternating light and shadow. There is but one Domicile has been defined as that place in which a person's
Constitution for all Filipinos. Petitioner cannot be habitation is fixed, without any present intention of removing
adjudged by a "different" Constitution, and the worst therefrom, and that place is properly the domicile of a person in
way to interpret the Constitution is to inject in its which he has voluntarily fixed his abode, or habitation, not for a
interpretation, bile and bitterness. mere special or temporary purpose, but with a present intention
of making it his permanent home (28 C.J.S. §1). It denotes a
fixed permanent residence to which when absent for business,
Sixth. In Gallego v. Vera,38 we explained that the reason for this
or pleasure, or for like reasons one intends to return, and
residence requirement is "to exclude a stranger or newcomer,
depends on facts and circumstances, in the sense that they
unacquainted, with the conditions and needs of a community
disclose intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)
and not identified with the latter, from an elective office to serve
that community . . . ." Petitioner's lifetime contacts with the First
District of Leyte cannot be contested. Nobody can claim that Domicile is classified into domicile of origin and domicile of
she is not acquainted with its problems because she is a choice. The law attributes to every individual a domicile of
stranger to the place. None can argue she cannot satisfy the origin, which is the domicile of his parents, or of the head of his
intent of the Constitution. family, or of the person on whom he is legally dependent at the
time of his birth. While the domicile of origin is generally the
place where one is born or reared, it maybe elsewhere (28
Seventh. In resolving election cases, a dominant consideration
C.J.S. §5). Domicile of choice, on the other hand, is the place
is the need to effectuate the will of the electorate. The election
which the person has elected and chosen for himself to
results show that petitioner received Seventy Thousand Four
displace his previous domicile; it has for its true basis or
Hundred Seventy-one (70,471) votes, while private respondent
foundation the intention of the person (28 C.J.S. §6). In order to
got only Thirty-Six Thousand Eight Hundred Thirty-Three
hold that a person has abandoned his domicile and acquired a
(36,833) votes. Petitioner is clearly the overwhelming choice of
new one called domicile of choice, the following requisites must
the electorate of the First District of Leyte and this is not a
concur, namely, (a) residence or bodily presence in the new
sleight of statistics. We cannot frustrate this sovereign will on
locality, (b) intention to remain there or animus manendi, and
highly arguable technical considerations. In case of doubt, we
(c) an intention to abandon the old domicile or animus non
should lean towards a rule that will give life to the people's
revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226
political judgment.
SCRA 408, 415). A third classification is domicile by operation
of law which attributes to a person a domicile independent of
A final point. The case at bench provides the Court with the his own intention or actual residence, ordinarily resulting from
rare opportunity to rectify the inequality of status between legal domestic relations, as that of the wife arising from
women and men by rejecting the iniquitous common law marriage, or the relation of a parent and a child (28 C.J.S. §7).
precedents on the domicile of married women and by
redefining domicile in accord with our own culture, law, and
In election law, when our Constitution speaks of residence for
Constitution. To rule that a married woman is eternally tethered
election purposes it means domicile (Co v. Electoral Tribunal of
to the domicile dictated by her dead husband is to preserve the
the House of Representatives, 199 SCRA 692, 713; Nuval v.
anachronistic and anomalous balance of advantage of a
Guray, 52 Phil. 645, 651). To my mind, public respondent
husband over his wife. We should not allow the dead to govern
Commission on Elections misapplied this concept, of domicile
the living even if the glories of yesteryears seduce us to shout
which led to petitioner's disqualification by ruling that petitioner
long live the dead! The Family Code buried this gender-based
failed to comply with the constitutionally mandated one-year
discrimination against married women and we should not
residence requirement. Apparently, public respondent
excavate what has been entombed. More importantly, the
Commission deemed as conclusive petitioner's stay and
Constitution forbids it.
registration as voter in many places as conduct disclosing her
intent to abandon her established domicile of origin in
I vote to grant the petition. Tacloban, Leyte. In several decisions, though, the Court has
laid down the rule that registration of a voter in a place other
than his place of origin is not sufficient to constitute
Bellosillo and Melo, JJ., concur.
abandonment or loss of such residence (Faypon v. Quirino, 96
Phil. 294, 300). Respondent Commission offered no cogent
reason to depart from this rule except to surmise petitioner's
intent of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was
supplanted by a new domicile due to her marriage, a domicile
by operation of law. The proposition is that upon the death of
her husband in 1989 she retains her husband's domicile, i.e.,
Batac, Ilocos Norte, until she makes an actual change thereof. I
find this proposition quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was
involuntarily supplanted with another, i.e., Batac, Ilocos Norte,
upon her marriage in 1954 with then Congressman Marcos. By
legal fiction she followed the domicile of her husband. In my
view, the reason for the law is for the spouses to fully and
effectively perform their marital duties and obligations to one
another.1 The question of domicile, however, is not affected by
the fact that it was the legal or moral duty of the individual to
reside in a given place (28 C.J.S. §11). Thus, while the wife
retains her marital domicile so long as the marriage subsists,
she automatically loses it upon the latter's termination, for the
reason behind the law then ceases. Otherwise, petitioner, after
her marriage was ended by the death of her husband, would be
placed in a quite absurd and unfair situation of having been
freed from all wifely obligations yet made to hold on to one
which no longer serves any meaningful purpose.
It is my view therefore that petitioner reverted to her original
domicile of Tacloban, Leyte upon her husband's death without
even signifying her intention to that effect. It is for the private
respondent to prove, not for petitioner to disprove, that
petitioner has effectively abandoned Tacloban, Leyte for Batac,
Ilocos Norte or for some other place/s. The clear rule is that it is
the party (herein private respondent) claiming that a person
has abandoned or lost his residence of origin who must show
and prove preponderantly such abandonment or loss (Faypon
v. Quirino, supra at 298; 28 C.J.S. §16), because the
presumption is strongly in favor of an original or former
domicile, as against an acquired one (28 C.J.S. §16). Private
respondent unfortunately failed to discharge this burden as the
record is devoid of convincing proof that petitioner has acquired
whether voluntarily or involuntarily, a new domicile to replace
her domicile of origin.
The records, on the contrary, clearly show that petitioner has
complied with the constitutional one-year residence
requirement. After her exile abroad, she returned to the
Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the
Presidential Commission on Good Government which
sequestered her residential house and other properties forbade
her necessitating her transient stay in various places in Manila
(Affidavit p.6, attached as Annex I of the Petition). In 1992, she
ran for the position of president writing in her certificate of
candidacy her residence as San Juan, Metro Manila. After her
loss therein, she went back to Tacloban City, acquired her
residence certificate2 and resided with her brother in San Jose.
She resided in San Jose, Tacloban City until August of 1994
when she was allowed by the PCGG to move and reside in her
sequestered residential house in Olot, Tolosa, Leyte (Annex I,
p. 6).3 It was in the same month of August when she applied for
the cancellation of her previous registration in San Juan, Metro
Manila in order to register anew as voter of Olot, Tolosa, Leyte,
which she did on January 28, 1995. From this sequence of
events, I find it quite improper to use as the reckoning period of
the one-year residence requirement the date when she applied
for the cancellation of her previous registration in San Juan,
Metro Manila. The fact which private respondent never
bothered to disprove is that petitioner transferred her residence
after the 1992 presidential election from San Juan, Metro
Manila to San Jose, Tacloban City, and resided therein until
August of 1994. She later transferred to Olot, Tolosa, Leyte
(Annex I, p. 7). It appearing that both Tacloban City and
Tolosa, Leyte are within the First Congressional District of
Leyte, it indubitably stands that she had more than a year of
residence in the constituency she sought to be elected.
Petitioner, therefore, has satisfactorily complied with the one-
year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J., separate opinion:
Petitioner has appealed to this Court for relief after the
COMELEC ruled that she was disqualified from running for
Representative of her District and that, in the event that she
should, nevertheless, muster a majority vote, her proclamation
should be suspended. Not by a straightforward ruling did the
COMELEC pronounce its decision as has been its unvarying
practice in the past, but by a startling succession of "reverse
somersaults." Indicative of its shifting stance vis-a-
vis petitioner's certificate of candidacy were first, the action of
its Second Division disqualifying her and canceling her original
Certificate of Candidacy by a vote of 2-1 on April 24, 1995;
then the denial by the COMELEC en banc of her Motion for
Reconsideration on May 7, 1995, a day before the election;
then because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her
proclamation in the event that the results of the canvass should
show that she obtained the highest number of votes (obviously
noting that petitioner had won overwhelmingly over her
opponent), but almost simultaneously reversing itself by
directing that even if she wins, her proclamation should
nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented
by the case at bench is the interpretation to be given to the
one-year residency requirement imposed by the Constitution
on aspirants for a Congressional seat.1
Bearing in mind that the term "resident" has been held to be
synonymous with "domicile" for election purposes, it is
important to determine whether petitioner's domicile was in the
First District of Leyte and if so, whether she had resided there
for at least a period of one year. Undisputed is her domicile of
origin, Tacloban, where her parents lived at the time of her
birth. Depending on what theory one adopts, the same may
have been changed when she married Ferdinand E. Marcos,
then domiciled in Batac, by operation of law. Assuming it did,
his death certainly released her from the obligation to live with
him at the residence fixed by him during his lifetime. What may
confuse the layman at this point is the fact that the term
"domicile" may refer to "domicile of origin," "domicile of choice,"
or "domicile by operation of law," which subject we shall not
belabor since it has been amply discussed by the ponente and
in the other separate opinions.
In any case, what assumes relevance is the divergence of legal
opinion as to the effect of the husband's death on the domicile
of the widow. Some scholars opine that the widow's domicile
remains unchanged; that the deceased husband's wishes
perforce still bind the wife he has left behind. Given this
interpretation, the widow cannot possibly go far enough to
sever the domiciliary tie imposed by her husband.
It is bad enough to interpret the law as empowering the
husband unilaterally to fix the residence or domicile of the
family, as laid down in the Civil Code,2 but to continue giving
obeisance to his wishes even after the rationale underlying the
mutual duty of the spouses to live together has ceased, is to
close one's eyes to the stark realities of the present.
At the other extreme is the position that the widow
automatically reverts to her domicile of origin upon the demise
of her husband. Does the law so abhor a vacuum that the
widow has to be endowed somehow with a domicile? To
answer this question which is far from rhetorical, one will have
to keep in mind the basic principles of domicile. Everyone must
have a domicile. Then one must have only a single domicile for
the same purpose at any given time. Once established, a
domicile remains until a new one is acquired, for no person
lives who has no domicile, as defined by the law be is subject
to.
At this juncture, we are confronted with an unexplored legal
terrain in this jurisdiction, rendered more murky by the
conflicting opinions of foreign legal authorities. This being the
state of things, it is imperative as it is opportune to illumine the
darkness with the beacon light of truth, as dictated by
experience and the necessity of according petitioner her right
to choose her domicile in keeping with the enlightened global
trend to recognize and protect the human rights of women, no
less than men.
Admittedly, the notion of placing women at par with men,
insofar as civil, political and social rights are concerned, is a
relatively recent phenomenon that took seed only in the middle
of this century. It is a historical fact that for over three centuries,
the Philippines had been colonized by Spain, a conservative,
Catholic country which transplanted to our shores the Old
World cultures, mores and attitudes and values. Through the
imposition on our government of the Spanish Civil Code in
1889, the people, both men and women, had no choice but to
accept such concepts as the husband's being the head of the
family and the wife's subordination to his authority. In such role,
his was the right to make vital decisions for the family. Many
instances come to mind, foremost being what is related to the
issue before us, namely, that "the husband shall fix the
residence of the family." 3 Because he is made responsible for
the support of the wife and the rest of the family, 4 he is also
empowered to be the administrator of the conjugal property,
with a few exceptions 5 and may, therefore, dispose of the
conjugal partnership property for the purposes specified
under the law;6 whereas, as a general rule, the wife cannot
bind the conjugal partnership without the husband's
consent.7 As regards the property pertaining to the
children under parental authority, the father is the legal
administrator and only in his absence may the mother
assume his powers.8 Demeaning to the wife's dignity are
certain strictures on her personal freedoms, practically
relegating her to the position of minors and disabled
persons. To illustrate a few: The wife cannot, without the
husband's consent, acquire any gratuitous title, except
from her ascendants, descendants, parents-in-law, and
collateral relatives within the fourth degree.9 With respect
to her employment, the husband wields a veto power in the
case the wife exercises her profession or occupation or
engages in business, provided his income is sufficient for
the family, according to its social standing and his
opposition is founded on serious and valid
grounds. 10 Most offensive, if not repulsive, to the liberal-
minded is the effective prohibition upon a widow to get
married till after three hundred days following the death of
her husband, unless in the meantime, she has given birth
to a child. 11 The mother who contracts a subsequent
marriage loses the parental authority over her children,
unless the deceased husband, father of the latter, has
expressly provided in his will that his widow might marry
again, and has ordered that in such case she should keep
and exercise parental authority over their
children. 12 Again, an instance of a husband's overarching
influence from beyond the grave.
All these indignities and disabilities suffered by Filipino
wives for hundreds of years evoked no protest from them
until the concept of human rights and equality between
and among nations and individuals found hospitable
lodgment in the United Nations Charter of which the
Philippines was one of the original signatories. By then,
the Spanish "conquistadores" had been overthrown by the
American forces at the turn of the century. The bedrock of
the U.N. Charter was firmly anchored on this credo: "to
reaffirm faith in the fundamental human rights, in the
dignity and worth of the human person, in the equal rights
of men and women." (Emphasis supplied)
It took over thirty years before these egalitarian (1) Women shall have the capacity to borrow and obtain loans
doctrines bore fruit, owing largely to the and execute security and credit arrangements under the same
burgeoning of the feminist movement. What may conditions as men;
be regarded as the international bill of rights for
women was implanted in the Convention on the
(2) Women shall have equal access to all government and
Elimination of All Forms of Discrimination
private sector programs granting agricultural credit, loans and
Against Women (CEDAW) adopted by the U.N.
non material resources and shall enjoy equal treatment in
General Assembly which entered into force as an
agrarian reform and land resettlement programs;
international treaty on September 3, 1981. In
ratifying the instrument, the Philippines bound
itself to implement its liberating spirit and letter, (3) Women shall have equal rights to act as incorporators and
for its Constitution, no less, declared that "The enter into insurance contracts; and
Philippines. . . adopts the generally accepted
principles of international law as part of the law
(4) Married women shall have rights equal to those of married
of the land and adheres to the policy of peace,
men in applying for passports, secure visas and other travel
equality, justice, freedom, cooperation, and amity
documents, without need to secure the consent of their
with all nations." 13 One such principle embodied
spouses.
in the CEDAW is granting to men and women
"the same rights with regard to the law relating to
the movement of persons and the freedom to As the world draws the curtain on the Fourth World Conference
choose their residence and of Women in Beijing, let this Court now be the first to respond
domicile." 14 (Emphasis supplied). to its clarion call that "Women's Rights are Human Rights" and
that "All obstacles to women's full participation in decision-
making at all levels, including the family" should be removed.
CEDAW's pro-women orientation which was not lost on
Having been herself a Member of the Philippine Delegation to
Filipino women was reflected in the 1987 Constitution of
the International Women's Year Conference in Mexico in 1975,
the Philippines and later, in the Family Code, 15 both of
this writer is only too keenly aware of the unremitting struggle
which were speedily approved by the first lady President
being waged by women the world over, Filipino women not
of the country, Corazon C. Aquino. Notable for its
excluded, to be accepted as equals of men and to tear down
emphasis on the human rights of all individuals and its
the walls of discrimination that hold them back from their proper
bias for equality between the sexes are the following
places under the sun.
provisions: "The State values the dignity of every human
person and guarantees full respect for human rights"16 and
"The State recognizes the role of women in nation- In light of the inexorable sweep of events, local and global,
building, and shall ensure the fundamental equality before legislative, executive and judicial, according more rights to
the law of women and men."17 women hitherto denied them and eliminating whatever pockets
of discrimination still exist in their civil, political and social life,
can it still be insisted that widows are not at liberty to choose
A major accomplishment of women in their quest for equality
their domicile upon the death of their husbands but must retain
with men and the elimination of discriminatory provisions of law
the same, regardless?
was the deletion in the Family Code of almost all of the
unreasonable strictures on wives and the grant to them of
personal rights equal to that of their husbands. Specifically, the I submit that a widow, like the petitioner and others similarly
husband and wife are now given the right jointly to fix the family situated, can no longer be bound by the domicile of the
domicile;18 concomitant to the spouses' being jointly departed husband, if at all she was before. Neither does she
responsible for the support of the family is the right and duty of automatically revert to her domicile of origin, but exercising free
both spouses to manage the household;19 the administration will, she may opt to reestablish her domicile of origin. In
and the enjoyment of the community property shall belong to returning to Tacloban and subsequently, to Barangay Olot,
both spouses jointly;20 the father and mother shall now jointly Tolosa, both of which are located in the First District of Leyte,
exercise legal guardianship over the property of their petitioner amply demonstrated by overt acts, her election of a
unemancipated common child21 and several others. domicile of choice, in this case, a reversion to her domicile of
origin. Added together, the time when she set up her domicile
in the two places sufficed to meet the one-year requirement to
Aware of the hiatus and continuing gaps in the law, insofar as
run as Representative of the First District of Leyte.
women's rights are concerned, Congress passed a law
popularly known as "Women in Development and Nation
Building Act"22 Among the rights given to married women In view of the foregoing expatiation, I vote to GRANT the
evidencing their capacity to act in contracts equal to that of petition.
men are:
VITUG, J., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in
our legal system that sets up ideals and directions and render
steady our strides hence. It only looks back so as to ensure
that mistakes in the past are not repeated. A compliant
transience of a constitution belittles its basic function and
weakens its goals. A constitution may well become outdated by
the realities of time. When it does, it must be changed but while
it remains, we owe it respect and allegiance. Anarchy, open or
subtle, has never been, nor must it ever be, the answer to
perceived transitory needs, let alone societal attitudes, or the
Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in
character unless, either by express statement or by necessary
implication, a different intention is manifest (see Marcelino vs.
Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and
Section 17 of Article VI of the fundamental law. These
provisions read:
Sec. 6. No person shall be a Member of
the House of Representatives unless he is
a natural-born citizen of the Philippines
and, on the day of the election, is at least
twenty-five years of age, able to read and
write, and, except the party-list
representatives, a registered voter in the
district in which he shall be elected, and a
resident thereof for a period of not less
than one year immediately preceding the
day of the election.
Sec. 17. The Senate and the House of
Representatives shall each have an
Electoral Tribunal which shall be the sole
judge of all contests relating to the
election, returns, and qualifications of their
respective Members. Each Electoral
Tribunal shall be composed of nine
Members, three of whom shall be Justices
of the Supreme Court to be designated by
the Chief Justice, and the remaining six
shall be Members of the Senate or the
House of Representatives, as the case
may be, who shall be chosen on the basis
of proportional representation from the
political parties and the parties or
organizations registered under the party-
list system represented therein. The senior
Justice in the Electoral Tribunal shall be its
Chairman.
The Commission on Election (the "COMELEC") is
constitutionally bound to enforce and administer "all laws and
regulations relative to the conduct of election . . ." (Art. IX, C,
Sec. 2, Constitution) that, there being nothing said to the
contrary, should include its authority to pass upon the
qualification and disqualification prescribed by law
of candidates to an elective office. Indeed, pre-proclamation
controversies are expressly placed under the COMELEC's
jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the observance of the
constitutional one-year residency requirement. The issue
(whether or not there is here such compliance), to my mind, is
basically a question of fact or at least inextricably linked to such
determination. The findings and judgment of the COMELEC, in
accordance with the long established rule and subject only to a
number of exceptions under the basic heading of "grave abuse
of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what
seems to me to be a plain matter. Generally, the term
"residence" has a broader connotation that may
mean permanent (domicile), official (place where one's official
duties may require him to stay) or temporary (the place where
he sojourns during a considerable length of time). For civil law
purposes, i.e., as regards the exercise of civil rights and the
fulfillment of civil obligations, the domicile of a natural person is
the place of his habitual residence (see Article 50, Civil Code).
In election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional Trial
Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile
and residence as synonymous terms, thus:
"(t)he term "residence" as used in the
election law is synonymous with "domicile,"
which imports not only an intention to
reside in a fixed place but also personal
presence in that place, coupled with
conduct indicative of such intention."
"Domicile" denotes a fixed permanent
residence to which when absent for
business or pleasure, or for like reasons,
one intends to return. . . . . Residence thus
acquired, however, may be lost by
adopting another choice of domicile. In
order, in turn, to acquire a new domicile by
choice, there must concur (1) residence or
bodily presence in the new locality, (2) an
intention to remain there, and (3) an
intention to abandon the old domicile. In
other words, there must basically
be animus manendi coupled with animus
non revertendi. The purpose to remain in
or at the domicile of choice must be for an
indefinite period of time; the change of
residence must be voluntary; and the
residence at the place chosen for the new
domicile must be actual.
Using the above tests, I am not convinced that we
can charge the COMELEC with having committed
grave abuse of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional
elections, ends when the jurisdiction of the Electoral Tribunal
concerned begins. It signifies that the protestee must have
theretofore been duly proclaimed and has since become a
"member" of the Senate or the House of Representatives. The
question can be asked on whether or not the proclamation of a
candidate is just a ministerial function of the Commission on
Elections dictated solely on the number of votes cast in an
election exercise. I believe, it is not. A ministerial duty is an
obligation the performance of which, being adequately defined,
does not allow the use of further judgment or discretion. The
COMELEC, in its particular case, is tasked with the full
responsibility of ascertaining all the facts and conditions such
as may be required by law before a proclamation is properly
done.
The Court, on its part, should, in my view at least, refrain from
any undue encroachment on the ultimate exercise of authority
by the Electoral Tribunals on matters which, by no less than a
constitutional fiat, are explicitly within their exclusive domain.
The nagging question, if it were otherwise, would be the effect
of the Court's peremptory pronouncement on the ability of the
Electoral Tribunal to later come up with its own judgment in a
contest "relating to the election, returns and qualification" of its
members.
Prescinding from all the foregoing, I should like to next touch
base on the applicability to this case of Section 6 of Republic
Act No. 6646, in relation to Section 72 of Batas Pambansa Blg.
881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case. —
Any candidate who has been declared by
final judgment to be disqualified shall not
be voted for, and the votes cast for him
shall not be counted. If for any reason a
candidate is not declared by final judgment
before an election to be disqualified and he
is voted for and receives the winning
number of votes in such election, the Court
 or Commission shall continue with the trial
and hearing of the action, inquiry or protest
and, upon motion of the complainant or
any intervenor, may during the pendency
thereof order the suspension of the
proclamation of such candidate whenever
the evidence of his guilt is strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases
and priority. — The Commission and the
courts shall give priority to cases of
disqualification by reason of violation of
this Act to the end that a final decision
shall be rendered not later than seven
days before the election in which the
disqualification is sought.
Any candidate who has been declared by
final judgment to be disqualified shall not
be voted for, and the votes cast for him
shall not be counted. Nevertheless, if for
any reason, a candidate is not declared by
final, judgment before an election to be
disqualified, and he is voted for and
receives the winning number of votes in
such election, his violation of the
provisions of the preceding sections shall
not prevent his proclamation and
assumption to office.
I realize that in considering the significance of the law, it may
be preferable to look for not so much the specific instances
they ostensibly would cover as the principle they clearly
convey. Thus, I will not scoff at the argument that it should be
sound to say that votes cast in favor of the disqualified
candidate, whenever ultimately declared as such, should not
be counted in his or her favor and must accordingly be
considered to be stray votes. The argument, nevertheless, is
far outweighed by the rationale of the now prevailing doctrine
first enunciated in the case of Topacio vs. Paredes (23 Phil.
238 [1912]) which, although later abandoned in Ticzon
vs. Comelec (103 SCRA 687 [1981]), and Santos
vs. COMELEC (137 SCRA 740 [1985]), was restored, along
with the interim case of Geronimo vs. Ramos (136 SCRA 435
[1985]), by the Labo (176 SCRA 1 (1989]), Abella (201 SCRA
253 [1991]), Labo (211 SCRA 297 [1992]) and, most
recently, Benito (235 SCRA 436 [1994]) rulings. Benito
vs. Comelec was a unanimous decision penned by Justice
Kapunan and concurred in by Chief Justice Narvasa, Justices
Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo,
Quiason, Puno, Vitug and Mendoza (Justices Cruz and
Bellosillo were on official leave). For easy reference, let me suffrage if a candidate
quote from the first Labo decision: who has not acquired
the majority or plurality
of votes is proclaimed
Finally, there is the question of whether or
a winner and imposed
not the private respondent, who filed
as the representative
the quo warranto petition, can replace the
of a constituency, the
petitioner as mayor. He cannot. The simple
majority of which have
reason is that as he obtained only the
positively declared
second highest number of votes in the
through their ballots
election, he was obviously not the choice
that they do not
of the people of Baguio City.
choose him.
The latest ruling of the Court on this issue
Sound policy dictates
is Santos v. Commission on Elections,
that public elective
(137 SCRA 740) decided in 1985. In that
offices are filled by
case, the candidate who placed second
those who have
was proclaimed elected after the votes for
received the highest
his winning rival, who was disqualified as a
number of votes cast
turncoat and considered a non-candidate,
in the election for that
were all disregard as stray. In effect, the
office, and it is a
second placer won by default. That
fundamental idea in all
decision was supported by eight members
republican forms of
of the Court then, (Cuevas, J., ponente,
government that no
with Makasiar, Concepcion, Jr., Escolin,
one can be declared
Relova, De la Fuente, Alampay and
elected and no
Aquino, JJ., concurring.) with three
measure can be
dissenting (Teehankee, Acting C.J., Abad
declared carried
Santos and Melencio-Herrera, JJ.) and
unless he or it
another two reserving their vote. (Plana
receives a majority or
and Gutierrez, Jr., JJ.) One was on official
plurality of the legal
leave. (Fernando, C.J.)
votes cast in the
election. (20 Corpus
Re-examining that decision, the Court Juris 2nd, S 243, p.
finds, and so holds, that it should be 676.)
reversed in favor of the earlier case
of Geronimo v. Ramos, (136 SCRA 435)
The fact that the candidate who obtained
which represents the more logical and
the highest number of votes is later
democratic rule. That case, which
declared to be disqualified or not eligible
reiterated the doctrine first announced in
for the office to which he was elected does
1912 in Topacio v. Paredes, (23 Phil. 238)
not necessarily entitle the candidate who
was supported by ten members of the
obtained the second highest number of
Court, (Gutierrez, Jr., ponente, with
votes to be declared the winner of the
Teehankee, Abad Santos, Melencio-
elective office. The votes cast for a dead,
Herrera, Plana, Escolin, Relova, De la
disqualified, or non-eligible person may not
Fuente, Cuevas and Alampay, JJ.,
be valid to vote the winner into office or
concurring) without any dissent, although
maintain him there. However, in the
one reserved his vote, (Makasiar, J.)
absence of a statute which clearly asserts
another took no part, (Aquino, J.) and two
a contrary political and legislative policy on
others were on leave. (Fernando, C.J. and
the matter, if the votes were cast in the
Concepcion, Jr., J.) There the Court held:
sincere belief that the candidate was alive,
qualified, or eligible, they should not be
. . . it would be treated as stray, void or meaningless. (at
extremely repugnant pp. 20-21)
to the basic concept of
the constitutionally
Considering all the foregoing, I am constrained to vote for the
guaranteed right to
dismissal of the petition.
MENDOZA, J., separate opinion: authority that said insanity or judgment to be disqualified shall not be
incompetence had been removed or after voted for, and the votes cast for him shall
the expiration of a period of five years from not be counted. If for any reason a
In my view the issue in this case is whether the Commission on
his service of sentence, unless within the candidate is not declared by final judgment
Elections has the power to disqualify candidates on the ground
same period he again becomes before an election to be disqualified and
that they lack eligibility for the office to which they seek to be
disqualified. (Emphasis added) he is voted for and receives the winning
elected. I think that it has none and that the qualifications of
number of votes in such election, the Court
candidates may be questioned only in the event they are
or Commission shall continue with the trial
elected, by filing a petition for quo warranto or an election § 68. Disqualifications. — Any candidate
and hearing of the action, inquiry or protest
protest in the appropriate forum, not necessarily in the who, in an action or protest in which he is
and; upon motion for the complainant or
COMELEC but, as in this case, in the House of a party is declared by final decision of a
any intervenor, may during the pendency
Representatives Electoral Tribunal. That the parties in this case competent court guilty of, or found by the
thereof order the suspension of the
took part in the proceedings in the COMELEC is of no moment. Commission of having (a) given money or
proclamation of such candidate whenever
Such proceedings were unauthorized and were not rendered other material consideration to influence,
the evidence of his guilt is strong.
valid by their agreement to submit their dispute to that body. induce or corrupt the voters or public
(Emphasis added).
officials performing electoral functions; (b)
committed acts of terrorism to enhance his
The various election laws will be searched in vain for
candidacy; (c) spent in his election § 7. Petition to Deny Due Course to or
authorized proceedings for determining a candidate's
campaign an amount in excess of that Cancel a Certificate of Candidacy. — The
qualifications for an office before his election. There are none
allowed by this Code; (d) solicited, procedure hereinabove provided shall
in the Omnibus Election Code (B.P. Blg. 881), in the Electoral
received or made any contribution apply to petitions to deny due course to or
Reforms Law of 1987 (R.A. No. 6646), or in the law providing
prohibited under Sections 89, 95, 96, 97 cancel a certificate of candidacy as
for synchronized elections (R.A. No. 7166). There are, in other
and 104; or (e) violated any of Sections 80, provided in Section 78 of Batas Pambansa
words, no provisions for pre-proclamation contests but only
83, 85, 86 and 261, paragraphs d, e, k, v, Blg. 881.
election protests or quo warranto proceedings against winning
and cc, sub-paragraph 6, shall be
candidates.
disqualified from continuing as a
and the Local Government Code of 1991 (R.A. No.
candidate, or if he has been elected, from
7160):
To be sure, there are provisions denominated for holding the office. Any person who is a
"disqualification," but they are not concerned with a declaration permanent resident of or an immigrant to a
of the ineligibility of a candidate. These provisions are foreign country shall not be qualified to run § 40. Disqualifications. — The following
concerned with the incapacity (due to insanity, incompetence for any elective office under this Code, persons are disqualified from running for
or conviction of an offense) of a person either to be a unless said person has waived his status any elective local position:
candidate or to continue as a candidate for public office. There as permanent resident or immigrant of a
is also a provision for the denial or cancellation of certificates of foreign country in accordance with the
(a) Those sentenced by final judgment for
candidacy, but it applies only to cases involving false residence requirement provided for in the
an offense involving moral turpitude or for
representations as to certain matters required by law to be election laws. (Emphasis added)
an offense punishable by one (1) year or
stated in the certificates.
more of imprisonment, within two (2) years
§ 78. Petition to deny due course to or after serving sentence;
These provisions are found in the following parts of the cancel a certificate of
Omnibus Election Code: candidacy. — A verified petition seeking to
(b) Those removed from office as a result
deny due course or to cancel a certificate
of on administrative case;
of candidacy may be filed by any
§ 12. Disqualifications. — Any person who person exclusively on the ground that any
has been declared by competent authority material representation contained therein (c) Those convicted by final judgment for
insane or incompetent, or has been as required under Section 74 hereof is violating the oath of allegiance to the
sentenced by final judgment for false. The petition may be filed at any time Republic;
subversion, insurrection, rebellion or for not later than twenty-five days from the
any offense for which he has been time of the filing of the certificate of
sentenced to a penalty of more than (d) Those with dual citizenship;
candidacy and shall be decided, after due
eighteen months or for a crime involving notice and hearing, not later than fifteen
moral turpitude, shall be disqualified to be days before the election. (Emphasis (e) Fugitive from justice in criminal or
a candidate and to hold any office, unless added) nonpolitical cases here or abroad;
he has been given plenary pardon or
granted amnesty.
the Electoral Reforms Law of 1987 (R.A. No. 6646): (f) Permanent residents in a foreign
country or those who have acquired the
The disqualifications to be a candidate
§ 6. Effect of Disqualification Case. — Any right to reside abroad and continue to avail
herein provided shall be deemed removed
candidate who has been declared by final of the same right after the effectivity of this
upon the declaration by competent
Code; and
 (g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in
the COMELEC, while entitled "For Cancellation and
Disqualification," contained no allegation that private
respondent Imelda Romualdez-Marcos made material
representations in her certificate of candidacy which were false,
it sought her disqualification on the ground that "on the basis of
her Voter Registration Record and Certificate of Candidacy,
[she] is disqualified from running for the position of
Representative, considering that on election day, May 8, 1995,
[she] would have resided less than ten (10) months in the
district where she is seeking to be elected." For its part, the
COMELEC's Second Division, in its resolution of April 24,
1995, cancelled her certificate of candidacy and corrected
certificate of candidacy on the basis of its finding that petitioner
is "not qualified to run for the position of Member of the House
of Representatives for the First Legislative District of Leyte"
and not because of any finding that she had made false
representations as to material matters in her certificate of
candidacy.
Montejo's petition before the COMELEC was therefore not a
petition for cancellation of certificate of candidacy under § 78 of
the Omnibus Election Code, but essentially a petition to declare
private respondent ineligible. It is important to note this,
because, as will presently be explained, proceedings under §
78 have for their purpose to disqualify a person from being
a candidate, whereas quo warranto proceedings have for their
purpose to disqualify a person from holding public office.
Jurisdiction over quo warranto proceedings involving members
of the House of Representatives is vested in the Electoral
Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions
for the cancellation of certificates of candidacy, the allegations
were that the respondent candidates had made false
representations in their certificates of candidacy with regard to
their citizenship,1 age,2 or residence.3 But in the generality of
cases in which this Court passed upon the qualifications of
respondents for office, this Court did so in the context of
election protests4 or quo warranto proceedings5 filed after the
proclamation of the respondents or protestees as winners.
Three reasons may be cited to explain the absence of an
authorized proceeding for determining before election the
qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed
elected, there is no necessity for determining his eligibility for
the office. In contrast, whether an individual should be
disqualified as a candidate for acts constituting election
offenses (e.g., vote buying, over spending, commission of
prohibited acts) is a prejudicial question which should be
determined lest he wins because of the very acts for which his
disqualification is being sought. That is why it is provided that if
the grounds for disqualification are established, a candidate will
not be voted for; if he has been voted for, the votes in his favor
will not be counted; and if for some reason he has been voted
for and he has won, either he will not be proclaimed or his
proclamation will be set aside.6
Second is the fact that the determination of a candidate's
eligibility, e.g., his citizenship or, as in this case, his domicile,
may take a long time to make, extending beyond the beginning
of the term of the office. This is amply demonstrated in the
companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence
was still pending in the COMELEC even after the elections of
May 8, 1995. This is contrary to the summary character of
proceedings relating to certificates of candidacy. That is why
the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers.7 The law is
satisfied if candidates state in their certificates of candidacy
that they are eligible for the position which they seek to fill,
leaving the determination of their qualifications to be made
after the election and only in the event they are elected. Only in
cases involving charges of false representations made in
certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-
proclamation cases in elections for President, Vice President,
Senators and members of the House of Representatives. (R.A.
No. 7166, § 15) The purpose is to preserve the prerogatives of
the House of Representatives Electoral Tribunal and the other
Tribunals as "sole judges" under the Constitution of
the election, returns and qualifications of members of Congress
or of the President and Vice President, as the case may be.
By providing in § 253 for the remedy of quo warranto for
determining an elected official's qualifications after the results
of elections are proclaimed, while being conspicuously silent
about a pre-proclamation remedy based on the same ground,
the Omnibus Election Code, or OEC, by its silence
underscores the policy of not authorizing any inquiry into the
qualifications of candidates unless they have been elected.
Apparently realizing the lack of an authorized proceeding for
declaring the ineligibility of candidates, the COMELEC
amended its rules on February 15, 1993 so as to provide in
Rule 25, § 1 the following:
Grounds for disqualification. — Any
candidate who does not possess all the
qualifications of a candidate as provided
for by the Constitution or by existing law or
who commits any act declared by law to be
grounds for disqualification may be
disqualified from continuing as a
candidate.
The lack of provision for declaring the ineligibility of candidates,
however, cannot be supplied by a mere rule. Such an act is
equivalent to the creation of a cause of action which is a
substantive matter which the COMELEC, in the exercise of its
rulemaking power under Art. IX, A, § 6 of the Constitution,
cannot do. It is noteworthy that the Constitution withholds from
the COMELEC even the power to decide cases involving the
right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of
voters. (Art. IX, C, § 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds
for ineligibility into grounds for disqualification is contrary to the
evident intention of the law. For not only in their grounds but
also in their consequences are proceedings for
"disqualification" different from those for a declaration of
"ineligibility." "Disqualification" proceedings, as already stated,
are based on grounds specified in §§ 12 and 68 of the
Omnibus Election Code and in § 40 of the Local Government
Code and are for the purpose of barring an individual
from becoming a candidate or from continuing as a
candidate for public office. In a word, their purpose is
to eliminate a candidate from the race either from the start or
during its progress. "Ineligibility," on the other hand, refers to
the lack of the qualifications prescribed in the Constitution or
the statutes for holding public office and the purpose of the
proceedings for declaration of ineligibility is to remove the
incumbent from office.
Consequently, that an individual possesses the qualifications
for a public office does not imply that he is not disqualified from
becoming a candidate or continuing as a candidate for a public
office and vice versa. We have this sort of dichotomy in our
Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in § 2 of the law does not imply that he
does not suffer from any of disqualifications provided in § 4.
Indeed, provisions for disqualifications on the ground that the
candidate is guilty of prohibited election practices or offenses,
like other pre-proclamation remedies, are aimed at the
detestable practice of "grabbing the proclamation and
prolonging the election protest,"8 through the use of
"manufactured" election returns or resort to other trickery for
the purpose of altering the results of the election. This rationale
does not apply to cases for determining a candidate's
qualifications for office before the election. To the contrary, it is
the candidate against whom a proceeding for disqualification is
brought who could be prejudiced because he could be
prevented from assuming office even though in end he
prevails.
To summarize, the declaration of ineligibility of a candidate
may only be sought in an election protest or action for quo
warranto filed pursuant to § 253 of the Omnibus Election Code
within 10 days after his proclamation. With respect to elective
local officials (e.g., Governor, Vice Governor, members of the
Sangguniang Panlalawigan, etc.) such petition must be filed
either with the COMELEC, the Regional Trial Courts, or
Municipal Trial Courts, as provided in Art. IX, C, § 2(2) of the
Constitution. In the case of the President and Vice President,
the petition must be filed with the Presidential Electoral
Tribunal (Art. VII, § 4, last paragraph), and in the case of the
Senators, with the Senate Electoral Tribunal, and in the case of
Congressmen, with the House of Representatives Electoral
Tribunal. (Art. VI, § 17) There is greater reason for not allowing
before the election the filing of disqualification proceedings
based on alleged ineligibility in the case of candidates for
President, Vice President, Senators and members of the
House of Representatives, because of the same policy
prohibiting the filing of pre-proclamation cases against such
candidates.
For these reasons, I am of the opinion that the COMELEC had
no jurisdiction over SPA No. 95-009; that its proceedings in that
case, including its questioned orders, are void; and that the
eligibility of petitioner Imelda Romualdez-Marcos for the office
of Representative of the First District of Leyte may only be
inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the
proceedings of the Commission on Elections in SPA No. 95-
009, including its questioned orders doted April 24, 1995, May
7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner
Imelda Romualdez-Marcos ineligible and ordering her
proclamation as Representative of the First District of Leyte
suspended. To the extent that Rule 25 of the COMELEC Rules
of Procedure authorizes proceedings for the disqualification of
candidates on the ground of ineligibility for the office, it should
considered void.
The provincial board of canvassers should now proceed with
the proclamation of petitioner.
Narvasa, C.J., concurs.
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as expressed in
the well-written ponencia of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision,
the inquiry must begin and end with the provision itself. The
controversy should not be blurred by what, to me, are
academic disquisitions. In this particular controversy, the
Constitutional provision on point states that — "no person shall
be a member of the House of Representatives unless he is a
natural-born citizen of the Philippines, and on the day of the
election, is at least twenty-five (25) years of age, able to read
and write, and except the party list representatives, a
registered voter in the district in which he shall be elected, and
a resident thereof for a period of not less than one year
immediately preceding the day of the election." (Article VI,
section 6)
It has been argued that for purposes of our election laws, the
term residence has been understood as synonymous
with domicile. This argument has been validated by no less
than the Court in numerous cases1 where significantly
the factual circumstances clearly and convincingly proved that
a person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with his personal
presence in the place, coupled with conduct indicative of such
intention.
With this basic thesis in mind, it would not be difficult to
conceive of different modalities within which the phrase "a
resident thereof (meaning, the legislative district) for a period of
not less than one year" would fit.
The first instance is where a person's residence and domicile
coincide in which case a person only has to prove that he has
been domiciled in a permanent location for not less than a year
before the election.
A second situation is where a person maintains a residence
apart from his domicile in which case he would have the luxury
of district shopping, provided of course, he satisfies the one-
year residence period in the district as the minimum period for
eligibility to the position of congressional representative for the
district.
In either case, one would not be constitutionally disqualified for
abandoning his residence in order to return to his domicile of
origin, or better still, domicile of choice; neither would one be
disqualified for abandoning altogether his domicile in favor of
his residence in the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a
person maintains several residences in different districts. Since
his domicile of origin continues as an option as long as there is
no effective abandonment (animus non revertendi), he can
practically choose the district most advantageous for him.
All these theoretical scenarios, however, are tempered by the
unambiguous limitation that "for a period of not less than one
year immediately preceding the day of the election", he must
be a resident in the district where he desires to be elected.
To my mind, the one year residence period is crucial
regardless of whether or not the term "residence" is to be
synonymous with "domicile." In other words, the candidate's
intent and actual presence in one district must in all situations
satisfy the length of time prescribed by the fundamental law.
And this, because of a definite Constitutional purpose. He must
be familiar with the environment and problems of a district he
intends to represent in Congress and the one-year residence in
said district would be the minimum period to acquire such
familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts
are distinctly set out in the now assailed decision of the
Comelec 2nd Division dated 24 April 1995 (as affirmed by the
Comelec en banc) —
In or about 1938 when respondent was a
little over 8 years old, she established her
domicile in Tacloban, Leyte (Tacloban
City). She studied in the Holy Infant
Academy in Tacloban from 1938 to 1948
when she graduated from high school. She
pursued her college studies in St. Paul's
College, now Divine Word University of
Tacloban, where she earned her degree in
Education. Thereafter, she taught in the
Leyte Chinese High School, still in
Tacloban City. In 1952 she went to Manila
to work with her cousin, the late Speaker
Daniel Z. Romualdez in his office in the
House of Representatives. In 1954, she
married ex-president Ferdinand Marcos
when he was still a congressman of Ilocos
Norte. She lived with him in Batac, Ilocos
Norte and registered there as a voter.
When her husband was elected Senator of
the Republic in 1959, she and her husband
lived together in San Juan, Rizal where
she registered as a voter. In 1965 when
her husband was elected President of the
Republic of the Philippines, she lived with
him in Malacanang Palace and registered
as a voter in San Miguel, Manila.
During the Marcos presidency, respondent
served as a Member of the Batasang
Pambansa, Minister of Human Settlements
and Governor of Metro Manila. She
claimed that in February 1986, she and her
family were abducted and kidnapped to
Honolulu, Hawaii. In November 1991, she
came home to Manila. In 1992 respondent
ran for election as President of the
Philippines and filed her Certificate of
Candidacy wherein she indicated that she
is a resident and registered voter of San
Juan, Metro Manila. On August 24, 1994,
respondent filed a letter with the election
officer of San Juan, Metro Manila,
requesting for cancellation of her
registration in the Permanent List of Voters
in Precinct No. 157 of San Juan, Metro
Manila, in order that she may be re-
registered or transferred to Brgy. Olot,
Tolosa, Leyte. (Annex 2-B, Answer). On ea ec
August 31, 1994, respondent filed her ch tio
Sworn Application for Cancellation of er n
Voter's Previous Registration (Annex 2-C, / pu
Answer) stating that she is a duly S rp
registered voter in 157-A, Brgy. Maytunas, oc os
San Juan, Metro that she intends to ial es
register at Brgy. Olot, Tolosa, Leyte. W :
or Br
ke gy
On January 28, 1995 respondent
r .
registered as a voter at Precinct No. 18-A
Ol
of Olot, Tolosa, Leyte. She filed with the
ot,
Board of Election Inspectors CE Form No. 8.
T
1, Voter Registration Record No. 94- R
ol
3349772, wherein she alleged that she has E
os
resided in the municipality of Tolosa for a SI
a,
period of 6 months (Annex A, Petition). D
Le
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yt
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On March 8, 1995, respondent filed with e
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the Office of the Provincial Election
E
Supervisor, Leyte, a Certificate of
(c 9.
Candidacy for the position of
o R
Representative of the First District of Leyte
m E
wherein she also alleged that she has
pl SI
been a resident in the constituency where
et D
she seeks to be elected for a period of 7
e E
months. The pertinent entries therein are
ad N
as follows:
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B P (Sgd.) Im
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Petitioner's aforestated certificate of candidacy filed on 8 March
E A
1995 contains the decisive component or seed of her
C N
disqualification. It is contained in her answer under oath of
T E
"seven months" to the query of "residence in the constituency
E N
wherein I seek to be elected immediately preceding the
D T
election."
IM R
M E
E SI It follows from all the above that the Comelec committed no
DI D grave abuse of discretion in holding that petitioner is
A E disqualified from the position of representative for the 1st
T N congressional district of Leyte in the elections of
E T 8 May 1995, for failure to meet the "not less than one-year
L O residence in the constituency (1st district, Leyte) immediately
Y F, preceding the day of election
P O (8 May 1995)."
R R
E IM
Having arrived at petitioner's disqualification to be a
C MI
representative of the first district of Leyte, the next important
E G
issue to resolve is whether or not the Comelec can order the
DI R
Board of Canvassers to determine and proclaim the winner out
N A
of the remaining qualified candidates for representative in said
G N
district.
E T
L T
E O, I am not unaware of the pronouncement made by this Court in
C A the case of Labo vs. Comelec, G.R. 86564, August 1, 1989,
TI F 176 SCRA 1 which gave the rationale as laid down in the early
O O 1912 case of Topacio vs. Paredes, 23 Phil. 238 that:
N: R
__ EI
__ G . . . . Sound policy dictates that public
__ N elective offices are filled by those who
__ C have received the highest number of votes
Y O cast in the election for that office, and it is
ea U a fundamental idea in all republican forms
rs  N of government that no one can be declared
S T elected and no measure can be declared
e R carried unless he or it receives a majority
v Y. or plurality of the legal votes cast in the
e election. (20 Corpus Juris 2nd, S 243, p.
n  676)
THAT I AM ELIGIBLE for said office; That I
M
will support and defend the Constitution of
on The fact that the candidate who obtained
the Republic of the Philippines and will
th the highest number of votes is later
maintain true faith and allegiance thereto;
s declared to be disqualified or not eligible
That I will obey the laws, legal orders and
decrees promulgated by the duly- for the office to which he was elected does
10 constituted authorities; That the obligation not necessarily entitle the candidate who
.I imposed by my oath is assumed obtained the second highest number of
A voluntarily, without mental reservation or votes to be declared the winner of the
M purpose of evasion; and That the facts elective office. The votes cast for a dead,
N stated herein are true to the best of my disqualified, or non-eligible person may not
O knowledge. be valid to vote the winner into office or
T maintain him there. However, in the
A absence of a statute which clearly asserts
 a contrary political and legislative policy on
the matter, if the votes were cast in the
sincere belief that the candidate was alive,
qualified, or eligible, they should not be
treated as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms
in the Electoral System and for other purposes) (84 O.G. 905,
22 February 1988) it is provided that:
. . . — Any candidate who has been
declared by final judgment to be
disqualified shall not be voted for, and the
votes cast for him shall not be counted. If
for any reason a candidate is not declared
by final judgment before an election to be
disqualified and he is voted for and
receives the winning number of votes in
such election, the Court or Commission
shall continue with the trial and hearing of
the action, inquiry or protest and, upon
motion of the complainant or any
intervenor, may, during the pendency
thereof order the suspension of the
proclamation of such candidate whenever
the evidence of his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the
plain and unambiguous meaning of the provision quoted
above. As the law now stands, the legislative policy does not
limit its concern with the effect of a final judgement of
disqualification only before the election, but even during or after
the election. The law is clear that in all situations, the votes
cast for a disqualified candidate SHALL NOT BE COUNTED.
The law has also validated the jurisdiction of the Court or
Commission on Election to continue hearing the petition for
disqualification in case a candidate is voted for and receives
the highest number of votes, if for any reason, he is not
declared by final judgment before an election to be disqualified.
Since the present case is an after election scenario, the power
to suspend proclamation (when evidence of his guilt is strong)
is also explicit under the law. What happens then when after
the elections are over, one is declared disqualified? Then,
votes cast for him "shall not be counted" and in legal
contemplation, he no longer received the highest number of
votes.
It stands to reason that Section 6 of RA 6646 does not make
the second placer the winner simply because a "winning
candidate is disqualified," but that the law considers him as the
candidate who had obtained the highest number of votes as a
result of the votes cast for the disqualified candidate not being
counted or considered.
As this law clearly reflects the legislative policy on the matter,
then there is no reason why this Court should not re-examine
and consequently abandon the doctrine in the Jun Labo case.
It has been stated that "the qualifications prescribed for elective
office cannot be erased by the electorate alone. The will of the
people as expressed through the ballot cannot cure the vice of
ineligibility" most especially when it is mandated by no less
than the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order
the Provincial Board of Canvassers of Leyte to proclaim the
candidate receiving the highest number of votes, from among
the qualified candidates, as the duly elected representative of
the 1st district of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
While I agree with same of the factual bases of the majority
opinion, I cannot arrive conjointly at the same conclusion drawn
therefrom Hence, this dissent which assuredly is not formulated
"on the basis of the personality of a petitioner in a case."
I go along with the majority in their narration of antecedent
facts, insofar as the same are pertinent to this case, and which
I have simplified as follows:
1. Petitioner, although born in Manila,
resided during her childhood in the present
Tacloban City, she being a legitimate
daughter of parents who appear to have
taken up permanent residence therein.
She also went to school there and, for a
time, taught in one of the schools in that
city.
2. When she married then Rep. Ferdinand
E. Marcos who was then domiciled in
Batac, Ilocos Norte, by operation of law
she acquired a new domicile in that place
in 1954.
3. In the successive years and during the
events that happened thereafter, her
husband having been elected as a Senator
and then as President, she lived with him
and their family in San Juan, Rizal and
then in Malacanang Palace in San Miguel,
Manila.
4. Over those years, she registered as a
voter and actually voted in Batac, Ilocos
Norte, then in San Juan, Rizal, and also in
San Miguel, Manila, all these merely in the
exercise of the right of suffrage.
5. It does not appear that her husband,
even after he had assumed those lofty
positions successively, ever abandoned
his domicile of origin in Batac, Ilocos Norte
where he maintained his residence and
invariably voted in all elections.
6. After the ouster of her husband from the
presidency in 1986 and the sojourn of the
Marcos family in Honolulu, Hawaii, U.S.A.,
she eventually returned to the Philippines
in 1991 and resided in different places
which she claimed to have been merely
temporary residences.
7. In 1992, petitioner ran for election as
President of the Philippines and in her
certificate of candidacy she indicated that
she was then a registered voter and
resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for
the cancellation of her registration in the
Permanent List of Voters in Precinct No.
157 of San Juan, Metro Manila in order
that she may "be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte."
On August 31, 1994, she followed this up
with her Sworn Application for Cancellation
of Voter's Previous Registration wherein
she stated that she was a registered voter
in Precinct No. 157-A, Brgy. Maytunas,
San Juan, Metro Manila and that she
intended to register in Brgy. Olot, Tolosa,
Leyte.
9. On January 28, 1995, petitioner
registered as a voter at Precinct No. 18-A
of Olot, Tolosa, Leyte, for which purpose
she filed with the therein Board of Election
Inspectors a voter's registration record
form alleging that she had resided in that
municipality for six months.
10. On March 8, 1995, petitioner filed her
certificate of candidacy for the position of
Representative of the First District of Leyte
wherein she alleged that she had been a
resident for "Seven Months" of the
constituency where she sought to be
elected.
 11. On March 29, 1995, she filed an
"Amended/Corrected Certificate of
Candidacy" wherein her answer in the
original certificate of candidacy to item "8.
RESIDENCE IN THE CONSTITUENCY
WHERE I SEEK, TO BE ELECTED
IMMEDIATELY PRECEDING THE
ELECTION:" was changed or replaced
with a new entry reading "SINCE
CHILDHOOD."
The sole issue for resolution is whether, for purposes of her
candidacy, petitioner had complied with the residency
requirement of one year as mandated by no less than Section
6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a
dissertation on the difference between residence and domicile.
We have had enough of that and I understand that for
purposes of political law and, for that matter of international
law, residence is understood to be synonymous with domicile.
That is so understood in our jurisprudence and in American
Law, in contradistinction to the concept of residence for
purposes of civil, commercial and procedural laws whenever an
issue thereon is relevant or controlling.
Consequently, since in the present case the question of
petitioner's residence is integrated in and inseparable from her
domicile, I am addressing the issue from the standpoint of the
concept of the latter term, specifically its permutations into the
domicile of origin, domicile of choice and domicile by operation
of law, as understood in American law from which for this case
we have taken our jurisprudential bearings.
My readings inform me that the domicile of the parents at the
time of birth, or what is termed the "domicile of origin,"
constitutes the domicile of an infant until abandoned, or until
the acquisition of a new domicile in a different place.1 In the
instant case, we may grant that petitioner's domicile of
origin, 2 at least as of 1938, was what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be of three
kinds, that is, domicile by birth, domicile by choice, and
domicile by operation of law. The first is the common case of
the place of birth or domicilium originis, the second is that
which is voluntarily acquired by a party or domicilium propio
motu; the last which is consequential, as that of a wife arising
from marriage,3 is sometimes called domicilium necesarium.
There is no debate that the domicile of origin can be lost or
replaced by a domicile of choice or a domicile by operation of
law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then Rep.
Marcos, by operation of law, not only international or American
but of our own enactment, 4 she acquired her husband's
domicile of origin in Batac, Ilocos Norte and correspondingly
lost her own domicile of origin in Tacloban City.
Her subsequent changes of residence — to San Juan, Rizal,
then to San Miguel, Manila, thereafter to Honolulu, Hawaii, and
back to now San Juan, Metro Manila — do not appear to have
resulted in her thereby acquiring new domiciles of choice. In
fact, it appears that her having resided in those places was by
reason of the fortunes or misfortunes of her husband and his
peregrinations in the assumption of new official positions or the
loss of them. Her residence in Honolulu and, of course, those
after her return to the Philippines were, as she claimed, against
her will or only for transient purposes which could not have
invested them with the status of domiciles of choice.5
After petitioner's return to the Philippines in 1991 and up to the
present imbroglio over her requisite residency in Tacloban City
or Olot, Tolosa, Leyte, there is no showing that she ever
attempted to acquire any other domicile of choice which could
have resulted in the abandonment of her legal domicile in
Batac, Ilocos Norte. On that score, we note the majority's own
submission 6 that, to successfully effect a change of domicile,
one must demonstrate (a) an actual removal or an actual
change of domicile, (b) a bona fide intention of abandoning the
former place of residence and establishing a new one, and (c)
acts which correspond with the purpose.
We consequently have to also note that these requirements for
the acquisition of a domicile of choice apply whether what is
sought to be changed or substituted is a domicile of origin
(domicilium originis) or a domicile by operation of law
(domicilium necesarium). Since petitioner had lost
her domicilium originis which had been replaced by
her domicilium necesarium, it is therefore her continuing
domicile in Batac, Ilocos Norte which, if at all, can be the object
of legal change under the contingencies of the case at bar.
To get out of this quandary, the majority decision echoes the
dissenting opinion of Commissioner Regalado E. Maambong in
SPA 95-009 of the Commission on Elections,7 and advances
this novel proposition.
It may be said that petitioner lost her
domicile of origin by operation of law as a
result of her marriage to the late President
Ferdinand E. Marcos in 1952 (sic, 1954).
By operation of law (domicilium
necesarium), her legal domicile at the time
of her marriage became Batac, Ilocos
Norte although there were no indications
of an intention on her part to abandon her
domicile of origin. Because of her
husband's subsequent death and through
the operation of the provisions of the New
Family Code already in force at the time,
however, her legal domicile automatically
reverted to her domicile of origin. . . .
(Emphasis supplied).
Firstly, I am puzzled why although it is conceded that petitioner
had acquired a domicilium necesarium in Batac, Ilocos Norte,
the majority insists on making a qualification that she did not
intend to abandon her domicile of origin. I find this bewildering
since, in this situation, it is the law that declares where
petitioner's domicile is at any given time, and not her self-
serving or putative intent to hold on to her former domicile.
Otherwise, contrary to their own admission that one cannot
have more than one domicile at a time,8 the majority would be
suggesting that petitioner retained Tacloban City as (for lack of
a term in law since it does not exist therein) the equivalent of
what is fancied as a reserved, dormant, potential, or residual
domicile.
Secondly, domicile once lost in accordance with law can only
be recovered likewise in accordance with law. However, we are
here being titillated with the possibility of an automatic
reversion to or reacquisition of a domicile of origin after the
termination of the cause for its loss by operation of law. The
majority agrees that since petitioner lost her domicile of origin
by her marriage, the termination of the marriage also
terminates that effect thereof. I am impressed by the
ingeniousness of this theory which proves that, indeed,
necessity is the mother of inventions. Regretfully, I find some
difficulty in accepting either the logic or the validity of this
argument.
If a party loses his domicile of origin by obtaining a new
domicile of choice, he thereby voluntarily abandons the former
in favor of the latter. If, thereafter, he abandons that chosen
domicile, he does not per se recover his original domicile
unless, by subsequent acts legally indicative thereof, he
evinces his intent and desire to establish the same as his new
domicile, which is precisely what petitioner belatedly and,
evidently just for purposes of her candidacy, unsuccessfully
tried to do.
One's subsequent abandonment of his domicile of choice
cannot automatically restore his domicile of origin, not only
because there is no legal authority therefor but because it
would be absurd Pursued to its logical consequence, that
theory of ipso jure reversion would rule out the fact that said
party could already very well have obtained another domicile,
either of choice or by operation of law, other than his domicile
of origin. Significantly and obviously for this reason, the Family
Code, which the majority inexplicably invokes, advisedly does
not regulate this contingency since it would impinge on one's
freedom of choice.
Now, in the instant case, petitioner not only voluntarily
abandoned her domicile of choice (unless we assume that she
entered into the marital state against her will) but, on top of
that, such abandonment was further affirmed through her
acquisition of a new domicile by operation of law. In fact, this is
even a case of both voluntary and legal abandonment of a
domicile of origin. With much more reason, therefore, should
we reject the proposition that with the termination of her
marriage in 1989, petitioner had supposedly per se and ipso
facto reacquired her domicile of origin which she lost in 1954.
Otherwise, this would be tantamount to saying that during the
period of marital coverture, she was simultaneously in
possession and enjoyment of a domicile of origin which was
only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after
the husband's death the wife has the right to elect her own
domicile,9 she nevertheless retains the last domicile of her
deceased husband until she makes an actual change. 10 In the
absence of affirmative evidence, to the contrary, the
presumption is that a wife's domicile or legal residence follows
that of her husband and will continue after his death. 11
I cannot appreciate the premises advanced in support of the
majority's theory based on Articles 68 and 69 of the Family
Code. All that is of any relevance therein is that under this new
code, the right and power to fix the family domicile is now
shared by the spouses. I cannot perceive how that joint right,
which in the first place was never exercised by the spouses,
could affect the domicile fixed by the law for petitioner in 1954
and, for her husband, long prior thereto. It is true that a wife
now has the coordinate power to determine
the conjugal or family domicile, but that has no bearing on this
case. With the death of her husband, and each of her children
having gotten married and established their own respective
domiciles, the exercise of that joint power was and is no longer
called for or material in the present factual setting of this
controversy. Instead, what is of concern in petitioner's case
was the matter of her having acquired or not her own domicile
of choice.
I agree with the majority's discourse on the virtues of the
growing and expanded participation of women in the affairs of
the nation, with equal rights and recognition by Constitution
and statutory conferment. However, I have searched in vain for
a specific law or judicial pronouncement which either expressly
or by necessary implication supports the majority's desired
theory of automatic reacquisition of or reversion to
the domicilium originis of petitioner. Definitely, as between
the settled and desirable legal norms that should govern this
issue, there is a world of difference; and, unquestionably, this
should be resolved by legislative articulation but not by the
eloquence of the well-turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of
origin since 1954 and not having automatically reacquired any
domicile therein, she cannot legally claim that her residency in
the political constituency of which it is a part continued since
her birth up to the present. Respondent commission was,
therefore, correct in rejecting her pretension to that effect in her
amended/corrected certificate of candidacy, and in holding her
to her admission in the original certificate that she had actually
resided in that constituency for only seven months prior to the
election. These considerations render it unnecessary to further
pass upon the procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the
petition for lack of merit.
DAVIDE, JR., J., dissenting:
I respectfully dissent from the opinion of the majority written by
Mr. Justice Santiago M. Kapunan, more particularly on the
issue of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the Constitution,
decisions, orders, or rulings of the COMELEC may be brought
to this Court only by the special civil action for certiorari under
Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA
251 [1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the
COMELEC has acted without or in excess of jurisdiction or with
grave abuse of discretion (Section 1, Rule 65, Rules of Court).
Since the COMELEC has, undoubtedly, jurisdiction over the
private respondent's petition, the only issue left is whether it
acted with grave abuse of discretion in disqualifying the
petitioner.
My careful and meticulous perusal of the challenged resolution
of 24 April 1995 of the COMELEC Second Division and the En
Banc resolution of 7 May 1995 discloses total absence of
abuse of discretion, much less grave abuse thereof. The
resolution of the Second Division dispassionately and
objectively discussed in minute details the facts which
established beyond cavil that herein petitioner was disqualified
as a candidate on the ground of lack of residence in the First
Congressional District of Leyte. It has not misapplied,
miscomprehended, or misunderstood facts or circumstances of
substance pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELEC's
findings of fact for lack of proof that the petitioner has
abandoned Tolosa as her domicile of origin, which is allegedly
within the First Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the
COMELEC, either by admission or by documentary evidence,
overwhelming proof of the loss or abandonment of her domicile
of origin, which is Tacloban City and not Tolosa, Leyte.
Assuming that she decided to live again in her domicile of
origin, that became her second domicile of choice, where her
stay, unfortunately, was for only seven months before the day
of the election. She was then disqualified to be a candidate for
the position of Representative of the First Congressional
District of Leyte. A holding to the contrary would be arbitrary.
It may indeed be conceded that the petitioner's domicile of
choice was either Tacloban City or Tolosa, Leyte.
Nevertheless, she lost it by operation of law sometime in May
1954 upon her marriage to the then Congressman (later,
President) Ferdinand E. Marcos. A domicile by operation of law
is that domicile which the law attributes to a person,
independently of his own intention or actual residence, as
results from legal domestic relations as that of the wife arising
from marriage (28 C.J.S. Domicile § 7, 11). Under the
governing law then, Article 110 of the Civil Code, her new
domicile or her domicile of choice was the domicile of her
husband, which was Batac, Ilocos Norte. Said Article reads as
follows:
Art. 110. The husband shall fix the
residence of the family. But the court may
exempt the wife from living with the
husband if he should live abroad unless in
the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino
states:
Although the duty of the spouses to live
together is mutual, the husband has a
predominant right because he is
empowered by law to fix the family
residence. This right even predominates
over some rights recognized by law in the
wife. For instance, under article 117 the
wife may engage in business or practice a
profession or occupation. But because of
the power of the husband to fix the family
domicile he may fix it at such a place as
would make it impossible for the wife to
continue in business or in her profession.
For justifiable reasons, however, the wife
may be exempted from living in the
residence chosen by the husband. The
husband cannot validly allege desertion by
the wife who refuses to follow him to a new
place of residence, when it appears that
they have lived for years in a suitable
home belonging to the wife, and that his
choice of a different home is not made in
good faith. (Commentaries and
Jurisprudence on the Civil Code of the
Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses her
own domicile and, by operation of law, acquires that of her
husband, no matter where the wife actually lives or what she
believes or intends. Her domicile is fixed in the sense that it is
declared to be the same as his, and subject to certain
limitations, he can change her domicile by changing his own
(25 Am Jur 2d Domicile § 48, 37).
It must, however, be pointed out that under Article 69 of the
Family Code, the fixing of the family domicile is no longer the
sole prerogative of the husband, but is now a joint decision of
the spouses, and in case of disagreement the court shall
decide. The said article uses the term "family domicile," and not
family residence, as "the spouses may have multiple
residences, and the wife may elect to remain in one of such
residences, which may destroy the duty of the spouses to live
together and its corresponding benefits" (ALICIA V. SEMPIO-
DIY, Handbook on the Family Code of the Philippines, [1988],
102).
The theory of automatic restoration of a woman's domicile of
origin upon the death of her husband, which the majority
opinion adopts to overcome the legal effect of the petitioner's
marriage on her domicile, is unsupported by law and by
jurisprudence. The settled doctrine is that after the husband's
death the wife has a right to elect her own domicile, but she
retains the last domicile of her husband until she makes an
actual change (28 C.J.S. Domicile § 12, 27). Or, on the death
of the husband, the power of the wife to acquire her own
domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his death
(25 Am Jur 2d Domicile § 62, 45). Note that what is revived is
not her domicile of origin but her power to acquire her own
domicile.
Clearly, even after the death of her husband, the petitioner's
domicile was that of her husband at the time of his death —
which was Batac, Ilocos Norte, since their residences in San
Juan, Metro Manila, and San Miguel, Manila, were their
residences for convenience to enable her husband to
effectively perform his official duties. Their residence in San
Juan was a conjugal home, and it was there to which she
returned in 1991 when she was already a widow. In her sworn
certificate of candidacy for the Office of the President in the
synchronized elections of May 1992, she indicated therein that
she was a resident of San Juan, Metro Manila. She also voted
in the said elections in that place.
On the basis of her evidence, it was only on 24 August
1994 when she exercised her right as a widow to acquire her
own domicile in Tolosa, Leyte, through her sworn statement
requesting the Election Officer of San Juan, Metro Manila, to
cancel her registration in the permanent list of voters in
Precinct 157 thereat and praying that she be "re-registered or
transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth
and permanent residence" (photocopy of Exhibit "B," attached
as Annex "2" of private respondent Montejo's Comment).
Notably, she contradicted this sworn statement regarding her
place of birth when, in her Voter's Affidavit sworn to on 15
March 1992 (photocopy of Exhibit "C," attached as Annex
"3," Id.), her Voter Registration Record sworn to on 28 January Neither should this Court place complete trust on the
1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and petitioner's claim that she "merely committed an honest
her Certificate of Candidacy sworn to on 8 March 1995 mistake" in writing down the word "seven" in the space
(photocopy of Exhibit "A," attached as Annex "1," Id.), she provided for the residency qualification requirement in the
solemnly declared that she was born in Manila. certificate of candidacy. Such a claim is self-serving and, in the
light of the foregoing disquisitions, would be all sound and fury
signifying nothing. To me, she did not commit any mistake,
The petitioner is even uncertain as to her domicile of origin. Is it
honest or otherwise; what she stated was the truth.
Tacloban City or Tolosa, Leyte? In the affidavit attached to her
Answer to the petition for disqualification (Annex "I" of Petition),
she declared under oath that her "domicile or residence is The majority opinion also disregards a basic rule in evidence
Tacloban City." If she did intend to return to such domicile or that he who asserts a fact or the affirmative of an issue has the
residence of origin why did she inform the Election Officer of burden of proving it (Imperial Victory Shipping Agency vs.
San Juan that she would transfer to Olot, Tolosa, Leyte, and NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of
indicate in her Voter's Registration Record and in her certificate Appeals, 221 SCRA 19 [1993]). Having admitted marriage to
of candidacy that her residence is Olot, Tolosa, Leyte? While the then Congressman Marcos, the petitioner could not deny
this uncertainty is not important insofar as residence in the the legal consequence thereof on the change of her domicile to
congressional district is concerned, it nevertheless proves that that of her husband. The majority opinion rules or at least
forty-one years had already lapsed since she had lost or concludes that "[b]y operation of law (domicilium necesarium),
abandoned her domicile of origin by virtue of marriage and that her legal domicile at the time of her marriage automatically
such length of time diminished her power of recollection or became Batac, Ilocos Norte." That conclusion is consistent with
blurred her memory. Article 110 of the Civil Code. Since she is presumed to retain
her deceased husband's domicile until she exercises her
revived power to acquire her own domicile, the burden is upon
I find to be misplaced the reliance by the majority opinion
her to prove that she has exercised her right to acquire her own
on Faypon vs. Quirino (96 Phil. 294 [1954]), and the
domicile. She miserably failed to discharge that burden.
subsequent cases which established the principle that absence
from original residence or domicile of origin to pursue studies,
practice one's profession, or engage in business in other states I vote to deny the petition.
does not constitute loss of such residence or domicile. So is
the reliance on Section 117 of the Omnibus Election Code
Separate Opinions
which provides that transfer of residence to any other place by
reason of one's "occupation; profession; employment in private
and public service; educational activities; work in military or PUNO, J., concurring:
naval reservations; service in the army, navy or air force, the
constabulary or national police force; or confinement or
It was Aristotle who taught mankind that things that are alike
detention in government institutions in accordance with law" is
should be treated alike, while things that are unalike should be
not deemed as loss of original residence. Those cases and
treated unalike in proportion to their unalikeness.1 Like other
legal provision do not include marriage of a woman. The
candidates, petitioner has clearly met the residence
reason for the exclusion is, of course, Article 110 of the Civil
requirement provided by Section 6, Article VI of the
Code. If it were the intention of this Court or of the legislature to
Constitution.2 We cannot disqualify her and treat her unalike,
consider the marriage of a woman as a circumstance which
for the Constitution guarantees equal protection of the law. I
would not operate as an abandonment of domicile (of origin or
proceed from the following factual and legal propositions:
of choice), then such cases and legal provision should have
expressly mentioned the same.
First. There is no question that petitioner's original domicile is in
Tacloban, Leyte. Her parents were domiciled in Tacloban.
This Court should not accept as gospel truth the self-serving
Their ancestral house is in Tacloban. They have vast real
claim of the petitioner in her affidavit (Annex "A" of her Answer
estate in the place. Petitioner went to school and thereafter
in COMELEC SPA No. 95-009; Annex "I" of Petition) that her
worked there. I consider Tacloban as her initial domicile, both
"domicile or residence of origin is Tacloban City," and that she
her domicile of origin and her domicile of choice. Her domicile
"never intended to abandon this domicile or residence of origin
of origin as it was the domicile of her parents when she was a
to which [she] always intended to return whenever absent."
minor; and her domicile of choice, as she continued living there
Such a claim of intention cannot prevail over the effect of
even after reaching the age of majority.
Article 110 of the Civil Code. Besides, the facts and
circumstances or the vicissitudes of the petitioner's life after her
marriage in 1954 conclusively establish that she had indeed Second. There is also no question that in May, 1954, petitioner
abandoned her domicile of origin and had acquired a new married the late President Ferdinand E. Marcos. By contracting
one animo et facto (KOSSUTH KENT KENNAN, A Treatise on marriage, her domicile became subject to change by law, and
Residence and Domicile, [1934], 214, 326).
the right to change it was given by Article 110 of the Civil Code
provides:
Art. 110. The husband shall fix the
residence of the family. But the court may
exempt the wife from living with the
husband if he should live abroad unless in
the service of the Republic.3 (Emphasis
supplied)
In De la Viña v. Villareal and Geopano,4 this Court
explained why the domicile of the wife ought to follow
that of the husband. We held: "The reason is
founded upon the theoretic identity of person and
interest between the husband and the wife, and the
presumption that, from the nature of the relation, the
home of one is the home of the other. It is intended
to promote, strengthen, and secure their interests in
this relation, as it ordinarily exists, where union and
harmony prevail."5 In accord with this objective,
Article 109 of the Civil Code also obligated the
husband and wife "to live together."
Third. The difficult issues start as we determine whether
petitioner's marriage to former President Marcos ipso
facto resulted in the loss of her Tacloban domicile. I
respectfully submit that her marriage by itself alone did not
cause her to lose her Tacloban domicile. Article 110 of the Civil
Code merely gave the husband the right to fix the domicile of
the family. In the exercise of the right, the husband
may explicitly choose the prior domicile of his wife, in which
case, the wife's domicile remains unchanged. The husband can
also implicitly acquiesce to his wife's prior domicile even if it is
different. So we held in de la Viña,6
. . . . When married women as well as
children subject to parental authority
live, with the acquiescence of their
husbands or fathers, in a place distinct
from where the latter live, they have their
own independent domicile. . . .
It is not, therefore, the mere fact of marriage but the
deliberate choice of a different domicile by the
husband that will change the domicile of a wife from
what it was prior to their marriage. The domiciliary
decision made by the husband in the exercise of the
right conferred by Article 110 of the Civil Code binds
the wife. Any and all acts of a wife during her
coverture contrary to the domiciliary choice of the
husband cannot change in any way the domicile
legally fixed by the husband. These acts are void not
only because the wife lacks the capacity to choose
her domicile but also because they are contrary to
law and public policy.
In the case at bench, it is not disputed that former President
Marcos exercised his right to fix the family domicile and
established it in Batac, Ilocos Norte, where he was then the
congressman. At that particular point of time and throughout
their married life, petitioner lost her domicile in Tacloban, Leyte.
Since petitioner's Batac domicile has been fixed by operation of
law, it was not affected in 1959 when her husband was elected
as Senator, when they lived in San Juan, Rizal and where she
registered as a voter. It was not also affected in 1965 when her
husband was elected President, when they lived in
Malacañang Palace, and when she registered as a voter in San
Miguel, Manila. Nor was it affected when she served as a
member of the Batasang Pambansa, Minister of Human
Settlements and Governor of Metro Manila during the
incumbency of her husband as President of the nation. Under
Article 110 of the Civil Code, it was only her husband who
could change the family domicile in Batac and the evidence
shows he did not effect any such change. To a large degree,
this follows the common law that "a woman on her marriage
loses her own domicile and by operation of law, acquires that
of her husband, no matter where the wife actually lives or what
she believes or intends."7
Fourth. The more difficult task is how to interpret the effect of
the death on September 28, 1989 of former President Marcos
on petitioner's Batac domicile. The issue is of first
impression in our jurisdiction and two (2) schools of thought
contend for acceptance. One is espoused by our distinguished
colleague, Mr. Justice Davide, Jr., heavily relying on American
authorities.8 He echoes the theory that after the husband's
death, the wife retains the last domicile of her husband until
she makes an actual change.
I do not subscribe to this submission. The American case law
that the wife still retains her dead husband's domicile is based
on ancient common law which we can no longer apply in the
Philippine setting today. The common law identified the
domicile of a wife as that of the husband and denied to her the
power of acquiring a domicile of her own separate and apart
from him.9 Legal scholars agree that two (2) reasons support
this common law doctrine. The first reason as pinpointed by
the legendary Blackstone is derived from the view that "the
very being or legal existence of the woman is suspended
during
the marriage, or at least is incorporated and consolidated into
that of the husband."10 The second reason lies in "the
desirability of having the interests of each member of the family
unit governed by the same law."11 The presumption that the
wife retains the domicile of her deceased husband is
an extension of this common law concept. The concept and its
extension have provided some of the most iniquitous
jurisprudence against women. It was under common law that
the 1873 American case of Bradwell v. Illinois 12 was decided
where women were denied the right to practice law. It was
unblushingly ruled that "the natural and proper timidity and
delicacy which belongs to the female sex evidently unfits it for
many of the occupations of civil life . . . This is the law of the
Creator." Indeed, the rulings relied upon by Mr. Justice Davide
in CJS 13 and AM JUR 2d14 are American state court decisions
handed down between the years 191715 and 1938,16 or before
the time when women were accorded equality of rights with
men. Undeniably, the women's liberation movement resulted in
far-ranging state legislations in the United States to eliminate
gender inequality.17 Starting in the decade of the seventies, the
courts likewise liberalized their rulings as they started
invalidating laws infected with gender-bias. It was in 1971 when
the US Supreme Court in Reed v. Reed,18 struck a big blow for
women equality when it declared as unconstitutional an Idaho
law that required probate courts to choose male family
members over females as estate administrators. It held that
mere administrative inconvenience cannot justify a sex-based
distinction. These significant changes both in law and in case
law on the status of women virtually obliterated the iniquitous
common law surrendering the rights of married women to their
husbands based on the dubious theory of the parties' theoretic
oneness. The Corpus Juris Secundum editors did not miss the
relevance of this revolution on women's right as they observed:
"However, it has been declared that under modern
statutes changing the status of married women and departing
from the common law theory of marriage, there is no reason
why a wife may not acquire a separate domicile for every
purpose known to the law."19 In publishing in 1969
the Restatement of the Law, Second (Conflict of Laws 2d), the
reputable American Law Institute also categorically stated that
the view of Blackstone ". . . is no longer held. As the result of
statutes and court decisions, a wife now possesses practically
the same rights and powers as her unmarried sister."20
In the case at bench, we have to decide whether we should
continue clinging to the anachronistic common law that
demeans women, especially married women. I submit that the
Court has no choice except to break away from this common
law rule, the root of the many degradations of Filipino women.
Before 1988, our laws particularly the Civil Code, were full of
gender discriminations against women. Our esteemed
colleague, Madam Justice Flerida Ruth Romero, cited a few of
them as follows:21
xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under
the Civil Code, wives suffer under certain
restrictions or disabilities. For instance, the
wife cannot accept gifts from others,
regardless of the sex of the giver or the
value of the gift, other than from her very
close relatives, without her husband's
consent. She may accept only from, say,
her parents, parents-in-law, brothers,
sisters and the relatives within the so-
called fourth civil degree. She may not
exercise her profession or occupation or Taking the lead in Asia, our government exerted abusive conduct or
engage in business if her husband objects efforts, principally through legislations, to eliminate insults, making
on serious grounds or if his income is inequality between men and women in our land. The common life
sufficient to support their family in watershed came on August 3, 1988 when our Family impossible;
accordance with their social standing. As Code took effect which, among others, terminated
to what constitutes "serious grounds" for the unequal treatment of husband and wife as to
(c) If the husband
objecting, this is within the discretion of the their rights and responsibilities.22
compels her to live
husband.
with his parents, but
The Family Code attained this elusive objective by giving new she cannot get along
xxx xxx xxx rights to married women and by abolishing sex-based with her mother-in-law
privileges of husbands. Among others, married women are now and they have
given the joint right to administer the family property, whether in constant quarrels (Del
Because of the present inequitable
the absolute community system or in the system of conjugal Rosario v. Del
situation, the amendments to the Civil Law
partnership;23 joint parental authority over their minor children, Rosario, CA, 46 OG
being proposed by the University of the
both over their persons as well as their properties;24 joint 6122);
Philippines Law Center would allow
responsibility for the support of the family;25 the right to jointly
absolute divorce which severes the
manage the household;26 and, the right to object to their
matrimonial ties, such that the divorced (d) Where the
husband's exercise of profession, occupation, business or
spouses are free to get married a year husband has
activity.27 Of particular relevance to the case at bench is Article
after the divorce is decreed by the courts. continuously carried
69 of the Family Code which took away the exclusive right of
However, in order to place the husband illicit relations for 10
the husband to fix the family domicile and gave it jointly to the
and wife on an equal footing insofar as the years with different
husband and the wife, thus:
bases for divorce are concerned, the women and treated his
following are specified as the grounds for wife roughly and
absolute divorce: (1) adultery or having a Art. 69. The husband and wife shall fix the without consideration.
paramour committed by the respondent in family domicile. In case of disagreement, (Dadivas v.
any of the ways specified in the Revised the court shall decide. Villanueva, 54 Phil.
Penal Code or (2) an attempt by the 92);
respondent against the life of the petitioner
The court may exempt one spouse from
which amounts to attempted parricide
living with the other if the latter should live (e) Where the
under the Revised Penal Code; (3)
abroad or there are other valid and husband spent his
abandonment of the petitioner by the
compelling reasons for the exemption. time in gambling,
respondent without just cause for a period
However, such exemption shall not apply if giving no money to his
of three consecutive years; or (4) habitual
the same is not compatible with the family for food and
maltreatment.
solidarity of the family. (Emphasis necessities, and at the
supplied) same time insulting his
With respect to property relations, the wife and laying hands
husband is automatically the administrator on her. (Panuncio v.
Article 69 repealed Article 110 of the Civil Code.
of the conjugal property owned in common Sula, CA, 34 OG 129);
Commenting on the duty of the husband and wife to
by the married couple even if the wife may
live together, former Madam Justice Alice Sempio-
be the more astute or enterprising partner.
Diy of the Court of Appeals specified the instances (f) If the husband has
The law does not leave it to the spouses to
when a wife may now refuse to live with her no fixed residence and
decide who shall act as such administrator.
husband, thus:28 lives a vagabond life
Consequently, the husband is authorized
as a tramp (1 Manresa
to engage in acts and enter into
329);
transactions beneficial to the conjugal (2) The wife has the duty to live with her
partnership. The wife, however, cannot husband, but she may refuse to do so in
similarly bind the partnership without the certain cases like: (g) If the husband is
husband's consent. carrying on a shameful
business at home
(a) If the place chosen
(Gahn v. Darby, 38 La.
And while both exercise joint parental by the husband as
Ann. 70).
authority over their children, it is the father family residence is
whom the law designates as the legal dangerous to her Life;
administrator of the property pertaining to The inescapable conclusion is that our Family Code
the unemancipated child. has completely emancipated the wife from the
(b) If the husband
control of the husband, thus abandoning the parties'
subjects her to
theoretic identity of interest. No less than the late
maltreatment or
 revered Mr. Justice J.B.L. Reyes who chaired the
Civil Code Revision Committee of the UP Law Center
gave this insightful view in one of his rare lectures
after retirement:29
xxx xxx xxx
The Family Code is primarily intended to
reform the family law so as to emancipate
the wife from the exclusive control of the
husband and to place her at parity with him
insofar as the family is concerned. The
wife and the husband are now placed on
equal standing by the Code. They are now
joint administrators of the family properties
and exercise joint authority over the
persons and properties of their children.
This means a dual authority in the
family. The husband will no longer prevail
over the wife but she has to agree on all
matters concerning the family. (Emphasis
supplied)
In light of the Family Code which abrogated the
inequality between husband and wife as started and
perpetuated by the common law, there is no reason
in espousing the anomalous rule that the wife still
retains the domicile of her dead husband. Article 110
of the Civil Code which provides the statutory
support for this stance has been repealed by Article
69 of the Family Code. By its repeal, it becomes a
dead-letter law, and we are not free to resurrect it by
giving it further effect in any way or manner such as
by ruling that the petitioner is still bound by the
domiciliary determination of her dead husband.
Aside from reckoning with the Family Code, we have to
consider our Constitution and its firm guarantees of due
process and equal protection of
law.30 It can hardly be doubted that the common law imposition
on a married woman of her dead husband's domicile even
beyond his grave is patently discriminatory to women. It is a
gender-based discrimination and is not rationally related to the
objective of promoting family solidarity. It cannot survive a
constitutional challenge. Indeed, compared with our previous
fundamental laws, the 1987 Constitution is more concerned
with equality between sexes as it explicitly commands that the
State ". . . shall ensure fundamental equality before the law of
women and men." To be exact, section 14, Article II provides:
"The State recognizes the role of women in nation building, and
shall ensure fundamental equality before the law of women and
men. We shall be transgressing the sense and essence of this
constitutional mandate if we insist on giving our women the
caveman's treatment.
Prescinding from these premises, I respectfully submit that the Park which my daughter rented, and
better stance is to rule that petitioner reacquired her Tacloban Pacific Plaza, all in Makati.
domicile upon the death of her husband in 1989. This is the
necessary consequence of the view that petitioner's Batac
40. After the 1992 Presidential Elections, I
dictated domicile did not continue after her husband's death;
lived and resided in the residence of my
otherwise, she would have no domicile and that will violate the
brother in San Jose, Tacloban City, and
universal rule that no person can be without a domicile at any
pursued my negotiations with PCGG to
point of time. This stance also restores the right of petitioner to
recover my sequestered residences in
choose her domicile before it was taken away by Article 110 of
Tacloban City and Barangay Olot, Tolosa,
the Civil Code, a right now recognized by the Family Code and
Leyte.
protected by the Constitution. Likewise, I cannot see the
fairness of the common law requiring petitioner to choose again
her Tacloban domicile before she could be released from her 40.1 In preparation for
Batac domicile. She lost her Tacloban domicile not through her my observance of All
act but through the act of her deceased husband when he fixed Saints' Day and All
their domicile in Batac. Her husband is dead and he cannot Souls' Day that year, I
rule her beyond the grave. The law disabling her to choose her renovated my parents'
own domicile has been repealed. Considering all these, burial grounds and
common law should not put the burden on petitioner to prove entombed their bones
she has abandoned her dead husband's domicile. There is which had been
neither rhyme nor reason for this gender-based burden. excalvated, unearthed
and scattered.
But even assuming arguendo that there is need for convincing
proof that petitioner chose to reacquire her Tacloban domicile, 41. On November 29, 1993, I formally
still, the records reveal ample evidence to this effect. In her wrote PCGG Chairman Magtanggol
affidavit submitted to the respondent COMELEC, petitioner Gunigundo for permissions to —
averred:
. . . rehabilitate . . .
xxx xxx xxx (o)ur ancestral house
in Tacloban and
farmhouse in Olot,
36. In November, 1991, I came home to
Leyte . . . to make
our beloved country, after several requests
them livable for us the
for my return were denied by President
Marcos family to have
Corazon C. Aquino, and after I filed suits
a home in our own
for our Government to issue me my
motherland.
passport.
xxx xxx xxx
37. But I came home without the mortal
remains of my beloved husband, President
Ferdinand E. Marcos, which the 42. It was only on 06 June 1994, however,
Government considered a threat to the when PCGG Chairman Gunigundo, in his
national security and welfare. letter to Col. Simeon Kempis, Jr., PCGG
Region 8 Representative, allowed me to
repair and renovate my Leyte residences. I
38. Upon my return to the country, I
quote part of his letter:
wanted to immediately live and reside in
Tacloban City or in Olot, Tolosa, Leyte,
even if my residences there were not Dear Col. Kempis,
livable as they had been destroyed and
cannibalized. The PCGG, however, did not
Upon representation
permit and allow me.
by Mrs. Imelda R.
Marcos to this
39. As a consequence, I had to live at Commission, that she
various times in the Westin Philippine intends to visit our
Plaza in Pasay City, a friend's apartment sequestered
on Ayala Avenue, a house in South Forbes properties in Leyte,
 please allow her
access thereto. She
may also cause
repairs and renovation
of the sequestered
properties, in which
event, it shall be
understood that her
undertaking said
repairs is not
authorization for her to
take over said
properties, and that all
expenses shall be for
her account and not
reimbursable. Please
extend the necessary
courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live
and stay in the Sto. Niño Shrine residence
in Tacloban City where I wanted to stay
and reside, after repairs and renovations
were completed. In August 1994, I
transferred from San Jose, Tacloban City,
to my residence in Barangay Olot, Tolosa,
Leyte, when PCGG permitted me to stay
and live there.
It is then clear that in 1992 petitioner reestablished
her domicile in the First District of Leyte. It is not
disputed that in 1992, she first lived at the house of
her brother in San Jose, Tacloban City and later, in
August 1994, she transferred her residence in
Barangay Olot, Tolosa, Leyte. Both Tacloban City
and the municipality of Olot are within the First
District of Leyte. Since petitioner reestablished her
old domicile in 1992 in the First District of Leyte, she
more than complied with the constitutional
requirement of residence
". . . for a period of not less than one year
immediately preceding the day of the election," i.e.,
the May 8, 1995 elections.
The evidence presented by the private respondent to negate
the Tacloban domicile of petitioner is nil. He presented
petitioner's Voter's Registration Record filed with the Board of
Election Inspectors of Precinct 10-A of Barangay Olot, Tolosa,
Leyte wherein she stated that her period of residence in said
barangay was six (6) months as of the date of her filing of said
Voter's Registration Record on January 28, 1995.31 This
statement in petitioner's Voter's Registration Record is a non-
prejudicial admission. The Constitution requires at least one (1)
year residence in the district in which the candidate shall be
elected. In the case at bench, the reference is the First District xxx xxx xxx
of Leyte. Petitioner's statement proved that she resided in Olot
six (6) months before January 28, 1995 but did not
10. Petitioner's (herein private respondent
disprove that she has also resided in Tacloban City starting
Montejo) motive in filing the instant petition
1992. As aforestated, Olot and Tacloban City are both within
is devious. When respondent (petitioner
the First District of Leyte, hence, her six (6) months residence
herein) announced that she was intending
in Olot should be counted not against, but in her favor. Private
to register as a voter in Tacloban City and
respondent also presented petitioner's Certificate of Candidacy
run for Congress in the First District of
filed on March 8, 199532 where she placed seven (7) months
Leyte, petitioner (Montejo) immediately
after Item No. 8 which called for information regarding
opposed her intended registration by
"residence in the constituency where I seek to be elected
writing a letter stating that "she is not a
immediately preceding the election." Again, this original
resident of said city but of Barangay Olot,
certificate of candidacy has no evidentiary value because an
Tolosa, Leyte." (Annex "2" of respondent's
March 1, 1995 it was corrected by petitioner. In her
affidavit, Annex "2"). After respondent
Amended/Corrected Certificate of Candidacy,33 petitioner wrote
(petitioner herein) had registered as a
"since childhood" after Item No. 8. The amendment of a
voter in Tolosa following completion of her
certificate of candidacy to correct a bona fide mistake has been
six-month actual residence therein,
allowed by this Court as a matter of course and as a matter of
petitioner (Montejo) filed a petition with the
right. As we held in Alialy v. COMELEC,34 viz.:
COMELEC to transfer the town of Tolosa
from the First District to the Second District
xxx xxx xxx and pursued such move up to the
Supreme Court in G.R. No. 118702, his
purpose being to remove respondent
The absence of the signature of the
(petitioner herein) as petitioner's
Secretary of the local chapter N.P in the
(Montejo's) opponent in the congressional
original certificate of candidacy presented
election in the First District. He also filed a
before the deadline September 11, 1959,
bill, along with other Leyte Congressmen,
did not render the certificate invalid. The
seeking to create another legislative
amendment of the certificate, although at a
district, to remove the town of Tolosa out
date after the deadline, but before the
of the First District and to make it a part of
election, was substantial compliance with
the new district, to achieve his purpose.
the law, and the defect was cured.
However, such bill did not pass the
Senate. Having, failed on such moves,
It goes without saying that petitioner's erroneous petitioner now filed the instant petition, for
Certificate of Candidacy filed on March 8, 1995 the same objective, as it is obvious that he
cannot be used as evidence against her. Private is afraid to submit himself along with
respondent's petition for the disqualification of respondent (petitioner herein) for the
petitioner rested alone on these two (2) brittle pieces judgment and verdict of the electorate of
of documentary evidence — petitioner's Voter's the First District of Leyte in an honest,
Registration Record and her original Certificate of orderly, peaceful, free and clean elections
Candidacy. Ranged against the evidence of the on May 8, 1995.
petitioner showing her ceaseless contacts with
Tacloban, private respondent's two (2) pieces of
These allegations which private respondent did not
evidence are too insufficient to disqualify petitioner,
challenge were not lost
more so, to deny her the right to represent the
to the perceptive eye of Commissioner Maambong
people of the First District of Leyte who have
who in his Dissenting Opinion,37 held:
overwhelmingly voted for her.
xxx xxx xxx
Fifth. Section 10, Article IX-C of the Constitution mandates that
"bona fide candidates for any public office shall be free from
any form of harassment and discrimination."35 A detached Prior to the registration date — January
reading of the records of the case at bench will show that all 28, 1995 the petitioner (herein private
forms of legal and extra-legal obstacles have been thrown respondent Montejo) wrote the Election
against petitioner to prevent her from running as the people's Officer of Tacloban City not to allow
representative in the First District of Leyte. In petitioner's respondent (petitioner herein) to register
Answer to the petition to disqualify her, she averred:36 thereat since she is a resident of Tolosa
and not Tacloban City. The purpose of this
move of the petitioner (Montejo) is not lost
to (sic) the Commission. In UND No. 95-
001 (In the matter of the Legislative
Districts of the Provinces of Leyte, Iloilo,
and South Cotabato, Out of Which the
New Provinces of Biliran, Guimaras and
Saranggani Were Respectively
Created), . . . Hon. Cirilo Roy G. Montejo,
Representative, First District of Leyte,
wanted the Municipality of Tolosa, in the
First District of Leyte, transferred to the
Second District of Leyte. The Hon. Sergio
A.F. Apostol, Representative of the
Second District of Leyte, opposed the
move of the petitioner (Montejo). Under
Comelec Resolution No. 2736 (December
29, 1994), the Commission on Elections
refused to make the proposed transfer.
Petitioner (Montejo) filed "Motion for
Reconsideration of Resolution
No. 2736" which the Commission denied in
a Resolution promulgated on February 1,
1995. Petitioner (Montejo) filed a petition
for certiorari before the Honorable
Supreme Court (Cirilo Roy G. Montejo vs.
Commission on Elections, G.R. No.
118702) questioning the resolution of the
Commission. Believing that he could get a
favorable ruling from the Supreme Court,
petitioner (Montejo) tried to make sure that
the respondent (petitioner herein) will
register as a voter in Tolosa so that she
will be forced to run as Representative not
in the First but in the Second District.
It did not happen. On March 16, 1995, the
Honorable Supreme Court unanimously
promulgated a "Decision," penned by
Associate Justice Reynato S. Puno, the
dispositive portion of which reads:
IN VIEW WHEREOF,
Section 1 of
Resolution No. 2736
insofar as it
transferred the
municipality of
Capoocan of the
Second District and
the municipality of
Palompon of the
Fourth District to the
Third District of the
province of Leyte, is
annulled and set
aside. We also deny
the Petition praying for
the transfer of the
municipality of Tolosa
from the First District
to the Second District
of the province of
Leyte. No costs.
Petitioner's (Montejo's) plan did not work.
But the respondent (petitioner herein) was
constrained to register in the Municipality
of Tolosa where her house is instead of
Tacloban City, her domicile. In any case,
both Tacloban City and Tolosa are in the
First Legislative District.
All these attempts to misuse our laws and legal
processes are forms of rank harassments and
invidious discriminations against petitioner to deny
her equal access to a public office. We cannot
commit any hermeneutic violence to the Constitution
by torturing the meaning of equality, the end result of
which will allow the harassment and discrimination of
petitioner who has lived a controversial life, a past of
alternating light and shadow. There is but one
Constitution for all Filipinos. Petitioner cannot be
adjudged by a "different" Constitution, and the worst
way to interpret the Constitution is to inject in its
interpretation, bile and bitterness.
Sixth. In Gallego v. Vera,38 we explained that the reason for this
residence requirement is "to exclude a stranger or newcomer,
unacquainted, with the conditions and needs of a community
and not identified with the latter, from an elective office to serve
that community . . . ." Petitioner's lifetime contacts with the First
District of Leyte cannot be contested. Nobody can claim that
she is not acquainted with its problems because she is a
stranger to the place. None can argue she cannot satisfy the
intent of the Constitution.
Seventh. In resolving election cases, a dominant consideration
is the need to effectuate the will of the electorate. The election
results show that petitioner received Seventy Thousand Four
Hundred Seventy-one (70,471) votes, while private respondent
got only Thirty-Six Thousand Eight Hundred Thirty-Three
(36,833) votes. Petitioner is clearly the overwhelming choice of
the electorate of the First District of Leyte and this is not a
sleight of statistics. We cannot frustrate this sovereign will on
highly arguable technical considerations. In case of doubt, we
should lean towards a rule that will give life to the people's
political judgment.
A final point. The case at bench provides the Court with the
rare opportunity to rectify the inequality of status between
women and men by rejecting the iniquitous common law
precedents on the domicile of married women and by
redefining domicile in accord with our own culture, law, and
Constitution. To rule that a married woman is eternally tethered
to the domicile dictated by her dead husband is to preserve the
anachronistic and anomalous balance of advantage of a
husband over his wife. We should not allow the dead to govern
the living even if the glories of yesteryears seduce us to shout
long live the dead! The Family Code buried this gender-based
discrimination against married women and we should not
excavate what has been entombed. More importantly, the
Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner
qualified for the position of Representative of the First
Congressional District of Leyte. I wish, however, to express a
few comments on the issue of petitioner's domicile.
Domicile has been defined as that place in which a person's
habitation is fixed, without any present intention of removing
therefrom, and that place is properly the domicile of a person in
which he has voluntarily fixed his abode, or habitation, not for a
mere special or temporary purpose, but with a present intention
of making it his permanent home (28 C.J.S. §1). It denotes a
fixed permanent residence to which when absent for business,
or pleasure, or for like reasons one intends to return, and
depends on facts and circumstances, in the sense that they
disclose intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)
Domicile is classified into domicile of origin and domicile of
choice. The law attributes to every individual a domicile of
origin, which is the domicile of his parents, or of the head of his
family, or of the person on whom he is legally dependent at the
time of his birth. While the domicile of origin is generally the
place where one is born or reared, it maybe elsewhere (28
C.J.S. §5). Domicile of choice, on the other hand, is the place
which the person has elected and chosen for himself to
displace his previous domicile; it has for its true basis or
foundation the intention of the person (28 C.J.S. §6). In order to
hold that a person has abandoned his domicile and acquired a
new one called domicile of choice, the following requisites must
concur, namely, (a) residence or bodily presence in the new
locality, (b) intention to remain there or animus manendi, and
(c) an intention to abandon the old domicile or animus non
revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226
SCRA 408, 415). A third classification is domicile by operation
of law which attributes to a person a domicile independent of
his own intention or actual residence, ordinarily resulting from
legal domestic relations, as that of the wife arising from
marriage, or the relation of a parent and a child (28 C.J.S. §7).
In election law, when our Constitution speaks of residence for
election purposes it means domicile (Co v. Electoral Tribunal of
the House of Representatives, 199 SCRA 692, 713; Nuval v.
Guray, 52 Phil. 645, 651). To my mind, public respondent
Commission on Elections misapplied this concept, of domicile
which led to petitioner's disqualification by ruling that petitioner
failed to comply with the constitutionally mandated one-year
residence requirement. Apparently, public respondent
Commission deemed as conclusive petitioner's stay and
registration as voter in many places as conduct disclosing her
intent to abandon her established domicile of origin in
Tacloban, Leyte. In several decisions, though, the Court has
laid down the rule that registration of a voter in a place other
than his place of origin is not sufficient to constitute
abandonment or loss of such residence (Faypon v. Quirino, 96
Phil. 294, 300). Respondent Commission offered no cogent
reason to depart from this rule except to surmise petitioner's
intent of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was
supplanted by a new domicile due to her marriage, a domicile
by operation of law. The proposition is that upon the death of
her husband in 1989 she retains her husband's domicile, i.e.,
Batac, Ilocos Norte, until she makes an actual change thereof. I
find this proposition quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was
involuntarily supplanted with another, i.e., Batac, Ilocos Norte,
upon her marriage in 1954 with then Congressman Marcos. By
legal fiction she followed the domicile of her husband. In my
view, the reason for the law is for the spouses to fully and
effectively perform their marital duties and obligations to one
another.1 The question of domicile, however, is not affected by
the fact that it was the legal or moral duty of the individual to
reside in a given place (28 C.J.S. §11). Thus, while the wife
retains her marital domicile so long as the marriage subsists,
she automatically loses it upon the latter's termination, for the
reason behind the law then ceases. Otherwise, petitioner, after
her marriage was ended by the death of her husband, would be
placed in a quite absurd and unfair situation of having been
freed from all wifely obligations yet made to hold on to one
which no longer serves any meaningful purpose.
It is my view therefore that petitioner reverted to her original
domicile of Tacloban, Leyte upon her husband's death without
even signifying her intention to that effect. It is for the private
respondent to prove, not for petitioner to disprove, that
petitioner has effectively abandoned Tacloban, Leyte for Batac,
Ilocos Norte or for some other place/s. The clear rule is that it is
the party (herein private respondent) claiming that a person
has abandoned or lost his residence of origin who must show
and prove preponderantly such abandonment or loss (Faypon
v. Quirino, supra at 298; 28 C.J.S. §16), because the
presumption is strongly in favor of an original or former
domicile, as against an acquired one (28 C.J.S. §16). Private
respondent unfortunately failed to discharge this burden as the
record is devoid of convincing proof that petitioner has acquired
whether voluntarily or involuntarily, a new domicile to replace proclamation in the event that the results of the canvass should
her domicile of origin. show that she obtained the highest number of votes (obviously
noting that petitioner had won overwhelmingly over her
opponent), but almost simultaneously reversing itself by
The records, on the contrary, clearly show that petitioner has
directing that even if she wins, her proclamation should
complied with the constitutional one-year residence
nonetheless be suspended.
requirement. After her exile abroad, she returned to the
Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the
Presidential Commission on Good Government which Crucial to the resolution of the disqualification issue presented
sequestered her residential house and other properties forbade by the case at bench is the interpretation to be given to the
her necessitating her transient stay in various places in Manila one-year residency requirement imposed by the Constitution
(Affidavit p.6, attached as Annex I of the Petition). In 1992, she on aspirants for a Congressional seat.1
ran for the position of president writing in her certificate of
candidacy her residence as San Juan, Metro Manila. After her
Bearing in mind that the term "resident" has been held to be
loss therein, she went back to Tacloban City, acquired her
synonymous with "domicile" for election purposes, it is
residence certificate2 and resided with her brother in San Jose.
important to determine whether petitioner's domicile was in the
She resided in San Jose, Tacloban City until August of 1994
First District of Leyte and if so, whether she had resided there
when she was allowed by the PCGG to move and reside in her
for at least a period of one year. Undisputed is her domicile of
sequestered residential house in Olot, Tolosa, Leyte (Annex I,
origin, Tacloban, where her parents lived at the time of her
p. 6).3 It was in the same month of August when she applied for
birth. Depending on what theory one adopts, the same may
the cancellation of her previous registration in San Juan, Metro
have been changed when she married Ferdinand E. Marcos,
Manila in order to register anew as voter of Olot, Tolosa, Leyte,
then domiciled in Batac, by operation of law. Assuming it did,
which she did on January 28, 1995. From this sequence of
his death certainly released her from the obligation to live with
events, I find it quite improper to use as the reckoning period of
him at the residence fixed by him during his lifetime. What may
the one-year residence requirement the date when she applied
confuse the layman at this point is the fact that the term
for the cancellation of her previous registration in San Juan,
"domicile" may refer to "domicile of origin," "domicile of choice,"
Metro Manila. The fact which private respondent never
or "domicile by operation of law," which subject we shall not
bothered to disprove is that petitioner transferred her residence
belabor since it has been amply discussed by the ponente and
after the 1992 presidential election from San Juan, Metro
in the other separate opinions.
Manila to San Jose, Tacloban City, and resided therein until
August of 1994. She later transferred to Olot, Tolosa, Leyte
(Annex I, p. 7). It appearing that both Tacloban City and In any case, what assumes relevance is the divergence of legal
Tolosa, Leyte are within the First Congressional District of opinion as to the effect of the husband's death on the domicile
Leyte, it indubitably stands that she had more than a year of of the widow. Some scholars opine that the widow's domicile
residence in the constituency she sought to be elected. remains unchanged; that the deceased husband's wishes
Petitioner, therefore, has satisfactorily complied with the one- perforce still bind the wife he has left behind. Given this
year qualification required by the 1987 Constitution. interpretation, the widow cannot possibly go far enough to
sever the domiciliary tie imposed by her husband.
I vote to grant the petition.
It is bad enough to interpret the law as empowering the
husband unilaterally to fix the residence or domicile of the
ROMERO, J., separate opinion:
family, as laid down in the Civil Code,2 but to continue giving
obeisance to his wishes even after the rationale underlying the
Petitioner has appealed to this Court for relief after the mutual duty of the spouses to live together has ceased, is to
COMELEC ruled that she was disqualified from running for close one's eyes to the stark realities of the present.
Representative of her District and that, in the event that she
should, nevertheless, muster a majority vote, her proclamation
At the other extreme is the position that the widow
should be suspended. Not by a straightforward ruling did the
automatically reverts to her domicile of origin upon the demise
COMELEC pronounce its decision as has been its unvarying
of her husband. Does the law so abhor a vacuum that the
practice in the past, but by a startling succession of "reverse
widow has to be endowed somehow with a domicile? To
somersaults." Indicative of its shifting stance vis-a-
answer this question which is far from rhetorical, one will have
vis petitioner's certificate of candidacy were first, the action of
to keep in mind the basic principles of domicile. Everyone must
its Second Division disqualifying her and canceling her original
have a domicile. Then one must have only a single domicile for
Certificate of Candidacy by a vote of 2-1 on April 24, 1995;
the same purpose at any given time. Once established, a
then the denial by the COMELEC en banc of her Motion for
domicile remains until a new one is acquired, for no person
Reconsideration on May 7, 1995, a day before the election;
lives who has no domicile, as defined by the law be is subject
then because she persisted in running, its decision on
to.
May 11, 1995 or three days after the election, allowing her
At this juncture, we are confronted with an unexplored legal
terrain in this jurisdiction, rendered more murky by the
conflicting opinions of foreign legal authorities. This being the
state of things, it is imperative as it is opportune to illumine the
darkness with the beacon light of truth, as dictated by
experience and the necessity of according petitioner her right
to choose her domicile in keeping with the enlightened global
trend to recognize and protect the human rights of women, no
less than men.
Admittedly, the notion of placing women at par with men,
insofar as civil, political and social rights are concerned, is a
relatively recent phenomenon that took seed only in the middle
of this century. It is a historical fact that for over three centuries,
the Philippines had been colonized by Spain, a conservative,
Catholic country which transplanted to our shores the Old
World cultures, mores and attitudes and values. Through the
imposition on our government of the Spanish Civil Code in
1889, the people, both men and women, had no choice but to
accept such concepts as the husband's being the head of the
family and the wife's subordination to his authority. In such role,
his was the right to make vital decisions for the family. Many
instances come to mind, foremost being what is related to the
issue before us, namely, that "the husband shall fix the
residence of the family." 3 Because he is made responsible for
the support of the wife and the rest of the family, 4 he is also
empowered to be the administrator of the conjugal property,
with a few exceptions 5 and may, therefore, dispose of the
conjugal partnership property for the purposes specified
under the law;6 whereas, as a general rule, the wife cannot
bind the conjugal partnership without the husband's
consent.7 As regards the property pertaining to the
children under parental authority, the father is the legal
administrator and only in his absence may the mother
assume his powers.8 Demeaning to the wife's dignity are
certain strictures on her personal freedoms, practically
relegating her to the position of minors and disabled
persons. To illustrate a few: The wife cannot, without the
husband's consent, acquire any gratuitous title, except
from her ascendants, descendants, parents-in-law, and
collateral relatives within the fourth degree.9 With respect
to her employment, the husband wields a veto power in the
case the wife exercises her profession or occupation or
engages in business, provided his income is sufficient for
the family, according to its social standing and his
opposition is founded on serious and valid
grounds. 10 Most offensive, if not repulsive, to the liberal-
minded is the effective prohibition upon a widow to get
married till after three hundred days following the death of
her husband, unless in the meantime, she has given birth
to a child. 11 The mother who contracts a subsequent
marriage loses the parental authority over her children,
unless the deceased husband, father of the latter, has
expressly provided in his will that his widow might marry
again, and has ordered that in such case she should keep
and exercise parental authority over their
children. 12 Again, an instance of a husband's overarching
influence from beyond the grave.
All these indignities and disabilities suffered by Filipino
wives for hundreds of years evoked no protest from them
until the concept of human rights and equality between
and among nations and individuals found hospitable
lodgment in the United Nations Charter of which the
Philippines was one of the original signatories. By then,
the Spanish "conquistadores" had been overthrown by the
American forces at the turn of the century. The bedrock of
the U.N. Charter was firmly anchored on this credo: "to
reaffirm faith in the fundamental human rights, in the
dignity and worth of the human person, in the equal rights
of men and women." (Emphasis supplied)
It took over thirty years before these egalitarian
doctrines bore fruit, owing largely to the
burgeoning of the feminist movement. What may
be regarded as the international bill of rights for
women was implanted in the Convention on the
Elimination of All Forms of Discrimination
Against Women (CEDAW) adopted by the U.N.
General Assembly which entered into force as an
international treaty on September 3, 1981. In
ratifying the instrument, the Philippines bound
itself to implement its liberating spirit and letter,
for its Constitution, no less, declared that "The
Philippines. . . adopts the generally accepted
principles of international law as part of the law
of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity
with all nations." 13 One such principle embodied
in the CEDAW is granting to men and women
"the same rights with regard to the law relating to
the movement of persons and the freedom to
choose their residence and
domicile." 14 (Emphasis supplied).
CEDAW's pro-women orientation which was not lost on
Filipino women was reflected in the 1987 Constitution of
the Philippines and later, in the Family Code, 15 both of
which were speedily approved by the first lady President
of the country, Corazon C. Aquino. Notable for its
emphasis on the human rights of all individuals and its
bias for equality between the sexes are the following
provisions: "The State values the dignity of every human
person and guarantees full respect for human rights"16 and
"The State recognizes the role of women in nation-
building, and shall ensure the fundamental equality before
the law of women and men."17
A major accomplishment of women in their quest for equality
with men and the elimination of discriminatory provisions of law
was the deletion in the Family Code of almost all of the
unreasonable strictures on wives and the grant to them of
personal rights equal to that of their husbands. Specifically, the
husband and wife are now given the right jointly to fix the family
domicile;18 concomitant to the spouses' being jointly
responsible for the support of the family is the right and duty of
both spouses to manage the household;19 the administration
and the enjoyment of the community property shall belong to
both spouses jointly;20 the father and mother shall now jointly
exercise legal guardianship over the property of their
unemancipated common child21 and several others.
Aware of the hiatus and continuing gaps in the law, insofar as
women's rights are concerned, Congress passed a law
popularly known as "Women in Development and Nation
Building Act"22 Among the rights given to married women
evidencing their capacity to act in contracts equal to that of
men are:
(1) Women shall have the capacity to borrow and obtain loans
and execute security and credit arrangements under the same
conditions as men;
(2) Women shall have equal access to all government and
private sector programs granting agricultural credit, loans and
non material resources and shall enjoy equal treatment in
agrarian reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and
enter into insurance contracts; and
(4) Married women shall have rights equal to those of married
men in applying for passports, secure visas and other travel
documents, without need to secure the consent of their
spouses.
As the world draws the curtain on the Fourth World Conference
of Women in Beijing, let this Court now be the first to respond
to its clarion call that "Women's Rights are Human Rights" and
that "All obstacles to women's full participation in decision-
making at all levels, including the family" should be removed.
Having been herself a Member of the Philippine Delegation to
the International Women's Year Conference in Mexico in 1975,
this writer is only too keenly aware of the unremitting struggle
being waged by women the world over, Filipino women not
excluded, to be accepted as equals of men and to tear down
the walls of discrimination that hold them back from their proper
places under the sun.
In light of the inexorable sweep of events, local and global,
legislative, executive and judicial, according more rights to
women hitherto denied them and eliminating whatever pockets
of discrimination still exist in their civil, political and social life,
can it still be insisted that widows are not at liberty to choose
their domicile upon the death of their husbands but must retain
the same, regardless?
I submit that a widow, like the petitioner and others similarly
situated, can no longer be bound by the domicile of the
departed husband, if at all she was before. Neither does she
automatically revert to her domicile of origin, but exercising free
will, she may opt to reestablish her domicile of origin. In
returning to Tacloban and subsequently, to Barangay Olot,
Tolosa, both of which are located in the First District of Leyte,
petitioner amply demonstrated by overt acts, her election of a
domicile of choice, in this case, a reversion to her domicile of
origin. Added together, the time when she set up her domicile
in the two places sufficed to meet the one-year requirement to
run as Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the
petition.
VITUG, J., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in
our legal system that sets up ideals and directions and render
steady our strides hence. It only looks back so as to ensure
that mistakes in the past are not repeated. A compliant
transience of a constitution belittles its basic function and
weakens its goals. A constitution may well become outdated by
the realities of time. When it does, it must be changed but while
it remains, we owe it respect and allegiance. Anarchy, open or
subtle, has never been, nor must it ever be, the answer to
perceived transitory needs, let alone societal attitudes, or the
Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in
character unless, either by express statement or by necessary
implication, a different intention is manifest (see Marcelino vs.
Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and
Section 17 of Article VI of the fundamental law. These
provisions read:
Sec. 6. No person shall be a Member of
the House of Representatives unless he is
a natural-born citizen of the Philippines
and, on the day of the election, is at least
twenty-five years of age, able to read and
write, and, except the party-list
representatives, a registered voter in the
district in which he shall be elected, and a
resident thereof for a period of not less
than one year immediately preceding the
day of the election.
Sec. 17. The Senate and the House of
Representatives shall each have an
Electoral Tribunal which shall be the sole
judge of all contests relating to the
election, returns, and qualifications of their
respective Members. Each Electoral
Tribunal shall be composed of nine
Members, three of whom shall be Justices
of the Supreme Court to be designated by
the Chief Justice, and the remaining six
shall be Members of the Senate or the
House of Representatives, as the case
may be, who shall be chosen on the basis
of proportional representation from the
political parties and the parties or
organizations registered under the party-
list system represented therein. The senior
Justice in the Electoral Tribunal shall be its
Chairman.
The Commission on Election (the "COMELEC") is
constitutionally bound to enforce and administer "all laws and
regulations relative to the conduct of election . . ." (Art. IX, C,
Sec. 2, Constitution) that, there being nothing said to the
contrary, should include its authority to pass upon the
qualification and disqualification prescribed by law
of candidates to an elective office. Indeed, pre-proclamation
controversies are expressly placed under the COMELEC's
jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the observance of the
constitutional one-year residency requirement. The issue
(whether or not there is here such compliance), to my mind, is
basically a question of fact or at least inextricably linked to such
determination. The findings and judgment of the COMELEC, in
accordance with the long established rule and subject only to a
number of exceptions under the basic heading of "grave abuse
of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what
seems to me to be a plain matter. Generally, the term
"residence" has a broader connotation that may
mean permanent (domicile), official (place where one's official
duties may require him to stay) or temporary (the place where
he sojourns during a considerable length of time). For civil law
purposes, i.e., as regards the exercise of civil rights and the
fulfillment of civil obligations, the domicile of a natural person is
the place of his habitual residence (see Article 50, Civil Code).
In election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional Trial
Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile
and residence as synonymous terms, thus:
"(t)he term "residence" as used in the
election law is synonymous with "domicile,"
which imports not only an intention to
reside in a fixed place but also personal
presence in that place, coupled with
conduct indicative of such intention."
"Domicile" denotes a fixed permanent
residence to which when absent for
business or pleasure, or for like reasons,
one intends to return. . . . . Residence thus
acquired, however, may be lost by
adopting another choice of domicile. In
order, in turn, to acquire a new domicile by
choice, there must concur (1) residence or
bodily presence in the new locality, (2) an
intention to remain there, and (3) an
intention to abandon the old domicile. In
other words, there must basically
be animus manendi coupled with animus
non revertendi. The purpose to remain in
or at the domicile of choice must be for an
indefinite period of time; the change of
residence must be voluntary; and the
residence at the place chosen for the new
domicile must be actual.
Using the above tests, I am not convinced that we
can charge the COMELEC with having committed
grave abuse of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional
elections, ends when the jurisdiction of the Electoral Tribunal
concerned begins. It signifies that the protestee must have
theretofore been duly proclaimed and has since become a
"member" of the Senate or the House of Representatives. The
question can be asked on whether or not the proclamation of a
candidate is just a ministerial function of the Commission on
Elections dictated solely on the number of votes cast in an
election exercise. I believe, it is not. A ministerial duty is an
obligation the performance of which, being adequately defined,
does not allow the use of further judgment or discretion. The
COMELEC, in its particular case, is tasked with the full
responsibility of ascertaining all the facts and conditions such
as may be required by law before a proclamation is properly
done.
The Court, on its part, should, in my view at least, refrain from
any undue encroachment on the ultimate exercise of authority
by the Electoral Tribunals on matters which, by no less than a
constitutional fiat, are explicitly within their exclusive domain.
The nagging question, if it were otherwise, would be the effect
of the Court's peremptory pronouncement on the ability of the
Electoral Tribunal to later come up with its own judgment in a
contest "relating to the election, returns and qualification" of its
members.
Prescinding from all the foregoing, I should like to next touch
base on the applicability to this case of Section 6 of Republic
Act No. 6646, in relation to Section 72 of Batas Pambansa Blg.
881, each providing thusly:
REPUBLIC ACT NO. 6646
 xxx xxx xxx 238 [1912]) which, although later abandoned in Ticzon one reserved his vote, (Makasiar, J.)
vs. Comelec (103 SCRA 687 [1981]), and Santos another took no part, (Aquino, J.) and two
vs. COMELEC (137 SCRA 740 [1985]), was restored, along others were on leave. (Fernando, C.J. and
Sec. 6. Effect of Disqualification Case. —
with the interim case of Geronimo vs. Ramos (136 SCRA 435 Concepcion, Jr., J.) There the Court held:
Any candidate who has been declared by
[1985]), by the Labo (176 SCRA 1 (1989]), Abella (201 SCRA
final judgment to be disqualified shall not
253 [1991]), Labo (211 SCRA 297 [1992]) and, most
be voted for, and the votes cast for him . . . it would be
recently, Benito (235 SCRA 436 [1994]) rulings. Benito
shall not be counted. If for any reason a extremely repugnant
vs. Comelec was a unanimous decision penned by Justice
candidate is not declared by final judgment to the basic concept of
Kapunan and concurred in by Chief Justice Narvasa, Justices
before an election to be disqualified and he the constitutionally
Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo,
is voted for and receives the winning guaranteed right to
Quiason, Puno, Vitug and Mendoza (Justices Cruz and
number of votes in such election, the Court suffrage if a candidate
Bellosillo were on official leave). For easy reference, let me
or Commission shall continue with the trial who has not acquired
quote from the first Labo decision:
and hearing of the action, inquiry or protest the majority or plurality
and, upon motion of the complainant or of votes is proclaimed
any intervenor, may during the pendency Finally, there is the question of whether or a winner and imposed
thereof order the suspension of the not the private respondent, who filed as the representative
proclamation of such candidate whenever the quo warranto petition, can replace the of a constituency, the
the evidence of his guilt is strong. petitioner as mayor. He cannot. The simple majority of which have
reason is that as he obtained only the positively declared
second highest number of votes in the through their ballots
BATAS PAMBANSA BLG. 881
election, he was obviously not the choice that they do not
of the people of Baguio City. choose him.
xxx xxx xxx
The latest ruling of the Court on this issue Sound policy dictates
Sec. 72. Effects of disqualification cases is Santos v. Commission on Elections, that public elective
and priority. — The Commission and the (137 SCRA 740) decided in 1985. In that offices are filled by
courts shall give priority to cases of case, the candidate who placed second those who have
disqualification by reason of violation of was proclaimed elected after the votes for received the highest
this Act to the end that a final decision his winning rival, who was disqualified as a number of votes cast
shall be rendered not later than seven turncoat and considered a non-candidate, in the election for that
days before the election in which the were all disregard as stray. In effect, the office, and it is a
disqualification is sought. second placer won by default. That fundamental idea in all
decision was supported by eight members republican forms of
of the Court then, (Cuevas, J., ponente, government that no
Any candidate who has been declared by with Makasiar, Concepcion, Jr., Escolin, one can be declared
final judgment to be disqualified shall not Relova, De la Fuente, Alampay and elected and no
be voted for, and the votes cast for him Aquino, JJ., concurring.) with three measure can be
shall not be counted. Nevertheless, if for dissenting (Teehankee, Acting C.J., Abad declared carried
any reason, a candidate is not declared by Santos and Melencio-Herrera, JJ.) and unless he or it
final, judgment before an election to be another two reserving their vote. (Plana receives a majority or
disqualified, and he is voted for and and Gutierrez, Jr., JJ.) One was on official plurality of the legal
receives the winning number of votes in leave. (Fernando, C.J.) votes cast in the
such election, his violation of the election. (20 Corpus
provisions of the preceding sections shall Juris 2nd, S 243, p.
not prevent his proclamation and Re-examining that decision, the Court
676.)
assumption to office. finds, and so holds, that it should be
reversed in favor of the earlier case
of Geronimo v. Ramos, (136 SCRA 435) The fact that the candidate who obtained
I realize that in considering the significance of the law, it may which represents the more logical and the highest number of votes is later
be preferable to look for not so much the specific instances democratic rule. That case, which declared to be disqualified or not eligible
they ostensibly would cover as the principle they clearly reiterated the doctrine first announced in for the office to which he was elected does
convey. Thus, I will not scoff at the argument that it should be 1912 in Topacio v. Paredes, (23 Phil. 238) not necessarily entitle the candidate who
sound to say that votes cast in favor of the disqualified was supported by ten members of the obtained the second highest number of
candidate, whenever ultimately declared as such, should not Court, (Gutierrez, Jr., ponente, with votes to be declared the winner of the
be counted in his or her favor and must accordingly be Teehankee, Abad Santos, Melencio- elective office. The votes cast for a dead,
considered to be stray votes. The argument, nevertheless, is Herrera, Plana, Escolin, Relova, De la disqualified, or non-eligible person may not
far outweighed by the rationale of the now prevailing doctrine Fuente, Cuevas and Alampay, JJ., be valid to vote the winner into office or
first enunciated in the case of Topacio vs. Paredes (23 Phil. concurring) without any dissent, although maintain him there. However, in the
 absence of a statute which clearly asserts
a contrary political and legislative policy on
the matter, if the votes were cast in the
sincere belief that the candidate was alive,
qualified, or eligible, they should not be
treated as stray, void or meaningless. (at
pp. 20-21)
Considering all the foregoing, I am constrained to vote for the
dismissal of the petition.
MENDOZA, J., separate opinion:
In my view the issue in this case is whether the Commission on
Elections has the power to disqualify candidates on the ground
that they lack eligibility for the office to which they seek to be
elected. I think that it has none and that the qualifications of
candidates may be questioned only in the event they are
elected, by filing a petition for quo warranto or an election
protest in the appropriate forum, not necessarily in the
COMELEC but, as in this case, in the House of
Representatives Electoral Tribunal. That the parties in this case
took part in the proceedings in the COMELEC is of no moment.
Such proceedings were unauthorized and were not rendered
valid by their agreement to submit their dispute to that body.
The various election laws will be searched in vain for
authorized proceedings for determining a candidate's
qualifications for an office before his election. There are none
in the Omnibus Election Code (B.P. Blg. 881), in the Electoral
Reforms Law of 1987 (R.A. No. 6646), or in the law providing
for synchronized elections (R.A. No. 7166). There are, in other
words, no provisions for pre-proclamation contests but only
election protests or quo warranto proceedings against winning
candidates.
To be sure, there are provisions denominated for
"disqualification," but they are not concerned with a declaration
of the ineligibility of a candidate. These provisions are
concerned with the incapacity (due to insanity, incompetence
or conviction of an offense) of a person either to be a
candidate or to continue as a candidate for public office. There
is also a provision for the denial or cancellation of certificates of
candidacy, but it applies only to cases involving false
representations as to certain matters required by law to be
stated in the certificates.
These provisions are found in the following parts of the
Omnibus Election Code:
§ 12. Disqualifications. — Any person who
has been declared by competent authority
insane or incompetent, or has been
sentenced by final judgment for
subversion, insurrection, rebellion or for
any offense for which he has been time of the filing of the certificate of
sentenced to a penalty of more than candidacy and shall be decided, after due
eighteen months or for a crime involving notice and hearing, not later than fifteen
moral turpitude, shall be disqualified to be days before the election. (Emphasis
a candidate and to hold any office, unless added)
he has been given plenary pardon or
granted amnesty.
the Electoral Reforms Law of 1987 (R.A. No. 6646):
The disqualifications to be a candidate
§ 6. Effect of Disqualification Case. — Any
herein provided shall be deemed removed
candidate who has been declared by final
upon the declaration by competent
judgment to be disqualified shall not be
authority that said insanity or
voted for, and the votes cast for him shall
incompetence had been removed or after
not be counted. If for any reason a
the expiration of a period of five years from
candidate is not declared by final judgment
his service of sentence, unless within the
before an election to be disqualified and
same period he again becomes
he is voted for and receives the winning
disqualified. (Emphasis added)
number of votes in such election, the Court
or Commission shall continue with the trial
§ 68. Disqualifications. — Any candidate and hearing of the action, inquiry or protest
who, in an action or protest in which he is and; upon motion for the complainant or
a party is declared by final decision of a any intervenor, may during the pendency
competent court guilty of, or found by the thereof order the suspension of the
Commission of having (a) given money or proclamation of such candidate whenever
other material consideration to influence, the evidence of his guilt is strong.
induce or corrupt the voters or public (Emphasis added).
officials performing electoral functions; (b)
committed acts of terrorism to enhance his
§ 7. Petition to Deny Due Course to or
candidacy; (c) spent in his election
Cancel a Certificate of Candidacy. — The
campaign an amount in excess of that
procedure hereinabove provided shall
allowed by this Code; (d) solicited,
apply to petitions to deny due course to or
received or made any contribution
cancel a certificate of candidacy as
prohibited under Sections 89, 95, 96, 97
provided in Section 78 of Batas Pambansa
and 104; or (e) violated any of Sections 80,
Blg. 881.
83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, sub-paragraph 6, shall be
disqualified from continuing as a and the Local Government Code of 1991 (R.A. No.
candidate, or if he has been elected, from 7160):
holding the office. Any person who is a
permanent resident of or an immigrant to a
§ 40. Disqualifications. — The following
foreign country shall not be qualified to run
persons are disqualified from running for
for any elective office under this Code,
any elective local position:
unless said person has waived his status
as permanent resident or immigrant of a
foreign country in accordance with the (a) Those sentenced by final judgment for
residence requirement provided for in the an offense involving moral turpitude or for
election laws. (Emphasis added) an offense punishable by one (1) year or
more of imprisonment, within two (2) years
after serving sentence;
§ 78. Petition to deny due course to or
cancel a certificate of
candidacy. — A verified petition seeking to (b) Those removed from office as a result
deny due course or to cancel a certificate of on administrative case;
of candidacy may be filed by any
person exclusively on the ground that any
material representation contained therein (c) Those convicted by final judgment for
as required under Section 74 hereof is violating the oath of allegiance to the
false. The petition may be filed at any time Republic;
not later than twenty-five days from the
 (d) Those with dual citizenship;
(e) Fugitive from justice in criminal or
nonpolitical cases here or abroad;
(f) Permanent residents in a foreign
country or those who have acquired the
right to reside abroad and continue to avail
of the same right after the effectivity of this
Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in
the COMELEC, while entitled "For Cancellation and
Disqualification," contained no allegation that private
respondent Imelda Romualdez-Marcos made material
representations in her certificate of candidacy which were false,
it sought her disqualification on the ground that "on the basis of
her Voter Registration Record and Certificate of Candidacy,
[she] is disqualified from running for the position of
Representative, considering that on election day, May 8, 1995,
[she] would have resided less than ten (10) months in the
district where she is seeking to be elected." For its part, the
COMELEC's Second Division, in its resolution of April 24,
1995, cancelled her certificate of candidacy and corrected
certificate of candidacy on the basis of its finding that petitioner
is "not qualified to run for the position of Member of the House
of Representatives for the First Legislative District of Leyte"
and not because of any finding that she had made false
representations as to material matters in her certificate of
candidacy.
Montejo's petition before the COMELEC was therefore not a
petition for cancellation of certificate of candidacy under § 78 of
the Omnibus Election Code, but essentially a petition to declare
private respondent ineligible. It is important to note this,
because, as will presently be explained, proceedings under §
78 have for their purpose to disqualify a person from being
a candidate, whereas quo warranto proceedings have for their
purpose to disqualify a person from holding public office.
Jurisdiction over quo warranto proceedings involving members
of the House of Representatives is vested in the Electoral
Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions
for the cancellation of certificates of candidacy, the allegations
were that the respondent candidates had made false
representations in their certificates of candidacy with regard to
their citizenship,1 age,2 or residence.3 But in the generality of
cases in which this Court passed upon the qualifications of
respondents for office, this Court did so in the context of
election protests4 or quo warranto proceedings5 filed after the
proclamation of the respondents or protestees as winners.
Three reasons may be cited to explain the absence of an
authorized proceeding for determining before election the
qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed
elected, there is no necessity for determining his eligibility for
the office. In contrast, whether an individual should be
disqualified as a candidate for acts constituting election
offenses (e.g., vote buying, over spending, commission of
prohibited acts) is a prejudicial question which should be
determined lest he wins because of the very acts for which his
disqualification is being sought. That is why it is provided that if
the grounds for disqualification are established, a candidate will
not be voted for; if he has been voted for, the votes in his favor
will not be counted; and if for some reason he has been voted
for and he has won, either he will not be proclaimed or his
proclamation will be set aside.6
Second is the fact that the determination of a candidate's
eligibility, e.g., his citizenship or, as in this case, his domicile,
may take a long time to make, extending beyond the beginning
of the term of the office. This is amply demonstrated in the
companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence
was still pending in the COMELEC even after the elections of
May 8, 1995. This is contrary to the summary character of
proceedings relating to certificates of candidacy. That is why
the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers.7 The law is
satisfied if candidates state in their certificates of candidacy
that they are eligible for the position which they seek to fill,
leaving the determination of their qualifications to be made
after the election and only in the event they are elected. Only in
cases involving charges of false representations made in
certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-
proclamation cases in elections for President, Vice President,
Senators and members of the House of Representatives. (R.A.
No. 7166, § 15) The purpose is to preserve the prerogatives of
the House of Representatives Electoral Tribunal and the other
Tribunals as "sole judges" under the Constitution of
the election, returns and qualifications of members of Congress
or of the President and Vice President, as the case may be.
By providing in § 253 for the remedy of quo warranto for
determining an elected official's qualifications after the results
of elections are proclaimed, while being conspicuously silent
about a pre-proclamation remedy based on the same ground,
the Omnibus Election Code, or OEC, by its silence
underscores the policy of not authorizing any inquiry into the
qualifications of candidates unless they have been elected.
Apparently realizing the lack of an authorized proceeding for
declaring the ineligibility of candidates, the COMELEC
amended its rules on February 15, 1993 so as to provide in
Rule 25, § 1 the following:
Grounds for disqualification. — Any
candidate who does not possess all the
qualifications of a candidate as provided
for by the Constitution or by existing law or
who commits any act declared by law to be
grounds for disqualification may be
disqualified from continuing as a
candidate.
The lack of provision for declaring the ineligibility of candidates,
however, cannot be supplied by a mere rule. Such an act is
equivalent to the creation of a cause of action which is a
substantive matter which the COMELEC, in the exercise of its
rulemaking power under Art. IX, A, § 6 of the Constitution,
cannot do. It is noteworthy that the Constitution withholds from
the COMELEC even the power to decide cases involving the
right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of
voters. (Art. IX, C, § 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds
for ineligibility into grounds for disqualification is contrary to the
evident intention of the law. For not only in their grounds but
also in their consequences are proceedings for
"disqualification" different from those for a declaration of
"ineligibility." "Disqualification" proceedings, as already stated,
are based on grounds specified in §§ 12 and 68 of the
Omnibus Election Code and in § 40 of the Local Government
Code and are for the purpose of barring an individual
from becoming a candidate or from continuing as a
candidate for public office. In a word, their purpose is
to eliminate a candidate from the race either from the start or
during its progress. "Ineligibility," on the other hand, refers to
the lack of the qualifications prescribed in the Constitution or
the statutes for holding public office and the purpose of the
proceedings for declaration of ineligibility is to remove the
incumbent from office.
Consequently, that an individual possesses the qualifications
for a public office does not imply that he is not disqualified from
becoming a candidate or continuing as a candidate for a public
office and vice versa. We have this sort of dichotomy in our
Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in § 2 of the law does not imply that he
does not suffer from any of disqualifications provided in § 4.
Indeed, provisions for disqualifications on the ground that the
candidate is guilty of prohibited election practices or offenses,
like other pre-proclamation remedies, are aimed at the
detestable practice of "grabbing the proclamation and
prolonging the election protest,"8 through the use of
"manufactured" election returns or resort to other trickery for
the purpose of altering the results of the election. This rationale
does not apply to cases for determining a candidate's
qualifications for office before the election. To the contrary, it is
the candidate against whom a proceeding for disqualification is
brought who could be prejudiced because he could be
prevented from assuming office even though in end he
prevails.
To summarize, the declaration of ineligibility of a candidate
may only be sought in an election protest or action for quo
warranto filed pursuant to § 253 of the Omnibus Election Code
within 10 days after his proclamation. With respect to elective
local officials (e.g., Governor, Vice Governor, members of the
Sangguniang Panlalawigan, etc.) such petition must be filed
either with the COMELEC, the Regional Trial Courts, or
Municipal Trial Courts, as provided in Art. IX, C, § 2(2) of the
Constitution. In the case of the President and Vice President,
the petition must be filed with the Presidential Electoral
Tribunal (Art. VII, § 4, last paragraph), and in the case of the
Senators, with the Senate Electoral Tribunal, and in the case of
Congressmen, with the House of Representatives Electoral
Tribunal. (Art. VI, § 17) There is greater reason for not allowing
before the election the filing of disqualification proceedings
based on alleged ineligibility in the case of candidates for
President, Vice President, Senators and members of the
House of Representatives, because of the same policy
prohibiting the filing of pre-proclamation cases against such
candidates.
For these reasons, I am of the opinion that the COMELEC had
no jurisdiction over SPA No. 95-009; that its proceedings in that
case, including its questioned orders, are void; and that the
eligibility of petitioner Imelda Romualdez-Marcos for the office
of Representative of the First District of Leyte may only be
inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the
proceedings of the Commission on Elections in SPA No. 95-
009, including its questioned orders doted April 24, 1995, May
7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner
Imelda Romualdez-Marcos ineligible and ordering her
proclamation as Representative of the First District of Leyte
suspended. To the extent that Rule 25 of the COMELEC Rules
of Procedure authorizes proceedings for the disqualification of
candidates on the ground of ineligibility for the office, it should
considered void.
The provincial board of canvassers should now proceed with
the proclamation of petitioner.
Narvasa, C.J., concurs.
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as expressed in
the well-written ponencia of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision,
the inquiry must begin and end with the provision itself. The
controversy should not be blurred by what, to me, are
academic disquisitions. In this particular controversy, the
Constitutional provision on point states that — "no person shall
be a member of the House of Representatives unless he is a
natural-born citizen of the Philippines, and on the day of the
election, is at least twenty-five (25) years of age, able to read
and write, and except the party list representatives, a
registered voter in the district in which he shall be elected, and
a resident thereof for a period of not less than one year
immediately preceding the day of the election." (Article VI,
section 6)
It has been argued that for purposes of our election laws, the
term residence has been understood as synonymous
with domicile. This argument has been validated by no less
than the Court in numerous cases1 where significantly
the factual circumstances clearly and convincingly proved that
a person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with his personal
presence in the place, coupled with conduct indicative of such
intention.
With this basic thesis in mind, it would not be difficult to
conceive of different modalities within which the phrase "a
resident thereof (meaning, the legislative district) for a period of
not less than one year" would fit.
The first instance is where a person's residence and domicile
coincide in which case a person only has to prove that he has
been domiciled in a permanent location for not less than a year
before the election.
A second situation is where a person maintains a residence
apart from his domicile in which case he would have the luxury
of district shopping, provided of course, he satisfies the one-
year residence period in the district as the minimum period for
eligibility to the position of congressional representative for the
district.
In either case, one would not be constitutionally disqualified for
abandoning his residence in order to return to his domicile of
origin, or better still, domicile of choice; neither would one be
disqualified for abandoning altogether his domicile in favor of
his residence in the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a
person maintains several residences in different districts. Since
his domicile of origin continues as an option as long as there is
no effective abandonment (animus non revertendi), he can
practically choose the district most advantageous for him.
All these theoretical scenarios, however, are tempered by the
unambiguous limitation that "for a period of not less than one
year immediately preceding the day of the election", he must
be a resident in the district where he desires to be elected.
To my mind, the one year residence period is crucial
regardless of whether or not the term "residence" is to be
synonymous with "domicile." In other words, the candidate's
intent and actual presence in one district must in all situations
satisfy the length of time prescribed by the fundamental law.
And this, because of a definite Constitutional purpose. He must
be familiar with the environment and problems of a district he
intends to represent in Congress and the one-year residence in
said district would be the minimum period to acquire such
familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts
are distinctly set out in the now assailed decision of the
Comelec 2nd Division dated 24 April 1995 (as affirmed by the
Comelec en banc) —
In or about 1938 when respondent was a
little over 8 years old, she established her
domicile in Tacloban, Leyte (Tacloban
City). She studied in the Holy Infant
Academy in Tacloban from 1938 to 1948
when she graduated from high school. She
pursued her college studies in St. Paul's
College, now Divine Word University of
Tacloban, where she earned her degree in
Education. Thereafter, she taught in the
Leyte Chinese High School, still in
Tacloban City. In 1952 she went to Manila
to work with her cousin, the late Speaker
Daniel Z. Romualdez in his office in the
House of Representatives. In 1954, she
married ex-president Ferdinand Marcos
when he was still a congressman of Ilocos
Norte. She lived with him in Batac, Ilocos
Norte and registered there as a voter.
When her husband was elected Senator of
the Republic in 1959, she and her husband
lived together in San Juan, Rizal where
she registered as a voter. In 1965 when
her husband was elected President of the
Republic of the Philippines, she lived with
him in Malacanang Palace and registered
as a voter in San Miguel, Manila.
During the Marcos presidency, respondent
served as a Member of the Batasang
Pambansa, Minister of Human Settlements
and Governor of Metro Manila. She
claimed that in February 1986, she and her
family were abducted and kidnapped to
Honolulu, Hawaii. In November 1991, she
came home to Manila. In 1992 respondent
ran for election as President of the
Philippines and filed her Certificate of A t
Candidacy wherein she indicated that she TI Of
is a resident and registered voter of San O fic
Juan, Metro Manila. On August 24, 1994, N: e
respondent filed a letter with the election H A
officer of San Juan, Metro Manila, ou dd
requesting for cancellation of her se re
registration in the Permanent List of Voters - ss
in Precinct No. 157 of San Juan, Metro wi fo
Manila, in order that she may be re- fe/ r
registered or transferred to Brgy. Olot, T el
Tolosa, Leyte. (Annex 2-B, Answer). On ea ec
August 31, 1994, respondent filed her ch tio
Sworn Application for Cancellation of er n
Voter's Previous Registration (Annex 2-C, / pu
Answer) stating that she is a duly S rp
registered voter in 157-A, Brgy. Maytunas, oc os
San Juan, Metro that she intends to ial es
register at Brgy. Olot, Tolosa, Leyte. W :
or Br
ke gy
On January 28, 1995 respondent
r .
registered as a voter at Precinct No. 18-A
Ol
of Olot, Tolosa, Leyte. She filed with the
ot,
Board of Election Inspectors CE Form No. 8.
T
1, Voter Registration Record No. 94- R
ol
3349772, wherein she alleged that she has E
os
resided in the municipality of Tolosa for a SI
a,
period of 6 months (Annex A, Petition). D
Le
E
yt
N
On March 8, 1995, respondent filed with e
C
the Office of the Provincial Election
E
Supervisor, Leyte, a Certificate of
(c 9.
Candidacy for the position of
o R
Representative of the First District of Leyte
m E
wherein she also alleged that she has
pl SI
been a resident in the constituency where
et D
she seeks to be elected for a period of 7
e E
months. The pertinent entries therein are
ad N
as follows:
dr C
es E
7. s): IN
P Br T
R gy H
O . E
F Ol C
E ot, O
S T N
SI ol S
O os TI
N a, T
O Le U
R yt E
O e N
C C
C Y
P
U W
os
P H
E th the Republic of the Philippines and will
R s maintain true faith and allegiance thereto;
EI That I will obey the laws, legal orders and
N decrees promulgated by the duly-
10
I constituted authorities; That the obligation
.I
S imposed by my oath is assumed
A
E voluntarily, without mental reservation or
M
E purpose of evasion; and That the facts
N
K stated herein are true to the best of my
O
T knowledge.
T
O
A
B
P (Sgd.) Im
E
E (Sig
E
R
L
M
E Petitioner's aforestated certificate of candidacy filed on 8 March
A
C 1995 contains the decisive component or seed of her
N
T disqualification. It is contained in her answer under oath of
E
E "seven months" to the query of "residence in the constituency
N
D wherein I seek to be elected immediately preceding the
T
IM election."
R
M
E
E
SI It follows from all the above that the Comelec committed no
DI
D grave abuse of discretion in holding that petitioner is
A
E disqualified from the position of representative for the 1st
T
N congressional district of Leyte in the elections of 8 May 1995,
E
T for failure to meet the "not less than one-year residence in the
L
O constituency (1st district, Leyte) immediately preceding the day
Y
F, of election (8 May 1995)."
P
O
R
R
E Having arrived at petitioner's disqualification to be a
IM
C representative of the first district of Leyte, the next important
MI
E issue to resolve is whether or not the Comelec can order the
G
DI Board of Canvassers to determine and proclaim the winner out
R
N of the remaining qualified candidates for representative in said
A
G district.
N
E
T
L
T I am not unaware of the pronouncement made by this Court in
E
O, the case of Labo vs. Comelec, G.R. 86564, August 1, 1989,
C
A 176 SCRA 1 which gave the rationale as laid down in the early
TI
F 1912 case of Topacio vs. Paredes, 23 Phil. 238 that:
O
O
N:
R
__ . . . . Sound policy dictates that public
EI
__ elective offices are filled by those who
G
__ have received the highest number of votes
N
__ cast in the election for that office, and it is
C
Y a fundamental idea in all republican forms
O
ea of government that no one can be declared
U
rs  elected and no measure can be declared
N
S carried unless he or it receives a majority
T
e or plurality of the legal votes cast in the
R
v election. (20 Corpus Juris 2nd, S 243, p.
Y.
e 676)
n 
M THAT I AM ELIGIBLE for said office; That I
on will support and defend the Constitution of The fact that the candidate who obtained
the highest number of votes is later
 declared to be disqualified or not eligible
for the office to which he was elected does
not necessarily entitle the candidate who
obtained the second highest number of
votes to be declared the winner of the
elective office. The votes cast for a dead,
disqualified, or non-eligible person may not
be valid to vote the winner into office or
maintain him there. However, in the
absence of a statute which clearly asserts
a contrary political and legislative policy on
the matter, if the votes were cast in the
sincere belief that the candidate was alive,
qualified, or eligible, they should not be
treated as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms
in the Electoral System and for other purposes) (84 O.G. 905,
22 February 1988) it is provided that:
. . . — Any candidate who has been
declared by final judgment to be
disqualified shall not be voted for, and the
votes cast for him shall not be counted. If
for any reason a candidate is not declared
by final judgment before an election to be
disqualified and he is voted for and
receives the winning number of votes in
such election, the Court or Commission
shall continue with the trial and hearing of
the action, inquiry or protest and, upon
motion of the complainant or any
intervenor, may, during the pendency
thereof order the suspension of the
proclamation of such candidate whenever
the evidence of his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the
plain and unambiguous meaning of the provision quoted
above. As the law now stands, the legislative policy does not
limit its concern with the effect of a final judgement of
disqualification only before the election, but even during or after
the election. The law is clear that in all situations, the votes
cast for a disqualified candidate SHALL NOT BE COUNTED.
The law has also validated the jurisdiction of the Court or
Commission on Election to continue hearing the petition for
disqualification in case a candidate is voted for and receives
the highest number of votes, if for any reason, he is not
declared by final judgment before an election to be disqualified.
Since the present case is an after election scenario, the power
to suspend proclamation (when evidence of his guilt is strong)
is also explicit under the law. What happens then when after
the elections are over, one is declared disqualified? Then,
votes cast for him "shall not be counted" and in legal
contemplation, he no longer received the highest number of
votes.
It stands to reason that Section 6 of RA 6646 does not make
the second placer the winner simply because a "winning
candidate is disqualified," but that the law considers him as the
candidate who had obtained the highest number of votes as a
result of the votes cast for the disqualified candidate not being
counted or considered.
As this law clearly reflects the legislative policy on the matter,
then there is no reason why this Court should not re-examine
and consequently abandon the doctrine in the Jun Labo case.
It has been stated that "the qualifications prescribed for elective
office cannot be erased by the electorate alone. The will of the
people as expressed through the ballot cannot cure the vice of
ineligibility" most especially when it is mandated by no less
than the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order
the Provincial Board of Canvassers of Leyte to proclaim the
candidate receiving the highest number of votes, from among
the qualified candidates, as the duly elected representative of
the 1st district of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
While I agree with same of the factual bases of the majority
opinion, I cannot arrive conjointly at the same conclusion drawn
therefrom Hence, this dissent which assuredly is not formulated
"on the basis of the personality of a petitioner in a case."
I go along with the majority in their narration of antecedent
facts, insofar as the same are pertinent to this case, and which
I have simplified as follows:
1. Petitioner, although born in Manila,
resided during her childhood in the present
Tacloban City, she being a legitimate
daughter of parents who appear to have
taken up permanent residence therein.
She also went to school there and, for a
time, taught in one of the schools in that
city.
2. When she married then Rep. Ferdinand
E. Marcos who was then domiciled in
Batac, Ilocos Norte, by operation of law
she acquired a new domicile in that place
in 1954.
3. In the successive years and during the
events that happened thereafter, her
husband having been elected as a Senator
and then as President, she lived with him
and their family in San Juan, Rizal and
then in Malacanang Palace in San Miguel,
Manila.
4. Over those years, she registered as a
voter and actually voted in Batac, Ilocos
Norte, then in San Juan, Rizal, and also in
San Miguel, Manila, all these merely in the
exercise of the right of suffrage.
5. It does not appear that her husband,
even after he had assumed those lofty
positions successively, ever abandoned
his domicile of origin in Batac, Ilocos Norte
where he maintained his residence and
invariably voted in all elections.
6. After the ouster of her husband from the
presidency in 1986 and the sojourn of the
Marcos family in Honolulu, Hawaii, U.S.A.,
she eventually returned to the Philippines
in 1991 and resided in different places
which she claimed to have been merely
temporary residences.
7. In 1992, petitioner ran for election as
President of the Philippines and in her
certificate of candidacy she indicated that
she was then a registered voter and
resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for
the cancellation of her registration in the
Permanent List of Voters in Precinct No.
157 of San Juan, Metro Manila in order
that she may "be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte."
On August 31, 1994, she followed this up
with her Sworn Application for Cancellation
of Voter's Previous Registration wherein
she stated that she was a registered voter
in Precinct No. 157-A, Brgy. Maytunas,
San Juan, Metro Manila and that she
intended to register in Brgy. Olot, Tolosa,
Leyte.
9. On January 28, 1995, petitioner
registered as a voter at Precinct No. 18-A
of Olot, Tolosa, Leyte, for which purpose
she filed with the therein Board of Election
Inspectors a voter's registration record
 form alleging that she had resided in that
municipality for six months.
10. On March 8, 1995, petitioner filed her
certificate of candidacy for the position of
Representative of the First District of Leyte
wherein she alleged that she had been a
resident for "Seven Months" of the
constituency where she sought to be
elected.
11. On March 29, 1995, she filed an
"Amended/Corrected Certificate of
Candidacy" wherein her answer in the
original certificate of candidacy to item "8.
RESIDENCE IN THE CONSTITUENCY
WHERE I SEEK, TO BE ELECTED
IMMEDIATELY PRECEDING THE
ELECTION:" was changed or replaced
with a new entry reading "SINCE
CHILDHOOD."
The sole issue for resolution is whether, for purposes of her
candidacy, petitioner had complied with the residency
requirement of one year as mandated by no less than Section
6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a
dissertation on the difference between residence and domicile.
We have had enough of that and I understand that for
purposes of political law and, for that matter of international
law, residence is understood to be synonymous with domicile.
That is so understood in our jurisprudence and in American
Law, in contradistinction to the concept of residence for
purposes of civil, commercial and procedural laws whenever an
issue thereon is relevant or controlling.
Consequently, since in the present case the question of
petitioner's residence is integrated in and inseparable from her
domicile, I am addressing the issue from the standpoint of the
concept of the latter term, specifically its permutations into the
domicile of origin, domicile of choice and domicile by operation
of law, as understood in American law from which for this case
we have taken our jurisprudential bearings.
My readings inform me that the domicile of the parents at the
time of birth, or what is termed the "domicile of origin,"
constitutes the domicile of an infant until abandoned, or until
the acquisition of a new domicile in a different place.1 In the
instant case, we may grant that petitioner's domicile of
origin, 2 at least as of 1938, was what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be of three
kinds, that is, domicile by birth, domicile by choice, and
domicile by operation of law. The first is the common case of
the place of birth or domicilium originis, the second is that result of her marriage to the late President
which is voluntarily acquired by a party or domicilium propio Ferdinand E. Marcos in 1952 (sic, 1954).
motu; the last which is consequential, as that of a wife arising By operation of law (domicilium
from marriage,3 is sometimes called domicilium necesarium. necesarium), her legal domicile at the time
There is no debate that the domicile of origin can be lost or of her marriage became Batac, Ilocos
replaced by a domicile of choice or a domicile by operation of Norte although there were no indications
law subsequently acquired by the party. of an intention on her part to abandon her
domicile of origin. Because of her
husband's subsequent death and through
When petitioner contracted marriage in 1954 with then Rep.
the operation of the provisions of the New
Marcos, by operation of law, not only international or American
Family Code already in force at the time,
but of our own enactment, 4 she acquired her husband's
however, her legal domicile automatically
domicile of origin in Batac, Ilocos Norte and correspondingly
reverted to her domicile of origin. . . .
lost her own domicile of origin in Tacloban City.
(Emphasis supplied).
Her subsequent changes of residence — to San Juan, Rizal,
Firstly, I am puzzled why although it is conceded that petitioner
then to San Miguel, Manila, thereafter to Honolulu, Hawaii, and
had acquired a domicilium necesarium in Batac, Ilocos Norte,
back to now San Juan, Metro Manila — do not appear to have
the majority insists on making a qualification that she did not
resulted in her thereby acquiring new domiciles of choice. In
intend to abandon her domicile of origin. I find this bewildering
fact, it appears that her having resided in those places was by
since, in this situation, it is the law that declares where
reason of the fortunes or misfortunes of her husband and his
petitioner's domicile is at any given time, and not her self-
peregrinations in the assumption of new official positions or the
serving or putative intent to hold on to her former domicile.
loss of them. Her residence in Honolulu and, of course, those
Otherwise, contrary to their own admission that one cannot
after her return to the Philippines were, as she claimed, against
have more than one domicile at a time,8 the majority would be
her will or only for transient purposes which could not have
suggesting that petitioner retained Tacloban City as (for lack of
invested them with the status of domiciles of choice.5
a term in law since it does not exist therein) the equivalent of
what is fancied as a reserved, dormant, potential, or residual
After petitioner's return to the Philippines in 1991 and up to the domicile.
present imbroglio over her requisite residency in Tacloban City
or Olot, Tolosa, Leyte, there is no showing that she ever
Secondly, domicile once lost in accordance with law can only
attempted to acquire any other domicile of choice which could
be recovered likewise in accordance with law. However, we are
have resulted in the abandonment of her legal domicile in
here being titillated with the possibility of an automatic
Batac, Ilocos Norte. On that score, we note the majority's own
reversion to or reacquisition of a domicile of origin after the
submission 6 that, to successfully effect a change of domicile,
termination of the cause for its loss by operation of law. The
one must demonstrate (a) an actual removal or an actual
majority agrees that since petitioner lost her domicile of origin
change of domicile, (b) a bona fide intention of abandoning the
by her marriage, the termination of the marriage also
former place of residence and establishing a new one, and (c)
terminates that effect thereof. I am impressed by the
acts which correspond with the purpose.
ingeniousness of this theory which proves that, indeed,
necessity is the mother of inventions. Regretfully, I find some
We consequently have to also note that these requirements for difficulty in accepting either the logic or the validity of this
the acquisition of a domicile of choice apply whether what is argument.
sought to be changed or substituted is a domicile of origin
(domicilium originis) or a domicile by operation of law
If a party loses his domicile of origin by obtaining a new
(domicilium necesarium). Since petitioner had lost
domicile of choice, he thereby voluntarily abandons the former
her domicilium originis which had been replaced by
in favor of the latter. If, thereafter, he abandons that chosen
her domicilium necesarium, it is therefore her continuing
domicile, he does not per se recover his original domicile
domicile in Batac, Ilocos Norte which, if at all, can be the object
unless, by subsequent acts legally indicative thereof, he
of legal change under the contingencies of the case at bar.
evinces his intent and desire to establish the same as his new
domicile, which is precisely what petitioner belatedly and,
To get out of this quandary, the majority decision echoes the evidently just for purposes of her candidacy, unsuccessfully
dissenting opinion of Commissioner Regalado E. Maambong in tried to do.
SPA 95-009 of the Commission on Elections,7 and advances
this novel proposition.
One's subsequent abandonment of his domicile of choice
cannot automatically restore his domicile of origin, not only
It may be said that petitioner lost her because there is no legal authority therefor but because it
domicile of origin by operation of law as a would be absurd Pursued to its logical consequence, that
theory of ipso jure reversion would rule out the fact that said
party could already very well have obtained another domicile,
either of choice or by operation of law, other than his domicile
of origin. Significantly and obviously for this reason, the Family
Code, which the majority inexplicably invokes, advisedly does
not regulate this contingency since it would impinge on one's
freedom of choice.
Now, in the instant case, petitioner not only voluntarily
abandoned her domicile of choice (unless we assume that she
entered into the marital state against her will) but, on top of
that, such abandonment was further affirmed through her
acquisition of a new domicile by operation of law. In fact, this is
even a case of both voluntary and legal abandonment of a
domicile of origin. With much more reason, therefore, should
we reject the proposition that with the termination of her
marriage in 1989, petitioner had supposedly per se and ipso
facto reacquired her domicile of origin which she lost in 1954.
Otherwise, this would be tantamount to saying that during the
period of marital coverture, she was simultaneously in
possession and enjoyment of a domicile of origin which was
only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after
the husband's death the wife has the right to elect her own
domicile,9 she nevertheless retains the last domicile of her
deceased husband until she makes an actual change. 10 In the
absence of affirmative evidence, to the contrary, the
presumption is that a wife's domicile or legal residence follows
that of her husband and will continue after his death. 11
I cannot appreciate the premises advanced in support of the
majority's theory based on Articles 68 and 69 of the Family
Code. All that is of any relevance therein is that under this new
code, the right and power to fix the family domicile is now
shared by the spouses. I cannot perceive how that joint right,
which in the first place was never exercised by the spouses,
could affect the domicile fixed by the law for petitioner in 1954
and, for her husband, long prior thereto. It is true that a wife
now has the coordinate power to determine
the conjugal or family domicile, but that has no bearing on this
case. With the death of her husband, and each of her children
having gotten married and established their own respective
domiciles, the exercise of that joint power was and is no longer
called for or material in the present factual setting of this
controversy. Instead, what is of concern in petitioner's case
was the matter of her having acquired or not her own domicile
of choice.
I agree with the majority's discourse on the virtues of the
growing and expanded participation of women in the affairs of
the nation, with equal rights and recognition by Constitution
and statutory conferment. However, I have searched in vain for
a specific law or judicial pronouncement which either expressly
or by necessary implication supports the majority's desired
theory of automatic reacquisition of or reversion to
the domicilium originis of petitioner. Definitely, as between
the settled and desirable legal norms that should govern this
issue, there is a world of difference; and, unquestionably, this
should be resolved by legislative articulation but not by the
eloquence of the well-turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of
origin since 1954 and not having automatically reacquired any
domicile therein, she cannot legally claim that her residency in
the political constituency of which it is a part continued since
her birth up to the present. Respondent commission was,
therefore, correct in rejecting her pretension to that effect in her
amended/corrected certificate of candidacy, and in holding her
to her admission in the original certificate that she had actually
resided in that constituency for only seven months prior to the
election. These considerations render it unnecessary to further
pass upon the procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the
petition for lack of merit.
DAVIDE, JR., J., dissenting:
I respectfully dissent from the opinion of the majority written by
Mr. Justice Santiago M. Kapunan, more particularly on the
issue of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the Constitution,
decisions, orders, or rulings of the COMELEC may be brought
to this Court only by the special civil action for certiorari under
Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA
251 [1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the
COMELEC has acted without or in excess of jurisdiction or with
grave abuse of discretion (Section 1, Rule 65, Rules of Court).
Since the COMELEC has, undoubtedly, jurisdiction over the
private respondent's petition, the only issue left is whether it
acted with grave abuse of discretion in disqualifying the
petitioner.
My careful and meticulous perusal of the challenged resolution
of 24 April 1995 of the COMELEC Second Division and the En
Banc resolution of 7 May 1995 discloses total absence of
abuse of discretion, much less grave abuse thereof. The
resolution of the Second Division dispassionately and
objectively discussed in minute details the facts which
established beyond cavil that herein petitioner was disqualified
as a candidate on the ground of lack of residence in the First
Congressional District of Leyte. It has not misapplied,
miscomprehended, or misunderstood facts or circumstances of
substance pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELEC's
findings of fact for lack of proof that the petitioner has
abandoned Tolosa as her domicile of origin, which is allegedly
within the First Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the
COMELEC, either by admission or by documentary evidence,
overwhelming proof of the loss or abandonment of her domicile
of origin, which is Tacloban City and not Tolosa, Leyte.
Assuming that she decided to live again in her domicile of
origin, that became her second domicile of choice, where her
stay, unfortunately, was for only seven months before the day
of the election. She was then disqualified to be a candidate for
the position of Representative of the First Congressional
District of Leyte. A holding to the contrary would be arbitrary.
It may indeed be conceded that the petitioner's domicile of
choice was either Tacloban City or Tolosa, Leyte.
Nevertheless, she lost it by operation of law sometime in May
1954 upon her marriage to the then Congressman (later,
President) Ferdinand E. Marcos. A domicile by operation of law
is that domicile which the law attributes to a person,
independently of his own intention or actual residence, as
results from legal domestic relations as that of the wife arising
from marriage (28 C.J.S. Domicile § 7, 11). Under the
governing law then, Article 110 of the Civil Code, her new
domicile or her domicile of choice was the domicile of her
husband, which was Batac, Ilocos Norte. Said Article reads as
follows:
Art. 110. The husband shall fix the
residence of the family. But the court may
exempt the wife from living with the
husband if he should live abroad unless in
the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino
states:
Although the duty of the spouses to live
together is mutual, the husband has a
predominant right because he is
empowered by law to fix the family
residence. This right even predominates
over some rights recognized by law in the
wife. For instance, under article 117 the
wife may engage in business or practice a
profession or occupation. But because of
the power of the husband to fix the family
domicile he may fix it at such a place as
would make it impossible for the wife to
continue in business or in her profession.
For justifiable reasons, however, the wife
may be exempted from living in the
residence chosen by the husband. The
husband cannot validly allege desertion by
 the wife who refuses to follow him to a new
place of residence, when it appears that
they have lived for years in a suitable
home belonging to the wife, and that his
choice of a different home is not made in
good faith. (Commentaries and
Jurisprudence on the Civil Code of the
Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses her
own domicile and, by operation of law, acquires that of her
husband, no matter where the wife actually lives or what she
believes or intends. Her domicile is fixed in the sense that it is
declared to be the same as his, and subject to certain
limitations, he can change her domicile by changing his own
(25 Am Jur 2d Domicile § 48, 37).
It must, however, be pointed out that under Article 69 of the
Family Code, the fixing of the family domicile is no longer the
sole prerogative of the husband, but is now a joint decision of
the spouses, and in case of disagreement the court shall
decide. The said article uses the term "family domicile," and not
family residence, as "the spouses may have multiple
residences, and the wife may elect to remain in one of such
residences, which may destroy the duty of the spouses to live
together and its corresponding benefits" (ALICIA V. SEMPIO-
DIY, Handbook on the Family Code of the Philippines, [1988],
102).
The theory of automatic restoration of a woman's domicile of
origin upon the death of her husband, which the majority
opinion adopts to overcome the legal effect of the petitioner's
marriage on her domicile, is unsupported by law and by
jurisprudence. The settled doctrine is that after the husband's
death the wife has a right to elect her own domicile, but she
retains the last domicile of her husband until she makes an
actual change (28 C.J.S. Domicile § 12, 27). Or, on the death
of the husband, the power of the wife to acquire her own
domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his death
(25 Am Jur 2d Domicile § 62, 45). Note that what is revived is
not her domicile of origin but her power to acquire her own
domicile.
Clearly, even after the death of her husband, the petitioner's
domicile was that of her husband at the time of his death —
which was Batac, Ilocos Norte, since their residences in San
Juan, Metro Manila, and San Miguel, Manila, were their
residences for convenience to enable her husband to
effectively perform his official duties. Their residence in San
Juan was a conjugal home, and it was there to which she
returned in 1991 when she was already a widow. In her sworn
certificate of candidacy for the Office of the President in the
synchronized elections of May 1992, she indicated therein that
she was a resident of San Juan, Metro Manila. She also voted
in the said elections in that place.
On the basis of her evidence, it was only on 24 August
1994 when she exercised her right as a widow to acquire her
own domicile in Tolosa, Leyte, through her sworn statement
requesting the Election Officer of San Juan, Metro Manila, to
cancel her registration in the permanent list of voters in
Precinct 157 thereat and praying that she be "re-registered or
transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth
and permanent residence" (photocopy of Exhibit "B," attached
as Annex "2" of private respondent Montejo's Comment).
Notably, she contradicted this sworn statement regarding her
place of birth when, in her Voter's Affidavit sworn to on 15
March 1992 (photocopy of Exhibit "C," attached as Annex
"3," Id.), her Voter Registration Record sworn to on 28 January
1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and
her Certificate of Candidacy sworn to on 8 March 1995
(photocopy of Exhibit "A," attached as Annex "1," Id.), she
solemnly declared that she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it
Tacloban City or Tolosa, Leyte? In the affidavit attached to her
Answer to the petition for disqualification (Annex "I" of Petition),
she declared under oath that her "domicile or residence is
Tacloban City." If she did intend to return to such domicile or
residence of origin why did she inform the Election Officer of
San Juan that she would transfer to Olot, Tolosa, Leyte, and
indicate in her Voter's Registration Record and in her certificate
of candidacy that her residence is Olot, Tolosa, Leyte? While
this uncertainty is not important insofar as residence in the
congressional district is concerned, it nevertheless proves that
forty-one years had already lapsed since she had lost or
abandoned her domicile of origin by virtue of marriage and that
such length of time diminished her power of recollection or
blurred her memory.
I find to be misplaced the reliance by the majority opinion
on Faypon vs. Quirino (96 Phil. 294 [1954]), and the
subsequent cases which established the principle that absence
from original residence or domicile of origin to pursue studies,
practice one's profession, or engage in business in other states
does not constitute loss of such residence or domicile. So is
the reliance on Section 117 of the Omnibus Election Code
which provides that transfer of residence to any other place by
reason of one's "occupation; profession; employment in private
and public service; educational activities; work in military or
naval reservations; service in the army, navy or air force, the
constabulary or national police force; or confinement or
detention in government institutions in accordance with law" is
not deemed as loss of original residence. Those cases and
legal provision do not include marriage of a woman. The
reason for the exclusion is, of course, Article 110 of the Civil
Code. If it were the intention of this Court or of the legislature to
consider the marriage of a woman as a circumstance which
would not operate as an abandonment of domicile (of origin or
of choice), then such cases and legal provision should have
expressly mentioned the same.
This Court should not accept as gospel truth the self-serving
claim of the petitioner in her affidavit (Annex "A" of her Answer
in COMELEC SPA No. 95-009; Annex "I" of Petition) that her
"domicile or residence of origin is Tacloban City," and that she
"never intended to abandon this domicile or residence of origin
to which [she] always intended to return whenever absent."
Such a claim of intention cannot prevail over the effect of
Article 110 of the Civil Code. Besides, the facts and
circumstances or the vicissitudes of the petitioner's life after her
marriage in 1954 conclusively establish that she had indeed
abandoned her domicile of origin and had acquired a new
one animo et facto (KOSSUTH KENT KENNAN, A Treatise on
Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the
petitioner's claim that she "merely committed an honest
mistake" in writing down the word "seven" in the space
provided for the residency qualification requirement in the
certificate of candidacy. Such a claim is self-serving and, in the
light of the foregoing disquisitions, would be all sound and fury
signifying nothing. To me, she did not commit any mistake,
honest or otherwise; what she stated was the truth.
The majority opinion also disregards a basic rule in evidence
that he who asserts a fact or the affirmative of an issue has the
burden of proving it (Imperial Victory Shipping Agency vs.
NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of
Appeals, 221 SCRA 19 [1993]). Having admitted marriage to
the then Congressman Marcos, the petitioner could not deny
the legal consequence thereof on the change of her domicile to
that of her husband. The majority opinion rules or at least
concludes that "[b]y operation of law (domicilium necesarium),
her legal domicile at the time of her marriage automatically
became Batac, Ilocos Norte." That conclusion is consistent with
Article 110 of the Civil Code. Since she is presumed to retain
her deceased husband's domicile until she exercises her
revived power to acquire her own domicile, the burden is upon
her to prove that she has exercised her right to acquire her own
domicile. She miserably failed to discharge that burden.
I vote to deny the petition.
Footnotes
1 Jarrolt v. Mabberly, 103 U.S.
580 (1881).
2 CONST, art. VI, states:
Sec. 6. No person shall be a
member of the House of
Representatives unless he is a
natural-born citizen of the
Philippines and, on the day of
the election, is at least twenty-
five years of age, able to read
and write, and except the party-
list representatives, a registered
voter in the district in which he
shall be elected, and a resident
thereof for a period of not less
than one year immediately
preceding the day of the
election.
See, Jarrolt v. Mabberly, supra,
note 1.
3 Gallego vs. Vera, 73 Phil. 453
(1941).
4 Rollo, p. 114, Annex "D".
5 Rollo, p. 110, Annex "D".
6 Rollo, p. 113.
7 Rollo, p. 111.
8 Rollo, p. 115, Annex "E".
9 Signed by Virgilo S. Oledan,
Provincial Election Supervisor
IV, Leyte; Rollo,
p. 116, Annex "F".
10 Rollo, p. 117, Annex "G".
Petitioner explained the
circumstances surrounding the
filling up of the original certificate
thus:
1. On March 8, 1995, I filed my
certificate of candidacy for
Member of the House of
Representatives
(Congresswoman) of the First
Legislative District of the
province of Leyte, which was
drafted by Mr. Filomeno A. Zeta.
2. I learned lately that
Congressman Cirilo Montejo
wants to disqualify me as I
allegedly lack residence in the
constituency because of the
entry of the word "SEVEN" in
Item No. 8 of my certificate of
candidacy.
3. I read my certificate of
candidacy before signing it and
thought of the word
"RESIDENCE" to mean actual or
physical residence, and the word
"SEVEN" merely reflected my
actual and physical residence in
Barangay Olot, Tolosa, Leyte.
3.1. The word "SEVEN" was
placed on my certificate of
candidacy to indicate that at
lease one (1) month had passed
from my registration as voter of
Tolosa, Leyte, on January 28,
1995, when I wrote "06" months
under "PERIOD OF
RESIDENCE" as my actual or
physical residence in the town.
4. I thought then that the sense
in Item No. 10 of my certificate of
candidacy stating "THAT I AM
eligible for said Office" was
sufficient to affirm that I possess
all the qualifications, including
my residence, for Member of the
House of Representatives for
which I am aspiring in the May 8,
1995 elections.
5. The fact, however, is that my
domicile or residence of origin is
Tacloban City, a component city
of the First Legislative District of
Leyte I never intended to
abandon this domicile or
residence of origin to which I
always intended to return
whenever absent; indeed in
1992, I returned to Tacloban City
to live and stay there. On
November 5, 1992; I bought my
Residence Certificate No.
15226186L there, which is made
an integral part hereof as Annex
"I" (Annex "2" hereof).
11 Id., at p. 120. See also, Rollo,
p. 130-133, Annex "I",
petitioner's Affidavit explaining
her residence:
13. I established my domicile,
however in Tacloban, Leyte
(Tacloban City in 1938, when
was little over eight (8) years old.
Shortly after my mother died on
April 7, 1938, my widowed
father, Vicente Orestes
Romualdez, brought me and my
brothers. . .and my sisters to
Tacloban, Leyte (now Tacloban
City) his hometown.
xxx xxx xxx
18. I have always considered
Tacloban City as my permanent
residence or residence of origin
have not abandoned and have
never intended to abandon my
permanent residence or
residence of origin there. To it I
always intend to return
whenever absent.
19. In 1952, I went to Manila to
work with my cousin, the late
speaker
Daniel Z. Romualdez in his office
in the House of Representatives.
20. In May, 1954, I married
President Ferdinand E. Marcos
when he was still the
congressman of Ilocos, Norte.
21. As a dutiful wife who loved
him deeply, I lived with him in
Batac, Ilocos Norte and
registered as a voter there.
22. In 1965, my husband was
elected President of the
Republic of the Philippines.
Together, we lived in
Malacañang Palace and I
registered as a voter in San
Miguel, Manila.
23. My registration as voter in
Batac, Ilocos Norte; San Juan,
Rizal (now San Juan, Metro
Manila); and San Miguel, Manila,
was for convenience because I
had to live with my husband to
serve him when he was
congressman, Senator and
President of the Republic of the
Philippines. During those years
however, I never intended nor
desired to abandon my domicile
or residence of origin in
Tacloban City, which I
established since I was a child.
xxx xxx xxx
33. Throughout the Marcos
Presidency, I spent most of my
birthday anniversaries and
attended the Sto. Nini Fiesta in
Tacloban City. I regularly visited
my domicile or residence of
origin in Leyte and even held
important functions and
entertained guests and foreign
dignitaries there.
34. After President Ferdinand E.
Marcos and I, together with our
children and innocent
grandchildren were abducted
and kidnapped to Honolulu,
Hawaii, in February, 1986, my
Leyte properties were
sequestered by the PCGG, and
were destroyed and
cannibalized.
xxx xxx xxx
38. Upon my return to the
country, I wanted to immediately
live and reside in Tacloban City
or in Olot, Tolosa, Leyte even if
my residences there were not
livable as they had been
destroyed and cannibalized. The
PCGG, however, did not permit
and allow me.
xxx xxx xxx
Tacloban City and Barangay 21 Id. at 969.
Olot, Tolosa, Leyte.
22 Uytengsu v. Republic, 95
12 Rollo, p. 122. Phil. 890 (1954).
13 Commissioners Manolo B. 23 Id.
Gorospe and Teresita Dy-Liaco
Flores formed the majority
24 52 Phil. 645 (1928).
opinion. Commissioner
Remedies A. Salazar-Fernando
dissented. 25 Citing People v. Bender 144
N.Y.S., 145.
14 Rollo, p. 64.
26 61 Phil. 36 (1934).
15 Rollo, p. 57-64.
27 96 Phil. 294 (1954).
16 Petitioner filed a "Motion to
Recall Resolution Promulgated 28 Id, see also Ujano v.
on April 24, 1995 and to Dismiss Republic, 17 SCRA 147 (1966);
the Petition Because of Lapse of Nuval v. Guray, supra
Jurisdiction; Alternatively, Motion
for Reconsideration." The
note 22.
Commission's May 7, 1995
Resolution treated the same
simply as a Motion for 29 II RECORD OF THE 1987
Reconsideration. CONSTITUTIONAL
CONVENTION, 110 (July 22,
1986).
17 Commissioners Regalado E.
Maambong, Remedios A.
Salazar-Fernando and Julio F. 30 Id.
Desamito dissented. All filed
separate dissenting opinions. In
disqualifying petitioner, the 31 199 SCRA 692 (1991).
majority held:
32 Id, at 714.
As it stands now, only the
Certificate of Candidacy 33 61 Phil. 36 (1934).
respondent filed on March 8,
1995, stands, and on the basis
of the entries therein, she is 34 96 Phil. 294, 299-300 (1954).
disqualified to run for failure to
meet the constitutional 35 B.P. 881, sec. 117 states:
requirement of one (1) year of
residence in the place where she
wanted to be elected. xxx xxx xxx

18 Rollo, p. 78, Annex "B". Any person who transfers

40. After the 1992 Presidential
Elections, I lived and resided in
the residence of my brother in
San Jose, Tacloban City, and
pursued my negotiations with
PCGG to recover my
sequestered residences in
19 Rollo, Annex "D".
20 19 SCRA 966 (1967). See
also, Corre v. Corre, 100 Phil.
221 (1956).
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 not be
deemed to have lost his original
residence.
36 Rollo, p. 38.
37 18 Am Jur 219-220.
38 20 Am Jur 71.
39 TOLENTINO 1
COMMENTARIES &
JURISPRUDENCE ON THE
CIVIL CODE, 220 (1987).
40 Id.
41 TOLENTINO, 1
COMMENTARIES AND
JURISPRUDENCE ON CIVIL
CODE, 220 (1987).
42 Under modern laws, it is clear
that many exceptions to the rule
that the domicile of the wife is
determined by that of her
husband must obtain.
Accordingly, the wife may
acquire another and separate
domicile from that of her
husband where the theoretical
unity of the husband and wife is
dissolved, as it is by the
institution of divorce
proceedings; or where the
husband has given cause for
divorce; or where there is a
separation of the parties by
agreement, or a permanent
separation due to desertion of
the wife by the husband or
attributable to cruel treatment on
the part of the husband; or
where there has been a
forfeiture by the wife of the
benefit of the husband's
domicile. 9 R.C.L., 545, cited in
De La Vina, supra. If the law
allows the wife to automatically
revert to her original domicile or
acquire a new domicile under
these situations, all the more
should it sanction a reversion —
or the acquisition of a new
domicile by the wife — upon the
death of her husband.
43 41 Phi. 13 (1920).
44 The rule that the wife
automatically acquires or follows
her husband's domicile is not an
absolute one. A specific situation
recognized in Spanish
jurisprudence involves the one in
which husband acquiesces (1
Manresa 223) or gives his tacit
consent (Scaevola, Civil Code;
354.)
45 42 Phil. 54 (1921).
46 Justice Alicia Sempio-Diy
recognizes the same Civil Code
distinction. However, taking
another approach, she writes:
(6) The above Article (Article 69,
FC) uses the term "family
domicile" instead of family
residence because the spouses
may have multiple residences,
and the wife may elect to remain
in one of such residences, which
may destroy the duty of the
spouses to live together and its
corresponding benefits.
SEMPIO-DIY, HANDBOOK ON
THE FAMILY CODE OF THE
PHILIPPINES, 102 (1988).
47 Rollo, pp. 132-133.
48 The provision reads: Section
78. Petition to deny due course
or to 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 filing of the
certificate of candidacy and shall
be decided after due notice and
hearing, not later than fifteen
days before the election.
49 Marcelino vs. Cruz, 121
SCRA 51 (1983).
50 American Tupe Founders Co.
v. Justice's Court, 133 Cal. 819,
65 Pac. 742; Heillen v. Phillipps,
88 Cal. 557, 26 Pac. 366; Drake
v. Bagley, 69 Mo. App. 39; State
v. Davis, 194 Mo. 585.
51 Supra, note
39, citing Huffines v. Gold 154
Tenn. 583, 588; 288 S.W. 353,
354.
52 Sec. 6. Effect of
Disqualification Case. — Any
candidate who has been
declared by final judgment to be
disqualified shall not be voted
for, and the votes cast for him
shall not be counted. If for any
reason a candidate is not
declared by final judgment
before an election to be
disqualified and he is voted for
and receives the winning
number of votes in such election,
the Court or Commission shall
continue with the trial and
hearing of the action, inquiry or
protest and, upon motion of the
complainant or any intervenor,
may during the thereof order the
suspension of the proclamation
of such candidate whenever the
evidence of his guilt is strong.
Sec. 7 Petition to Deny Due
Course or to Cancel a Certificate
Candidacy.
The procedure hereinabove
provided shall apply to petitions
to deny due course to or cancel
a certificate of candidacy as
provided in Section 78 of Batas
Pambansa Blg. 881.
53 CONST., art. VI, sec. 11
states:
The Senate and the House of
Representatives shall have an
Electoral Tribunal which shall be
the sole judge of all questions
relating to the election, returns,
and qualifications of their
respective Members. . . .
PUNO, J., concurring:
1 Aristotle, Ethica Nichomachea,
bk., v. 3, 1131 (a) (W. Ross
translation, 1925 ed).
2 It provides: "No person shall
be a member of the House of
Representatives unless he is a
natural born citizen of the
Philippines and on the day of the
election, is at least twenty-five
years of age, able to read and
write, and except the party list
representatives, a registered
voter in the district in which he
shall be elected, and a resident
thereof for a period of not less
than one year immediately
preceding the day of the
election." (Emphasis supplied)
3 There are two (2) other
instances when a married
woman may have a domicile
different from the husband: (1) if
they are legally separated
pursuant to par. 1, Art. 106 of
the Civil Code, and (2) if the
husband forcibly ejects the wife
from the conjugal home to have
illicit relations with another. (De
la Viña v. Villareal and Geopano,
41 Phil. 13 [1920]).
4 Op cit.
5 Id., at pp. 16-17.
6 Id., at p. 20, citing 1 Manresa
223.
7 25 AM JUR 2nd S. 48, p. 37.
8 28 CJS on Domicile, S. 12, 27;
25 AM JUR 2nd on Domicile S.
62, 46.
9 28 CJS, S. 12, p. 24.
10 Restatement of the Law, 2d,
Conflict of Laws 2d., S. 21, p.
84.
11 Ibid.
12 83 U.S. 442; 21 Law Ed. 442;
S.C. 16 Wall 130.
13 Supra.
14 Supra.
15 In re Green's Estate, 191
N.Y.S. 757, 117 Misc. 800, 165
N.Y.S. 1063, 99 Misc. 582.
16 Clark et al. v. Baker et al.,
196 SE 750, 186 Ga 65.
17 Lefcourt, Women and The
Law, 1990 ed.
18 404 US 71.
19 28 CJS S. 12, p.
25 citing Shute v. Sargent, 36 A
282, 67 N.H. 305.
20 Op cit., p. 84.
21 Women's Status in Philippine
Society, UP Law Center, 1979,
pp. 4-6.
22 In submitting the draft of the
Family Code to President
Corazon Aquino, the Civil Code
Revision Committee stated:
Close to forty years of
experience under the Civil Code
adopted in 1949 and changes
and developments in all aspects
of Filipino Life since then have
revealed the unsuitability of
certain provisions of that Code,
implanted from foreign sources,
to Philippine culture; the
unfairness, unjustness, and gaps
or inadequacies of others; and
the need to attune them to
contemporary developments and
trends.
In particular — to cite only a few
instances — (1) the property
regime of conjugal partnership of
gains is not in accord with
Filipino custom, especially in the
rural areas, which is more
congenial to absolute community
of property; (2) there have
considerably been more grounds
for annulment of marriage by the
Church than those provided by
the Code, thus giving rise to the
absurd situation of several
marriages already annulled
under Canon Law but still
considered subsisting under the
Civil Law and making it
necessary to make the grounds
for annulment under both laws to
coincide; (3) unequal treatment
of husband and wife as to rights
and responsibilities, which
necessitates a response to the
long-standing clamor for equality
between men and women now
mandated as a policy to be
implemented under the New
Constitution; (4) the inadequacy
of the safeguards for
strengthening marriage and the
family as basic social institutions
recognized as such by the New
Constitution; (5) recent
developments have shown the
absurdity of limiting the grounds
for legal separation to the
antiquated two grounds provided
under the Civil Code; (6) the
need for additional safeguards to
protect our children in the matter
of adoption by foreigners; and
(7) to bring our law on paternity
and filiation in step with or
abreast of the latest scientific
discoveries." (Emphasis
supplied)
23 Article 96, Family Code.
24 Article 225, Family Code.
25 Article 70, Family Code.
26 Article 71, Family Code.
27 Article 73, Family Code.
28 Op cit., Handbook on the
Family Code of the Philippines,
pp. 98-99.
29 As cited in Diy, Handbook on
the Family Code of the
Philippines, pp. 184-185.
30 Section 1, Article III of the
Constitution provides: "No
person shall be deprived of life,
liberty, or property without due
process of law, nor shall any
person be denied the equal
protection of the laws."
31 Exhibit "E"; see also Exhibit
"B" in SPA No. 95-001.
32 Exhibit "A" in SPA No. 95-
009.
33 Exhibit "2" in SPA No. 95-
009.
34 2 SCRA 957, 960
(1961); See Canceran v.
COMELEC, 107 Phil. 607
(1960); Gabaldon v. COMELEC,
99 Phil. 898 (1956).
35 Section 26, Article II of the
Constitution also provides: "The
State shall guarantee equal
access to opportunities for public
service . . . ."
36 Annex "G," Petition.
37 Petition, Annex "B-1" pp. 6-7.
38 73 Phil. 453, 459 (1951). 9 Art. 114, Civil Code.
FRANCISCO, J., concurring: 10 Art. 117, Civil Code.
1 See Articles 68-73 of E.O. 11 Art. 84, Civil Code.
209, as amended, otherwise
known as The Family Code of
12 Art. 328, Civil Code.
the Philippines.
13 Art. II, Sec. 2, Const.
2 Residence Certificate No.
15226186L, dated Nov. 5, 1992.
14 Part IV, Art. 15, Paragraph 4,
CEDAW.
3 PCGG Chairman Gunigundo's
letter addressed to Col. Kempis.
15 Executive Order No. 209,
July 6, 1987, as amended by
ROMERO, J., separate opinion:
Executive Order No. 227, July
17,1987, which took effect on
1 Art. VI, Sec. 6, Const.: "No August 3, 1988.
person shall be a Member of the
House of Representatives
16 Art. II Sec. 11, Const.
unless he is a natural-born
citizen of the Philippines and, on
the day of the election, is at least 17 Art. II, Sec. 14, Const.
twenty-five years of age, able to
read and write, and, except the
18 Art. 69, Family Code.
party-list representatives, a
registered voter in the district in
which he shall be elected, and a 19 Art. 71, Family Code.
resident thereof for a period not
less than one year immediately
preceding the day of the 20 Art. 96, Family Code.
election."
21 Art. 225, Family Code.
2 Art. 110: "The husband shall
fix the residence of the family. 22 Republic Act No. 7192
But the court may exempt the approved February 12, 1992.
wife from living with the husband
if he should live abroad unless in
the service of the Republic. 23 Ibid., Sec. 5.
MENDOZA, J., separate opinion:
3 Art. 110, Civil Code.
4 Art. 111, Civil Code. 1 Labo, Jr. v. COMELEC, 211
SCRA 297 (1992) (for mayor).
5 Art. 112, Civil Code.
2 Loong v. COMELEC, 216
SCRA 760 (1992) (for regional
6 Art. 171, Civil Code. vice governor).
7 Art. 172, Civil Code. 3 Abella v. Larrazabal, 180
SCRA 509 (1989); Abella v.
COMELEC, 201 SCRA 253
8 Art. 320, Civil Code.
(1991) (for provincial governor).
4 Co. v. HRET, 199 SCRA 692 1 Struble vs. Struble, Tex. Civ.
(1991) (election protest against a App., 177 S.W. 2d, 279, 283.
Congressman).
2 This is also referred to as
5 Faypon v. Quirino, 96 Phil. 294 natural domicile or domicile by
(1954) (quo warranto against a birth (Johnson vs. Twenty-One
governor); Gallego v. Verra, 73 Bales, 13 Fed. Cas. 863).
Phil. 453 (1941) (quo
warranto against a mayor);
3 Story, Conflict of Laws, Sec.
Larena v. Teves, 61 Phil. 36
46; Railroad Co. vs. Kimbrough,
(1934) (quo warranto against a
115 Ky 512, 74 S.W. 229; and
provincial board member);
Johnson vs. Harvey, 261 Ky.
Tanseco v. Arteche, 57 Phil. 227
522, 88 S.W. 2d 42, 46, 47, as
(1932) (quo warranto against a
cited in Black's Law Dictionary,
governor): Yra v. Abaño, 52 Phil.
4th ed.
380 (1928) (quo
warranto against a municipal
president); Vivero v. Murillo, 52 4 Article 110, Civil Code.
Phil. 694 (1929) (quo
warranto against a municipal
5 Towson vs. Towson, 126 Va.
president). Cf. Aznar v.
640, 102 S.E. 48, 52; Fisher vs.
COMELEC, 185 SCRA 703
Jordan, C.C.A. Tex., 116 F. 2d.
(1990) (quo warranto although
183, 186; Minick vs. Minick, 111
prematurely filed, against a
Fla. 469, 149 So. 483, 488;
governor-elect).
Hartzler vs. Radeka, 265 Mich.
451, 251 N.W. 554.
6 R.A. No. 6646, § 6; Labo, Jr. v.
COMELEC, supra note 1.
6 Citing 18 Am. Jur. 219-220.

7 OEC, § 76.
7 Montejo vs. Marcos, En Banc,
May 10, 1995.
8 Lagumbay v. COMELEC, 16
SCRA 175 (1966).
8 Citing 20 Am. Jur. 71.

PADILLA, J., dissenting:
9 Cheely vs. Clayton, D.C., 110
U.S. 701, L. Ed. 298.
1 Nuval vs. Guray, G.R. No.
30241, December 29, 1928;
10 In re Gates' Estate, 191
Larena vs. Teves, G.R.
N.Y.S. 757, 117 Misc. 800 — In
No. 42439, December 10, 1934;
re Green's Estate, 164 N.Y.S.
Gallego vs. Verra, G.R. No.
1063, 99 Misc. 582, affirmed 165
48641, November 24, 1941; De
N.Y.S. 1088, 179 App. Div. 890,
los Reyes vs. Solidum, G.R. No.
as reported in 28 C.J.S. 27.
42798. August 31, 1935;
but see Romualdez vs. RTC, Br.
7 Tacloban City, where a sudden 11 Clark vs. Baker, 196 S.E.
departure from the country was 750, 186 Ga. 65, op. cit. 37.
not deemed "voluntary" so as to
constitute abandonment of
domicile both in fact and in law.

2 Annex "A" Petition, pp. 2-4.

REGALADO, J., dissenting:
G.R. No. L-22041             May 19, 1966
MELECIO CLARINIO UJANO, petitioner and appellant,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor and appellee.
Tagayuna, Arce and Tabaino for petitioner and appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant
Solicitor F. C. Zaballero and Solicitor Camilo D. Quiason for
oppositor and appellee.
BAUTISTA ANGELO, J.:
Petitioner seeks to reacquire his Philippine citizenship in a
petition filed before the Court of First Instance of Ilocos Sur.
Petitioner was born 66 years ago of Filipino parents in
Magsingal Ilocos Sur. He is married to Maxima O. Ujano with
whom he has one son, Prospero, who is now of legal age. He
left the Philippines for the United States of America in 1927
where after a residence of more than 20 years he acquired
American citizenship by naturalization. He returned to the
Philippines on November 10, 1960 to which he was admitted
merely for a temporary stay. He owns an agricultural land and
a residential house situated in Magsingal, Ilocos Sur worth not
less than P5,000.00. He receives a monthly pension of $115.00
from the Social Security Administration of the United States of
America. He has no record of conviction and it is his intention
to renounce his allegiance to the U.S.A.1äwphï1.ñët
After hearing, the court a quo rendered decision denying the
petition on the ground that petitioner did not have the residence
required by law six months before he filed his petition for
reacquisition of Philippine citizenship. Hence the present
appeal.
in nature and must leave when the purpose of his coming is
accomplished. In the present case, petitioner, who is presently
a citizen of the United States of America, was admitted into this
country as a temporary visitor, a status he has maintained at
the time of the filing of the present petition for reacquisition of
Philippine citizenship and which continues up to the present.
Such being the case, he has not complied with the specific
requirement of law regarding six months residence before filing
his present petition."
We can hardly add to the foregoing comment of the court a
quo. We find it to be a correct interpretation [Section 3 (1) of
Commonwealth Act No. 63] which requires that before a
person may reacquire his Philippine citizenship he "shall have
resided in the Philippines at least six months before he applies
for naturalization." The word "residence" used therein imports
not only an intention to reside in a fixed place but also personal
presence coupled with conduct indicative of such intention
(Yen vs. Republic, L-18885, January 31,1964; Nuval vs. Guray,
52 Phil. 645). Indeed, that term cannot refer to the presence in
this country of a person who has been admitted only on the
strength of a permit for temporary residence. In other words,
the term residence used in said Act should have the same
connotation as that used in Commonwealth Act No. 473, the
Revised Naturalization Law, even if in approving the law
permitting the reacquisition of Philippine citizenship our
Congress has liberalized its requirement by foregoing the
qualifications and special disqualifications prescribed therein.
The only way by which petitioner can reacquire his lost
Philippine citizenship is by securing a quota for permanent
residence so that he may come within the purview of the
residence requirement of Commonwealth Act No. 63.
Wherefore, the decision appealed from is affirmed. No costs.
Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Regala,
Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

The court a quo, in denying the petition, made the following

comment: "One of the qualifications for reacquiring Philippine
citizenship is that the applicant 'shall have resided in the
Philippines at least six months before he applies for
naturalization' [Section 3(1), Commonwealth Act No. 63]. This
'residence' requirement in cases of naturalization, has already
been interpreted to mean the actual or constructive permanent
home otherwise known as legal residence or domicile (Wilfredo
Uytengsu vs. Republic of the Philippines, 95 Phil. 890). A place
in a country or state where he lives and stays permanently, and
to which he intends to return after a temporary absence, no
matter how long, is his domicile. In other words domicile is
characterized by animus manendi. So an alien who has been
admitted into this country as a temporary visitor, either for
business or pleasure, or for reasons of health, though actually
present in this country cannot be said to have established his
domicile here because the period of his stay is only temporary
 DIGEST:
https://www.lexisnexis.com/community/casebri
ef/p/casebrief-in-re-dorrance-s-estate
Supreme Court of Pennsylvania
Dorrance’s Estate
No. 41
309 Pa. 151; 163 A. 303; 1932 Pa. LEXIS 678
DATES: May 23, 1932, Argued
September 26, 1932
PRIOR HISTORY: [***1] Appeal, No. 41, Jan. T.,
1932, by Commonwealth of Pennsylvania, from decree
of O.C. Delaware Co., March T., 1931, No. 120, setting
aside appraisement for transfer inheritance tax
purposes, in estate of John T. Dorrance, deceased.
Reversed.
Appeal from tax appraisement. Before HANNUM, P.J.
The opinion of the Supreme Court states the facts.
Exceptions to appraisement by the executors
dismissed. Appeal by the Commonwealth of
Pennsylvania.
Error assigned, inter alia, was decree, dismissing
exceptions, quoting it.
DISPOSITION: The decree of the court below is
reversed and the appraisement, subject to
modifications indicated by the Commonwealth’s
stipulation as to the value of the estate, is reinstated;
the costs to be paid by appellees.
COUNSEL: Wm. A. Schnader, Attorney General, with
him Francis T. Anderson, Wm. A. Gray and Herman J.
Goldberg, Deputy Attorney General, for appellant. --
The sole question in this case is whether, after 1911,
Dr. Dorrance again became domiciled in Pennsylvania,
and whether at the time of his death, he was domiciled
here. These questions must be decided under the law
of Pennsylvania.
Domicile is the place at which a man has fixed his real
family home and [***2] principal establishment for an
indefinite time and not for a merely temporary
purpose: Fry’s Election, 71 Pa. 302; Carey’s App., 75
Pa. 201; Hindman’s App., 85 Pa. 466; Price v. Price,
156 Pa. 617; Lowry’s Est., 6 Pa. Superior Ct.
143; Raymond v. Leishman, 243 Pa. 64; Winsor’s Est.,
264 Pa. 552; Blessing’s Est., 267 Pa. 380; Barclay’s
Est., 259 Pa. 401.
The term “domicil” is derived from the Latin word
meaning home, and the fundamental significance of
home may be said to have fixed the fundamental
meaning of domicile.
To acquire a domicile of choice, there must concur: (1)
Physical presence in the place where the domicile is
alleged to have been acquired; (2) Intent to make that
place the home of the party. A domicile acquired by the
concurrence of these two factors continues until a new
one is acquired: Mitchell v. United States, 21 Wallace
350.
Declarations are decisive in determining domicile only
if the declarant has two or more real family homes
occupied at different seasons of the year: Winsor's
Est., 264 Pa. 552; Graham v. Dempsey, 169 Pa. 460.
A domicile of choice once acquired cannot be lost by
declarations alone: Dalrymple’s Est., 215 Pa. 367; May
v. May, 94 Pa. [***3] Superior Ct. 293.
An existing domicile is presumed to continue until a
new one is shown to have been adopted, facto et
animo, and, where a change is alleged, the burden of
proving it rests upon whoever makes the allegation:
Carey’s App., 75 Pa. 201; Ennis v. Smith, 14 Howard
400; Mitchell v. U.S., 21 Wallace 350.
The burden of proving a change of domicile rests upon
him who asserts it; but the burden shifts when it has
been shown that the real family home has been
moved: Price v. Price, 156 Pa. 617; Raymond v.
Leishman, 243 Pa. 64; Williamson v. Osenton, 232
U.S. 619.
Robert von Moschzisker, with him John B. Hannum, Jr.,
of Hannum, Hunter, Hannum & Hodge, Schofield
Andrews and Ellis Ames Ballard, of Ballard, Spahr,
Andrews & Ingersoll, for appellee. -- An established
domicile is presumed to continue until its abandonment
is proved.
The burden of proving the abandonment of an
established domicile and the acquisition of a new one is
upon the person asserting the change: Price v. Price,
156 Pa. 617, 626; Barclay’s Est., 259 Pa. 401.
A new domicile can be acquired only by physical
presence at a new residence plus intent to make that
new residence the principal home; but an
established [***4] domicile can be retained without
physical presence or residence, until it be proved that a
new domicile has been acquired: Price v. Price, 156 Pa.
617; Barclay’s Est., 259 Pa. 401; Lowry’s Est., 6 Pa.
Superior Ct. 143; Matter of Martin, 173 N.Y. App. Div.
1; Hindman’s App., 85 Pa. 466; Dalrymple’s Est., 215
Pa. 367.
A person is free to choose his domicile effectively
provided the requisites of domicile exist in relation to
the place of his choice. His choice of a new domicile will
not be effective unless and until he establishes,
through physical presence in the new locality, a
residence with intent to make it his principal home. His
choice to keep an established domicile will be effective,
without physical presence or residence in that locality,
up to the time, if ever, that he is proved to have
abandoned it: Barclay’s Est., 259 Pa. 401; Lowry's
Est., 6 Pa. Superior Ct. 143.
An intention to stay at a given place indefinitely may
fix that place, as one's domicile, but this depends upon
other attending circumstances, which are absent in this
case.
JUDGES: Before FRAZER, C.J., SIMPSON, KEPHART,
SCHAFFER, MAXEY, DREW and LINN, JJ.
OPINIONBY: FRAZER
OPINION: [*155] [**304] OPINION [***5] BY MR.
CHIEF JUSTICE FRAZER:
This case comes before us on appeal by the
Commonwealth from a decree of the Orphans' Court of
Delaware County setting aside an appraisement of the
estate of John T. Dorrance for transfer inheritance tax
purposes. The decree of the court below was based
upon a finding, after hearing, that decedent was
domiciled in Cinnaminson Township, Burlington County,
New Jersey, and not in Pennsylvania.
[*156] The appeal was taken under provisions of the
Act of June 20, 1919, P.L. 521, and a preliminary
question arises as to the scope of review in cases of
this character. Appellees, who are executors of
Dorrance’s Estate, contend that although, under the
Act of April 18, 1919, P.L. 72, the testimony becomes
part of the record, upon an appeal on certiorari “we
cannot weigh conflicting evidence further than to
determine whether the decree appealed from is
supported by any evidence and whether the court or
judge had jurisdiction or authority to do the act
complained of.” Citing Walker’s App., 294 Pa. 385,
389. While, in appeals on certiorari, this court will not
usually overrule findings of fact which have evidence to
support them, nevertheless we will
review [***6] conclusions of law based upon
undisputed facts: Hand’s Case, 266 Pa. 277. The
determination of decedent’s domicile in this appeal is a
conclusion of law, based upon facts, most of which are
undisputed. Furthermore, this case falls within the rule
stated in Hindman’s App., 85 Pa. 466, 470, that where
a finding of fact is simply a deduction from other facts
reported by the tribunal under review, and the ultimate
fact in question is purely the result of reasoning, we
are competent to judge of its correctness and will draw
our own conclusions from the facts as reported.
Dr. John T. Dorrance was born November 11, 1873, in
Bristol, Bucks County, Pennsylvania, where he spent
the early years of his life with his parents. In 1895 he
graduated from the Massachusetts Institute of
Technology, after which he attended the University of
Gottingen in Germany, where he took his doctor's
degree in chemistry. In 1897 he entered the employ of
the Joseph Campbell Preserve Company in Camden,
New Jersey, in which company his uncle, Arthur
Dorrance, had a substantial interest. He remained with
that firm and its corporate successor, the Campbell
Soup Company, until his death.
[*157] At the start [***7] of his business career he
established his residence at a boarding house in
Camden, living there until 1905, when he moved to the
Robeson Apartments in the same city. In 1906 he
married Miss Ethel Mallinckrodt of Baltimore, Maryland,
who survives him as his widow. Dorrance and his wife
made their home at the Robeson Apartments until
1908, at which time they moved to Philadelphia and
remained in that city until 1911. In 1909 Dorrance
purchased a country place known as Pomona Farms in
Cinnaminson Township, Burlington County, New
Jersey. He later conveyed the title to this property to
the Campbell Preserve Company and thereafter leased
the premises from that company. Upon completion of
alterations to the leased property, Dorrance and his
family entered into possession on May 7, 1911, and the
Commonwealth [**305] concedes that from this date
until November 14, 1925, decedent’s domicile was in
New Jersey.
During the years which passed from the time of his
first association with the Campbell Company, Dorrance
rose rapidly in the management and control of the
business. The company itself grew into one of the
largest canning and preserving enterprises in this
country. At the time [***8] of Dorrance’s death in
September, 1930, it employed between four and five
thousand persons, and annually consumed in the
business enormous quantities of vegetables and other
farm products. Dorrance became the head of the
company and from 1915 until his death was the owner
of all its capital stock. In 1922 the company was
reorganized as the Campbell Soup Company, a New
Jersey corporation with offices in Camden. At the time
of his death Dorrance had amassed an immense
fortune, which both parties agree is to be estimated at
a figure exceeding one hundred fifteen million dollars.
In 1925 he purchased a large and attractive estate
known as “Woodcrest” located in Radnor, Delaware
County, Pennsylvania, in the suburbs of Philadelphia.
The property was taken in the joint names of
Doctor [*158] and Mrs. Dorrance, and, including
subsequent additions of surrounding acreage and
furnishing of the mansion, the cost was approximately
a million dollars. Speaking of the purchase of the
Radnor Estate, Mrs. Dorrance, the widow, testified as
follows:
“It was purchased so that our children would be more
in contact with children and where they could go to
school more easily with children with [***9] their
prospects in life, and where we could do some
entertaining for my oldest daughter who was then
coming of age and who mingled with the world; and
where I . . . would be nearer my associates.” In 1925
the children comprised four daughters aged
respectively, 18, 16, 14 and 10, and one son in his
sixth year.
The house at Radnor was first occupied by the
Dorrance family on November 14, 1925, at which time
their entire personal effects were removed from
Cinnaminson to Radnor. The Commonwealth contends
that from this date until his death, almost five years
later, Dorrance was domiciled in Pennsylvania. Despite
an attempt on the part of the executors to demonstrate
that the former home in New Jersey was maintained as
the principal home and establishment of decedent, and
that there was a mere occasional occupancy of the
Radnor place, it is our opinion the evidence clearly
indicates that from 1925 until the autumn of 1930, the
Radnor Estate was the real and only home of the
Dorrances, and except for occasional visits to
Cinnaminson and sojourns in Bar Harbor, Palm Beach
and other resorts, as well as trips to Europe,
“Woodcrest” was occupied continuously by decedent
and his family until [***10] his death, and at present
is the family home. The place at Cinnaminson was
retained in substantially the same condition as before
the acquisition of “Woodcrest,” but with the number of
servants reduced from ten to two. It was occupied
after 1926 by the mother and sister of Dorrance, who
remained there until their deaths in 1928 and 1929
respectively. During their occupancy, one or two rooms
in the house [*159] were reserved for Dorrance and
his wife and available for their temporary use at any
time. The evidence is not convincing that Dorrance
used the Cinnaminson residence for any extended
period after removal of his family to Radnor.
Undoubtedly he made occasional visits to the place,
but these can be accounted for on several grounds: his
mother and sister were both living there and eventually
developed fatal illnesses; the Cinnaminson place was in
the midst of the experimental farms of the soup
company; above all, in addition to a claimed
sentimental attachment to Cinnaminson, he was
anxious to give color to his asserted intention to retain
New Jersey as the place of his domicile.
Much of the vast amount of testimony and exhibits
introduced by both appellant and appellees [***11] is
immaterial to the issue, but there are a number of
facts which, in our opinion, establish beyond question
that continuously since 1925 the true home of
Dorrance and his family was in Pennsylvania, and that
the New Jersey residence was retained by him merely
to lend weight to the fiction that he was domiciled
there. Before 1925 Dorrance employed ten servants at
Cinnaminson. After 1925 there were never more than
four, and after the death of Dorrance’s mother in 1929
only two. At “Woodcrest” sixteen servants were
employed in the house and ten to twelve others
worked on the grounds. There was a corresponding
difference in the running expenses of the two
properties. In 1924 the living expenses at Cinnaminson
were slightly over twenty-nine thousand dollars. After
1925 the expenditures were considerably diminished
and in 1929 amounted to approximately $6,500. On
the other hand, the maintenance of the Radnor Estate
exceeded $90,000 in 1929, and the year before
amounted to approximately $95,000.
Although the comparative size of two residences is not
conclusive of the fact of domicile, it is evidence of the
intention to make one place the principal home. The
expenditure of a very [***12] large sum of money for
a residence [*160] which is not adapted to nor
designed for mere seasonal occupancy is strong
indication of an intention to make it the principal
residence and main establishment of the family,
particularly where the new residence is more elaborate
and pretentious than any former abode. A few figures
will readily show the marked difference between the
Dorrance estates. The Cinnaminson property consisted
of approximately seven acres located in a country
district and surrounded by truck farms. The homestead
was more than [**306] fifty years old and had been
remodeled in 1911. Although situated among fine old
trees and surrounded by an extensive lawn, the house
“was an ordinary brick mansard roof house of the time
that it was built; very ugly,” as Mrs. Dorrance testified.
On the other hand “Woodcrest” was considered one of
the most beautiful estates in the suburbs of
Philadelphia. It originally comprised 119 acres but
subsequent additions to protect the boundaries brought
the total acreage over 137. The house was an imposing
stone residence of modern construction with six rooms
and two lavatories on the first floor, and a large center
hall which [***13] extended to the third floor. On the
second floor there were ten rooms and five baths for
the use of the family or their guests, and in addition
twelve smaller rooms with two baths in the servants'
quarters. The third floor consisted of five bed rooms, a
nursery and two baths. There were several smaller
buildings on the grounds which were used as living
quarters by employees. There was also a garage
capable of accommodating seven cars.
Included among the exhibits introduced by the
executors were a number of photographs of the
Cinnaminson property, showing the grounds as well as
the interior of the house. The Commonwealth
presented an air view of the Radnor Estate, but no
pictures showing the property in greater detail. At the
argument it was stated that the officers of the
Commonwealth had been refused access to the
grounds at “Woodcrest” for the purpose of taking
photographs. The inference naturally arises
that [*161] a comparison of photographs of the two
estates would indicate considerable disparity between
them.
The testimony as to the time Dorrance spent with his
family at Cinnaminson after 1925 is extremely vague
and uncertain. A fair conclusion from the
evidence [***14] is that Dr. Dorrance and his wife
made occasional trips to Pomona Farms remaining one
or two nights at a time, and that upon their return
from Bar Harbor or Jamestown at the end of the
summers, a longer period was spent there, but only for
the purpose of waiting until the servants had opened
the Radnor house and made it fit for occupancy. When
leaving for Europe or starting on summer vacations
their trunks and other baggage were sent from Radnor
and shipped directly back to that place upon returning.
Considering the nature of the occupancy of the Radnor
Estate, as well as the length of time spent there out of
each year, all the facts clearly indicate that it was the
principal establishment of Dorrance and his true family
home after 1925.
The sumptuous residence in Pennsylvania was
consistently chosen by Dorrance himself, as well as his
wife and children, for all the outstanding events of their
social life. Dorrance gave a number of large dinner
parties there for men, principally business associates
and friends, at which more than sixty guests were
usually present. He and his wife entertained smaller
groups for dinner quite frequently. His children invited
their friends to “Woodcrest” [***15] for parties. One of
his daughters was married in 1926 at the Radnor
Church and the wedding reception was held at
“Woodcrest”; another, who was at the debutante age,
was presented to society at an elaborate affair there in
1929.
Servants who had been in the household during the
period in question testified that, except when he was
absent on vacations, Dorrance spent practically every
night at his home in Radnor. He traveled back and
forth daily from Radnor to his office in Camden. His
weekends were spent at the Radnor place, several
witnesses [*162] testifying that Dorrance took great
interest in his estate and on Sundays walked around
the extensive grounds inspecting the property and
conversing with caretakers. The children were entered
in schools from the Radnor residence and with their
mother regularly attended St. Martin's Church in
Radnor Township. Dorrance himself did not transfer his
membership to the Radnor Church but maintained his
affiliation with a church in Riverton, New Jersey. This
latter was only one of many things which he did to
avoid the appearance of identifying himself with the
community in which he resided with his family; and
that these acts, together [***16] with his declarations
of residence in New Jersey, were intended to bolster
his assertions that he remained domiciled in New
Jersey, there can be little doubt. His real motive and
the reasons which prompted this course of conduct are
apparent.
With a remarkable demonstration of the same business
acumen and sagacity which enabled him to accumulate
his enormous personal fortune, he carefully drew his
wills (all except the last one previous to 1925), with
the intent of retaining for his children, after his death,
his 100% interest in the Campbell Soup Company. This
he would be able to do under the laws of New Jersey
by the accumulation of income for the payment of
inheritance and estate taxes, and with the assurance
that his wife could not elect to take personalty against
his will, which would not be possible under the laws of
Pennsylvania. In addition, it was a matter of
considerable importance for him to declare himself a
resident of New Jersey in respect to the payment of
annual taxes on personal property, as his stock in the
soup company, as well as United States and New
Jersey government securities, were exempt from the
tax in that state. By claiming a residence in New
Jersey, [***17] Dorrance was able to effect a large
annual saving in taxation. Taxation matters were
discussed by him in his conversations with leading
business men and bankers in [**307] Philadelphia and
emphasized [*163] by his New Jersey counsel. For that
reason, Dorrance informed others he hesitated to take
up residence at Radnor, and when contemplating the
purchase of “Woodcrest” he consulted his attorney,
who advised him that retention of his New Jersey
domicile “was largely a matter of intention.”
Consequently, following his removal to the estate at
Radnor, he scrupulously endeavored to declare in
formal documents and on many occasions that he was
a resident of New Jersey. Upon the advice of his
attorney he executed an agreement with his wife that
their residence should remain at Cinnaminson despite
the occupancy of “Woodcrest” during “a portion of each
year.” The agreement stated that both would refrain
from voting elsewhere than in Burlington County, New
Jersey, and contained other clauses of a similar nature.
Dorrance refused to accept a directorship in the
Pennsylvania Railroad until assured by the president of
the company that it was not necessary for more than a
majority [***18] of the directors of that corporation to
be residents of Pennsylvania. On many occasions and
in various formal documents executed after 1925 he
stated his residence to be at Cinnaminson, but counsel
for the Commonwealth has indicated several instances
in which Dr. Dorrance did give his address as Radnor.
Mrs. Dorrance was not as consistent as her husband in
her declarations concerning residence. Her accounts
with merchants and department stores indicated only
the address at Radnor. All the members of the family
were listed in the social register with address as
Woodcrest, Radnor. In 1929, for the first time, the
residence at Cinnaminson was included with that of
Radnor.
A circumstance of considerable importance was the fact
that after 1925 many of Dorrance’s friends and
acquaintances assumed he had become a resident of
Pennsylvania. Dorrance discussed this with his lawyer,
stating he had denied to them any intention of giving
up his domicile in New Jersey. But in letters and
conversations [*164] several of his friends expressed
to him their belief that he had become a legal resident
of Pennsylvania. The evidence shows that such belief
was induced by the fact that his [***19] residence at
“Woodcrest” had all the indications of a permanent
home, both from the manner of his residence in that
place and the continuous nature of his abode there.
We come now to an examination of the law applicable
in determining the domicile of decedent. The precise
question is as follows: May expressions of a man to the
effect that he desires to retain a domicile of choice in
one state, prevail over the intention to make a new
home manifested by an actual removal to the new
residence in another state, and accompanied by a
manner of living which can leave no doubt that the new
abode is the principal residence and establishment,
particularly where the wish to retain the old domicile is
colored by the motive of regulating his affairs after
death in a manner not permitted by the laws of the
state removed to, and is also bound up with the
purpose of avoiding payment of substantial taxes on
personal property? We are of opinion that such is not
the law and that John T. Dorrance was domiciled in
Pennsylvania at the time of his death.
In holding that Dorrance was domiciled in New Jersey,
the learned judge of the court below based his decree
on the legal proposition that where a [***2] man has
more than one residence, he may choose for his
domicile whichever one of them he pleases. He further
held that an existing domicile may be retained,
although residence is given up entirely and a new
residence taken up at a new place, simply because
there was no intention to acquire a new domicile at the
new place of residence. These principles may be
acceptable as good law in particular cases; we are,
however, of opinion that they are not applicable to the
facts under consideration here. None of the
Pennsylvania cases cited in the opinion of the lower
court or referred to us in the briefs of counsel is
sufficiently [*165] similar on its facts to be controlling
in the present situation. At most they contain helpful
generalizations on the law of domicile. The leading
cases can be clearly distinguished. Fry’s Election Case,
71 Pa. 302, held that the temporary residence of
students in a college town was not sufficient to
establish a domicile for voting purposes. In Carey’s
App., 75 Pa. 201, decedent was held domiciled in the
last place in which he had established a residence of
more than temporary character. Price v. Price, 156 Pa.
617, decided that absence from a [***21] domicile of
choice because of serious illness would not result in the
acquisition of a new domicile. In Dalrymple’s Est., 215
Pa. 367, it was held there was no change of domicile
where the intention was not supported by an actual
change of habitation. Raymond v. Leishman, 243 Pa.
64, was a foreign attachment case and is not in point.
In Barclay’s Est., 259 Pa. 401, decedent was held
domiciled in Pennsylvania because there was no clear
evidence of the establishment of a permanent
residence in Ohio. Winsor’s Est., 264 Pa. 552, is
discussed elsewhere in this opinion. Perhaps the
Pennsylvania case most nearly in point is Blessing’s
Est., 267 Pa. 380, in which decedent owned two
residences, one in Philadelphia County and the other in
Montgomery County. The house in the city was
boarded up and little used. In a per curiam opinion, we
held that decedent’s intention to be domiciled in
Philadelphia could not prevail over the fact of his actual
residence with his family in Montgomery County.
[**308] With a few scattered expressions to the
contrary, the law is generally settled that, as regards
the determination of domicile, a person's expression of
desire may not supersede the effect [***22] of his
conduct. “Apart from possible exceptions, a man
cannot retain a domicile in one place when he has
moved to another and intends to reside there for the
rest of his life, by any wish, declaration or intent
inconsistent with the dominant facts of where he
actually lives and what he actually means to
do”: [*166] National City Bank v. Hotchkiss, 231 U.S.
50, 56; Dickinson v. Brookline, 181 Mass. 195. See
also Thayer v. Boston, 124 Mass. 132. “Every person
must have a domicile somewhere and a man cannot
elect to make his home in one place for the general
purposes of life, and in another place for the purposes
of taxation”: Feehan v. Tax Commissioner, 237 Mass.
169, 171. “A declaration [as to domicile] that is self-
serving and not followed by acts in accordance with the
declaration will not be regarded as conclusive, but will
yield to the intent which the acts and conduct of the
person clearly indicate”: In re Paris’s Est., 176 N.Y.S.
879, 882.
The legal effect of one’s acts in contradistinction to an
expressed intention in regard to domicile is well stated
in the case of Pettit’s Exrx. v. City of Lexington, 193
Ky. 679, 683, as follows: “The location of one’s legal
residence [***23] is, as we have seen, a question of
fact and intention, and the fact as exhibited and the
intention as inferred or expressed must coincide in the
conclusion. It should also be noted that neither of
these elements can exercise a controlling effect,
though intention may arise from the established fact;
as where one’s conduct conclusively shows his
residence to be in one place, his expressed intention
that it shall be in another place may not override the
fact so as to locate it there. The intention in that case
will be inferred from residence alone in the face of
contrary expressions of purpose.”
In that case, which was a proceeding to determine the
legal residence of decedent for assessment of personal
property for city taxes, it appears decedent had a
house in which he lived at 801 East Main Street,
Lexington, Kentucky. He subsequently purchased a
farm outside the city, known as the Tod Hunter place.
Although he spent considerable time at the country
place and in deeds and formal documents expressed
his intention to fix his legal residence there, from the
facts as to his mode of living, the court decided he was
domiciled in Lexington. On page 684 of the opinion the
court states: [***24]
[*167] “The spending of a short time each summer in
the country under conditions less comfortable than
those under which he lived in the city, the voting from
the Tod Hunter place, a few times, and the refraining
from registering and voting in Lexington were all acts
performed by him with the view of manifesting what he
doubtless conceived to be conclusive evidence of the
establishment and maintenance of a residence at the
Tod Hunter place. But those acts in our opinion are not
sufficient evidence of the intention to overcome that to
be inferred from the fact of his actual residence at 801
East Main Street and his doing of those things at that
place that one usually and normally does in
establishing and maintaining a home and legal
residence.”
Another equally strong decision from the Supreme
Court of Kentucky is Baker v. Baker, Eccles & Co., 162
Ky. 683, affirmed in 242 U.S. 394. At page 709 the
former court said: “If the place of Baker’s residence
had to be determined alone by intention manifested in
speeches without any reference to the acts and
conduct . . ., we would have little doubt in adjudging
that he never lost his legal residence in Tennessee and
only had an actual [***25] residence in Paducah for
the purpose of conducting the business in which he
was there engaged, all the while having it in mind to
return to Tennessee when the objects of his sojourn in
Paducah had been accomplished. But when we turn to
the other side of the case, we find abundant reason for
the opinion that . . . he not only had an actual
residence in Paducah, but acquired a legal residence
there, which he retained until his death.” See also City
of Lebanon v. Biggers, 117 Ky. 430; Bartlett v. New
Boston, 77 N.H. 476; Tax Collector of Lowell v.
Hanchett, 240 Mass. 557; Babcock v. Slater, 212 Mass.
434.
If we turn to the English decisions, the law is the same.
In Douglas v. Douglas, L.R. 12 Eq. 617, WICKENS,
V.C., lucidly remarks: “It seems to me, as it did to Vice
Chancellor JAMES in Haldane v. Eckford, L.R. 8
Eq. [*168] 631, that the intention required for a
change of domicile, as distinguished from the action
embodying it, is intention to settle in a new country as
a permanent home, and that if this intention exists and
is sufficiently carried into effect, certain legal
consequences follow from it, whether such
consequences were intended or not, and perhaps even
though the [***26] person in question might have
intended the exact contrary.” See also Moffett v.
Moffett, (1920) 1 Ir. Rep. 57, 65. In the quotation
given above, the change of domicile was from one
country to another. A fortiori the decision is applicable
to a change of domicile as between states, since it is
elementary law that a national domicile is less easily
lost than a municipal or quasi national one.
In Lord HALSBURY’s “The Laws of England,” volume VI,
page 186, under the general topic of Domicile, it is
stated: “If residence and the intention that it shall be
permanent are [**309] both present, a domicile is
acquired even in the face of express declarations of a
desire to retain the old domicile.” Again, at page 187 of
the same volume, is the following: “Expressions of
intention, written or oral, may be given in evidence,
but such evidence must be carefully weighed in
connection with the context in which it occurred, and
even if the expressions are clear and consistent they
cannot prevail against a course of conduct leading to
an opposite inference.”
The celebrated English author, A. V. Dicey, whose
statements concerning the law of domicile are
frequently quoted with approval in
this [***27] country (see Williamson v. Osenton, 232
U.S. 619), in his book “Conflict of Laws,” 4th edition,
page 133, says: “Direct expressions, however, of
intention may be worth little as evidence. The person
who uses them may not know what constitutes a
domicile. He may call a place his home, simply because
he often lives there. He may wish to be, or to appear,
domiciled in one country, while in fact residing
permanently and intending so to reside, i.e., being
domiciled, in another. A direct statement, in short, that
D [*169] considers himself domiciled, or to have his
home in France, though it may sometimes be
important, may often carry little weight. This remark
specially applies to the description which a person
gives of himself in formal documents as, e.g., 'D
residing in France.'”
At page 106 of the same volume he says: “A person’s
wish to retain his domicile in one country will not
enable him to retain it, if, in fact, he resides with the
animus manendi in another.” Citing In re Steer (1855)
3 H. & N. 594. In commenting on this statement in a
footnote on the same page, the learned editor of the
fourth edition adds the following: “Can an Englishman,
i.e., one domiciled in England, [***28] live
permanently in Scotland and retain his English
domicile, because he does not wish to subject himself
to limitation of his testamentary capacity? No case has
yet decided this in the affirmative; if so held, then
domicile must be reinterpreted as depending on
intention primarily, and only in a minor degree on
residence, the intention not being of residence but of
falling under a legal system affecting status.”
The learned judge of the court below, in holding
Dorrance was domiciled in New Jersey at the time of
his death, gave too much weight to the declarations of
intent contained in his will and other documents. The
Pennsylvania cases do not support the proposition that
a declaration in a will is “well-nigh conclusive.” That
may be true where there is no satisfactory evidence
indicating intention to make a permanent home in any
one place, as was the situation in Appointment of
Guardian for Belle N. Nicholls, 86 Pa. Superior Ct. 38,
and such rule would also apply where decedent had
two residences almost alike in size and costliness, and
spent practically six months of the year in each, as
in Winsor’s Est., 264 Pa. 552. The general rule,
however, is that recitals in deeds and [***29] wills are
not given particular weight in determining domicile in
comparison with the evidence supplied by the daily life
of the individual and his acts and conduct. “Nor are the
recitals in his will and some of his
deeds [*170] sufficient to fix his domicile. They are not
controlling when contradicted by other facts and
circumstances”: Dalrymple’s Est., 215 Pa. 367, 371,
quoting Jacobs on Domicile. “More weight will be given
to a person’s acts than to his declarations, and when
they are inconsistent, the acts will control”: 19 C.J.
438; see also 21 Am. & Eng. Ann. Cases, page 206.
“That acts speak louder than words is sound law as
well as proverbial wisdom”: Graham v. Dempsey, 169
Pa. 460, 462. “On the question of domicile, less weight
will be given to a party’s declarations than to his
acts”: Holt v. Hendee, 248 Ill. 288, 296. “While
residence in this case [naturalization proceedings]
depends largely on intention, the intention is to be
gathered from the acts of the petitioner rather than
from his declarations”: In re Barron, 26 F. (2d) 106,
107; see also In re Tallmadge, 181 N.Y.S. 336; Curtis
v. Curtis, 185 App. Div. 391, 396; Matter of Mesa y
Hernandez, 149 N.Y.S. 536, [***30] affirmed 172 App.
Div. 467; and see specially Rosenberg v. Commissioner
of Internal Revenue, 37 F. (2d) 808.
In holding that a domicile of choice may not be
retained by intention alone, we do not mean to disturb
the well settled rule that absence from a place of legal
residence, for purposes of health or other unavoidable
necessity, will not result in a loss of that domicile.
See Price v. Price, 156 Pa. 617; Pickering v. Winch, 48
Oregon 500. Nor do we mean that where a man has
two actual residences, either one of which might be his
domicile, he is not free to choose between them. See
Winsor’s Est., 264 Pa. 552; Chambers v. Hathaway,
187 Cal. 104; Dunn v. Trefry, 260 Fed. 147.
Counsel for executors rely particularly on Frick’s Est.,
190 N.Y.S. 262. Neither this case nor In re Lyon’s Est.,
191 N.Y.S. 260 (which is even stronger but not cited in
the briefs) is an appellate court opinion and for that
reason they are not entitled to much weight here, but
particular circumstances in the present case distinguish
it clearly from those just cited. In those [*171] cases
neither the presence of an ulterior motive nor the task
of attempting to reconcile declarations which were
inconsistent [***31] with conduct interfered with the
New York court in determining that there was no
intention on the part of the persons
involved [**310] to change their true home, or to
make a new residence their principal establishment and
“technically preeminent headquarters.” In the Frick
Case, Surrogate Foley said: “Counsel for the tax
commission gives full credit to Mr. Frick’s honest belief
that he was a resident of Pennsylvania. It is conceded
also, that no question of the evasion of the payment of
a tax in New York is involved here.” In the case of Dr.
Dorrance, we have observed he from time to time
expressed the belief that he was a resident of New
Jersey. On the contrary his acts show a studied
attempt to create evidence tending to indicate a legal
residence in New Jersey. If he really believed he was a
New Jersey resident after 1925, it seems unnecessary
for him to have entered into an agreement with his
wife concerning the matter, or to have secured his
appointment as a member of a commission to
investigate the question of compulsory insurance for
motor vehicles within the State of New Jersey, or to
have written his most intimate friends and associates
that he was not a Pennsylvanian. [***32]
An attempt was made by counsel for appellees during
the argument and in the briefs to show that Dorrance
at no time intended to make his Radnor Estate a
permanent home and that he contemplated returning
to Cinnaminson at an indefinite future time. Assuming
such to be the case, there is no doubt that such vague
intention of resuming a former domicile will not
prevent the acquisition of a new one. “If a person
changes his domicile without any present intention of
removing therefrom it is none the less his domicile,
although he may entertain a floating intention to
return, or to move somewhere else at some future
period. . . . If there be both actual residence and
intention of remaining -- the animus manendi -- then a
domicile is established”: Worsham v. [*172] Ligon, 144
G. 707. “If a person has actually removed to another
place, with an intention of remaining there for an
indefinite time, and as a place of fixed present
domicile, it is to be deemed his place of domicile,
notwithstanding he may entertain a floating intention
to return at some future period”: Gilbert v. David, 235
U.S. 561, 569, quoting Story’s “Conflict of Laws.” “The
requisite animus is the present intention [***33] of
permanent or indefinite residence in a given place or
country, or negatively expressed, the absence of any
present intention of not residing there permanently or
indefinitely”: Price v. Price, supra, page 626. See
also Attorney General v. Pattinger, (1861) 30 L.J. Ex.
284.
Having now ascertained that intention alone cannot
defeat the acquisition of a new domicile where other
facts show a change of domicile has actually occurred,
it remains to consider whether the evidence in this
case is sufficient to warrant a finding that Dorrance
was domiciled in Pennsylvania, as contended by
appellant. It is true the burden of showing a change
from a former domicile is upon the party asserting it,
but the fact of residence in a particular place is prima
facie evidence of domicile. (As to burden of proof in
such case see Collins v. City of Ashland, 112 Fed. 175.)
The Commonwealth having established by adequate
evidence that, at the time of his death, Dorrance had
an actual residence in Pennsylvania, it was incumbent
upon the executors to rebut the presumption arising
therefrom by satisfactory proof that he resided in New
Jersey or that the Pennsylvania residence was intended
merely for a [***34] temporary purpose. This, in our
opinion, they have failed to do.
It is argued by appellees that before a new domicile of
choice can be acquired there must be proof of the
abandonment of the old. In our opinion this contention
is unsound, for the intention to make one’s home in a
new place necessarily includes the abandonment of the
former home. This thought is clearly expressed in Ford
v. Peck, 116 Kan. 74, 76, as follows: “It is
elementary [*173] law that change of domicile, as
from Oklahoma to Salina, Kansas, involves two things,
designated by classical authors as the factum and the
animus. There must be transfer of bodily presence to
another place, represented in the statutory definition
by adoption of a place of habitation; and there must be
intention to abide at the new location, either
permanently or indefinitely, represented in the
statutory definition by intention of returning when
absent. Sometimes the animus is treated as involving
two separate intentions, one to abandon the old
location, and one to abide in the new. If the last
intention be formed, it necessarily includes the other.
The factum and the animus must finally coexist.
Neither alone is enough; but [***35] the animus may
follow the factum in point of time and, should that
occur, the change of domicile is complete.” (Italics
ours.)
One of the most satisfactory definitions of domicile is
that stated by Story in his “Conflict of Laws”: “By the
term domicile in its ordinary acceptation is meant the
place where a person lives or has his home. In a strict
legal sense that is properly the domicile of a person
where he has his true, fixed, permanent home and
principal establishment, and to which, whenever he is
absent, he has the intention of returning.” To acquire a
domicile of choice two things must concur: “(1)
Physical presence in the place where domicile is alleged
to have been acquired; (2) Intent to make that place
the home of the party”: Goodrich “Conflict of Laws,”
page 30; Carey’s App., 75 Pa. 201; Fry’s Election Case,
71 Pa. 302. “If the intention of permanently residing in
a particular place exists, a residence in pursuance
of [**311] that intention, however short, will establish
a domicile”: Price v. Price, supra.
We are not impressed with the argument that Dorrance
owed a moral obligation to the State of New Jersey by
virtue of having accumulated his vast fortune
there, [***36] or in the words of appellees, that “both
in law and [*174] in justice New Jersey was entitled to
tribute from John T. Dorrance, while to Pennsylvania
he owed no such debt.” The large profits which came
to him through his ownership of the Campbell Soup
Company represented the results of nation-wide sale of
his products. His money was acquired from the country
at large and not from any particular state. Moreover,
Dorrance was by birth a Pennsylvanian. Even after his
marriage he lived in this State three years before
locating in Cinnaminson. When he came to Radnor to
live in 1925 he was not only resuming his domicile of
origin, but was purposely making his home in a
neighborhood more congenial to his family and more
suitable to his position in life than the New Jersey
location which he left. It is appropriately stated by the
Supreme Court of the United States in the recent case
of Lawrence v. State Tax Commission, U.S. Sup. Ct.
Advance Reports, 1931-2, No. 13, page 720:
“Enjoyment of the privileges of residence within the
state, and the attendant right to invoke the protection
of its laws, are inseparable from responsibility for
sharing the costs of government.”
From what [***37] we have said and quoted above, it
clearly appears that by the act of removing his home
and family from New Jersey to Pennsylvania, Dorrance
acquired a domicile in the latter state. That he was
unaware that such action would result in a change of
domicile is irrelevant to the issue. His intention to
maintain a home, indeed a very lavish home, at
Radnor, is undoubted. We fail to find in the record,
after careful search, any convincing testimony of a
bona fide intention upon his part or that of any
member of his family, to occupy “Woodcrest” for any
other than an indefinite period, and in fact to make it
the “technically preeminent headquarters” of himself
and family after November, 1925. “The intention
required for the acquisition of a domicile of choice is an
intention to make a home in fact, and not an intention
to acquire a domicile:” Restatement of the [*175] Law
of Conflict of Laws, section 21. * The evidence
indicates that beyond all question Dorrance’s family
home and principal establishment was at Radnor.
When either he or the members of his family went
away on vacations they started from “Woodcrest” and
returned there afterwards. Practically his entire time,
except [***38] when absent on vacations, was spent
there. His friends and acquaintances considered it his
home. Indeed we may readily believe that in his heart
Dr. Dorrance knew “Woodcrest” to be his true and only
home, but for personal reasons he preferred to state in
public that it was not his home when every fact and
circumstance pointed to the contrary. As already
indicated, his mere declarations, undoubtedly made
solely for personal reasons, did not prevent the
acquisition of a domicile in Pennsylvania. In our opinion
the evidence clearly establishes the legal domicile of
Dr. Dorrance to be in Pennsylvania and accordingly
there is due the Commonwealth an inheritance transfer
tax, based upon the agreed value of his estate at the
time of his death.
* See Treatise No. 1 (a) Supporting Restatement No.
1, (1925) the American Law Institute, at page 67, “It is
not enough that a man desires to acquire or to keep a
'legal residence' or 'legal domicile'; the intention
necessary for the acquisition of a domicile is an
intention as to the fact, not as to the legal
consequences of the fact. 'A man’s home is where he
makes it, not where he would like to have it.' . . . The
intention requisite for domicile is the intention to have
a home, and that is the only legally relevant intention;
the domicile follows as a legal consequence, without
regard to whether the consequence is desired or
not.” [***39]
DISSENTBY: SCHAFFER; KEPHART
DISSENT: DISSENTING OPINION BY MR. JUSTICE
SCHAFFER:
It seems to me that the majority opinion does not give
that full weight to the intention of the decedent which
should be given. In determining where a man's
domicile [*176] is there are two factors which are
absolutely controlling: One is the actual fact of
residence and the other is the man's intention to make
that residence his home. As to this all authorities
agree. But where, as in the case before us, the man
has two residences, at each of which he spends part of
his time, and each of which is fully maintained and
equipped to be his home, the factor of residence is
equivocal and for that very reason cannot be
determinative of domicile. Consequently, in such a
situation, we look to the other necessary factor, which
is intention, as the factor of preponderant
importance: Winsor’s Est., 264 Pa. 552; Fry’s Election
Case, 71 Pa. 302; In re Guardian for Nicholls, 86 Pa.
Superior Ct. 38; Hunnings v. Hunnings, 55 Pa. Superior
Ct. 261; Thayer v. Boston, 124 Mass. 132; American
Law Institute, Restatement, “Conflict of Laws,” section
26 and comment thereto; 19 C.J. 405-406 (“Domicile,”
section 13); Jacobs [***40] on the Law of Domicile,
(edition 1887), sections 421-424; Minor, Conflict of
Laws, section 64, (page 123); 1 Wharton, Conflict of
Laws, (3d edition), 144, (section 69). These authorities
likewise stand for the proposition that where the proofs
on either side are balanced, the claim of the earlier
residence to be the domicile should prevail.
Until he purchased the Radnor residence, Dr. Dorrance
had been domiciled at Cinnaminson [**312] in the
State of New Jersey for fourteen years. The question
then for decision is, did he abandon his domicile there
and acquire one in Pennsylvania? The Cinnaminson
property is the kind of one in which a man of Dr.
Dorrance’s wealth and position could appropriately live.
Until he bought the Radnor place, it met all of his
requirements as a home, but apparently did not meet
the social desires of his family. To gratify their wishes,
he purchased the Radnor house, but never closed the
one at Cinnaminson. He lived in the Radnor house
more than he did in the New Jersey one, but never
permitted it to be occupied by anyone except his
mother and sister for a short time. [*177] While they
were there, he reserved quarters for himself and his
family. [***41] He always kept the Cinnaminson house
heated, in repair, with servants there, fully maintained
as a residence. During the last three years of his life, it
was the only one of his residences which was open
throughout the whole of each year. He was living in the
Cinnaminson home when he died.
By every spoken declaration which he made, and by
almost his every act, except the mere purchase of the
Radnor house and his occupying it himself more than
he occupied the one at Cinnaminson, he indicated that
he had not intended to change his domicile. The
following circumstances, in addition to his spoken
words, indicate that he did not intend to abandon his
New Jersey one:
All his interests were in New Jersey, where he had
made his great fortune. While he did not actually own
the large area of land in New Jersey which was
tributary to his business, in effect he did, because he
owned all the capital stock of the Campbell Soup
Company, which in turn owned the land.
Before purchasing the Pennsylvania property, he
consulted his New Jersey counsel to ascertain whether
or not this purchase and the occupancy of the
Pennsylvania property would cause him to lose his
domicile in New Jersey. He [***42] was advised that
he would not lose it, if in purchasing the Radnor place
and living there, it was not his intention to abandon his
home at Cinnaminson. This is a powerful piece of
evidence on the question of his intent.
It was important to him that he keep his New Jersey
residence in order that the trusts which he intended to
create out of his fortune should be maintained under
New Jersey law in order to carry out his purposes, and
also important in the matter of taxes which his estate
would be called upon to pay if he became domiciled in
Pennsylvania. It was also important to him, and as to
this he inquired, because, under the New Jersey law,
his [*178] wife could not take against his will, and if he
was domiciled in Pennsylvania, she could. In his will
and in all the codicils, he recited himself as domiciled in
the State of New Jersey. This is true of all wills which
he signed. He expressly directed that his will should be
probated in New Jersey.
He continued to receive his personal mail from a New
Jersey post-office as he had done in the past. He
stayed frequently at Cinnaminson, and his wife and
children also stayed there, but less frequently. He
expressed a dislike [***43] for the place at Radnor
and affection for the place at Cinnaminson. Shortly
before his death, he made definite and detailed plans
for additions and improvements to the place at
Cinnaminson. He paid his poll tax every year in New
Jersey. He and his wife voted at Cinnaminson
whenever they did vote and he never voted in
Pennsylvania. He maintained his church affiliations in
New Jersey and continued to act as senior warden of
the church at Riverton in that state, which office under
the church law he could hold only if he was domiciled
in the parish. He always paid his personal tax in
Cinnaminson Township and never paid personal taxes
in Pennsylvania, making an affidavit on a Pennsylvania
property tax return sent to him in 1926 that he was a
resident of New Jersey.
He made numerous declarations to the effect that his
home was in New Jersey and his place at Radnor
simply a show place for the social pleasures of his wife
and children, that he was a resident and citizen of New
Jersey and intended always to so remain. He so
badged himself in applying for passports and when he
took the oath of office as a director in a bank in New
Jersey. He declined election to the board of
directors [***44] of the Pennsylvania Railroad
Company until he was assured that he could under the
law be elected and serve as a resident of New Jersey.
What more could a man do who has two homes and
who wishes to retain the older one as his
domicile? [*179] Where a man has a domicile, he does
not lose it unless he abandons it. To me the testimony
overwhelmingly indicates that the Cinnaminson
property was just as much an actual residence of Dr.
Dorrance as was the house in Radnor and that his
intention to keep Cinnaminson as his permanent home
remained unchanged to his death. Where a man has
two actual residences, he is free to choose between
them. This the majority opinion recognizes, because it
says: “Nor do we mean that where a man has two
actual residences, either one of which might be his
domicile, he is not free to choose between them.”
In Price v. Price, 156 Pa. 617, 626, we said: “Domicile
of origin must be presumed to continue until another
sole domicile has been acquired by actual residence,
coupled with the intention of abandoning the domicile
of origin.” Whether the established domicile was one of
origin or choice can make no difference in principle.
[**313] New Jersey [***45] has insisted that he was
domiciled there and has collected taxes from his estate
on the basis of this claim. Had the situation been
reversed and had he lived in Pennsylvania in the
manner he did in New Jersey, it is manifest to me that
Pennsylvania could rightly claim he was domiciled here
and not in New Jersey, just as it did in the case of
Henry C. Frick, and as the New York court decided it
could in Matter of Frick, 116 N.Y. Misc. Rep. 488, 190
N.Y. Supp. 262.
I would affirm the decree of the court below.
DISSENTING OPINION BY MR. JUSTICE KEPHART:
In disagreeing with the majority opinion, which I do
reluctantly, it is only because a careful consideration of
the entire record convinces me that the
Commonwealth has not met the burden of proof
imposed by the circumstances of this case. It also
demonstrates to my mind the efficacy of the rule that
the findings and conclusions of the trial court should be
accepted unless they are unsupported [*180] by
evidence or are at direct variance with established law.
It is my opinion that the decision of the majority is
opposed to the established law, and unsettles it as
related to domicile. It makes the determination of that
question [***46] more concerned with the length of
time one may spend in the places claimed as
residences or domiciles than with the intent to
establish a domicile or retain a status already acquired.
It is admitted that Dr. Dorrance was domiciled in
Cinnaminson prior to 1925. The burden then rested on
the Commonwealth to show that this domicile had been
abandoned. While section 17 of the American Law
Institute, Restatement, “Conflict of Laws,” states, “To
acquire a domicile of choice, a person must establish a
dwelling-place with the intention of making it his
home,” and “The fact of physical presence at a
dwelling-place and the intention to make it a home
must concur; if they do so, even for a moment, the
change of domicile takes place,” yet the converse of
this proposition is true in relation to losing a domicile
once established. To retain it the intention must persist
to make it a home, and physical presence even for a
moment concurring with that intent will be sufficient to
preserve that status. Measured by such a rule the
estate of Dr. Dorrance easily sustains its case.
The Commonwealth, being required to show that his
domicile at Cinnaminson had been abandoned, and
that he intended [***47] to make Radnor his
permanent home or “preeminent headquarters,”
cannot assume that because he built a fine residence
at Radnor with a more expensive maintenance cost he
intended such abandonment or to acquire a domicile at
Radnor. Neither the size of the building, the number of
servants nor the expenses connected therewith are
persuasive as showing abandonment of a domicile long
acquired and retained through acts which show a
positive intention to hold such domicile. Nor may the
fact that much of the family’s social [*181] life
centered about the new residence be so considered. All
such acts are consistent with and not hostile to the
retention of domicile in New Jersey. During the
summer and winter his residence was at Bar Harbor,
Jamestown, Palm Beach, or abroad; the Radnor
residence was closed when the family went away in the
summer, but Cinnaminson was kept open the year
round to receive him and his family. How much of the
balance of the time he spent at either of these places
does not definitely appear. It is certain, however, that
much of that time was spent at Radnor, but the length
of time spent at any particular place does not
determine domicile. Concurrent with [***48] physical
presence in a place for any time, there must be the
intent to make the place a home. Intention is a state of
mind, evidenced, it is true, by acts, but it may be
shown by words as well.
The majority opinion speaks rather censuringly of Dr.
Dorrance because he desired to retain New Jersey as
his residence rather than Pennsylvania. His efforts in
that direction are styled as “a claimed sentimental
attachment,” “to give color to his assertion,” “to bolster
his assertion that he retained domicile in New Jersey.”
His church affiliation is described as being “to avoid the
appearance of identifying himself with the community
in which he resided with his family.” He wished to
retain New Jersey citizenship because in that state his
taxes would not be as heavy as in this State. I cannot
see any good reason why a man should be censured
when he wishes to avoid a heavy tax rate such as we
have in this State, even if it is necessary for him to live
in another state. It is not contrary to law to reside in
New Jersey rather than Pennsylvania, even if the real
purpose is to avoid taxes. “If one has the legal right to
do a particular thing, the law will not inquire into his
motive for [***49] doing it”: Beirne v. Continental-
Equitable Title & Trust Co., 307 Pa. 570; Vetter’s Est.,
308 Pa. 447. Moreover, even these criticisms
emphasize the deliberate intention to retain his
domicile in New Jersey. He had [*182] his domicile
there, wished to retain it, and while he wished to have
a residence in Pennsylvania, surely the fact of his
acquiring this residence should not impose on him the
obligation of our citizenship with the resultant liability
for our taxes.
Dr. Dorrance had other reasons for wishing to remain a
resident of New Jersey. Our laws as to the devolution
of property are different from theirs, as are also our
laws with regard to the execution of trusts.
[**314] I cannot see Dr. Dorrance’s residence in
Pennsylvania as other than a “show place,” as Mr.
Justice SCHAFFER has stated. It was an additional
place of abode where he and his family might entertain
on a larger scale than was possible at the New Jersey
home, and where they might be nearer the social life of
Pennsylvania. If the penalty for such acts in
Pennsylvania is to be assessed with our death taxes, it
seems to me that Pennsylvania is assuming a very
difficult role in the sisterhood of
states. [***50] Radnor was not the home of Dr.
Dorrance, nor was it his domicile, and whatever his
wife or his children might have thought proper or
convenient in this respect, and whatever they did,
should not be visited on Dr. Dorrance; nor should that
he held conclusive in preference to acts in which he did
everything in his power to retain his residence in New
Jersey. See Mr. Justice SCHAFFER’s dissenting opinion
on the facts. He not only voted there, he had his
church residence there, he was assessed there for
personal property taxes, he was appointed by the
governor of that state on a commission, and all his
documents on which his address was necessary named
New Jersey as his residence.
While the case might seem difficult in some of its
aspects, it seems to me that the majority opinion has
lost sight of what Dr. Dorrance himself did, and has
stressed too heavily what his family did.
I would affirm the judgment of the court below.
 SECOND DIVISION
[G.R. No. 43314. December 19, 1935.]
A. L. VELILLA, administrator of the estate of
Arthur Graydon Moody, Plaintiff-Appellant, v.
JUAN POSADAS, JR., Collector of Internal
Revenue, Defendant-Appellee.
Ohnick & Opisso for Appellant.
Solicitor-General Hilado for Appellee.
SYLLABUS
1. INHERITANCE TAX; DOMICILE OF TAXPAYER. — To
effect the abandonment of one’s domicile, there must
be a deliberate and provable choice of a new domicile,
coupled with actual residence in the place chosen, with
a declared or provable intent that it should be one’s
fixed and permanent place of abode, one’s home.
There is a complete dearth of evidence in the record
that M ever established a new domicile in a foreign
country.
2. INHERITANCE AND INCOME TAXES. — As M’s legal
domicile at the time of his death was the Philippine
Islands and his estate had its situs here, the
inheritance and income taxes here involved were
lawfully collected.
DECISION
BUTTE, J.:
This is an appeal from a judgment of the Court of First
Instance of Manila in an action to recover from the
defendant-appellee as Collector of Internal Revenue
the sum of P77,018,39 as inheritance taxes and
P13,001.41 as income taxes assessed against the
estate of Arthur G. Moody, deceased.
The parties submitted to the court an agreed
statement of facts as follows:jgc:chanrobles.com.ph
"I. That Arthur Graydon Moody died in Calcutta, India,
on February 18, 1931.
"II. That Arthur Graydon Moody executed in the
Philippine Islands a will, certified copy of which marked
Exhibit AA is hereto attached and made a part hereof,
by virtue of which will, he bequeathed all his property
to his only sister, Ida M. Palmer, who then was and still
is a citizen and resident of the State of New York,
United States of America.
"III. That on February 24, 1931, a petition for
appointment of special administrator of the estate of
the deceased Arthur Graydon Moody was filed by W.
Maxwell Thebaut with the Court of First Instance of
Manila, the same being designated as case No. 39113
of said court. Copy of said petition marked Exhibit BB
is hereto attached and made a part hereof.
"IV. That subsequently or on April 10, 1931, a petition
was filed by Ida M. Palmer, asking for the probate of
said will of the deceased Arthur Graydon Moody, and
the same was, after hearing, duly probated by the
court in a decree dated May 5, 1931. Copies of the
petition and of the decree marked Exhibits CC and DD,
respectively, are hereto attached and made parts
hereof.
"V. That on July 14, 1931, Ida M. Palmer was declared
to be the sole and only heiress of the deceased Arthur
Graydon Moody by virtue of an order issued by the
court in said case No. 39113, copy of which marked
Exhibit EE is hereto attached and made a part hereof;
and that during the hearing for the declaration of heirs,
Ida M. Palmer presented as evidence a letter dated
February 28, 1925, and addressed to her by Arthur
Graydon Moody, copy of which marked Exhibit FF is
hereto attached and made a part hereof.
"VI. That the property left by the late Arthur Graydon
Moody consisted principally of bonds and shares of
stock of corporations organized under the laws of the
Philippine Islands, bank deposits and other personal
properties, as are more fully shown in the inventory of
April 17, 1931, filed by the special administrator with
the court in said case No. 39113, certified copy of
which inventory marked Exhibit GG is hereto attached
and made a part hereof. This stipulation does not,
however, cover the respective values of said properties
for the purpose of the inheritance tax.
"VII. That on July 22, 1931, the Bureau of Internal
Revenue prepared for the estate of the late Arthur
Graydon Moody an inheritance tax return, certified
copy of which marked Exhibit HH is hereto attached
and made a part hereof.
"VIII. That on September 9, 1931, an income tax
return for the fractional period from January 1, 1931 to
June 30, 1931, certified copy of which marked Exhibit
II is hereto attached and made a part hereof, was also
prepared by the Bureau of Internal Revenue for the
estate of the said deceased Arthur Graydon Moody.
"IX. That on December 3, 1931, the committee on
claims and appraisals filed with the court its report,
certified copy of which marked Exhibit KK is hereto
attached and made a part hereof.
"X. That on September 15, 1931, the Bureau of
Internal Revenue addressed to the attorney for the
administratrix Ida M. Palmer a letter, copy of which
marked Exhibit LL is hereto attached and made a part
hereof.
"XI. That on October 15, 1931, the attorney for Ida M.
Palmer answered the letter of the Collector of Internal
Revenue referred to in the preceding paragraph. Said
answer marked Exhibit MM is hereto attached and
made a part hereof.
"XII. That on November 4, 1931, and in answer to the
letter mentioned in the preceding paragraph, the
Bureau of Internal Revenue addressed to the attorney
for Ida M. Palmer another letter, copy of which marked
Exhibit NN is hereto attached and made a part hereof.
"XIII. That on December 7, 1931, the attorney for Ida
M. Palmer again replied in a letter, marked Exhibit OO,
hereto attached and made a part hereof.
"XIV. That the estate of the late Arthur Graydon Moody
paid under protest the sum of P50,000 on July 22,
1931, and the other sum of P40,019,75 on January 19,
1932, making a total of P90,019,75, of which
P77,018.39 covers the assessment for inheritance tax
and the sum of P13,001.41 covers the assessment for
income tax against said estate.
"XV. That on January 21, 1932, the Collector of
Internal Revenue overruled the protest made by Ida M.
Palmer through her attorney.
"XVI. The parties reserve their right to introduce
additional evidence at the hearing of the present case.
"Manila, August 15, 1933."cralaw virtua1aw library
In addition to the foregoing agreed statement of facts,
both parties introduced oral and documentary evidence
from which it appears that Arthur G. Moody, an
American citizen, came to the Philippine Islands in
1902 or 1903 and engaged actively in business in
these Islands up to the time of his death in Calcutta,
India, on February 18, 1931. He had no business
elsewhere and at the time of his death left an estate
consisting principally of bonds and shares of stock of
corporations organized under the laws of the Philippine
Islands, bank deposits and other intangibles and
personal property valued by the commissioners of
appraisal and claims at P609,767.58 and by the
Collector of Internal Revenue for the purposes of
inheritance tax at P653,657.47. All of said property at
the time of his death was located and had its situs
within the Philippine Islands. So far as this record
shows, he left no property of any kind located
anywhere else. In his will, Exhibit AA, executed without
date in Manila in accordance with the formalities of the
Philippine law, in which he bequeathed all his property
to his sister, Ida M. Palmer, he
stated:jgc:chanrobles.com.ph
"I, Arthur G. Moody, a citizen of the United States of
America, residing in the Philippine Islands, hereby
publish and declare the following as my last Will and
Testament . . . ."cralaw virtua1aw library
The substance of the plaintiff’s cause of action is stated
in paragraph 7 of his complaint as
follows:jgc:chanrobles.com.ph
"That there is no valid law or regulation of the
Government of the Philippine Islands under or by virtue
of which any inheritance tax may be levied, assessed
or collected upon transfer, by death and succession, of
intangible personal properties of a person not
domiciled in the Philippine Islands, and the levy and
collection by defendant of inheritance tax computed
upon the value of said stocks, bonds, credits and other
intangible properties as aforesaid constituted and
constitutes the taking and deprivation of property
without due process of law contrary to the Bill of Rights
and organic law of the Philippine Islands."cralaw
virtua1aw library
Section 1536 of the Revised Administrative Code (as
amended) provides as follows:jgc:chanrobles.com.ph
"SEC. 1536. Conditions and rate of taxation. — Every
transmission by virtue of inheritance, devise, bequest,
gift mortis causa or advance in anticipation of
inheritance, devise, or bequest of real property located
in the Philippine Islands and real rights in such
property; of any franchise which must be exercised in
the Philippine Islands; of any shares, obligations, or
bonds issued by any corporation or sociedad anonima
organized or constituted in the Philippine Islands in
accordance with its laws; of any shares or rights in any
partnership, business or industry established in the
Philippine Islands or of any personal property located
in the Philippine Islands shall be subject to the
following tax:"
x       x       x
It is alleged in the complaint that at the time of his
death, Arthur G. Moody was a "non-resident of the
Philippine Islands." The answer, besides the general
denial, sets up as a special defense that "Arthur G.
Moody, now deceased, was and prior to the date of his
death, a resident in the City of Manila, Philippine
Islands, where he was engaged actively in business."
Issue was thus joined on the question: Where was the
legal domicile of Arthur G. Moody at the time of his
death?
The Solicitor-General raises a preliminary objection to
the consideration of any evidence that Moody’s
domicile was elsewhere than in Manila at the time of
his death based on the proposition that as no such
objection was made before the Collector of Internal
Revenue as one of the grounds of the protest against
the payment of the tax, this objection cannot be
considered in a suit against the Collector to recover the
taxes paid under protest. He relies upon the decision in
the case of W. C. Tucker v. A. C. Alexander, Collector
(15 Fed. [2], 356). We call attention, however, to the
fact that this decision was reversed in 275 U. S., 232;
72 Law. ed., 256, and the case remanded for trial on
the merits on the ground that the requirement that the
action shall be based upon the same grounds, and only
such, as were presented in the protest had been
waived by the collector. In the case before us no copy
of the taxpayer’s protest is included in the record and
we have no means of knowing its contents. We think,
therefore, the preliminary objection made on behalf of
the appellee does not lie.
We proceed, therefore, to the consideration of the
question on the merits as to whether Arthur G. Moody
was legally domiciled in the Philippine Islands on the
day of his death. Moody was never married and there
is no doubt that he had his legal domicile in the
Philippine Islands from 1902 or 1903 forward during
which time he accumulated a fortune from his business
in the Philippine Islands. He lived in the Elks’ Club in
Manila for many years and was living there up to the
date he left Manila the latter part of February, 1928,
under the following circumstances: He was afflicted
with leprosy in an advanced stage and had been
informed by Dr. Wade that he would be reported to the
Philippine authorities for confinement in the Culion
Leper Colony as required by the law. Distressed at the
thought of being thus segregated and in violation of his
promise to Dr. Wade that he would voluntarily go to
Culion, he surreptitiously left the Islands the latter part
of February, 1928, under cover of night, on a freighter,
without ticket, passport or tax clearance certificate.
The record does not show where Moody was during the
remainder of the year 1928. He lived with a friend in
Paris, France, during the months of March and April of
the year 1929 where he was receiving treatment for
leprosy at the Pasteur Institute. The record does not
show where Moody was in the interval between April,
1929, and November 26, 1930, on which latter date he
wrote a letter, Exhibit B, to Harry Wendt of Manila,
offering to sell him his interest in the Camera Supply
Company, a Philippine corporation, in which Moody
owned 599 out of 603 shares. In this letter, among
other things, he states: "Certainly I’ll never return
there to live or enter business again." In this same
letter he says:jgc:chanrobles.com.ph
"I wish to know as soon as possible now (as to the
purchase) for I have very recently decided either to sell
or put in a line of school or office supplies . . . before I
go to the necessary investments in placing any side
lines. I concluded to get your definite reply to this . . .
I have given our New York buying agent a conditional
order not to be executed until March and this will give
you plenty of time . . . anything that kills a business is
to have it peddled around as being for sale and this is
what I wish to avoid." He wrote letters dated
December 12, 1930, and January 3, 1931, along the
same line to Wendt. As Moody died of leprosy less than
two months after these letters were written, there can
be no doubt that he would have been immediately
segregated in the Culion Leper Colony had he returned
to the Philippine Islands. He was, therefore, a fugitive,
not from justice, but from confinement in the Culion
Leper Colony in accordance with the law of the
Philippine Islands.
There is no statement of Moody, oral or written, in the
record that he had adopted a new domicile while he
was absent from Manila. Though he was physically
present for some months in Calcutta prior to the date
of his death there, the appellant does not claim that
Moody had a domicile there although it was precisely
from Calcutta that he wrote and cabled that he wished
to sell his business in Manila and that he had no
intention to live there again. Much less plausible, it
seems to us, is the claim that he established a legal
domicile in Paris in February, 1929. The record
contains no writing whatever of Moody from Paris.
There is no evidence as to where in Paris he had any
fixed abode that he intended to be his permanent
home. There is no evidence that he acquired any
property in Paris or engaged in any settled business on
his own account there. There is no evidence of any
affirmative factors that prove the establishment of a
legal domicile there. The negative evidence that he told
Cooley that he did not intend to return to Manila does
not prove that he had established a domicile in Paris.
His short stay of three months in Paris is entirely
consistent with the view that he was a transient in
Paris for the purpose of receiving treatments at the
Pasteur Institute. The evidence in the record indicates
clearly that Moody’s continued absence from his legal
domicile in the Philippines was due to and reasonably
accounted for by the same motive that caused his
surreptitious departure, namely, to evade confinement
in the Culion Leper Colony; for he doubtless knew that
on his return he would be immediately confined,
because his affliction became graver while he was
absent than it was on the day of his precipitous
departure and he could not conceal himself in the
Philippines where he was well known, as he might do in
foreign parts.
Our Civil Code (art. 40) defines the domicile of natural
persons as "the place of their usual residence." The
record before us leaves no doubt in our minds that the
"usual residence" of this unfortunate man, whom
appellant describes as a "fugitive" and "outcast", was
in Manila where he had lived and toiled for more than a
quarter of a century, rather than in any foreign country
he visited during his wanderings up to the date of his
death in Calcutta. To effect the abandonment of one’s
domicile, there must be a deliberate and provable
choice of a new domicile, coupled with actual residence
in the place chosen, with a declared or provable intent
that it should be one’s fixed and permanent place of
abode, one’s home. There is a complete dearth of
evidence in the record that Moody ever established a
new domicile in a foreign country.
The contention under the appellant’s third assignment
of error that the defendant collector illegally assessed
an income tax of P13,001.41 against the Moody estate
is, in our opinion, untenable. The grounds for this
assessment, stated by the Collector of Internal
Revenue in his letter, Exhibit NN, appear to us to be
sound. That the amount of P259,986.69 was received
by the estate of Moody as dividends declared out of
surplus by the Camera Supply Company is clearly
established by the evidence. The appellant contends
that this assessment involves triple taxation: First,
because the corporation paid income tax on the same
amount during the years it was accumulated as
surplus; second, that an inheritance tax on the same
amount was assessed against the estate, and third, the
same amount is assessed as income of the estate. As
to the first, it appears from the collector’s assessment,
Exhibit II, that the collector allowed the estate a whatever that the estate of Moody had been taxed
deduction of the normal income tax on said amount anywhere but in the Philippines. (Cf. Burnet,
because it had already been paid at the source by the Commissioner, v. Brooks, 288 U. S., 378.) .
Camera Supply Company. The only income tax
assessed against the estate was the additional tax or
surtax that had not been paid by the Camera Supply
Company for which the estate, having actually received
the income, is clearly liable. As to the second alleged
double taxation, it is clear that the inheritance tax and
the additional income tax in question are entirely
distinct. They are assessed under different statutes and
we are not convinced by the appellant’s argument that
the estate which received these dividends should not
be held liable for the payment of the income tax
thereon because the operation was simply the
conversion of the surplus of the corporation into the
property of the individual stockholders. (Cf. U. S. v.
Phellis, 257 U. S., 171, and Taft v. Bowers, 278 U. S.,
460.) Section 4 of Act No. 2833 as amended, which is
relied on by the appellant, plainly provides that the
income from exempt property shall be included as
income subject to tax.
Finding no merit in any of the assignments of error of
the appellant, we affirm the judgment of the trial court,
first, because the property in the estate of Arthur G.
Moody at the time of his death was located and had its
situs within the Philippine Islands and, second, because
his legal domicile up to the time of his death was
within the Philippine Islands. Costs against
the Appellant.
Malcolm, Villa-Real, and Imperial, JJ., concur.
Separate Opinions
GODDARD, J., concurring:chanrob1es virtual 1aw
library
I concur in the result. I think the evidence clearly
establishes that Moody had permanently abandoned
his residence in the Philippine Islands. But even so, his
estate would be liable for the taxes which the plaintiff-
appellant seeks to recover in this action. Section 1536
of the Revised Administrative Code makes no
distinction between the estates of residents and of
non-residents of the Philippine Islands. The case of
First National Bank of Boston v. State of Maine (284 U.
S., 312; 76 Law. ed., 313), relied on by the appellant
is not in point because in that case the estate of the
deceased was actually taxed in both the state of his
domicile, Massachusetts, and in the state where the
shares of stock had their situs, namely, the State of
Maine. But in the case before us there is no evidence
White v. Tennant

FULL TEXT: https://h2o.law.harvard.edu/collages/4170 ISSUE:

DIGEST:
Did the decedent, Joseph S. White, have his legal domicile in
White v. Tennant - 31 W. Va. 790, 8 S.E. 596 (1888)
the State of West Virginia, thereby making the laws of the said

state the controlling law in the issue of the settlement and the
RULE: distribution of the decedent’s estate?

The law of the state, in which the decedent had his domicile at
ANSWER:
the time of his death, will control the succession and

distribution of his personal estate.

No.

FACTS:
CONCLUSION:

The decedent, Joseph S. White, died intestate in West Virginia,

The Court held that the laws of the State, in which the domicile
on a farm of which about forty acres was in Pennsylvania. The
of a decedent was at the time of his death, control and govern
decedent was born and had his domicile in West Virginia all his
the distribution of his personal estate, although he may die in
life until about a year before his death, when he sold his farm
another State. According to the Court, where a person entirely
and then rented a house on the forty acres in Pennsylvania. He
abandoned his former residence in one State with no intention
left his former home without any intention of returning and, in
of resuming it and went with his family to another residence,
pursuance of that intention, did in fact move with his family and
which he has rented in another State, with the intention of
effects to his new home in Pennsylvania with the intention of
making the latter his residence for an indefinite time, the latter
making it his residence for an indefinite time. His wife fell ill,
State was his domicile. The fact that the decedent left the
and he moved her to the warmer residence in West Virginia.
Pennsylvania house, after he had moved to it with his family
The trial court held that the laws of West Virginia controlled the
and goods, to spend the night in West Virginia did not revive
distribution of the estate. The heirs of the decedent sought a
his domicile at his former residence.
review of the said judgment, arguing that the personal estate of

the decedent should be settled and distributed according to the

laws of the State of Pennsylvania.

G.R. No. L-15080             April 25, 1962
IN THE MATTER OF THE ADOPTION OF THE MINOR
NORMA LEE CABER, RICARDO R. CARABALLO, petitioner-
appellee,
vs.
REPUBLIC OF THE PHILIPPINES, opponent-appellant.
Clemente N. Dayrit for petitioner-appellee.
Office of the Solicitor General for opponent-appellant.
PADILLA, J.:
In a verified petition filed on 26 September 1958 in the Court of
First Instance of Pampanga, Ricardo R. Caraballo, an
American citizen enlisted in the United States Air Force as staff
sergeant detailed in Clark Field, Angeles, Pampanga, where he
and his wife Graciela G. Caraballo live, alleges that he and his
wife have no legitimate, legitimated, acknowledged natural
children, natural children by legal fiction or any other
descendant; that with his wife's written consent (Exhibit C) he
desires to adopt as his child Norma Lee Caber, a five-day old
natural daughter of Mercedes J. Caber begotten by an
unknown father, who gave her consent to the adoption in a
sworn statement (Exhibit B); that since the day following her
birth Norma Lee Caber has been reared and cared for by him
and his wife who have developed love and affection for her;
that he never has been convicted of any crime involving moral
turpitude; that financially and morally he is able to support,
bring up and educate the child; and prays that after notice,
publication and hearing Norma Lee Caber be declared his child
for all intents and purposes, free from any obligation of
obedience and maintenance with respect to her natural mother
Mercedes J. Caber (Sp. Proc. No. 1391).
On 26 September 1958 the Court ordered the verified petition
filed by Ricardo R. Caraballo to be published and was
published in the Daily Mirror once a week for three consecutive
weeks setting the petition for hearing on 18 October 1958
(Exhibit A). As at the hearing nobody appeared to object to the
petition for adoption, petitioner's counsel prayed for an order of
default, which was entered against all interested parties, except
the Solicitor General or Provincial Fiscal who, according to the
Court must appear in adoption cases.
On 27 October 1958 the Provincial and Assistant Provincial
Fiscal of Pampanga moved for the dismissal of the petition for
adoption on the ground that it states no cause of action and
that the petitioner, being a non-resident alien, is not qualified to
adopt.
On 28 October 1958 the Court granted the petitioner ten days materially and morally able to educate and bring her
within which to file an answer to the motion to dismiss and up properly and adequately, and, therefore, adjudges
submit a memorandum of authorities, and the fiscal the same that henceforth Norma Lee Caber shall be, for all
number of days to reply. legitimate intents and purposes, the child of Ricardo
R. Caraballo and shall be freed from all legal
obligations of obedience and maintenance with
On 3 November 1958 the petitioner filed an answer or objection
respect to her natural mother, Mercedes Caber, and
to the motion to dismiss, to which on 14 November the
that her surname shall be changed to that of
Provincial Fiscal replied.
petitioner, and pursuant to Article 346 of the Civil
Code of the Philippines, this decision shall be
On 17 November 1958 the Court denied the motion to dismiss. recorded in the local civil registry of Angeles,
Pampanga, and the name and surname of the said
minor shall thereafter be Norma Lee Caraballo.
On 12 December 1958 the petitioner moved that the case be
set for hearing. On 15 December 1958 the Court set the
petition for hearing on 22 December 1958 at 9:00 o'clock in the xxx     xxx     xxx
morning.
The point to determine is whether under the law the petitioner
After hearing, the Court found the following: is a person qualified to adopt. The Government contends that
he is not, invoking the provisions of article 335 of the Civil
Code. The article provides: .
... Petitioner is 32 years old while the child sought to
be adopted is three months old, having been born on
September 20, 1958 (Exhibit E). The petitioner has The following cannot adopt —
been residing at Clark Air Base for the last 25
months. He has had the child, Norma Lee Caber, in
(1) Those who have legitimate, legitimated,
his household as a daughter since the day following
acknowledged natural children, or natural children by
that of her birth and has developed a fondness for
legal fiction;
her and intends to bring her up and educate her as
his own to the best of his ability. He has never had
any children, either with his wife, Graciela G. (2) The guardian, with respect to the ward, before the
Caraballo, with whom he has been married for 12 final approval of his accounts;
years, or with any other woman.
(3) A married person, without the consent of the
He is a staff sergeant in the United States Air Force other spouse;
and receives approximately $465.00 a month,
including allowances. He expects to retire as a
(4) Non-resident aliens;
master sergeant after 6 years and 3 months, and as
such, he would receive a monthly pension of about
$175.00 to $190.00 for the rest of his life. He has an (5) Resident aliens with whose government the
allotment check made out to a bank for $84.00 a Republic of the Philippines has broken diplomatic
month. He has two insurance policies with an relations;
aggregate value of P15,000.00 and has a savings of
$6,000.00 to $7,000.00 which he has been
(6) Any person who has been convicted of a crime
accumulating for the last 15 to 20 years. After
involving moral turpitude, when the penalty imposed
retirement, he intends to settle down permanently in
was six months' imprisonment or more.
the Philippines where he will engage in the tourist
business by putting up a hotel. 1äwphï1.ñët
A person is deemed a resident of a place in a country or state
where he has his abode and lives there permanently. It is a
It also appears that petitioner has never been
place chosen by him freely and voluntarily, although he may
convicted of any crime whatsoever and rendered a
later on change his mind and live elsewhere. A place in a
decree as follows: .
country or state where he lives and stays permanently and to
which he intends to return after a temporary absence, no
PREMISES CONSIDERED, the Court believes that it matter how long, is his domicile. A sojourn such as a tourist
would be to the best interest of the child to be placed though actually present at a place of his free choice cannot be
under the care and custody of petitioner who is
deemed a resident of that place. A foreigner who has a
business or interest therein or property located in a country or
state and goes and stays in that country or state to look after
his business or property or to check up the manner or way his
business or property is being conducted or run by his manager
but does not intend to remain in the country indefinitely cannot
be deemed a resident of such country. Actual or physical
presence or stay of a person in a place, not of his free and
voluntary choice and without intent to remain there indefinitely,
does not make him a resident of the place. Looking after the
welfare of a minor to be adopted the law has surrounded him
with safeguards to achieve and insure such welfare. It cannot
be gainsaid that an adopted minor may be removed from the
country by the adopter, who is not a resident of the Philippines,
and placed beyond the reach and protection of the country of
his birth.

Ricardo R. Caraballo, the petitioner, an American citizen who

now lives in Clark Field, municipality of Angeles, province of
Pampanga, Republic of the Philippines, because of his
assignment as staff sergeant in the United States Air Force —
his stay in the Philippines then being temporary — is a non-
resident alien who, pursuant to clause 4 of the above quoted
article of the Civil Code, is disqualified to adopt a child in the
Philippines.

The decree appealed from is set aside and the petition

dismissed, without pronouncement as to costs.

Bengzon, C.J., Bautista Angelo, Labrador, Reyes, J.B.L.,

Paredes and Dizon, JJ., concur.
Concepcion, J., concurs in the result.
Barrera, J., took no part.
G.R. No. L-35980             February 20, 1932
GO CHIEN and GO LEK, petitioners-appellees,
vs.
THE COLLECTOR OF CUSTOMS OF CEBU, respondent-
appellant.
Attorney-General Jaranilla for appellant.
Gullas, Lopez & Tuazon for appellees.
VILLA-REAL, J.:
This appeal was taken by the collector of customs for Cebu
against the judgment of the Court of First Instance of the
province, granting the writ of habeas corpus applied for by Go
Chen and Go Lek, and ordering that they be set at liberty and
permitted to remain in the Philippine Islands.
In support of his appeal the appellant assigns the following
alleged errors as committed by the court below:
1. The trial court erred in holding that the right of a
minor to enter or remain in the Philippine Islands is
not a consequence of the exercise of patria potestad.
2. The trial court erred in issuing the writ of habeas
corpus applied for by the petitioners.
The following facts were established by a preponderance of
evidence:
The petitioners and appellees, Go Chen and Go Lek, are minor
children of Go Tuan and Tan Bon. Go Tuan died in China
eleven years ago. Two years later, Tan Bon his widow, married
another Chinaman, and shortly thereafter came to the
Philippine Islands with her second husband, where she was
admitted as the wife of a Chinese merchant, and where she
has been residing for the past eight years. The petitioner
remained in China under a paternal uncle, together with their
three brothers and one sister. Tan Bon is at present engaged in
the furniture business in Cebu. Being a resident merchant, she
ordered her two sons, the petitioners herein, to join her in these
Islands. On October 20, 1930, the petitioners and appellees,
Go Lek and Go Chen, then aged 20 and 18, respectively,
arrived in the Philippines on board the S. S. Susana II, and
took up their abode with their mother, Tan Bon at her home
and went to Talisayan, Misamis Province, at the invitation of a
friend of his named Go Tian Ho, whom he had been helping in
his store in that municipality. The petitioners and appellees are
both single and have another brother, also single 21 years of
age, named Go Soon, who is living in Cebu with his mother.
Now, then, a Chinese widow who never resided in the
Philippine Islands during her first marriage, is admitted and
acquires a residence as the wife of a Chinese merchant, her
second husband. Is she entitled to bring in her minor children
by the first marriage?
In In re Chung Toy Ho (42 Fed., 398, 399), the Circuit Court of
Oregon, United States, gives the following reason for the right
of a Chinese resident's wife and children, to enter without a
residence certificate:
It is impossible to believe that parties to this treaty,
which permits the servants of a merchant to enter the
country with him, ever contemplated the exclusion of
his wife and children. And the reason why they are
not expressly mentioned, as entitled to such
admission, is found in the fact that the domicile of the
wife and children is that of the husband and father,
and that the concession to the merchant of the right
to enter the United States, and dwell therein at
pleasure, fairly, construed, does include his wife and
minor children; particularly when it is remembered
that such concession is accompanied with a
declaration to the effect that, in such entry and
sojourn in the country, he shall be entitled to all the
rights and privileges of a subject of Great Britain or a
citizen of France.
In United States vs. Gue Lim (176 U.S., 459, 468), the United
States Supreme Court gives the same reason as follows:
In the case of the minor children, the same result
must follow as in that of the wife. All the reasons
which favor the construction of the statute as
exempting the wife from the necessity of procuring a
certificate apply with equal force to the case of minor
children of a member or members of the admitted
classes. They come in by reason of their relationship
to the father, and whether they accompany or follow
him, a certificate is not necessary in either case.
When the fact is established to the satisfaction of the
authorities, that the person claiming to enter, either
as wife or minor child, is in fact the wife or minor child
of one of the members of a class mentioned in the
treaty as entitled to enter, then that person is entitled
to admission without the certificate.
Therefore the ground of the wife's right of entry into the territory
of the United States and hence, into the Philippine Islands, is
the principle of Private International Law and of Civil Law, that
a man's domicil is also the domicile of his wife and minor
children, and that he is in duty bound to protect, support, and
keep them in his company. A Chinaman's Chinese wife and
here minor children, then, do not enter the Philippine Islands
through their own right, but by virtue of the right of the husband
and father, unless the Chinese wife belongs to the privileged
class.
The Chinese woman Tan Bon, who seeks to bring in her minor
children, the petitioners herein, did not enter through her own
but through that of her second husband. If the wife's right to
enter is derived from her husband's, and the rights of the minor
children from that of their father, then the petitioners and
appellees, not being children of their mother's second husband,
are not entitled to enter. The mere fact of their being children of
Tan Bon confers on them no right of entry, inasmuch as she
herself did not enter of her own right, and they cannot base
their right on hers.
Counsel argue that as she is now resident merchant, she is
entitled to bring in her minor children. The mere fact that she
became a merchant after coming into these Islands, gives her
no right to remain, following this court's ruling in the cases of
Juan Co vs. Rafferty (14 Phil., 235); United States vs. Yu Wa
(28 Phil., 1); United States vs. Sia Lam Han (29 Phil., 159);
United States vs. So Hao Ka (31 Phil., 649). She has the latter
right by virtue of being the wife of a Chinese merchant who
came into the country in that capacity.
As the Chinese woman aforesaid, Tan Bon, did not enter the
Philippine Islands by her own right, but by virtue of her second
husband's right, she is not entitled to bring in her minor children
by another Chinaman who never had a legal residence in the
Archipelago.
Wherefore we are of opinion and so hold, that a Chinese
woman entering these Islands not on her own right but by
virtue of the right of her second husband, a Chinaman, has no
right to bring in her minor children by the first husband, who
never had a legal residence in this country.
By virtue whereof, the judgment appealed from is reversed,
and the writ of habeas corpus denied, with costs against the
appellees. So ordered.
Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez and
Imperial, JJ., concur.
G.R. No. L-13982             July 31, 1920
DIEGO DE LA VIÑA, petitioner,
vs.
ANTONIO VILLAREAL, as Auxiliary Judge of First
Instance, and NARCISA GEOPANO, respondents.
Del Rosario and Del Rosario and W. F. Mueller for petitioner.
J. Lopez Vito for respondents.
JOHNSON, J.:
This is an original petition presented in the Supreme Court. Its
purpose is to obtain an order declaring: (a) That the
respondent, the Honorable Antonio Villareal, as Auxiliary Judge
sitting in the Court of First Instance of the province of Iloilo, has
no jurisdiction to take cognizance of a certain action for divorce
instituted in said court by the respondent Narcisa Geopano
against her husband, Diego de la Viña, the petitioner herein;
(b) that the said respondent judge has exceeded his power and
authority in issuing, in said action, a preliminary injunction
against the said petitioner prohibiting him from alienating or
encumbering any part of the conjugal property during the
pendency of the action; and (c) that all the proceedings
theretofore had in said court were null and void.
It appears from the record that on September 17, 1917,
Narcisa Geopano filed a complaint in the Court of First
Instance of the Province of Iloilo against Diego de la Viña,
alleging: (1) That she was a resident of the municipality of
Iloilo, Province of Iloilo, and that the defendant was a resident
of the municipality of Vallehermoso, Province of Oriental
Negros; (2) that she was the legitimate wife of the defendant,
having been married to him in the municipality of Guijulñgan,
Province of Negros Oriental, in the year 1888; (3) that since
their said marriage plaintiff and defendant had lived as
husband and wife and had nine children, three of whom were
living and were already of age; (4) that during their marriage
plaintiff and defendant had acquired property, real and
personal, the value of which was about P300,000 and all of
which was under the administration of the defendant; (5) that
since the year 1913 and up to the date of the complaint, the
defendant had been committing acts of adultery with one Ana
Calog, sustaining illicit relations with her and having her as his
concubine, with public scandal and in disgrace of the plaintiff;
(6) that because of said illicit relations, the defendant ejected
the plaintiff from the conjugal home, for which reason she was
obliged to live in the city of Iloilo, where she had since
established her habitual residence; and (7) that the plaintiff,
scorned by her husband, the defendant, had no means of
support and was living only at the expense of one of her
daughters. Upon said allegations she prayed for (a) a decree of
divorce, (b) the partition of the conjugal property, and (c)
alimony pendente lite in the sum of P400 per month.
Subsequent to the filing of the said complaint, Narcisa
Geopano, the plaintiff therein, presented a motion, which was
later amended, alleging, among other things, that since the
filing of her complaint she had personal knowledge that the
defendant was trying to alienate or encumber the property
which belonged to the conjugal partnership between the
plaintiff and the defendant, to the prejudice of the plaintiff, and
prayed that a preliminary injunction be issued against the
defendant restraining and prohibiting him in the premises.
The defendant Diego de la Viña, petitioner herein, opposed the
said motion for a preliminary injunction, and, subsequently,
demurred to the complaint upon the ground that the court had
no jurisdiction to take cognizance of the cause, "nor over the
person of the defendant."
After hearing the respective parties the respondent judge, in to
separate orders, dated November 1 and November 2, 1917,
respectively, overruled the defendant's demurrer, and granted
the preliminary injunction prayed for by the plaintiff.
Thereafter and on April 27, 1918, the defendant, Diego de la
Viña filed the present petition for certiorari in this court, upon
the ground that the respondent judge had no jurisdiction to take
cognizance of the action in question, and had exceeded his
power and authority in issuing said preliminary injunction.
The questions arising out of the foregoing facts are as follows:
1. May a married woman ever acquire a residence or domicile
separate from that of her husband during the existence of the
marriage?
2. In an action for divorce, brought by the wife against her
husband, in which the partition of the conjugal property is also
prayed for, may the wife obtain a preliminary injunction against
the husband restraining and prohibiting him from alienating or
encumbering any part of the conjugal property during the
pendency of the action?
I.
The petitioner contends that the Court of First Instance of Iloilo
had no jurisdiction to take cognizance of the said action for
divorce because the defendant therein was a resident of the
Province of Negros Oriental and the plaintiff, as the wife of the
defendant, must also be considered a resident of the same
province inasmuch as, under the law, the domicile of the
husband is also the domicile of the wife; that the plaintiff could
not acquire a residence in Iloilo before the arriage between her
and the defendant was legally dissolved.
This contention of the petitioner is not tenable. It is true, as a
general of law, that the domicile of the wife follows that of her
husband. This rule is founded upon the theoretic identity of
person and of interest between the husband and the wife, and
the presumption that, from the nature of the relation, the home
of the one is that of the other. It is intended to promote,
strenghten, and secure their interests in this relation, as it
ordinarily exists, where union and harmony prevail. But the
authorities are unanimous in holding that this is not an absolute
rule. "Under modern laws it is clear that many exceptions to the
rule that the domicile from of the wife is determined by that of
her husband must obtain. Accordingly, the wife may acquire
another and seperate domicile from that of her husband where
the theorical unity of husband and wife is is dissolved, as it is
by the institution of divorce proceedings; or where the husband
has given cause for divorce; or where there is a separation of
the parties by agreement, or a permanent separation due to
desertion of the wife by the husband or attributable to cruel
treatment on the part of the husband; or where there has been
a forfeiture by the wife of the benefit of the husband's domicile."
(9 R. C. L., 545.)
The case of Narcisa Geopano comes under one of the many
exceptions above-mentioned, to wit: "Where the husband has
given cause for divorce, the wife may acquire another and
seperate domicile from that of her husband." In support of this
proposition there is a formidable array of authorities. We shall
content ourselves with illustrative quotations from a few of
them, as follows:
Although the law fixes the domicile of the wife as
being that of her husband, universal jurisprudence
recognizes an exception to the rule in the case
where the husband's conduct has been such as to
furnish lawful ground for a divorce, which justifies her
in leaving him, and, therefore, necessarily authorities
her to live elsewhere and to acquire a separate
domicile. Cheever vs. Wilson, 9 Wall. (U. S.), 108;
Barber vs. Barber, 21 How. (U. S.), 582; 2 Bishop,
Mar. and Div., 475; Schouler, Hus. and Wife, sec.
574; 5 Am. and Eng. Encyc. of Law, p. 756."
(Smith vs. Smith, 43 La. Ann., 1140, 1146.)
The matrimonial domicile of the wife is usually that of
the husband, but if she is justified in leaving him
because his conduct has been such as to entitle her
to a divorce, and she thereupon does leave him and
go into another state for the purpose of there
permanently residing, she acquires a domicile in the
latter state. (Atherton vs. Atherton, 155 N. Y., 129; 63
Am. St. Rep., 650.)
The law will recognize a wife as having a separate
existence, and separate interests, and separate
rights, in those cases where the express object of all
 proceedings is to show that the relation itself ougth to
be dissolved, or so modified as to establish separate
interests, and especially a separate domicile and
home, bed and board being put, apart for the whole,
as expressive of the idea of home. Otherwise the
parties, in this respect, would stand upon very
unequal ground, it being in the power of the husband
to change his domicile at will, but not in that of the
wife. (Harteau vs. Harteau, 14 Pick. [Mass.], 181; 25
Am. Dec., 372, 375-376.)
Under the pauper laws, and upon general principles,
the wife is regarded as having the domicile of her
husband; hut this results from his marital rights, and
the duties of the wife. If the husband has forfeited
those rights be misbehavior, and has left and
deserted the wife, they may have different domiciles,
in the view of the law regulating divorces.
(Harding vs. Alden, 9 Greenl. [Me.], 140; 23 Am.
Dec., 549, 552.)
Though as a general principle of law the domicile of
the husband is regarded as the domicile of the wife,
according to the prevailing view a wife may acquire a
residence or domicile separate from her husband so
as to confer jurisdiction upon the courts of the state,
in which her domicile or residence is established, to
decree a divorce in her favor. (9 R. C. L. 400-401,
citing various cases.)
The law making the domicile of the husband that of
the wife is applicable only to their relations with third
parties, and has no application in cases of actual
separation and controversy between themselves as
to the temporary or permanent severance of the
marriage ties by judicial proceedings. Vence vs.
Vence, 15 How. Pr., 497; Schonwald vs. Schonwald,
55 N. C., 367; Cheever vs. Wilson, 76 U. S. (9 Wall.),
109; 19 L. ed., 605. (Notes, p. 498, 16 L. R. A.)
In the case of Schonwald vs. Schonwald (55 N. C., 343), the
plaintiff tried to do what the petitioner in this case insists the
respondent Narcisa Geopano should have done. In that case
the wife filed a bill of divorce in a court in North Carolina, where
her husband resided. She herself had not resided in that state
for three years previous to the filing of the suit, as required by
the statute; but she claimed that the domicile of her husband
was also her domicile and, inasmuch as her husband, the
defendant, had been a resident of North Carolina for more than
three years, she had also been a resident of that state during
that time. The court dismissed the bill, holding that the legal
maxim that "her domicile is that of her husband" would not avail
in the stead of an actual residence. The court said:
It is true that for many purpose the domicile of the
husband is the domicile of the wife, but it is not so for
every purpose. The maxim that the domicile of the
wife follows that of the husband cannot be applied to
oust the court of its jurisdiction; neither, from party of
reasons can it give jurisdiction. (P. 344.)
Turning to the Spanish authorities, we find that they agree with
the American authorities in holding that the maxim or rule that
the domicile of the wife follows that of the husband, is not an
absolute one. Scaevola, commenting on article 40 of the Civil
Code (which is the only legal provision or authority relied upon
by the petitioner in this case), says:
Although article 64 of the Law of Civil Procedure
provides that the domicile of a married woman, not
legally separated from her husband, is that of the
latter, yet, when the tacit consent of the husband and
other circumstances justify it, for the purpose of
determining jurisdiction, the habitual residence of the
woman should be considered as her domicile where
her right may be exercised in accordance with article
63. (Scaevola, Civil Code, p. 354.)
Manresa, commenting upon the same article (art. 40) says:
The domicile of married women not legally separated
from their husband shall be that of the latter. This
principle, maintained by the Supreme Court in
numerous decisions, was modified in a particular
case by the decision of June 17, 1887, and in
conformity with this last decision, three others were
afterwards rendered on October 13, 23, and 28,
1899, in all of which it is declared that when married
women as well as children subject to parental
authority live, with the acquiescence of their
husbands or fathers, in a place distinct from where
the latter live, they have their own independent
domicile, which should be considered in determining
jurisdiction in cases of provisional support
guardianship of persons, etc. (1 Manresa, 233.)
If the wife can acquire a separate residence when her husband
consents or acquiesces, we see no reason why the law will not
allow her to do so when, as alleged in the present case, the
husband unlawfully ejects her from the conjugal home in order
that he may freely indulge in his illicit relations with another
woman. Under no other circumstance could a wife be more
justified in establishing a separate residence from that of her
husband. For her to continue living with him, even if he had
permitted it, would have been a condonation of his flagrant
breach of fidelity and marital duty. Furthermore, in this case no
longer was there an "identity of persons and of interest
between the husband and the wife." Therefore the law allowed
her to acquire a separate residence. For, "it would do violence
to the plainest principle of common sense and common justice
of to call this residence of the guilty husband, where the wife is
forbidden to come, . . . the domicile of the wife." (Champon vs.
Champon, 40 La. Ann., 28.)
It is clear, therefore, that a married woman may acquire a
residence or domicile separate from that of her husband,
during the existence of the marriage, where the husband has
given cause for divorce.
II.
We come now to the second question — whether or not the
respondent judge exceeded his power in issuing the
preliminary injunction complained of by the petitioner.
Section 164 of Act No. 190 provides:
A preliminary injunction may be granted when it is
established, in the manner hereinafter provided, to
the satisfaction of the judge granting it:
1. That the plaintiff is entitled to the relief demanded
and such relief, or any part thereof, consists in
restraining the commission or continuance of the
acts complained of either for a limited period or
perpetually;
2. That the commission or continuance of some act
complained of during the litigation would probably
work injustice to the plaintiff;
3. That the defendant is doing, or threatens, on is
about to do, or is procuring or suffering to be done,
some act probably in violation of the plaintiff's rights,
respecting the subject of the action, and tending to
render the judgment ineffectual.
The petitioner quotes the foregoing section and argues that the
respondent Narcisa Geopano was not entitled to have a
preliminary injunction issued against her husband because
contrary to the requirement of the first paragraph of said
section, she was not entitled to the relief demanded, which
consisted in restraining the power and authority which the law
confers upon the husband; that under articles 1412 and 1413
of the Civil Code, the husband is the manager of the conjugal
partnership and, as such, is empowered to alienate and
encumber and conjugal property without the consent of the
wife; that neither could the wife obtain a preliminary injunction
under paragraph 3 of said section, upon the ground that the
defendant was committing some acts in violation of the
plaintiff's rights, because the plaintiff, as the wife of the
defendant, had nor right to intervene in the administration of
the conjugal property, and therefore no right of hers was
violated.
We cannot subscribe to that argument of counsel. The law The power to grant preliminary injunctions, both
making the husband the sole administrator of the property of preventative and mandatory, is a logical and
the conjugal partnership is founded upon necessity and necessary incident of the general powers conferred
convenience as well as upon the presumption that, from the upon Courts of First Instance in these Islands, as
very nature of the relating between husband and wife, the courts of record of general and unlimited original
former will promote and not injure the interests of the latter. So jurisdiction, both legal and equitable.
long as this harmonious relation, as contemplated by law,
continues, the wife cannot and should not interfere with the
Insofar as the statute limits or prescribes the
husband in his judicious administration of the conjugal
exercise of this power it must be followed: but
property. But when that relation ceases and, in a proper action,
beyond this, and in cases not covered by or
the wife seeks to dissolve the marriage and to partition the
contemplated by the statute, these courts must
conjugal property, it is just and proper, in order to protect the
exercise their jurisdiction in the issuance of
interests of the wife, that the husband's power of administration
preliminary injunctions upon sound principles
be curtailed, during the pendency of the action, insofar as
applicable to the circumstances of each particular
alienating or encumbering the conjugal property is concerned.
case, having in mind the nature of the remedy, and
the doctrine and practice established in the courts
In her motion for a preliminary injunction, Narcisa Geopano upon which our judicial is modeled.
alleged that the defendant was about to alienate or encumber
the property belonging to the conjugal partnerships, with the
The only limitation upon the power of Courts of First
object of injuring her interests; and this allegation does not
Instance to issue preliminary injunctions, either
appear to have been controverted by the defendant either in
mandatory of preventative, is that they are to be
this court or in the court below. In view of this fact, we are of
issued in the "manner" or according to the "method"
the opinion that under both paragraphs 2 and 3 of section 164
provided therefor in the Code of Civil Procedure.
of Act No. 190, above quoted, the respondent judge was
empowered and justified in granting the preliminary injunction
prayed for by her. It cannot be doubted that, if the defendant We conclude, therefore, that in an action for divorce brought by
should dispose of all or any part of the conjugal property during the wife against the husband, in which the partition of the
the pendency of the action for divorce, and squander or conjugal property is also prayed for, the wife may obtain a
fraudulently conceal the proceeds, that act "would probably preliminary injunction against the husband, prohibiting the latter
work injustice to the plaintiff," or that it would probably be "in from alienating or encumbering any part of the conjugal
violation of the plaintiff's rights, respecting the subject of the property during the pendency of the action.
action, and tending to render the judgment ineffectual." In this
case the plaintiff's rights sought to be protected by said
It follows from all of the foregoing that the respondent, the
paragraph 3 is not the right to administer the conjugal property,
Honorable Antonio Villareal, as Auxiliary Judge sitting in the
as counsel for the petitioner believes, but the right to share in
Court of First Instance of the Province of Iloilo, had jurisdiction
the conjugal property upon the dissolution of the conjugal
to hear and determine the action for divorce instituted in said
partnership.
court by the respondent Narcisa Geopano, and that he did not
exceed his power and authority in issuing a preliminary
The case under consideration, then, is covered or injunction against the defendant, prohibiting him from alienating
contemplated by the statute (sec. 164, Act No. 190), so that or encumbering any part of the conjugal property during the
there can be no question, in our opinion, as to the power of the pendency of the action.
respondent judge to issue the preliminary injunction
complained of by the petitioner. Indeed, even in a case not
Therefore, the petition should be and is hereby denied, with
covered by the statute this court had upheld the power of Court
costs against the petitioner. So ordered.
of First Instance to grant preliminary injunctions. In the case
of Manila Electric Railroad and Light Company vs. Del Rosario
and Jose (22 Phil., 433), Doroteo Jose asked for, and the Mapa, C.J., Carson, Araullo, Malcolm, Avanceña, Moir and
Court of First Instance granted ex parte, a writ of preliminary Villamor, JJ., concur.
mandatory injunction directing the Manila Electric Railroad and
Light Company to continue furnishing electricity to Jose.
Thereupon the Light Company filed in this court a petition for
the writ of certiorari against Judge S. del Rosario upon the
ground that Courts of First Instance in these Islands are wholly
without jurisdiction to issue preliminary mandatory injunctions
under any circumstances whatever. This court denied that
petition, determining the power of the Courts of First Instance
to issue preliminary injunction, as follows:
 EN BANC
[G.R. No. L-6897. November 29, 1956.]
In the Matter of the Claim for Attorney’s Fees.
CLARO M. RECTO, claimant-appellee, v.
ESPERANZA P. DE HARDEN and FRED M.
HARDEN, Defendants-Appellants.
J. W. Ferrier, Sr. and M. R. Sotelo for appellants.
Claro M. Recto for and in his own behalf.
SYLLABUS
1. ATTORNEY AND CLIENT; WIFE‘S CONTRACT FOR
LEGAL SERVICES WITHOUT HUSBAND‘S CONSENT;
CONTINGENT FEES ON HER SHARE IN CONJUGAL
PARTNERSHIP DOES NOT BIND THE LATTER. — Where
the wife executed a contract of professional services
whereby she binds herself among other things that she
agrees to pay her attorney twenty (20%) per cent of
the value of the share and participation which she may
receive in the funds and properties of the conjugal
partnership of herself and her husband, such contract
does not seek to bind the conjugal partnership. The
wife merely bound herself — and assumed the personal
obligation — to pay by way of contingent fees, 20% of
her share in said partnership. The contract neither
gives, nor purports to give to her lawyer any right
whatsoever, personal or real, in and to her aforesaid
share. The amount thereof is simply a basis for the
computation of said fees.
2. ID.; CONTINGENT FEES NOT PROHIBITED IN THE
PHILIPPINES. — Appellants contention "that article
1491 of the Civil Code of the Philippine in effect
prohibit contingent fees in untenable. Contingent fees
are not prohibited in the Philippines and are impliedly
sanctioned by our Canons (No. 13) of Professional
Ethics. (See also Ulanday v. Manila Co., 45 Phil., 540,
554).
3. ID.; WIFE‘S CONTRACT FOR LEGAL SERVICES;
INTERPRETED AND CONSTRUED. — Appellant’s
contention that the contract in question has for it
purpose to secure of divorce allegedly in violation of
Articles 1305, 1352 and 1409 of the Civil Code of the
Philippines is not borne out either by the language of
the contract between them or by the intent of the
parties thereto. Its purpose was not to secure a divorce
or facilitate or promote the procurement of a divorce.
It merely sought to protect the interest of the wife in
the conjugal partnership, during the pendency of a
divorce suit she intended to file in the United States.
What is more, inasmuch as the husband and wife are
admittedly citizens of the United States, their status
and the dissolution thereof are governed — pursuant to
Art. 9 of the Civil Code of Spain (which was in force in
the Philippines at the time of the execution of the
contract in question) and Article 15 of the Civil Code of
the Philippines — by the laws of the United States,
which sanction divorce. In short, the contract of
services, between the wife and her lawyer, is not
contrary to law, morals, good customs, public order or
public policy.
4. ID.; CONTRACT OF SERVICES WHEN NOT
OPPRESSIVE OR INEQUITABLE. — Considering the
character of the services rendered by the attorney in
the case at bar, the nature and importance of the
issues in said litigations, the amount of labor, time
(1944 to 1952) and the trouble involved therein, the
skill displayed in connection with said cases, the value
of the property affected by the controversy the
professional character and standing of the lawyer, the
risks assumed and the results obtained, Held: that the
character and standing of the lawyer, the risks
assumed and the results obtained, Held: that the
contract of services in question is neither harsh nor
oppressive or inequitable.
5. OBLIGATIONS AND CONTRACTS; ATTORNEY AND
CLIENT; WIFE‘S CONTRACT OF SERVICES; 20%
CONTINGENT FEES ON HER SHARE IN CONJUGAL
PARTNERSHIP; INTENTION TO FILE SUIT FOR
DIVORCE AS CONDITION; RENDERED IMPOSSIBLE BY
WIFE. — The contract of services was made principally,
in contemplation of a suit for divorce which the wife
intended to file before a competent court in California,
"and of the liquidation of the conjugal partnership
between’ her and her husband. Had she filed said
action for divorce and secure a decree of divorce, said
conjugal partnership would have been dissolved and
then liquidated and the share of the wife therein would
have been fixed. However this cannot take place,
either now or in the forseeable future owing to the
agreements between the wife and her husband which
were made for the evident purpose of defeating the
attorney’s claim for his fees. In other words the
occurrences within the time contemplated by the
parties — bearing in mind the nature of and
circumstances under which they entered into, said
contract of services — of the event upon which the
amount of said fees depended, was rendered
impossible by the wife. Hence, whether such event be
regarded as a condition or as a period, she may not
insist upon its occurrence prior to the enforcement of
the rights of the lawyer, for "the condition shall be
deemed fulfilled when the obligor voluntarily prevents
its fulfillment," (Art. 1186 Civil Code) and "the debtor
shall lose every right to make use of the period" when
he "violates any undertaking in consideration of which
the creditor agreed to the period." (Art. 1198, Civil
Code).
DECISION
CONCEPCION, J.:
This is an appeal taken by Esperanza P. de Harden and
Fred M. Harden from a decision of the Court of First
Instance of Manila, the pertinent part of which is of the
following tenor:.
"The contingent fee to which the claimant is entitled
under paragraph 3 of the contract, Exhibit JJJ or 20, is
20% of P1,920,554.85 or the sum of P384,110.97.
"WHEREFORE, this Court hereby approves the
recommendation of the Commissioner with the above-
stated modification, and finds that Attorney Claro M.
Recto is entitled to the sum of THREE HUNDRED
EIGHTY-FOUR THOUSAND ONE HUNDRED AND TEN
PESOS AND NINETY-SEVEN CENTAVOS (P384,110.97),
representing 20% of Esperanza P. de Harden’s share in
the conjugal properties owned by her and her husband,
Fred M. Harden, as contingent fee stipulated in
paragraph 3 of the Contract of Professional Services,
Exhibit JJJ or 20, and the said Esperanza P. de Harden
is hereby ordered to pay the said amount above-
stated." It appears that sometime in July, 1941,
appellant, Mrs. Harden, and appellee, Claro M. Recto,
executed the following:chanroblesvirtual 1awlibrary
"CONTRACT OF PROFESSIONAL SERVICES
KNOW ALL MEN BY THESE PRESENTS:chanroblesvirtual
1awlibrary
"That I, ESPERANZA PEREZ DE HARDEN, of age,
married to Fred M. Harden, and temporarily residing in
the Philippines, with address at 534 Sales Street,
Manila, have engaged the services of Attorney Claro M.
Recto to appear and act as my counsel in the action
which I will file against my husband, Fred M. Harden,
for the purpose of securing an increase in the amount
of support being received by me from the conjugal
partnership of myself and said Fred M. Harden, and for
the purpose likewise of protecting and preserving my
rights in the properties of the said conjugal
partnership, in contemplation of the divorce suit which
I intent to file against him in the competent Court of
California and of the liquidation of the conjugal
partnership between us, this contract of services to be
under the following conditions:chanroblesvirtual
1awlibrary
"1. That in lieu of retainer fee, which under the
circumstances I am not in a position to pay, I hereby
agree to pay Attorney Claro M. Recto, such payment to
be made monthly, during the pendency of the litigation
and until the termination of the same, twenty-five
(25%) per cent of the total increase in allowance or
pension which may be awarded to me by the court
over and above the amount of P1,500.00 which I now
receive monthly from defendant Fred M. Harden out of
the funds of the conjugal partnership; Provided, that
should the case be terminated or an amicable
settlement thereof be arrived at by the parties before
the expiration of two years from the date of the filing
of the complaint, I shall continue to pay the said
twenty-five (25%) per cent up to the end of said
period.
"2. That the aforesaid monthly payments shall be in
addition to whatever amount may be adjudged by the
court against the defendant Fred M. Harden or against
the conjugal partnership by way of litis expense, that
is, attorney’s fees chargeable as expenses of litigation.
"3. That as full and complete satisfaction of the fees of
Attorney Claro M. Recto in connection with the case
above referred to, and said case being for the purposes
aforestated, that is, to secure an increase in the
amount of support I now receive as well as to protect
and preserve my rights and interest in the properties of
the conjugal partnership, in contemplation of divorce
and of the liquidation of said partnership, I hereby
agree to pay said Attorney Claro M. Recto twenty
(20%) per cent of the value of the share and
participation which I may receive in the funds and
properties of the said conjugal partnership of myself
and defendant Fred M. Harden, as a result of the
liquidation thereof either by death, divorce, judicial
separation, compromise or by any means or method by
virtue of which said partnership is or may be
liquidated.
"4. All expenses in connection with the litigation are to
be for my account, but the same may be advanced by
Attorney Claro M. Recto, to be reimbursed to him
either from the money which I receive by way of
support or from the funds of the conjugal partnership.
"5. It is hereby understood that this contract includes
the services of Attorney Claro M. Recto in connection
with the securing of the liquidation of the properties
and assets of the conjugal partnership of myself and
Fred M. Harden, upon dissolution of said partnership or
for any other cause mentioned in Paragraph (3) hereof.
IN WITNESS WHEREOF, I have signed these presents
in the City _____ of Manila, Philippines this _______
day of July, 1941.
s/ Esperanza P. de Harden
t/ ESPERANZA P. DE HARDEN
ACCEPTED:chanroblesvirtual 1awlibrary
s/ Claro M. Recto
t/ CLARO M. RECTO"chanrob1es virtual 1aw library
In compliance therewith, on July 12, 1941, the
appellee, as counsel for Mrs. Harden, commenced Civil
Case No. 59634 of the Court of First Instance of
Manila, entitled "Esperanza P. de Harden v. Fred M.
Harden and Jose Salumbides." In the complaint therein
filed, it was prayed, among other things: (a) that Mrs.
Harden be given the exclusive administration of the
business and all properties of the conjugal partnership
of Mr. and Mrs. Harden; (b) that, in the event of denial
of this prayer, the defendants be ordered to inform her
"of everything pertaining to the administration of said
business and properties", as well as to render accounts
thereof and to permit her to examine the books and
records pertinent thereto; (c) that Mr. Harden be
ordered to account to Mrs. Harden, and to return to
this jurisdiction, the sum of P449,015.44 allegedly
withdrawn by him from the Philippines or sent by him
to Hongkong on April 1, 1941; (d) that defendant
Salumbides be ordered to account for all moneys,
amounting to P285,000.00, belonging to the business
and assets of said conjugal partnership and deposited
by him in a safety box, either in his name, or in that of
Antonio Wilson, from January 23 to December 23,
1940; (e) that the transfer, in the name of Salumbides,
of certain shares of stock, allegedly belonging to the
conjugal partnership, be rescinded and said defendant
ordered to transfer said shares of stock in the name of
Mrs. Harden or in that of Mr. and Mrs. Harden, should
Mr. Harden be allowed to continue as administrator of
said partnership; ( f ) that the transfer, made by Mr.
Harden and/or by defendant Salumbides, as his
attorney-in-fact, of 36,000 shares of stock of the
Angelo Mining Company, to some residents of
Hongkong, be rescinded and said shares returned to
the assets of the conjugal partnership and placed in
the name of Mr. and Mrs. Harden; (g) that the monthly
allowance of Mrs. Harden be increased from P1,500 to
P15,000; (h) that, pending final decision, Mr. Harden
be ordered to increase the allowance or pension of Mrs.
Harden and their daughter Sarah Elizabeth to P10,000
a month; and (i) that a writ of preliminary injunction
be issued restraining the defendants from disposing of
the assets of the conjugal partnership in fraud of Mrs.
Harden.
By an order dated July 12, 1941, the court authorized
the issuance of said writ, upon the filing of the
corresponding bond. It appears that, pursuant to an
agreement submitted by both parties, and with a view
to avoiding unnecessary embarrassment, restraint or
inconvenience in the financial operations of the
business enterprises affected by said writ of
preliminary injunction, the same was amended by an
order dated July 19, 1941, in the sense that.
". . . without prejudicing in any way the rights of the
parties in this case, a separate bank account be
established in the Chartered Bank of India, Australia
and China, of Manila, and all transactions in connection
with the aforesaid businesses passed through that
account by Mr. Harden or his duly authorized
representative, who at present is Mr. Salumbides,
without the necessity of securing a particular order
from this Court on each occasion; that the present
funds in the Philippine National Bank in the name of
Plaza Lunch and Fred M. Harden be utilized for the
purpose of starting said special bank account in the
Chartered Bank of India, Australia and China; that all
income from the aforesaid businesses be deposited in
this special bank account and no checks be drawn upon
the same, except to pay the necessary overhead and
running expenses including purchases of tobacco,
merchandise, etc., required for the proper operation of
said businesses; that a new set of books be opened by
Mr. Harden or his duly authorized representative
covering all business transactions passed through said
special bank account and the same be opened for
inspection by the plaintiff’s duly authorized
representative.
"The order of injunction of July 12, 1941, is modified
only to the above extent, and in all other respects is
maintained."chanrob1es virtual 1aw library
Subsequently, the Philippines was invaded by the
Japanese and placed under military occupation. Then
came the liberation, in the course of which the records
of this case were destroyed. On October 23, 1946, said
records were reconstituted at the instance of appellee
herein. Thereafter, the proceedings were resumed and,
in due course, the Court of First Instance of Manila
rendered, on or about October 31, 1949, a decision the
dispositive part of which we quote:chanroblesvirtual
1awlibrary
"In view of the foregoing considerations, this court
finds and so holds that — "(a) Fred M. Harden
abandoned his domicile of origin in New Jersey and
established a domicile of choice in Manila, Philippines,
since 1901;
"(b) The matrimonial domicile of Fred M. Harden and
Esperanza P. de Harden was established in Manila,
Philippines, from the date of their marriage on
December 14, 1917;
"(c) Since they did not execute any antenuptial
contract before their marriage, all the properties, real
or personal, acquired by either or both of them on and
after December 14, 1917, up to the present, over and
above the sum of P20,000.00 representing Fred M.
Harden’s capital, are hereby declared conjugal
properties;
"(d) The total amount of P1,944,794.37 representing
deposits in safety deposit boxes in the name of Jose
Salumbides, the selling price of the house in Los
Angeles, California, and the pre-war and post-war
remittances abroad of Fred M. Harden, from which has
already been deducted the sum of P160,000.00
covering payments for deficiency Federal income taxes
and attorney’s fees, both in the tax case and the
present one, is hereby declared chargeable to the
share of defendant Harden and deductible from
whatever participation he may still have in the said
conjugal partnership upon the liquidation thereof, upon
his failure to return and deposit them in the name of
the Plaza Lunch with the Manila branch of the
Chartered Bank of India, Australia and China up to the
time this decision shall become final;
"(e) A conjugal lien be annotated in the original and
owner’s duplicate of Transfer Certificates of Title Nos.
24393, 52436 and 54911 of the Register of Deeds of
Manila and in Original Certificate of Title No. 2292 of
Quezon Province, and on all the certificates of shares
belonging to said conjugal partnership, as well as in
the corresponding books of the companies or
corporations issuing them, whereby it will be made to
appear that any subsequent alienation or encumbrance
of said properties by Fred M. Harden alone or his
representative without the consent of his wife will be
deemed fraudulent and subject to revocation or
cancellation for being in fraud and prejudicial to the
right of Esperanza P. de Harden;
"( f ) Within a period of fifteen (15) days after this
decision shall have become final, Fred M. Harden and
Esperanza P. de Harden are hereby ordered to execute
a document to be approved by this court creating and
express active trust upon the remaining cash assets
and income of the conjugal partnership in the
Philippines, whereby the Philippine Trust Company,
with offices in Manila, will act as trustee, subject to the
right of Fred M. Harden to receive therefrom the sum
of P2,500,00 a month by way of allowance and an
equal amount for the plaintiff as separate support and
maintenance;
"(g) Within thirty (30) days after this decision shall
have become final, Fred M. Harden shall inform the
plaintiff of all the properties and businesses of the
conjugal partnership, be they in the Philippines or
abroad, and render a true and complete accounting of
the earnings and profits thereof;
"(h) The plaintiff is entitled to litis expensae in the
amount of P175,000.00 for services rendered by her
counsel up to the rendition of this judgment, which
Fred M. Harden or the herein receiver is ordered to pay
within a period of fifteen (15) days after this decision
has become final; and
"(i) The writ of preliminary injunction of July 12, 1941,
is hereby declared permanent and the order of
receivership of November 20, 1946, is hereby
maintained, but said auxiliary remedies will be
automatically lifted upon the conclusion of the
annotation of the conjugal lien and the execution of the
deed of trust above mentioned. Without costs.
"IT IS SO ORDERED."chanrob1es virtual 1aw library
The defendants appealed from said decision to this
Court, where the case was docketed as case No. L-
3687. While the appeal was thus pending before us,
herein appellee filed a manifestation and a motion,
both dated February 20, 1952. In said "manifestation",
appellee stated that Mrs. Harden had instructed him,
by letter, to "discontinue all proceedings relative to"
said case, "vacate all orders and judgments rendered
therein, and abandon and nullify all her claims to the
conjugal partnership existing between her and Mr.
Harden", in accordance with several instruments dated
January 29, 1952, and executed without the
knowledge, advise and consent of said appellee, as
counsel for Mrs. Harden, whereby: (1) Mr. and Mrs.
Harden had purportedly agreed to settle their
differences in consideration of the sum of $5,000 paid
by Mr. Harden to Mrs. Harden, and a monthly pension
of P500 to be paid by him to her; (2) Mr. Harden had
created a trust fund of $20,000 from which said
monthly pension of $500 would be taken; and (3) Mr.
and Mrs. Harden had mutually released and forever
discharged each other from all actions, debts, duties,
accounts, demands and claims to the conjugal
partnership, in consideration of the sum of $1. It was
further asserted, in appellee’s "manifestation", that the
purpose of the said instruments, executed by Mr. and
Mrs. Harden, was to defeat the claim of the former for
attorney’s fees, for which reason, he prayed, in his
aforementioned motion, that
"a) Pending the resolution of this motion, the receiver
appointed herein be authorized to continue holding the
properties above mentioned in his custody in order not
to defeat the undersigned’s inchoate lien on them;
"b) A day set aside to receive the evidence of the
undersigned and those of the plaintiff and the
defendant Fred M. Harden, in order to determine the
amount of fees due to the undersigned, by the
appointment of a referee or commissioner for the
reception of such
"c) After due hearing, the undersigned be declared
entitled to the sum of P400,000.00 as his fees for
services rendered in behalf of the plaintiff in this case,
under paragraph 3 of the contract, Annex ‘A’ , and to
that end a charging lien therefore be established upon
the properties above-mentioned;
"d) And the receiver be ordered to pay to the
undersigned the full amount of the fees to which the
latter is found to be entitled."chanrob1es virtual 1aw
library
Counsel for the defendants-appellants, in turn, moved
for the dismissal of the case, to which appellee
objected. Acting upon the issues raised in such motion
for dismissal and in appellee’s motion to establish and
enforce his charging lien, as counsel for Mrs. Harden,
this Court issued on July 22, 1952, a resolution the
pertinent part of which reads:chanroblesvirtual
1awlibrary
"It will be seen from the above that the defendants-
appellants pray for the complete dismissal of the above
entitled case without prejudice to the annotation of the
contingent claim of Attorney Claro M. Recto on the
property under receivership, other than the 368,553
shares of the Balatoc Mining Company which belong to
Fred M. Harden. On the other hand, Attorney Claro M.
Recto agrees to the lifting of the writ of preliminary
injunction, the orders of contempt and commitment,
and all other interlocutory orders which were issued in
the course of this case, with the exception of the
receivership, but objects to the dismissal of the case
on the ground that, since receivership is merely an
auxiliary remedy, the present case should be allowed
to remain pending for the purpose of maintaining the
receivership to safeguard his right to collect the fees
that may be due him.
"Attorney Claro M. Recto prays that a commissioner or
referee be immediately appointed by this Court to
receive evidence in support of his allegations as to his
attorney’s lien and its enforcement. Counsel for the
defendants-appellants does not object to this
proceeding provided that the restrictions set forth by
him be observed. However, this Court does not have
the proper facilities for receiving evidence in order to
determine the amount of the fees claimed by Attorney
Claro M. Recto, and it is deemed advisable that this
matter be determined by the Court of First Instance.
This is specially so considering the opposition to the
claim of Attorney Claro M. Recto filed by Attorney J. W.
Ferrier, Sr. in behalf of Esperanza P. de Harden.
"In view of the foregoing, the above entitled case is
hereby remanded to the court of origin in order to
determine the amount of fees claimed by Attorney
Claro M. Recto in his motion dated February 20, 1952.
"It is understood that, after said fees had been finally
determined and paid, this case will be completely
dismissed as prayed for by the defendants-appellants,
without prejudice to considering the claim of the
receiver for compensation as stated in his urgent
motion dated July 2, 1952. "Pending the determination
of the amount of fees claimed by Attorney Claro M.
Recto, the writ of preliminary injunction, the orders of
contempt and commitment, and all interlocutory orders
which were issued in the course of this case, are
hereby lifted and vacated, and with regard to the
receivership, the same is hereby dissolved, only with
respect to the 368,553 shares of the Balatoc Mining
Company. As to the rest of the properties, the
receivership shall be maintained."chanrob1es virtual
1aw library
In compliance with said resolution, the records of this
case were remanded to the lower court, which, on
September 2, 1952, designated a commissioner to
receive evidence on the amount of the fees collectible
by herein appellee and to report thereon. After due
hearing, said commissioner submitted, on February 6,
1953, a report of about one hundred (100) pages of
the printed record on appeal, setting forth, in detail,
the evidence introduced by both parties, and his
findings of fact, with the following conclusion and
recommendation:chanroblesvirtual 1awlibrary
"Taking into consideration the value of the properties
involved in this litigation, the length of time in which
claimant had handled the same for Esperanza Harden,
the volume and quality of the work performed, the
complicated legal questions involved, the responsibility
assumed by the claimant as counsel, his reputation in
the bar, the difficulties encountered by him while
handling the same in which he had to work hard every
inch of the way because of the stiff oppositions filed by
adverse counsel, the diligence he employed not only in
the preservation of the records in his possession during
the days of enemy occupation but also in the
protection of the interests of Esperanza Harden, his
successful handling of said case and those cases
growing out of it which reached the Supreme Court,
and the extra services he rendered in her behalf in the
tax and other court cases, the undersigned
Commissioner concludes that claimant is entitled to the
full amount of 20% of Esperanza Harden’s share of the
conjugal properties, as provided in paragraph 3 of the
Contract of Professional Services, Exhibit JJJ.
"WHEREFORE, the undersigned Commissioner
respectfully recommends that Atty. Claro M. Recto be
paid the equivalent amount of 20% of Esperanza P. de
Harden’s share of the conjugal properties or the sum of
P369,410.04 as his contingent fee for services
rendered in her behalf."chanrob1es virtual 1aw library
After appropriate proceedings, the lower court
rendered a decision dated April 30, 1953, adopting
substantially said report of the commissioner, but
increasing the contingent fee of appellee herein from
P369,410.04, the sum recommended in the report, to
P384,110.97. Hence, this appeal taken by Mr. and Mrs.
Harden.
The first question for determination therein is the
validity of the above-quoted contract of services, which
the appellants assail as void, mainly, upon the ground:
(1) that Mrs. Harden cannot bind the conjugal
partnership without her husband’s consent; (2) that
Article 1491 of the Civil Code of the Philippines in effect
prohibits contingent fees; (3) that the contract in
question has for its purpose to secure a decree of
divorce, allegedly in violation of Articles 1305, 1352
and 1409 of the Civil Code of the Philippines; and (4)
that the terms of said contract are harsh, inequitable
and oppressive.
The first objection has no foundation in fact, for the
contract in dispute does not seek to bind the conjugal
partnership. By virtue of said contract, Mrs. Harden
merely bound herself — or assumed the personal
obligation — to pay, by way of contingent fees, 20% of
her share in said partnership. The contract neither
gives, nor purports to give, to the appellee any right
whatsoever, personal or real, in and to her aforesaid
share. The amount thereof is simply a basis for the
computation of said fees.
For the same reason, the second objection is, likewise,
untenable. Moreover, it has already been held that
contingent fees are not prohibited in the Philippines
and are impliedly sanctioned by our Cannons (No. 13)
of Professional Ethics. (see, also, Ulanday v. Manila
Railroad Co., 45 Phil., 540, 554.) Such is, likewise, the
rule in the United States (Legal Ethics by Henry S.
Drinker, p. 176).
". . . in the United States, the great weight of authority
recognizes the validity of contracts for contingent fees,
provided such contracts are not in contravention of
public policy, and it is only when the attorney has
taken an unfair or unreasonable advantage of his client
that such a claim is condemned." (See 5 Am. Jur. 359
et seq.; Ballentine, Law Dictionary, 2nd ed., p. 276.)
Needless to say, there is absolutely nothing in the
records before us to show that appellee herein had, in
any manner, taken an unfair or unreasonable
advantage of his client Mrs. Harden.
The third objection is not borne out, either by the
language of the contract between them, or by the
intent of the parties thereto. Its purpose was not to
secure a divorce, or to facilitate or promote the
procurement of a divorce. It merely sought to protect
the interest of Mrs. Harden in the conjugal partnership,
during the pendency of a divorce suit she intended to
file in the United States. What is more, inasmuch as
Mr. and Mrs. Harden are admittedly citizens of the
United States, their status and the dissolution thereof
are governed — pursuant to Article 9 of the Civil Code
of Spain (which was in force in the Philippines at the
time of the execution of the contract in question) and
Article 15 of the Civil Code of the Philippines — by the
laws of the United States, which sanction divorce. In
short, the contract of services, between Mrs. Harden
and herein appellee, is not contrary to law, morals,
good customs, public order or public policy.
The last objection is based upon principles of equity,
but, pursuant thereto, one who seeks equity must
come with clean hands (Bastida, et al., v. Dy Buncio &
Co., 93 Phil., 195; 30 C. J. S. 475), and appellants
have not done so, for the circumstances surrounding
the case show, to our satisfaction, that their
aforementioned agreements, ostensibly for the
settlement of the differences between husband and
wife, were made for the purpose of circumventing or
defeating the rights of herein appellee, under his
above-quoted contract of services with Mrs. Harden.
Indeed, having secured a judgment in her favor,
acknowledging her rights to the assets of the conjugal
partnership, which turned out to be worth almost
P4,000,000 in addition to litis expensae in the sum of
P175,000, it is inconceivable that Mrs. Harden would
have waived such rights, as well as the benefits of all
orders and judgments in her favor, in consideration of
the paltry sum of $5,000 allegedly paid to her by Mr.
Harden and the additional sum of $20,000 to be paid
by him in installments, at the rate of $500 a month. In
fact, no explanation has been given for this most
unusual avowed settlement between Mr. and Mrs.
Harden. One can not even consider the possibility of a
reconciliation between the spouses, the same being
inconsistent with the monetary consideration for said
alleged settlement. What is more, the records show
that the relations between said spouses — which were
bad indeed, not only in July, 1941, when Mrs. Harden
engaged the services of the appellee, but, even,
before, for Mr. and Mrs. Harden were separated since
1938 — had worsened considerably thereafter, as
evidence by an action for divorce filed by Mr. Harden in
New Jersey, in July 1948, upon the ground of repeated
acts of infidelity allegedly committed by Mrs. Harden in
1940 and 1941.
Again, it appears that appellee had rendered, under
the contract in question, the following services, for the
benefit of Mrs. Harden:chanroblesvirtual 1awlibrary
1. He succeeded in defeating defendants’ motion for
the dissolution of the writ of preliminary injunction,
issued by the Court on July 12, 1941, and amended on
July 19, 1941.
2. On November 12, 1946, appellee moved for the
appointment of a receiver, upon the ground that,
despite said writ of preliminary injunction, the
defendants had been disposing of the properties of the
conjugal partnership for the purpose of defrauding Mrs.
Harden. After due hearing, the court, by an order
dated November 20, 1946, directed the appointment of
Abelardo Perez as receiver of said properties, upon the
filing of a P10,000 bond. Defendants asked, on
February 13, 1947, that the receivership be
suspended, or else, that they be allowed to file a bond
for the discharge of the receivership. Appellee replied
objecting thereto, unless the defendants posted a
P4,000,000 bond. Subsequently or on March 5, 1947,
the defendants sought a reconsideration of the order of
November 20, 1946, and the discharge of the receiver.
By an order dated March 21, 1947, the Court
authorized said discharged upon the filing, by the
defendants, of a bond in the sum of P500,000,
provided that Mr. Harden "should bring back all the
368,553 shares of the Balatoc Mining Co., in his name
to the Philippines for deposit with the Clerk of Court, or
with the Chartered Bank of India, Australia and China,
at Manila . . .
"3. On motion of the appellee dated March 4, 1947, the
Court, by an order dated April 5, 1947, directed Mr.
Harden to remit to Mrs. Harden the sum of $2,500, to
be charged against her litis expensae. Upon similar
motion, filed by appellee on or about April 26, 1947,
the Court ordered Mr. Harden, on May 13, 1947, to
furnish Mrs. Harden the sum of $5,000, under the
same conditions.
4. On June 21, 1947, the defendants instituted Civil
Case No. G. R. No. L-1499 of this Court, entitled "Fred
M. Harden and Jose Salumbides v. Emilio Peña,
Abelardo Perez and Esperanza P. Harden" for the
purpose of annulling and setting aside, by writ
of certiorari, the aforementioned orders of the lower
court dated July 12, 1941, November 20, 1946, and
April 5 and May 13, 1947, and to restrain, in the
meantime, the enforcement thereof. After appropriate
proceedings, in the course of which appellee appeared
as counsel for Mrs. Harden, and like counsel for the
petitioners therein, filed several lengthy, detailed
pleadings and memoranda, decision was rendered on
November 21, 1950, denying the writ
of certiorari prayed for.
5. On or about September 9, 1947, appellee filed a
motion alleging that despite the writ of preliminary
injunction above mentioned, the defendants had,
fraudulently and without judicial consent, remitted
abroad several sums of money aggregating
P1,000,608.66, and praying that Mr. Harden be
ordered to return this sum to the Philippines, within a
stated period, said sum to be deposited with the
account of the Plaza Lunch at the Manila Branch of the
Chartered Bank of India, Australia and China. Mr.
Harden objected to said motion. Appellee filed a
rejoinder, to which Mr. Harden replied. Appellee filed a
rejoinder to the rejoinder. On October 7, 1947, the
Court granted appellee’s motion. Mr. Harden sought a
reconsideration, which was opposed by the appellee on
October 27, 1947, and denied by an order dated
November 13, 1947. Mr. Harden moved, on November
18, 1947, for the suspension of this order, which was
immediately objected to by the appellee and then
denied by the Court.
6. Inasmuch as said order of November 13, 1947 had
not been complied with, appellee filed on November
27, 1947, a motion praying that Mr. Harden be
declared in contempt of court and punished
accordingly. Meanwhile, or on November 24, 1947, Mr.
Harden had instituted case G. R. No. L-1816 of this
Court against Hon. Emilio Peña, as Judge of the Court
of First Instance of Manila, and Mrs. Harden. In the
petition therein filed, Mr. Harden applied for a writ
of certiorari annulling said orders of Judge Peña of
October 7 and November 13, 1947, and prayed that,
pending disposition of the case, a writ of preliminary
injunction be issued restraining the respondents
therein from enforcing said orders, particularly through
contempt proceedings. Hence, the lower court deferred
action on the aforementioned motion of November 27,
1947. After due hearing, this Court, in a resolution
dated February 12, 1948, refused to issue the writ of
preliminary injunction prayed for. Subsequently, or on
November 21, 1950, decision was rendered denying
the petition for a writ of certiorari.
7. Soon after the issuance of our resolution in said case
G. R. No. 1816, dated February 12, 1948, or to be
exact on March 27, 1948, the lower court issued an
order directing Mr. Harden to comply, within five (5)
days from notice, with the order of October 7, 1947.
On April 6, 1948, appellee filed with the lower court the
corresponding formal charges against Mr. Harden for
contempt of court. After due hearing, Mr. Harden was,
by an order of April 28, 1948, found guilty as charged
and ordered confined "until he complies with the
aforementioned orders" of October 7, 1947 and March
27, 1948. On motion of Mr. Harden, said order of April
28, 1948 was suspended until May 4, 1948, on which
date he was arrested and placed in confinement at the
New Bilibid Prison, in Muntinglupa, Rizal. On July 10,
1948, he filed with this Court a petition for a writ
of habeas corpus against the Director of Prisons, (G. R.
No. L-2349, entitled "Fred M. Harden v. The Director of
Prisons"), which, in due course was denied in a
decision promulgated on October 22, 1948.
8. During the military occupation of the Philippines by
the Japanese, the appellee made representations with
the Japanese Government to prevent the
commandeering of a business establishment belonging
to Mr. and Mrs. Harden. Moreover, he succeeded in
persuading the Japanese to refrain from interning Mrs.
Harden and her daughter and to allow her to withdraw,
from the former’s deposit in a local bank, from P200 to
P250 a month, for their subsistence. He, likewise, lent
her money to meet her needs and spent the sum of
P55,000 in the preservation of the records and papers
pertaining to the business and other properties of the
conjugal partnership of Mr. and Mrs. Harden.
9. Appellee assisted, also, the receiver, as his counsel
and, in such capacity, took all steps essential for the
proper discharge of the duties of the former. Among
other things, appellee sought and obtained judicial
authority for some important acts of administration of,
and disposition by, the receiver. He (appellee) secured
judicial intervention for the protection and preservation
of the assets of the conjugal partnership, including
orders for the delivery of certificates of stock, the
return thereof and/or its deposit with the clerk of court.
He, likewise, represented the receiver in seeking war
damage payments.
10. In civil case No. 6222 of the Court of First Instance
of Manila, entitled "Francisco Dalupan v. Fred M.
Harden" for the recovery of P113,837.17, it was
decided, through appellee’s intervention, that the
conjugal assets would bear the payment of P22,767.43
only, the balance to be chargeable exclusively against
Mr. Harden’s share of the conjugal partnership.
11. Appellee instituted civil case No. 6940 of the Court
of First Instance of Manila, entitled "Abelardo Perez v.
Chartered Bank of India, Australia and China and Fred
M. Harden", for the recovery of P1,000,608.66 and the
return of stock certificates of the Balatoc Mining Co.,
which had been sent abroad.
12. He (appellee) represented Mrs. Harden in
connection with a million-peso federal tax case against
Mr. and Mrs. Harden.
13. Appellee successfully blocked Mr. Harden’s
attempts to withdraw: (1) $53,000 and forward the
same to the Collector of Internal Revenue of Los
Angeles, California; (2) $50,000.00, allegedly to defray
expenses in resisting a new tax assessment against
him in the United States; and (3) P65,000 for his
expenses.
Then too, the conjugal partnership had varried and
extensive business interests and its assets were worth
almost P4,000,000. The pleadings, motions,
oppositions, rejoinders, and memoranda filed, and the
evidence introduced, in the aforementioned cases — in
which appellee was pitted against one of the most
experienced and able members of the Philippine Bar —
were numerous, extensive and exhaustive. For
instance, the record on appeal in one of those cases,
namely, G. R. No. L-3687, consisted of 966 pages.
In short, considering the character of the services
rendered by the appellee, the nature and importance of
the issues in said litigations, the amount of labor, time
(1941 to 1952) and trouble involved therein, the skill
displayed in connection with said cases, the value of
the property affected by the controversy, the
professional character and standing of the appellee,
the risks assumed and the results obtained, we are of
the opinion, and so hold, that the contract of services
in question is neither harsh nor oppressive or
inequitable.
Under their second assignment of error, appellants
maintain that:chanroblesvirtual 1awlibrary
"The lower court erred in failing to find as a fact borne
out by the evidence that the legal services of Attorney
Claro M. Recto to Mrs. Esperanza P. de Harden,
payment, for which is sought by him in this case, have
already been paid by his immediate execution pending
appeal of the decision in Civil Case No. CFI-R-59634
(SC-G.R. No. L- 3687), wherein he collected the sum of
P176,000.00 for all such legal services."chanrob1es
virtual 1aw library
Said decision, however, states clearly that the
aforementioned sum of P175,000 represents litis
expensae, and the contract between the appellee and
Mrs. Harden explicitly declares that said litis expensae
shall be "in addition to" appellee’s share of 25% of the
increase in the allowance of Mrs. Harden and his
attorney’s fees of 20% of her share in the conjugal
partnership. The second assignment of error is,
therefore, devoid of merit.
Appellants, further contend, that:chanroblesvirtual
1awlibrary
3. The lower court erred in holding that the inchoate
share of the wife, Esperanza P. de Harden, in the
undissolved and unliquidated conjugal partnership
properties of the Harden spouses, is capable of certain
valuation before such dissolution and liquidation, and
summarily assessing the value of Mrs. Harden’s share
in such conjugal properties without proper evidence.
4. "The lower court erred in awarding 20% of such
inchoate share to Attorney Claro M. Recto from Mrs.
Harden’s interests in the Harden conjugal properties,
summarily assessing such 20% inchoate share as of a
value of P384,110.97, and ordering the payment of
said sum to Attorney Recto in pursuance of the
provisions of paragraph 3 of the Contract of
Professional Services."chanrob1es virtual 1aw library
Appellants’ arguments in support thereof may be
summarized as follows: The contract of services in
question provides that appellee’s contingent fees shall
be 20% of the share of Mrs. Harden in the conjugal
partnership. Pursuant to law, the share of Mrs. Harden
shall be determined upon the liquidation of said
partnership, which has not taken place, as yet. What is
more, it cannot be effected until the dissolution of the
marriage relation between Mr. and Mrs. Harden.
Inasmuch as this relation subsists, it follows that the
amount of attorney’s fees due to appellee herein
should not have been determined in the decision
appealed from.
This line of argument overlooks the fact that said
contract of services was made, principally, in
contemplation of a suit for divorce that, according to
Mrs. Harden, she intended to file before a competent
court in California, "and of the liquidation of the
conjugal partnership between" her and Mr. Harden.
Had she filed said action for divorce and secured a
decree of divorce, said conjugal partnership would
have been dissolved and then liquidated, and the share
of Mrs. Harden therein would have been fixed.
However, this cannot take place, either now, or in the
foreseeable future, owing to the aforementioned
agreements between Mr. and Mrs. Harden, which were
made for the evident purpose of defeating appellee’s
claim for attorney’s fees. In other words, the
occurrence, within the time contemplated by the
parties — bearing in mind the nature of, and the
circumstances under which they entered into, said
contract of services — of the event upon which the
amount of said fees depended, was rendered
impossible by Mrs. Harden. Hence, whether such event
be regarded as a condition or as a period, she may not
insist upon its occurrence, prior to the enforcement of
the rights of the herein appellee, for "the condition
shall be deemed fulfilled when the obligor voluntarily
prevents its fulfillment" (Art. 1186, Civil Code) and
"the debtor shall lose every right to make use of the
period" when he "violates any undertaking, in
consideration of which the creditor agreed to the
period." (Art. 1198, Civil Code.)
It should be noted, also, that the compensation agreed
upon for appellee’s services, consists of three (3)
parts, namely: (a) 25% of the increase in the
allowance of Mrs. Harden; (b) litis expensae; and (c)
20% of her share in the conjugal partnership. The first
part was dealt with in the first paragraph of their
contract of services. The second and third parts were
the object of the second and third paragraphs,
respectively. The first paragraph limited the rights of
appellee thereunder to two (2) years, in the event of
termination of the case or amicable settlement thereof
within two (2) years from the filing of the complaint.
No such limitation appears in the second and third
paragraphs of said contract. Hence, the same were
intended by the parties to be fully operative under any
and all conditions.

It may not be amiss to add that the value of the

properties involved has been assessed, not summarily,
but after due notice and full dress hearing, in the
course of which both parties introduced testimonial and
documentary evidence. Appellants presented Exhibits 1
to 58, whereas those of the appellee were so numerous
that, having begun with Exhibit A, his last piece of
documentary evidence was marked Exhibit 26 Y’s. The
transcript of the hearing, which lasted ten (10) days,
covers over 220 pages.

The other assignments of error made by appellants

herein are mere corollaries of those already disposed
of, and, hence, no further discussion thereof is
necessary.

In conclusion, it appears that the assets of the conjugal

partnership between Mr. and Mrs. Harden are
reasonably valued at P3,841,109.70. One-half (1/2)
thereof, representing the share of Mrs. Harden, is
therefore, worth P1,920,554.85. Twenty percentum
(20%) of this sum is P384,110.97, which is the
contingent fee due to the appellee, apart from the litis
expensae already paid to him. Inasmuch as the
appellee has collected, also, the sum of P80,000.00, on
account of said contingent fees, there results in his
favor a balance of P304,110.97.

Subject to this qualification, the decision appealed from

is hereby affirmed, therefore, with costs against the
appellants. So ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Bautista

Angelo, Labrador, Reyes, J. B. L., Endencia and
Felix, JJ., concur.
.R. No. L-7487 December 29, 1913
CONSTANZA YAÑEZ DE BARNUEVO, plaintiff and appellant,
vs.
GABRIEL FUSTER, defendant and appellant.
O'Brien & DeWitt for plaintiff.
Chicote & Miranda for defendant.
JOHNSON, J.:
On the 7th of February, 1875, Gabriel Fuster and Constanza
Yañez were joined in a Catholic or canonical marriage in the
city of Malaga, Spain. In February of 1892, Gabriel Fuster
came to the Philippine Islands, settled, and acquired real and
personal property. Toward the middle of 1896, Constanza
Yañez came to Manila, where her husband was residing, and
here lived with him in conjugal relations until the month of April,
1899. On the 4th day of that month and year they made an
agreement, in a public document, by which they "resolved to
separate and live apart, both consenting to such separation,
and by virtue thereof the husband authorized the wife to move
to Spain, there to reside in such place as the said lady
pleases." (B. of E., p. 13.) In the same document, the husband
undertook to send his wife the sum of 300 pesetas monthly for
her support, payable in Madrid, Spain, from the month of June
of the said year 1899. The husband complied with this
obligation until August, 1899, after which time he ceased to
make further payments.
In the beginning of March, 1909, the wife returned to the
Philippines, but the husband had absented himself therefrom in
the early days of February of the same year. On the 11th of
March, 1909, the wife commenced divorce proceedings against
her husband, alleging as cause of action the adultery
committed by him in or about the year 1899 with a certain
woman that she named in the complaint and with whom he had
lived and cohabited and by whom he had had two children. She
prayed that she be granted a decree of divorce; that the court
order the separation of the properties of the plaintiff and the
defendant, to date from the date of the said decree; that the
conjugal society be therefore liquidated, and after the amount
of the conjugal property had been determined, that one-half
thereof be adjudicated to her; furthermore, as to the amount of
pension owing for her support but not paid to her, that the
defendant be ordered to pay her the sum of 36,000
Spanish pesetas, that is, 7,220 Spanish dollars, which, reduced
to Philippine currency at the rate of exchange on the date of
the complaint, amounted to P12,959.90.
The defendant denied that either he or his wife was a resident
of the city of Manila, as they had their domicile in Barcelona,
Spain, and he alleged that both of them were natives and
subjects of Spain. He admitted that he was married to
Constanza Yañez; he also admitted having executed the
document of the 4th of April, 1899, in which he had undertaken
to make an allowance for the support of his wife in Madrid, but
he denied the other paragraphs of the complaint. As a special
defense with regard to the allowance, he alleged: "That in or
about the month of May, 1900, he wrote to his wife, the plaintiff,
instructing her to return to Manila, with a view of joining her
husband and being maintained by him in his own house; that
the communication was ignored by the plaintiff, who against the
will of the defendant, continued to live separately from him that
from the year 1901, the defendant did not know her address;
that since 1900, the plaintiff has lived in comfort and has known
where her husband resided; that the plaintiff, during all of the
time referred to, in addition to dispossing of valuable property
belonging to her husband, possessed and still possesses
property of her own, acquired by her, in greater amount than
that owned by her husband; and that in any case the action has
prescribed by operation of law."(B. of E., pp. 7 and 8.) As to the
divorce, he admits that he had by the plaintiff two children that
have died. He expressly denied the contents of paragraph 5 of
the complaint, relating to the charge of adultery and also those
of paragraphs 6, 7, and 8, concerning the possession of real
and personal property of the conjugal partnership, the
statement of their amount, and their qualification as being all
conjugal property. As a special defense, he alleged that prior to
the year 1899 he conferred powers of attorney upon the
plaintiff to administer and collect property and credits pertaining
to him to the value of about 200,000 pesos; that the plaintiff
accepted and exercised the said power of attorney, attached
the property and collected the credits without ever having
rendered any account of them. As a special preferred defense,
he alleged that neither the trial court nor any other court in the
Philippine Islands has jurisdiction over the subject matter of the
complaint, because, as to the allowance for support, since
neither the plaintiff nor the defendant are residents of Manila,
or of any other place in the Philippine Islands, the agreement
upon the subject was neither celebrated, nor was it to be
fulfilled, in the Philippine Islands; and as to the divorce,
because the action therefore ought to be tried by the
ecclesiastical courts. In conclusion, he prayed that the court
find: That the court was without jurisdiction over the two causes
of action; that even if it had jurisdiction, it could not order the
payment of the sum claimed as arrears of alimony; that, after
all, the action with regard to this cause of action has
prescribed; and as to the prayer for a decree of divorce, the
defendant should be acquitted, while on the other hand the
plaintiff should be required to render to the defendant an
accounting, supported by proofs, of her operations as his
attorney and administratrix of his property in Spain.
In deciding the case, the Court of First Instance of the city of
Manila held itself to have jurisdiction, decreed the suspension
of life in common between the plaintiff and defendant, ordered
the latter to pay the former P5,010.17, directed that the
communal property be divided between the parties, with costs
against the defendant, and in event that the parties could not
agree to the division, it was to be effected by commissioners
according to law.
Both parties appealed from this judgment, but notwithstanding
the appeal, the partition of the property, by means of
commissioners, was proceeded with. These latter, after various
vicissitudes, rendered their report and account of the partition
to the court, who then rendered final judgment, from which,
also, both parties appealed.
I. DEFENDANT'S APPEAL.
The first error assigned is the utter lack of jurisdiction of the trial
court and of all other courts of the Islands to try the case, either
with regard to the fulfillment of the contract to furnish alimony,
or to decree a divorce or suspension of life in common between
the spouses: lack of jurisdiction over the persons and over the
subject matter of the litigation; and over the persons of the
contending parties, because neither of the spouses was a
resident of the Philippines on the date of the complaint.
The lower court did not commit this error attributed to him. The
defendant had not proved that he had elsewhere a legal
domicile other than that which he manifestly had in the
Philippines during the seventeen years preceding the date of
the complaint. On the contrary, it plainly appears, without proof
to the contrary, that during this not inconsiderable period,
extending from the year 1892 until a month prior to the arrival
of his wife in the Philippines in March, 1909, he had constantly
resided in the said Islands, had kept open house, and had
acquired in the city of Manila quite a little real property which is
now the object of the division of the conjugal society. It is also
plainly shown, without proof to the contrary, that his wife
resided in this city of Manila from the middle of 1896 until April,
1899, at which time she was permitted by him to change her
residence. It is affirmed by the defendant in point five of his
answer to the complaint, that in May, 1900, he sent a
letter instructing the plaintiff to return to Manila to live with her
husband and to be supported by him in his house, but that the
plaintiff, against the will of the defendant, continued to live part
from him. (B. of E., p. 7.) It is also affirmed in the said answer,
that during all of the time referred to in the complaint, and
especially since 1900, the plaintiff knew where her
husband resided. (B. of E., p. 7.) It is also very evident that the
contract, by virtue of which he authorized his wife to move to
Spain and reside there in such place as was agreeable to her,
was executed in these Islands, "in the city of Manila on the 4th
of April, 1889," as is to be seen in the heading of the document.
(B. of E., p. 12.) Finally, at page 11 of his brief, he says that the
record shows him to be a Spanish subject, inscribed in the
consulate of his nation, and cities article 26 of the Civil Code,
the Treaty of Paris and the Philippine Bill.
Granting these facts, there can be no doubt that the defendant,
although a Spanish subject, was a resident of these Islands.
Article 26 of the Civil Code that he cites itself provides that
"Spaniards who change their domicile to a foreign country,
where they may be considered as natives without other
conditions than that of residents therein, shall be required, in
order to preserve the Spanish nationality, to state that such is
their wish before the Spanish diplomatic or consular agent, who
must record them in the registry of Spanish residents, as well
as their spouses, should they be married, and any children they
may have." From this provision, which is the exclusive and
irrefutable law governing the defendant, we are to conclude
that the domicile of the defendant and the plaintiff is fully
proven, irrespective of the Treaty of Paris. Without this
supposition of having acquired his domicile and residence in
these Islands, he could not have required his wife to return to
live with him therein because this requirement could only be
based on articles 58 of the Civil Code of Spain, according to
which the wife is obliged to follow her husband wherever he
wishes to establish his residence, or on article 48 of chapter 5
of the Marriage Law in force in the Philippines, which imposes
upon the wife the duty of obeying her husband, living in his
company, or of following him to wherever he transfers his
domicile or residence. And just because he was absent for a
month before his wife returned to the Philippines, he cannot be
understood to have surrendered his habitual domicile of more
than seventeen years, without having established any other
afterwards, and without making any declaration in legal form,
before he absented himself, of it being his intention to change
his domicile, while at the same time he retains here his house,
real property and all manner of means of subsistence. Section
377 of the Code of Civil Procedure leaves to the election of the
plaintiff the bringing of a personal action like the one at bar
either in the place where the defendant may reside or be
found, or in that where the plaintiff resides.
The litigating spouses have gained not only domicile (domicilio)
but also residence (vecindad) in Manila. In this litigation the
defendant claims that, born as he says in Mallorca, in the
Balearic Islands, he is not subject, in his marriage, to the rules
governing conjugal property, that are in force in the territories
of Spain that are governed by the common law of Castillo (as
the Philippines in their day), because they are opposed to the
Foral Law in force in the said Islands and which is respected by
the Civil Code. Even if this defense could be sustained herein,
paragraph 2 of article 15 of the said Civil Code would be
applicable. It provides: "For the purposes of this article,
residence (vecindad) will be acquired: By residence of ten
years in common law provinces or territories, unless before the
termination of that time he manifests his will to the contrary; or
by a residence of two years, if the interested person declares
this to be his will . . . In any case, the wife will follow the
condition of her husband. . . ." On no occasion had the
defendant manifested his will to the contrary, not even as he
was leaving, after a residence of seventeen years, a month The authority of jurisdictional power of courts to decree a
before the return of his wife to these Islands. On the contrary, divorce is not comprised within the personal status of the
when he inscribed himself in the Spanish consulate, he husband and wife, simply because the whole theory of the
declared his intention of continuing to reside in the Islands as a statutes and of the rights which belong to everyone does not go
Spaniard and not as a Mallorquin, subject as such to the beyond the sphere of private law, and the authority and
common law of Spain. jurisdiction of the courts are not a matter of the private law of
persons, but of the public or political law of the nation. "The
jurisdiction of courts and other questions relating to procedure
In an endeavor to demonstrate the lack of jurisdiction of the
are considered to be of a public nature and consequently are
courts of these Islands over the subject matter of the complaint
generally submitted to the territorial principle. . . . All persons
that is to try an action for divorce between two Catholic
that have to demand justice in a case in which foreigners
Spaniards, he alleges in his appeal: That both litigants are
intervene, since they can gain nothing by a simple declaration,
Spanish subjects and that they contracted a Catholic marriage;
should endeavor to apply to the tribunales of the state which
that in accordance with article 9 of the Civil Code of Spain (the
have coercive means (property situated in the territory) to
same as that of these Islands) the laws relating to family rights
enforce any decision they may render. Otherwise, one would
and duties, or to the status, condition and legal capacity of
expose himself in the suit to making useless expenditures
persons, govern Spaniards although they reside in a foreign
which, although he won his case, would not contribute to
country; that, in consequence, "all questions of a civil nature,
secure his rights because of the court's lack of means to
such as those dealing with the validity or nullity of the
enforce them." (Torres Campos, "Elementos de Derecho
matrimonial bond, the domicile of the husband and wife, their
International Privado," p. 108.) "Justice," says the same
support, as between them, the separation of their properties,
professor, "is a principle superior to that of nations, and it
the rules governing property, marital authority, division of
should therefore be administered without taking into any
conjugal property, the classification of their property, legal
account whatsoever the state to which the litigants belong. . . .
causes for divorce, the extent of the latter, the AUTHORITY
In order to foster their relations and develop their commerce, all
to decree it, and, in general, the civil effects of marriage and
civilized nations are interested in doing justice, not alone to
divorce upon the person and properties of the spouses, are
their own people, but to those foreigners who contract within
questions that are governed exclusively by the national law of
the country or outside of it juridical ties which in some manner
the husband and wife, and, in our case, by the Spanish law by
effect their sovereignty. (Ibid, p. 107.) Might its courts, in some
virtue of article 9 as above set out." (Brief, p. 12.) The appellant
cases, in suits between foreigners residing in its territory, apply
and defendant continues his argument, saying: That by the
the personal law of the parties, but abdicate their jurisdiction,
express provision of article 80 of the Civil Code of Spain,
refrain from administering justice because the personal law of
"jurisdiction in actions for divorce and nullification of canonical
the foreigner gave the jurisdiction of the given case to some
marriages lies with ecclesiastical courts," while that of civil
court that is not the territorial one of the nation? This has never
tribunals is limited to civil marriages; that this being so, the
yet been claimed in any of the theories regarding the conflict of
action for divorce brought by the plaintiff in the cause does not
laws arising out of questions of nationality and domicile; it
fall within the jurisdiction of the civil courts, according to his
would be equivalent to recognizing extraterritorial law in favor
own law of persons, because these courts ought to apply the
of private persons. The provisions of article 80 of the Civil Law
Spanish law in accordance with the said article 9 of the Civil
of Spain is only binding within the dominions of Spain. It does
Cod of Spain, and this Spanish law grants the jurisdiction over
not accompany the persons of the Spanish subject wherever
the present cause to the ecclesiastical courts, in the place of
he may go. He could not successfully invoke it if he resided in
which no tribunal of these Islands con subrogate itself. Says
Japan, in China, in Hongkong or in any other territory not
this appellant: "If a law of a foreign country were of rigorous
subject to the dominion of Spain. Foreign Catholics domiciled
application in a given case, a North American tribunal would
in Spain, subject to the ecclesiastical courts in actions for
have no jurisdiction upon an ecclesiastical court and therefore
divorce according to the said article 80 of the Civil Code, could
the North American tribunal in applying it would have to
not allege lack of jurisdiction by invoking, as the law of their
exercise a faculty which that law reserved to the ecclesiastical
personal statute, a law of their nation which gives jurisdiction in
court." (Brief, pp. 13, 14, and 15.)
such a case to territorial courts, or to a certain court within or
without the territory of their nation.1awphi1.net
Unless we take the question itself for granted, the foregoing
reasoning cannot be upheld. The question is precisely whether
It is a question that has already been settled in two decisions of
the courts of the Philippines are competent or have jurisdiction
the Supreme Court (Benedicto vs. De la Rama, 3 Phil. Rep.,
to decree the divorce now on appeal, and it is taken for granted
34, and Ibañez vs. Ortiz, 5 Phil. Rep., 325).
that the power to decree it is one of the rights included in the
personal statute, but appellant does not prove by any law or
legal doctrine whatever that the personal statute of a foreigner In the present action for divorce the Court of First Instance of
carries with it, to whether he transfers his domicile, the the city of Manila did not lack jurisdiction over the persons of
authority established by the law of his nation to decree his the litigants, for, although Spanish Catholic subjects, they were
divorce, which was what he had to demonstrate. residents of this city and had their domicile herein.
The Courts of First Instance of the Philippine Islands have the
power and jurisdiction to try actions for divorce. That of the city
of Manila did not lack jurisdiction by reason of the subject
matter of the litigation.
The second assignment of error is directed against the finding
of the court that the defendant had committed adultery with a
certain woman in this city from the year 1899 until 1909; the
third was against the finding that the adultery was
accompanied by public scandal and injured the dignity of his
wife; and the fourth for having decreed the divorce, suspension
of the married life, and the separation of the properties of the
parties.
The evidence relating to the foregoing not being sent up on
appeal, we are unable to review it, so we accept the findings of
the trial court.
There is a point of law regarding the claim that the adultery,
even though it were proven would not be a cause for divorce,
because no public scandal resulted therefrom nor was there
contempt displayed for the wife. (Appellant's brief, p. 26.) The
facts must be accepted by this tribunal as they were found by
the trial court, since the evidence cannot be reviewed;
moreover, the appellee affirms the contrary and maintains that
it is a proven fact, public and notorious, an assertion that the
trial court must have found to be proven. (Appellee's brief, p.
5.) In law, it is not necessary that adultery, to be a cause for
divorce, should be accompanied by public scandal and
contempt for the wife. There is no law that requires this. Law 2,
title 9, of the Fourth Partida does not require it.
The fifth and sixth assignments of error are directed against the
finding of the trial court that there exists conjugal property, a
finding that the appellant maintains is without foundation, and
that which holds that the property in the hands of the receiver
(that sought to be divided) is conjugal property, a conclusion
which the appellant claims to be contrary to the law which
should be applied to the case and according to which, as
alleged in the tenth assignment of error, the whole of the
property should be adjudicated to the defendant as being
exclusively his.
Facts: The appellant affirms that he is a native of Mallorca in
the Balearic Islands and that is also the condition of his wife,
the plaintiff. Law: That although the rule of the Civil Code is that
which legally governs conjugal property, yet at the same time it
admits, as an exception, the laws, usages, and customs of the
Foral Law, according to which, as applied in the Balearic
Islands, the law of the family is that of the division of property
and that of conjugal property is not known; so that the property
pertains exclusively to the spouse who, by whatever title, has
acquired it. In support of the facts, appellant cites pages 27 to
37 and 39 to 41 in the bill of exceptions; and of the law, the
doctrinal authority of Manresa, Gutierrez, and Alcubilla.
The citation from pages 39 to 41 of the bill of exceptions, the The plaintiff acknowledges that there is no petition or prayer in
only pertinent one, is but an affidavit filed by the defendant in her complaint as to this cause of action, but she considers that
which, under oath, he himself testifies as to the Foral Law in in equity such an omission can be supplied.
the Balearic Islands. The adverse party says with regard to
this: "This affidavit was never presented in proof, was never
Paragraph 3 of section 89 (90) of the Code of Civil Procedure
received by the trial judge, and cannot seriously be considered
determines one of the requisites of the complaint: "A demand
as an effort to establish the law of a foreign jurisdiction.
for the relief which the plaintiff claims." The section goes on to
Sections 300, 301 and 302 of the Code of Civil Procedure, now
say: "If the recovery of money or damages is demanded, the
in force in these islands, indicate the method by which the law
amount demanded must be stated. If special relief, such as an
of a foreign country may be proved. We maintain that the
order for the special restitution of property, etc., the ground of
affidavit of a person not versed in the law, which was never
demanding such relief must be stated and the special relief
submitted as proof, never received by the trial court, and which
prayed for. But there may be added to the statement of the
has never been subjected to any cross-examination, is not a
specific relief demanded a general prayer for such further or
means of proving a foreign law on which the defendant relies."
other relief as shall be deemed equitable."
(Brief, pp. 6 and 7.)
In the complaint of the case at bar the provisions of paragraph
Furthermore, on the supposition that the defendant could
2 of the said section 89 [90] are complied with by setting forth
invoke the Foral Law as the law of his personal status in the
in its paragraphs 4 and 5 the relation of the cause of action,
matter of the regimen of his marriage, and that to allege this he
that is, the contract of the 4th of April, 1899, by which the
be considered as authorized by article 15 of the Civil Code, we
defendant obligated himself to send to the plaintiff in Spain a
have said before, in dealing with his law of domicile, that
certain amount of money monthly, for her support, and the
paragraph 2 of this article 15 of the Civil Code would be entirely
failure to comply with this obligation after the month of August,
adverse to his claim, and if it be advanced that there is a
1899. Paragraph 6, as a consequence of the promise
similar Foral Law in the Philippines by virtue of paragraph 1 of
established in 4 and 5, says as follows: "That the defendant
the said article 15, it might be said, though there is not at
Gabriel Fuster y Fuster actually owes the plaintiff the sum of
present any need to say it, that it is not in force. The two
36,100 Spanish pesetas, that is, 7,220 dollars, which, reduced
findings attacked are in perfect accord with the law. All the
at the present rate of exchange, amounts to the sum of
property of the marriage, says article 1407 of the Civil Code,
P12,959.90, Philippine currency." (B. of E., p. 2.) In the case of
shall be considered as conjugal property until it is proven that it
default on the part of the defendant "the court shall proceed to
belongs exclusively to the husband or to the wife. No proof has
hear the plaintiff and his witnesses and assess the damages or
been submitted to this effect.
determine the other relief to which the plaintiff may be entitled,
including the costs of the action, and render final judgment for
As seventh assignment of error it is alleged that the court the plaintiff to recover such sum or to receive such other relief
below erred in holding in the judgment that the plaintiff had as the pleadings and the facts warrant." The pleadings, not the
brought to the marriage a dowry of 30,000 Spanish dollars. But prayer of the complaint.
the defendant himself adds that the court made no order or
decree regarding the alleged dowry. On the other hand, the
This court has recently decided that the pleadings, not the
plaintiff, in her fourth assignment of errors, claimed that the
prayer, exactly, are the essential part of a complaint.
court erred in not confirming the report of the commissioners
which gave to the said plaintiff the sum of 30,000 Spanish
dollars. It is unnecessary to say anything further. It is not a question of alimony for the present, nor for the future,
which constitutes the first cause of action, but of certain sums
stipulated in a contract. This contract is a law for the
The eighth error consists in that the court below ordered the
contracting parties, a law which rises superior to those general
defendant to pay to the plaintiff P56,010.17 Philippine currency,
laws which regulate the nature of the subject matter of the
whereas the plaintiff had made no demand in her complaint
contract (in the present case an entirely voluntary one) and
with respect to this sum; that no arrears of payment are owing
which govern judicial action.
for alimony, even though payments had been stipulated in the
contract, unless they are claimed by the person who had
furnished the actual support, and that alimony is due only when An action arising out of a contract of this nature does not
it is necessary; so that, as the plaintiff has had no need of it for prescribe like all personal ones, but, by the provisions of article
ten years, nor has she stated who has furnished it, there is no 1964 of the Civil Code, after fifteen years. But even though the
reason for awaring her the amount of the arrears for all that provisions of article 1966 were applicable, by which an action
time; that as she has allowed ten years to elapse before to compel the fulfillment of an agreement to pay alimony
claiming it, her action prescribed in 1904, that is to say, after prescribes in five years, yet by section 50 of the Code of Civil
five years. Procedure, "when payment has been made upon any demand
founded upon contract . . . an action may be brought . . . after
such payment. . . ." And the parties admit that on the 18th of
August, 1908, the plaintiff secured the payment of
6,365.68 pesetas by virtue of the contract of April 4, 1899. So
that from August, 1908, until March, 1909, the date of the
complaint, the said period of five years had not elapsed.
The ninth assignment of error consists in that the court below
erred in empowering the receiver to proceed to the separation
of the property and in appointing commissioners to make the
partition and distribution between the spouses, since the
principal question in this action hinges upon the classification of
the property; that it was erroneously classified as conjugal
property, whereas all of it pertained to the husband alone and
should be adjudicated to him for the reason that, as it reiterated
in the tenth assignment of error, the conjugal partnership was
not subject to the provisions of the law governing conjugal
property, because such provision are totally foreign to the Foral
Law of the Balearic Islands.
The action of the trial court, by the terms of section 184 of the
Code of Civil Procedure, was in accordance with law. The only
question before this court is the partition of real property. All
that referred to in the second decision appealed from, dated
September 9, 1911, is urban real estate. Its classification as
conjugal property is in accordance with law, as is shown in the
foregoing reasoning, and that no consideration of the Foral Law
enters into the question has also been demonstrated.
II. PLAINTIFF'S APPEAL.
As the trial court rendered judgment ordering the defendant to
pay to the plaintiff only P5,010.17, the petitioner here prays that
the judgment be reversed and that in its place this court order
the defendant to pay to the plaintiff her claim of P12,959.90,
plus the additional sum which the alimony amounts to at the
rate of P107.70 per month, dating from the 1st of August, 1909,
until the date of payment, with legal interest upon the said
P12,959.90 from the date of the filing of the complaint until the
date of payment, and, furthermore, legal interest upon each of
the monthly payments due after the filing of the complaint, and
which will continue to become due until the close of this
litigation.
The trial court made the following findings: First, that the total
amount of the alimony owing to the plaintiff amounted to
34,200 pesetas; second, that of this sum the plaintiff had
collected in Madrid 6,365.68; third, that the remainder, that is,
27,834.32, was equivalent to $5,566.86 Mexican currency;
fourth, that the Mexican peso was worth 90 centavos Philippine
currency; fifth, that therefore the sum of $5,566.86 Mexican
currency was equivalent to P5,010 Philippine currency; and
finally, as there was no evidence as to the kind
of pesetas agreed upon, it was to be presumed that it was that
current at the time and place where the agreement was made,
which was Mexican pesetas.
In her appeal, the plaintiff contends that these findings are The appellant also alleges as error that the court did not
erroneous in that, firstly, the parties had admitted that adjudicate to her the 30,000 Spanish dollars which the
the pesetas referred to in the contract of the 4th of April, 1899, commissioners proposed in their report. First she characterizes
were Spanish, and in view of this admission the court was not this sum of 30,000 dollars as the dowry of the wife delivered to
empowered to define them as being different from the kind the husband, then, later, as paraphernal property brought to
admitted by the parties; secondly, if he were so empowered, the marriage.
his interpretation should be governed by the terms of the law.
According to the last instructions of the court to the
With regard to the first error, the plaintiff says that the commissioners, this amount of 30,000 dollars could not enter
statement is made in her complaint that the defendant had into the partition, and with reason. If, as was claimed, it was
obligated himself to pay her a "monthly pension for her support inherited by the plaintiff from her uncle, it really constitutes
of 300 Spanish pesetas, that is, 60 Spanish dollars, which, paraphernal property under article 1381. "Paraphernal property
reduced to Philippine currency, amounts to P107.70;" that the is that which the wife brings to the marriage without being
defendant had admitted this in hi answer to the complaint, and included in the dowry and that she may acquire after the
that by his finding in a sense other than that accepted and not creation of the same without being added thereto." But it is a
refuted in the answer of the defendant, the court violated the provision of article 1384 that "The wife shall have the
provisions of section 94 of the Code of Civil Procedure. management of the paraphernal property unless she has
delivered the same to her husband, before a notary, in order
that he may administer said property. In such case the
The court has not incurred this error, because it does not
husband is obliged to create a mortgage for the value of the
appear that the defendant in his answer accepted the fact in
personal property he may receive, or to secure said property, in
the manner alleged in the complaint. The defendant said that
the manner established for the dowry property." Not even was
he admitted having made the agreement referred to in
there offered in evidence the public deed of delivery, nor the
paragraph 4 of the complaint, and that he stood upon its
equally public mortgage deed that is required by law. So that,
contents. The contents of the document to which he refers is of
therefore, the necessary proof of the obligation to return
the following tenor: "Mr. Fuster binds and obligates himself to
paraphernal property as here demanded does not
pay to his said wife the sum of 300 pesetas, monthly,
exist.lawphil.net
payable de su cuenta in the city and capital of Madrid, for her
support. . . ." He did not therefore admit the matter of
the Spanish pesetas; that does not appear in the contents of The partition of property decreed in the judgment appealed
the document — the only thing he admitted in his answer. from of the 9th of September, 1911, should be and is hereby
confirmed.
As to the second error, the court did not commit it in applying
the rule contained in article 1287 of the Civil Code. "The The two judgments appealed from are hereby affirmed, without
usages or customs of the country shall be taken into special pronouncement of costs in this instance.
consideration in interpreting ambiguity in contracts. . . ." If in the
contract the word " pesetas," not being specific, was
Arellano, C.J., Torres, Carson and Trent, JJ., concur.
ambiguous, then it was in harmony with this precept to interpret
it as being the peseta then in use or current when and where
the agreement was made, Mexican being then the usual and
current money in the Philippines. Furthermore, the phrase de
su cuenta clearly means that it was not "Spanish pesetas" that
the contracting parties had in mind, because if the agreement
had been a specific one to pay 300 Spanish pesetas in Madrid,
everyone would of course understand that the expense of
following the fluctuations of change and of the differences in
value between the money current in the country, and the
Spanish pesetas, would have to be defrayed by the obligated
party; whereas, if nothing more than pesetas was mentioned, it
was necessary to decide which party should pay for the
difference in value so that the 300 pesetas stipulated here
should be 300 Spanish pesetas paid in Madrid. Against the
reasons of the court below for his decision this court can offer
no legal grounds. The rule of interpretation cited is the one
applicable and it supports the reasoning of the decision
appealed from.
G.R. No. L-2935             March 23, 1909
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, plaintiff-
appellee,
vs.
GEORGE I. FRANK, defendant-appellant.
Bishop and O'Brien for appellant.
Attorney-General Wilfley for appellee.
JOHNSON, J.:
Judgment was rendered in the lower court on the 5th day of
September, 1905. The defendant appealed. On the 12th day of
October, 1905, the appellant filed his printed bill of exceptions
with the clerk of the Supreme Court. On the 5th day of
December, 1905, the appellant filed his brief with the clerk of
the Supreme Court. On the 19th day of January, 1906, the
Attorney-General filed his brief in said cause. Nothing further
was done in said cause until on or about the 30th day of
January, 1909, when the respective parties were requested by
this court to prosecute the appeal under the penalty of having
the same dismissed for failure so to do; whereupon the
appellant, by petition, had the caused placed upon the calendar
and the same was heard on the 2d day of February, 1909.
The facts from the record appear to be as follows:
First. That on or about the 17th day of April, 1903, in the city of
Chicago, in the state of Illinois, in the United States, the
defendant, through a respective of the Insular Government of
the Philippine Islands, entered into a contract for a period of
two years with the plaintiff, by which the defendant was to
receive a salary of 1,200 dollars per year as a stenographer in
the service of the said plaintiff, and in addition thereto was to
be paid in advance the expenses incurred in traveling from the
said city of Chicago to Manila, and one-half salary during said
period of travel.
Second. Said contract contained a provision that in case of a
violation of its terms on the part of the defendant, he should
become liable to the plaintiff for the amount expended by the
Government by way of expenses incurred in traveling from
Chicago to Manila and one-half salary paid during such period.
Third. The defendant entered upon the performance of his
contract upon the 30th day of April, 1903, and was paid half-
salary from that date until June 4, 1903, the date of his arrival
in the Philippine Islands.
Fourth. That on the 11th day of February, 1904, the defendant
left the service of the plaintiff and refused to make further
compliance with the terms of the contract.
Fifth. On the 3d day of December, 1904, the plaintiff
commenced an action in the Court of First Instance of the city
of Manila to recover from the defendant the sum of 269.23
dollars, which amount the plaintiff claimed had been paid to the
defendant as expenses incurred in traveling from Chicago to
Manila, and as half salary for the period consumed in travel.
Sixth. It was expressly agreed between the parties to said
contract that Laws No. 80 and No. 224 should constitute a part
of said contract.
To the complaint of the plaintiff the defendant filed a general
denial and a special defense, alleging in his special defense
that the Government of the Philippine Islands had amended
Laws No. 80 and No. 224 and had thereby materially altered
the said contract, and also that he was a minor at the time the
contract was entered into and was therefore not responsible
under the law.
To the special defense of the defendant the plaintiff filed a
demurrer, which demurrer the court sustained.
Upon the issue thus presented, and after hearing the evidence
adduced during the trial of the cause, the lower court rendered
a judgment against the defendant and in favor of the plaintiff for
the sum of 265.90 dollars. The lower court found that at the
time the defendant quit the service of the plaintiff there was due
him from the said plaintiff the sum of 3.33 dollars, leaving a
balance due the plaintiff in the sum of 265.90 dollars. From this
judgment the defendant appealed and made the following
assignments of error:
1. The court erred in sustaining plaintiff's demurrer to
defendant's special defenses.
2. The court erred in rendering judgment against the defendant
on the facts.
With reference to the above assignments of error, it may be
said that the mere fact that the legislative department of the
Government of the Philippine Islands had amended said Acts
No. 80 and No. 224 by the Acts No. 643 and No. 1040 did not
have the effect of changing the terms of the contract made
between the plaintiff and the defendant. The legislative
department of the Government is expressly prohibited by
section 5 of the Act of Congress of 1902 from altering or
changing the terms of the contract. The right which the
defendant had acquired by virtue of Acts No. 80 and No. 224
had not been changed in any respect by the fact that said laws
had been amended. These acts, constituting the terms of the
contract, still constituted a part of said contract and were
enforceable in favor of the defendant.
The defendant alleged in his special defense that he was a
minor and therefore the contract could not be enforced against
him. The record discloses that, at the time the contract was
entered into in the State of Illinois, he was an adult under the
laws of that State and had full authority to contract. The plaintiff
[the defendant] claims that, by reason of the fact that, under the
laws of the Philippine Islands at the time the contract was
made, male persons in said Islands did not reach their majority
until they had attained the age of 23 years, he was not liable
under said contract, contending that the laws of the Philippine
Islands governed. It is not disputed — upon the contrary the
fact is admitted — that at the time and place of the making of
the contract in question the defendant had full capacity to make
the same. No rule is better settled in law than that matters
bearing upon the execution, interpretation and validity of a
contract are determined by the law of the place where the
contract is made. (Scudder vs. Union National Bank, 91 U. S.,
406.) Matters connected with its performance are regulated by
the law prevailing at the place of performance. Matters
respecting a remedy, such as the bringing of suit, admissibility
of evidence, and statutes of limitations, depend upon the law of
the place where the suit is brought. (Idem.)
The defendant's claim that he was an adult when he left
Chicago but was a minor when he arrived at Manila; that he
was an adult at the time he made the contract but was a minor
at the time the plaintiff attempted to enforce the contract, more
than a year later, is not tenable.
Our conclusions with reference to the first above assignment of
error are, therefore:
First. That the amendments to Acts No. 80 and No. 224 in no
way affected the terms of the contract in question; and
Second. The plaintiff [defendant] being fully qualified to enter
into the contract at the place and time the contract was made,
he can not plead infancy as a defense at the place where the
contract is being enforced.
We believe that the above conclusions also dispose of the
second assignment of error.
For the reasons above stated, the judgment of the lower court
is affirmed, with costs.
Arellano, C. J., Torres, Mapa, Carson, and Willard, JJ., concur.