ARTICLE 32 information and incriminatory statements from plaintiffs and to terrorize, harass and punish
them, said plans being previously known to and sanctioned by defendants.
G.R. No. L-69866 April 15, 1988
ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO NOEL ETABAG
DANILO DE LA FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN,
ALAN JAZMINEZ, EDWIN LOPEZ, ALFREDO MANSOS, ALEX MARCELINO,
ELIZABETH PROTACIO-MARCELINO, JOSEPH OLAYER, CARLOS PALMA,
MARCO PALO, ROLANDO SALUTIN, BENJAMIN SESGUNDO, ARTURO
TABARA, EDWIN TULALIAN and REBECCA TULALIAN petitioners,
vs.
MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO
ABADILLA, COL. GERARDO B. LANTORIA, COL. GALILEO KINTANAR, 1ST
LT. COL. PANFILO M. LACSON, MAJ. RODOLFO AGUINALDO, CAPT.
DANILO PIZARRO, 1ST LT. PEDRO TANGO, 1ST LT. ROMEO RICARDO,
1ST LT. RAUL BACALSO, MSGT BIENVENIDO BALABA and REGIONAL
TRIAL COURT, National Capital Judicial Region, Branch XCV (95), Quezon
City, respondents.
YAP, J.:
This petition for certiorari presents vital issues not heretofore passed upon by this Court. It
poses the question whether the suspension of the privilege of the writ of habeas corpus bars a
civil action for damages for illegal searches conducted by military personnel and other
violations of rights and liberties guaranteed under the Constitution. If such action for damages
may be maintained, who can be held liable for such violations: only the military personnel
directly involved and/or their superiors as well.
This case stems from alleged illegal searches and seizures and other violations of the rights
and liberties of plaintiffs by various intelligence units of the Armed Forces of the Philippines,
known as Task Force Makabansa (TFM) ordered by General Fabian Ver "to conduct pre-
emptive strikes against known communist-terrorist (CT) underground houses in view of
increasing reports about CT plans to sow disturbances in Metro Manila," Plaintiffs allege,
among others, that complying with said order, elements of the TFM raided several places,
employing in most cases defectively issued judicial search warrants; that during these raids,
certain members of the raiding party confiscated a number of purely personal items belonging
to plaintiffs; that plaintiffs were arrested without proper warrants issued by the courts; that for
some period after their arrest, they were denied visits of relatives and lawyers; that plaintiffs
were interrogated in violation of their rights to silence and counsel; that military men who
interrogated them employed threats, tortures and other forms of violence on them in order to
obtain incriminatory information or confessions and in order to punish them; that all violations
of plaintiffs constitutional rights were part of a concerted and deliberate plan to forcibly extract
Plaintiffs sought actual/compensatory damages amounting to P39,030.00; moral damages in
the amount of at least P150,000.00 each or a total of P3,000,000.00; exemplary damages in
the amount of at least P150,000.00 each or a total of P3,000,000.00; and attorney's fees
amounting to not less than P200,000.00.
A motion to dismiss was filed by defendants, through their counsel, then Solicitor-General
Estelito Mendoza, alleging that (1) plaintiffs may not cause a judicial inquiry into the
circumstances of their detention in the guise of a damage suit because, as to them, the
privilege of the writ of habeas corpus is suspended; (2) assuming that the courts can entertain
the present action, defendants are immune from liability for acts done in the performance of
their official duties; and (3) the complaint states no cause of action against the defendants.
Opposition to said motion to dismiss was filed by plaintiffs Marco Palo, Danilo de la Fuente,
Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and Rolando Salutin on July 8, 1983, and by
plaintiffs Edwin Lopez, Manuel Mario Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma,
Arturo Tabara, Joseph Olayer, Rodolfo Benosa, Belen Diaz, Flores, Rogelio Aberca, Alex
Marcelino and Elizabeth Marcelino on July 21, 1983. On November 7, 1983, a Consolidated
Reply was filed by defendants' counsel.
Then, on November 8, 1983, the Regional Trial Court, National Capital Region, Branch 95,
Judge Willelmo C. Fortun, Presiding, 1 issued a resolution granting the motion to dismiss. I
sustained, lock, stock and barrel, the defendants' contention (1) the plaintiffs may not cause a
judicial inquiry into the circumstances of their detention in the guise of a damage suit because,
as to them, the privilege of the writ of habeas corpus is suspended; (2) that assuming that the
court can entertain the present action, defendants are immune from liability for acts done in the
performance of their official duties; and (3) that the complaint states no cause of action against
defendants, since there is no allegation that the defendants named in the complaint
confiscated plaintiffs' purely personal properties in violation of their constitutional rights, and
with the possible exception of Major Rodolfo Aguinaldo and Sergeant Bienvenido Balabo
committed acts of torture and maltreatment, or that the defendants had the duty to exercise
direct supervision and control of their subordinates or that they had vicarious liability as
employers under Article 2180 of the Civil Code. The lower court stated, "After a careful study of
defendants' arguments, the court finds the same to be meritorious and must, therefore, be
granted. On the other hand, plaintiffs' arguments in their opposition are lacking in merit."
A motion to set aside the order dismissing the complaint and a supplemental motion for
reconsideration was filed by the plaintiffs on November 18, 1983, and November 24, 1983,
respectively. On December 9, 1983, the defendants filed a comment on the aforesaid motion
of plaintiffs, furnishing a copy thereof to the attorneys of all the plaintiffs, namely, Attys. Jose
W. Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Auguso Sanchez, Antonio L.
1
Rosales, Pedro B. Ella Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag,
Ramon Esguerra and Felicitas Aquino.
On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting himself from further
proceeding in the case and leaving the resolution of the motion to set aside the order of
dismissal to Judge Lising, "to preclude any suspicion that he (Judge Fortun) cannot resolve
[the] aforesaid pending motion with the cold neutrality of an impartial judge and to put an end
to plaintiffs assertion that the undersigned has no authority or jurisdiction to resolve said
pending motion." This order prompted plaintiffs to reesolve an amplificatory motion for
reconsideration signed in the name of the Free Legal Assistance Group (FLAG) of Mabini
Legal Aid Committee, by Attys. Joker P. Arroyo, Felicitas Aquino and Arno Sanidad on April
12, 1984. On May 2,1984, the defendants filed a comment on said amplificatory motion for
reconsideration.
In an order dated May 11, 1984, the trial court, Judge Esteban Lising, Presiding, without acting
on the motion to set aside order of November 8, 1983, issued an order, as follows:
(1) That the motion to set aside the order of finality, dated May 11, 1984, of
the Resolution of dismissal of the complaint of plaintiffs Rogelio Aberca,
Danilo de la Fuente, Marco Palo, Alan Jasminez Alex Marcelino, Elizabeth
Protacio-Marcelino, Alfredo Mansos and Rolando Salutin is deed for lack of
merit;
(2) For lack of cause of action as against the following defendants, to wit:
1. Gen Fabian Ver
2. Col. Fidel Singson
3. Col. Rolando Abadilla
4. Lt. Col. Conrado Lantoria, Jr.

It appearing from the records that, indeed, the following plaintiffs, Rogelio 5. Col. Galileo Montanar
Aberca, Danilo de la Fuente and Marco Palo, represented by counsel, Atty.
Jose W. Diokno, Alan Jasminez represented by counsel, Atty. Augusta 6. Col. Panfilo Lacson
Sanchez, Spouses Alex Marcelino and Elizabeth Protacio-Marcelino,
represented by counsel, Atty. Procopio Beltran, Alfredo Mansos represented
by counsel, Atty. Rene Sarmiento, and Rolando Salutin, represented by 7. Capt. Danilo Pizaro
counsel, Atty. Efren Mercado, failed to file a motion to reconsider the Order
of November 8, 1983, dismissing the complaint, nor interposed an appeal 8. 1 Lt Pedro Tango
therefrom within the reglementary period, as prayed for by the defendants,
said Order is now final against said plaintiffs.
9. Lt. Romeo Ricardo

Assailing the said order of May 11, 1984, the plaintiffs filed a motion for reconsideration on
10. Lt. Raul Bacalso
May 28,1984, alleging that it was not true that plaintiffs Rogelio Aberca, Danilo de la Fuente,
Marco Palo, Alan Jasminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and
Rolando Salutin failed to file a motion to reconsider the order of November 8, 1983 dismissing the motion to set aside and reconsider the Resolution of dismissal of the
the complaint, within the reglementary period. Plaintiffs claimed that the motion to set aside the present action or complaint, dated November 8, 1983, is also denied but in
order of November 8, 1983 and the amplificatory motion for reconsideration was filed for all the so far as it affects and refers to defendants, to wit:
plaintiffs, although signed by only some of the lawyers.
1. Major Rodolfo Aguinaldo, and
In its resolution of September 21, 1984, the respondent court dealt with both motions (1) to
reconsider its order of May 11, 1984 declaring that with respect to certain plaintiffs, the 2. Master Sgt. Bienvenido Balaba
resolution of November 8, 1983 had already become final, and (2) to set aside its resolution of
November 8, 1983 granting the defendants' motion to dismiss. In the dispositive portion of the
the motion to reconsider and set aside the Resolution of dismissal dated
order of September 21, 1984, the respondent court resolved:
November 3, 1983 is granted and the Resolution of dismissal is, in this
respect, reconsidered and modified.

2
Hence, petitioners filed the instant petition for certiorari on March 15, 1985 seeking to annul
and set aside the respondent court's resolution of November 8, 1983, its order of May 11,
1984, and its resolution dated September 21, 1984. Respondents were required to comment
on the petition, which it did on November 9, 1985. A reply was filed by petitioners on August
26, 1986.
We find the petition meritorious and decide to give it due course.
At the heart of petitioners' complaint is Article 32 of the Civil Code which provides:
ART. 32. Any public officer or employee, or any private individual who
directly or indirectly obstructs, defeats, violates or in any manner impedes or
impairs any of the following rights and liberties of another person shall be
liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process
(7) of law;
(8) The right to a just compensation when private property is taken for public
use;
(9) The right to the equal protection of the laws;
(10) The right to be secure in one's person, house, papers, and effects
against unreasonable searches and seizures;
(11) The liberty of abode and of changing the same;
(12) The privacy of cmmunication and correspondence;
(13) The right to become a member of associations or societies for purposes
not contrary to law;
(14) The right to take part in a peaceable assembly to petition the
Government for redress of grievances;
(15) The right to be free from involuntary servitude in any form;
(16) The rigth of the accused against excessive bail;
(17) The rigth of the aaccused to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a
speedy and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witness in behalf;
(18) Freedom from being compelled to be a witness against ones self, or
from being forced to confess guilt, or from being induced by a promise of
immunity or reward to make such confession, except when the person
confessing becomes a State witness;
(19) Freedom from excessive fines or cruel and unusual punishment, unless
the same is imposed or inflicted in accordance with a statute which has not
been judicially declared unconstitutional; and
(20) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's
act or omission constitutes a criminal offense, the against grieved party has
a right to commence an entirely separate and distinct civil action for
damages, and for other relief. Such civil action shall proceed independently
of any criminal prosecution (if the latter be instituted), and may be proved by
a preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may also
be adjudicated.
The responsibility herein set forth is not demandable from a judge unless his
act or omission constitutes a violation of the Penal Code or other penal
statute.
3
It is obvious that the purpose of the above codal provision is to provide a sanction to the
deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no
man may seek to violate those sacred rights with impunity. In times of great upheaval or of
social and political stress, when the temptation is strongest to yield — borrowing the words of
Chief Justice Claudio Teehankee — to the law of force rather than the force of law, it is
necessary to remind ourselves that certain basic rights and liberties are immutable and cannot
be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law
must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule
of law compels us to reject the view which reduces law to nothing but the expression of the will
of the predominant power in the community. "Democracy cannot be a reign of progress, of
liberty, of justice, unless the law is respected by him who makes it and by him for whom it is
made. Now this respect implies a maximum of faith, a minimum of Idealism. On going to the
bottom of the matter, we discover that life demands of us a certain residuum of sentiment
which is not derived from reason, but which reason nevertheless controls. 2
Seeking to justify the dismissal of plaintiffs' complaint, the respondents postulate the view that
as public officers they are covered by the mantle of state immunity from suit for acts done in
the performance of official duties or function In support of said contention, respondents
maintain that —
Respondents are members of the Armed Forces of the Philippines. Their
primary duty is to safeguard public safety and order. The Constitution no
less provides that the President may call them "to prevent or supress lawless
violence, invasion, insurrection or rebellion, or imminent danger thereof."
(Constitution, Article VII, Section 9).
On January 17, 1981, the President issued Proclamation No. 2045 lifting
martial law but providing for the continued suspension of the privilege of the
writ of habeas corpus in view of the remaining dangers to the security of the
nation. The proclamation also provided "that the call to the Armed Forces of
the Philippines to prevent or suppress lawless violence, insuitection rebellion
and subversion shall continue to be in force and effect."
Petitioners allege in their complaint that their causes of action proceed from
respondent General Ver's order to Task Force Makabansa to launch pre-
emptive strikes against communist terrorist underground houses in Metro
Manila. Petitioners claim that this order and its subsequent implementation
by elements of the task force resulted in the violation of their constitutional
rights against unlawful searches, seizures and arrest, rights to counsel and
to silence, and the right to property and that, therefore, respondents Ver and
the named members of the task force should be held liable for damages.
But, by launching a pre-emptive strike against communist terrorists,
respondent members of the armed forces merely performed their official and
constitutional duties. To allow petitioners to recover from respondents by
way of damages for acts performed in the exercise of such duties run
contrary to the policy considerations to shield respondents as public officers
from undue interference with their duties and from potentially disabling
threats of hability (Aarlon v. Fitzgerald 102 S. Ct. 2731-1 Forbes v. Chuoco
Tiaco, 16 Phil. 634), and upon the necessity of protecting the performance of
governmental and public functions from being harassed unduly or constantly
interrupted by private suits (McCallan v. State, 35 Cal. App. 605; Metran v.
Paredes, 79 Phil. 819).
xxx xxx xxx
The immunity of public officers from liability arising from the performance of
their duties is now a settled jurisprudence Alzua v. Johnson, 21 Phil. 308;
Zulueta v. Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483; 40 L. Ed.
780, 16 S. Ct. 631; Barr v. Mateo, 360; Butz v. Economon, 438 US 478; 57
L. Ed. 2d 895, 98 S. Ct. 2894; Scheuer v. Rhodes, 416 US 232; Forbes v.
Chuoco Tiaco, supra; Miller v. de Leune, 602 F. 2d 198; Sami v. US, 617 F.
2d 755).
Respondents-defendants who merely obeyed the lawful orders of the
President and his call for the suppression of the rebellion involving
petitioners enjoy such immunity from Suit.3
We find respondents' invocation of the doctrine of state immunity from suit totally misplaced.
The cases invoked by respondents actually involved acts done by officers in the performance
of official duties written the ambit of their powers. As held in Forbes, etc. vs. Chuoco Tiaco and
Crossfield: 4
No one can be held legally responsible in damages or otherwise for doing in
a legal manner what he had authority, under the law, to do. Therefore, if the
Governor-General had authority, under the law to deport or expel the
defendants, and circumstances justifying the deportation and the method of
carrying it out are left to him, then he cannot be held liable in damages for
the exercise of this power. Moreover, if the courts are without authority to
interfere in any manner, for the purpose of controlling or interferring with the
exercise of the political powers vested in the chief executive authority of the
Government, then it must follow that the courts cannot intervene for the
purpose of declaring that he is liable in damages for the exeercise of this
authority.
4
It may be that the respondents, as members of the Armed Forces of the Philippines, were
merely responding to their duty, as they claim, "to prevent or suppress lawless violence,
insurrection, rebellion and subversion" in accordance with Proclamation No. 2054 of President
Marcos, despite the lifting of martial law on January 27, 1981, and in pursuance of such
objective, to launch pre- emptive strikes against alleged communist terrorist underground
houses. But this cannot be construed as a blanket license or a roving commission untramelled
by any constitutional restraint, to disregard or transgress upon the rights and liberties of the
individual citizen enshrined in and protected by the Constitution. The Constitution remains the
supreme law of the land to which all officials, high or low, civilian or military, owe obedience
and allegiance at all times.
Article 32 of the Civil Code which renders any public officer or employee or any private
individual liable in damages for violating the Constitutional rights and liberties of another, as
enumerated therein, does not exempt the respondents from responsibility. Only judges are
excluded from liability under the said article, provided their acts or omissions do not constitute
a violation of the Penal Code or other penal statute.
This is not to say that military authorities are restrained from pursuing their assigned task or
carrying out their mission with vigor. We have no quarrel with their duty to protect the Republic
from its enemies, whether of the left or of the right, or from within or without, seeking to destroy
or subvert our democratic institutions and imperil their very existence. What we are merely
trying to say is that in carrying out this task and mission, constitutional and legal safeguards
must be observed, otherwise, the very fabric of our faith will start to unravel. In the battle of
competing Ideologies, the struggle for the mind is just as vital as the struggle of arms. The
linchpin in that psychological struggle is faith in the rule of law. Once that faith is lost or
compromised, the struggle may well be abandoned.
We do not find merit in respondents' suggestion that plaintiffs' cause of action is barred by the
suspension of the privilege of the writ of habeas corpus. Respondents contend that
"Petitioners cannot circumvent the suspension of the privilege of the writ by resorting to a
damage suit aimed at the same purpose-judicial inquiry into the alleged illegality of their
detention. While the main relief they ask by the present action is indemnification for alleged
damages they suffered, their causes of action are inextricably based on the same claim of
violations of their constitutional rights that they invoked in the habeas corpus case as grounds
for release from detention. Were the petitioners allowed the present suit, the judicial inquiry
barred by the suspension of the privilege of the writ will take place. The net result is that what
the courts cannot do, i.e. override the suspension ordered by the President, petitioners will be
able to do by the mere expedient of altering the title of their action."
We do not agree. We find merit in petitioners' contention that the suspension of the privilege of
the writ of habeas corpus does not destroy petitioners' right and cause of action for damages
for illegal arrest and detention and other violations of their constitutional rights. The suspension
does not render valid an otherwise illegal arrest or detention. What is suspended is merely the
right of the individual to seek release from detention through the writ of habeas corpus as a
speedy means of obtaining his liberty.
Moreover, as pointed out by petitioners, their right and cause of action for damages are
explicitly recognized in P.D. No. 1755 which amended Article 1146 of the Civil Code by adding
the following to its text:
However, when the action (for injury to the rights of the plaintiff or for a
quasi-delict) arises from or out of any act, activity or conduct of any public
officer involving the exercise of powers or authority arising from Martial Law
including the arrest, detention and/or trial of the plaintiff, the same must be
brought within one (1) year.
Petitioners have a point in contending that even assuming that the suspension of the privilege
of the writ of habeas corpus suspends petitioners' right of action for damages for illegal arrest
and detention, it does not and cannot suspend their rights and causes of action for injuries
suffered because of respondents' confiscation of their private belongings, the violation of their
right to remain silent and to counsel and their right to protection against unreasonable
searches and seizures and against torture and other cruel and inhuman treatment.
However, we find it unnecessary to address the constitutional issue pressed upon us. On
March 25, 1986, President Corazon C. Aquino issued Proclamation No. 2, revoking
Proclamation Nos. 2045 and 2045-A and lifting the suspension of the privilege of the writ of
habeas corpus. The question therefore has become moot and academic.
This brings us to the crucial issue raised in this petition. May a superior officer under the notion
of respondent superior be answerable for damages, jointly and severally with his subordinates,
to the person whose constitutional rights and liberties have been violated?
Respondents contend that the doctrine of  respondent superior is applicable to the case. We
agree. The doctrine of respondent superior has been generally limited in its application to
principal and agent or to master and servant (i.e. employer and employee) relationship. No
such relationship exists between superior officers of the military and their subordinates.
Be that as it may, however, the decisive factor in this case, in our view, is the language of
Article 32. The law speaks of an officer or employee or person 'directly' or "indirectly"
responsible for the violation of the constitutional rights and liberties of another. Thus, it is not
the actor alone (i.e. the one directly responsible) who must answer for damages under Article
32; the person indirectly responsible has also to answer for the damages or injury caused to
the aggrieved party.
5
By this provision, the principle of accountability of public officials under the
Constitution 5 acquires added meaning and asgilrnes a larger dimension. No longer may a
superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in
the thought that he does not have to answer for the transgressions committed by the latter
against the constitutionally protected rights and liberties of the citizen. Part of the factors that
propelled people power in February 1986 was the widely held perception that the government
was callous or indifferent to, if not actually responsible for, the rampant violations of human
rights. While it would certainly be go naive to expect that violators of human rights would easily
be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no
ones terms that Article 32 of the Civil Code makes the persons who are directly, as well as
indirectly, responsible for the transgression joint tortfeasors.
In the case at bar, the trial court dropped defendants General Fabian Ver, Col. Fidel Singson,
Col. Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo Kintanar, Col. Panfilo Lacson,
Capt. Danilo Pizarro, lst Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the
acts of their subordinates. Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba
were kept as defendants on the ground that they alone 'have been specifically mentioned and
Identified to have allegedly caused injuries on the persons of some of the plaintiff which acts of
alleged physical violence constitute a delict or wrong that gave rise to a cause of action. But
such finding is not supported by the record, nor is it in accord with law and jurisprudence.
Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article 19. to 'acts of
alleged physical violence" which constituted delict or wrong. Article 32 clearly specifies as
actionable the act of violating or in any manner impeding or impairing any of the constitutional
rights and liberties enumerated therein, among others —
1. Freedom from arbitrary arrest or illegal detention;
2. The right against deprivation of property without due process of law;
3. The right to be secure in one's person, house, papers and effects against
unreasonable searches and seizures;
4. The privacy of communication and correspondence;
5. Freedom from being compelled to be a witness against one's self, or from
being forced to confess guilt, or from being induced by a promise of
immunity or reward to make a confession, except when the person
confessing becomes a state witness.
The complaint in this litigation alleges facts showing with abundant clarity and details, how
plaintiffs' constitutional rights and liberties mentioned in Article 32 of the Civil Code were
violated and impaired by defendants. The complaint speaks of, among others, searches made
without search warrants or based on irregularly issued or substantially defective warrants;
seizures and confiscation, without proper receipts, of cash and personal effects belonging to
plaintiffs and other items of property which were not subversive and illegal nor covered by the
search warrants; arrest and detention of plaintiffs without warrant or under irregular, improper
and illegal circumstances; detention of plaintiffs at several undisclosed places of 'safehouses"
where they were kept incommunicado and subjected to physical and psychological torture and
other inhuman, degrading and brutal treatment for the purpose of extracting incriminatory
statements. The complaint contains a detailed recital of abuses perpetrated upon the plaintiffs
violative of their constitutional rights.
Secondly, neither can it be said that only those shown to have participated "directly" should be
held liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those
directly, as well as indirectly, responsible for its violation.
The responsibility of the defendants, whether direct or indirect, is amply set forth in the
complaint. It is well established in our law and jurisprudence that a motion to dismiss on the
ground that the complaint states no cause of action must be based on what appears on the
face of the complaint. 6 To determine the sufficiency of the cause of action, only the facts
alleged in the complaint, and no others, should be considered. 7 For this purpose, the motion to
dismiss must hypothetically admit the truth of the facts alleged in the complaint. 8
Applying this test, it is difficult to justify the trial court's ruling, dismissing for lack of cause of
action the complaint against all the defendants, except Major Rodolfo Aguinaldo and Master
Sgt. Bienvenido Balaba. The complaint contained allegations against all the defendants which,
if admitted hypothetically, would be sufficient to establish a cause or causes of action against
all of them under Article 32 of the Civil Code.
This brings us to the last issue. Was the trial court correct in dismissing the complaint with
respect to plaintiffs Rogelio Aberca, Danilo de la Puente, Marco Palo, Alan Jazminez, Alex
Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin, on the basis of
the alleged failure of said plaintiffs to file a motion for reconsideration of the court's resolution
of November 8, 1983, granting the respondent's motion to dismiss?
It is undisputed that a timely motion to set aside said order of November 8, 1983 was filed by
'plaintiffs, through counsel. True, the motion was signed only by Atty. Joker P. Arroyo, counsel
for Benjamin Sesgulido; Atty. Antonio Rosales, counsel for Edwin Lopez and Manuel Martin
Guzman; Atty. Pedro B. Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V.
Sanidad, counsel for Arturo Tabara; Atty. Felicitas S. Aquino, counsel for Joseph Olayer; and
Atty. Alexander Padilla, counsel for Rodolfo Benosa.
But the body of the motion itself clearly indicated that the motion was filed on behalf of all the
plaintiffs. And this must have been also the understanding of defendants' counsel himself for
6
when he filed his comment on the motion, he furnished copies thereof, not just to the lawyers
who signed the motion, but to all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio
Beltran, Rene Sarmiento, Efren Mercado, Augusto Sanchez, Antonio Rosales, Pedro Efla Jr.,
Arno Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and
Felicitas S. Aquino.
In filing the motion to set aside the resolution of November 8, 1983, the signing attorneys did
so on behalf of all the plaintiff. They needed no specific authority to do that. The authority of an
attorney to appear for and in behalf of a party can be assumed, unless questioned or
challenged by the adverse party or the party concerned, which was never done in this case.
Thus, it was grave abuse on the part of respondent judge to take it upon himself to rule that the
motion to set aside the order of November 8, 1953 dismissing the complaint was filed only by
some of the plaintiffs, when by its very language it was clearly intended to be filed by and for
the benefit of all of them. It is obvious that the respondent judge took umbrage under a
contrived technicality to declare that the dismissal of the complaint had already become final
with respect to some of the plaintiffs whose lawyers did not sign the motion for reconsideration.
Such action tainted with legal infirmity cannot be sanctioned.
Accordingly, we grant the petition and annul and set aside the resolution of the respondent
court, dated November 8, 1983, its order dated May 11, 1984 and its resolution dated
September 21, 1984. Let the case be remanded to the respondent court for further
proceedings. With costs against private respondents.
SO ORDERED.
Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento,
Cortes and Griño-Aquino, JJ., concur.
Gutierrez, Jr., J., concur in the result.
Padilla, J., took no part.
 Separate Opinions
 TEEHANKEE, C.J.,  concurring:
The Court's judgment at bar makes clear that all persons, be they public officers or employees,
or members of the military or police force or private individuals who directly or indirectly
obstruct, defeat, violate or in any manner impede or impair the constitutional rights and civil
liberties of another person, stand liable and may be sued in court for damages as provided in
Art. 32 of the Civil Code.
The case at bar specifically upholds and reinstates the civil action for damages filed in the
court below by petitioners-plaintiffs for illegal searches conducted by military personnel and
other violations of their constitutional rights and liberties. At the same time it rejects the
automatic application of the principle of respondeat superior or command responsibility that
would hold a superior officer jointly and severally accountable for damages, including moral
and exemplary, with his subordinates who committed such transgressions. However, the
judgment gives the caveat that a superior officer must not abdicate his duty to properly
supervise his subordinates for he runs the risk of being held responsible for gross negligence
and of being held under the cited provision of the Civil Code as indirectly and solidarily
accountable with the tortfeasor.
The rationale for this rule of law was best expressed by Brandeis in wise: "In a government of
laws, existence of the government be imperilled following it fails to observe the law
scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the
whole people by example. Crime is contagious. If the government becomes the law breaker, it
breeds contempt for the law, it invites every man to become a law unto himself, it invites
anarchy. To declare that in the administration of criminal law the end justifies the means ...
would bring terrible retribution." 1
As the writer stress in Hildawa vs. Enrile 2 Which Was an action to enjoin the operations of the
dreaded secret marshals during the past regime, 'In a democratic state, you don't stoop to the
level of criminals. If we stoop to what they do, then we're no better than they ... there would be
no difference. ... The Supreme Court stands as the guarantor of the Constitutional and human
rights of all persons within its jurisdiction and cannot abdicate its basic role under the
Constitution that these rights be respected and enforced. The spirit and letter of the
Constitution negates as contrary to the basic precepts of human rights and freedom that a
person's life be snuffed out without due process in a split second even if he is caught
in flagrante delicto — unless it was caned for as an act of self-defense by the law agents using
reasonable means to prevent or repel an unlawful aggression on the part of the deceased.
Needless to say, the criminal acts of the "Sparrow Units" or death squads of the NPA which
have infutrated the cities and suburbs and performed their despicable killings of innocent
civilians and military and police officers constitute an equally perverse violation of the sanctity
of human life and must be severely condemned by all who adhere tothe Rule of the Law.
It need only be pointed out that one of the first acts of the present government under President
Corazon C. Aquino after her assumption of office in February, 1986 was to file our
government's ratification and access to all human rights instruments adopted under the
auspices of the United Nations, declaring thereby the government's commitment to observe
the precepts of the United Nations Charter and the Universal Declaration of Human Rights.
More than this, pursuant to our Constitution which the people decisively ratified on February 2,
1987, the independent office of the Commission on Human Rights hats been created and
7
organized with ample powers to investigate human rights violations and take remedial
measures against all such violations by the military as well as by the civilian groups.
 
 Separate Opinions
TEEHANKEE, C.J.,  concurring:
The Court's judgment at bar makes clear that all persons, be they public officers or employees,
or members of the military or police force or private individuals who directly or indirectly
obstruct, defeat, violate or in any manner impede or impair the constitutional rights and civil
liberties of another person, stand liable and may be sued in court for damages as provided in
Art. 32 of the Civil Code.
The case at bar specifically upholds and reinstates the civil action for damages filed in the
court below by petitioners-plaintiffs for illegal searches conducted by military personnel and
other violations of their constitutional rights and liberties. At the same time it rejects the
automatic application of the principle of respondeat superior or command responsibility that
would hold a superior officer jointly and severally accountable for damages, including moral
and exemplary, with his subordinates who committed such transgressions. However, the
judgment gives the caveat that a superior officer must not abdicate his duty to properly
supervise his subordinates for he runs the risk of being held responsible for gross negligence
and of being held under the cited provision of the Civil Code as indirectly and solidarily
accountable with the tortfeasor.
The rationale for this rule of law was best expressed by Brandeis in wise: "In a government of
laws, existence of the government be imperilled following it fails to observe the law
scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the
whole people by example. Crime is contagious. If the government becomes the law breaker, it
breeds contempt for the law, it invites every man to become a law unto himself, it invites
anarchy. To declare that in the administration of criminal law the end justifies the means ...
would bring terrible retribution." 1
As the writer stress in Hildawa vs. Enrile   Which Was an action to enjoin the operations of the
2
dreaded secret marshals during the past regime, 'In a democratic state, you don't stoop to the
level of criminals. If we stoop to what they do, then we're no better than they ... there would be
no difference. ... The Supreme Court stands as the guarantor of the Constitutional and human
rights of all persons within its jurisdiction and cannot abdicate its basic role under the
Constitution that these rights be respected and enforced. The spirit and letter of the
Constitution negates as contrary to the basic precepts of human rights and freedom that a
person's life be snuffed out without due process in a split second even if he is caught
in flagrante delicto — unless it was caned for as an act of self-defense by the law agents using
reasonable means to prevent or repel an unlawful aggression on the part of the deceased.
Needless to say, the criminal acts of the "Sparrow Units" or death squads of the NPA which
have infutrated the cities and suburbs and performed their despicable killings of innocent
civilians and military and police officers constitute an equally perverse violation of the sanctity
of human life and must be severely condemned by all who adhere tothe Rule of the Law.
It need only be pointed out that one of the first acts of the present government under President
Corazon C. Aquino after her assumption of office in February, 1986 was to file our
government's ratification and access to all human rights instruments adopted under the
auspices of the United Nations, declaring thereby the government's commitment to observe
the precepts of the United Nations Charter and the Universal Declaration of Human Rights.
More than this, pursuant to our Constitution which the people decisively ratified on February 2,
1987, the independent office of the Commission on Human Rights hats been created and
organized with ample powers to investigate human rights violations and take remedial
measures against all such violations by the military as well as by the civilian groups.
Footnotes
1 The Presiding Judge of Branch 95, Judge Esteban M. Lising was allowed
to go on leave, per resolution of the Supreme Court on October 18, 1983,
and Judge Willelmo C. Fortun was authorized to take cognizance of all kinds
of cases of Branch 95 during the former's absence.
2 Joseph Charmont French Legal Philosophy, Mcmillan Co., New York,
1921, pp. 72-73.
3 Rollo, pp. 240-241; 244,
4 16 Phil. 534, 578.
5 Section 1, Article XI.
6 Azur v. Provincial Board, 27 SCRA 50, 57; Garcon v. Redemptorist tourist
Fathers, 17 SCRA 341.
7 Adamos v. J. M. Tuazon, 25 SCRA 529; Socorro v. Vargas, 25 SCRA 592,
596; La Suerte Cigar & Cigarette Factory vs. Central Azuearera de Davao,
23 SCRA 686, 690.
8
 8 Garcon vs. Redemptorist Fathers, supra; PNB vs. Hipolito, 13 SCRA 20.
Teehankee, J., concurring:
1 Olmstead vs, U.S. 277 U.S. 438; dissenting opinion. _
2 138 SCRA 146, 161.
ARTICLE 36
G.R. No. 186597, June 17, 2015
PEOPLE OF THE PHILIPPINES, Petitioner, v. VICTORIA R. ARAMBULO AND MIGUEL
ARAMBULO, JR., Respondents.
DECISION
PEREZ, J.:
This Petition for Review on Certiorari seeks to annul the Decision1 and Resolution2 dated 5
February 2008 and 27 February 2009, respectively of the Court of Appeals, Seventeenth
Division in CA-G.R. SP No. 86353 which effectively suspended the criminal proceedings in
Criminal Case No. C-62784, an estafa case against respondents before the Regional Trial
Court (RTC), Branch 121, Caloocan City.
Records show that respondent Victoria R. Arambulo (Victoria), Emerenciana R. Gungab,
Reynaldo Reyes (Reynaldo), Domingo Reyes (Domingo), Rodrigo Reyes and Oscar Reyes
(Oscar) are the heirs of Spouses Pedro C. Reyes and Anastacia Reyes. Anaped Estate Inc.
(Anaped) was incorporated as part of the estate planning or as conduit to hold the properties of
the estate of Pedro Reyes for and in behalf of his heirs.
Jose Buban (Buban), as Vice-President and General Manager of Anaped Estate Inc.
(Anaped), filed a complaint for estafa against Victoria and her husband Miguel Arambulo, Jr.
(Miguel) before the Office of the City Prosecutor of Caloocan City. He alleged that Victoria
failed to remit the rentals collected from the time the ownership of the commercial apartments
was transferred to Anaped.
On 24 April 2001, Assistant City Prosecutor Alvin A. Almora recommended the filing of an
Information against respondents. On 1 June 2001, respondents were charged with estafa
committed as follow:
That on [or] about the period from December, 1994 to June, 1997, in the City of Caloocan,
Philippines, and within the jurisdiction of the Honorable Court, the said accused, conspiring
together and mutually helping one another, and with unfaithfulness or abuse of confidence,
after having received rentals from IMF International Corporation, in the total amount of THREE
HUNDRED NINETEEN THOUSAND EIGHT HUNDRED EIGHTY-EIGHT (P319,888.00)
PESOS, under the express obligation of turning over or remitting the same to ANAPED
ESTATE INCORPORATED, once in possession of the said amount and far from complying
with their obligation aforesaid and despite notice [to] that effect, the said accused did then and
there willfully, unlawfully and feloniously misappropriate, misapply, and convert the said
amount to their own personal use and benefit to the damage and prejudice of ANAPED
ESTATE, INC., in the sum above-aforementioned.3
On 14 April 2003, respondents filed a Motion to Suspend Proceedings on the ground of a
prejudicial question in view of the pendency of two intra-corporate cases pending before the
RTC of Quezon City and Makati City. SEC Case No. 05-97-5659 is a petition filed by Victoria’s
brother Oscar for accounting of all corporate funds and assets of Anaped, annulment of sale,
injunction, receivership and damages.4 SEC Case No. 03-99-6259 is a petition filed by Victoria
and her brothers Reynaldo and Domingo questioning the authority of their elder sibling Rodrigo
Reyes and Emerenciana R. Gungab, as well as the Anaped Board of Directors and officers,
including private complainant Buban to act for and in behalf of the corporation.5chanrobleslaw
In their motion to suspend proceedings, respondents asserted that the resolution of the SEC
cases in their favor particularly the issues of whether of the group of Rodrigo and Buban are
the lawful representatives of the corporation and whether they are duly authorized to make a
demand for remittance would necessarily result in their acquittal in the criminal case.
On 28 August 2003, the trial court, through Presiding Judge Adoracion G. Angeles, granted the
motion for suspension of the proceedings. The trial court reasoned that the issue in the SEC
cases, i.e., who between the groups has the right to act for and in behalf of the corporation,
has a direct link to the issue of the culpability of the accused for estafa, thus:
For indeed, if the aforesaid issues are resolved in the [respondent’s] favor, they cannot be held
liable for misappropriation for they possess the authority to collect rentals and hold the same
on behalf of the firm. They would then be justified in not remitting the collections to the group of
Jose Buban who would be then deemed as mere usurpers of authority.6
Acting on the Motion for Reconsideration filed by petitioner, the trial court issued an Order
dated 19 February 2004 setting aside its 28 August 2003 Order and setting the case for pre-
trial. The trial court noted that respondents failed to file an opposition to the motion for
reconsideration.
Respondents filed an Omnibus Motion praying that they be allowed to file their
Comment/Opposition to the motion for reconsideration and that the pre-trial be held in
9
abeyance. Respondents claimed that the Order of the trial court to file comment/opposition
was served on respondents themselves and not on their counsel.
On 23 June 2004, the trial court denied respondents’ Omnibus Motion. The trial court stressed
that even if the order was served upon respondents and not upon their counsel, records show
that a copy of the motion for reconsideration was served by registered mail upon counsel.
Thus, the trial court stated that respondents’ counsel was well aware of the existence of the
motion for reconsideration, thus he could have taken the initiative to file his comment thereto
without waiting for any directive from the court.
Aggrieved, respondents filed a petition for certiorari before the Court of Appeals asserting that
the trial court committed grave abuse of discretion when it denied them the opportunity to file
their comment; when it ruled that respondents’ counsel should have filed the comment as he
was furnished a copy of the motion for reconsideration; and when it granted petitioner’s motion
for reconsideration.
On 5 February 2008, the Court of Appeals granted the petition. The dispositive portion reads:
WHEREFORE, the assailed Orders of the respondent Judge dated February 19, 2004 and
July 23, 2004 are REVERSED and SET ASIDE and she is hereby enjoined from hearing the
Criminal Case No. C-62784 until the termination of the SEC Case No. 03-99-6259. The August
28, 2003 Order of the respondent Judge is hereby REINSTATED.7
Preliminarily, on the procedural question, the Court of Appeals pointed out that respondents
were given the opportunity to present their side in their motion to suspend proceedings. The
appellate court treated respondents’ arguments in said motion as their Comment/Opposition to
the Motion for Reconsideration filed by petitioner. That is correct.
The appellate court ruled that in SEC Case No. 03-99-6259:
[T]he issue is the legality of the election of Anaped Board of Directors, as well as the authority
of its officers, which include private complainant Jose Buban, to act for and in behalf of the
corporation. Clearly, it involves facts that are intimately related to those upon which the
criminal case is based. The resolution of the issues raised in this intra-corporate dispute will
ultimately determine the guilt or innocence of [respondents] in the crime of estafa initiated by
Jose Buban. It must be remembered that one of the elements of the crime of estafa with abuse
of confidence under paragraph 1 (b) of Article 315 of the Revised Penal Code is a demand
made by the offended party to the offender. A valid demand must therefore be made by an
offended party to the offender.8
The appellate court added that since respondents are challenging the authority of Buban, then
the validity of Buban’s demand to turn over or remit the rentals is put in question. The appellate
court concluded that if the supposed authority of Buban is found to be defective, it is as if no
demand was ever made, hence the prosecution for estafa cannot prosper.
Petitioner filed a motion for reconsideration but it was denied in a Resolution dated 27
February 2009.
In this petition for review on certiorari, petitioner raises the lone ground of whether the Court of
Appeals erred in declaring that there exists a prejudicial question which calls for the
suspension of the criminal proceedings before the trial court.
Petitioner argues that any decision of the trial court in the SEC cases with respect to the
question of who are the lawful officers or directors of Anaped is not determinative of the liability
of respondents to remit the rental collections in favor of Anaped. Petitioner proffers that a
corporation has a personality distinct and separate from its individual stockholders. Petitioner
emphasizes that at the time the demand for remittance of the rental collections was made
against respondents, Buban was an officer of Anaped and until such time that his authority is
validly revoked, all his previous acts are valid and binding. Moreover, petitioner avers that the
duty of respondents to remit the collection still subsists even during the pendency of the SEC
cases as the money remitted goes directly to the corporation and not to the person who
demanded the remittance. Finally, petitioner opines that question pertaining to the authority of
Buban to demand remittance may only be considered as a defense in the estafa case and not
as a ground to suspend the proceedings.
A prejudicial question is one that arises in a case the resolution of which is a logical
antecedent of the issue involved therein, and the cognizance of which pertains to another
tribunal. It is a question based on a fact distinct and separate from the crime but so intimately
connected with it that it determines the guilt or innocence of the accused, and for it to suspend
the criminal action, it must appear not only that said case involves facts intimately related to
those upon which the criminal prosecution would be based but also that in the resolution of the
issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily
be determined.9chanrobleslaw
Section 7, Rule 111 of the 2000 Rules of Criminal Procedure prescribes the elements that
must concur in order for a civil case to be considered a prejudicial question, to wit:
Section 7. Elements of prejudicial question. – The elements of a prejudicial question are: (a)
the previously instituted civil action involves an issue similar or intimately related to the issue
raised in the subsequent criminal action, and (b) the resolution of such issue determines
whether or not the criminal action may proceed.
Aptly put, the following requisites must be present for a civil action to be considered prejudicial
to a criminal case as to cause the suspension of the criminal proceedings until the final
10
resolution of the civil case: (1) the civil case involves facts intimately related to those upon
which the criminal prosecution would be based; (2) in the resolution of the issue or issues
raised in the civil action, the guilt or innocence of the accused would necessarily be
determined; and (3) jurisdiction to try said question must be lodged in another
tribunal.10chanrobleslaw
As correctly stated by the Court of Appeals, SEC Case No. 05-97-5659 does not present a
prejudicial question to the criminal case for estafa. It is an action for accounting of all corporate
funds and assets of Anaped, annulment of sale, injunction, receivership and damages. Even if
said case will be decided against respondents, they will not be adjudged free from criminal
liability. It also does not automatically follow that an accounting of corporate funds and
properties and annulment of fictitious sale of corporate assets would result in the conviction of
respondents in the estafa case.
With respect to SEC Case No. 03-99-6259, however, we affirm the Court of Appeals’ finding
that a prejudicial question exists. The Complaint in SEC Case No. 03-99-6259 prays for the
nullification of the election of Anaped directors and officers, including Buban. Essentially, the
issue is the authority of the aforesaid officers to act for and behalf of the corporation.
On the other hand, the issue in the criminal case pertains to whether respondents committed
estafa. Under Article 315, paragraph 1(b) of the RPC, the elements of estafa with abuse of
confidence are as follows: (1) that the money, goods or other personal property is received by
the offender in trust or on commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return, the same; (2) that there be misappropriation
or conversion of such money or property by the offender, or denial on his part of such receipt;
(3) that such misappropriation or conversion or denial is to the prejudice of another; and (4)
that there is demand by the offended party to the offender.11chanrobleslaw
The elements of demand and misappropriation bear relevance to the validity or invalidity of the
authority of Anaped directors and officers. In Omictin v. Court of Appeals,12 we held that since
the alleged offended party is the corporation, the validity of the demand for the delivery rests
upon the authority of the person making such a demand on the company’s behalf. If the
supposed authority of the person making the demand is found to be defective, it is as if no
demand was ever made, hence the prosecution for estafa cannot prosper. The Court added
that mere failure to return the thing received for administration or under any other obligation
involving the duty to deliver or return the same or deliver the value thereof to the owner could
only give rise to a civil action and does not constitute the crime of estafa.13chanrobleslaw
It is true that the accused may be convicted of the felony under Article 315, paragraph 1(b) of
the Revised Penal Code if the prosecution proves misappropriation or conversion by the
accused of the money or property subject of the Information. In a prosecution for estafa,
demand is not necessary where there is evidence of misappropriation or conversion.14 The
phrase, “to misappropriate to one’s own use” has been said to include “not only conversion to
one’s personal advantage, but also every attempt to dispose of the property of another without
right.”15 In this case, the resolution of the issue of misappropriation by respondents depends
upon the result of SEC Case No. 03-99-6259. If it is ruled in the SEC case that the present
Anaped directors and officers were not validly elected, then respondent Victoria may have
every right to refuse remittance of rental to Buban. Hence, the essential element of
misappropriation in estafa may be absent in this case.
In this connection, we find important the fact, noted by the CA, that:
It appears from the record of the case that Victoria Arambulo for the last twenty (20) years had
been tasked with the management and collection of rentals of the real properties the Reyes
siblings inherited from their parents, Ana and Pedro Reyes.16
As earlier mentioned, SEC Case No. 03-99-6259 is a petition filed by Victoria and her brothers
Domingo and Reynaldo questioning the very authority of their elder siblings Rodrigo and
Emerenciana, as well as the Anaped Board of Directors and Officers, including Buban to act
for and in behalf of the corporation. We find this issue consonant with the provisions of the
Corporation Code which provides in Section 23 that:
Sec. 23. The Board of Directors or Trustees. - Unless otherwise provided in this Code, the
corporate powers of all corporations formed under this Code shall be exercised, all business
conducted and all property of such corporations controlled and held by the board of directors
or trustees to be elected from among the holders of stocks, or where there is no stock, from
among the members of the corporation, who shall hold office for one (1) year and until their
successors are elected and qualified.
In Valle Verde Country Club, Inc. v. Africa,17 we said that:
The underlying policy of the Corporation Code is that the business and affairs of the
corporation must be governed by a board of directors whose members have stood for
election, and who have actually been elected by the stockholders, on an annual basis. Only in
that way can the directors’ continued accountability to shareholders, and the legitimacy of their
decisions that bind the corporation’s stockholders, be assured. The shareholder vote is critical
to the theory that legitimizes the exercise of power by the directors or officers over properties
that they do not own.
From the foregoing, it is clear that, should respondents herein prevail in SEC Case No. 03-99-
6259, then Buban, who does not own either by himself or in behalf of Anaped which is the
owner, the property heretofore managed by Victoria, cannot demand remittance of the rentals
on the property and Victoria does not have the obligation to turn over the rentals to Buban.
11
Verily, the result of SEC Case No. 03-99-6259 will determine the innocence or guilt of 11Jandusay v. People, G.R. No. 185129, 17 June 2013, 698 SCRA 619, 625 citing Asejo v.
respondents in the criminal case for estafa. People, 555 Phil. 106, 112-113 (2007).

WHEREFORE, the petition is DENIED. The Decision and Resolution of the Court of Appeals
dated 5 February 2008 and 27 February 2009 enjoining the Regional Trial Court of Caloocan
City, Branch 121 from hearing Criminal Case No. C-62784 until the termination of SEC Case
No. 03-99-6259, are AFFIRMED.
SO ORDERED.
12 G.R. No. 148004, 541 Phil. 68, 79 (2007).
13 Id.
14Lee v. People, 495 Phil. 239, 250 citing Salazar v. People, 439 Phil. 762 (2002) citing United
States v. Ramirez, 9 Phil. 67 (1907) and Sy v. People, 254 Phil. 693 (1989).

Sereno, C. J., (Chairperson), Leonardo-De Castro, Reyes,* and Perlas-Bernabe, JJ., concur.

Endnotes: 15Quinto v. People, 365 Phil. 259, 270 (1999).

* Additional member per Raffle dated 20 April 2015. 16Rollo, p. 42.

1Rollo, pp. 33-45; Penned by Associate Justice Regalado E. Maambong with Associate 17 614 Phil. 390, 400 (2009).
Justices Celia C. Librea-Leagogo and Sixto C. Marella, Jr. concurring.

2 Id. at 47-48.

3 Id. at 49.

4 CA rollo, pp. 49-56.

5Rollo, p. 36.

6 Id. at 51.

7 Id. at 44.

8 Id. at 42. (Emphasis omitted).

9Pimentel v. Pimentel, et al., 645 Phil. 1, 6 (2010) citing Go v. Sandiganbayan (First Division),
559 Phil. 338, 341 (2007).

10Sabandal v. Tongco, 419 Phil. 13, 17 (2001) citing Prado v. People, 218 Phil. 573, 577
(1984).

12

ARTICLES 40–41
G.R. No. L-16439 July 20, 1961
ANTONIO GELUZ, petitioner, vs. THE HON. COURT OF APPEALS and OSCAR LAZO,
respondents. Mariano H. de Joya for petitioner. A.P. Salvador for respondents.
REYES, J.B.L., J.:
This petition for certiorari brings up for review question whether the husband of a woman, who
voluntarily procured her abortion, could recover damages from physician who caused the
same.
The litigation was commenced in the Court of First Instance of Manila by respondent Oscar
Lazo, the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the
merits of the complaint upon the evidence adduced, the trial court rendered judgment favor of
plaintiff Lazo and against defendant Geluz, ordering the latter to pay P3,000.00 as damages,
P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a special
division of five, sustained the award by a majority vote of three justices as against two, who
rendered a separate dissenting opinion.
The facts are set forth in the majority opinion as follows:
Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 —
through her aunt Paula Yambot. In 1950 she became pregnant by her present husband before
they were legally married. Desiring to conceal her pregnancy from her parent, and acting on
the advice of her aunt, she had herself aborted by the defendant. After her marriage with the
plaintiff, she again became pregnant. As she was then employed in the Commission on
Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the
defendant in October 1953. Less than two years later, she again became pregnant. On
February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida,
she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila,
where the three met the defendant and his wife. Nita was again aborted, of a two-month old
foetus, in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this
time in the province of Cagayan, campaigning for his election to the provincial board; he did
not know of, nor gave his consent, to the abortion.
It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of
damages. Upon application of the defendant Geluz we granted certiorari.
The Court of Appeals and the trial court predicated the award of damages in the sum of
P3,000.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the
Philippines. This we believe to be error, for the said article, in fixing a minimum award of
P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not
endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza
la categoria de persona natural y en consscuencia es un ser no nacido a la vida del Derecho"
(Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable of having
rights and obligations.
Since an action for pecuniary damages on account of personal injury or death pertains
primarily to the one injured, it is easy to see that if no action for such damages could be
instituted on behalf of the unborn child on account of the injuries it received, no such right of
action could derivatively accrue to its parents or heirs. In fact, even if a cause of action did
accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since
no transmission to anyone can take place from on that lacked juridical personality (or juridical
capacity as distinguished from capacity to act). It is no answer to invoke the provisional
personality of a conceived child (conceptus pro nato habetur) under Article 40 of the Civil
Code, because that same article expressly limits such provisional personality by imposing the
condition that the child should be subsequently born alive: "provided it be born later with the
condition specified in the following article". In the present case, there is no dispute that the
child was dead when separated from its mother's womb.
The prevailing American jurisprudence is to the same effect; and it is generally held that
recovery can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F.
Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the
editorial note, 10 ALR, (2d) 639).
This is not to say that the parents are not entitled to collect any damages at all. But such
damages must be those inflicted directly upon them, as distinguished from the injury or
violation of the rights of the deceased, his right to life and physical integrity. Because the
13
parents can not expect either help, support or services from an unborn child, they would Concepcion, J., took no part.
normally be limited to moral damages for the illegal arrest of the normal development of the
spes hominis that was the foetus, i.e., on account of distress and anguish attendant to its loss, De Leon, J., took no part.
and the disappointment of their parental expectations (Civ. Code Art. 2217), as well as to
exemplary damages, if the circumstances should warrant them (Art. 2230). But in the case
before us, both the trial court and the Court of Appeals have not found any basis for an award
of moral damages, evidently because the appellee's indifference to the previous abortions of
his wife, also caused by the appellant herein, clearly indicates that he was unconcerned with
the frustration of his parental hopes and affections. The lower court expressly found, and the
majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the
second abortion; and the probabilities are that he was likewise aware of the first. Yet despite
the suspicious repetition of the event, he appeared to have taken no steps to investigate or
pinpoint the causes thereof, and secure the punishment of the responsible practitioner. Even
after learning of the third abortion, the appellee does not seem to have taken interest in the
administrative and criminal cases against the appellant. His only concern appears to have
been directed at obtaining from the doctor a large money payment, since he sued for
P50,000.00 damages and P3,000.00 attorney's fees, an "indemnity" claim that, under the
circumstances of record, was clearly exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged by the
abortion which his wife has deliberately sought at the hands of a physician would be
highminded rather than mercenary; and that his primary concern would be to see to it that the
medical profession was purged of an unworthy member rather than turn his wife's indiscretion
to personal profit, and with that idea in mind to press either the administrative or the criminal
cases he had filed, or both, instead of abandoning them in favor of a civil action for damages of
which not only he, but also his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without
medical necessity to warrant it, was a criminal and morally reprehensible act, that cannot be
too severely condemned; and the consent of the woman or that of her husband does not
excuse it. But the immorality or illegality of the act does not justify an award of damage that,
under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.

Let a copy of this decision be furnished to the Department of Justice and the Board of Medical
Examiners for their information and such investigation and action against the appellee Antonio
Geluz as the facts may warrant.

Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.

14

ARTICLE 43
G.R. No. L-5426 May 29, 1953
RAMON JOAQUIN, petitioner, vs. ANTONIO C. NAVARRO, respondent.
Agrava, Peralta & Agrava for petitioner.
Leonardo Abola for respondent.
TUASON, J.:
This three proceedings was instituted in the Court of First Instance of Manila in the summary
settlement of states of Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro, Joaquin
Navarro, Jr., and Pilar Navarro, deceased. All of them having been heard jointly, Judge Rafael
Amparo handed down a single decision which was appealed to the Court of Appeals, whose
decision, modifying that the Court of First Instance, in turn was elevated to the Supreme Court
for review.
The main question represented in the first two courts related to the sequence of the deaths of
Joaquin Navarro, Sr., his wife, and their children, all of whom were killed in the massacre of
civilians by Japanese troops in Manila in February 1945. The trial court found the deaths of this
persons to have accurred in this order: 1st. The Navarro girls, named Pilar, Concepcion and
Natividad; 2nd. Joaquin Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and 4th, Joaquin
Navarro, Sr. The Court of Appeals concurred with the trial court except that, with regard to
Angela Joaquin de Navarro and Joaquin Navarro, Jr., the latter was declared to have survived
his mother.
It is this modification of the lower court's finding which is now being contested by the petitioner.
The importance of the question whether Angela Joaquin de Navarro died before Joaquin
Navarro, Jr., or vice versa, lies in the fact that it radically affects the rights of succession of
Ramon Joaquin, the present petitioner who was an acknowledged natural child of Angela
Joaquin and adopted child of the deceased spouses, and Antonio C. Navarro, respondent, son
of Joaquin Navarro, Sr. by first marriage.
The facts, which is not disputed, are outlined in the statement in the decision of the Court of
Appeals as follows:
"On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses
Joaquin Navarro, Sr. and Angela Joaquin, together with their three daughters, Pilar,
Concepcion, and Natividad, and their son Joaquin Navarro, Jr., and the latter's wife, Adela
Conde, sought refuge in the ground floor of the building known as the German Club, at the
corner of San Marcelino and San Luis Streets of this City. During their stay, the building was
packed with refugees, shells were exploding around, and the Club was set on fire.
Simultaneously, the Japanese started shooting at the people inside the building, especially
those who were trying to escape. The three daughters were hit and fell of the ground near the
entrance; and Joaquin Navarro, Sr., and his son decided to abandon the premises to seek a
safer heaven. They could not convince Angela Joaquin who refused to join them; and son
Joaquin Navarro, Sr., his son, Joaquin Navarro, Jr., and the latter's wife, Angela Conde, and a
friend and former neighbor, Francisco Lopez, dashed out of the burning edifice. As they came
out, Joaquin Navarro, Jr. was shot in the head by a Japanese soldier and immediately
dropped. The others lay flat on the ground in front of the Club premises to avoid the bullets.
Minutes later, the German Club, already on fire, collapsed, trapping many people inside,
presumably including Angela Joaquin.
"Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and Francisco Lopez managed to reach an
air raid shelter nearby, the stayed there about three days, until February 10, 1915, when they
were forced to leave the shelter be- cause the shelling tore it open. They flied toward the St.
Theresa Academy in San Marcelino Street, but unfortunately met Japanese Patrols, who fired
at the refugees, killing Joaquin Navarro, Sr., and his daughter-in-law.
"At the time of the masaccre, Joaquin Navarro, Sr. was aged 70; his wife Angela Joaquin was
about 67 years old; Joaquin Navarro, Jr., about 30; Pilar Navarro was two or three years older
than her brother; while the other sisters, Concepcion and Natividad Navarro y Joaquin, were
between 23 and 25."
The Court of Appeals' finding were all taken from the testimony of Francisco Lopez, who
miraculously survived the holocaust, and upon them the Court of Appeals opined that, "as
between the mother Angela Joaquin and the son Joaquin Navarro, Jr., the evidence of the
survivorship is uncertain and insufficient" and the statutory presumption must be applied. The
appellate Court's reasoning for its conclusion is thus stated:
"It does not require argument to show that survivorship cannot be established by proof of the
death of only one of the parties; but that there must be adequate proof that one was alive when
the other had already died. Now in this case before us, the testimony of the sole witness Lopez
15
is to the effect that Joaquin Navarro, Jr. was shot and died shortly after the living the German
Club in the company of his father and the witness, and that the burning edified entirely
collapsed minutes after the shooting of the son; but there is not a scintilla of evidence, direct or
circumstantial, from which we may infer the condition of the mother, Angela Joaquin, during
the appreciable interval from the instant his son turned his back to her, to dash out to the Club,
until he died. All we can glean from the evidence is that Angela Joaquin was unhurt when her
son left her to escape from the German Club; but she could have died almost immediately
after, from a variety of causes. She might have been shot by the Japanese, like her daughters,
killed by falling beams from the burning edifice, overcome by the fumes, or fatally struck by
splinters from the exploding shells. We cannot say for certain. No evidence is available on the
point. All we can decide is that no one saw her alive after her son left her aside, and that there
is no proof when she died. Clearly, this circumstance alone cannot support a finding that she
died latter than her son, and we are thus compelled to fall back upon the statutory
presumption. In deed, it could be said that the purpose of the presumption of survivorship
would be precisely to afford a solution to uncertainties like these. Hence the son Joaquin
Navarro, Jr. aged 30, must be deemed to have survived his mother, Angela Joaquin, who was
admittedly above 60 years of age (Rule 123, sec. 69, subsec. (ii), Rules of Court).
"The total lack of evidence on how Angela Joaquin died likewise disposes of the question
whether she and her deceased children perished in the same calamity. There being no
evidence to the contrary, the only guide is the occasion of the deaths, which is identical for all
of them; that battle for the liberation of Manila. A second reason is that the law, in declaring
that those fallen in the same battle are to be regarded as perishing in the same calamity, could
not overlooked that a variety of cause of death can ( and usually do) operate in the source of
combats. During the same battle, some may die from wounds, other from gages, fire, or
drowning. It is clear that the law disregards episodic details, and treats the battle as an overall
cause of death in applying the presumption of survivorship.
"We are thus led the conclusion that the order in which the members of the Navarro-Joaquin
family met their end is as follows: first, the three daughters Pilar, Concepcion, and Natividad;
then the mother Angela Joaquin; then the son Joaquin Navarro, Jr., and days later (of which
there is no doubt), the father Joaquin Navarro, Sr."
Much space in the briefs is taken in a discussion of whether section 334(37) of Act No. 129,
now section 69 (ii) of Rule 123 of the Rules of Court, has repealed article 33 of the civil code of
1889, now article 43 of the New Civil Code. It is the contention of the petitioner that it did not,
and that on the assumption that there is total lack of evidence, as the Court of Appeals said,
then Angela Joaquin and Joaquin Navarro, Jr. should, under article 33, be held to have died at
the same time.
The point is not of much if any relevancy and will be left open for the consideration when
obsolute necessity there for arises. We say irrelevant because our opinion is that neither of the
two provisions is applicable for the reasons to be presently set forth.
Rule 123, section 69 (ii) of the Revised Rules of Court, reads:
When two person perish in the same calamity, such as wreck, battle or conflagration, and it is
not (1) shown who died first, and there are no (2) particular circumstances from when it can be
inferred, the survivorship is presumed from the probabilities resulting from the strength and
ages of the sexes, according to the following rules:
xxx xxx xxx
Article 33 of the Civil Code of 1889 of the following tenor:
Whenever a doubt arises as to which was the first to die to the two or more persons who would
inherent one from the other, the persons who alleges the prior death of either must prove the
allegation; in the absence of proof the presumption shall be that they died at the same time,
and no transmission of rights from one to the other shall take place.
Most provisions, as their language plainly implies, are intended as a substitute for lacks and so
are not to be available when there are facts. With particular reference to section 69 (ii) of Rule
123, "the situation which it present is one in which the facts are not only unknown but
unknowable. By hypothesis, there is no specific evidence as to the time of death . . . ." . . . it is
assumed that no evidence can be produced. . . . Since the facts are unknown and
unknowable, the law may apply the law of fairness appropriate to the different legal situation
that arises." (IX Wigmore on Evidence, 1940 ed., 483.)
In In re Wallace's Estate, 220 Pac. 683, which the Court of Appeals cited the applied with the
respect to the deaths of the Navarro girls, pointing out that "our rule is taken from the Fourth
Division of sec. 1936 of the California Code of Civil Procedure," the Supreme Court of
California said:
When the statue speaks of "particular circumstances from which it can be inferred" that one
died before the other it means that there are circumstances from which the fact of death by
one before the other may be inferred as a relation conclusion from the facts proven. The statue
does not mean circumstances which would shown, or which would tend to show, probably that
one died before the other. Grand Lodge A.O.W.W. vs. Miller, 8 Cal. App. 28, 96 Pac. 22. When
by circumstantial evidence alone, a party seeks to prove a survivorship contrary to the
statutory presumption, the circumstances by which it is sought to prove the survivorship must
be such as are competent and sufficient when tested by the general rules of evidence in civil
cases. The inference of survivorship cannot rest upon mere surmise, speculation, or
conjecture. As was said in Grand Lodge vs. Miller, supra, "if the matter is left to probably, then
the statue of the presumption."
16
It is manifest from the language of section 69 (ii) of Rule 123 and of that of the foregoing Q. Can you tell the Honorable Court when did Angela Joaquin die? — A. Well, a few minutes
decision that the evidence of the survivorship need not be direct; it may be indirect, after we have dashed out, the German Club, which was burning, collapsed over them,
circumstantial, or inferential. Where there are facts, known or knowable, from which a rational including Mrs. Joaquin Navarro, Sr.
conclusion can be made, the presumption does not step in, and the rule of preponderance of
evidence controls. xxx xxx xxx

Are there particular circumstances on record from which reasonable inference of survivorship
between Angela Joaquin and her son can be drawn? Is Francisco Lopez' testimony competent
and sufficient for this purpose? For a better appreciation of this issue, it is convenient and
necessary to detail the testimony, which was described by the trial court as "disinterested and
trustworthy" and by the Court of Appeals as "entitled to credence."
Q. From your testimony it would appear that while you can give positive evidence to the fact
that Pilar, Concepcion and Natividad Navarro, and Joaquin Navarro, Jr. died, you can not give
the same positive evidence to the fact that Angela Joaquin also died? — A. Yes, sir, in the
sense that I did not see her actually die, but when the building collapsed over her I saw and I
am positive and I did not see her come out of that building so I presumed she died there.

Lopez testified: xxx xxx xxx

Q. You said you were also heat at that time as you leave the German Club with Joaquin
Navarro, Sr., Joaquin Navarro, Jr. and the latter's wife?- A. Yes, sir.
Q. Did you fall? — A. I fell down.
Q. And you said you fell down close to Joaquin Navarro, Jr.? A. Yes, sir.
Q. When the German Club collapsed where were you? — A. We were out 15 meters away
from the building but I could see what was going on.
xxx xxx xxx
Q. Could there have been an interval of fifteen minutes between the two events, that is the
shooting of Joaquin Navarro, Jr. and the collapse of the German Club? — A. Yes, sir, I could
not say exactly, Occasions like that, you know, you are confused.
Q. Could there (have) been an interval of an hour instead of fifteen minutes? — A. Possible,
but not probable.
Q. Could it have been 40 minutes? — A. Yes, sir, about 40 minutes.
Q. Why did you have to dash out of the German Club, you, Mr. Joaquin Navarro, Sr. and Mr.
Joaquin Navarro Jr. and the latter's wife? — A. Because the Japanese had set fire to the Club
and they were shooting people outside, so we thought of running away rather than be roasted.
xxx xxx xxx
Q. You mean to say that before you jumped out of the German Club all the Navarro girls, Pilar,
Concepcion, and Natividad, were already wounded? — A. to my knowledge, yes.
Q. They were wounded? — A. Yes, sir.
Q. Were they lying on the ground or not? — A. On the ground near the entrance, because
most of the people who were shot by the Japanese were those who were trying to escape, and
as far as I can remember they were among those killed.
xxx xxx xxx
Q. So you noticed that they were killed or shot by the Japanese a few minutes before you left
the place? — A. That is what I think, because those Japanese soldiers were shooting the
people inside especially those trying to escape.

xxx xxx xxx xxx xxx xxx

Q. You also know that Angela Joaquin is already dead? — A. Yes, sir. Q. And none of them was not except the girls, is that what you mean? A — . There were many
people shot because they were trying to escape.

17
xxx xxx xxx
Q. How come that these girls were shot when they were inside the building, can you explain
that? — A. They were trying to escape probably.
It is our opinion that the preceding testimony contains facts quite adequate to solve the
problem of survivorship between Angela Joaquin and Joaquin Navarro, Jr. and keep the
statutory presumption out of the case. It is believed that in the light of the conditions painted by
Lopez, a fair and reasonable inference can be arrived at, namely: that Joaquin Navarro, Jr.
died before his mother.
While the possibility that the mother died before the son can not be ruled out, it must be noted
that this possibility is entirely speculative and must yield to the more rational deduction from
proven facts that it was the other way around. Joaquin Navarro, Jr., it will be recalled, was
killed, while running, in front of, and 15 meters from, the German Club. Still in the prime of life,
30, he must have negotiated that distance in five seconds or less, and so died within that
interval from the time he dashed out of the building. Now, when Joaquin Navarro, Jr. with his
father and wife started to flee from the clubhouse, the old lady was alive and unhurt, so much
so that the Navarro father and son tried hard to have her come along. She could have perished
within those five or fewer seconds, as stated, but the probabilities that she did seem very
remote. True, people in the building were also killed but these, according to Lopez, were
mostly refugees who had tried to slip away from it and were shot by Japanese troops. It was
not very likely that Mrs. Joaquin Navarro, Sr. made an attempt to escape. She even made
frantic efforts to dissuade her husband and son from leaving the place and exposing
themselves to gun fire.
This determination of Mrs. Angela Joaquin to stay where she was may well give an idea, at the
same time, of a condition of relative safety in the clubhouse at the moment her husband, son,
and daughter-in-law left her. It strongly tends to prove that, as the situation looked to her, the
perils of death from staying were not so imminent. And it lends credence to Mr. Lopez'
statement that the collapse of the clubhouse occurred about 40 minutes after Joaquin Navarro
the son was shot in the head and dropped dead, and that it was the collapse that killed Mrs.
Angela Navarro. The Court of Appeals said the interval between Joaquin Navarro's death and
the breaking down of the edifice was "minutes". Even so, it was much longer than five
seconds, long enough to warrant the inference that Mrs. Angela Joaquin was sill alive when
her son expired
The Court of Appeals mentioned several causes, besides the collapse of the building, by which
Mrs. Navarro could have been killed. All these are speculative , and the probabilities, in the
light of the known facts, are against them. Dreading Japanese sharpshooters outside as
evidenced by her refusal to follow the only remaining living members of her family, she could
not have kept away form protective walls. Besides, the building had been set on fire trap the
refugees inside, and there was no necessity for the Japanese to was their ammunition except
upon those who tried to leave the premises. Nor was Angela Joaquin likely to have been killed
by falling beams because the building was made of concrete and its collapse, more likely than
not, was sudden. As to fumes, these do not cause instantaneous death; certainly not within the
brief space of five seconds between her son's departure and his death.
It will be said that all this is indulging in inferences that are not conclusive. Section 69(ii) of
Rule 123 does not require that the inference necessary to exclude the presumption therein
provided be certain. It is the "particular circumstances from which it (survivorship) can be
inferred" that are required to be certain as tested by the rules of evidence. In speaking of
inference the rule can not mean beyond doubt, for "inference is never certainty, but if may be
plain enough to justify a finding of fact." (In re Bohenko's Estate, 4 N.Y.S. 2nd. 427, citing
Tortora vs. State of New York, 269 N.Y. 199 N.E. 44; Hart vs. Hudson River Bridge Co., 80
N.Y.). 622.) As the California courts have said, it is enough that "the circumstances by which it
is sought to prove the survivorship must be such as are competent and sufficient when tested
by the general rules of evidence in civil cases." (In re Wallace's Estate, supra.) "Juries must
often reason," says one author, "according to probabilities, drawing an inference that the main
fact in issue existed from collateral facts not directly proving, but strongly tending to prove, its
existence. The vital question in such cases is the cogency of the proof afforded by the
secondary facts. How likely, according to experience, is the existence of the primary fact if
certain secondary facts exist?" (1 Moore on Facts, Sec. 596.) The same author tells us of a
case where "a jury was justified in drawing the inference that the person who was caught firing
a shot at an animal trespassing on his land was the person who fired a shot about an hour
before at the same animal also trespassing." That conclusion was not airtight, but rational. In
fact, the circumstances in the illustration leave greater room for another possibility than do the
facts of the case at hand.
In conclusion the presumption that Angela Joaquin de Navarro died before her son is based
purely on surmises, speculations, or conjectures without any sure foundation in the evidence.
the opposite theory — that the mother outlived her son — is deduced from established facts
which, weighed by common experience, engender the inference as a very strong probability.
Gauged by the doctrine of preponderance of evidence by, which civil cases are decided, this
inference ought to prevail. It can not be defeated as in an instance, cited by Lord Chief Justice
Kenyon, "bordering on the ridiculous, where in an action on the game laws it was suggested
that the gun with which the defendant fired was not charged with shot, but that the bird might
have died in consequence of the fright." (1 Moore on Facts, 63, citing Wilkinson vs. Payne, 4 T.
R. 468.)
It is said that part of the decision of the Court of Appeals which the appellant impugns, and
which has been discussed, involves findings of fact which can not be disturbed. The point is
not, in our judgment, well considered. The particular circumstances from which the parties and
the Court of Appeals drew conclusions are, as above seen, undisputed, and this being the
case, the correctness or incorrectness of those conclusions raises a question of law, not of
fact, which the Supreme Court has jurisdiction to look into. As was said in 1 Moran
Commentaries on the Rules of ?Court, 3rd Ed. 856, 857, "Undisputed evidence is one thing,
18
and contradicted evidence is another. An incredible witness does not cease to be such
because he is not impeached or contradicted. But when the evidence is purely documentary,
the authenticity of which is not questioned and the only issue is the construction to be placed
thereon, or where a case is submitted upon an agreement of facts, or where all the facts are
stated in the judgment and the issue is the correctness of the conclusions drawn therefrom, the
question is one of law which may be reviewed by the Supreme Court."

The question of whether upon given facts the operation of the statutory presumption is to be
invoked is a question of law.

The prohibition against intermeddling with decisions on questions of evidence refers to

decisions supported by substantial evidence. By substantial evidence is meant real evidence
or at least evidence about which reasonable men may disagree. Findings grounded entirely on
speculations, surmises, or conjectures come within the exception to the general rule.

We are constrained to reverse the decision under review, and hold that the distribution of the
decedents' estates should be made in accordance with the decision of the trial court. This
result precludes the necessity of passing upon the question of "reserva troncal" which was put
forward on the hypothetical theory that Mrs. Joaquin Navarro's death preceded that of her son.
Without costs.

Feria, Pablo, Bengzon, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.

19

ARTICLE 43
[G.R. No. L-30671. November 28, 1973.]
REPUBLIC OF THE PHILIPPINES, Petitioner, v. HON. GUILLERMO P. VILLASOR, as
Judge of the Court of First Instance of Cebu, Branch I, THE PROVINCIAL-SHERIFF OF
RIZAL, THE SHERIFF OF QUEZON CITY, and THE SHERIFF OF THE CITY OF MANILA,
THE CLERK OF COURT, Court of First Instance of Cebu, P.J. KIENER CO., LTD.,
GAVINO UNCHUAN, and INTERNATIONAL CONSTRUCTION CORPORATION,
Respondents.
Solicitor General Felix V . Makasiar and Solicitor Bernardo P. Pardo for Petitioner.
Andres T . Velarde & Marcelo B. Fernan for Respondents.
DECISION
FERNANDO, J.:
The Republic of the Philippines in this certiorari and prohibition proceeding challenges the
validity of an order issued by respondent Judge Guillermo P. Villasor, then of the Court of First
Instance of Cebu, Branch I, 1 declaring a decision final and executory and of an alias writ of
execution directed against the funds of the Armed Forces of the Philippines subsequently
issued in pursuance thereof, the alleged ground being excess of jurisdiction, or at the very
least, grave abuse of discretion. As thus simply and tersely put, with the facts being undisputed
and the principle of law that calls for application indisputable, the outcome is predictable. The
Republic of the Philippines is entitled to the writs prayed for. Respondent Judge ought not to
have acted thus. The order thus impugned and the alias writ of execution must be nullified.
In the petition filed by the Republic of the Philippines on July 7, 1969, a summary of facts was
set forth thus: "7. On July 3, 1961, a decision was rendered in Special Proceedings No. 2156-
R in favor of respondents P. J. Kiener Co., Ltd., Gavino Unchuan, and International
Construction Corporation, and against the petitioner herein, confirming the arbitration award in
the amount of P1,712,396.40, subject of Special Proceedings. 8. On June 24, 1969,
respondent Honorable Guillermo P. Villasor, issued an Order declaring the aforestated
decision of July 3, 1961 final and executory, directing the Sheriffs of Rizal Province, Quezon
City [as well as] Manila to execute the said decision. 9. Pursuant to the said Order dated June
24, 1969, the corresponding Alias Writ of Execution [was issued] dated June 26, 1969, . . . 10.
On the strength of the afore-mentioned Alias Writ of Execution dated June 26, 1969, the
Provincial Sheriff of Rizal (respondent herein) served notices of garnishment dated June 28,
1969 with several Banks, specially on the `monies due the Armed Forces of the Philippines in
the form of deposits, sufficient to cover the amount mentioned in the said Writ of Execution’;
the Philippine Veterans Bank received the same notice of garnishment on June 30, 1969 . . .
11. The funds of the Armed Forces of the Philippines on deposit with the Banks, particularly,
with the Philippine Veterans Bank and the Philippine National Bank [or] their branches are
public funds duly appropriated and allocated for the payment of pensions of retirees, pay and
allowances of military and civilian personnel and for maintenance and operations of the Armed
Forces of the Philippines, as per Certification dated July 3, 1969 by the AFP Comptroller, . . ."
2 The paragraph immediately succeeding in such petition then alleged: "12. Respondent
Judge, Honorable Guillermo P. Villasor, acted in excess of jurisdiction [or] with grave abuse of
discretion amounting to lack of jurisdiction in granting the issuance of an alias writ of execution
against the properties of the Armed Forces of the Philippines, hence, the Alias Writ of
Execution and notices of garnishment issued pursuant thereto are null and void." 3 In the
answer filed by respondents, through counsel Andres T. Velarde and Marcelo B. Fernan, the
facts set forth were admitted with the only qualification being that the total award was in the
amount of P2,372,331.40. 4
The Republic of the Philippines, as mentioned at the outset, did right in filing this certiorari and
prohibition proceeding. What was done by respondent Judge is not in conformity with the
dictates of the Constitution.
It is a fundamental postulate of constitutionalism flowing from the juristic concept of
sovereignty that the state as well as its government is immune from suit unless it gives its
consent. It is readily understandable why it must be so. In the classic formulation of Holmes: "A
sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on
the logical and practical ground that there can be no legal right as against the authority that
makes the law on which the right depends." 5 Sociological jurisprudence supplies an answer
not dissimilar. So it was indicated in a recent decision, Providence Washington Insurance Co.
v. Republic of the Philippines, 6 with its affirmation that "a continued adherence to the doctrine
of non-suability is not to be deplored for as against the inconvenience that may be caused
20
private parties, the loss of governmental efficiency and the obstacle to the performance of its Zaldivar, Antonio, Fernandez and Aquino, JJ., concur.
multifarious functions are far greater if such a fundamental principle were abandoned and the
availability of judicial remedy were not thus restricted. With the well known propensity on the Barredo, J., did not take part.
part of our people to go to court, at the least provocation, the loss of time and energy required
to defend against law suits, in the absence of such a basic principle that constitutes such an
effective obstacle, could very well be imagined." 7

This fundamental postulate underlying the 1935 Constitution is now made explicit in the
revised charter. It is therein expressly provided: "The State may not be sued without its
consent." 8 A corollary, both dictated by logic and sound sense from such a basic concept is
that public funds cannot be the object of a garnishment proceeding even if the consent to be
sued had been previously granted and the state liability adjudged. Thus in the recent case of
Commissioner of Public Highways v. San Diego, 9 such a well-settled doctrine was restated in
the opinion of Justice Teehankee: "The universal rule that where the State gives its consent to
be sued by private parties either by general or special law, it may limit claimant’s action `only
up to the completion of proceedings anterior to the stage of execution’ and that the power of
the Courts ends when the judgment is rendered, since government funds and properties may
not be seized under writs of execution or garnishment to satisfy such judgments, is based on
obvious considerations of public policy. Disbursements of public funds must be covered by the
corresponding appropriation as required by law. The functions and public services rendered by
the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from
their legitimate and specific objects, as appropriated by law." 10 Such a principle applies even
to an attempted garnishment of a salary that had accrued in favor of an employee. Director of
Commerce and Industry v. Concepcion, 11 speaks to that effect. Justice Malcolm as ponente
left no doubt on that score. Thus: "A rule, which has never been seriously questioned, is that
money in the hands of public officers, although it may be due government employees, is not
liable to the creditors of these employees in the process of garnishment. One reason is, that
the State, by virtue of its sovereignty, may not be sued in its own courts except by express
authorization by the Legislature, and to subject its officers to garnishment would be to permit
indirectly what is prohibited directly. Another reason is that moneys sought to be garnished, as
long as they remain in the hands of the disbursing officer of the Government, belong to the
latter, although the defendant in garnishment may be entitled to a specific portion thereof. And
still another reason which covers both of the foregoing is that every consideration of public
policy forbids it." 12

In the light of the above, it is made abundantly clear why the Republic of the Philippines could
rightfully allege a legitimate grievance.

WHEREFORE, the writs of certiorari and prohibition are granted, nullifying and setting aside
both the order of June 24, 1969 declaring executory the decision of July 3, 1961 as well as the
alias writ of execution issued thereunder. The preliminary injunction issued by this Court on
July 12, 1969 is hereby made permanent.

21
 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.

G.R. No. 119976 September 18, 1995 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
IMELDA ROMUALDEZ-MARCOS, petitioner, 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
vs. that "an order be issued declaring (petitioner) disqualified and canceling the certificate of
candidacy."7
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

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:
KAPUNAN, J.:

[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
A constitutional provision should be construed as to give it effective operation and suppress
on March 20, 1995. The Corrected/Amended Certificate of Candidacy should have been filed
the mischief at which it is aimed.1 The 1987 Constitution mandates that an aspirant for election
on or before the March 20, 1995 deadline.9
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

22
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
23
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
24
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."
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
To further support the assertion that she could have not been a resident of the First District of of the First District of Leyte and the public respondent's Resolution suspending her
Leyte for more than one year, petitioner correctly pointed out that on January 28, 1995 proclamation, petitioner comes to this court for relief.
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 Petitioner raises several issues in her Original and Supplemental Petitions. The principal
she had been a resident of the district for six months only. 15 issues may be classified into two general areas:

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc I. The issue of Petitioner's qualifications
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:
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.

25

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.
26
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.
27
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.
28
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.
29
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.
30
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:
31
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
32
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
33
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
34
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
35
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 situation, the amendments to the Civil Law being proposed
by the University of the Philippines Law Center would allow absolute divorce which severes the
matrimonial ties, such that the divorced spouses are free to get married a year after the
divorce is decreed by the courts. However, in order to place the husband and wife on an equal
footing insofar as the bases for divorce are concerned, the following are specified as the
grounds for absolute divorce: (1) adultery or having a paramour committed by the respondent
in any of the ways specified in the Revised Penal Code or (2) an attempt by the respondent
against the life of the petitioner which amounts to attempted parricide under the Revised Penal
Code; (3) abandonment of the petitioner by the respondent without just cause for a period of
three consecutive years; or (4) habitual maltreatment.
With respect to property relations, the husband is automatically the administrator of the
conjugal property owned in common by the married couple even if the wife may be the more
astute or enterprising partner. The law does not leave it to the spouses to decide who shall act
as such administrator. Consequently, the husband is authorized to engage in acts and enter
into transactions beneficial to the conjugal partnership. The wife, however, cannot similarly
bind the partnership without the husband's consent.
And while both exercise joint parental authority over their children, it is the father whom the law
designates as the legal administrator of the property pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally through legislations, to
eliminate inequality between men and women in our land. The watershed came on August 3,
1988 when our Family Code took effect which, among others, terminated the unequal
treatment of husband and wife as to their rights and responsibilities.22
36
The Family Code attained this elusive objective by giving new rights to married women and by (b) If the husband subjects her to maltreatment or abusive conduct or insults, making common
abolishing sex-based privileges of husbands. Among others, married women are now given life impossible;
the joint right to administer the family property, whether in the absolute community system or in
the system of conjugal partnership;23 joint parental authority over their minor children, both
over their persons as well as their properties;24 joint responsibility for the support of the
family;25 the right to jointly manage the household;26 and, the right to object to their
husband's exercise of profession, occupation, business or activity.27 Of particular relevance to (c) If the husband compels her to live with his parents, but she cannot get along with her
the case at bench is Article 69 of the Family Code which took away the exclusive right of the mother-in-law and they have constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG 6122);
husband to fix the family domicile and gave it jointly to the husband and the wife, thus:

(d) Where the husband has continuously carried illicit relations for 10 years with different
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court women and treated his wife roughly and without consideration. (Dadivas v. Villanueva, 54 Phil.
shall decide. 92);

The court may exempt one spouse from living with the other if the latter should live abroad or (e) Where the husband spent his time in gambling, giving no money to his family for food and
there are other valid and compelling reasons for the exemption. However, such exemption necessities, and at the same time insulting his wife and laying hands on her. (Panuncio v.
shall not apply if the same is not compatible with the solidarity of the family. (Emphasis Sula, CA, 34 OG 129);
supplied)

(f) If the husband has no fixed residence and lives a vagabond life as a tramp (1 Manresa
Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and 329);
wife to live together, former Madam Justice Alice Sempio-Diy of the Court of Appeals specified
the instances when a wife may now refuse to live with her husband, thus:28

(g) If the husband is carrying on a shameful business at home (Gahn v. Darby, 38 La. Ann.
70).
(2) The wife has the duty to live with her husband, but she may refuse to do so in certain cases
like:

The inescapable conclusion is that our Family Code has completely emancipated the wife from
the control of the husband, thus abandoning the parties' theoretic identity of interest. No less
(a) If the place chosen by the husband as family residence is dangerous to her Life; than the late revered Mr. Justice J.B.L. Reyes who chaired the Civil Code Revision Committee
of the UP Law Center gave this insightful view in one of his rare lectures after retirement:29

xxx xxx xxx

37

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 better stance is to rule that
petitioner reacquired her Tacloban domicile upon the death of her husband in 1989. This is the
necessary consequence of the view that petitioner's Batac dictated domicile did not continue
after her husband's death; otherwise, she would have no domicile and that will violate the
universal rule that no person can be without a domicile at any point of time. This stance also
restores the right of petitioner to choose her domicile before it was taken away by Article 110
of the Civil Code, a right now recognized by the Family Code and protected by the
Constitution. Likewise, I cannot see the fairness of the common law requiring petitioner to
choose again her Tacloban domicile before she could be released from her Batac domicile.
She lost her Tacloban domicile not through her act but through the act of her deceased
husband when he fixed their domicile in Batac. Her husband is dead and he cannot rule her
beyond the grave. The law disabling her to choose her own domicile has been repealed.
Considering all these, common law should not put the burden on petitioner to prove she has
abandoned her dead husband's domicile. There is neither rhyme nor reason for this gender-
based burden.
But even assuming arguendo that there is need for convincing proof that petitioner chose to
reacquire her Tacloban domicile, still, the records reveal ample evidence to this effect. In her
affidavit submitted to the respondent COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to our beloved country, after several requests for my
return were denied by President Corazon C. Aquino, and after I filed suits for our Government
to issue me my passport.
37. But I came home without the mortal remains of my beloved husband, President Ferdinand
E. Marcos, which the Government considered a threat to the national security and welfare.
38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or
in Olot, Tolosa, Leyte, even if my residences there were not livable as they had been
destroyed and cannibalized. The PCGG, however, did not permit and allow me.
38
39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay
City, a friend's apartment on Ayala Avenue, a house in South Forbes Park which my daughter
rented, and Pacific Plaza, all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in
San Jose, Tacloban City, and pursued my negotiations with PCGG to recover my sequestered
residences in Tacloban City and Barangay Olot, Tolosa, Leyte.
40.1 In preparation for my observance of All Saints' Day and All Souls' Day that year, I
renovated my parents' burial grounds and entombed their bones which had been excalvated,
unearthed and scattered.
41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for
permissions to —
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot, Leyte . . . to
make them livable for us the Marcos family to have a home in our own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to
Col. Simeon Kempis, Jr., PCGG Region 8 Representative, allowed me to repair and renovate
my Leyte residences. I quote part of his letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this Commission, that she intends to visit our
sequestered properties in Leyte, please allow her access thereto. She may also cause repairs
and renovation of the sequestered properties, in which event, it shall be understood that her
undertaking said repairs is not authorization for her to take over said properties, and that all
expenses shall be for her account and not reimbursable. Please extend the necessary
courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Niño Shrine residence in
Tacloban City where I wanted to stay and reside, after repairs and renovations were
completed. In August 1994, I transferred from San Jose, Tacloban City, to my residence in
Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay and live there.
It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It
is not disputed that in 1992, she first lived at the house of her brother in San Jose, Tacloban
City and later, in August 1994, she transferred her residence in Barangay Olot, Tolosa, Leyte.
Both Tacloban City and the municipality of Olot are within the First District of Leyte. Since
petitioner reestablished her old domicile in 1992 in the First District of Leyte, she more than
complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the election," i.e.,
the May 8, 1995 elections.
The evidence presented by the private respondent to negate the Tacloban domicile of
petitioner is nil. He presented petitioner's Voter's Registration Record filed with the Board of
Election Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein she stated that
her period of residence in said barangay was six (6) months as of the date of her filing of said
Voter's 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
39
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)
40
to register thereat since she is a resident of Tolosa and not Tacloban City. The purpose of this
move of the petitioner (Montejo) is not lost to (sic) the Commission. In UND No. 95-001 (In the
matter of the Legislative Districts of the Provinces of Leyte, Iloilo, and South Cotabato, Out of
Which the New Provinces of Biliran, Guimaras and Saranggani Were Respectively Created), . .
. Hon. Cirilo Roy G. Montejo, Representative, First District of Leyte, wanted the Municipality of
Tolosa, in the First District of Leyte, transferred to the Second District of Leyte. The Hon.
Sergio A.F. Apostol, Representative of the Second District of Leyte, opposed the move of the
petitioner (Montejo). Under Comelec Resolution No. 2736 (December 29, 1994), the
Commission on Elections refused to make the proposed transfer. Petitioner (Montejo) filed
"Motion for Reconsideration of Resolution
No. 2736" which the Commission denied in a Resolution promulgated on February 1, 1995.
Petitioner (Montejo) filed a petition for certiorari before the Honorable Supreme Court (Cirilo
Roy G. Montejo vs. Commission on Elections, G.R. No. 118702) questioning the resolution of
the Commission. Believing that he could get a favorable ruling from the Supreme Court,
petitioner (Montejo) tried to make sure that the respondent (petitioner herein) will register as a
voter in Tolosa so that she will be forced to run as Representative not in the First but in the
Second District.
It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously
promulgated a "Decision," penned by Associate Justice Reynato S. Puno, the dispositive
portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred the
municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth
District to the Third District of the province of Leyte, is annulled and set aside. We also deny
the Petition praying for the transfer of the municipality of Tolosa from the First District to the
Second District of the province of Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was
constrained to register in the Municipality of Tolosa where her house is instead of Tacloban
City, her domicile. In any case, both Tacloban City and Tolosa are in the First Legislative
District.
All these attempts to misuse our laws and legal processes are forms of rank harassments and
invidious discriminations against petitioner to deny her equal access to a public office. We
cannot commit any hermeneutic violence to the Constitution by torturing the meaning of
equality, the end result of which will allow the harassment and discrimination of petitioner who
has lived a controversial life, a past of alternating light and shadow. There is but one
Constitution for all Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and
the worst way to interpret the Constitution is to inject in its interpretation, bile and bitterness.
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.
41
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
42
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
43
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 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
44
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.
45
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
46
natural person is the place of his habitual residence (see Article 50, Civil Code). In election otherwise, would be the effect of the Court's peremptory pronouncement on the ability of the
cases, the controlling rule is that heretofore announced by this Court in Romualdez vs. Electoral Tribunal to later come up with its own judgment in a contest "relating to the election,
Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus: returns and qualification" of its members.

In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he Prescinding from all the foregoing, I should like to next touch base on the applicability to this
term "residence" as used in the election law is synonymous with "domicile," which imports not case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg.
only an intention to reside in a fixed place but also personal presence in that place, coupled 881, each providing thusly:
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 REPUBLIC ACT NO. 6646
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. xxx xxx xxx

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.
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

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

47
Sec. 72. Effects of disqualification cases and priority. — The Commission and the courts shall
give priority to cases of disqualification by reason of violation of this Act to the end that a final
decision shall be rendered not later than seven days before the election in which the
disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a
candidate is not declared by final, judgment before an election to be disqualified, and he is
voted for and receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation and assumption to
office.
I realize that in considering the significance of the law, it may be preferable to look for not so
much the specific instances they ostensibly would cover as the principle they clearly convey.
Thus, I will not scoff at the argument that it should be sound to say that votes cast in favor of
the disqualified candidate, whenever ultimately declared as such, should not be counted in his
or her favor and must accordingly be considered to be stray votes. The argument,
nevertheless, is far outweighed by the rationale of the now prevailing doctrine first enunciated
in the case of Topacio vs. Paredes (23 Phil. 238 [1912]) which, although later abandoned in
Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137 SCRA 740
[1985]), was restored, along with the interim case of Geronimo vs. Ramos (136 SCRA 435
[1985]), by the Labo (176 SCRA 1 (1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA
297 [1992]) and, most recently, Benito (235 SCRA 436 [1994]) rulings. Benito vs. Comelec
was a unanimous decision penned by Justice Kapunan and concurred in by Chief Justice
Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let
me quote from the first Labo decision:
Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as
he obtained only the second highest number of votes in the election, he was obviously not the
choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA
740) decided in 1985. In that case, the candidate who placed second was proclaimed elected
after the votes for his winning rival, who was disqualified as a turncoat and considered a non-
candidate, were all disregard as stray. In effect, the second placer won by default. That
decision was supported by eight members of the Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ.,
concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and Melencio-
Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on
official leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of
the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical
and democratic rule. That case, which reiterated the doctrine first announced in 1912 in
Topacio v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr.,
ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his
vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were on leave.
(Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality of votes is
proclaimed a winner and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal votes cast in the
election. (20 Corpus Juris 2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle the
candidate who obtained the second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid
48
to vote the winner into office or maintain him there. However, in the absence of a statute which
clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in
the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated
as stray, void or meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J., separate opinion:
In my view the issue in this case is whether the Commission on Elections has the power to
disqualify candidates on the ground that they lack eligibility for the office to which they seek to
be elected. I think that it has none and that the qualifications of candidates may be questioned
only in the event they are elected, by filing a petition for quo warranto or an election protest in
the appropriate forum, not necessarily in the COMELEC but, as in this case, in the House of
Representatives Electoral Tribunal. That the parties in this case took part in the proceedings in
the COMELEC is of no moment. Such proceedings were unauthorized and were not rendered
valid by their agreement to submit their dispute to that body.
The various election laws will be searched in vain for authorized proceedings for determining a
candidate's qualifications for an office before his election. There are none in the Omnibus
Election Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987 (R.A. No. 6646), or in the
law providing for synchronized elections (R.A. No. 7166). There are, in other words, no
provisions for pre-proclamation contests but only election protests or quo warranto
proceedings against winning candidates.
To be sure, there are provisions denominated for "disqualification," but they are not concerned
with a declaration of the ineligibility of a candidate. These provisions are concerned with the
incapacity (due to insanity, incompetence or conviction of an offense) of a person either to be a
candidate or to continue as a candidate for public office. There is also a provision for the denial
or cancellation of certificates of candidacy, but it applies only to cases involving false
representations as to certain matters required by law to be stated in the certificates.
These provisions are found in the following parts of the Omnibus Election Code:
§ 12. Disqualifications. — Any person who has been declared by competent authority insane
or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion
or for any offense for which he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any
office, unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or
after the expiration of a period of five years from his service of sentence, unless within the
same period he again becomes disqualified. (Emphasis added)
§ 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is
declared by final decision of a competent court guilty of, or found by the Commission of having
(a) given money or other material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that allowed by this
Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97
and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an immigrant to
a foreign country shall not be qualified to run for any elective office under this Code, unless
said person has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws. (Emphasis
added)
§ 78. Petition to deny due course to or cancel a certificate of
candidacy. — A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any material
49
representation contained therein as required under Section 74 hereof is false. The petition may
be filed at any time not later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later than fifteen days before (b) Those removed from office as a result of on administrative case;
the election. (Emphasis added)

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
the Electoral Reforms Law of 1987 (R.A. No. 6646):

(d) Those with dual citizenship;

§ 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 (e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
motion for the complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.
(Emphasis added).

(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

§ 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.
(g) The insane or feeble-minded.

and the Local Government Code of 1991 (R.A. No. 7160):

§ 40. Disqualifications. — The following persons are disqualified from running for any elective
local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after serving
sentence;
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.

50

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.
51
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.
52
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) —
53
 wherein she also alleged that she has been a resident in the constituency where she seeks to
be elected for a period of 7 months. The pertinent entries therein are as follows:
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 7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social Worker
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, 8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte
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.

Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte

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 9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE ELECTED
1991, she came home to Manila. In 1992 respondent ran for election as President of the IMMEDIATELY PRECEDING ELECTION: ________ Years Seven Months
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
10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.
order that she may be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B,
Answer). On August 31, 1994, respondent filed her Sworn Application for Cancellation of
Voter's Previous Registration (Annex 2-C, Answer) stating that she is a duly registered voter in
157-A, Brgy. Maytunas, San Juan, Metro that she intends to register at Brgy. Olot, Tolosa,
Leyte. THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the
Republic of the Philippines and will maintain true faith and allegiance thereto; That I will obey
the laws, legal orders and decrees promulgated by the duly-constituted authorities; That the
obligation imposed by my oath is assumed voluntarily, without mental reservation or purpose
of evasion; and That the facts stated herein are true to the best of my knowledge.
On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa,
Leyte. She filed with the Board of Election Inspectors CE Form No. 1, Voter Registration
Record No. 94-3349772, wherein she alleged that she has resided in the municipality of
Tolosa for a period of 6 months (Annex A, Petition).
(Sgd.) Imelda Romualdez-Marcos

(Signature of Candidate)2
On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte,
a Certificate of Candidacy for the position of Representative of the First District of Leyte

54
Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive
component or seed of her disqualification. It is contained in her answer under oath of "seven
months" to the query of "residence in the constituency wherein I seek to be elected
immediately preceding the election."
It follows from all the above that the Comelec committed no grave abuse of discretion in
holding that petitioner is disqualified from the position of representative for the 1st
congressional district of Leyte in the elections of
8 May 1995, for failure to meet the "not less than one-year residence in the constituency (1st
district, Leyte) immediately preceding the day of election
(8 May 1995)."
Having arrived at petitioner's disqualification to be a representative of the first district of Leyte,
the next important issue to resolve is whether or not the Comelec can order the Board of
Canvassers to determine and proclaim the winner out of the remaining qualified candidates for
representative in said district.
I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec,
G.R. 86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laid down in the early
1912 case of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal votes cast in the
election. (20 Corpus Juris 2nd, S 243, p. 676)
The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle the
candidate who obtained the second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid
to vote the winner into office or maintain him there. However, in the absence of a statute which
clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in
the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated
as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for
other purposes) (84 O.G. 905, 22 February 1988) it is provided that:
. . . — Any candidate who has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant
or any intervenor, may, during the pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the plain and unambiguous
meaning of the provision quoted above. As the law now stands, the legislative policy does not
limit its concern with the effect of a final judgement of disqualification only before the election,
but even during or after the election. The law is clear that in all situations, the votes cast for a
disqualified candidate SHALL NOT BE COUNTED. The law has also validated the jurisdiction
of the Court or Commission on Election to continue hearing the petition for disqualification in
case a candidate is voted for and receives the highest number of votes, if for any reason, he is
not declared by final judgment before an election to be disqualified.
Since the present case is an after election scenario, the power to suspend proclamation (when
evidence of his guilt is strong) is also explicit under the law. What happens then when after the
elections are over, one is declared disqualified? Then, votes cast for him "shall not be counted"
and in legal contemplation, he no longer received the highest number of votes.
55
It stands to reason that Section 6 of RA 6646 does not make the second placer the winner 1. Petitioner, although born in Manila, resided during her childhood in the present Tacloban
simply because a "winning candidate is disqualified," but that the law considers him as the City, she being a legitimate daughter of parents who appear to have taken up permanent
candidate who had obtained the highest number of votes as a result of the votes cast for the residence therein. She also went to school there and, for a time, taught in one of the schools in
disqualified candidate not being counted or considered. that city.

As this law clearly reflects the legislative policy on the matter, then there is no reason why this 2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in Batac, Ilocos
Court should not re-examine and consequently abandon the doctrine in the Jun Labo case. It Norte, by operation of law she acquired a new domicile in that place in 1954.
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.
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.
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.
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.
Hermosisima, Jr. J., dissent.

5. It does not appear that her husband, even after he had assumed those lofty positions
REGALADO, J., dissenting: successively, ever abandoned his domicile of origin in Batac, Ilocos Norte where he
maintained his residence and invariably voted in all elections.

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 6. After the ouster of her husband from the presidency in 1986 and the sojourn of the Marcos
"on the basis of the personality of a petitioner in a case." 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.

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:

56
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.
57
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,
58
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.
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.

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 ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.
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

DAVIDE, JR., J., dissenting:

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 I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M.
affect the domicile fixed by the law for petitioner in 1954 and, for her husband, long prior Kapunan, more particularly on the issue of the petitioner's qualification.
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 Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of
controversy. Instead, what is of concern in petitioner's case was the matter of her having the COMELEC may be brought to this Court only by the special civil action for certiorari under
acquired or not her own domicile of choice. Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251 [1979]; Dario vs. Mison,
176 SCRA 84 [1989]).

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

59
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).
60

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
61
and, in the light of the foregoing disquisitions, would be all sound and fury signifying nothing.
To me, she did not commit any mistake, honest or otherwise; what she stated was the truth.
The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the
affirmative of an issue has the burden of proving it (Imperial Victory Shipping Agency vs.
NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221 SCRA 19 [1993]).
Having admitted marriage to the then Congressman Marcos, the petitioner could not deny the
legal consequence thereof on the change of her domicile to that of her husband. The majority
opinion rules or at least concludes that "[b]y operation of law (domicilium necesarium), her
legal domicile at the time of her marriage automatically became Batac, Ilocos Norte." That
conclusion is consistent with Article 110 of the Civil Code. Since she is presumed to retain her
deceased husband's domicile until she exercises her revived power to acquire her own
domicile, the burden is upon her to prove that she has exercised her right to acquire her own
domicile. She miserably failed to discharge that burden.
I vote to deny the petition.
Separate Opinions
PUNO, J., concurring:
It was Aristotle who taught mankind that things that are alike should be treated alike, while
things that are unalike should be treated unalike in proportion to their 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
62
. . . . 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
63
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 situation, the amendments to the Civil Law being proposed
by the University of the Philippines Law Center would allow absolute divorce which severes the
matrimonial ties, such that the divorced spouses are free to get married a year after the
divorce is decreed by the courts. However, in order to place the husband and wife on an equal
footing insofar as the bases for divorce are concerned, the following are specified as the
grounds for absolute divorce: (1) adultery or having a paramour committed by the respondent
in any of the ways specified in the Revised Penal Code or (2) an attempt by the respondent
against the life of the petitioner which amounts to attempted parricide under the Revised Penal
Code; (3) abandonment of the petitioner by the respondent without just cause for a period of
three consecutive years; or (4) habitual maltreatment.
With respect to property relations, the husband is automatically the administrator of the
conjugal property owned in common by the married couple even if the wife may be the more
astute or enterprising partner. The law does not leave it to the spouses to decide who shall act
as such administrator. Consequently, the husband is authorized to engage in acts and enter
into transactions beneficial to the conjugal partnership. The wife, however, cannot similarly
bind the partnership without the husband's consent.
And while both exercise joint parental authority over their children, it is the father whom the law
designates as the legal administrator of the property pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally through legislations, to
eliminate inequality between men and women in our land. The watershed came on August 3,
1988 when our Family Code took effect which, among others, terminated the unequal
treatment of husband and wife as to their rights and responsibilities.22
The Family Code attained this elusive objective by giving new rights to married women and by
abolishing sex-based privileges of husbands. Among others, married women are now given
the joint right to administer the family property, whether in the absolute community system or in
the system of conjugal partnership;23 joint parental authority over their minor children, both
over their persons as well as their properties;24 joint responsibility for the support of the
family;25 the right to jointly manage the household;26 and, the right to object to their
husband's exercise of profession, occupation, business or activity.27 Of particular relevance to
the case at bench is Article 69 of the Family Code which took away the exclusive right of the
husband to fix the family domicile and gave it jointly to the husband and the wife, thus:
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court
shall decide.
The court may exempt one spouse from living with the other if the latter should live abroad or
there are other valid and compelling reasons for the exemption. However, such exemption
64
shall not apply if the same is not compatible with the solidarity of the family. (Emphasis
supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and
wife to live together, former Madam Justice Alice Sempio-Diy of the Court of Appeals specified
the instances when a wife may now refuse to live with her husband, thus:28
(2) The wife has the duty to live with her husband, but she may refuse to do so in certain cases
like:
(a) If the place chosen by the husband as family residence is dangerous to her Life;
(b) If the husband subjects her to maltreatment or abusive conduct or insults, making common
life impossible;
(c) If the husband compels her to live with his parents, but she cannot get along with her
mother-in-law and they have constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG 6122);
(d) Where the husband has continuously carried illicit relations for 10 years with different
women and treated his wife roughly and without consideration. (Dadivas v. Villanueva, 54 Phil.
92);
(e) Where the husband spent his time in gambling, giving no money to his family for food and
necessities, and at the same time insulting his wife and laying hands on her. (Panuncio v.
Sula, CA, 34 OG 129);
(f) If the husband has no fixed residence and lives a vagabond life as a tramp (1 Manresa
329);
(g) If the husband is carrying on a shameful business at home (Gahn v. Darby, 38 La. Ann.
70).
The inescapable conclusion is that our Family Code has completely emancipated the wife from
the control of the husband, thus abandoning the parties' theoretic identity of interest. No less
than the late revered Mr. Justice J.B.L. Reyes who chaired the Civil Code Revision Committee
of the UP Law Center gave this insightful view in 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.
65
 xxx xxx xxx

Aside from reckoning with the Family Code, we have to consider our Constitution and its firm
guarantees of due process and equal protection of
36. In November, 1991, I came home to our beloved country, after several requests for my
law.30 It can hardly be doubted that the common law imposition on a married woman of her return were denied by President Corazon C. Aquino, and after I filed suits for our Government
dead husband's domicile even beyond his grave is patently discriminatory to women. It is a to issue me my passport.
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 37. But I came home without the mortal remains of my beloved husband, President Ferdinand
women in nation building, and shall ensure fundamental equality before the law of women and E. Marcos, which the Government considered a threat to the national security and welfare.
men. We shall be transgressing the sense and essence of this constitutional mandate if we
insist on giving our women the caveman's treatment.

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
Prescinding from these premises, I respectfully submit that the better stance is to rule that destroyed and cannibalized. The PCGG, however, did not permit and allow me.
petitioner reacquired her Tacloban domicile upon the death of her husband in 1989. This is the
necessary consequence of the view that petitioner's Batac dictated domicile did not continue
after her husband's death; otherwise, she would have no domicile and that will violate the
universal rule that no person can be without a domicile at any point of time. This stance also 39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay
restores the right of petitioner to choose her domicile before it was taken away by Article 110 City, a friend's apartment on Ayala Avenue, a house in South Forbes Park which my daughter
of the Civil Code, a right now recognized by the Family Code and protected by the rented, and Pacific Plaza, all in Makati.
Constitution. Likewise, I cannot see the fairness of the common law requiring petitioner to
choose again her Tacloban domicile before she could be released from her Batac domicile.
She lost her Tacloban domicile not through her act but through the act of her deceased
husband when he fixed their domicile in Batac. Her husband is dead and he cannot rule her
beyond the grave. The law disabling her to choose her own domicile has been repealed. 40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in
Considering all these, common law should not put the burden on petitioner to prove she has San Jose, Tacloban City, and pursued my negotiations with PCGG to recover my sequestered
abandoned her dead husband's domicile. There is neither rhyme nor reason for this gender- residences in Tacloban City and Barangay Olot, Tolosa, Leyte.
based burden.

40.1 In preparation for my observance of All Saints' Day and All Souls' Day that year, I
But even assuming arguendo that there is need for convincing proof that petitioner chose to renovated my parents' burial grounds and entombed their bones which had been excalvated,
reacquire her Tacloban domicile, still, the records reveal ample evidence to this effect. In her unearthed and scattered.
affidavit submitted to the respondent COMELEC, petitioner averred:

66
41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for
permissions to —
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot, Leyte . . . to
make them livable for us the Marcos family to have a home in our own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to
Col. Simeon Kempis, Jr., PCGG Region 8 Representative, allowed me to repair and renovate
my Leyte residences. I quote part of his letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this Commission, that she intends to visit our
sequestered properties in Leyte, please allow her access thereto. She may also cause repairs
and renovation of the sequestered properties, in which event, it shall be understood that her
undertaking said repairs is not authorization for her to take over said properties, and that all
expenses shall be for her account and not reimbursable. Please extend the necessary
courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Niño Shrine residence in
Tacloban City where I wanted to stay and reside, after repairs and renovations were
completed. In August 1994, I transferred from San Jose, Tacloban City, to my residence in
Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay and live there.
It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It
is not disputed that in 1992, she first lived at the house of her brother in San Jose, Tacloban
City and later, in August 1994, she transferred her residence in Barangay Olot, Tolosa, Leyte.
Both Tacloban City and the municipality of Olot are within the First District of Leyte. Since
petitioner reestablished her old domicile in 1992 in the First District of Leyte, she more than
complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the election," i.e.,
the May 8, 1995 elections.
The evidence presented by the private respondent to negate the Tacloban domicile of
petitioner is nil. He presented petitioner's Voter's Registration Record filed with the Board of
Election Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein she stated that
her period of residence in said barangay was six (6) months as of the date of her filing of said
Voter's 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
67
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.
68
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.
69
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 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,
70
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
71
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 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
72
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.
73
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.
74
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
75
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 . . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed
Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137 SCRA 740 right to suffrage if a candidate who has not acquired the majority or plurality of votes is
[1985]), was restored, along with the interim case of Geronimo vs. Ramos (136 SCRA 435 proclaimed a winner and imposed as the representative of a constituency, the majority of
[1985]), by the Labo (176 SCRA 1 (1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA which have positively declared through their ballots that they do not choose him.
297 [1992]) and, most recently, Benito (235 SCRA 436 [1994]) rulings. Benito vs. Comelec
was a unanimous decision penned by Justice Kapunan and concurred in by Chief Justice
Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let
me quote from the first Labo decision: 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.)
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 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
The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA to vote the winner into office or maintain him there. However, in the absence of a statute which
740) decided in 1985. In that case, the candidate who placed second was proclaimed elected clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in
after the votes for his winning rival, who was disqualified as a turncoat and considered a non- the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated
candidate, were all disregard as stray. In effect, the second placer won by default. That as stray, void or meaningless. (at pp. 20-21)
decision was supported by eight members of the Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ.,
concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and Melencio-
Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on
official leave. (Fernando, C.J.) Considering all the foregoing, I am constrained to vote for the dismissal of the petition.

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of
the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical
and democratic rule. That case, which reiterated the doctrine first announced in 1912 in
Topacio v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr.,
ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his
vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were on leave.
(Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
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

76
Representatives Electoral Tribunal. That the parties in this case took part in the proceedings in
the COMELEC is of no moment. Such proceedings were unauthorized and were not rendered
valid by their agreement to submit their dispute to that body.
The various election laws will be searched in vain for authorized proceedings for determining a
candidate's qualifications for an office before his election. There are none in the Omnibus
Election Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987 (R.A. No. 6646), or in the
law providing for synchronized elections (R.A. No. 7166). There are, in other words, no
provisions for pre-proclamation contests but only election protests or quo warranto
proceedings against winning candidates.
To be sure, there are provisions denominated for "disqualification," but they are not concerned
with a declaration of the ineligibility of a candidate. These provisions are concerned with the
incapacity (due to insanity, incompetence or conviction of an offense) of a person either to be a
candidate or to continue as a candidate for public office. There is also a provision for the denial
or cancellation of certificates of candidacy, but it applies only to cases involving false
representations as to certain matters required by law to be stated in the certificates.
These provisions are found in the following parts of the Omnibus Election Code:
§ 12. Disqualifications. — Any person who has been declared by competent authority insane
or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion
or for any offense for which he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any
office, unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or
after the expiration of a period of five years from his service of sentence, unless within the
same period he again becomes disqualified. (Emphasis added)
§ 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is
declared by final decision of a competent court guilty of, or found by the Commission of having
(a) given money or other material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that allowed by this
Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97
and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an immigrant to
a foreign country shall not be qualified to run for any elective office under this Code, unless
said person has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws. (Emphasis
added)
§ 78. Petition to deny due course to or cancel a certificate of
candidacy. — A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may
be filed at any time not later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later than fifteen days before
the election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
§ 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment
to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for
any reason a candidate is not declared by final judgment before an election to be disqualified
and he is voted for and receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or protest and; upon
motion for the complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.
(Emphasis added).
77

§ 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The procedure
hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of
candidacy as provided in Section 78 of Batas Pambansa Blg. 881.
and the Local Government Code of 1991 (R.A. No. 7160):
§ 40. Disqualifications. — The following persons are disqualified from running for any elective
local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after serving
sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled
"For Cancellation and Disqualification," contained no allegation that private respondent Imelda
Romualdez-Marcos made material representations in her certificate of candidacy which were
false, it sought her disqualification on the ground that "on the basis of her Voter Registration
Record and Certificate of Candidacy, [she] is disqualified from running for the position of
Representative, considering that on election day, May 8, 1995, [she] would have resided less
than ten (10) months in the district where she is seeking to be elected." For its part, the
COMELEC's Second Division, in its resolution of April 24, 1995, cancelled her certificate of
candidacy and corrected certificate of candidacy on the basis of its finding that petitioner is
"not qualified to run for the position of Member of the House of Representatives for the First
Legislative District of Leyte" and not because of any finding that she had made false
representations as to material matters in her certificate of candidacy.
Montejo's petition before the COMELEC was therefore not a petition for cancellation of
certificate of candidacy under § 78 of the Omnibus Election Code, but essentially a petition to
declare private respondent ineligible. It is important to note this, because, as will presently be
explained, proceedings under § 78 have for their purpose to disqualify a person from being a
candidate, whereas quo warranto proceedings have for their purpose to disqualify a person
from holding public office. Jurisdiction over quo warranto proceedings involving members of
the House of Representatives is vested in the Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for the cancellation of
certificates of candidacy, the allegations were that the respondent candidates had made false
representations in their certificates of candidacy with regard to 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.
78
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.
79
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.
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.

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 The provincial board of canvassers should now proceed with the proclamation of petitioner.
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. Narvasa, C.J., concurs.

To summarize, the declaration of ineligibility of a candidate may only be sought in an election PADILLA, J., dissenting:
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, I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr.
C, § 2(2) of the Constitution. In the case of the President and Vice President, the petition must Justice Kapunan.
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 As in any controversy arising out of a Constitutional provision, the inquiry must begin and end
the House of Representatives, because of the same policy prohibiting the filing of pre- with the provision itself. The controversy should not be blurred by what, to me, are academic
proclamation cases against such candidates. 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
For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. year immediately preceding the day of the election." (Article VI, section 6)
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.

80
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
81
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 10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.
order that she may be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B,
Answer). On August 31, 1994, respondent filed her Sworn Application for Cancellation of
Voter's Previous Registration (Annex 2-C, Answer) stating that she is a duly registered voter in
157-A, Brgy. Maytunas, San Juan, Metro that she intends to register at Brgy. Olot, Tolosa,
Leyte. THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the
Republic of the Philippines and will maintain true faith and allegiance thereto; That I will obey
the laws, legal orders and decrees promulgated by the duly-constituted authorities; That the
obligation imposed by my oath is assumed voluntarily, without mental reservation or purpose
of evasion; and That the facts stated herein are true to the best of my knowledge.
On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa,
Leyte. She filed with the Board of Election Inspectors CE Form No. 1, Voter Registration
Record No. 94-3349772, wherein she alleged that she has resided in the municipality of
Tolosa for a period of 6 months (Annex A, Petition).
(Sgd.) Imelda Romualdez-Marcos

(Signature of Candidate)2
On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte,
a Certificate of Candidacy for the position of Representative of the First District of Leyte
wherein she also alleged that she has been a resident in the constituency where she seeks to
be elected for a period of 7 months. The pertinent entries therein are as follows: Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive
component or seed of her disqualification. It is contained in her answer under oath of "seven
months" to the query of "residence in the constituency wherein I seek to be elected
immediately preceding the election."
7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social Worker

8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte
It follows from all the above that the Comelec committed no grave abuse of discretion in
holding that petitioner is disqualified from the position of representative for the 1st
congressional district of Leyte in the elections of 8 May 1995, for failure to meet the "not less
than one-year residence in the constituency (1st district, Leyte) immediately preceding the day
of election (8 May 1995)."

Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte

Having arrived at petitioner's disqualification to be a representative of the first district of Leyte,

the next important issue to resolve is whether or not the Comelec can order the Board of
9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE ELECTED Canvassers to determine and proclaim the winner out of the remaining qualified candidates for
IMMEDIATELY PRECEDING ELECTION: ________ Years Seven Months representative in said district.

82

I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec,
G.R. 86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laid down in the early
1912 case of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal votes cast in the
election. (20 Corpus Juris 2nd, S 243, p. 676)
The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle the
candidate who obtained the second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid
to vote the winner into office or maintain him there. However, in the absence of a statute which
clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in
the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated
as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for
other purposes) (84 O.G. 905, 22 February 1988) it is provided that:
. . . — Any candidate who has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant
or any intervenor, may, during the pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the plain and unambiguous
meaning of the provision quoted above. As the law now stands, the legislative policy does not
limit its concern with the effect of a final judgement of disqualification only before the election,
but even during or after the election. The law is clear that in all situations, the votes cast for a
disqualified candidate SHALL NOT BE COUNTED. The law has also validated the jurisdiction
of the Court or Commission on Election to continue hearing the petition for disqualification in
case a candidate is voted for and receives the highest number of votes, if for any reason, he is
not declared by final judgment before an election to be disqualified.
Since the present case is an after election scenario, the power to suspend proclamation (when
evidence of his guilt is strong) is also explicit under the law. What happens then when after the
elections are over, one is declared disqualified? Then, votes cast for him "shall not be counted"
and in legal contemplation, he no longer received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the winner
simply because a "winning candidate is disqualified," but that the law considers him as the
candidate who had obtained the highest number of votes as a result of the votes cast for the
disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason why this
Court should not re-examine and consequently abandon the doctrine in the Jun Labo case. It
has been stated that "the qualifications prescribed for elective office cannot be erased by the
electorate alone. The will of the people as expressed through the ballot cannot cure the vice of
ineligibility" most especially when it is mandated by no less than the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of
Canvassers of Leyte to proclaim the candidate receiving the highest number of votes, from
among the qualified candidates, as the duly elected representative of the 1st district of Leyte.
Hermosisima, Jr. J., dissent.
83

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.
84
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.
85

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
86
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.
87
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
88
Annex "5," Id.), and her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of and had acquired a new one animo et facto (KOSSUTH KENT KENNAN, A Treatise on
Exhibit "A," attached as Annex "1," Id.), she solemnly declared that she was born in Manila. Residence and Domicile, [1934], 214, 326).

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.
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.

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

89